Port of Montreal Operations Bill, 2021

Third Reading

April 30, 2021

Hon. Tony Dean

Honourable senators, I rise today to speak in favour of the bill in front of us. I speak in support of Bill C-29, which proposes to end the ongoing work stoppage at the Port of Montreal and would, in the alternative, put in place a neutral mediation/arbitration process to resolve the dispute and put in place a new collective agreement.

Like many of you, I do this reluctantly. Like many in Parliament and outside of it, I support free collective bargaining because it reflects the reality of workplace conditions and leaves the responsibility for bargaining outcomes in the hands of employers, unions and workers.

For these reasons, governments should only intervene in labour disputes when it becomes absolutely necessary in the public interest. This is the fulcrum of decision making and policy making in these relatively rare occasions where government intervention is being considered. I say “rare” because the vast majority of collective bargaining disputes in Canada are resolved by the parties. Indeed, we have heard that many collective agreements in the Port of Montreal have been resolved by the parties. This is because of the balanced nature of Canada’s collective bargaining regimes. It’s because of the sophistication of our employers and unions and because of the skills and perseverance of government-provided mediation services.

We have well over 90% of collective bargaining outcomes resolved by workplace parties, up to 98% in some sectors, sometimes with the assistance of federal or provincial mediation services. In the relatively rare cases in which bargaining becomes bogged down, government mediators are available to assist. In the present situation, experts from the Federal Mediation and Conciliation Service have been involved for some time. They don’t take this work lightly. It goes to the core of the mediation profession, and no stone is left unturned in providing support and advice to the workplace parties. Colleagues, that’s particularly the case where there’s a public interest component to this.

We’ve heard in the current situation that negotiations had spanned 30 months, with over 100 bargaining sessions, many supported by federal conciliators and mediators and in some cases, as the minister put it, a couple of super mediators. This doesn’t come close to describing the intensive effort, much of it quiet and informal, made by federal mediators to resolve this dispute. I know you’ll join me in thanking them for their efforts and I also extend thanks to Minister Tassi.

Colleagues, when we confront an impasse like this, we are instinctively driven to ask what more can be done to sort this out. It’s in our instinct to say there must surely be something more we can do. I know that feeling; I’ve been there many times, both as a bargaining agent, as a mediator and as the head of a mediation service, the head of a labour ministry.

Based on that experience, I can tell you that if there were any hope of getting an agreement here — in the short or medium term — the conciliators and mediators involved with this process over the past couple of years would have obviously put up their hand, cautioned the government and said, “You’re moving too quickly.” Believe me, they would say, “Let’s give this more time.” And governments take this sort of advice seriously.

After 30 months with the parties, the mediators know what’s doable and what isn’t. So it’s possible that this dispute could drag on for several more months and we would be right back here having the same discussion. In the interim, the flow of $270 million in cargo a week would be halted with a knock-on impact on the 19,000 Canadians whose jobs, we hear, are tied to the operation of the port.

Now, I’m not a Charter expert; I listen to those who are. But from a Charter perspective, we’ve also heard that we are not looking purely at the economic impact of the dispute here — the government’s Charter Statement — and we’ve heard witnesses tell us today that the port is a key gateway for the import of containerized essential products such as critical medical goods, pharma products, food and critical inputs for the farmer and food industries for the Quebec and Ontario markets. So the impact here clearly extends beyond straightforward economic damage.

I don’t find this easy. I would always prefer to see a negotiated outcome because these are the best for all concerned. But colleagues, this doesn’t look very likely here. So, in the alternative, Bill C-29 would create a balanced dispute resolution process in which an effort would be made to find consensus between the parties and a mediator-arbitrator, and we hoped that they would do that. But failing that consensus, the minister would appoint the mediator-arbitrator, likely from a list jointly developed over time by employers and unions, who would then have 90 days to complete the process with the possibility of extension by the minister.

We would all like to see this dispute settled and, indeed, a mediated settlement — while I agree is unlikely— is not completely out of the question.

I note that final offer selection was an option available to the mediator-arbitrator in the original version of the bill, and it was removed by an amendment in the House of Commons.

I’ll end by commenting that final offer selection takes away a bit of the predictability in normal arbitration processes. It introduces some additional risk and it gives the mediator-arbitrator some additional leverage in finding a deal or at least narrowing the range of issues in dispute. It’s worth a try as part of a suite of tools available to independent third parties.

But I’m not about to extend this discussion any further than is absolutely needed. The bottom line is I’ll support the bill as amended in the House of Commons. Thank you.

Hon. Michael L. MacDonald

Honourable senators, I came to this debate with an open mind. I listened to the testimony today. I didn’t intervene, but I want to speak now about a few observations.

What did we hear today from the witnesses? We were repeatedly told that we have to pass this legislation because of the COVID situation. Well, of course, we have to get medical supplies to people, but this is a false flag. Of course, we want medical supplies to flow. The union said they would ensure medical supplies would be handled without exception. Most urgent supplies would arrive by air transport in any event. So COVID fearmongering is not a valid or compelling argument as far as I’m concerned.

We also hear that it is an essential service. Certainly, it’s an important service, but is it essential? Well, the powers that be have already told us that it has been determined that it is not an essential service. There are Eastern Canadian ports — alternatives to Montreal. I remind honourable senators that the Port of Saint John, New Brunswick, can handle any ship that Montreal handles, and Halifax in Nova Scotia can handle the largest ships in the world — ships that Montreal cannot accommodate. And there is rail service from all of these ports. There is nothing that is offloaded and shipped out of Montreal that cannot be offloaded and shipped by rail or truck from either Halifax or Saint John. So the argument that this is essential, again, is not a very compelling one.

If we had a proper national transportation system and policy that exploited the Port of Saint John and the three deepwater ports in Nova Scotia, we wouldn’t find ourselves in this situation today, would we?

Of course, it’s so interesting to hear the Liberal establishment who love to sing the praises of the Charter of Rights and Freedoms until it suits their purposes to ignore the Charter.

It’s also very amusing to watch Senator Gold and the government’s camp followers squirm over the blatant disregard being shown to the Charter rights in this particular instance. I wonder where all the social justice warriors have gone. All the Bolsheviks have disappeared from the Senate.

But, of course, we must be concerned about jobs. Well, of course, we should be. But where was this concern about jobs in the last Parliament when Bills C-48 and C-69 were passed with hundreds of thousands of jobs killed in Saskatchewan and Alberta and nobody cared in this part of the country? It begs the question: Why are jobs more important in the greater Montreal area than these other thousands of jobs? I believe all Canadian jobs are important.

I take substantial issue with expecting workers on a dockyard to be on call for 19 out of 21 days. Perhaps extending their work hours in camps or isolated areas makes sense of some sort, but not in this circumstance.

I’m reminded of my mother’s father, whom I never met. He died in 1947; he was 74. But for the last 15 years, he lived with half a foot because he was working trimming coal for 12-hour back-to-back shifts on the coal pier. Tired, exhausted and the train went over his foot. This is what happens when people are working long hours in dangerous working conditions.

It is obvious to me that the Maritime Employers Association knew that the government would bail them out, so they didn’t need to find a solution. They just walked, knowing the government would do their bidding.

I understand the economic concerns of people. I only wish economic concerns were treated as seriously in other parts of the country as they are in this particular situation. I don’t think this has been handled very well in Montreal. Consequently, I will not be supporting this legislation, and I encourage honourable senators not to support it. Thank you.

Hon. Donald Neil Plett (Leader of the Opposition)

Honourable senators, I want to add my voice to this debate, and I will be brief.

I would say that my overarching emotion in dealing with this legislation today is one of discouragement. I am discouraged because, in the middle of this global pandemic which has caused such hardship for so many Canadians, we are compelled to address a problem which could — and should — have been avoided.

The situation that we face at the Port of Montreal is unquestionably damaging not only to the Port of Montreal and the people who work there, but also to every person and business that depends on that port as well as to the economy of Quebec and, indeed, all of Canada.

But it is a situation that I believe could have been avoided. In that sense, I am discouraged that we have a government that does not seem to know what the words “proactively resolving a problem” mean.

I say that because here we have a dispute that has been ongoing at the Port of Montreal for several years; where collective bargaining has been under way since September 2018; and where, during the first months of the pandemic, we witnessed work stoppages just last year. Yet the government has completely failed to get a handle on the problem and prevent what we are facing today, namely, a strike that is extremely damaging to all concerned.

Every step of the way, the government has been reacting to events as they have occurred. Sure, they appointed conciliators and mediators over a period of two and a half years. These mediators and conciliation officers worked with the union and the employer, facilitating over 100 mediated bargaining sessions.

However, prior to the recent work stoppage, the union still held five separate strikes, including an 11-day unlimited general strike that took place in August 2020. All of these labour actions and mediation had little effect on bargaining and in coming to a resolution. Yet somehow the government was oblivious to the intractability of the problem and the necessity of dealing with it in the midst of a global pandemic, where it was vital to keep commerce and vital supplies flowing to the greatest extent possible.

I asked the minister this afternoon, colleagues, whether she had spoken to the Prime Minister about this — the Prime Minister, a member of Parliament for a riding in the city of Montreal, the city most affected by this — and what he had done about it. She had no answer. The Prime Minister has been sitting on his hands instead of proactively and aggressively taking action to bring this problem to a resolution. As a result, no decisive action was taken to head off the major work disruptions we are facing right now.

What are some of the implications of this inaction? They have already been mentioned, but let me repeat some of them.

Most immediately, the unlimited general strike that started on April 26 is halting the flow of $270 million in cargo every week. The strike is directly endangering the livelihoods of approximately 19,000 Canadians whose jobs depend on the port. The strike is causing damage to the Canadian economy in the order of approximately $40 million to $100 million per week. That damage will grow the longer the strike continues, yet we hear senators who say they will not support this legislation and will let these types of wasteful and economic problems continue.

In essence, we are now faced with the problem that the economic disruption being created by the strike is so extensive that even once this general strike ends, recovery is expected to take a significant period of time.

We know that last year’s work stoppages cost Canadians $600 million. Nearly 10% of the business sent to the Port of Montreal was lost. According to officials who briefed senators earlier this week, those losses may well be permanent, since many companies have shifted their traffic flows from Montreal to American East Coast ports. That means the permanent losses from last year are now likely to be compounded.

The Financial Post recently commented that the strike is further undermining Canada’s credibility as a competitive manufacturing jurisdiction with a reliable trade infrastructure. Last year, disruptions from the work stoppages created a backlog of goods that took three months to clear.

I do not have to explain to senators the impact that such a backlog has on certain sectors, such as the agricultural industry. The Port of Montreal handles nearly $900 million in containerized agricultural activity every year. Canadian agriculture producers were well aware that without uninterrupted access to this essential port, there would be a devastating impact on the sector.

To cite just one example, thousands of tonnes of fertilizer are imported through the Port of Montreal and farmers rely on that fertilizer. Colleagues on the House side have pointed out that if this strike continues, up to 1 million acres in Eastern Canada alone may go unfertilized.

The serious concerns about the potential closing of the Port of Montreal were raised by Conservative members in the House just last month, so there is absolutely no question that the government was aware this problem was coming. Yet nothing definitive was done, despite the work disruptions that occurred at the port last year.

In the Charter Statement that the government itself produced in relation to this bill, it argues the bill is justified because “The resumption and continuation of Port operations are important to the Canadian economy as a whole.”

The Charter Statement says:

The Bill would prevent continuing and significant harms to Canadian businesses, their employees and those who depend on their services. . . .

The statement further asserts that “These harms are exacerbated by the COVID-19 pandemic . . . .” The statement notes that “Prominent companies have begun to divert cargo away from the Port . . . .”

All of these legal justifications for this bill were present and apparent well before the current strike. They were evident during last year’s strike, which also occurred during the pandemic. Yet the government seems to have been paralyzed by inaction. At a minimum, it should have redoubled its mediation efforts with both parties. It should have been much more actively engaged and determined to never permit the situation to come to another work stoppage. Ministers themselves should have been directly engaged.

Every senator in this chamber is strongly committed to collective bargaining rights. But the government also has an overarching obligation to protect our economy and all Canadian workers and businesses in these very extraordinary times.

The Supreme Court of Canada itself has found that associational rights may be limited in situations that involve essential services. Such limitations may be particularly necessary in situations of “acute national emergency and for a limited period of time.”

I believe that few would argue that we are not now in a situation of acute national emergency. What I find deeply troubling is the way in which the government is handling the current problem at the Port of Montreal, in keeping with its broader approach to so many of the problems that have resulted from this global pandemic. The government is consistently reacting to external events as they occur. That was perhaps excusable in the first weeks of the crisis, but it is completely unjustifiable now.

Since the crisis began, there have been few examples of proactive action where the government has been able to get ahead of the game. I believe this is why most Canadians still have not been vaccinated and why the government is attempting to resolve problems essentially by throwing as much borrowed money as it can at those problems.

In relation to the strike at the Port of Montreal, all the government can do now is to desperately attempt to close the barn door after the horse has already left. The government has said that “The proposed legislation will end harm to Canada’s economy, which is already weakened due to the COVID-19 pandemic.”

But the reality, colleagues, is that the harm has already been done. All the government can do now is to try to limit the damage.

The government has said that the solution proposed in this bill will provide the union and the employer with “a neutral process to finally resolve their years-long dispute and establish a fair, new collective agreement between them.”

But why did the government wait for the current crisis in order to take such a step? In relation to the crisis at the Port of Montreal, Perrin Beatty, the Chief Executive Officer of the Canadian Chamber of Commerce, has said:

The prospect of a second strike in seven months has disrupted supply chains in all industries and hampered Canada’s economic recovery at a time of severe downturn.

We call upon all Members of Parliament to pass the bill expeditiously to prevent the serious damage a strike would have on jobs and on Canada’s economic recovery.

I also agree, colleagues, that action must be taken. I will also be voting in favour of this legislation. I just wish that this action had been taken much earlier. Thank you, colleagues.

Hon. Marilou McPhedran

I want to express appreciation for all of the contributions that have been made in this very important debate. I have listened very carefully. I particularly appreciate the perspective Senator Lankin has brought.

I want to quickly summarize arguments that inform my decision on how I am going to vote. The COVID- and the pandemic-related arguments on security and essential medical materials do not hold up. Unions have consistently offered to exempt pandemic medical shipments from their strike action, and the overwhelming majority of pandemic materials are air-freighted, not maritime shipped.

As we have heard from different points of view, but referencing Saskatchewan Federation of Labour v. Saskatchewan, that ruling that the right to strike is protected under the Canadian Charter of Rights and Freedoms and an essential part of a meaningful collective bargaining process in our system of labour relations. That right is not just a derivative of collective bargaining, but an indispensable component of the right. Striking is the powerhouse of collective bargaining. Where good faith negotiations break down, the ability to engage in the collective withdrawal of services is a necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals.

Honourable senators, it is certainly true that no right in the Charter is absolute. However, the conditions to override the right under discussion here are not present. The Supreme Court made various decisions previously that recognized Charter values, including human dignity, equality, liberty, respect for the autonomy of the person, enhancement of our democracy and supported the protection of the right to a meaningful process of collective bargaining within the scope of section 2(d) of the Charter.

The right to strike is essential to realizing these values as well as through a collective bargaining process because it allows workers to withdraw their labour in concert when collective bargaining reaches an impasse. Strikes allow workers, through collective action, to refuse to work under imposed terms and conditions. This collective action at the moment of impasse represents an affirmation of these values.

I want to thank Senator MacDonald for acknowledging as clearly as he did the power play that was made by the employer in this case, and the way in which it is playing out to the employer’s advantage.

Canada is a party to international instruments which clearly protect the right to strike. There is no question that protection of a right to strike is recognized in international law. Given the historical, international and jurisprudential context, it’s clear that the ability to engage in the collective withdrawal of services in the process of the negotiation of agreements is the irreducible minimum of the freedom to associate in Canadian labour relations as protected under section 2(d) of the Charter.

Measures in the International Labour Organization, number 98, indicate at article 4 that where they are:

. . . appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.

Canada was made a party to this convention only in 2017, so this is a government, very much aware of these obligations.

Finally, the argument that these services are essential and somehow justifies overriding the right to strike has clearly been rejected. In the CIRB ruling, they state very clearly:

In this case, immediate and serious danger to the health and safety of the public related to the rerouting of vessels in the event of an interruption of longshoring activities at the Port of Montréal was not demonstrated.

They go on to say:

Undeniably, a longshore workers’ strike at the Port of Montréal, even a mere slowdown of activities, would have definite consequences for all stakeholders along the supply chain that the Port of Montréal is engaged in. Shipping lines, logistics companies, manufacturers, distributors, railway systems, trucking companies and recipients will be affected to varying degrees. Increases in transportation costs, and possibly customs dues, will also be felt.

Colleagues, we have heard these arguments made today in our debate, and I think it’s very important that we acknowledge that the board then goes on to say that:

. . . in its past decisions on essential services that the right to strike, like the right to lockout, is protected by the Code. These rights are exercised by one party in a labour dispute in order to place economic pressure on the opposing party and encourage the settlement of a collective agreement.

The fact of maintaining full longshoring services in the event of a strike, as the employer is seeking, without direct and compelling evidence that this level of service is consistent with the requirements of section 87.4 of the Code, would render the exercise of the right to strike ineffective . . .

Free collective bargaining is seriously compromised if the right to strike may not be exercised by employees to counteract the employer’s economic power.

Accordingly, 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 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 . . . .

In short, colleagues, those whose responsibility it is to regulate this industry have thought carefully, made a decision very recently, nothing new has been added through this bill, and it is for these reasons that I support the right to strike and will vote against the bill. Thank you, meegwetch.

The Hon. the Speaker pro tempore

Are honourable senators ready for the question?

The Hon. the Speaker pro tempore

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

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

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