Moved third reading of Bill C-58, An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012.

She said: Honourable senators, I’m honoured and humbled to be the Senate sponsor of this bill. It’s an historic moment, and I’m happy to be involved with this, to move third reading and to begin third reading debate.

This debate is on Bill C-58, An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012. This bill is brought forward in order to bring about a regime of balance with respect to banning replacement workers during federally regulated industry strikes or lockouts, and to put in place a provision that governs the timing and steps with respect to determining maintenance of activities agreements or decisions of the Canada Industrial Relations Board, which would affect what work continues to be done during a strike.

At second reading, I had an opportunity to explain further, but I’ll remind you to whom this bill refers. It refers to those federal private sector organizations contained in Parts I, II, III and IV of the Canada Labour Code. There are more extensive examples than this, but some that will help ground you in terms of who we’re talking about include the following: air transportation, banks, port services, railways, radio and television broadcasting, road transportation services, telecommunication systems, some First Nations governance bodies and a number of sectors, all of which are federally regulated. The distinction to be made is that workplaces regulated by the provinces and governed by things like the Employment Standards Act and/or the Labour Code regulations — at the provincial level — are federally regulated sectors. It does not include those federal workplaces governed by different legislation — legislation separate from the Canada Labour Code. The federal public service or Parliament is a good example of what is not covered.

In regard to the debates on this bill in the House of Commons — and I reported on this at second reading as well — second reading, the committee study and third reading all passed unanimously. A couple of amendments were made in the House of Commons, but, at the end of the day, the committee passed it unanimously, as did the House of Commons. Here, in the Senate, the bill passed our second reading and it passed through committee, again, with no amendments. We are here for third reading debate at this point in time.

During our committee hearings, we heard — either through direct testimony or through written submissions — from employers, employer associations, individual unions and labour bodies like the Canadian Labour Congress. We heard from academics, from the Canada Industrial Relations Board and from organizations — directly impacted but related organizations. In a minute, I’ll talk about the Canadian Federation of Agriculture and the concerns that they raised.

I want to highlight some of the concerns that employers raised. Again, if you remember my second reading speech, I talked a lot about how this is very polarized. There’s not a lot of room in the advocacy communities for agreement, except people think that the provisions have been put in place to set out the process for the determination of the maintenance of activities agreements, or for determination through negotiation by the parties in agreement, or by referral of the issue to the Canada Industrial Relations Board and their investigation, adjudication and declaration. That is not so much in contention, but it is the basic issue of whether or not there should be a ban on replacement workers.

Colleagues, this is an issue of balance. It comes down to no more than that. It is clear that the parties have different views of what a balanced regime is, and, for the most part, employers feel that the current balance it struck in the Canada Labour Code is an appropriate balance, whereas unions have said for years that it is an unfair regime and that it places restrictions on workers and undermines the effective right to strike. There’s really no bringing those two points of view together.

I’d like to highlight a couple of the concerns brought to the committee’s attention. I want people to know that their voices have been heard, and that there was consideration of the issues brought forward. I will speak about one observation that the committee appended to its report, but, at the end of the day, this bill passed through committee without amendments.

Let me talk just a little bit about some of the employer concerns. One of the things we heard very directly is that the employers were concerned about the Canada Industrial Relations Board, or CIRB, being able to implement this legislation in the 12 months post-Royal Assent, when it would then be called into force. The original bill had an 18-month time frame, which was amended in the House of Commons to 12 months, and the employer community thinks that this is a problem. It relies on the minister’s own statements when the bill was introduced in his defence of the 18 months — that this is how long it would take to get the systems up and running at the CIRB to handle any complaints, referrals, adjudications and declaration decisions.

In committee in the House of Commons, the Bloc Québécois brought forward amendments to shorten this period, and there was, I believe, a different understanding of the history of the bill in that province due to the fact that they’ve had similar legislation since 1977. The thought that there’s a challenge in terms of implementing that was not given as much weight, and there was a belief that it could be shorter. The unions also called for it to be much shorter. They were calling for it to come into force upon Royal Assent.

The minister went back to the CIRB with these different points of view and talked with them about whether a shorter time frame was possible. I know from the discussions we had in testimony at committee that the CIRB clearly said they can do it, but only if they get more resources. They need to hire more staff, chairs and vice-chairs. They need to do the training and implement this with the systems they already have for the maintenance of activities agreements, which is part of the current regime.

This, however, puts different timelines on it and imposes different frameworks. It is expected that in the first rounds of bargaining with various bargaining units and employers, there may be some testing of the legislation, so there may be increased volume. Currently, there is also a backlog facing the CIRB. The CIRB said, “These are the resources that we need.” The minister publicly committed to that, agreeing to support the amendment going through committee in the House of Commons to reduce the time frame to 12 months.

While there are some concerns about whether those resources will be forthcoming, I want to note that the government has included resources for the implementation of Bill C-58 in both this year’s budget and last year’s budget. So, there has been some forward planning on this, and I’m told that discussions are going on between the departments and the CIRB as we speak with regard to the exact shape of the forthcoming resources.

The employers also believe that there should be a review of this legislation. They think that the current system is balanced, that this will be an unbalancing of that, and they want to see a review. I won’t speak for my other committee members — although no amendment came forward on that — but the challenge I had with that argument is that in collective bargaining, contracts are not normally 12 months or two years. They’re often longer than that, and they come up at different points in time. So, you’ll need a period of time to gather any useful data or evidence to do an analysis of the impact of the legislation, and employers were calling for a five-year review.

In my point of view, that’s not sufficient time for this legislation to be tested and to amass an understanding of what — if any — impact it will have. I’ll say in a moment what we heard from academics — that they expect very little impact from this — but I think that we would all support a review happening at an appropriate time. Dare I say with tongue in cheek that putting it into legislation doesn’t ensure that it’s going to happen in a timely fashion under any government of any political stripe. That’s just the way parliamentary business unfolds.

The question we had to ask ourselves was this: Is the balance being proposed in this legislation — the new rebalancing or bringing into effect of what the trade union movement would say is a basic matter of fairness — the right balance?

We heard from the Canadian Federation of Agriculture, for example, and I thought that their presentation was very heartfelt and important. They talked about the protections, provisions and exemptions for bulk grain transports, but there are other matters of produce that are not exempted. I think they believe, writ large, that it should be exempted although it never has been, but this legislation doesn’t bring that about.

Their concern is with the shipment of their goods, and many Canadian manufacturers’ associations — Canadian Manufacturers & Exporters brought this up — are worried about transport. Railways, for example, which are a key mode of transporting agricultural produce, will be subject to this legislation. I ask you to look back at the negotiations that have gone on with these parties — the rail lines and their unions over the years.

Federally, we have a very mature system of labour relations. It has been around for a long time. We have a very effective and successful mediation/conciliation process. The vast majority of disputes are settled at the bargaining table, where they should be. Of those that move on to a further stage in dispute and engage mediation/conciliation services, 94% reach a resolution. We’re talking about a small number. I would point out to you that, in general, governments pay attention when sectors of the workforce come forward and make a case on either side — either through CIRB or an appeal to government — that there’s a problem here and that the government needs to step in.

Those of you who have been here for a few years will know — I’ve only been here for eight years, but I’ve participated in two debates on back-to-work legislation: one affecting the Port of Montreal and the other affecting Canada Post — that it is the hammer that governments have. There is a provision or test that they have to meet to ensure that this back-to-work legislation is constitutional, and many of us have different opinions about whether in those two cases they met that test or not, but the government has that ability. As I’ve seen over the years, both chambers of Parliament tend to bow to the government when it comes to back-to-work legislation. So, the hammer is there.

It’s not that the concerns raised are unreasonable concerns — they are, and that’s why I want to put them on the record — but there are mechanisms both in the existing system and law with respect to the maintenance of activities agreement and in the government’s ultimate ability when they believe conditions have been met that warrant it to use back-to-work legislation.

We also heard from a major telecommunications company in a submission in which they indicated that in order to maintain critical telecommunications services, they wanted the legislation to include an exemption or remove a prohibition in the exemptions, giving them the ability to transfer non-bargaining-unit employees from one location to another. The arguments that we received in a submission from the union involved in that case after our committee work had been done — it only arrived in the last couple of days — made an effective case refuting that argument.

I don’t need to go into detail about what they said. Instead, I want to return to a quote that I read to you in second-reading debate from the Supreme Court of Canada. In 2015, the Supreme Court of Canada affirmed that freedom of association provisions in our Canadian Charter of Rights and Freedoms protect the right to strike. Within the text of the Supreme Court decision, Justice Abella, who rendered the decision, writes:

The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations. . . .

She then went on to quote Otto Kahn-Freund and Bob Hepple, and they had this to say:

The power to withdraw their labour is for the workers what for management is its power to shut down production, to switch it to different purposes, to transfer it to different places.

I want you to remember those words. That’s within the current operating powers of the employer. What the union has to say about that is that effectively, if it is used by moving managers or replacement workers during the strike, it undermines the right to strike.

This quote goes on to say:

A legal system which suppresses the freedom to strike puts the workers at the mercy of their employers. This — in all its simplicity — is the essence of the matter.

To allow an employer to simply, on their own accord, move employees from one work location to another location — and I know most of us will be thinking within Canada, and that’s the first place we should think of — fundamentally undermines the right to strike, which is guaranteed by our Charter in section 15 and the section on freedom of association. We should give life to that and you can’t, by amendment to legislation, undermine that right.

Now, I mentioned that our minds we are probably thinking of Canada. I am aware of a situation where, prior to a lockout, an employer moved a lot of the work to a call centre overseas, completely undermining the right to strike and in a situation where replacement workers were also used domestically.

There are these cases that are egregious, and I would not paint all employers with the same brush at all, and particularly what I said is a mature industrial relations setting of the federally regulated sectors that we talked about. But the use of replacement workers undermines the right to strike, and this legislation is focused on the rebalancing that I mentioned, but bringing about fairness, finally.

I want to talk a little bit about a couple of other examples that we currently see right now in the federally regulated sector which illustrate why this legislation is so important. So let’s, for a moment, talk about the Port of Québec. Again, ports are a federally regulated sector, and those workers have been out for 20 months: that’s a long time. Think of the individuals, the families, their neighbours, their communities, where the purchasing power has been restrained and where people are struggling to continue to support their families and having to make decisions about whether to leave long-standing employment opportunities in that situation. Replacement workers are keeping that port open. That’s an example of why this legislation is needed.

Let me talk about the Vidéotron workers. For seven months they have been — not on strike, colleagues — locked out by their employer at this point in time. I was able to meet some of the Vidéotron workers who came to observe the committee’s handling of this. I don’t remember all their names, but I remember one woman in particular — France — because we share the same name. She has worked there for decades and decades. She is locked out by the employer. The employer has used replacement workers and is fully operational. She is six months away from retirement, so she may never get back to that job — all of which is impacted in terms of her current security to support her and her family, but her future as well. My heart breaks.

I’ve said this before: The last thing workers want to do is to go on strike. In this case, they are not on strike: they were locked out. There was purposeful planning to bump resources in other areas prior to this lockout in order for the employer to, I can only assume, break the union in this situation. I don’t have evidence of that and don’t mean to cast aspersions, but that’s what it looks like and feels like. When it walks like a duck and quacks like a duck, it’s likely a duck. From my background in labour relations, that is what it appears to me to be. This legislation is important.

I want to, just for a moment, turn to the committee report and the fact that the committee appended one observation to the report, and this was with respect to the issue of the resources required for the Canada Industrial Relations Board, or CIRB, to fulfill the requirements of the legislation and to do so in a timely fashion in the 12 months post-Royal Assent that has been given before this will be brought into force.

This is the observation to the twenty-fourth report of the Standing Senate Committee on Social Affairs, Science and Technology on Bill C-58:

Your committee received testimony regarding proposed expanded responsibilities for the Canada Industrial Relations Board (CIRB), such as the requirement for the prompt resolution of complaints related to the prohibited use of replacement workers. Your committee heard that, as a result, the CIRB will need additional resources (in the form of staff, vice-chairs and funding) to be able to effectively address the increased workload created by the bill, especially as some of its provisions stipulate specified time limits within which matters must be decided. Witnesses expressed concerns that without adequate funding and timely access to additional human resources, the CIRB may face backlogs, potentially leading to prolonged service disruptions in critical sectors.

Your committee, therefore, recommends that the Government of Canada ensure adequate and consistent funding for the CIRB so that it can meet its expanded responsibilities effectively and ensure the timely resolution of labour disputes. Your committee also recommends that the Government of Canada evaluate and adjust funding amounts on a regular basis to take into account the CIRB’s workload.

As I indicated, we heard directly from the CIRB, and they agreed, without hesitation, on the record, that they can do this in 12 months if they get the resources. I would have noted that money and resources for the implementation of this bill have been included in the last two budgets, thus the reason for the committee to bring forward this observation. Again, the observation was supported around the table. Senators of all recognized groups were supportive of that, so that has been included.

I also want to briefly mention that we had a number of academics present before us as well. Without going into all of the types of research that are out there, I think all of us will be familiar with organizations that bring forward advocacy research, and I say that with respect. I have been an advocacy researcher in my past. This is research that is conducted with a premise to be supported or not by the findings — not rigorous academic research, which is a whole different ball of wax.

We heard in particular from one academic who, I believe, is at the Université de Montréal and collaborated with someone from the University of Toronto, or U of T. That research spanned 40 years. It looked in depth at pre-1992 and post-1992, and examined a whole range of labour policies. This was not just replacement workers — although that’s one of the things on the table — but a whole range of labour policies and attempted to determine, again, on an evidentiary basis, what the impact of these various labour policies is. It is extensively researched, peer‑reviewed and published in the Industrial Relations journal out of Berkeley, which is one of the most renowned labour relations research journals, so this has credibility.

The bottom line is that they could not find statistically relevant evidence that any of these policies in and of themselves had an impact on the frequency or duration of work stoppages. Those are the two things that people are most concerned about: Will we have more strikes? Will those strikes be longer as a result of this legislation?

The academic work that has been done, even in some of the advocacy pieces, is nebulous about what argument can be made, and it’s a bit cherry-picking. Some of it is provincial. A lot of it is prior to COVID-19. We know things have changed so much since then. For me, as a member of the committee, it did not carry the weight that this piece published in an academic journal did. It makes sense that any shift in policy — again, in a country with a very mature industrial relations framework — would have a huge impact in and of itself.

The frequency of strikes is much more closely related to the elements in the economy that we’re facing. As inflation grows, the value of workers’ paycheques shrinks, and you see attempts to influence that and increase wages at the negotiation table, as well as more disputes, during these periods. That’s not the only example; however, there are many external factors which come into play and determine both frequency and duration.

Colleagues, that was intended to give you a little of the flavour of what happened at committee so you can understand the arguments being made. This is historic. Tonight, you are able to participate in a vote regarding a very historic, evolutionary development in the world of labour relations in the federally regulated industrial sector.

Trade unions made the case over and over again that they have been arguing for this legislation since before Canada was Canada. Think about that for a moment. I could provide all sorts of historical descriptions of strikes or lockouts that happened back in the days when employers hired Pinkerton to enforce the employer’s point of view with physical violence. Again, I don’t broad-brush all employers with that.

However, the trade union movement has seen — and their members, workforces, families and communities have felt — the effect of this imbalance in the labour relations situation for many years. They have fought for this for many years. It is with a sense of pride that I am here and a part of this. As I said before, I’m very honoured and humbled. I hope you feel the weight of the history of the vote we are about to take, and what it means for working women and men, families and the future of labour relations in this country. This is big. It’s important, and I urge you all to join with your committee that passed it out without amendments, our second reading vote, as well as the House of Commons, which passed it unanimously at second and third reading. Your support will be much appreciated by many across this country. Thank you very much.

I’m not sure I understand the question. The top one or two of what?

That’s a very interesting question — and one I would have loved a heads-up on so I could have thought about it. First, it is not since 1992. That’s when I got to bring in legislation to create the right to strike for Ontario Public Service workers. My involvement in the trade union movement goes back to the late 1970s, as I described, when I worked and became involved in my union.

Over the years, there were so many things, but I think one is with respect to compulsory dues check-off. If you are in a workplace that becomes unionized and you benefit from the collective agreements and whatever the courts and others have agreed on, the Rand Formula, compulsory dues check-off, is necessary.

Over the years, some of the adjustments to the process by which workplaces become unionized — regarding the votes, the supervision of the votes, structures of the votes and the laws stopping and prohibiting employers from intervening and intimidating workers into not signing union cards — have been critical. Expansion of the right to strike in the public sector has been critical.

That is off the top of my head. There are so many pieces of legislative policy development over the years that have been hard fought for and hard won. I mentioned at second reading that in Ontario, when I was in cabinet, not my portfolio but the labour portfolio brought forward a ban on replacement worker legislation, colloquially referred to as “anti-scab legislation.” That was passed, and it was a moment of celebration, much like I feel this moment is in doing this. It was, however, unfortunately repealed by the successor government, the Mike Harris Conservative government in Ontario. That was one of the first acts of the new government.

Other provinces already had it in place, like Quebec. Since then, B.C. has put it in place and Manitoba is currently considering it. Other jurisdictions around the world have developed this, but there is s lot of work to be done. We still live just north of a border where states have right-to-work laws, which sounds really good, but it refers to the right to banish unions and keep them out of workplaces.

There is a lot of work to do in solidarity with working people in this country and around the world. I am grateful to the government of the day — though I may disagree with them on many things at different times — and for the supply and confidence agreement that they signed with the New Democrats. That is not because that agreement makes this happen — it is Parliament that makes this happen. It is also not because both those parties didn’t include that in their platforms when they were campaigning — so people knew that this was coming. However, the collaborative work done to negotiate the provisions of the bill and bring it forward in a way that takes into account the sensibilities on both the employer and union sides of the table has produced a bill with the extraordinary result of unanimity in the House of Commons, with zero votes against. It seems as if it is approaching the same answer here in the Senate, and I am proud and happy to see us do that. Thank you.

Thank you, colleagues. It is an honour to be standing in this place this evening to add my voice to this piece of legislation. There is an old saying: If you live long enough, you might be wrong about everything. I have been around for a little bit. I never thought I would be in the Senate, much less participating in a debate on a piece of legislation that has also been a part of my life. It is an honour to be here.

Let me start by thanking my colleague, Senator Frances Lankin, for the sponsorship and the hard work she did. Over the decades, many activists have been advocating for legislation both at the national and provincial levels across the country.

I will share a bit of history here. Over the past 25 years, there have been many attempts in Parliament — when I was the president of the Canadian Labour Congress — and every one of them has failed at different stages. The closest was a second reading vote; and then, by the time it reached third reading, the bill didn’t make it through.

Since 2002, 19 private members’ bills to ban replacement workers have been introduced in the other place. To a large extent, this speaks to a minority Parliament and to the collaboration of the government and the NDP; however, in the last election, a majority of the parties had — in their platforms — a call for a ban on replacement workers.

What is the legislation about? You have heard much from Senator Lankin about what is in the bill. When listening to some, you would think that what this bill is about to do is dramatic. As a matter of fact, there is nothing dramatic about it. The vast majority of negotiations in the country, including at the federal level, are resolved and we never hear about the negotiations. Parties come to a collective agreement and they continue on with their relationships.

This bill will bring back balance and fairness to the federal system, which has been missing for a long time. It will give respect to workers and recognize the fundamental right to strike which — in 1982, when the Constitution was patriated to our country — was not envisioned as being part of the Constitution. This took some effort, of course. I will touch on that in a moment.

To a large extent, workers don’t wake up in the morning when their collective agreement expires and want to go on strike. They generally want their union to negotiate to reach a fair agreement and, more importantly, ensure that they have a place to go to work, as they have done, in many cases, for decades. They want their employer to succeed, and they are part of that success when they reach a collective agreement.

This legislation is important in a number of areas. It is about maintaining the harmony that exists between employers and their workers. Workers want to ensure that, when there is a negotiation, they are able to reach a fair agreement. However, should there be a disruption, employers don’t want that to harm the relationship that exists with their fellow workers. What tends to happen, the majority of the time, when replacement workers are used is that the relationship among workers is destroyed when someone crosses the picket line. This leads to animosity and it might take a long time, if ever, to restore the relationship. Also, an employer who experiences a protracted strike by using replacement workers is sometimes, for the longest time, not able to return the business to the way it should be because of the harm that’s been done.

What we have seen in the history of replacement workers — this legislation has been enacted in Quebec for almost five decades, despite the fact that there have been many changes of government — is that not a single one of those governments has said, “We need to repeal this legislation and replace it with something else.” There has been a similar experience in British Columbia. Despite changes in government, the legislation still exists in that province.

It is critical to recognize the importance of collective bargaining. I always say that collective bargaining is the one occasion where the parties can sit down and be equal and mature in the relationship. They get to look at the collective agreement. Usually, both sides have issues that they want to deal with, and 99% of the time — or even more than that, in some cases — they will reach an agreement without much disruption in their relationship. However, once in a while, there are disputes. Workers will go on strike. More often than not, where the relationship is mature and they use the services that the government provides — in terms of mediation services or, in some cases, the Canada Industrial Relations Board — they are able to come to a resolution and find a way to return to work in order to do the things they want to do, which is to ensure the enterprise continues to operate and fulfill its obligation.

I believe this legislation will bring stability to the federal jurisdiction. Equally, I believe it will show other jurisdictions that they need to enact similar legislation. This legislation has been debated in the other place. In Manitoba, the government has now committed that they will bring in a ban on replacement workers in the province.

It is important for us to put this in context, since the Supreme Court ruled that the right to strike is a fundamental right protected by the Constitution. Maybe I have a naive understanding of the interpretation, but I believe it is a fundamental right. We cannot take away or undermine that right. It is like the right to free speech. You cannot pass a piece of legislation that restricts free speech because everyone will say, “How is that free speech?” If workers have the right to strike — and this is recognized as a fundamental right under the Constitution — I believe that when legislators intervene to take away that right, they are undermining the most fundamental basis of our Constitution: the rule of law.

In the past, this chamber and the other place have passed back‑to-work legislation. In my previous life, I have opposed every single bit of it because I believe, fundamentally, that the parties need to negotiate. Many times, I have been at the bargaining table where there have been disputes. I recognize one fundamental importance: Eventually, both sides will come to a place where they can reach a collective agreement. It may not be what the union wants, and it may not be everything that the employer desires, but, at some point, they need to recognize the importance of free collective bargaining, where the parties can sit down and negotiate without somebody threatening them by saying, “If you don’t do this, we will take away your fundamental right.”

This country has built a broad middle-class society. Unions have contributed to that in large part by raising the standard of living for working people, and by raising the context of how we work. Health and safety laws have emerged because, on many occasions, where workers didn’t have their rights recognized in legislation, they have had to fight with their employer to establish these rights within their collective agreement. Later on, of course, there was recognition by the government that we need to put this in legislation. If workers can have these rights in their collective agreements, everyone should be sharing in that at the end of the day.

We don’t necessarily have an eight-hour day — well, in the Senate, on some days we do — but the right to an eight-hour day came about because workers recognized that it was a fundamental principle, and they bargained for this in their collective agreement. Eventually, the law recognized that the right to an eight-hour day should be enjoyed by everyone in society.

The right to workers’ compensation didn’t come about because the government woke up one day and said, “This will be good.” Sometimes workers had to strike and bargain with their employer to achieve protection when they became injured on the job. Eventually, of course, the laws were changed to ensure that these things are recognized as a broader concept.

I believe that changing the Canada Labour Code to bring in a ban on replacement workers at the federal level is the right decision by the government. Of course, this view is shared by all members of Parliament, because it passed unanimously in the other place.

I want to quote part of the Supreme Court ruling that was read earlier regarding the 2015 decision of Justice Abella and others in Saskatchewan Federation of Labour v. Saskatchewan:

The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. . . .

The ruling continued:

It seems to me to be the time to give this conclusion constitutional benediction.

This was written by Justice Abella. Passing this legislation tonight will give benediction to the Canada Labour Code that federal workers deserve in this country. Thank you so much.

Senator Yussuff, I have a question, if you will accept it.

I’m very concerned about the overall impact to the economy that this type of legislation could have. According to a report I read from the Canadian Federation of Independent Business, strikes at the ports in Montreal and in B.C. had huge economic impacts and massive costs for small businesses. I know these aren’t the same areas that this bill would cover, but it gives us an idea of what the impact could be. A shutdown of the Port of Montreal could cost the Canadian economy $40 million to $100 million a week, and I think a lot about the small and medium‑sized enterprises that were impacted greatly by such things as the supply chain. It wouldn’t be their business that would be striking, but it would really impact their ability to provide services to their clients and keep their own employees employed.

I am also concerned about Canadian companies being forced into a situation and making deals that they can’t afford to make to avoid further work stoppage and maybe considering contracting out or outsourcing. I’m interested in your comments on those points.

Thank you for the question.

It’s hard to respond to a question about what the cost will be. Fundamentally, when there is a dispute and workers have to exercise the right to strike, there is a cost. When the workers are on strike, they don’t get their regular pay, so they themselves are paying a cost of having to exercise that right. Yes, it might be a cost to the economy — I don’t know what that would be — but ultimately, of course, we have a mature system at the federal level where we have the Canada labour board there to mediate among the parties when certain issues are referred to them. In other cases, conciliation and mediation services are always available to the parties, and the parties themselves, by negotiating, recognize they want to reach an agreement that represents their collective interests: costs of running the business, but at the same time recognizing the issues the workers are raising and how to address that in a meaningful way to give some recognition to the workers’ concerns in the first place.

In my entire 45 years of being in collective bargaining before I got here, I had never seen an employer sign a settlement that was beyond their ability to maintain the business at the end of the day. If they weren’t able to maintain their business because they were going to sign a settlement, they wouldn’t sign it in the first place.

In regard to your question, I understand there might be some consequences and some costs, but it’s hard for me to answer that. I don’t know whether I would accept the numbers that were produced by some of the parties. There obviously are costs when certain parts of the economy are shut down, but ultimately what we want to ensure is that when there is a dispute, all of the necessary services that the government can provide to bring the parties to solve that dispute should happen as quickly as possible. It is important to recognize and to put this in the same context. If workers have a fundamental right to go on strike, we should think of the consequence of taking away that right, because a fundamental right is a fundamental right. It’s nothing else but a fundamental right. For far too long in this country we have treated a fundamental right of workers like an abstract concept, as if it’s not worthy of the consideration because it’s getting in the way of the efficiency of the economy.

I recognize the need for us to have a functioning economy, but I also recognize that good labour relations are about the parties sitting down and working out an agreement that represents their interests and taking into consideration the country’s interests if they can have an impact on the national economy.

Honourable senators, I’m going to build off of the question my colleague Senator Ross just asked. You’ve already heard a lot about Bill C-58. Simply, it prevents the use of replacement workers in federally regulated workplaces, not including the federal public service, during a contract dispute or strike.

I want to acknowledge the lifetime of work of our two colleagues: Senator Lankin and Senator Yussuff. My work experience is quite different, and that’s what makes this workplace so special. I’m honoured to serve with all of you in this workplace.

Colleagues, protecting workers’ rights is crucial. The labour movement has done much to ensure a fair relationship between employers and workers. However, I’m concerned about the unintended consequences of this bill, particularly as it relates to small businesses, which employ more than two thirds of Canada’s private sector labour force. This will be the focus of my comments.

Our small businesses continue to struggle in our post-COVID economy. First, they struggled with the damage and debt accumulated during the depths of the COVID pandemic. This was followed by Russia’s evil invasion of Ukraine, the Suez Canal blockage and a whole new round of global supply chain disruptions that resulted in inflation that we’ve all been struggling with. Then came labour shortages.

These challenges continue to reverberate in far too many of the small businesses, which employ over 8 million Canadians, supporting families in virtually every community across our country. Each of those jobs relies on successful management of the entrepreneur, and we need far more entrepreneurs — far more — in Canada. The Business Development Bank of Canada, the BDC, found that we’ve lost 100,000 entrepreneurs in the last 20 years while our population grew by 10 million people. Our small businesses remain fragile.

In considering the effects of Bill C-58, I worry about the domino of damage that could very likely result from an extended labour disruption at one of our extensive number of federally regulated workplaces along our various supply chains. It has been found that introducing laws banning replacement workers can lead to an increased length of strikes. Long supply chain strikes cannot be afforded by our small businesses. I’ve always said that I’m entirely supportive of any union that has productivity growth as a primary concern. Why is that? Because that’s the best way to secure an employer’s future and increase the wages of workers. The more value that is delivered for every hour worked, the more that will be available to reward all those whose efforts create that value.

In a country that has strong workers’ rights, I believe this is an important priority — crucial, in fact. However, this does not happen in too many federally regulated workplaces. Consider Canada Post. In late autumn 2018, in my first few months in the Senate, we debated and voted on back-to-work legislation during an extensive labour disruption at Canada Post. The harms being caused during those few weeks of rotating strikes were felt most profoundly by small businesses, particularly in rural communities, where few other delivery options exist. The damage was exacerbated because these rotating strikes occurred at the busiest time of the year, and the strategic choice of facilities caused the volumes of undelivered mail and parcels to pile up at breakneck speed and at a time when the survival of many small businesses rested on their successfully delivering the majority of their sales leading up to Christmas.

Now, despite years of declining letter mail and growing private sector competition, Canada Post has still not adjusted to mark realities. The union and corporation have failed to find ways to improve productivity, and the consequence is that we now have $3 billion in losses in the years that followed that strike. It’s unsustainable, and at some point a highly disruptive change will have to happen at Canada Post.

I worry that having back-to-work legislation as the only option of resolving labour disputes will not be an effective use of legislative institutions or their time. I doubt that it will result in either the union or the employer side prioritizing productivity as a way to secure jobs and improve wages. I also worry about the effects that this legislation will have on business investment.

According to the Montreal Economic Institute:

The adoption of Bill C-58 will also have repercussions in terms of investment. It has been observed in Canada that frequent work stoppages and the regulatory framework that facilitates them put downward pressure on foreign direct investment in the affected sectors. According to one study, a province equipped with a law against replacement workers has an investment rate 25% lower than all other provinces. . . .

This bill could have a significant consequence in the context of our low private non-residential investment per worker in Canada. We’re far below the Organisation for Economic Co-operation and Development, or OECD, average, and it is diminishing our wages on average across the country.

Colleagues, protecting workers’ rights is crucial. Strengthening union power through anti-replacement-work legislation can enhance worker protections, but it may come with unintended costs of business continuity and economic resilience. According to the Bank of Canada, we are in the midst of a break-the-glass emergency because they believe that our declining productivity rates are now putting our standard of living at risk. I agree, and we will not fix this problem unless every workplace begins to prioritize productivity so that our livelihoods can begin to improve again.

I’m not convinced that this bill will achieve that all in part and end. Thank you, colleagues.

Will the senator take a question?

Certainly.

Thank you. Let me start by echoing your comments about the contributions that Senators Lankin and Yussuff have made to organized labour in this country. I think we can agree that organized labour has helped build the middle class in this country.

I’ve been on both sides of strikes; on the picket line and I’ve had to cross picket lines as a manager. Neither side is any fun, but it’s one of the few tools that labour has when it comes down to it. I think we see more and more the downward pressure on wages in the country for various factors, but the right to strike is one.

In the federal sector, we always want to see a deal cut at the table. That’s why we support mediation, arbitration and then finally back-to-work legislation. I voted to support back-to-work legislation in that Canada Post strike that you made reference to. Strikes are tough. They destroy families, communities and relationships between the business and the owner.

Are there a couple of examples that you can share with us where back-to-work legislation has really worked out well for the boss who said, “We’re going to bring in scabs, we’re going to bring in replacement workers”? Has it really worked out well for them?

Thank you for the question, Senator Cuzner. For me, it’s about small business not being negatively impacted by strikes. Supply chain strikes can have a huge effect on farmers and small businesses across the country. For me, I just want to see those strikes resolved. I don’t believe that the best way to do it every time is simply to have back-to-work legislation pass through this Parliament.

Every time we’ve had a debate, it takes a lot of time to get there — and the Conservatives are always ready to comment and I agree with them — it takes too long to get to the point of getting a resolution in place. This has got a daily penalty for those who break the law of $100,000 a day, but the cost to small business is everything, and there’s no union protecting those small business people. There’s no backstop there.

That’s where my focus is entirely. No, I can’t give you any examples. The power imbalance felt by small business people is where my heart lands every time, and nobody seems to have their back.

Would the senator take a question?

Certainly.

Thank you, colleagues, for the questions and the debate. It’s phenomenally interesting and real.

My question deals with the transportation system. When ports, for example, experience strikes — 90% of the products we see every day at one point or another hit a port — and if those products don’t move, it affects business.

My question is: Are the unintended consequences you may be referring to as an example, would that include cargo that gets deviated from Canadian ports? You have to fight so hard to get it back. That impacts jobs not only at the small business level, but at the port level, would you agree with that?

Thank you Senator Quinn, and absolutely I would. I saw that during the Suez crisis where a business in Windsor, Nova Scotia had a whole lot of cargo that was diverted and delayed. As a result, they couldn’t deliver on orders, so they then lost competitors. They purchased all the inventory and owned all the inventory, but they couldn’t get to the point of completing the sale so they lost a transaction. That had a devastating effect and ended up with some workers having to be laid off in a non-unionized workplace.

It’s that sort of roll-on effect that I feel has to be discussed in this debate and respected in this debate because it is very real for those small business owners and workers.

Will the senator take a question?

Certainly, Senator Lankin, with great respect to you.

And great respect back. We have great conversations about some of these things. I’m listening to the interventions, questions and some of the answers, and I don’t think anyone would dispute that a disruption in a workplace is going to have an impact directly on the workplace but also on partners in the community and/or the economy.

I listen to this go on. Senator Quinn asked a question slightly different than what you answered. I think he’s talking about where a Canadian port finds that businesses redirect, for example, to a U.S. port and they can’t get the business back afterwards. Comments around the supply chain, small business and concerns that the impact there will cost jobs there, first of all, belies the existence of what we’ve seen in terms of the existing legislation, and the attempts that governments, when there is a dispute, which is not frequently — there have been two since I’ve been here where we had back-to-work legislation — belies the fact that governments do move. You say not quickly enough.

The only thing I can conclude from those comments is that the only thing that would resolve it is no right to strike and no strikes. Please help me understand how you see it any differently, and let’s remember the constitutional guarantee that workers have for the fundamental right of the right to strike.

Thank you, Senator Lankin. I look at it very simply. The evidence suggests very strongly that an inability to bring in any replacement workers extends the length of strikes. For me, that’s the key issue. We don’t want longer strikes. I want to make sure the voice of Canadian small business is at this table. Harm is done very rapidly to small business. The example I gave was of disruption of something that didn’t come into a Canadian port, but it’s the same as a Canadian port being blocked. When your supply chains are disrupted, the cost to business can add up so quickly, and if that is not understood in this debate, I think it’s a problem. For me, that’s the consideration. I just want to make sure that’s firmly on the table.

My speech will only last a few minutes. I don’t want to delay history.

Honourable senators, I rise today at the third reading of Bill C-58, An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012.

Allow me to briefly point out that the main purpose of this bill is to prohibit the use of replacement workers in the event of a strike or lockout at federally regulated workplaces, and to amend the process for maintaining certain workplace activities.

In my speech at second reading, I emphasized the importance of the Senate taking its role of sober second thought seriously, even though this bill was passed unanimously in the other place on May 27. The Standing Senate Committee on Social Affairs, Science and Technology, to which this bill was referred, performed its work diligently, as is our duty and our responsibility.

Several witnesses gave evidence in committee and in the other place. Broadly speaking, two important positions emerged from this evidence.

On the one hand, those in favour of the bill argue that prohibiting the use of replacement workers in the event of a strike or lockout protects workers’ right to strike and restores the balance of power between management and labour when negotiating collective agreements.

On the other side are those who disagree with the bill, arguing, among other things, that banning the use of replacement workers would increase the number of strikes, because the union would no longer be incentivized to remain at the bargaining table. Furthermore, this would have repercussions not only on the parties to the labour dispute, but also on other sectors of the economy, and indeed on all Canadians.

As an aside, I’d like to point out that all of the witnesses earnestly shared their opinions and carefully answered the committee’s questions. I’d like to thank them for the insight they provided through their very instructive comments. They helped us to fulfill our duty of sober second thought. So ends my aside.

After hearing the testimony, the committee tabled its report, without amendment, but with some observations. I will give you a brief summary of that report. First, the committee’s observations stem from the fact that, during the testimony, it was brought to the committee’s attention that the Canada Industrial Relations Board will have expanded responsibilities once Bill C-58 is passed.

The board will need access to additional resources in the form of staff, vice-chairs and funding since the bill will increase its workload. The board will have to rule on certain issues within specific time frames, and without these resources, the board may face delays that could have harmful impacts. That is why the committee recommended the following in its report, and I quote:

 . . . that the Government of Canada ensure adequate and consistent funding for the CIRB so that it can meet its expanded responsibilities effectively and ensure the timely resolution of labour disputes.

The committee also recommended the following:

 . . . that the Government of Canada evaluate and adjust funding amounts on a regular basis to take into account the CIRB’s workload.

When I gave my speech at second reading of Bill C-58, I also raised a number of questions, like whether this bill struck the proper balance between the rights and obligations of employers and unions or if, on the contrary, it created a new imbalance.

After studying Bill C-58, I believe that it achieves balance in more than one way, since it contains enough safeguards to mitigate the concerns raised.

First of all, the evidence given by Ginette Brazeau, Chairperson of the Canada Industrial Relations Board, provided a better understanding of the board’s responsibilities and work. More importantly, however, it explained the bill’s impact on the board.

Examples include providing the additional resources needed to carry out its new responsibilities, or the requirement to respect the new time frames set out in Bill C-58 and the time needed to set up this kind of structure.

However, Ms. Brazeau is convinced that a year is enough time to complete this work before the act comes into force. I also believe that this is sufficient time for the board to get ready to begin exercising its new responsibilities as soon as the legislation comes into force.

Next, I’d like to mention that clause 6 of the bill amends the Canada Labour Code with respect to maintaining required activities in the workplace. Measures are taken to ensure that the employer and the union agree on the terms and conditions governing those activities in the event of a strike or lockout. In my opinion, this measure will assure the employer and all Canadians that there won’t be a serious impact on essential services, for example, in the event of a strike or lockout. It is reassuring to see that the process of negotiating and putting essential positions in place will happen before the right to strike or lockout is used.

For all the reasons I mentioned earlier, I believe that the balance between management and the unions representing many employees in federally regulated workplaces has been achieved. I also believe that Canadians will not be the collateral victims of labour disputes as a result of these changes.

Now I’d like to mention a fact that’s certainly not insignificant in my eyes, one that’s important to mention. In fact, it was emphasized by a few witnesses. Two provinces in Canada already have legislation with provisions that are similar to Bill C-58. Quebec and British Columbia have already adopted similar provisions. These measures came into effect in Quebec in 1977 in the labour code and, several years later, in 1993, British Columbia adopted similar legislation, the Labour Relations Code.

The fact that these provisions have been in effect in these two provinces for several decades and no major issue has come up, including with respect to the increased number of strikes, is another argument that assures me that the provisions of Bill C-58 are well-founded.

The employers, unions, their respective legal counsel and labour relations advisers are very familiar with the dynamic of enforcing this type of legislation. We’re not in unknown territory.

That said, after studying the bill and analyzing the briefs and testimony heard in the other place and by the Standing Senate Committee on Social Affairs, Science and Technology, as well as their report and recommendations, I fully support Bill C-58, and I urge you, colleagues, to vote in favour of the bill.

I’d like to add a final point. A company that produces equipment, that manufactures products, needs material resources, financial resources and human resources. Obviously, when negotiating with suppliers of material services, there’s no exclusivity. If disagreements come up, the company can change suppliers. When we negotiate with our bank regarding financial resources, there’s no exclusivity. We can always take our business to another bank.

However, when a company is negotiating with its employees, it is dealing with people who have committed exclusively to the employer, which puts those individuals in a precarious situation, unlike other providers of material or financial resources. That is why it’s extremely important that the precariousness of people who commit themselves for decades exclusively to a single employer is protected.

Ultimately, Bill C-58 does just that. It ensures that this exclusivity is reciprocated on the employer’s side, and also that the employer does not violate the correlative exclusivity that the employee has been given. I see this as a matter of respect, and that is why I support this bill.

Thank you.

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

Hon. Senators: Agreed.

(Motion agreed to and bill read third time and passed.)