[Recorded by Electronic Apparatus]
Tuesday, November 26, 1996
.1535 
[English]
The Chairman: I call the meeting to order and welcome everyone back this afternoon. As you know, we are presently reviewing and studying 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.
This afternoon we have the pleasure to hear from FETCO, Federally Regulated Employers - Transportation and Communications. As we discussed earlier, you will have approximately 15 to 20 minutes for your presentation, followed by a question and answer session. I'd like to welcome you all, and ask Mr. Smith to introduce the panel. Welcome.
Mr. George C.B. Smith (Chairman, Federally Regulated Employers - Transportation and Communications (FETCO)): Thank you very much. It's a pleasure to be here today. I'll begin by introducing myself. My name is George Smith. I'm the vice-president of human resources at the Canadian Broadcasting Corporation, and chairman of the FETCO group. I'll ask my colleagues to introduce themselves, beginning with Frank Pasacreta.
Mr. Frank Pasacreta (Federally Regulated Employers - Transportation and Communications (FETCO)): My name is Frank Pasacreta. I'm the vice-president of operations for the B.C. Maritime Employers Association, and a member of FETCO.
Mr. David Olsen (Federally Regulated Employers - Transportation and Communications (FETCO)): My name is David Olsen. I'm assistant general counsel at Canada Post Corporation and a member of FETCO.
Mr. Donald Brazier (Federally Regulated Employers - Transportation and Communications (FETCO)): My name is Don Brazier. I'm director of labour relations for the St. Lawrence & Hudson Railway company, and I was the chairman of the employers group that participated in the consensus process with the CLC and with the members of the task force.
[Translation]
Mr. Jean Bédard (Federally Regulated Employers in Transportation and Communications Organization (FRETCO)): My name is Jean Bédard and I am vice-president of the Maritime Employers Association.
[English]
Ms Laura Kilgour ((Federally Regulated Employers - Transportation and Communications (FETCO)): My name is Laura Kilgour. I'm with the Canadian Trucking Association, and I was part of the consensus process from the beginning.
Mr. Smith: What I would propose to do by way of presentation is this. I have a number of opening remarks to put FETCO's position in perspective and then I will turn to my colleagues to deal with some particular issues in the bill that we have concerns with. We'll try to do that within the time constraints and open up the floor for questions.
I would emphasize that Mr. Brazier is here as the chair of the FETCO subcommittee, but all of the people at this table were involved in the consensus process with the CLC and Mr. Sims and his task force, and they bring that experience to this committee today.
By way of housekeeping, I must apologize that you've just received our brief. We found out about our appearance last Thursday. Since we have 17 members to consult, it has taken us some time to put that together, but we have endeavoured to provide it to you in both official languages, and I hope you're not disadvantaged by just receiving it. I'll try to hit the highlights in my opening remarks, and hopefully you'll read the brief as a result of our presentations.
First of all, FETCO represents 17 members in the federal sector. We have members in the airline industry, the rail industry, communications, shipping, trucking, longshoring and broadcasting. Our members have approximately 400,000 employees. We believe we represent roughly 60% of the employees in the federal sector, and those employees are, for the large part, unionized. Our relationships with our unions go back many, many years, and in some cases centuries.
We as an organization came together in 1983 and tried to fill what we felt was a gap at the time for matters just such as the matter before you here, in the sense that employers in the federal sector did not have a voice with and to government on matters that impacted them in the area of various parts of the Labour Code. We formed a group.
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The people in front of you today and the members of our association are all practitioners. We are not lobbyists. We believe we have worked diligently with various ministers of labour and various ministries over the course of the last 20 years or so to develop and refine a consultative process whereby our issues were understood. We attempted to create consensus processes just like the one that was ultimately used by Mr. Sims and his task force in reviewing issues such as the major issue of the review of part I of the Canada Labour Code.
Because of this history, we welcomed the opportunity to be part of the Sims process. During the course of the last 18 months we have invested considerable resources, including the time and energy of not only the people around this table but many of our members. We did so in recognition of the fact that this was the first major review of part I of the labour code in over 20 years, and we wanted to be part of creating a code that was reflective of today's business realities.
As well, early in the process it was clear through Mr. Brazier, Nancy Riche from the CLC, and Mr. Sims that there was going to be a guiding principle applied to this review, which suggested that the most efficient and workable collective bargaining system is one where the parties have the greatest responsibility for their relationships. That means a minimum of intervention.
We're proud of the fact that over the course of that time a consensus package was reached on many of the matters and ultimately a total package acceptable to both parties was developed. This was done much in a mirror image of the collective process, which the code actually governs.
Your job and our job today would have been considerably simpler if the bill before us had simply focused on the consensus and non-consensus items that were reached through the Sims process. We would be developing our arguments on the non-consensus items, those that most probably related to public policy issues, and you would be hearing representations from other interested parties in that regard. In reality, however, we believe Bill C-66 reflects four categories of issues and we think it is important for you in your deliberations to recognize these different categories.
The first one is the non-consensus category, which is quite simple and quite clear. It's a non-consensus between the parties and a clear public policy issue that has to be dealt with through the parliamentary process.
The second is not quite as simple, and that is a consensus issue that was reached between the parties where the language, which is now before us in Bill C-66, does not reflect in our minds the consensus that was reached.
The third issue is where the language of the recommendations in Bill C-66 goes beyond what was part of the Sims task force; that is, the recommendations exceed the deliberations of the task force.
Finally, and probably the most troublesome to us, is where there are issues that were indeed not raised during the consensus process and that appear before us now as part of the draft bill. In this latter category there has been no opportunity for us or the unions to debate these issues. We think that creates a significant problem given the history that is before you in terms of the deliberations of the task force.
You've heard the minister and members of the government praise the consensus process, and we do too. We believe this is a clear example of where the time and energy invested was for the most part well invested. But for this consensus process to be truly effective, we believe the issues raised in the latter three categories I've identified must be addressed. Those are the categories where in our minds consensus was not reflected, the recommendations go beyond what the task force dealt with, or the issues were simply not raised during the process. Later in our presentation, we will highlight examples of each of these categories.
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It is for this reason that we appealed to this committee by letter last week to take the time necessary to hear all of those who wish to be heard on these amendments, and consider that several major issues have only come to light as of the November 4 tabling of the bill, and our analysis of some of those issues could only start at that point in time.
Given the limited time we will highlight concerns in each of these four major categories. Our brief contains all of our concerns, and we encourage you to read it. The people before you were all present during the consensus process and will be pleased to answer any questions during the question period.
Again, let me emphasize that for the most part we feel the consensus process worked, but we liken what is happening here to running a marathon, which we've been involved in, and then being asked to sprint for the last mile and a half. Some Olympic athletes may be capable of that and I admire them, but in the case of what we're looking at, we believe the time must be taken to properly deliberate on these issues.
Given the limited time that this group has, we've tried to focus our concerns. We have raised approximately 15 issues, and we will highlight four of those today. Our list is short and we hope we have focused it. Several of our members reserve the right to make separate representations, and I believe they are doing that either through presentations to this committee or through appearances, but for the most part what we have in this package is the focus of our concerns.
We believe this committee can substantially address these issues and thereby create a product that is truly reflective of the efforts of the Sims task force and all of those who participated in that consultative process.
I'll turn to my colleagues now. Mr. Pasacreta will deal with one of the issues that falls in the category of non-consensus, and where we believe there's a clear public policy issue to debate. We will then move around the table and identify a single concern in each one of those areas. Our brief expands on some of those concerns, and we'll entertain questions.
Mr. Pasacreta: Thank you.
The second to last page of our brief articulates our concerns regarding the provision contemplating the release of the names and addresses of employees who are employed beyond the normal offices and business locations of the employer. These issues that we're raising are not the only ones in the brief, but ones we thought could illustrate some of our concerns for you.
This particular recommendation is found on pages 52 and 53 of the Sims task force report. The task force talked about making provision for the release of names and addresses, but raises some obvious concerns about the need to ensure the privacy and security of the employees whose information they're releasing.
Our brief explains our concern about that. In our view it's not adequately addressed in the legislation. The legislation leaves it to the board to in some way try to protect the interests of these individuals, but it does so in a way that does not give much direction to the board. It would have been a relatively straightforward matter to indicate that the board was responsible for confirming or verifying that the employees concerned had no objection to releasing their names or addresses, and we suggest that kind of language should be introduced into the bill to give direction to the board that it's their responsibility to confirm that employees are willing to have their names and addresses released. We believe some fairly significant privacy and potential charter issues are raised when that information is released without the individual's consent.
In addition, the task force recommendations contained on page 53 talked about employers providing access to these individuals through some form of electronic communication. It's our view that the recommendations contemplated the dissemination of information to off-site workers through that medium. It did not contemplate, or there was no discussion about, actually providing access to computer terminals, providing representatives of the union with access to computer terminals through which they could communicate with off-site workers.
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The expectation was that they would have the opportunity to provide such communication, and that could easily be accomplished by providing the information to the employer and requiring the employer to release it to those individuals. We strongly urge you to consider making the necessary modifications to give... [Technical Difficulty - Editor]
[Translation]
Mr. Smith: My colleague, Jean Bédard, will talk to you about the second category.
Mr. Bédard: The second category we announced earlier involves changes where a consensus had been reached, but where the wording of the bill does not reflect the intent of the consensus. For example, sub-clause 5(1) of the bill which amends section 16 of the Code, sets out the Board's powers.
Under the proposed paragraph 16f.1) of the Act, the Board could compel, at any stage of a proceeding, any person to provide information or produce documents and things that may be relevant to a matter before it.
The whole question of the Board not being able to demand that documents be produced during pre-hearing conferences was discussed and settled during the negotiations which led to a management union consensus. In fact, you can find the wording of that consensus on page 226 of the French version of the Sims Report.
The report said that the power to compel a person to produce documents prior to the hearing is an essential part of a fair procedure, even if some procedural precautions must be taken to ensure there is no abuse. And therein lies the problem.
On the same page of the report, it says that
- - The relevance of the documents must be reviewed. For example, when trying to settle a matter
before an official hearing, someone in charge should have the power to decide whether the
required documents are relevant based on the submissions made by the parties; these could be
written submissions or, if required, a pre-hearing petition.
I would like to refer you to the summary of the consensus on page 226, which says that
- - The production of documents without an official hearing or process to settle the matter prior to
an official hearing are related matters and could be dealt with together.
The difference between the two processes could be very important in cases where huge numbers of documents must be produced. The change we are suggesting would reflect not only the intent of what was discussed and settled through the consensus, but also what you find in any provision on administrative court throughout Canada.
Thank you.
.1555
[English]
Mr. Smith: I should have mentioned earlier that our brief is in chronological order for ease of reference. The next section we're going to deal with is the prohibition relating to replacement workers, subsection 94(2). You'll find it about two-thirds of the way through the document. Don Brazier is going to deal with this issue.
Mr. Brazier: It's the ninth page from the back, if anybody wants to locate it. Unfortunately, we didn't number the pages. This is an example of the proposed language that goes beyond the task force recommendations.
The issue of replacement workers went before the consensus group, and it is probably not a surprise to anybody in this room, or anybody in the labour relations community in the country, that we did not get a consensus out of it. We basically stated our positions, had some discussion, and that was it, but we did debate a number of areas related to the rights of workers.
As employers, we felt that addressing these issues and two specific items that came out of a consensus group.... One was the right of employees to return to work following the cessation of a strike or lockout - to enshrine that in the labour code. As well, a provision for redress for employees disciplined or dismissed where no collective agreement is in force, which is the situation when you have a work stoppage - the consensus group concluded that provision should go into the labour code.
We felt that addressing those issues - the task force identified a couple of other areas with respect to the rights of employees during a work stoppage - would forestall anything at all on the specific issue of the use of replacement workers. However, the task force did see fit to make a recommendation, and I think it's fair to say that they came up with a very well-crafted provision. It's on page 131 of the task force report. It's quite short:
- There should be no general prohibition on the use of replacement workers.
- Where the use of replacement workers in the 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.
- In the event of a finding of such an unfair labour practice, the Board should be given the specific
remedial power to prohibit the further use of replacement workers in the dispute.
As far as we're concerned, the wording of proposed section 94 does not express the specific intent of what the task force wanted. It is far too wide and unqualified. It may arguably prohibit the use of replacement workers not only in the exceptional circumstances contemplated by the task force, where an employer is seeking to achieve a non-union workplace, but in any circumstance where the employer may be found to contravene paragraph 94(1)(a) of the code, which prohibits employer interference in the representation of employees by a trade union.
For example, the board has found that an employer has interfered with the representation of a trade union, in such circumstances as by communicating to its employees the last offer on the bargaining table, for penalizing union officials for publicly criticizing an employer's policies, for not granting access to a union to the company's internal mail distribution facilities and bulletin boards, and for prohibiting the wearing of union pins. Although serious, incidents such as these may very well lead to claims of the contravention of the unqualified language in this section undermining trade unions' representational capacity.
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The vague language in this section will only encourage litigation before the board on this controversial issue. The CLC has already stated that one could argue that the very existence - the mere existence - of replacement workers could constitute evidence of undermining a trade union's representational capacity. You can be certain with this broad wording that every instance in which replacement workers are used will be challenged before the board. FETCO submits that it is imperative that the clear intent of the task force be expressed in the bill.
What we recommend is that proposed subsection 94(2.1) be reworded to reflect the words of the task force report, which reads:
- No employer or person acting on behalf of an employer shall use, for the demonstrated purpose
of undermining a trade union's representational capacity, rather than the pursuit of legitimate
bargaining objectives, the services of a person who was not an employee in the bargaining unit
on the date on which notice to bargain collectively was given and was expressly hired as a
replacement worker after that date to perform all or part of the duties of an employee in the
bargaining unit on strike or locked out.
The Chairman: David Olsen will now deal with proposed section 60.
Mr. Olsen: The amendments contained in proposed section 60 deal with the powers of arbitrators. The power of arbitrators was not discussed or raised with management or labour in the consultation process. It raises squarely public policy issues.
The general labour relations model we have in this country recognizes that there will be a prohibition of strikes and lockouts during the life of a collective agreement on condition that there's a procedure in the collective agreement for the resolution of rights disputes by arbitration or otherwise.
In the private sector model that the Canada Labour Code represents, it has been left to the parties themselves, union and management, to provide for their own system of grievance arbitration and to appoint arbitrators. The Sims task force recognized this themselves when it stated on page 228:
- As a matter of first principle, we believe that the parties to a collective agreement should be the
defining architects of their arbitrators' powers and authority.
- (a.1) the power to determine the nature of the difference and address its real substance;
- So it would confer on arbitrators that power - to determine the nature of the difference and
address its real substance.
- The second is proposed paragraph 60(1)(a.3), which reads:
- (a.3) the power to make the interim orders that the arbitrator or arbitration board considers
appropriate;
- The third is the power to extend time limits.
The first I'd like to deal with is the power of arbitrators to determine the nature of the difference and address its real substance.
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The primary source of an arbitrator's jurisdiction is the collective agreement, and second is the referral to arbitration and the grievance. A secondary source is the statute, which usually sets out procedural powers of an arbitrator.
The proposed paragraph 60(1)(a.1) turns this long-established principle of labour law on its head. In essence, it gives the arbitrator the power to determine the real issue and arguably usurps the power of the union to frame the grievance and the power of the employer in its reply. This broad power may be seen by arbitrators as a general authority that supersedes the language of the collective agreement.
As I said, the parties negotiate and settle the grievance process as part of the settling of the bargain for the contents for the entire collective agreement. Traditionally in law, at least to date, arbitrators are the preachers of the collective agreement to interpret what has been agreed by the parties. It should be clearly established that arbitrators must find the rationale for their decisions within the four walls of the collective agreement, including the grievance and arbitration procedures settled by the parties. We are unaware of any difficulties or practice that would warrant a broadening of process and authority from what the parties themselves have negotiated.
The second issue I would like to deal with is the power of arbitrators to make interim orders. Again, this was not discussed in the management-labour consultation process, but at the outset the members of FETCO have no difficulty whatsoever with the powers of arbitrators to make procedural orders. That is not what is in dispute in this section. What we are concerned with, however, is the power of arbitrators to make substantive orders that the parties have not agreed to in the collective agreement, orders for interim relief.
More particularly, this language arguably would support giving arbitrators the power to grant interim injunctions. In looking at arbitrators' powers, this is a power that the courts have already said they don't have unless it's specifically conferred on them by the parties. It's an extraordinary power, and in exercising equitable relief in the granting of injunctions, the courts are circumscribed in the way in which they exercise that power. Usually it's all set out in the rules of court as irreparable harm, serious damage, and so on.
I think we have to be really concerned about whether or not we want to give rights arbitrators this kind of power, at least without setting out the circumstances in which that power might be exercised by analogy to the rules of court. If the parties themselves want to confer that power on rights arbitrators, as some collective agreements do, then that should be left to the parties rather than imposed.
The last point I want to make is on extension of time limits. The proposed bill would enable arbitrators to extend time limits under the collective agreements. There are collective bargaining arrangements whereby the parties have agreed on exceptional circumstances in which time limits could be extended, but I think we're really concerned about giving arbitrators that general power, not constrained at all. There must be some certainty and finality to the grievance arbitration process.
Those are my submissions. Thank you.
Mr. Smith: Mr. Chairman, that represents a brief overview of our concerns. There are further issues we've raised in each of those four categories contained in our brief, and we are at your disposal for questions at this point.
The Chairman: Thank you very much for your presentation. Some of the issues might come up in the question and answer session. You might address them then.
Mr. Nunez.
[Translation]
Mr. Nunez (Bourassa): I must point out that I am not a regular member of this committee. However, I am very interested in anything relating to social legislation, especially labour law. I worked for the FTQ for 19 years before being elected to the House of Commons.
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I realize the Canada Labour Code needs a complete overall, especially part I. In my experience, there is never any consensus on any issue between employers and unions, and at some point, Parliament has to decide.
I think the bill before us reflects choices made by the government, and it is now up to Parliament to make the decision. If there is no consensus between the parties, why couldn't Parliament decide? I remember that in Quebec, there was the Beaudry Commission that did a thorough review and overall of the Quebec Labour Code. The parties did not reach a consensus on all issues, especially on the anti scab provisions.
I remember there was a lot of discussion on that in 1976, and in 1977 the anti scab provisions came into effect. Employers were vehemently opposed to those provisions and I have noticed a change of attitude in Quebec. There is a nearly unprecedented social peace in Quebec, and even employers, who felt this was critical to the survival of free enterprise in Quebec, are now quite satisfied with what is happening there.
I would like to start by asking a few general questions. You say that FRETCO represents approximately 60% of federally regulated employees. Could you tell us how many employees there are in total and how many of them are unionized?
[English]
Mr. Smith: Certainly. May I first deal with the issue you raised in terms of non-consensus?
This group has no misconception about Parliament having the right to decide, if they so wish, to change the Canada Labour Code. What we have here, though, is evidence of 18 months of deliberation between the parties that, on some very contentious issues, has resulted in some middle ground at least being defined.
A good example is replacement workers. The process that has led us to the point where we are - and this can be debated - is much more constructive than the Beaudry commission, which simply decided and imposed upon parties, with some public outcry. In this case, while there was no consensus on the issue, serious concessions were made by both parties.
The employer's initial position was that we wanted the unfettered right to use replacement workers. The union's position was that there would be absolutely no situation where a replacement worker could be used.
Through debate and discussion, we got to a point where a task force proposal came forward that created an opportunity for the limited use of replacement workers. This would avoid the kinds of public situations that caused the attention to this issue in the first place - those that involve violence and in some cases death, but that are the huge minority of situations.
Both the parties to the process felt they had achieved something by moving toward something, even though no consensus could be signed off.
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So my response to you is there's no question Parliament has the right, but for this committee and for Parliament to ignore the efforts that were put into that, where the parties themselves - the people who are going to live with the impact of this - reached something they have publicly expressed they could live with, would seem to me a major waste of the effort that went into this on both sides of the table.
In terms of our exact membership, I don't believe the brief we presented has that, but I can certainly give you some supplementary information. The 17 companies we represent are listed on page 2. From the documents I've seen most recently, I believe our membership totals about 368,000 at last count. As you can see, a number of our members are associations, so it is difficult to get an accurate count of the total numbers of folks they represent.
In addition, on page 3 are listed a number of employers who are associate members of this organization.
I can obtain for the committee a detailed breakdown of each of our companies and the total membership.
[Translation]
Mr. Nunez: How many employees do you think are covered by that part of the Canada Labour Code?
Mr. Smith: Nearly 70%.
Mr. Nunez: You represent 70% of them? But according to our figures, approximately 700,000 workers are covered by the Canada Labour Code and you say you represent 360,000. So that would be a little less than half.
[English]
Mr. Smith: In the cases of several of our associations, we've chosen not to give you the total numbers of the associations, because we felt that might be skewing the numbers in a certain sense.
[Translation]
That is possible.
Mr. Nunez: If you do not give us the figures, we cannot tell what percentage your association represents.
Mr. Smith: I will give you the total number.
Mr. Nunez: Fine.
[English]
The Chairman: Mr. Nunez, your time is up.
Mr. Nunez: Okay.
The Chairman: And 400,000 is still a lot of people they represent.
Mr. Johnston, please.
Mr. Johnston (Wetaskiwin): Thank you, Mr. Chairman.
Thank you for a very comprehensive presentation.
I heard one of you say some middle ground has been found here. I think the minister's goal or objective was to seek a balance. I'm wondering if you feel that more time to consider this bill, more time for hearings, a little of a slower approach to this, would be a benefit.
You seem to have a lot of recommendations here. Do you feel this is proceeding too quickly for your liking, or do you see any benefit to a slower approach, and if so, what is the benefit?
Mr. Smith: First of all, a number of the recommendations we've put forward are procedural recommendations or language recommendations that can be dealt with reasonably quickly.
There are several issues, particularly those identified by Mr. Olsen today, where we have not had the opportunity to debate the issues. It is on those issues where we believe an extension of time or debate would be useful. It is not in our interest to delay the introduction of the bill. We've invested a lot of time and resources in this process. However, as I say, to sprint for the last few miles here could cause the whole thing to come into question.
Having said that, certain of those items, we would offer, could be dealt with through the consultation process. We have to believe that when the unions sit before you soon, they will have equal concerns about the arbitration. They may not have the same concerns, but certainly arbitration is something that is the essence of what we do in terms of day-to-day labour relations, and for that to have escaped the consultation process creates a problem for us.
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In response to your question, I would suggest that a large number of these issues could be dealt with relatively expeditiously. Several require more debate, and we think that debate would be fruitful.
Mr. Johnston: Okay. In the area of essential services, do you think that it would be beneficial to be a little more definitive about what constitutes essential services in this bill? I guess what constitutes essential services and how the use of replacement workers is applied is going to be dependent on the make-up, or the decisions, at least, of the board.
Are you happy with that set-up, or would you like to see the bill be more definitive in those areas? What, for instance, constitutes an essential service and what would constitute union-busting?
Mr. Smith: We did not make a representation on this in our brief, but I'll defer to the chair of our subcommittee, Mr. Brazier, who was involved in those discussions.
Mr. Brazier: First of all, with respect to the essential services issue, the language seems to be quite explicit or specific. It refers to anything that could affect the safety and health of the public. I don't happen to have the bill open to that particular clause right at the moment. What number is it, Frank? Here it is, proposed subsection 87.4(1):
- ...must continue the supply of services, operation of facilities or production of goods to the
extent necessary to prevent an immediate and serious danger to the safety or health of the public.
From our point view, we know it's a common type of provision in provincial legislation, but in the nature in provincial legislation - it covers things like firefighters as an example, which you're only going to find in federal legislation in the Northwest Territories or in the Territories. Now, of course, with the privatization of certain services, you may find it at airports, so maybe there is a necessity to have legislation like that.
Quite frankly, we don't think it's going to be something that's operative particularly often, certainly not as often as you'd find under provincial jurisdiction. As Mr. Smith said, we didn't make representation on that because we felt there was no particular need to do so.
As far as the language of proposed section 87.4 is concerned, FETCO is satisfied with the way it's worded, and we feel it's probably specific enough.
When it comes to the question of replacement workers, which of course is a different issue here, if I could interpret the question you asked, it was sort of: what criteria or factors will be taken into consideration, perhaps by the board, with respect to...? What constitutes activity or replacement workers that would undermine the representational capacity of the union?
Let me say - and I don't know whether this is good, bad, or indifferent, but it's just a fact of life - in the last two-and-a-half years I've been involved in strikes where replacement workers have actually been used. In both instances we simply used replacement workers, and as far as we were concerned, we were doing what an employer will do if he's capable of doing it, in the event of work stoppage - trying to run the business and also trying to get a little bit of economic leverage in terms of the collective bargaining that is taking place.
Now, when does it move to the point where it may undermine the representational capacity of the union? I would suggest that probably in examining that, you have to look at factors such as these: Is the employer involved in direct dealing? Is he dealing directly with the employees? Is he harassing or intimidating union officers? Is he denying access to communications vehicles that might normally be available for the union to communicate to the employees? Is he doing other things that would seem to suggest there is anti-union animus?
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I would suggest that the intent, given the wording of the legislation, even without the words that were in the task force report, is that the mere use of replacement workers does not undermine the representational capacity; there has to be something more to it than that. I think you have to look at it within the context of what else the employer may be doing that might interfere with the union's right to conduct its job as representing the employees and negotiating on their behalf. It's not just the question of the mere replacement of the workers; you have to see what other activities the employer is engaged in.
Our concern is that the government, in bringing the legislation into the House of Commons and, excluding the words that the task force used, in bringing forth legislation that could be interpreted as meaning that the mere existence of the replacement workers by itself undermines the representational capacity.... That is certainly not the intent of the task force, and the way I heard Mr. Gagliano speak when the bill was introduced in the House, it's not his intent either.
We are concerned, though, that the language as contained in Bill C-66 is broad and vague and could be interpreted more broadly than was the intent of the government, and certainly more broadly than was the intent of the task force.
The Chairman: Thank you, Mr. Brazier. Thank you, Mr. Johnston.
Mr. Johnston: Well, certainly [Technical Difficulty - Editor] should be written as well.
The Chairman: Okay, thank you. To the Liberal side - Mr. Nault.
Mr. Nault (Kenora - Rainy River): Thank you, Mr. Chairman.
Before we get too far in these hearings, I want to try to get a sense of.... I'm having a heck of a time following your brief. There are times when you talk about the task force, which I understand to mean the Sims task force. It seems to be somewhat interesting that when it suits your need, you talk about the task force, but then when you don't want to talk about the task force you talk about the consensus working group and what took place there or didn't take place there. So I'm having a really tough time figuring out what took place at the consensus working group that Mr. Brazier was the co-chair of.
Let me see if I can get this right, because otherwise what we're having here is renegotiation of the whole discussion you had with the consensus working group that followed the Sims task force. I've read the Sims task force; I know what it said and what it didn't say. But you folks went together with the unions and spent some time together trying to get a consensus on what you would agree to and not agree to, and as Mr. Smith portrayed it in his opening remarks, it was a form of negotiation.
I'm trying to get a sense here now of whether this is a rehashing of what you didn't really like at the consensus working group but had to agree to because there are other parts the unions are going to come up with when it's their turn, to say ``We didn't like this, so maybe we can suck you parliamentarians in'' - for the lack of a better word - ``because you don't really know much about labour law, and you will agree with us that those parts shouldn't be in there, so we'd like you to change it''. Are we having a renegotiation here, Mr. Smith, of the consensus working group, where in fact you came to a consensus over some areas you didn't really like, but which is part of the whole process, as you mentioned at the beginning, of a form of collective bargaining?
I'd like to get that straight before I get into my specific questions, because if we're going to re-enter the whole negotiation process.... I enjoy that, as you know from my past experience andMr. Brazier could tell you, but I thought we had gotten past that and were going to deal with some nuances here. But in fact, the way you've portrayed it and positioned yourself this afternoon, we are basically starting from scratch. I thought that two years of work of the Sims report and the work of your consensus group had come a long way, but I'm sort of losing that sense. Perhaps you could fill me in before I get any further.
Mr. Smith: I apologize for the miscommunication, because I've obviously not expressed myself properly. It is a matter of public record that we accepted the Sims report as a balanced approach. There were things in it we did not like, but on balance, we were prepared to accept it.
If the Sims report had been converted to legislation, to legislative language, reflecting the consensus and non-consensus items, recognizing government's opportunity to translate into areas as it wishes, we would simply be debating the non-consensus items as matters of public policy. In fact, that is the least of what we're presenting to you today. We're dealing with areas where consensus was reached and it's not reflected in the legislation. We're dealing with areas where the task force recommendations were exceeded by the legislation. The task force was not followed.
.1630
The third and worst category in our minds is that of issues we did not discuss with the government or with the unions in consensus meetings or otherwise. We saw them for the first time when the legislation hit the floor of the House of Commons. It's those three areas that are the major issues. Were the Sims report reflected in its totality in this legislation, we would be accepting it as written. As I said, that is a matter of public record.
Mr. Nault: Let me try it again, Mr. Smith, because you're leaving a false impression with the committee and I think it's not one I want to leave here.
For example, on the replacement workers section of the Sims report, there is no argument by this committee that the Sims report did not go as far as what's being suggested in the legislation. The fact remains that what you're suggesting in your committee is that because the Sims report did not recommend a certain thing as it relates to replacement workers, therefore it's not a consensus. But in fact when you had the consensus working group, of which Mr. Brazier was the co-chair, you did come to the agreement that you could live with that because obviously, on the other hand, the unions gave up something else. Is that not factually correct or have I missed something here in the interpretation?
Ms Kilgour: Can I make a suggestion? I've been part of this since September 1994 when the matter first came in front of the then Minister of Labour, who was Lloyd Axworthy. Maybe you don't have the order correct, realizing how much of a process this was.
Before Mr. Sims ever wrote his report there was more than a year of consultation, and that was the process Mr. Brazier was the chairman of on the employer side and Nancy Riche was the chair of on the labour side.
For well over a year we went through all those areas with the assistance of Mr. McDermott from the department. We went through all those areas that each side brought to the table as something they thought should be discussed under part I. This was a process that had been blessed by Mr. Sims after he was appointed. He said he felt that because this dealt fundamentally with the relationship between the parties, the parties should have a fundamental role in the review of the act.
That process went on for a great length of time, and through that process there were many consensus items reached. That consensus report was given to Mr. Sims and his group and it was the framework for a lot of the things they recommended.
After the report was written, there was the consultation with the then minister. We then went through another process after the task force, where he had a consultation that went across the country. People who had been involved in that consensus were part of the consultation. At that time, at the very last one of those consultations, which was held in Ottawa at the Conference Centre, both groups said they could live with what was being recommended by Mr. Sims as a package.
I sat here and listened to the minister speak last week about the package and that you can't nit-pick here and there or whatever with the package. What we're saying is that items 2, 3, and 4 in our list are things that were part of that package or were not discussed in any way and are now part of this bill. Does that make it clearer?
Mr. Nault: It makes clear what your intention is, and I appreciate that because I wanted to know. In essence, then, what you're telling me is that what we're doing here at this committee is going back to square one in terms of what business wants versus what labour wants.
My impression of the discussions that took place was that on the replacement worker side there was a consensus or an agreement that this would be something you could live with. Even in the press, your own vice-chair of FETCO makes the comment that he can live with the recommendation and the way the replacement worker process will unfold, as it has been introduced in the House of Commons.
.1635
I'm getting very mixed signals from you folks today, where on the one hand in the press FETCO and its vice-chair say one thing and now you're saying it has gone beyond the language. And I accept the argument that the language might not be to somebody's liking. That always happens when we have legislation that's introduced and we get into the discussion of what does the language mean, and I think we can deal with that. But I'm trying to figure out whether in fact these two years of work have been all for naught and whether you've now divided and decided to come here to try to convince the committee that your argument is better than the union's argument.
Mr. Smith: No, it is not our intent to renegotiate. I think I can speak for my vice-chair. He was called into a room an hour before the bill was put before him and before the House. He looked at the language. I think there are six words that are different, but they're six materially important words to us.
His initial reaction was that it reflected Sims. When we had an opportunity to deal in detail with this, we recognized that those key words that were in the Sims process, which we publicly accepted as the deal with labour, weren't in the bill, and it's that we're pointing out to you today. We're not asking to renegotiate this, and we believe the language in Sims is the language that is acceptable to the CLC as well as to FETCO.
The Chairman: Thank you very much, Mr. Nault, and thank you for a very thorough presentation. One thing I think you've established, Ms Kilgour, is the fact that perhaps there's such a thing as over-consultation. I find that all three ministers have taken it upon themselves to really consult all parties. And at times in committees, believe it or not, people don't agree with one another. But as we read your brief during times of reflection, I'm sure we'll figure out exactly which words are not pleasing to you and we'll see if we can accommodate you and adjust and improve the bill. Thanks very much.
Mr. Smith: By way of a final comment, we have attempted to focus our efforts. This is by no means an attempt to renegotiate. We believe that by considering our issues and the limited number of those, we can take this process, which is, as you say, extremely lengthy and involving a lot of effort by a lot of different people, to its proper conclusion. Thank you for your time.
The Chairman: I want to thank you.
We'll take a two-minute break, and we'll be back with the RCMP Association.
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.1644
The Chairman: I'm sure you know how committees work. You'll have approximately ten minutes to give us an overview of what your issues and concerns are with Bill C-66, then we will engage in a 15- to 20-minute question and answer session. Welcome.
Mr. Delisle, if you can also introduce your colleagues, I would appreciate it.
Staff Sergeant Gaétan Delisle (President, Royal Canadian Mounted Police Association): Thank you very much, Mr. Chairman. My name is Gaétan Delisle, I am a staff sergeant with the Royal Canadian Mounted Police. I am also the president of the RCMP members association, and on the local level I'm also the president of l'Association des membres de la police montée du Québec. With me is a lawyer, Mr. James Duggan, our legal counsel and representative. Also with me is Sergeant Pierre Vincent, who is the secretary of l'Association des membres de la police montée du Québec; and Corporal Antoine Deschesne, who is also from l'Association des membres de la police montée du Québec.
.1645
First, I would like to thank you very much for letting us come here and explain the whole reason we should be included into the 20th century, into good, sound staff relations, and under the guidance of the Canada Labour Code.
[Translation]
First of all, why should they have access to collective bargaining? The RCMP was essentially a paramilitary force in the Northwest Territories that then went on to become a national police force that provided police services under the same structure as those currently provided by Canada's other police forces.
Unlike members of every other police force in this country and notwithstanding the similarity in their duties, RCMP officers do not get the benefits of collective bargaining with their employer. Even if the RCMP's role has changed over time, their labour relations have not. Some changes to RCMP labour relations were made when members of the force became frustrated and dissatisfied but those changes were inadequate and the relationship between management and staff is still basically paternalistic and autocratic.
Under the RCMP Act, the commissioner controls and manages the force and also has a number of discretionary powers that have been abused and are still abused. Since 1977, RCMP rules have allowed a divisional representation program. But it is a real sham because it is fully controlled by the commissioner. Even though divisional representatives are elected by members of their own division and zone, they cannot adequately represent the interests of their members since the commissioner constantly prohibits them from doing anything.
Moreover, the representatives risk being relieved of their duties if they engage in activities that go against the non-union goals of the program, as defined in the commissioner's standing orders. You could say that the divisional representatives program is a poor substitute for an in-house union. The commissioner still has control over the program, which means that members of the RCMP have no way of negotiating fair labour relations.
It is hardly surprising, then, that members of the RCMP do not have access to a grievance procedure that would involve a decision being made by an outside, independent tribunal. In fact, most grievances are reviewed internally by senior RCMP officers. It is the commissioner who has the final word, even if the grievance was about a decision he made.
As a result of amendments made to the RCMP Act in 1986, some types of grievances can now be sent to an external review committee, but that committee's power is limited to a power to make recommendations to the commissioner. How can you get any representation in an unfair system? What can you do?
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On page 8 of our document entitled Action, we recommend
[English]
that we do include in section 5.2 of the Canada Labour Code that:
- This part applies to the Royal Canadian Mounted Police in respect of employment of any person
who is a member or special constable of the Royal Canadian Mounted Police or who is
employed by the Royal Canadian Mounted Police under the same terms and conditions as a
member.
You wonder why you are dealing with elements that are both discriminatory and arbitrary. The commissioner has an absolute power, while members cannot resort to an impartial tribunal. I, myself, was subjected to four inquiry commissions by divisional representatives - because I am a divisional representative - and there were also reprisals against me because I tried to exercise my basic rights, such as freedom of expression.
Within the RCMP
[English]
regulation 57, which prohibits members of the RCMP from running for office in a municipal or township election. I am one of the members who was elected at one of those elections in Quebec. Regulation 57 is totally unconstitutional, and the RCMP has long been directed by the Treasury Board - since the Osborne decision of 1991 - to change that same regulation. They were in the midst of doing this, and they were giving permission to others in Canada, who were in fact elected, to run for office at the same time as I ran, but I was suspended without pay, and I'm still suspended without pay for exercising that fundamental right that others were allowed to exercise.
I must emphasize - and this is the reason we submitted to you a document from the Privy Council - that even now when I'm before the court, where we are arguing the unconstitutionality of the regulation, we are not permitted to introduce the evidence from the RCMP that shows without a doubt that the regulation is unconstitutional. In this regard, I was officially served two days prior to the hearing with documents from the Privy Council rendering all the documentation secret under the auspices of the Privy Council's authority. I am told it is almost the same authority as the one being used for the tainted blood. That's the reason why you have it before you. I cannot stress more what is being done to our fundamental right.
[Translation]
The certificate I mentioned was used by the Privy Council and brought by the Attorney General to hide the fact from the federal court that the RCMP knew full well that the ruling in question was unconstitutional, even before it was enforced.
If I had been protected by the Canada Labour Code, I would have been free to join the association.
.1655
[English]
I was faced on four different occasions with internal boards of inquiry because I was the president of our association, and at the same time because of my association activities, and furthermore because I did come before parliamentary committees and addressed the issue of
[Translation]
freedom of association and freedom of expression
[English]
in particular - the one before Bill C-58 or Bill C-30, as it presently stands. I was charged and brought before a commission of inquiry for having done so within the internal system.
[Translation]
If members of the RCMP could form unions, they would have some legal protection against all those unfair labour practices. They would be entitled to collective bargaining, reinforced by binding arbitration, with a view to reaching a solution.
Furthermore, there would be some assurance of fair conditions and protection against arbitrary and abusive decisions that stem from the commissioner's powers. A binding arbitration system would replace the current process, which is ineffective and cumbersome. The members of the associations are therefore asking you to recommend legislative amendments that would give members of the RCMP the chance to exercise their fundamental rights of collective bargaining provided for in Part I of the Code.
The associations respectfully submit that these changes are long overdue, which is proof that the RCMP union movement is repressed. The RCMP commissioner had just one argument to defend the position that members should not be allowed to form a union. The argument was simply that the RCMP should remain operational in case other police forces in Canada went on strike.
That reasoning cannot justify denying members of the RCMP their right to collective bargaining. It can only be used when setting up an appropriate mechanism for dispute settlements. The answer would be that since members of the RCMP are not asking for the right to strike, they would continue to provide uninterrupted police services if other police forces interrupted theirs.
[English]
You have within Bill C-66...and we just heard the other panel discussing proposed section 87.4. It's needless for me to read it. I think you are all aware of it. It's a new section that's being proposed, and it meets all of the reasons I've just explained regarding the argument from the RCMP, which doesn't stand any more because of the content of the proposed section.
[Translation]
The Sims Task Force concluded that we could have collective bargaining without hindering operational control or public interest. We do not want the right to strike. We want access to collective bargaining like all our colleagues from other police forces in Canada.
.1700
[English]
I realize I might have been a little bit longer than the 10 minutes, so we are here for questions.
The Chairman: Thank you for your presentation.
We'll have a five-minute round. Mr. Nunez, followed by Mr. Nault.
[Translation]
Mr. Nunez: Mr. Delisle, I congratulate you on your brief, which was very clear and straightforward. You want the right to unionize. I think that is a minimal right you should have which would give you the right to collective bargaining on your working conditions and on a fair grievance procedure, which you do not have right now.
I also see you are not asking for the right to strike. I think that lends even more credibility to your basic request to have access to the right to unionize and the right of collective bargaining. The Bloc québécois supports you. I personally support you and I am astonished to see that in a democratic country you cannot even run in municipal elections. I hope the RCMP will reverse that decision because it is undemocratic and violates the Canadian Charter of Rights and Freedoms.
Do you want to be covered by the Canada Labour Code? Would that require amendments to the RCMP Act? How do you plan on getting the right to unionization and collective bargaining? What legal means do you have in mind?
Staff Sergeant Delisle: Thank you for your support. To answer the questions you asked, I would refer you to our document, especially page 1 where you will find the changes normally required to various Acts and the reasons we are asking for them.
Indeed, we recommend that the Royal Canadian Mounted Police Act recognize the principles established elsewhere so that we have a proven, effective and fair system.
Mr. Nunez: How would the bargaining unit be established? Which employees would be covered, up to what level, etc.?
Staff Sergeant Delisle: It is important to note that the only element that would require a change would be section 5 of the Canada Labour Code. But on page 9 of the document, there is also a paragraph entitled "Bargaining Unit Structure". The document was prepared in both official languages to encourage questions and make it easier to answer them.
Mr. Nunez: I was going to ask you a question about replacement workers, but since you are not asking for the right to vote, it is not something that worries you. However, do you have a general opinion on replacement workers?
Mr. James Duggan (Legal Counsel, Royal Canadian Mounted Police Association): Could I answer you question, sir?
Mr. Nunez: Yes.
Mr. Duggan: The question of replacement workers does not affect members of the RCMP. We therefore focus our presentation on the fact that we should have access to collective bargaining. Since members of the RCMP do not want the right to strike and recognize the merits of the amendment in the bill you have in front of you, namely clause 87.4, we think that is very consistent with our recommendation, which would provide two things at once, namely the maintaining of essential services and collective bargaining.
.1705
Mr. Nunez: Do I have any time left?
[English]
The Chairman: Your time is up. Your questions are long.
Mr. Nault.
Mr. Nault: Thank you, Mr. Chairman.
I want to get a sense from the witnesses. There's reference to Bill C-30, which is before the House now. It deals with the RCMP Act and the staff relations act. Is it in the interests of the RCMP workforce to be within that particular act, which is where the public service sits - they're not under part I of the code either. The Canada Labour Code is normally considered to be for people in the private sector, and we have our staff relations act for the public service.
I'm trying to figure out which one you would want to fit under. On the one hand you've lobbied for Bill C-30, and now you're in front of the committee lobbying that you should be under the Canada Labour Code. Could you tell me which one it is?
S/Sgt Delisle: Right now you have what is going on through the RCMP, and I'm sure you're well aware of it. If not,
[Translation]
Mr. Patrick Gagnon is no doubt aware of the regionalization going on at the RCMP and the various contracts being negotiated. No one thought the Public Service Staff Relations Act would be an effective way to deal with that and to remedy the situation, but the Code is the legislative document they accepted immediately for that.
[Translation]
I understand there was an error in the translation. I did not say the Canada Labour Code, I said that the Public Service Staff Relations Act was not the proper way to deal with what is going on with the major changes in the RCMP regarding regionalization, separate employer status and all this. The code itself offers that.
I might add that Bill C-30 also touches on part II of the Canada Labour Code. I realize that this is not the portion that deals with this, but you can be sure we have a problem with that too. We can give you examples of clear wrongdoing, where senior RCMP officers are just turning their heads to health and safety situations. There's nowhere for us to go, because we don't have in place a system that offers the protection the Canada Labour Code does, and that's one of the reasons we amplified this in our paper. The unfair labour practice protection is clearly involved in the Canada Labour Code, but it is not in the other one.
Mr. Nault: So your preference is for the Canada Labour Code.
S/Sgt Delisle: Yes, and we are also here today because the Canada Labour Code is being studied for this, so it's an ample provision saying that it could be there for that purpose.
Mr. Nault: Before I let this drop, I wanted to ask about the DSRR program. Are you suggesting that this is not a form of collective bargaining, that it doesn't meet the needs of...? There are many different kinds of collective bargaining processes in Canada. Whether they be unionized or not, there are associations and loose collectives of individuals in corporations that are perceived to be non-union that have forms of negotiation.
Is this process that the RCMP has in front of it not a form of collective bargaining? Even the apparent reformation and remodelling going on within the process that is apparently intended to modernize it - is that not going to meet the needs of the working men and women in the force?
.1710
S/Sgt Delisle: I've been a DIVREP for the last 20 years. I can tell you that the DIVREP system is a collective begging system. It's not a collective negotiation process. It does bring forward problems to the manager of the RCMP, which is the commissioner, but the commissioner is the sole decision-maker on every item that goes to him. In the law we now have an external review committee for grievances, but the commissioner is not bound by it. I have examples of where he doesn't follow the recommendation. There's no alternative but for the members to go elsewhere.
So the sole decision-maker is the commissioner. You bring the topics to the commissioner and the commissioner doesn't.... The clear example that has surfaced on Bill C-58 was supposedly the Gingras decision. But all the Gingras decision said was that we had benefits enshrined by another source, through Parliament, but if they pass Bill C-30 those benefits are no longer enshrined. As a matter of fact, it will be the commissioner.
You also alluded to the new pay determination process within the DIVREP system. After looking at it I'm sure you would conclude that the person who really makes the decision is the commissioner, and nobody else. Whatever recommendation the pay determination process arrives at is not binding on him, and you don't find this in too many types of collective bargaining issues.
The Chairman: Thank you, Mr. Nault.
One very brief question, Mr. Johnston.
Mr. Johnston: I'm sorry I missed your presentation. If you touched on this, let me know it.
How widespread is the support for your proposal among the RCMP?
S/Sgt Delisle: It depends on the area. Right now we have four completely autonomous associations - two in Ontario, one in Quebec and one in British Columbia. One is in the making in Alberta. There are lots of discussions going on. We have members who belong to all of those associations - approximately 3,000 out of 15,000 as we speak. So there's a large aspect to it, but since you missed some of the presentation, you also have to realize that members are under tremendous pressure to say what they feel, to express their freedom of expression.
I'm the president and I face that as a DIVREP, as an elected member of the DIVREPs. I was even before four commissions of inquiry. Can you imagine a member in an area where the detachment is closing down, and then the member, if he speaks too loud - I'm sure Mr. Gagnon can speak about a few people he knows about - will be transferred not where he wants, and not wherever the best position is in Canada. It's a large country. You have postings. I see faces from out west. There are some unwanted areas and some wanted areas. That's a fact of life in the RCMP.
That's a day-to-day operation. If you have the president of the association who speaks out and you dismiss him from the force - or you think you dismiss him from the force - and you suspend him without pay.... The commissioner has said that only people who are caught up in criminal activities will be suspended without pay. If I am a criminal because I was elected as a mayor, while other members were permitted to so.... Imagine the pressure on other members just wanting to speak their minds. Only because I testified before Bill C-40, I was put under a commission of inquiry, and under the commissioner's own standing orders.
We need protection.
.1715
The Chairman: Okay. Are there any further questions? I see no further questions.
On behalf of the committee, I would like to thank you for your presentation. All of your major points have been duly noted, and we'll be using them to improve the bill.
S/Sgt Delisle: So I will not be charged again.
The Chairman: I hope not.
The meeting is adjourned.