[Recorded by Electronic Apparatus]
Tuesday, November 26, 1996
.1037 
[English]
The Chairman: I call the meeting to order.
Welcome, everyone. As you know, we're here to study Bill C-66, an act to amend the Canada Labour Code, part I, and the Corporations and Labour Unions Returns Act and to make consequential amendments to other acts.
Today we have the pleasure of having representatives from the Canadian Association of Broadcasters: Mr. Michael McCabe, the president and CEO; Ms Celese Ivey, the director of human resources management for Global Television; Mr. Peter Miller, senior vice-president and general counsel; and Ms Angela Roberge, social policy analyst.
Prior to the meeting, I explained to you how we operate in this committee. You will be given ten to fifteen minutes for your presentation, followed by a question-and-answer session. Thank you very much, and welcome.
Mr. Michael McCabe (President and Chief Executive Officer, Canadian Association of Broadcasters): Thank you very much, Mr. Chairman, and good morning to everybody.
[Translation]
Good morning, ladies and gentlemen.
[English]
We appreciate the opportunity to appear before you. I understand that we're the first, so we're fresh, we hope. We hope you're fresh too.
[Translation]
The Canadian Association of Broadcasters is a national professional association representing the interests of private radio and television stations and networks whose employers are federally regulated. It is a member of the Federally Regulated Employers in Transportation and Communications Organization, or FETCO, which, I've been told, will be appearing before the committee and submitting in writing detailed observations on Bill C-66, an Act to amend the Canada Labour Code, Part I. In its submission, FETCO will focus on those areas of the bill which affect all of its members. The CAB supports FETCO's position.
[English]
In addition to the concerns that we share with other FETCO members, broadcasters also have unique concerns about industrial relations legislation. Private broadcasters are the first and often the only choice of Canadians for news, information and entertainment programming in their communities across the country. Our programming competes daily with the largest news and entertainment producers in the world, the United States. Today, we succeed.
.1040
Canadians tune to Canadian private broadcasting services 70% of the time. They watch Canadian private television stations 52% of the time and listen to Canadian private radio stations 83% of the time. But if labour legislation inhibits our ability to do business and thereby forces our audience and advertisers to turn to U.S. sources, it is unlikely that Canadian private broadcasters will be able to fully regain market share and lost revenue.
We believe, therefore, that it is important that we make separate representations to the committee. We appreciate the fact that you have invited us to appear before you so that we can point out our concerns and make some suggestions we feel could help meet the intended objectives of the bill.
We will be limiting our comments to three specific sections of the bill that affect broadcasters: the use of replacement workers; appointments to the Canada Industrial Relations Board; and the union's ability to communicate with off-site workers.
Before we comment on those specific areas, we'd like to state for the record that we support Bill C-66. It is clear that the consultative process initiated by former Labour Minister Lucienne Robillard and completed by Minister Gagliano in his cross-country consultations with employers and labour groups played a significant role in shaping the legislation before us. A number of contentious issues were resolved during the consultative process, and Ministers Robillard and Gagliano are to be congratulated.
The most contentious issue discussed during the consultative process was the employer's ability to use replacement workers during strikes or lockouts. We are pleased to note that the bill does not prohibit the legitimate use of replacement workers during a labour dispute.
Proposed subsection 94(2.1) does, however, outline when the use of replacement workers is not allowed. We agree with the spirit and intent of this section. However, in our view, the section is overly broad, which could lead to varied interpretations and abuses. With some minor drafting changes we have included in our brief, we think proposed subsection 94(2.1) could be made clearer.
We believe, as does FETCO, that the section should be drafted pursuant to the recommendations of the Sims task force, which indicates that for their use to be improper, replacement workers must be intentionally used to undermine the union's representative capacity and the collective bargaining process. Revised language in this regard would help to avoid costly litigation brought about by abuse and misinterpretation of the section as it is currently drafted; otherwise unions could be able to claim that any use of a replacement worker is an unfair practice.
While simply adding the word ``intentional'' to proposed subsection 94(2.1) would imply that the union must prove the employer's improper intent, broadcasters believe that for greater clarity it would be advisable to indicate separately that the onus of proof rests with the union.
The general principle of law that he who asserts must prove should be clearly spelled out, since the board will essentially have the power to shut down the employer, or in a broadcaster's case make the station go dark if the employer is prohibited from using replacements.
On the issue of appointments to the Canada Industrial Relations Board, we are again supportive. We strongly agree with the representational board structure outlined in the draft bill. Equal representation of employer and employee representatives on the board, through consultations with the minister, is essential.
We believe the legislation would be strengthened if consultations with respect to the appointment of the chairpersons and vice-chairpersons were also provided for. Members of the board, chairpersons and vice-chairpersons should not only have the industrial relations experience as indicated in the bill but must have as well some understanding of business operations.
It is therefore our recommendation that section 10.1 be amended to allow for a consultative process with the minister prior to the appointment of the chairs and vice-chairs by the Governor in Council. This will help to ensure that, like board members, the chairperson and vice-chairpersons have the confidence of the employers and employees they serve.
We also believe a formal and regular process for consultations governing board appointments, which involves key employers and employee groups like FETCO, the CAB and organized labour groups, should be entrenched in regulation after the passage of this bill.
Finally, we would like to comment briefly on the proposals with respect to the union's ability to communicate with off-site workers. As you know, the modern workplace often extends beyond the areas owned and operated by the employer. To this end, proposed subsection 109.1(1) of the bill recognizes the concept of the non-traditional or teleworking workforce and affords the union the opportunity to communicate with teleworkers after proper application is made. The employer therefore could be directed by the board to provide the union with the names and addresses of off-site employees.
.1045
We do not disagree with this subsection, as we believe it is necessary that the union have the ability to contact all employees within the bargaining unit. However, we are concerned that nowhere in proposed subsection 109.1(1) does it require that employees' permission to release such personal information be sought and received. If the employer gives the union this information without employee consent, the employer-employee trust and confidentiality relationship will be breached. Furthermore, many employees do not want personal information released for fear of personal safety.
We believe that a simple amendment to proposed subsection 109.1(1) proposed by this committee could ensure that the essential trust relationship between employer and employee is not broken, and that the personal security of employees is not jeopardized. The basic right to privacy of the individual must be protected by Parliament. We have suggested some draft language in our written submission.
[Translation]
In our opinion, Bill C-66 marks an important step in the modernization of the Canada Labour Code. The minor amendments that we are suggesting will help to ensure that private broadcasters comply with the spirit and intent of the act in spite of mounting competition.
[English]
Thank you for affording us the opportunity to present our views before you today. We would be happy to answer any questions you may have.
The Chairman: Thank you very much. Now we will move to Mr. Ménard.
[Translation]
Mr. Ménard (Hochelaga - Maisonneuve): I too would like to welcome our witnesses who, as you know, are breaking the ice since they are the first people we are hearing from on this bill.
I would like to discuss in greater detail your interpretation of subsection 94(2.1) respecting replacement workers. It is my understanding that you would like to add the words ``intentional'' and ``member'' to the bill. Could you explain to me what your concerns are and how these additions would be useful? We are concerned that it would be difficult to enforce the legislation. As you know, we would have liked it to go much further and for the practice of hiring replacement workers to be deemed an unfair practice under the Canada Labour Code, one which can result in the filing of a complaint.
I think we should look to Quebec which has had rather clear provisions in place since 1977. Could you explain to me your concerns and how the inclusion of the word ``intentional'' and the word ``member'', referring of course to the bargaining unit, will give the Industrial Relations Board clearer jurisdiction and help to level the playing field in the area of labour relations?
Mr. McCabe: Thank you, Mr. Ménard. With your permission, I will speak in English to make myself clearer.
[English]
I will start off and then I'm going to ask Celese Ivey, who actually operates in a station on the ground, day to day, with the operations of the Canada Labour Code. I'd like her to talk about it a bit and perhaps our legal counsel, Peter, will pick up after that.
Our first sense is that there has been an attempt, and we think a successful one, to create some balance in this legislation. Our attempt here is to ensure that the balance can in fact be enforced, can be maintained over the life of the legislation and in particular disputes.
We have felt that the use of replacement workers is an essential part of that balance. We do agree that when replacement workers are used to undermine the union, to undermine the collective bargaining process, that ought not to be permitted in the law. The difficulty is how to determine when an employer is using a replacement worker to undermine the union, to undermine the bargaining process. Our concern is that it can be argued, and the case has been made from time to time in public discussion, that any and every use of a replacement worker serves to undermine the bargaining process and the union.
.1050
We don't see that as the intent of this law. This section clearly states that there are legitimate uses of replacement workers. So we have felt that it is important to make clear that the intent must be clear, must be demonstrated. In other words, if the union challenges the use of the replacement worker, it must be for a reason. There can't be a situation in which every replacement worker is challenged and every challenge is valid. There must be an instruction to the board that is clear.
Our concern over time has been that with the current board - and I suppose there can be argument about this - our sense has been that they have tilted in their deliberations toward the unions. Our aim here is to have Parliament express clearly that what is meant is that there must be a deliberate and intentional use for the purpose of undermining the union.
I will ask Celese to illustrate our concern with some particular examples.
[Translation]
Ms Celese Ivey (Director of Human Resources, Global Television, Canadian Association of Broadcasters): Good morning, Mr. Ménard.
[English]
I recognize that the province of Quebec does have this legislation in place, but on the other side, the other provinces have been moving against that. In light of the fact that they are looking toward more meaningful working relationships with the unions, they are following the direction that mediation and conciliation services have provided to find ways of interest-based bargaining, to get to the point where there is no need for lockout or strike.
Having this process in place means that should it come to the point of lockout or strike, there are going to be some very serious issues in place between the employer and the employee group. As such, if replacement workers are necessary, the union, in desiring not to have those replacement workers, will need to indicate exactly why. To resolve the issue, there must be some onus or responsibility to articulate this so that there can be some clarity as to how the two parties move forward. Without that, in the height of emotion and excitement, our concern is that there will be more agitation and difficulty in trying to reach some compromise to move forward.
The example Mr. McCabe mentions is that we recently acquired a station on the east coast by the name of MITV. That station had been running a deficit of $26 million over the preceding eight years. We rescued the station and we reorganized and restructured to make it viable and to continue with employment for the people who were there.
Just recently we got a certification in our news department for all positions except one. That is a very, very narrow certification order. It does not provide the station with much room, should there be some difficulty, to continue with the news.
News is very important. My background was news before I came to human resource management. Canadians deserve Canadian-produced news first. It is information that informs them of the issues and interests for them. It is crucial to them in their business and operational needs, and therefore we think it's imperative that this service continue to be provided. A concern would be that with only one member of the newsroom excluded from the bargaining unit, should the board determine that replacement workers are not permitted, we would not be able to produce the news. The news would be off the air. There would be no choice for the viewers.
.1055
[Translation]
Mr. Ménard: It is my understanding that you would like the rules of the game to be spelled out clearly. You caution us that there should be very specific directives that are known in advance. Do you think these directives should come from Parliament or from the Board itself, given its expertise and existing case law?
The Canadian Human Rights Commission received a similar mandate when it was awarded new powers in the area of pay equity. In your opinion, should these directives come from Parliament or from the Board?
[English]
Mr. McCabe: It is our sense that legislation emanating from Parliament should be as clear as possible, as often as it can be. Particularly when we're starting out with a new board, our sense is that it would be in this area in particular, where there has been a great deal of contention, that Parliament should try to be very clear. Our fear is that if Parliament is not clear, we fall into the trap of saying that virtually any and every use of replacement workers is out of bounds. I don't think that's the intent of the bill or of Parliament, and we think it should be clear.
The Chairman: Thank you. Mr. Johnston.
Mr. Johnston (Wetaskiwin): You have suggested in your brief that consultations with respect to the appointment of chairpersons and vice-chairs should be provided for. You actually suggested an amendment to allow for a consultative process with the minister prior to the appointment of the chair and vice-chair by the Governor in Council. Can you elaborate on what you envision as that consultative process? What would it entail and what might the results be?
Mr. McCabe: I'd like to return to one of the points I made in our opening statement. We do think that the consultative process that led up to this bill was an exemplary process. The result before you is evidence of that. I don't think the ministers, in particular Minister Gagliano, had an easy time of it going through those meetings, but at the end of the day I think it was the right way to do this. We ended up with better law because of it. I would commend that to other ministers as well.
The principle of that consultation seems to have extended itself part of the way into the business of appointing members to the new board, and we support that, but we wonder why it doesn't extend all the way. It seems to us that the chair and the vice-chair are finally the people who tend to give tone and direction to the board's work.
I would expect that in the consultations for the three members on either side, there would be an attempt to find not militancy, not people who are at the extreme edges on either side, whether employer or employee, but people of judicious temperament, people who are prepared to see both sides, people who are prepared to bring reason and cool judgment to this. There seems to be no particular reason why the minister, who is still going to choose, couldn't also be required, and why it wouldn't be to everybody's advantage that names for the chair and the vice-chair be put forward in some formal way to the minister. It seems to us merely a logical extension of where the bill goes now.
Mr. Johnston: With regard to names and addresses and so forth of off-site workers being made available to the union, I think your suggestion that it be necessary for the employee to give permission to have this information released is certainly a good one, and one I would endorse.
.1100
Do you have any concerns as a group as far as the successor rights spelled out in this legislation are concerned? If so, what are they?
Mr. McCabe: Let me discover.... No, our industry committee has gone through the bill, and no concerns were raised in that area.
Mr. Johnston: Okay. Maybe I'll wait until next round.
The Chairman: Thank you very much, Mr. Johnston. Mr. Nault.
Mr. Nault (Kenora - Rainy River): Thank you, Mr. Chairman.
I'd like to get a legal understanding of why you think it's necessary for replacement workers to put ``intentional'' in the clause. I know from experience that the Labour Relations Board will deal with what the interpretation means of trying to somehow circumvent the collective bargaining process by bringing in replacement workers. Through time, labour law has proven that they will set the parameters of this particular issue.
I'd like an explanation from you in a legal sense as to why you think that's necessary in the bill when in fact the members of the Labour Relations Board would do that over time anyway.
Mr. Peter Miller (Senior Vice-President and General Counsel, Canadian Association of Broadcasters): I think it goes back to the principle of clarity. You are correct that one could leave it to the board to interpret the clause. One would hope that such a reasonable interpretation would lead to the clause being used as it was intended, and as the Sims task force recommended. But as a general principle of law, the greater clarity you can bring to bear, the more likely you will get the intended result.
As Celese has pointed out, this clause will be used at periods in the union-employer relationship that are characterized by heightened emotions, by a lot of stress. One would think, given that this is when this clause will come into effect, it is more important then than at any other time to make sure it is absolutely clear.
So it's just a general sense, having looked at the Sims recommendation and having looked at the way they weighed the balance we've alluded to, that adding a word like ``intentionally'' nails it home. As a lawyer, if that word was not there I would certainly argue that the term for the purpose of undermining makes it clear that there needs to be an element of intent. As well, as a lawyer I would feel that much stronger in my argument if the word ``intentionally'' was right in there.
Similarly, the onus of proof issue, while this general maxim we alluded to in our opening statement that he who asserts must prove again would generally lend one to believe it would be up to the union to prove this animus, made specific in the legislation would definitely clarify things and avoid the clause being used in these very heightened circumstances in ways it shouldn't be used.
Mr. Nault: If you think it's necessary, then, to put in ``intentionally'', can you give me a definition of what that means?
Mr. Miller: That's a good point. Again, for the purpose of undermining, you could argue - and I would imagine sharp labour lawyers on the union side would argue - that replacement workers do undermine the trade unions' representational capacity, and therefore any use of them must be for that purpose. When you add the word ``intentional'' you clearly indicate that the principle of intent, the mens rea, has to be clearly defined.
.1105
I agree with you it's not an absolute line. It's not that the clause is absolutely unclear without this addition. We just think given that the intent of this clause has been set out, and particularly since the task force has said it just wants to prevent illegitimate use of replacement workers, it makes sense for Parliament to reflect that as accurately as possible.
Mr. Nault: The last issue I wanted to ask about is this. In your presentation, on page 2, where you talk about the Canada Industrial Relations Board and the choosing of these members, you say members of the board, chairpersons, and vice-chairpersons alike should have not only industrial relations experience, as indicated in the bill, but some understanding of business operations.
I'm in the fortunate position of having met a number of very successful people who work on the board and a number of mediators who work for the federal government and who have been absolutely outstanding in their ability to help employers and employees get a collective agreement. I don't think I've ever come across a suggestion that they have to know the business intimately to be effective.
So I would like an explanation of what you mean by this. I think we all understand the important thing is understanding law, understanding the labour relations system, and understanding the relationship between employers and employees, but I've never had someone suggest that if I wanted to be a mediator and help employers and employees I should know your industry intimately, or the railway industry, or the airline industry, in order to be able to have people sit at the table and get a collective agreement. I would be interested to know why that seems to be so important to you.
Mr. McCabe: To be clear, Mr. Nault, we are not by any means suggesting members of this board have to know our industry, or indeed have to know any specific industry they're dealing with. Our concern really is that the members of the board not be only theoretical in their approach, first, or that they only have knowledge and understanding that are legal. We are, after all, dealing with a piece of economic legislation.
If I may take a parallel, when we and many others make recommendations for members to be appointed to the CRTC, which is a similar body we deal with on a regular basis, one of the points we make all the time is that we don't care whether these people know anything about broadcasting or anything about telecommunications, but would they please understand something about economic enterprises; would they please understand that when we are dealing with these questions we are dealing with the economic life of the country and of any enterprise.
By the way, I'm not suggesting it be only business people. This understanding is also to be found on the labour side, because they are part of the business enterprise as well.
Perhaps we haven't been clear enough, but that's really what we're aiming at: can we please look for people who understand the economic activity is important to the country and to the community and to the workers and to the company and who will make that judgment rather than an academic or purely legal judgment? I think that's all we're trying to say.
Mr. Nault: I have a short supplementary to that, then. Are you suggesting the appointments that have been made in the last number of years have not been good ones, that the Labour Relations Board as we know it has not been a good institution and there has to be some significant restructuring in the mind of either the minister or the government in who is appointed? Is that where you're leading to?
Mr. McCabe: May I ask Celese to deal with that?
Ms Ivey: My experience is that the relationship we have had with the Canada Labour Relations Board is that there is a definite leaning toward labour and an old process, a process present-day labour and present-day employers no longer use.
.1110
I am also aware that there is market research being done for the Department of Human Resources Development. They are having a look at the role of the Canada Labour Relations Board and how it best fits the needs. That same principle came up over and over when the minister crossed Canada and heard in both the union representations and the employer representations that there is a frustration with the board.
And while it may not be the members themselves - it may be the direction that they did or did not receive - it's the process that they became entrenched in that lost sight of the market dynamic and the market factor. That is what we wrestle with, whether it is on this issue or whether it is with the CRTC. The world has changed and is continuing to change. The balance is very important so that both parties go forward in recognition of that change.
Mr. Nault: Let me be a little more aggressive with you and suggest that you didn't answer the question.
I'd like to get a better sense of whether in fact you think the board members.... Yes, we can argue that the process they're in and the system they work for is not perfect. This is a very adversarial process. There are winners and losers whenever you go to the board. That's why it's always suggested that you try not to go there, that you try to deal with your own problems in the workplace.
But having said that, when you're there, I'm trying to get a sense of.... Are you suggesting that the people who are appointed are of a particular bent and do not understand the economy and the economics of the business community and their need to have sort of a balanced approach?
I'm just trying to get a sense of whether that's where you're leading, and if it's not, then maybe you can give us more detail as to exactly how you propose to get these more enlightened individuals on the board - if we haven't had them in the past.
Ms Ivey: Mr. McCabe will speak on behalf of the CAB, with consideration of representation from Global.
Mr. McCabe: You understand that as a member of the management of one of our companies at the present time there may be matters before this board that perhaps put Celese in a difficult position.
But let me speak on behalf of the industry. It is indeed our concern that members of the current board, in the way they're carrying out their duties, have not been as cognizant of the changing business needs, of the marketplace needs, as we would have liked. We have indeed felt that the indication in this bill for provision for the creation of a new board to be appointed in a new way is a reasonable indication that some other people think that too.
We support this new way of doing things. We only argue that in this appointment we should be looking for people who understand that we're in a changing and dynamic marketplace. I guess Celese finally said it better than I did: we need people who are looking forward, not looking back to an older religion.
Mr. Nault: Thank you, Mr. Chairman.
The Chairman: Thank you.
We have a brief question from Mr. Proud.
Mr. Proud (Hillsborough): If I might follow up on that, on the compilation of the new board.... When they are in the process of having hearings on specific issues and of dealing with you people, I would hope they would have expert advice relating to that industry, whether they came from that industry or not. And I feel there should certainly be expert advice from management and labour, from both sides. In fact, I certainly would recommend that to the minister. When they have hearings, whatever the particular industry is, the expert advice should be coming so they would know what they were dealing with in dollars and cents and in every other way.
Mr. McCabe: Obviously that's important. But again, it's the sense of a changing marketplace that we hope members have. It's a marketplace in which we can't necessarily assume that we should be doing things in the old way. Business is tougher and more competitive. And yes, the membership, with the proper sort of advice, should be able to.... The members should be able to weigh that advice from the experts and make decisions that are good for the economy as a whole.
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Mr. Proud: We hope this is what's going to come out of these proceedings: that in this new workplace it will be taken in context and delivered in that manner. That's what we're hoping is going to be the end result of this and other -
Mr. McCabe: And we had seen that in your intent in the bill, there is no doubt.
Mr. Miller: May I give an example? We use the term ``global information economy'' very loosely, but there are two very important elements to that. It is global. We are not talking just about domestic industries. We are talking about industries that compete with other alternatives, and obviously for Canada with federally regulated industries the biggest alternative is the U.S., where there are no general prohibitions on something like replacement workers.
Second is ``the information economy''. Again, it's ``information'', not ``products''. The labour component in creating that information can vary tremendously. This was something that clearly the Sims task force recommended, because if I look at their replacement worker recommendation, for example, they say if the option to use replacement workers
- ...is removed, employers will begin to structure themselves to reduce their reliance on their
permanent workforces for fear of vulnerability, to the detriment of both workers and employers
alike.
So it's that kind of perspective. It's the need for people and members of the board to come in with that perspective and to be trained in that perspective which we think is so vital in today's economy. It wasn't true twenty, thirty, or forty years ago.
The Chairman: Ms Lalonde.
[Translation]
Ms Lalonde (Mercier): You seem to be saying that the best solution would be not to have any unions.
I can understand that, but unions are a fact of life.
[English]
Mr. McCabe: I don't -
[Translation]
Ms Lalonde: You want the Board to understand that you are battling in a global economy against very powerful competitors - we understand that - but you cannot disregard minimum rules and requirements which allow workers to establish a power relationship with you. Call it what you will, but I think the accurate term is ``power relationship''. This kind of relationship is necessary in order for both parties to come away from the bargaining table with the best possible outcome for themselves. Furthermore, if it is too easy to bring in replacement workers, then no power relationship can exist.
[English]
Mr. McCabe: I think it's really unfair to suggest we would like to have no unions at all. I think we -
[Translation]
Ms Lalonde: I wanted to get you thinking. Thank you.
[English]
Mr. McCabe: We are in fact clear that we do support the bill and we do support the improper use of replacement workers. Our concern is that not every use is improper. There must be some balance in this. There have to be situations where both sides can carry on with their lives and the business on one side and the position of the unions on the other. What we're trying to do here is really to suggest that Parliament be clear about the balance it wants.
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I think that what we are suggesting will lay a considerable onus upon us to ensure that we do not, as employers, engage in union busting, that we do not engage in processes that undermine the attempts of the union to organize or make its case. The onus is just as much on us as it will be on the employee.
[Translation]
Ms Lalonde: I have one brief question. After hearing what you had to say, I fail to understand your opposition to subsection 106.1(1) which reads as follows:
109.1(1) On application by a trade union, the Board may, by order, require an employer to give an authorized representative of the trade union mentioned in the order the names and addresses of employees whose normal workplace is not on premises...
It seems to me that in this technological age where people can work at home, if we want to adapt the Labour Code and allow for the presence of organized labour, workers must have a choice. We're not talking about just any kind of situation and the legislation states that ``the Board may, by order'', which means that it must use some judgment. This is all part of the accreditation process since it falls under clause 49 concerning access to premises owned or controlled by the employer. It seems to me that you should be in agreement with this because otherwise, you are denying organized labour modern ways of engaging in unionism.
[English]
Mr. McCabe: To be clear, we do support that section. We do not oppose that section. We believe that as the workplace has evolved, you're right, not everybody works on the premises, yet they are still employees of the company. That will probably evolve further. We think this is an important section of the bill.
All we really ask is that there be some respect, and that Parliament indicate that there should be some respect, for the privacy of the individual. I don't think it's going to interfere with the operation of this if there is merely a requirement that with the full knowledge of the union of the question and the results, the employer be able to ask the employee, do you wish to be contacted by a representative of the union? I hope we would not be in the business of prejudicing the answer to that in any way, or trying to obscure the answers or prevent people from answering yes.
Our concern is for the privacy of our employees, and indeed in some cases, their security and their safety as individuals. We don't know if they want to be approached in their homes. We don't want to interfere with that. We would just like to get permission first.
[Translation]
Mr. Miller: For example, if our ultimate objective is to protect the worker, it seems reasonable to ask the worker if he consents to having his home address disclosed so that he can receive information about the strike and so forth. That seems reasonable to me.
[English]
The Chairman: Mr. Johnston.
Mr. Johnston: My colleague speaks about a position of strength and the ability to survive. I'm sure that in her case she's speaking about the abilities of the union.
With this legislation, the minister has said over and over again that he's trying to achieve a balance. What she says about the union certainly can hold true with the employer.
I would like to ask if you as a panel would see your concerns resolved as far as replacement workers are concerned if it were spelled out in the regulations that ultimately come out of this act what exactly constitutes undermining the union.
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I can see their concerns. They don't want to be in a position whereby the employer facetiously employs replacement workers, workers with whom the employer could ultimately replace those who are either locked out or on strike, replacement workers who could take their jobs. That leads to the sort of strife that neither the employer nor the employees want to face.
I guess what I'm asking is would your concerns be allayed if the regulations spelled out clearly what constitutes undermining or union busting and what does not, so that both players know what the regulations are, going into the game? You know, how many points for a field goal, that sort of thing.
Mr. McCabe: I think it would be very helpful if the regulations spelled that out. What we are trying to argue here, in general, is that Parliament be as clear as possible. If, in regulation, we can find some definition of that, I think it'll work to the advantage of both parties.
Mr. Miller: To be clear, I think there are a couple of challenges. First of all, I think it will be extraordinarily difficult to explain this in regulations, so I think that's a bit of a problem. Secondly, as you know, Parliament is supreme; the expression of Parliament's will through legislation is supreme, and regulations and any interpretations by tribunals are subordinate to that. So if the law itself isn't absolutely clear, you can't change it or redefine it through regulation or policy or interpretations of the board. Therefore, our preference would still be in putting it in the law. But as you suggest, that might be an alternative if it were impossible, for whatever reason, to make the changes we propose in law.
Mr. Johnston: Just so I'm clear on this, you would prefer that the bill spelled out precisely under what circumstances replacement workers would be acceptable and when the use of replacement workers could be construed as union busting.
Mr. McCabe: No. I think what we have suggested is the addition of the word ``intentional'' and the addition of the requirement that the onus is on the union to provide the proof. We would like to see those changes made in the bill. But despite the difficulty, we would see that any help that can be further given to the board in the regulations would indeed be useful.
Mr. Johnston: As far as the length of the term, do you have any problems or any recommendations with the length of the terms as suggested, for the chair or vice-chair? The length of the terms suggested, are they adequate, too short, too long?
Mr. McCabe: We think they're adequate. I think they are in a range that gives people the time to learn and do a good job, but not so long that they get worn into their seats so they are never removed and they stop thinking. I didn't say that!
The Chairman: I trust you don't have the same thoughts about members of Parliament.
Mr. McCabe: That thought entered my mind, and I said no, that couldn't be. And then I said I've been around too long too.
The Chairman: On that positive note -
Mr. Johnston: One brief supplementary.
The Chairman: Very brief.
Mr. Johnston: On the judgment or the decision whether replacement workers were deemed to be undermining the union or not, do you see precedent-setting scenarios arising immediately and then those precedents resulting in judgments being set on that in future recommendations?
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Mr. Miller: Clearly in any new clause like this the first times it's called into question, the first times precedents are set, they can be pivotal and they can sway one way or another. So that's a very good example of why the more clarity you can put in the legislation the more you can make sure those first precedents go in the direction you want them to take and not in a different direction.
Mr. Johnston: So we can expect the first time this board is called on to make a decision it's going to be an extremely emotional and hard-fought -
Mr. Miller: A difficult one, yes.
The Chairman: Thank you, Mr. Johnston.
On behalf of the committee, I would like to express to you our warmest and most sincere gratitude for what I thought was a very good start to our hearings. You certainly illustrated clearly that as we approach Bill C-66 we must keep in mind the changing nature of the workplace and also the process that takes place towards resolution of various labour-management issues. To judge by the questioning, the members really appreciated your contribution to the process. We'll keep you abreast of all the changes, if there are going to be any. I'm sure that like the members of the Labour Relations Board, we'll all stay tuned to the changes.
Mr. McCabe: Thank you very much.
The Chairman: We're going to take a five-minute break.
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The Chairman: I call the meeting back to order.
We now have the pleasure of hearing, from the Canadian Chamber of Commerce, Ms Sharon Glover, joined by Mr. Doug Gilbert.
Please begin.
Ms Sharon Glover (Senior Vice-President, Government Relations and Policy, Canadian Chamber of Commerce): Thank you, Mr. Chair. On behalf of the members of the Canadian Chamber of Commerce, we'd really like to thank you for the opportunity to appear before you today to discuss the amendments to the Canadian Labour Code contained in Bill C-66.
With me today is Doug Gilbert, a partner with the law firm of Heenan Blaikie.
The Canadian Chamber of Commerce is Canada's largest and most representative business association. Our members cover the entire spectrum of private enterprise and allow us to speak with a single voice for business.
Our network of 500 community chambers and boards of trade provides us with affiliate partners in every federal member of Parliament's constituency. This network has a total membership of over 170,000, and includes many of the federally regulated employers who will be affected by the changes to part I of the Canada Labour Code.
As you well know, many of the employers we represent, including key players in the transportation, telecommunications and banking industries, are involved in the provision of many of the country's essential public services and form the infrastructure of the Canadian economy.
The chamber has been an active participant in the public policy dialogue leading to the amendments to part I of the Canada Labour Code for quite some time. In fact, in April 1995 we presented the federal government with a submission concerning the proposed ban on replacement workers.
In November of that same year we filed a submission with the Sims task force, responsible for reviewing part I, and participated in the task force's consultation process. In June of this year we formally responded to the task force's report with yet another submission.
Before we begin addressing the specific elements of the bill in question, however, we must register on behalf of the employers we represent our displeasure with the timing of these committee hearings. We do not believe that just a few days' notice prior to preparing for an appearance is enough. We realize everybody's very busy, but we would have appreciated a little more time to respond to this bill. We'd also like to clarify two other matters before we begin.
First, while you may be under the impression that every part of this legislation has been through a vigorous consultation, this is simply not the case. In fact, this bill deals with a number of issues on which consultations were not undertaken at all. This bill can be likened to a Christmas tree where the tree is sound but everyone seems to have hung their favourite amendments on it.
Two, this bill deals with at least one issue in particular that, we had been assured by the minister, would not be included in this legislation. I'll address these two points in turn.
On the first point, consultations were not undertaken on some key elements of the bill - for example, the repeal of the Corporations and Labour Unions Returns Act, which allows Statistics Canada to collect information on labour unions. Specifically, the act was originally called the Corporations and Labour Unions Returns Act, and is now called the Corporations Returns Act.
For those of you unfamiliar with CALURA, it's the only publicly available document that shows, among other things, labour union financial statistics. In 1992 over $1 billion was collected in revenues by labour unions in Canada. We find it completely unacceptable that there will no longer be a source of information available to the Canadian public that reports on the size and nature of and financial strength of this segment of our society.
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Other important items included in this bill, and on which consultations were not undertaken, are the provisions relating to the handling of grain. Not only do we take issue with the fact that such an important issue is included in this bill without having been addressed by the report of the Sims task force, but we also believe what this bill proposes is a fundamentally misguided solution to a complex labour relations problem. Indeed, we have great difficulty in accepting the premise that during a strike at a port grain should be given preferential consideration over all other commodities.
The negative impact of any port dispute is not limited to grain, nor is its economic impact greater than the implications of a port shutdown on the exporters and importers of other commodities, including forest products, coal, sulphur, potash, and petrochemicals. We firmly believe the inclusion of provisions such as this one, provisions that create an unlevel playing field among various sectors of the economy, are unnecessary and not helpful in making Canada an attractive place to invest.
The second matter we would like to bring to your attention relates to the inclusion of certain elements in the legislation, elements we had been assured by the minister himself during the spring consultations would not be in this bill. The provisions dealing with off-site workers, which were not part of the general consultations over the last two years and which appeared in the Sims task force report, should not have been addressed in this legislation. In fact in August of this year Minister Gagliano launched a process called Collective Reflexions, a consultation exercise specifically designed to deal with issues surrounding the flexible workplace. We believe the issue of off-site workers should be left to this process.
The two issues contained in the bill where we would like to get into a bit of detail are the issues of the ban on replacement workers and off-site workers. On the first issue, the partial ban on replacement workers during legal work stoppages, we must before all else object to the rationale, or lack thereof, for amending the code to include such a provision. We question the need for reform. We believe no need was ever demonstrated by any of the parties interested or governed by the code, especially employers, for revision to this part of the code.
Similarly, the experience of other jurisdictions, namely Quebec and B.C., with restrictions on the use of replacement workers during legal work stoppages cannot be offered as justification for their use, given the unique nature of the federal sector. Federal sector businesses are by definition interprovincial, national, or international in scope. They include many large, integrated networks, spread across great distances. Federal undertakings correspond to a high degree with essential public services and constitute the infrastructure of the Canadian economy. Often the federal business is the only operation that provides these services to the country. Inhibiting the federal sector employer's ability to maintain operations is therefore by definition inhibiting the national economy from functioning.
Lastly, if the rationale for restricting employers from freely using replacement workers is to rectify an imbalance in power in labour-management relations, we would once again invite the federal government to reconsider its position. As we have noted in the past, the employer's weapon equivalent to strike is not the lockout but the ability to take a strike. This principle was recognized by the commentators from the Woods report in 1968.
After much study, the Sims report even said:
- Replacement workers can be necessary to sustain the economic viability of an enterprise in the
face of a harsh economic climate and unacceptable union demands. It is important in a system of
free collective bargaining that employers maintain that option, unrestrained by any blanket
prohibition. If this option is removed, employers will begin to structure themselves to reduce
their reliance on permanent workforces for fear of vulnerability, to the detriment of both
workers and employers alike.
I'll ask my colleague Doug Gilbert to speak a little on the partial ban on replacement workers.
Mr. Doug Gilbert (Canadian Chamber of Commerce): While the chamber takes the position that justification isn't present for any intervention in this area, certainly the language found in the bill is preferable to an absolute ban on the use of strike replacements. But even in its present form it's unsatisfactory, and it's certainly not beyond improvement.
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The language of proposed subsection 94(2.1) introduces a new concept into labour relations in this country. I'm not aware of any labour statute that uses this concept of representational capacity, and there are real problems with the use of those words. I don't think they match the objective described in the Sims task force recommendations.
In assessing or analysing the language that we find in 94(2.1), you really have to go back to basic principles. There are two of them in the Canada Labour Code, and there are similar provisions found in every collective bargaining statute across the country. They are found in section 36 of the Canada Labour Code, which establishes the exclusivity of the trade union as bargaining agent upon certification, and which requires the employer to deal with the trade union in all matters affecting the terms of employment. The second fundamental principle is found in section 50 of the code, and again there are similar provisions found throughout the provinces. This principle places an obligation on both parties to bargain in good faith and to make every reasonable effort to conclude a collective agreement.
It's on those two pillars that collective bargaining in this country has been founded, and those are understood and well-established concepts. In our submission, if the government is going to intervene in this area, it ought to build on and better integrate the strike replacement provision with those established and well-known concepts, rather than creating an entirely different set of principles or establishing new terminology such as ``undermining representational rights''.
Just to illustrate, those two concepts are routinely litigated before the Canada Labour Relations Board and other labour tribunals in the country, and they're well understood. If we look at the first one, exclusivity of bargaining rights, what does it mean in the context of a collective bargaining dispute? Boards have held consistently that it means the employer has to deal with the trade union; that the employer has to be prepared to meet with the union; that the employer can't refuse to deal with certain employees who make up the bargaining committee; that the employer is prohibited from communicating directly with members of the bargaining unit with a view to circumventing the union; and that the employer is prohibited from discrediting the union and what it's doing at the bargaining table. All of those rules have emerged over thirty or forty years of experience with that concept, and they're well known.
When we turn to the other pillar of the collective bargaining relationship - that is, the duty to bargain in good faith - we know pretty well what that means too. It means that the employer can't come to the table and engage in surface activity designed to avoid concluding a collective agreement; that the employer can't take intransigent positions at the bargaining table, nor can the union; that the employer has to be prepared to discuss the other party's bargaining demands and so does the union; and that there has to be disclosure in certain instances so that bargaining can proceed in an intelligent way.
So on those two principles, we have a clear idea of what the law provides and what the law requires. The parties know that, and when they run afoul of it the Labour Relations Board is standing by to return them to the centre line and back to fair conduct at the bargaining table. These are the principles we should be building on if indeed there is going to be a change of this nature in the code.
When you look closely at 94(2.1), I think you'll see that there are problems. It departs from those understood concepts, and it really does lead to confusion in an area where confusion about their rights and obligations is the last thing parties want. I would first point out that some may say that this comes right out of Sims, so what's the problem. Well, if you look at the Sims report, the bill borrows selectively from what Sims has recommended. It doesn't include the whole story of the Sims recommendation, and I think that's fundamental to your consideration.
The Sims recommendation on this point deals with undermining the representational capacity of the union - I don't think those are appropriate words; there are better words. But if you look at page 131 of the report, it also goes on to say specifically:
- Where the use of replacement workers in a dispute is demonstrated to be for the purpose of
undermining the union's representative capacity rather than the pursuit of legitimate
bargaining objectives, this should be declared an unfair labour practice.
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The adjudicator who is considering an application under this section a year from now, or whenever, understands that the government has told him or her that there is a balance between undermining and the legitimate purpose of a legitimate bargaining objective. This may mean the employer simply cannot afford the increase the union is seeking, or cannot afford interruption of its business with the hope to survive and has to resort to the use of strike replacements in order to preserve its economic enterprise. Today, that would be a legitimate objective, and I suggest to you that it would be in any other jurisdiction as well. But Bill C-66 takes only the first part of the equation and leaves out the second. I think you have to consider the importance of stressing the use of strike replacements where there is a legitimate bargaining objective in mind.
The other thing this does in using a new concept - representational capacity - is to create the potential for a whole new body of jurisprudence. I think we know what we're trying to prevent here. We're trying to prevent the employer from engaging in misconduct with a view to preventing the bargaining process from working. We have, as I've said, well-established principles that operate to prevent that. Why not borrow on those principles? Why not use what we understand?
When you introduce a new concept like undermining representational capacity, I think you inevitably invite litigation. You invite parties to go to the board to find out what it means because they will be saying that it must mean something different from unfair bargaining tactics, it must mean something different from failure to recognize the trade unions; otherwise, why would the government have used new words? That kind of development just prompts and precipitates unnecessary litigation, and I think you can see it coming in the statements that are made by the union movement.
I have a copy of this for you if you are interested in it, but in the business section of The Globe and Mail, on the day after the bill was introduced, Nancy Riche, the executive vice-president of the Canadian Labour Congress, was quoted as saying, ``I would go so far as to suggest that anybody who does work of a member of a union undermines the representative capacity of the union.'' She went on to say, ``None of the bureaucrats are going agree with me...but we'll have to wait and see. The new board will rule.'' So they're certainly looking on this legislation as something far different from, and far more expansive than, the existing law on the obligation of the employer and the union to bargain in good faith, and on the part of the employer to recognize the union and deal with it as an exclusive bargaining agent.
I think this principle of representational capacity is a dangerous one. It's not one you'll find in any other labour statute in this country. And I say that it's dangerous because it invites speculation. What is a capacity? It's a potential. If it's seen that way by a tribunal, you can see the applicants in these proceedings saying that their potential has been frustrated, that they might have obtained 6%, that they might have achieved those provisions in bargaining but for the use of replacement workers. You can see them saying that they are inviting the board or tribunal to do some speculation about what their potential is, what their capacity is to achieve these objectives on behalf of their members. That's a bad thing and it's an unnecessary thing.
To correct the problem that is before you and is addressed in the bill, you could do it in a much more straightforward way. As I said, better integrate it into the existing law by saying something like this: ``Where the employer uses strike replacements for the purposes of avoiding its obligation to bargain, then a remedy can be granted.'' That would allow the labour board to rely on and build upon the law and the jurisprudence that is well known to us all.
Ms Glover: In terms of completing our presentation, Mr. Chair, we have one other issue we want to speak to. It's the issue dealing with off-site workers, and there are two parts to it. The first is the issue of providing lists of employees to unions, and the second is the issue of allowing unions to use any communications system that the employer uses to communicate with the employees.
We thought it would be helpful just to review how organizations are currently organized under the Canada Labour Code. Currently, unions are responsible for gathering the names of people who support the drive to certify and for getting them to sign certification cards. When the union thinks it has the appropriate number of names that would allow for certification, it applies to the CLRB for certification. The board is then responsible for getting a list of names from organizations or the company, and for comparing the lists. If the unions have the support of the appropriate number of employees, they're automatically certified. At no time ever are unions given the names and addresses of prospective union members by the board. In fact, the names and addresses of employees are considered strictly confidential.
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In its current form, the bill will allow the Canadian Industrial Relations Board to give the names and addresses of workers who work off-site to unions in order to certify. Well, the bill says that the board must include some protection for privacy as part of the giving of the list. We therefore ask one question: How exactly will the board prevent this information from being abused once it has already given out the names and addresses of employees?
The Department of Industry currently uses, as its foundation for privacy of personal information, a code put together by the Canadian Standards Association. It's entitled ``Model Code for the Protection of Personal Information''. Under this code, it is stated: ``Personal information shall not be used or disclosed for purposes other than those for which it was collected, except with the consent of the individual''. We believe that at the very least, consent should have to be given by employees before their names and home addresses are given to labour unions.
Secondly, we're concerned about the implications of allowing trade unions to use any electronic communications system that the employer uses to communicate with employees. There are fundamental security issues involved with allowing anyone access to an organization's electronic communications systems. These very issues are being worked on right now by the government's own advisory committee on the information highway.
The current bill allows unions the use of company communications systems without offering solutions to some of the very difficult questions associated with such use. Given that the Minister of Labour currently has a process under way looking at the issue of home workers, and that the information highway advisory committee is presently working on a number of issues that this bill raises, we believe it would be prudent to remove clause 50, that clause dealing with off-site workers, from the current bill.
Doug, did you want to say something on the off-site worker? We'll then finish up.
Mr. Gilbert: I just simply wanted to say that this is, again, an unprecedented intrusion. There are other situations in which workers may be difficult to access from a trade union's perspective, but other remedies are available and have been used in the past to overcome those problems. That's what you find in section 109 of the code.
Now, for example, where the employees work on company property and live there, in that context there is no obligation to disclose names of employees simply to give the union access to property. I think that any concerns the government may have about being unable to contact workers who are working away from a traditional worksite could be accommodated in other ways. As there is now in the labour board process, there could be a notification given to these employees that if they wish to make contact with the union - this union has declared its interest and has attempted to organize them or whatever - here's where they can be contacted, here's their address and phone number. It avoids the need to hand out addresses and names and the need to expose people who may not want to be bothered with the intrusion into their home.
So again I think it's a problem that can be solved in a more balanced way if the government is intent on proceeding.
Ms Glover: In closing, then, we'd just like to reiterate our request to the committee. We'd like you to eliminate the partial ban on replacement workers from the bill. We'd like you to delete clause 50 from the bill, that clause dealing with off-site workers. We'd like you to level the playing field in the section of the bill dealing with ports. And we'd like you to ensure that unions, like corporations in Canada, have to report publicly to the Government of Canada. These are the principal messages the Canadian Chamber of Commerce would like to underline this morning. With this in mind, we welcome your questions and the opportunity to discuss these issues further with you.
Thank you.
The Chairman: Thank you very much, Ms Glover and Mr. Gilbert. This was a thorough presentation.
We will move now to Mr. Ménard from the Bloc. We have an eight-minute round.
[Translation]
Mr. Ménard: I get the impression that our witnesses are not very pleased at having been disrupted by the process. Pardon me?
An hon. member: [Inaudible - Editor]
Mr. Ménard: Mr. Chairman, please stop the clock. You can see very well that I am being interrupted.
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With all due respect for our friends from the Chamber of Commerce. I would like to say that I think they have taken a rather unreasonable stand, all the more so in that you represent individuals who are generally looking to strike a balance. I'm going to ask you some questions in an attempt to understand your viewpoint.
First of all, and I think it's understandable, you are concerned that as a result of the position of strength that will be established - I know that the expression ``position of strength'' is not part of your vocabulary - you will ultimately be deprived of information about trade unions.
You note on page 3 of your brief that striking down the Corporations and Labour Unions Returns Act would deprive you of a tool with which to assess different situations.
Therefore, I can understand that you would like the committee to provide you in its report with the tools to access information about trade unions. Is my assessment correct?
[English]
Ms Glover: What we are asking for is the reversal of the suggestion that this document be stricken. But we would like CALURA to continue - those are the aggregate union financial statistics, as well as membership.
[Translation]
Mr. Ménard: I understand. I think that we can agree on this point because some things are is totally reasonable.
I agree with you about one thing. Had we taken the time, prior to releasing the bill, to question a number of witnesses on the management as well as on the union side about the whole issue of replacement workers, few would have imagined the hybrid formula that the government is proposing. I don't think it's an interesting option because everyone is going to be unhappy: the unions, because it doesn't go as far as the provisions in place in Quebec and in British Columbia, and management, because it goes too far.
Since you represent management organizations and people who are entitled to work with clear, transparent rules, can you tell me if your organization has already looked at unfair practices that could be sanctioned in those provinces which have very clear provisions respecting replacement workers and do you recognize that a correlation exist between these provisions and clearer game rules which would promote a healthier labour relations climate?
In your submission, you seem to have overlooked the fact that workers have the right to negotiate their working conditions. If we are to achieve a balance in society, we need to realize that provisions respecting replacement workers are vital to this process. Have you already assessed the impact of the two existing laws in the provinces that you mentioned?
[English]
Mr. Gilbert: I agree with you that the right to representation by a trade union and the right to participate in collective bargaining are fundamental rights in our society. But no one is advantaged by engaging in a strike with the illusion that gains that the employer can't afford can be arrested from that employer. In other words, when the strike escapes the marketplace, it doesn't serve anyone's interest.
In terms of your question of whether or not we have evaluated the performance of legislation in the provinces that have this form of prohibition, we have. Look at the strike statistics and compare between the provinces of Ontario and Quebec for 1978-92, a period when Quebec had a prohibition against strike replacements and Ontario didn't. There are many reasons to explain the results, but you'll see that over that fourteen-year period of time in Quebec - notwithstanding the fact that the workforce is somewhat smaller, at about 70% of the size of the Ontario workforce - you'll see there were more strikes, they were longer, and they involved more workers than those during the corresponding period in Ontario. That's without any adjustment for the relative size of the workforce.
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I know there are other explanations for that, but if I were the reasonable bystander, I think I'd say that doesn't indicate to me this is a panacea for more peaceful industrial relations.
To the extent there's any empirical evidence - that's it. I think that's fairly significant evidence to indicate this doesn't usher in labour peace, or labour stability. This type of legislation doesn't produce that result, or it hasn't in Quebec when you compare it with the same period of time in Ontario.
[Translation]
Mr. Ménard: I simply want to understand your testimony and perhaps ask you to present some documents to support your claim. You compared the situation in Quebec and Ontario during the period from 1978 to 1991 or 1992 and concluded that just because Quebec had anti-scab legislative provisions, labour relations weren't necessarily more peaceful or work stoppages fewer and shorter. Was that the assessment made by your organization? If it was, it would be interesting to have the documents which allowed you to arrive at this conclusion because as you know, there are those who believe the opposite to be true.
I think you would be doing the committee a favour if you turned over the documents which led you to this conclusion, because if we are wrong - and especially if I, a Quebecker, am wrong about this - we would like nothing better than to reconsider our position. However, my understanding was that there was a very direct correlation between the length of the work stoppages and the incidents of violence and the fact that strikebreaking provisions were in place, as my colleague from Mercier pointed out.
Therefore, you disagree that when anti-scab provisions are in place, when replacement workers are banned and when the rules of the game are known, strikes are shorter, the incidence of violence is lower and relations are healthier overall. That is your position and you have evidence to support your claim which you could share with the committee.
[English]
Mr. Gilbert: Yes, we'd be pleased to share that. The Chamber of Commerce prepared a report, I believe it was in April 1995, that includes these statistics and the analysis of the relative performance of Ontario and Quebec during that period. As I said, there are other explanations for it, but certainly if you looked at the numbers you wouldn't walk away and say it has really produced a different result in Quebec and it has really produced significantly less conflict, because the numbers just don't support that conclusion.
I think that's the best empirical data you can find anywhere in the world on this point, because really Quebec was first in the western world with this kind of legislation. Comparing two provinces that have relatively similar economies over the same period of time is probably the best comparison you'll ever find to assess whether this type of legislation produces the result its advocates would claim it does.
[Translation]
Mr. Ménard: Mr. Chairman, we will ensure that the Clerk makes the necessary arrangements to obtain this report and we will come back to it. It will certainly be an eye-opener for me.
[English]
The Chairman: Yes, absolutely. You will.
Mr. Johnston.
Mr. Johnston: Thank you, Mr. Chairman.
I think we have a very complete and comprehensive report before us, but there are a couple of points I'd like to raise. On page 4 you object to grain being given preferential treatment or consideration over all other commodities. There were submissions made to the Sims report and also to the inquiry on west coast ports to suggest a final-offer selection arbitration on any work stoppages, whether it's a strike or a lockout, would be detrimental to third parties, in the case of grain or other such commodities that would be held up.
I wonder if you would like an opportunity to expand on your difficulty with the preferential treatment given to grain. Also, what would be your position on the acceptance of final-offer selection arbitration in cases of work stoppages that have a detrimental effect on third parties?
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Mr. Gilbert: With respect to your first question, the problem the Chamber of Commerce has is one that arises from the interests of exporters in the country that don't happen to be grain producers. I think we all know forest products, automobiles and other products are fundamental to the well-being of our economy. To allow one product through the port but not others does create an advantage to grain producers that is denied to other exporters. Our economy is equally dependent on the other sectors, so I think that's a fairly straightforward concern.
With respect to final-offer selection, in appropriate circumstances it can be a useful tool to focus the mind in resolving industrial relations disputes. I'll give you one example. It exists in some education statutes in Ontario, and it was incorporated as the method of resolving collective bargaining disputes - the primary method in the Agricultural Labour Relations Act, which was enacted by the last government in Ontario. They had similar concerns about what happens if a strike occurs during harvest season or what happens to perishable goods on the farm or in the agribusiness. So the government adopted final offer selection as the method of resolving those kinds of disputes.
That statute was repealed by the current government, but nonetheless it shows that the model is one that can be useful in the appropriate circumstances. Whether you'd want to impose it as the only option or whether it's one alternative to resolve a difficult dispute is an open question that would require more consideration.
Mr. Johnston: In my opinion, it would certainly be preferable to the system we have now where in the last 20 years Parliament has had to come up with back-to-work legislation 19 times. Certainly final-offer selection wouldn't be as heavy-handed as back-to-work legislation.
Mr. Gilbert: That ultimately produces a deal that is more closely related to the parties bargaining positions than an arbitrated outcome may be.
Mr. Johnston: Do you have any problems with the successor rights clause that is included in this bill, and if so, what would they be?
Mr. Gilbert: To the extent that it has an effect on the tendering process in Canada, I think the Canada Labour Relations Board has held in a number of cases that it can be a useful and commercially relevant way of obtaining services and so to hold the wages constant regardless of how well that last service provider has done, regardless of the changes and conditions in the economy. It does weaken the tendering process as a means of retaining services. In that respect, there is a concern.
Mr. Johnston: On a more philosophical point, perhaps you'd like to speculate - or maybe you wouldn't - on how necessary it is that Canada's labour laws resemble those of the United States, given that's our biggest trading partner and of course our closest neighbour.
Ms Glover: If I could comment on that, I think Canada is unique. In terms of our fundamentals, we believe unions have a right to exist and so do employers; they have a right to strike and employers have a right to operate. Those are fundamentals.
We operate quite differently than the U.S., and I think we have different values in that. I don't think we need legislation identical to the United States of America. What we do need is legislation that will allow us to remain competitive and to attract investors. Everybody is well aware of the job situation in this country. While not the only thing employers look at when coming to Canada, we truly believe they do look at our labour legislation and how attractive it is. We're very, very worried that anything that resembles even a partial ban on replacement workers will be interpreted the wrong way and will be a detriment to investment in this country.
The Chairman: Thank you, Mr. Johnston.
Mr. McCormick, followed by Mr. Proud.
Mr. McCormick (Hastings - Frontenac - Lennox and Addington): Thank you,Mr. Chairman, and thanks, Chamber of Commerce, for being here.
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I have a comment on the grain being given preferred consideration. It's such an elementary decision and fact: of course, grain is food. We wouldn't know it today if we looked at the price of wheat on the world market, but with the facts and perhaps the rumours of the food supply in the world last year or this year before the harvest, I think that you might want to allow grain to be exported under any circumstances.
As for the off-site workers, it's going to be very interesting to provide coverage for them or to allow unions to approach these people. The headlines yesterday or today I think talk about a bank in Canada that is going to appear and do business without any investment in bricks and mortar.
If we have to get the employee's wish to be contacted.... That could very easily mean that any new employees or additional employees or all employees in the future would not be allowed any contact with a union. Do you have any comments?
Ms Glover: As Doug has mentioned, we're not opposed to unions contacting these people. There are all kinds of ways of doing it. Think of the Internet right now and of how many people are getting access. Surely to goodness.... Union members are extremely capable people. I'm quite sure that the Canadian Labour Congress has a web site. If employees are interested in contacting the union, there are ways like that.
Also, what if companies were asked to post something on a bulletin board? When you have bricks and mortar you can post it on a bulletin board. What if companies, through their electronic communications, were asked to post something on their electronic bulletin board for their employees? Their employees could pick it up and say to themselves, okay, if I want more information I can pick up the phone and call the union.
We do not object to unions talking to employees. We object to giving out employees' names and addresses. We just believe there are different ways of contacting people. That's all.
Mr. McCormick: It's going to deserve a lot of compromise and we're going to hear it again and again.
Thank you, Mr. Chair.
The Chairman: Thank you, Mr. McCormick.
Mr. Proud.
Mr. Proud: I'd just like to make a comment and ask a question.
On page 4 of your submission, you say that another important item included in this bill on which consultations were not undertaken are the provisions relating to the handling of grain.
One of the options put forward by Sims in response to the industrial inquiry was to provide for the continuance of grain vessel operations when a strike or lockout takes place in the port for other reasons.
Mr. Johnston mentioned the number of strikes that took place over the last number of years. Most of those were dealing with longshoring operations. All of them were dealing with grain. When you say why not potash or whatever else, grain is the commodity that we always hear the most about when there are problems on the coast. That's the reason this is in the report. It is reflected in the bill. There was an industrial inquiry that made recommendations on this.
As far as this business of replacement workers and off-site workers goes, I suppose it's probably never going to satisfy everyone. I'm sure my colleagues across the way would like to see replacement workers not involved at all. Companies would like to use them. We feel that we've come forward with a compromise on this.
You're concerned about the unions' ability to go to the industrial labour relations board to determine what unfair labour practice is. I have enough confidence in the people who will be appointed to this industrial board to believe that they will not just take frivolous interventions and allow the union to win these cases on everybody and every place and worker. I think that's a fear I've heard two or three times this morning. I'm sure that anybody who goes before this board is going to need to have a case where it can be proven that there is an undermining intention of that union and that this can take place.
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One of the other items you mentioned was the new wording dealing with the representation: ``undermining the representational capacity of the union.'' I just want to ask you a question about that.
If replacement workers are in place and the union and the company are still continuing to negotiate, do you believe, then, that those replacement workers should be able to vote on that collective agreement? That's one question. And do you not believe that off-site workers should have the ability to have contact with trade unions or are you just arguing against the method in which it's done?
Mr. Gilbert: With respect to the first issue, the strike replacement provision, the problem I have with the language ``representational capacity'' is that it just opens new territory for interpretation. There's a more straightforward way to solve this problem. And I agree with you when you say that the labour board is not going to entertain frivolous complaints and is not going to grant every application that's made.
But why not give the labour board some clear direction about the problem we're trying to solve? And that's really the problem of getting the employer back to the bargaining table if the employer is engaging in misconduct and getting the employer to bargain again as it is supposed to bargain.
Rather than throw this concept of representational capacity, whatever that means, representational potential, up for grabs.... How well could we do but for the presence of strike replacements? Why not rely on the ideas that we understand? For example, if you have to bargain in good faith, you have to recognize the trade union. If you're avoiding those obligations, the board will then consider a remedy.
Those are things that people on both sides understand. And I feel that industrial relations is founded on some degree of certainty and understanding of what the other party can expect from the process. That degree of certainty is important in preventing people from doing the wrong thing at the wrong time.
Collective bargaining relationships develop with expectations and understandings about what's possible and what's not possible. That's a healthy thing and to throw in a new concept, which is unncessary in my view, just to stabilize -
Mr. Proud: Is this a new concept? Do you really think this wording is a new concept? It's been around for a long time.
Mr. Gilbert: No. It's not found in the code anywhere. It's not found in any -
Mr. Proud: No, maybe not, but it's certainly been around the parties for a long time....
Mr. Gilbert: It's not found in any other statute.
I'm just saying that if you're going to do it, there are better words to do it with. That's all I'm saying. There are words that are clearer and achieve the purpose more directly than these words do. Why try a new phrase or new terminology when there are suitable concepts already in the code that you could use to solve this problem?
Mr. Proud: We just had another group before us telling us that we should be looking for new concepts, not going back to the old days. These are the different representations that are made to us.
Mr. Gilbert: Sure. But there are lots of labour board cases from this jurisdiction and from other jurisdictions that have used those concepts successfully to give remedies to trade unions that have been the victim of employer misconduct, so they're not tired and stale concepts.
Those concepts of recognizing the union as the bargaining agent and of bargaining seriously with a view to getting a collective agreement are at the core of our industrial relations. They are not old and tired concepts by any means. All I'm saying is that those are the concepts you ought to be looking to when you frame this new provision. You ought not to be looking at something that's new and unknown.
The Chairman: Very briefly, Mr. Gagnon.
[Translation]
Mr. Gagnon (Bonaventure - Îles-de-la-Madeleine): You have expressed some concerns that this legislation could allow workers to communicate directly with independent workers, off-site workers, freelancers and people working on contract. The opposition can correct me if I am wrong. In the next few years, I believe that one-third of all workers will be independent or off-site workers.
You seem to be greatly concerned by the fact that the union could communicate directly with these independent workers. To my mind, it would be a good idea to allow unions to communicate directly with these individuals to verify if indeed their working conditions are acceptable.
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I've heard that off-site workers often do not work a regular 9 to 5 schedule, but rather week-ends, that they don't necessarily enjoy the same benefits as permanent workers and that most of the time, they even have to pay their own phone bills and oversee their work site.
I would be interested in hearing the Chamber of Commerce's position on this issue. Have you established fairly formal rules for businesses that employ off-site workers? What are the benefits of such a system? What type of working conditions do they have? Why not invite a union to communicate with these workers to verify if in fact their working conditions are acceptable?
[English]
Ms Glover: Yes, we have considered this. In fact, we are considering a study of our own to look at people who work off-site, to get success stories.
You know, not everybody wants to work nine to five. The whole issue of a flexible workplace is to allow people to work the time they want. Some companies allow certain employees to pick the benefits they want.
So working at home and working off-site is not necessarily a bad thing, and we're looking into it. We recognize that everything is changing. We want to get some examples of some success stories that perhaps we could bring to the committee at another time.
Mr. Gagnon: They'd be welcome.
Ms Glover: In terms of communication, we're not trying to stop union communication with these employees. Our issue is that the names and addresses of employees is a confidentiality between employers and employees. Why not ask employees if they want to talk to the unions, or why not ask employers to post a notice on their board? That's all we're saying. There are lots of ways to get to the same end. We would prefer a different way to get there, that's all.
The Chairman: Ms Glover, Mr. Gilbert, thank you very much for your presentation. I think it can really be summarized in the last four points you made. As we work towards improving this bill, we take all the presentations quite seriously, and the points raised therein, to improve the bill. Thanks again.
Ms Glover: Thank you, Mr. Chairman.
[Translation]
Ms Lalonde: If you had had more time, could you have provided us with a translation?
[English]
Ms Glover: We don't have it right now but we will get it to you, translated.
[Translation]
Ms Lalonde: Thank you.
[English]
The Chairman: A very good point, Madame Lalonde.
Mr. Gagnon: Mr. Chairman, with regard to bilingual documents, I thought it was a condition of presentation that every time there is a witness in committee, he or she must arrive with a bilingual version before they're entertained in committee.
The Chairman: In ideal situations, you're correct.
[Translation]
Ms Lalonde: If there is no French text available, we should know about it in advance. If the witnesses have not had time to have their submissions translated, then it would be better for them to wait two more days if that's what it takes to have their text translated. In the meantime, we could hear from other witnesses. We are entitled to receive the submissions in French.
[English]
The Chairman: Yes, I agree.
[Translation]
Ms Lalonde: You're not in an ideal position, Mr. Chairman.
[English]
The Chairman: No. What I was referring to, as the witness stated earlier, was that they felt they didn't have enough time to prepare the text. Regardless of the fact that it's been 20 years since we've reviewed the Canada Labour Code, I guess there's not enough time.
It's an issue, as you know, that keeps coming up quite often. We need to address it. Sometimes, because we have interpretation, and because some members are also bilingual, we've been able to benefit from the fact that you have been generous in allowing us to go ahead. I mean, this has been the tradition of this committee. But in an ideal situation I would have liked to have seen both the English and the French.
I'll instruct the clerk to ask the interveners, prior to intervening, whether or not they have the French version available. If they don't have it, then we'll give precedence to the people who do. But this committee, as you know, has work to do, and we also need to take that into consideration.
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[Translation]
Ms Lalonde: My argument is valid, Mr. Chairman. We are examining amendments to a code which contains specific provisions and vocabulary. We can always speak English, but recommendations are being made about specific provisions in the code and it isn't always easy for us to understand the fine points without the French version.
[English]
The Chairman: You're correct.
Mr. Gagnon: Exceptions I would find acceptable would be presentations outside this chamber. For instance, if we're on the road somewhere in Edmonton, Alberta, yes, maybe it could be presented in one language, if you will. However, when it's a presentation in front of committee, in front of parliamentarians, we have translation services available here in Parliament, and we should make good use of them.
The Chairman: I agree.
The meeting is adjourned.