[Recorded by Electronic Apparatus]
Monday, December 9, 1996
.1005 
[English]
The Chairman: I call this meeting to order. We of course apologize for the delay of approximately 45 minutes now. As chair, it's something I don't like to see very often. We were checking through some of the amendments that were forwarded to see whether they met the requirements.
Now, apparently they all do, Mr. Clerk. Is that correct?
The Clerk of the Committee: Yes.
The Chairman: Then we are ready to proceed to clause-by-clause consideration.
Before we formally begin, we would like to thank the officials for being here. We're going to be counting on you throughout this process. We have approximately 93 clauses to go through. It's a fairly lengthy bill. I'm sure the members will be mindful of that as we proceed.
Are there any statements the officials would like to make now, any points of clarification, or anything along those lines?
Mr. Michael McDermott (Senior Assistant Deputy Minister, Legislative Review CLC, Department of Human Resources Development): Nothing, Mr. Chairman, other than to say we're here, obviously, to be of any assistance we can.
I also want to point out that, in addition to my colleagues with me this morning, we have with us from Statistics Canada Mr. Krishna Sahay, the assistant director of the industrial organization and finance division. If we get to the issue of CALURA, the Corporations and Labour Unions Returns Act, he will be available to answer questions on that matter.
The Chairman: Thank you, Mr. McDermott. On to clause-by-clause.
On clause 1
The Chairman: Is there any discussion? Mr. Ménard.
[Translation]
Mr. Ménard (Hochelaga - Maisonneuve): One of the witnesses seemed to suggest that there should be an amendment to the definitions in clause 1 and that the committees should consider adding something so that flour mills return under provincial jurisdictions. You will remember that the CNTU was very clear on this issue. Would the government be ready to consider this?
[English]
The Chairman: There's no amendment to clause 1 from the government side. Is that correct?
[Translation]
Mr. Ménard: This may have been considered already and I would like to know if the government could be favourable. If such an amendment were to be considered, it should be in this part of the bill. Mr. Chairman, I would not want you to rule this out of order. For the Assistant Deputy Minister's information, the witness reminded us that flour mills were placed under federal jurisdiction in very unique and extreme circumstances during the Second World War. He was wondering why things had not changed. Would you agree with such a view?
Mr. McDermott: I believe that this should not be raised within the context of clause 1, the definition clause, but rather in the section on the scope of the code, clause 4 of the present code.
.1010
Ms Lalonde (Mercier): Thank you very much.
[English]
The Chairman: Thank you, Mr. Ménard, and thank you, Mr. McDermott.
Clause 1 agreed to
On clause 2
The Chairman: I believe there are a number of amendments. I think we'll be dealing with the one from the government side first.
Mr. Proud (Hillsborough): Mr. Chairman, I move that clause 2 of Bill C-66 be amended by replacing lines 39 and 40 on page 4 -
The Chairman: Mr. Proud, I think we have an amendment from the Bloc that should precede yours.
Mr. Proud: Okay. Thank you.
[Translation]
Mr. Ménard: Amendment BQ-1 proposes that the bill be amended by adding paragraph 10(1.1) to give our committee a say in matters pertaining to nominations for the positions of Chairperson and Vice-Chairperson. I believe that this amendment is well within the philosophy of the government to entrust greater responsibility to the parliamentary committee and to involve us closer in the whole nomination process. We are dealing with the first amendment?
An honourable member: Yes.
Mr. Ménard: Very well. This amendment provides for greater transparency, and this surely something that the government agrees with.
[English]
The Chairman: Is there any discussion on this amendment? Do you want a recorded vote on it?
[Translation]
Ms Lalonde: Yes.
Mr. Ménard: Yes.
.1015
[English]
Amendment negatived [See Minutes of Proceedings]
The Chairman: We'll move now to the next amendment.
[Translation]
Mr. Ménard: I believe that this matter was particularly clear in the Sims Report, and it has remained clear to this day. According to the representations we've had, in the past, the people appointed to the former Labour Relations Board did not necessarily possess the expertise needed in the field of industrial relations. This is precisely what this amendment is trying to correct.
It is a preliminary amendment, Mr. Chairman. We apologize for the slight confusion. With your permission, my colleague will table the amendment.
An honourable member: Do we have it?
Mr. Ménard: I thought it had been circulated.
Ms Lalonde: I hope so, it's the most important one.
[English]
The Chairman: Which amendment are you referring to? Is it BQ-2?
Mr. Proud: Are you talking about what's after line 35?
[Translation]
Ms Lalonde: I shall read it.
Subsection 10(2) should read as follows:
(2) Subject to subsection (3), the members of the Board other than the Chairperson and the Vice-Chairpersons are to be appointed by the Minister from a list of candidates submitted by the party.
[English]
The Chairman: Okay, we have a challenge here. Nobody has that.
[Translation]
Mr. Ménard: We are sending it over; we are going to table it immediately, this will take30 seconds.
[English]
Mr. Proud: Which one is it?
[Translation]
Ms Lalonde: We are talking about subsection 10(2).
[English]
It is on page 2.
Mr. Proud: What does it say?
Mrs. Lalonde: It says that...
[Translation]
I will read it in English.
[English]
- (2) Subject to subsection (3), the members of the Board other than the Chairperson and the
Vice-Chairpersons are to be appointed by the Minister from a list of candidates submitted by
the parties.
The Chairman: We don't have that. We'll have to suspend the meeting.
The reason we sometimes ask for amendments to be brought forward in an orderly fashion is to precisely avoid this type of delay. We waited for 45 minutes, but we'll take another 5- to 10-minute break. Please keep in mind, though, that we're trying to do clause-by-clause.
[Translation]
Ms Lalonde: Mr. Chairman, you know that we have enlisted the aid of the legal advisors. We've had a meeting on the amendments on Tuesday, but there are only three legal advisors, and since it is the end of the session, they are overwhelmed with work. It seems that other bills took priority over ours. It is only this morning that we were able to proofread the amendments and we had to make corrections by hand. This is our explanation.
[English]
The Chairman: No, this applies to everybody equally. It's for anybody else who has...
Mrs. Lalonde: Okay.
The Chairman: You obviously have a copy. The only problem is that we don't have a copy. The work has been done.
Mr. Byrne (Humber - St. Barbe - Baie Verte): To reiterate that point, the drafters were tied up on the copyright legislation for quite some time, so it has been very difficult for all of us to proceed with legislative drafting.
The Chairman: The meeting is suspended.
.1019
.1030
The Chairman: We now have a guarantee from Mr. Ménard that we will continue without interruption.
We will move to Bloc Québécois amendment BQ1-A, as stated by Madame Lalonde, who will explain to us the impact of this amendment.
[Translation]
Ms Lalonde: Thank you. I will speak slowly. The government's objective is to create a representative board. Pursuant to paragraph 9(2)(c) and 9(2)(d), there would be three full-time members representing the employees and three full-time members representing the employers, as well as an equal number of part-time members representing the employees and their employers.
It would be hard to maintain that members are representing parties if they are not appointed from a list submitted by the parties. It is one of two things: either there is a list and the members are representatives, or there is no list, and you can erase the qualifier "representative" when speaking of the board. This is all very straightforward, very clear, and totally in the spirit of industrial relations and also the spirit with which the minister wanted to imbue this reform.
The CLC submitted several amendments concerning the composition of the board, and we could have submitted the same amendments. To us, the most important thing is the list as well as professional qualifications, and we will come back to this later.
Let us not forget that the present subsection 10(2) states that there is to be consultation by the minister with the employees or employers that the minister considers appropriate. The minister shall ask the organizations to submit lists, and it is from these lists that he will select the members. This is the only way for him to create a representative board. Otherwise, I believe that he will encounter problems. If you really want the board to be representative, you should agree with this.
It seems to me that there is really nothing to prevent my colleagues opposite from voting in favour of this amendment. On the other hand, there are very good reasons for not keeping the present wording. There is nothing to be gained, neither for the employers nor for the workers. On the contrary, if members were to be selected from sources other than these lists, there could come a time in the future when the legitimacy and the representativity of the board could be put in doubt.
The minister could ask us to trust him, tell us that he is a good guy and that he will appoint the people suggested by the unions and the employers, but I would remind you that we are working on a labour code that will still exist when the present minister is no longer here, indeed, I hope, when the present government is no longer here.
Therefore, we're working on the labour code, and this code should be very straightforward. Once again, if you want a representative board, you will have to do what is needed to make it so. Otherwise, we may as well strike out the qualifier "representative". Thank you, Mr. Chairman.
.1035
I would like your support, or at least your opinion. I could even ask the Assistant Deputy Minister for his opinion. In any case, I would appreciate the support of Mr. Proud.
It seems to me that this first amendment would be a good indication of the type of work that can be done in this committee.
[English]
The Chairman: Does Mr. Proud have anything to say?
Mr. Proud: Mr. Chairman, I would be very disappointed if the lists of names coming from the unions and from the employers' organizations were not lists of people who would be capable of doing the job we are expecting them to do on the Canada Industrial Relations Board.
I hate to say that I couldn't go along with this, because you're asking in your first amendment that the standing committee pick these people. Until such time as the rules in the House of Commons are changed so that this would become effective, that isn't the way it will be. I can't believe,Mr. Chairman, that the hon. member would think that lists sent forward by organizations would not contain very capable people. I can't go along with this for that reason.
The Chairman: Madame Lalonde.
[Translation]
Ms Lalonde: Mr. Proud, I may have misunderstood you, or else, I have not made myself understood. Right now, the minister consults and appoints whoever he likes. He is not required to follow the recommendations from the unions or employers organizations. If he believes that the people that were recommended are not qualified, and if he decides to appoint someone else, he will have a board, but it will be a board that can hardly be considered representative. This is the way I see things. What we all want is a representative board.
In a parliamentary democracy, in a union-based democracy, and in a representation-based democracy, the organizations appoint their representative, no one else does. These organizations can chose people that are considered less qualified, but the same can be said of government. Our elected representatives are sometimes not as qualified as we would like them to be, but it cannot be said that they are not representative. Therefore, you have to respect this rule all the way.
[English]
The Chairman: I don't see anybody else who wants to jump into this debate.
Shall the amendment carry?
[Translation]
Ms Lalonde: We would like a recorded vote. This is going to say a lot on the type of work.
Mr. Ménard: We are not about to forget; we have a very long memory. We will name names.
[English]
Amendment negatived [See Minutes of Proceedings]
[Translation]
Mr. Ménard: You are quite certain, Mr. Chairman, that your count is accurate?
[English]
The Chairman: Yes. As a matter of fact, I don't think it was even very close.
Now we'll move to the Bloc Québécois for number 2, I believe.
[Translation]
Mr. Ménard: This is something that has been requested by the unions as well as the employer organizations; we want to make sure that the people appointed are professionals qualified in labour relations. I can't even imagine that the government would be so bold as to go against this amendment. If this were to be the case, the public hearing process has been totally meaningless.
[English]
The Chairman: Those are the comments. Seeing that no one wants to debate, shall this amendment carry?
[Translation]
Mr. Ménard: Certainly we will vote, Mr. Chairman.
[English]
The Chairman: Do you want a recorded vote on this? Is that what you're saying?
.1040
[Translation]
Mr. Ménard: Yes.
[English]
Amendment negatived [See Minutes of Proceedings]
The Chairman: We have an amendment from the government, G-1. You all have these amendments.
Mr. Proud: I move that Bill C-66, in clause 2, be amended by replacing lines 39 and 40 on page 4 with the following:
``concerning the making of regulations''.
This amendment will remove any potential conflict between this section and the powers of the chair as described in proposed subsection 12.01(1) over the management of the board's internal affairs. Both labour and management asked that the powers of the chair as chief executive officer of the board be clarified in the statute. The lack of clarity in the current code has contributed to internal problems in the board. This is why we put this in.
[Translation]
Ms Lalonde: The amendment.
Mr. Ménard: Could you be more explicit?
[English]
The Chairman: Can you expand on that, Mr. Proud or Mr. McDermott?
Mr. McDermott: Yes, Mr. Chairman. The purpose of this amendment is to take care of past situations where the chairman's authority was questioned. The code presently indicates that the chair is chief executive officer. It stops just there and does not detail the powers. Some members of the committee may recall that there were difficulties at the Canada Labour Relations Board because of disputes as to exactly what the powers of the chair were.
When this bill was drafted, the full powers were given to the chairman to act as CEO and other specific powers were detailed. It became clear at one point after the bill was drafted that there could be a conflict between proposed paragraph 12.01(i)(e), where the chairperson is given direction over the work of the board, including ``the management of the Board's internal affairs'', and having it seen that the management of the board's internal affairs was then subject to committee. What is subject to committee is the making of regulations. The board must convene, and it would normally be a plenary session with regulations.
The management of the board's internal affairs is the responsibility of the chief executive office, obviously in consultation. I would assume any chief executive officer would do that. But to avoid the kinds of situations we had in the past, the proposal is to remove that. The proposal I see here on the amendment would make it clear that the CEO has the power to take charge of the day-to-day internal management of the board, to issue instructions in that respect and to formulate policies.
The Chairman: Thank you. We have some questions. First, Mr. Johnston, followed by Mrs. Lalonde.
Mr. Johnston: Thank you, Mr. Chairman. I would like the wording of the clause as amended, please.
Mr. McDermott: The way it would read is:
- 12.02(1) The Chairperson convenes and presides over any meeting of the Board concerning the
making of regulations under section 15.
The Chairman: Madame Lalonde.
[Translation]
Ms Lalonde: What would be the wording in French?
Mr. McDermott: We would say:
12.02 (1) The Chairperson convenes and presides over any meeting of the Board concerning the making of regulations under section 15.
Ms Lalonde: And why would you strike out "the management of the Board's internal affairs"?
Mr. McDermott: Because paragraph 12.01(1)e) already mentions that the management of the board's internal affairs is among the duties of the Chairperson.
.1045
We're therefore avoiding a conflict between this clause and the preceding one, and avoiding the type of problems that we have had with the board.
Ms Lalonde: Mr. Chairman, I'm glad that I understand, because I'm going to vote against it.
It so happens that like you, Mr. McDermott, I know full well what transpired in that board. In saying that the board will not be in control of its own affairs, but that it will be the sole responsibility of the Chairperson, you are paving the way for some very difficult times. You are saying that you want a representative board, but that it should not be appointed by the parties. At the same time, you want this chairperson to oversee the management of the board's internal affairs. This is nonsense. Tell us what happened in the board over the last three years. Total madness. This board was the laughing stock of everyone in labour relations.
The problem did not originate with the board, but with the chairperson. If the board had been unable to manage its own affairs, where would we be today? I am totally astonished. To me, this makes no sense whatsoever.
On the one hand, you want to appoint a representative board, but in the same breath, you say that the chairperson is going to determine the internal affairs of the board! No wonder you don't want to appoint them from a list. I wish the minister were here with all his good intentions. What do we have here? I also wish there were people from the media here. For God's sake! A labour relations board whose chairperson oversees its internal affairs... There are limits. Mr. Proud.
[English]
Mr. Proud: Well, I -
The Chairman: Mr. Proud, before I recognize you, I have to recognize Mr. Ménard.
[Translation]
Mr. Ménard: I have to support what my colleague has just said, and I believe that some sharing of information is necessary. Ms Lalonde may not be privy to the same information. The Deputy Minister could confirm that in the past there has been some very serious internal tensions. Would he also enlighten us and tell us that if this committee went along with the government on this amendment, we would pave the way for some very troubled times by depriving the board of its right to supervise its own internal affairs. Do you at least share our opinion, that of Ms Lalonde and myself?
Mr. McDermott: I have already said at the beginning that in the past, there were some very serious problems. I am well aware of this. This clause is an attempt at avoiding this type of problem and the dead end in which the board found itself when the Chairperson, a few other people and one particular member of the Board were unable to agree.
The intent of the present code was that the chairperson and the chief executive officer would be the same person. But in practice, following some court rulings concerning the statute, the code was interpreted in such a way that the chairperson no longer had these powers. We have attempted to make this clear. I'm here to give you explanations, and this is the reasoning behind this clause. The merits are obvious. I can but explain the reasoning behind these provisions.
[English]
The Chairman: I have Madame Lalonde first.
Go ahead.
[Translation]
Ms Lalonde: I did hear Mr. McDermott say that it was agreed that but the chairperson could not decide alone on the internal affairs of the board. With this, you're changing the very nature of the board; you want this board to be representative, and you want the parties to have a say in managing it. But at the same time, you are taking away from these representative parties, whom you want to be responsible, any input in the management of internal affairs. Considering the information you have given us, for you to be consistent, the parties should be responsible, employers as well as the unions. Otherwise, you should not be changing the nature of the board. You say you want to make it more important, to give the board more responsibilities, but at the same time, you have such confidence in the based that its internal affairs will be managed exclusively by the chairperson. It is totally inconsistent.
Mr. McDermott: No.
Ms Lalonde: But yes, this is what is being said.
.1050
[English]
Mr. McDermott: Mr. Chairman, I don't think it prevents the chair from consulting his colleagues on the board, and in the normal course of affairs that would happen. But the kind of situation we had at the board, where the work of the board was blocked, was not one that was really acceptable for the parties. That's the reason this kind of amendment is being proposed, so that in future, if those unfortunate circumstances were to arise again, at least the work of the board would not be blocked.
The Chairman: Seeing no further debate, shall G-1 be adopted?
[Translation]
Mr. Ménard: Mr. Chairman, I have a suggestion. Considering the matter raised by my colleague, could we stand this clause in order to make some inquiries on the basis of the information we do have? The members of the committee should be aware that if we pass this clause, we are paving the way for some very difficult times. Moreover, it goes against the very spirit of the bill.
We should avoid excessive haste because this could be detrimental to the hearing process and the management of the board.
Mr. Chairman, are well aware that we have been very close to a meltdown. In the past, we've had some very serious internal tensions.
[English]
The Chairman: The officials are here and have responded to your question vis-à-vis points of clarification. You may not be satisfied with the way the point has been clarified, but these are the people who would clarify that point for the committee. Of course, the parliamentary secretary to the Minister of Labour may also, from time to time, intervene to clarify some of the points - and so, for that matter, may any member of the committee.
Now, we were voting, and the question was, can we adopt G-1?
Mrs. Lalonde: Non.
The Chairman: On division?
[Translation]
Mr. Ménard: No.
Ms Lalonde: No, no. Let's vote, please.
The Chairman: A recorded vote?
Ms Lalonde: Yes, sir.
[English]
The Chairman: Okay.
Amendment agreed to [See Minutes of Proceedings]
[Translation]
Mr. Ménard: We're not doing a recount?
[English]
The Chairman: It's an absolute majority.
We'll now move to the Bloc Québécois amendment number 3.
[Translation]
Mr. Ménard: Mr. Chairman, we are not giving up easily, and should the chairperson be unable to assume his responsibilities, should it become necessary to appoint someone to replace him, we think this should not be the exclusive privilege of the minister. On the contrary, that person should be elected by a majority of the members of the board. This is the purport of our amendment.
We are nothing if not consistent, Mr. Chairman.
[English]
The Chairman: It's self-explanatory.
Any debate or discussion?
[Translation]
Ms Lalonde.
Ms Lalonde: Considering what we've heard, the minister should not be the one to appoint a vice-chairperson.
[English]
The Chairman: That's what Mr. Ménard said, right? You agree with him.
[Translation]
Ms Lalonde: But yes, we do work together.
[English]
The Chairman: When we move these motions, I'd like to make the point that repetition is great, but it's not necessary. If the things are self-explanatory...if you want to repeat the same point, sometimes that's fine, but you're doing it at the expense of perhaps raising some more relevant points as we proceed on the clause-by-clause.
Anyway, now we go to the vote.
[Translation]
Ms Lalonde: Mr. Chairman, we are beginning our committee work and I have to say that I am very disappointed with this attitude. I had thought that we would work seriously, that there would be good working relations between us. We have not had a genuine second reading, and I have to repeat, Mr. McCormick, that I am very disappointed.
.1055
[English]
The Chairman: I agree.
[Translation]
Ms Lalonde: From the beginning I have been very disappointed with your attitude, and if I want to repeat the same arguments four times over, you will not get me to shut up.
Mr. Chairman, I thank you for your invitation, but considering how this whole thing started, it does not bode well for the future. Thank you.
Mr. Ménard: Mr. Chairman, I wish to add that the member for Mercier has a great deal of experience in the field of labour relations and she should be an inspiration to yourself and to the committee. Mr. Chairman, you will be hard pressed to find people who are as qualified as the member from Mercier.
[English]
The Chairman: Mr. Ménard, there is no question about the fact that we respect Madame Lalonde's point of view on most issues. The point is that we have work to do here, and we need to move forward to vote on the Bloc Québécois amendment 3.
Amendment negatived [See Minutes of Proceedings]
The Chairman: We now move to Bloc Québécois amendment 4. Mr. Ménard.
[Translation]
Mr. Ménard: I believe this is based on the same reasoning. In case of dismissal, when the board has to make such important decisions, a committee of the House of Commons, this committee, should be involved.
The Official Opposition, as always, is driven by the logic of transparency and openness.
[English]
Amendment negatived on division [See Minutes of Proceedings]
The Chairman: Now we move to Bloc Québécois amendment 5.
[Translation]
Mr. Ménard: It's the same reasoning, Mr. Chairman.
[English]
Amendment negatived on division [See Minutes of Proceedings]
The Chairman: Madame Lalonde.
[Translation]
Ms Lalonde: I have a question for Mr. McDermott. Clause 12.06 and following contains a process that is very similar to Bill C-49 as a whole. Why is the process different for the Industrial Relations Board? Why did you single out a board which, interestingly enough, is the Industrial Relations Board, the one that will be in charge of harmonizing labour relations throughout Canada? Why would you put in place a different process when there are no differences, and why don't we simply refer to Bill C-49? Why is it singled out?
Moreover, there is nothing about the chairperson. May I remind you that in the previous board, the problems originated with the chairperson.
Mr. McDermott: The reason, I believe, is that Parliament has not yet passed Bill C-49. We are repeating the exact wording of Bill C-49, and whichever is passed first will take precedence. I have been told that the wording is identical, is it not, Ms Tremblay?
[English]
The Chairman: Is there any further discussion? Shall BQ-5 be adopted?
[Translation]
Ms Lalonde: You did not answer my question concerning the chairperson. The chairperson was the problem. There is a process for all the members, but nothing for the chairperson.
.1100
Mr. McDermott: These provisions are intended for all the federal panels, and as such, they contain provisions for the members and the vice-chairpersons. For the chairpersons, I believe there is something else.
Yvonne, could you elaborate? What is the process set out by Bill C-49 as far as panel chairpersons are concerned?
Ms Yvonne Beaupré (Senior Counsel, Legal Services, Department of Human Resources Development): There are no special provisions for the chairperson in Bill C-49. In that case, the general process, with a small modification, prevails, or else, the current process, which is non statutory.
Ms Lalonde: I don't remember everything about Bill C-49, but from what I remember, it did not deal with the chairperson, but only with the members.
Ms Beaupré: According to this, the chairperson is the only one who can initiate the process.
Ms Lalonde: Therefore, the chairperson is the one who has to straighten out his or her own board. But what happens when it is he or she that is the source of the problem?
Ms Beaupré: If the chairperson is the problem, Bill C-49 can be adjusted.
Ms Lalonde: Yes, but in this case, it cannot be adjusted. And if the government reacts to the amendments the way it is reacting now, nothing much will be adjusted.
I'm sorry, but this makes me mad.
Ms Johane Tremblay (Project Officer, Legislative Review, Department of Human Resources Development): The process for appointing chairpersons is different in Bill C-49. It applies only to a number of panels where the chairpersons will be selected among the members of the panels. The procedure is as follows: when the conduct of the chairperson is questioned, he or she will be discharged as chairperson and will become a member. From that moment on, the procedure applies.
Ms Lalonde: But it is not written anywhere.
Ms Tremblay: No. This is a whole in terms of disciplinary measures. That act forms a whole that aims at rationalizing the appointment process for the members of those panels. For now, the chairperson of that board is appointed during good behaviour and can only be removed for cause.
That will always be the case when one is removed for cause, for the same reasons as indicated, except for the fact that in the established procedure, which is a procedure of investigation and equity for the member whose behaviour comes under scrutiny, the chairperson of the board will not benefit from the statutory protection of that investigation. However, that does not mean that an investigation will not be carried out according to that same procedure.
Mr. Ménard: The procedure can be requested by the Treasury Board?
Ms Tremblay: It is the minister that has to do it.
Mr. Ménard: The minister responsible for the panel can apply for an exceptional procedure to remove someone. The removal involves in the first instance becoming a member and stepping down from the chairmanship.
Ms Tremblay: For those panels where the chairperson is selected amongst the members. But that appointment procedure cannot apply in the case of a representative board. The chairperson cannot be selected amongst representative members. That is why that procedure will be different for the chairperson. The chairperson could be removed for cause, for the reasons already mentioned, but according to a procedure that would not be identical to the one that is there.
Ms Lalonde: But it is not there. That is the problem I am having with this.
Ms Tremblay: Are you talking about the procedure?
Ms Lalonde: Yes, for the chairperson. You said that given the fact that this is a representative board, the chairperson is not a member.
Ms Tremblay: That is right. The procedure is mandatory for members, but as for the chairperson, the minister would have the discretionary power to apply that procedure. But the chairperson is subjected to the same rules of conduct and can be removed for the very same reasons that are mentioned and that apply to other members. The chairperson does not benefit from a special treatment in terms of reasons for removal. One can presume that...
Ms Lalonde: There. You see my problem. You just said: "One can presume that...
.1105
In legislative matters, you do not want to presume, especially when you are at the drafting stage.
Ms Tremblay: That is for sure. That is exactly what is happening with Bill C-49 that is under review. I suppose that representations are being made given the fact that the board is not the only panel. So the chairperson cannot be chosen among members given their very special status. However, the chairperson could undergo an investigation, just as the other members.
Mr. Ménard: You know that we made tremendous efforts to improving Bill C-49 with the help of our colleague, the member for La Prairie. But are we to understand that under the specific circumstances mentioned by Ms Lalonde, the only person allowed to remove the chairperson would be the minister? The procedure is triggered by the minister?
Ms Tremblay: No, no. It is the minister who opens the procedure, at the request of the chairperson, for the other members of the board. The minister could also open an investigation procedure at the request of any member who reported a problem. He would assess the situation and decide if there are grounds for investigating the alleged behaviour and for seeking removal of the chairperson. It certainly is not the chairperson who would submit that to the minister.
Mr. Ménard: Integrity is such an important matter that we have to be able to rely on clear mechanisms.
Ms Tremblay: I think it would be wise to add it, because this is a process that provides for the integrity of the members.
Ms Lalonde: But not that of the Chairperson.
Ms Tremblay: The Chairperson as well.
Ms Lalonde: You are presuming something. The blues will show that you are presuming.
Mr. Ménard: Do you agree with this interpretation, Mr. Proud?
[English]
Mr. Proud: I agree with the explanation, yes.
The Chairman: In case you forgot, I'm still here.
[Translation]
Mr. Ménard: I am always trying to find the time to talk to you, Mr. Chairman, but you should be trying to find the time to listen to me, Mr. Chairman. We are in favour of the amendment, Mr. Chairman.
[English]
The Chairman: Okay, wonderful.
Seeing there's no further debate, we are ready for the question. Shall amendment B-5 carry?
Amendment negatived on division [See Minutes of Proceedings]
The Chairman: I believe the next one would be G-2, Mr. Proud.
Mr. Proud: I'll defer to my colleague, Madame Terrana, who's much more fluent in French than I am.
[Translation]
Ms Terrana (Vancouver East): Mr. Chairman, I would like to move that Bill C-66, in clause 2, be amended by replacing, in the French version, lines 13 and 14 on page 9 with the following:
- applicable à la présentation d'une demande;
- This amendment will rectify the inconsistency between the words "instituting a proceeding",
found in paragraph 14(3)(d), and the French version of the same expression used in paragraph
16m.1), in sub-section 5(4), lines 45 and 46, on page 11. The terminology used in the latter
provision is more accurate.
The Chairman: It's self-explanatory, I gather.
[Translation]
Ms Lalonde: I would like to know what this means and the reason for this amendment.
Mr. McDermott: This is a correction that has been made in the French version to ensure that it corresponds with the English version and also with the French version in a subsequent paragraph.
I will ask Ms Robinson to explain this to us.
Ms Debra Robinson (Project Director, Legislative Review, Department of Human Resources): On page 9, in paragraph d), reference is made to "une demande de prorogation de délai applicable à l'introduction d'une procédure". In the English version, we talk about "a request for an extension of time for instituting a proceeding".
If you read further on, on page 11, just at the bottom of the page, in paragraph m.1) you can see that we use exactly the same expression in English: "to extend the time limits set out in this Part for instituting a proceeding"; and in the French version, reference is made to "délais fixés pour la présentation d'une demande".
.1110
We want to use the same expression in both provisions. We feel that it is preferable to use, in the French version, "la présentation d'une demande" rather than "l'introduction d'une procédure" to translate "instituting a proceeding" in English. This is a purely technical question.
Ms Lalonde: Why did you not keep the word "procedure" in both cases? Why did you keep the word "demande"? Is the word "demande" really synonymous of "proceeding"? A "procédure" and a "demande" are not the same thing.
Ms Robinson: When you present a "demande", you are in fact instituting a proceeding. "Instituting a proceeding" means that you are in fact tabling a "demande". This is how a proceeding is begun. You begin by applying to the Board. This does not change the meaning of the provision.
Ms Lalonde: I understand, but I would like to know why you have kept the word "demande" instead of keeping the word "procédure".
Ms Robinson: The drafters felt that "la présentation d'une demande" was more proper in French than "l'introduction d'une procédure".
Ms Lalonde: However, I have not often come across the word "demande" in labour relations, whereas I have often seen "procédure".
Ms Robinson: In the Board regulations, reference is made to a "dépôt d'une demande au Conseil".
Mr. McDermott: For instance, a "demande d'accréditation".
Ms Robinson: Yes.
Ms Lalonde: A "demande de conciliation".
Ms Robinson: This is found throughout the Code. Each time, reference is made to "sur demande de l'employeur ou d'un agent négociateur". That's the reference.
Ms Lalonde: And in English, does that refer to "proceeding"?
[English]
Ms Robinson: ``Application by an employer''.
[Translation]
Ms Lalonde: "Application". "Demande", this is "application"; this is not a "proceeding". Therefore, there is a problem.
[English]
The Chairman: Is there any further discussion?
Madame Lalonde, are you satisfied with the information?
[Translation]
Ms Lalonde: I am not trying to delay our business, however, a code is something that is interpreted by the courts and may even wind up before the Supreme Court. Therefore, the words are important.
[English]
The Chairman: Yes, absolutely, and we'll take the time necessary to deal with these issues.
[Translation]
Ms Lalonde: We can set that aside until we find a more appropriate word. But I just want to make sure that we are talking about the same things in English as they are in French, because as far as I am concerned, the word "proceeding" does not translate "demande". It may correspond to "request" perhaps, but not to "proceeding", which is rather a "procédure" in French. However, we can set this aside and come back to it later on. It doesn't matter to me, Mr. Chairman.
Mr. McDermott: The legal advisors and legal drafting officers advised us to do this, however we can start over if that is necessary.
[English]
The Chairman: Thank you for bringing that up, Mr. McDermott.
[Translation]
Ms Lalonde: Legal drafting officers from the Department of Labour are those making the amendments?
Mr. McDermott: The drafting officers from the Department of Labour as well.
.1115
Mr. Ménard: The expression "procédure préliminaire" has not been changed, for example, in e). I think that we have to use the best expression.
Ms Lalonde: At any rate, this will remain in the "blues".
[English]
The Chairman: Do any of the officials have anything to add in reference to this point?
Mr. McDermott: Just in connection with the preliminary proceeding - that can be something quite different from making a request or putting an application before the board. That could be a request, for example, for a pre-hearing discussion or debate. So there are different... The onesMr. Ménard just mentioned to us - there are some differences in what a proceeding is, in that case. It is not necessarily an application, whereas what we're talking about is when an application is made.
The Chairman: Okay.
Any further debate or questions? Shall amendment G-2 carry?
Amendment agreed to on division [See Minutes of Proceedings]
Shall clause 2 carry as amended?
[Translation]
Ms Lalonde: No, we voted against this.
[English]
The Chairman: Okay, on division.
Clause 2 as amended agreed to on division
The Chairman: Yes, Mr. Johnston?
Mr. Johnston: Mr. Chairman, before we leave clause 2, I wonder if I could ask for a bit of clarification on proposed subsection 12.02(3).
The Chairman: Is this simply a point of clarification? The vote has already been taken on this clause.
Mr. Johnston: It is simply a point of clarification. It has to do with the chairman's ability, if he finds that he has uneven numbers of committee people, to say there will be equal numbers and that he designates who will vote and who won't vote. Is there any method by which he determines this?
Mr. McDermott: This would be at the meeting where regulations were being considered - the board can adopt its own regulations in certain areas. It would simply be at the chairman's discretion to name who will vote in the event that there's an unequal representation at the meeting of the representative members. For example, if there are three union people and two employer people or vice versa, clearly only two of each can vote so that the numbers are equal. It would be up to the chairman to decide.
Mr. Johnston: So it's strictly his prerogative. Thank you. That was strictly for clarification.
On clause 3
[Translation]
Mr. Ménard: Madam Chair, could you explain this to us quickly?
Ms Lalonde: We voted against clause 2.
Mr. Ménard: Yes, we are against this. The vote has already taken place.
We introduced three amendments. We view this as a very important clause. I think that we should perhaps be consistent and ask for a vote. We do, after all, represent people.
[English]
Mr. Proud: It passed already.
The Vice-Chair (Ms Augustine): Oh, that's good.
[Translation]
Mr. Ménard: Mr. Proud, you are not following. You are getting a bit ahead of where we are. Slow down.
[English]
Mr. Proud: Yes.
The Vice-Chair (Ms Augustine): Have we started on clause 3?
Mr. Proud: Which clause are you're talking about? Clause 2 was passed on division. Now we're on clause 3.
.1120
[Translation]
Mr. Ménard: Could we have a clear explanation as to the spirit of the provision?
[English]
Mr. McDermott: Clause 3 deals with section 15 of the code and the regulation-making powers of the board. Clause 3 will add some additional powers for regulations.
For example, there will be rules of procedure for pre-hearing proceedings and hearings. Now, the pre-hearing proceedings is something that came out of the consensus exercise. Labour and management felt there would be, in some cases, benefit in having pre-hearing proceedings. The board will be able to make regulations on how they are conducted and how a request for a pre-hearing proceeding could be made. That's one example.
Using another example, in there they will have the regulation-making power to use electronic means of communication - videoconferences, telephone conferences, those kinds of things - that are not explicit in the regulations at the moment. It would give the board the power to make regulations covering that kind of hearing. So it is procedural for the most part.
[Translation]
Ms Lalonde: What is the status of the case law on this?
Mr. McDermott: With respect to teleconferences? It is accepted now. I could ask our legal advisor, Ms Beaupré to answer this question. It's accepted, but it is not in all legislation.
It is becoming the norm, but it is always possible that someone may challenge the use of videoconferences. It's a very useful tool in a country as big as Canada in that it allows us to save time and money. Yvonne, do you wish to add anything?
Ms Lalonde: Could we go as far as holding hearings by videoconference?
Mr. McDermott: Yes, of course.
Ms Lalonde: Doesn't that present a major problem? When there are serious problems, when the two parties are appearing before the Board, it may encourage them to meet outside of court in order to make the resolution easier. If this were to be done through a videoconference, it would not be as expensive, but the conflict may go on longer.
Mr. McDermott: Yes, that is true. This does not mean that all hearings will be held via a teleconference. This would only be in case where this would suit both the Board and the parties.
I think that quite a few law courts currently use this means of communication. I am not certain, but I believe that even the Supreme Court has used this means on occasion. But this doesn't occur all the time.
Ms Lalonde: Will this be decided by the Chairman, by the Board or by the bench?
Mr. McDermott: The Board will make this decision, because it is stipulated that the chairman can hold meetings dealing with the adoption of regulations. The chair chairs, but the members are there as well. Consequently, this is a decision that is made amongst themselves.
[English]
The Chairman: Thank you, Madame Lalonde.
Mr. Johnston.
Mr. Johnston: On a point of clarification, Mr. Chairman, proposed paragraph 15(o.1) of the bill reads:
- (o.1) the conditions for valid strike or lockout votes
- This point seems to be kind of out of place in all this. All the other points are dealing with the
board and the establishment of processes for the hearings and telecommunication and
pre-hearing conferences and so forth.
Mr. McDermott: The requirement for a strike vote or lockout vote is in the code, as you know, further on. The regulation-making power is merely to enable the board to describe the modalities.
I gather this is done in Alberta as well, in their statutes. It simply requires a secret ballot. It doesn't say in the statute exactly how. It leaves it to the board to determine how it will be done and to make regulations.
.1125
That seems to be the most practical way, because different-sized bargaining units and so on may require a different way of carrying out the vote. But it is for the board to determine, by its regulation-making authority, how the vote will be taken and put into effect.
Also, the board is the tribunal that will hear any allegations that the vote contained irregularities and so on. It's in that sense that they need to have regulation-making power.
Mr. Johnston: Okay, good. Thanks.
The Chairman: Madame Lalonde.
[Translation]
Ms Lalonde: What does proposed paragraph 15(p) mean?
(p) the authority of any person to act on behalf of the Board and the matters and things to be done and the action to be taken by that person, including the authority of an employee of the Board to make decisions on uncontested applications or questions;
It's not clear.
Mr. McDermott: It is simply to make it easier to deal quickly with things that are not being contested. It is clear that the Board may, for instance, delegate the matter to a regional clerk.
Ms Lalonde: Like in Quebec, there are some issues that may be resolved by...
Mr. McDermott: The Commissioner.
Ms Lalonde: ... the certification officer instead of the Commissioner.
Mr. McDermott: That's right.
Ms Lalonde: All right.
[English]
The Chairman: Is that okay, Madame Lalonde?
Are there any further questions or debate?
Clause 3 agreed to
On clause 4
The Chairman: Is there any discussion on clause 4?
Madame Lalonde.
[Translation]
Mr. Ménard: Could we agree to having a brief presentation on each clause so that we can ensure that we are interpreting it the same way? You would not want us to vote on something that we do not understand.
[English]
The Chairman: Oh, absolutely.
We all received this book, right?
[Translation]
Mr. Ménard: Yes, I know, but since the Assistant Deputy Minister is with us...
[English]
The Chairman: Well, it's probably the same content.
Would I be mistaken, Mr. McDermott?
Mr. McDermott: No. I would essentially read the note, since either I or my colleagues prepared it.
The Chairman: Okay.
We could engage in this, Mr. Ménard. We can read all these things together, if you'd like.
[Translation]
Mr. Ménard: I thought that the Assistant Deputy Minister showed some signs of originality at times, but we must not hold that against him, Mr. Chairman. Everyone knows that you are the original one.
[English]
The Chairman: Mr. McDermott, can you put a different spin on what you've already written?
[Translation]
Mr. McDermott: No, I think that I will stick to what I've already said. I have no originality here.
[English]
The Chairman: Okay.
Is there any further debate on clause 4?
Clause 4 agreed to
On clause 5
The Chairman: My understanding is that there is an amendment to clause 5, G-3.
[Translation]
Ms Lalonde: I have a question to start with.
[English]
The Chairman: Would you like to deal first with your question and then we'll move to the amendment? Okay, Madame Lalonde.
[Translation]
Ms Lalonde: It's about the Supreme Court decision pertaining to the Québécair case. Could you refresh our memory about this case, very briefly, because you have an amendment on it?
Mr. McDermott: The courts were dealing with the case pertaining to Québécair. The Board requested that the employer, Québécair, produced documents, but Québécair refused. The matter therefore went before the Federal Court or even the Supreme Court, I believe. The Supreme Court said that the Code, as it was drafted at that time, did not authorize the Board to request the documents without having held...
.1130
Ms Lalonde: Audi alteram partem?
Mr. McDermott: Pardon me?
Ms Lalonde: Without having heard the parties?
Mr. McDermott: Without having held a verbal hearing. This takes a great deal of time and, in order to make things easier, we are giving the direct authority to the Board to request documents.
The purpose of the amendment is to ensure that the parties can make representations if the Board requests documents.
On our opinion, this already existed, but I believe that last week at least two witnesses spoke about possible problems in that area. This was to respond to the concerns raised by these witnesses.
Ms Lalonde: When you say: "To compel, at any stage of a proceeding, any person", does that include corporations such as businesses?
Mr. McDermott: Yes.
Ms Lalonde: Thank you.
[English]
The Chairman: Madame Lalonde, is it okay if we now go with the amendments?
[Translation]
Ms Lalonde: That's fine. It's your amendment.
[English]
Mr. Proud: Amendment G-3.
The Chairman: Who's moving that?
Mr. Proud: I did. It says that clause 5 be amended by replacing line 21 on page 11 with the following:
- relevant to a matter before it, after providing the parties the opportunity to make
representations;
The Chairman: Okay. Is that self-explanatory, Madame Lalonde, Mr. Ménard, Mr. Johnston? Can we vote on that now?
Amendment agreed to
[Translation]
Ms Lalonde: You will notice that when amendments make good sense, the Official Opposition agrees with them. We would really like it if the government would do as much.
[English]
The Chairman: I'm not surprised.
Clause 5 as amended agreed to
On clause 6
The Chairman: There are no amendments, apparently, for this one.
[Translation]
Ms Lalonde: I believe that, today, they're compelled to hear the parties when a request has been made. They can refuse.
[English]
The Chairman: Shall clause 6 carry?
[Translation]
Ms Lalonde: One moment, I have questions about clause 6.
[English]
The Chairman: Okay. Go ahead.
[Translation]
Ms Lalonde: Right now, the Board can make a decision without holding a hearing in only two cases, namely, decisions with respect to the right to representation and things pertaining to stevedoring.
[English]
The Chairman: Un moment. Are you still on clause 5?
Mrs. Lalonde: No, clause 6.
The Chairman: Clause 6? Okay, go ahead. Sorry.
[Translation]
Ms Lalonde: When you decided to do that, did you evaluate what impact this would have on the regulations, on out of court settlements? In labour relations, hearings are recognized as something which could promote settlements.
.1135
Considering the costs, if you were to limit the hearings instead of improving the chances for an out of court settlement, you would make them more difficult, because it is good to bring the parties face to face.
Mr. McDermott: Yes, it's good to do this. But nothing in this amendment says that we cannot hold hearings. At present, the Code is very demanding when it comes to hearings. There are only a few exceptions where they are not compelled to hold hearings in person. There are all kinds of things that can be resolved through documents, through discussions.
Consequently, this gives the Board some flexibility. The parties can always request hearings and the Board is always compelled to consider the rules of natural justice such as, for instance, the parties' right to be heard. We are simply updating the Board's practices. To make things easier, to accelerate things, it is not at times necessary to hold hearings. The Code, however, requires that such hearings be held very often.
Ms Lalonde: When there is a bench, how do you call it? A panel? How many people are on the panel?
Mr. McDermott: Usually, we have a tripartite panel that includes at least three people: a neutral person, a union representative and an employer representative. There are, a few exceptions. The Board can meet with panels where there is only one member, someone who is neutral. For instance, in the case of unfair representation, it would be unusual for the employer representative to want to attend because...
Ms Lalonde: But when that happens, they are not required to have fair representation.
Mr. McDermott: That right.
Ms Lalonde: But let's say that you have a panel... It's a funny word... comprised of three people. As for the arbitrator, are we still going to call him that?
Mr. McDermott: Yes.
Ms Lalonde: When the union side prefers not to hold a hearing and when the employer side wants the opposite, what happens?
Mr. McDermott: At that time, the decision will be made by the majority? I would imagine, like in all the other cases we see today, with 3-member panels. Even though it is not representative, the Board usually has 3-person panels. So, if two people are in favour of something and the third person is not, the two who are in favour will prevail.
Ms Lalonde: That's seems imprudent in my opinion.
Mr. McDermott: I have the impression that if someone wants to hold a hearing, unless it is really unnecessary, and the other party does not want to hold a hearing, the Chairman of the panel will very carefully study the matter before making a decision given that a legal review could be called for later on. In order to avoid this from occurring, I would imagine that the Board will hold a hearing.
Ms Lalonde: You don't see this rule as being a significant departure from the current practice requiring that all members of the panel be an agreement? I will not present the amendment because you will vote against it, but did you give any thought to this?
Mr. McDermott: We did think about this, but generally speaking the panels operate by a majority vote in all cases. I have the impression, as I was saying, that if there was some question about whether or not to hold a hearing, the wisest route to take in order to avoid the possibility of a legal review would be, I would imagine, for the Board to agree to hold a hearing. I'm pretty sure about that.
.1140
Ms Lalonde: That doesn't convince me, however I will leave it at that.
[English]
Clause 6 agreed to on division
On clause 7
The Chairman: I understand there is an amendment, G-4. Do you want to start with a question and then deal with the amendment?
[Translation]
Mr. Ménard: Yes. We are now on clause 7. Mr. Deputy Minister, I would just like make the connection with what the Alliance wanted - not the Canada Labour Congress, but the Alliance - , namely, that when Part I of the Code is reviewed, those people who will be given voting rights be from the bargaining units, namely, members of the union.
We were told that sometimes these two things did not tally within the same bargaining unit. I do not believe that clause 7 provides us with such guarantees. You will recall that this was a point which the CSN also felt was very important.
Mr. McDermott: I was under the impression that the representations concerned strike votes.
Mr. Ménard: No, not just that.
Mr. McDermott: No.
Mr. Ménard: At any rate, the issue of the strike vote is not dealt with at this particular place, for either case.
Mr. McDermott: No.
Mr. Ménard: This is the review of bargaining units.
Mr. McDermott: Only members of a union have voting rights. This is what they suggested.
Mr. Ménard: Yes.
Mr. McDermott: I think that it would be against the spirit of the Code if all employees in the bargaining unit were entitled to say yes or no with respect to the existence of the union in place and the type of union. If so...
Mr. Ménard: Yes, we agree about the issue of choice of union. However, once the union is in place, they wanted only those people who were members of a union to be able to have a say about the strike vote and other related questions.
They were under the impression that this was not what stipulated in the act. Is this interpretation correct?
Mr. McDermott: They are right. This is not stipulated in the act.
Mr. Ménard: Good.
[English]
The Chairman: We'll now deal with amendment G-4.
Mr. Proud: I move to amend clause 7 by replacing lines 5 to 8 on page 13 with the following:
- (d) amend, to the extent that the Board considers necessary, the provisions of collective
agreements respecting expiry dates or seniority rights, or amend other such provisions;
- For the purposes of subsection (3), the Board may
This amendment addresses the concerns that the current drafting gives too broad powers to the board to amend collective agreements following a restructuring of bargaining units. This would limit the board's power to amend collective agreement provisions such as expiry dates and seniority provisions.
[Translation]
Ms Lalonde: The amendment broadens the scope of the clause a great deal. You add: "ou à toute autre disposition de même nature", or "amend other such provisions".
Could you explain this more, because I think it might have...
Mr. Ménard: ... many ramifications.
Ms Lalonde: Yes.
Mr. McDermott: The purpose of this amendment is not to broaden but rather to restrict the application of this provision. The briefs submitted to us contained representations stating that this was the case, however these briefs were not perhaps submitted directly to the committee. I believe that at least ETCOF raised this question, as well as other groups.
It was feared that it would be too broad if we left the text as is:
d) amend any collective agreement to the extent that the Board considers necessary, including
It's just including then.
.1145
Ms Lalonde: Yes, this is true, you are right.
Mr. McDermott: This was changed therefore to limit the scope of the clause. We now say "such as", which applies to "seniority" and "expiry of rights". In my opinion, this could deal with salaries, for instance.
Ms Lalonde: That's good, because of the word "including".
[English]
The Chairman: Is there any further debate on this particular amendment?
Mr. Johnston.
Mr. Johnston: Can the officials just read, then, how the amended section would read?
Mr. McDermott: Proposed paragraph 18.1(4)(d) will now read:
- (4) For the purposes of subsection (3), the Board may
We're told that ``other such'' means they must be similar provisions. They can't be things like wage rates and those types of things.
Mr. Johnston: Similar to seniority rights and expiry dates.
Mr. McDermott: Yes. These are very often the kinds of issues that need to be modified when there's a fusion of bargaining units. You often have two seniority registers coming together, and there has to be some way of working this out.
Remember, this clause in the first place makes it very clear that the parties shall be given an opportunity to negotiate these things. It's only if they cannot negotiate that the board becomes involved. It's only if they cannot negotiate a reasonable solution to problems such as seniority, or amending expiry dates to make them the same, that the board gets involved.
Mr. Johnston: Thank you.
Amendment agreed to on division
Clause 7 as amended agreed to
Clauses 8 and 9 agreed to
[Translation]
Mr. Ménard: You can't merely read it; you have to understand it as well.
Ms Lalonde: That's fine.
[English]
On clause 10
[Translation]
Ms Lalonde: Mr. McDermott, this change made to clause 23.1 gives you a power that you did not have before.
Mr. McDermott: Yes, in the current Code, only the Federal Court is mentioned. This change makes it possible to have access to a provincial court, which means that...
Ms Lalonde: This would apply in cases where there have been transfers.
Mr. McDermott: No, no, this is when... When the Board issues an order, and it is not followed, it is not the Board that looks after the follow-up. The Board files its order with he Federal Court and at that point, it becomes a Federal Court order and it is the Federal Court that ensures that it is followed.
.1150
So all that we are doing here, is to give us an opportunity to chose between the Federal Court and the provincial courts, because in certain areas of the country, it's easier to have access to a provincial court as opposed to a federal court.
[English]
Clauses 10 to 12 inclusive agreed to
[Translation]
Ms Lalonde: Clause 11 is an improvement. I would like to point this out.
Mr. Ménard: Mr. Chairman, ...
The Chairman: Pardon me, Mr. Ménard.
Mr. Ménard: ... could you remain patient so that we can make sure that we are doing our work properly and that we understand what we are voting on? You would be very disappointed if we did not understand what we were voting on. Therefore, we are merely going to take the trouble to look at it.
[English]
The Chairman: No, we'll take whatever time it takes. We'll go right through the night.
Is that okay? Wonderful.
Clauses 13 to 15 inclusive agreed to
On clause 16
[Translation]
Mr. Ménard: Wait, I think that clause 15 created a problem.
[English]
The Chairman: Mr. Ménard, we have already taken the vote on clause 15. You may want to move to clause 16, because we're on 16 now.
[Translation]
Ms Lalonde: If you go too fast, the result of the vote will be "on division".
Mr. Ménard: Mr. Chairman, a German philosopher once said that speed was the enemy of intelligence. Therefore, you should...
[English]
The Chairman: Speed is not as good as intelligence. Well, I'm not much of a philosopher. I would like to get the bill reported to the House.
Mr. Ménard: But are you clever?
The Chairman: I leave the philosophy to you, Mr. Ménard. I'm sure you're much more capable.
[Translation]
Mr. Ménard: I'm going to ask that we vote on this issue.
[English]
The Chairman: Mr. Johnston.
Mr. Johnston: On clause 16, could I have a very brief explanation of the clause as it pertains to longshoremen.
Mr. McDermott: Section 34 is already in the code, and clause 16 of the bill is clarifying it, shall we say. What is happening here is that the jurisprudence the board has adopted in a number of cases, particularly in the St. Lawrence River ports, is being reflected in the amendments.
The first one, however, is a little different. That comes from the Sims group, where we talk about the ``actively engaged''. Using the words ``actively engaged'' is to ensure that, further down in the clause, where the companies are ``actively engaged'' in longshoring in a port and it's a geographic certification, the companies then have to choose a representative who will act as the employer, so the union will not have to deal with five or six employers. They mandate that employer and provide that representative with the power to act as employer, so only those employers that are actually engaged in longshoring can choose the employer's representative.
.1155
Some of these maritime employers' associations, as I am sure you have noticed, include not just stevedoring companies but shipping companies, shipping agents, and so on. It's the stevedoring people who have the requirement under the code to choose the employers' representative.
That's the reason to put in ``actively engaged''.
Clauses 16 to 18 inclusive agreed to
[Translation]
Mr. Ménard: Mr. Chairman, we want to take enough time to ensure that we understand it correctly.
[English]
Clause 19 agreed to
On clause 20 -
The Chairman: Shall clause 20 carry?
[Translation]
Mr. Ménard: No, I want some explanations. Could you introduce this provision to us? Why "during the first six months"?
Mr. McDermott: We are eliminating the six months.
[English]
The task force recommended that board consent should not be required for the filing of the revocation application during the entire strike or lockout period - throughout the strike or lockout period, not only during the first six months. The purpose of such an amendment is to remove, as we say in the notes we gave you, the temptation to wait out the six-month period in the hope that bargaining rights are revoked. That has seemed to have happened in some disputes. Rather than settle, there sometimes has been a suggestion that an employer has waited six months to see if there would be some chance of the union being decertified or replaced.
[Translation]
Ms Lalonde: This is very important.
Mr. Ménard: This is positive, even.
[English]
Clause 20 agreed to
Clause 21 agreed to on division
Clause 22 agreed to
[Translation]
Ms Lalonde: One moment.
Mr. Ménard: You're a little bit nervous, Mr. Chairman.
[English]
The Chairman: No, not at all. I'm not nervous at all.
[Translation]
Mr. Ménard: It is because your son is in a play; that got you a little bit nervous.
[English]
The Chairman: My son is on the stage, but not yet. It's tomorrow night.
Mr. Ménard: His father is on the stage.
The Chairman: Mr. Johnston.
Mr. Johnston: I don't see a clause 22 heading in here. Would you tell me where it's supposed to go? Actually the clause is there, I think, but the heading ``Clause 22'' is not.
Mr. McDermott: Mr. Chairman, I apologize to the committee. A heading is missing in the notes we provided the committee. It should come on page 22 of the clause-by-clause notes. Clause 22 is where we see ``Section 45''. That's our error. I'm sorry about that.
The Chairman: That's on the record and it will be rectified.
Madame Lalonde.
[Translation]
Ms Lalonde: In the amendments that I had requested from the legal drafting officer, and which I never got, this was mentioned in clause 46. I'm going to ask Mr. McDermott why it's not there.
It says:
46. The Board shall determine any question that arises under section 44, including a question as to whether or not a business has been sold or there has been a change of activity of a business or as to the identity of the purchaser of a business.
Why not add "in any resulting difficulty"?
.1200
Mr. McDermott: We wanted to mention the problems that arise in the bill, namely a declaration of a sole employer, a sale, or the reorganization of a bargaining unit. This was all put into clause 18.1, on page 13. Perhaps I could ask Ms Robinson to explain this a little bit to us.
Ms Lalonde: All right, but what I am saying, is that there are problems, difficulties arising from the sale, from the record pertaining to the change of activity or the identity of the purchaser of a business. Consequently, why is the Board not given the mandate to determine questions that arise from the sale, the existence and the identity of the purchaser? At any rate, this is the amendment that I'm going to be moving, Mr. Chairman.
Mr. McDermott: Once again, it is the word "including" that resolves the problem. Consequently, it is possible that the Board may do something else.
Ms Lalonde: Do the words "as to whether or not a business has been sold" would include problems associated with the sale? The word
Mr. McDermott: It is not all that different from what we now have, except that we have added the words "change of activity".
Ms Lalonde: No, but then, what is missing, is precisely the Board's ability to determine any question arising from the sale of a business, etc. Something specific.
Mr. McDermott: I believe that the Board has all kinds of powers under this provision.
Ms Lalonde: "Seniority", "integration", things like that.
Mr. McDermott: Yes, we raised these issues in clause 18.1. This is on page 13. You have to read the entire article that begins on page 12. The Board is authorized to determine many issues that arise from the merger of bargaining units, a sale or a declaration of sole employer. The Board therefore has a great deal of power. I will ask Ms Tremblay to explain this in greater detail.
Ms Tremblay: I think that the problems you are referring to occur when the staff affected by the sale are integrated. At that time, the parties can request the Board to review the units. The Board must deal with all of the minor issues that arise from the integration? First of all, the description of the new unit and then the seniority problems as well as others arising from the reorganisation of the units after the sale.
We grouped everything together in clause 18.1 because the same type of problems can also occur in cases where there has been a declaration of sole employer, or when employees have been integrated into the same unit. At that time, we ask the Board to review the units and to resolve any problems arising from the new definition of units.
For the other problems stemming from the fact as to whether there was a sale or not, clause 46...
Ms Lalonde: No, we know clause 46 covers them.
Ms Tremblay: ... is broad enough. It has been interpreted by the Supreme Court as being broad enough to determine any question arising from the sale, as to whether there was a sale or not, identification of the employer and other such matters.
Ms Lalonde: You're telling us the clause covers all that.
.1205
Ms Tremblay: If you read 18.1 paragraph (2) on page 12, it specifically addresses those sales where the Board reviews the structure of the units at the request of the parties.
As for clause 45, it provides that in the case of a sale, either one of the parties can ask the Board to review the units. This is done when there are problems. That's what leads to requests for review. It's asked for because of problems arising from the sale of a business.
At that point, the Board asks the parties to settle the problems and if they can't, then it may, as is set out in subclause (4), settle the matter or the problems you mentioned.
[English]
The Chairman: Madame Lalonde, is that satisfactory?
[Translation]
Mr. Ménard: Nothing should be taken lightly, Mr. Chairman.
[English]
The Chairman: You can't take it lightly? Absolutely you shouldn't.
Clauses 22 and 23 agreed to
Clause 24 agreed to on division
Clause 25 agreed to
Clause 26 agreed to on division
On clause 27
Mr. Proud: I move that Bill C-66, in clause 27, be amended by deleting lines 37 to 39 on page 20.
The following provision would be removed:
- An arbitrator or arbitration board has
Concerns were raised that this power would encourage an inquiry beyond the grievance submitted to arbitration and could be interpreted as granting arbitrators a general authority that supersedes the language of the collective agreement. Its removal would not prevent the parties from including such a provision in their collective agreements.
[Translation]
Mr. Ménard: I am sorry, but your colleague distracts us somewhat with the superior interests of his region. Could you refresh us on what you said? I am sorry that I wasn't listening. That won't happen again.
[English]
The Chairman: It wasn't intentional.
[Translation]
Ms Lalonde: Why do you want to take that out, Mr. Proud?
[English]
Mr. Proud: Concerns were raised that this power would encourage an inquiry beyond the grievance submitted to arbitration and could be interpreted as granting the arbitrators a general authority that supersedes the language of the collective agreement. Its removal would not prevent them, however, from including such a provision in their collective agreement.
[Translation]
Mr. Ménard: That doesn't give any more powers to the arbitrators, Mr. Proud.
[English]
Mr. Proud: No.
[Translation]
Ms Lalonde: Mr. McDermott, why did you put in a.1) and why do you want to take it out?
[English]
Mr. McDermott: It was there to begin with because it was recommended in the Sims report.
[Translation]
It was recommended by the Sims group. We should remember the Sims group was made up of three arbitrators who do like to have some powers. There were rather firm representations, especially from the employer side, for the bill to give the arbitrator the possibility, when a grievance is presented, to tell you that that's not the grievance you should be presenting and that he'll describe the grievance himself.
.1210
So we considered all the representations we got, and to avoid that kind of confusion, I think it's best to do away with this paragraph. The parties always have the possibility of including such provisions in their collective agreement if they both agree.
Ms Lalonde: It's the equivalent of what we have in Quebec, where it says the arbitrator can substitute his own decision in lieu of the decision itself.
Mr. McDermott: This doesn't have to do with the decision but the possibility of amending the grievance being presented.
Ms Lalonde: That would be changing the nature of the grievance.
Mr. McDermott: Some expressions of concern were heard by the committee and were found in the briefs presented to us concerning the possible result of an amendment like that one. In view of the concerns expressed, the government has decided to withdraw the amendment.
There is still a lot remaining in this very long clause concerning arbitration and the arbitrators still have a lot of power to settle matters. On the other hand, as this could have caused problems, we thought best to withdraw it without getting into a conflictual situation with the working group's recommendations.
Ms Lalonde: Just for my information, because the Canadian code is less familiar to me than the Quebec one, can the arbitrator do anything else except be in disagreement with the punishment inflicted by the employer? Can he substitute his own decision for this?
Mr. McDermott: Yes, of course. That has not changed.
Ms Lalonde: So it was to go a bit further.
Mr. McDermott: That's it.
Ms Lalonde: Doesn't it change that?
Mr. McDermott: No.
Ms Lalonde: No, because you're taking it out and it didn't exist before.
Mr. McDermott: That's it. It wasn't there, but...
Ms Lalonde: As the Board's role has to do with certification and so forth, the arbitrator's role is far broader than that of a collective agreement arbitration board. Didn't that mean that we could have found ourselves with a problem? We're dealing with a strike, but in reality it's a problem of certification. I'm just saying this off the top of my head.
Here, we were giving the panel the power to identify the real problem and try to find the solution. Is that it?
Mr. McDermott: Here, we're not dealing with the Board but with the arbitrator.
Ms Lalonde: The arbitrator, that's what I am saying.
Mr. McDermott: I believe that was the intent but there was some advice...
Ms Lalonde: There was some interference that had more influence than we do with the Minister.
Mr. McDermott: No, no, that is not the case. We think the power is too broad. You could have a grievance and the arbitrator can change its meaning entirely with such broad powers.
The arbitrator still have a lot of powers; we're giving some extra powers to the arbitrators.
Ms Lalonde: It will pass on division.
[English]
The Chairman: It will be on division, right? Did I hear you correctly, Madame Lalonde? Do you approve it on division?
Mrs. Lalonde: On division.
Amendment agreed to on division
The Chairman: Shall Clause 27 carry as amended?
[Translation]
Ms Lalonde: Hang on, a minute, it's broader than that. Let's say that clause 27 passes on division.
[English]
Clause 27 as amended agreed to on division
Clauses 28 and 29 agreed to on division
.1215
The Chairman: Now we're going to clause 30.
[Translation]
Ms Lalonde: This time, we'll take things slowly.
[English]
The Chairman: You're going to take clause 30 slowly.
[Translation]
Ms Lalonde: Division V.
[English]
The Chairman: Okay.
[Translation]
Mr. Ménard: You should go have a bite to eat, Mr. Chairman.
Ms Lalonde: That's true, we could have a bite to eat, Mr. Chairman.
Mr. Ménard: Shouldn't we have a break? Aren't you hungry?
[English]
The Chairman: I thought we would take lunch when we had reached clause 50.
Some hon. members: Oh, oh!
The Chairman: I'm just kidding.
[Translation]
Mr. Ménard: You are melting away before our very eyes, Mr. Chairman!
[English]
An hon. member: How about clause 33, Mr. Chairman?
[Translation]
Mr. Ménard: No, we'll take a little break, Mr. Chairman.
[English]
The Chairman: Okay, we'll take a 10-minute break.
[Translation]
Mr. Ménard: Fifteen minutes.
[English]
The Chairman: Okay, we'll take a 10- to 15-minute break, and we'll be right back.
.1216
.1237
The Chairman: Let's start again. We left off at clause 30.
On clause 30
The Chairman: Is there any debate or discussion on that particular clause?
[Translation]
Mr. Ménard: This clause provides that the notice of dispute shall still be sent to the Minister. Does it also provide one single stage instead of two as was the case before?
Ms Lalonde: That's it.
Mr. Ménard: I think we're in agreement.
[English]
Clause 30 agreed to
On clause 31
The Chairman: I believe the government has amendment G-6.
Madam Terrana.
[Translation]
Ms Terrana: Mr. Chairman, I move that the bill, in clause 31, be amended by replacing, in the French version, lines 12 to 14 on page 23 with the following:
(3) le ministre ne peut prendre qu'une
"qu'" is beeing added.
- des mesures que prévoit le présent article à l'égard d'un différend visant une
The Chairman: Ms Lalonde.
Ms Lalonde: As far as the wording goes, we agree with the content. But when it says "ne peut prendre qu'une des mesures que prévoit le présent article à l'égard d'un différend", there is the idea of one time only, that does not exist in English.
.1240
I just want to make sure that it really means one single action, one time only. If it were one or the other action, it would mean that you could take one action just once, then another action another time, and yet another action yet another time.
Mr. McDermott: That's not it. I'll explain the intent of the amendment. The bill as it is written now, offers the possibility of having a smorgasbord, in other words, using the three actions during one single stage. Now, the intent of the amendment is to make sure that you use one single action during one single stage. In other words, you have to choose either a conciliation officer or a conciliation commissioner.
Ms Lalonde: Agreed.
Mr. Ménard: We agree.
Ms Lalonde: We agree in principle.
[English]
Amendment agreed to
Clause 31 as amended agreed to
Clause 32 agreed to
On clause 33
[Translation]
The Chairman: Ms Lalonde, you have a question.
Ms Lalonde: At the bottom of page 23, you have
b) within fourteen days after the date of appointment...
That expression is repeated twice, and I think it's rather rare to find exactly the same expression twice in the same bill. Might this not lead to problems?
Paragraph 73(2)(b) says:
b) within fourteen days after the date of the appointment or, within the longer period...
and 74(2)(b) says:
- ... of appointment or establishment...
Mr. McDermott: I don't understand, Ms Lalonde.
Ms Lalonde: Look at 74(2)(b):
b) within fourteen days after the date of appointment or establishment...
In paragraph 73(2)(b), you don't have "or establishment", what you have is "within the longer period that may be agreed to by the parties".
Mr. McDermott: For setting up a commission, yes. And the other one?
Ms Lalonde: When you repeat the same expression twice but slightly differently, is there a possibility of confusion in its interpretation? And don't you think that might possibly cause problems?
Mr. McDermott: Is there a reference to what's on page 23, the "fourteen days"?
Ms Lalonde: On page 23, in both places. Look at the proposed paragraph 73(2)(b).
Mr. McDermott: Here, the provision applies to the conciliation officer:
b) within fourteen days after the date of the appointment or within the longer period that may be agreed to by the parties or allowed by the Minister, a report to the Minister...
At that point, the problem is that a conciliation officer does not have the power to make recommendations. He will simply tell the Minister that he has or has not managed to help the parties to settle a difference. But that has nothing to do with the recommendations.
As for the conciliation officer or conciliation commissioner, their duty is to help the parties to settle a difference, but if they don't manage to, they have the power to write recommendations.
.1245
In both cases, there is the same fourteen-day limit that the Minister can however extend. So the powers of a conciliation officer are simply a bit more restricted than those of a conciliation commissioner or a conciliation board.
Ms Lalonde: So do the clause 73 paragraphs apply to the conciliation officer?
Mr. McDermott: Yes.
Ms Lalonde: But both concern the conciliation officer, don't they? No; the other one is the conciliation commissioner.
Mr. McDermott: Yes. If you look at what comes after, you'll see that there is a difference between the conciliation commissioner who is a single person appointed by the Minister and the conciliation board which is made up of several people. It says the establishment of the conciliation board because the parties, the employer and the union, appoint representatives and those two people must go about finding the chairman of the board themselves. And if those two cannot agree, then the Minister steps in and appoints the chairman of the board.
Ms Lalonde: So that's why "14 days" is mentioned twice.
Mr. McDermott: That's it.
Ms Lalonde: In the table we were given, we didn't have "14 days" twice.
Mr. Ménard: Yes, with the first report.
Ms Lalonde: OK.
[English]
The Chairman: Can we move to the vote now?
Clause 33 agreed to on division
Clauses 34 to 36 inclusive agreed to
On clause 37
Mrs. Lalonde: Clause 36 is okay, but not clause 37. It's time to talk.
The Chairman: We have an amendment from the government, G-7.
Mr. Byrne: I have a point of order, Mr. Chair. In the discussion of clause 37, I would also like to table an amendment subsequent to the government amendment.
The Chairman: Mr. Byrne, has that amendment been distributed to all the members?
Mr. Byrne: Yes.
The Chairman: Okay, fine.
Mr. Proud.
Mr. Proud: I move that clause 37 be amended by (a) replacing lines 31 to 34 on page 27 with the following:
- been held pursuant to subsection (1) and who alleges that
I move that clause 37 be further amended by (b) adding after line 39 on page 27 the following:
- (4.1) An employer who is a member of an employers' organization that has held a lockout vote
pursuant to subsection (2) and who alleges that there were irregularities in the conduct of the
vote may, no later than ten days after the announcement of the results of the vote, make an
application to the Board to have the vote declared invalid.
- application made pursuant to subsection (4) or (4.1) if
Mr. McDermott: Members of the committee may recall that last Thursday during the appearance before the committee of the Canadian Labour Congress, the wording of the amendment that's currently in the bill was questioned. The question was whether it meant that in the event of a strike vote being taken, it was not just an employee in the bargaining unit who could question whether there were irregularities, but whether an employer could do the same. Similarly, on the other side, in the case of an employers' organization taking a lockout vote, the question arose of whether an employee could question if irregularities took place in that vote rather than, as the intention was, just a member of the employer's organization.
We believed that the wording we had was clear, but to remove any doubt, we are now separating the two votes. We're saying that on the one hand, in the case of a strike vote where irregularities are alleged, it is an employee who can allege them within the ten-day limit. That's a separate subsection, proposed subsection 87.3(4). Then proposed subsection 87.3(4.1) will deal with the lockout situation, so that a member of an employers' organization that has taken a lockout vote may allege irregularities.
It's simply to clarify the meaning of the wording we had. We didn't think we had a problem, but when we looked at it again, we could see that if you were very determined to see that kind of problem with the meaning, you could probably find it. Rather than leave it there and lead to litigation, we wanted to clarify the meaning completely.
[Translation]
Ms Lalonde: Mr. Chairman, before turning to page 26, we should look at clause 87.2 and the matter of the 72 hour advance notice.
I'd like to ask Mr. McDermott what he'd say to the longshoremen's union when they say there won't be any ships in the port if they give 72 hour advance notice of their strike. It seems to me it wouldn't be very useful to have a strike then because the ships can simply take off in another direction 72 hours before and use any other port on the Atlantic coast, for example. That's clearcut and specific.
Mr. McDermott: Yes, that could actually happen. But the goal is to shut down port operations and that's exactly the result.
Ms Lalonde: But, Mr. McDermott, there is no shutting down port operations if there are no ships. If there are no ships, then there are no operations going on in the port.
Mr. McDermott: Yes, that's it.
Ms Lalonde: So that means that the workers, generally speaking, are rather intelligent. It is actually rare that you strike if there is no work to be done.
Mr. Ménard: So there is no more leverage.
Ms Lalonde: There is no more leverage. But why this 72 hour advance notice in the private sector?
Mr. McDermott: You'll find that in the British Columbia Labour Code. It's useful to coordinate shutting down operations.
.1255
In my jurisdiction, we have airlines and when there is a strike or lockout, the planes are brought back home rather than leaving them in China, for example. If the pilots are on strike, you can still do the maintenance. So the goal is to be able to coordinate the triggering of a strike or a lockout. As the Minister was saying the other day, you can use advance notice to engage in negotiations. It's very important to try to arrive at an agreement during that period.
Ms Lalonde: But if you want a settlement, there has to be leverage. If there is no leverage, there won't be any settlement and the conflicts will just drag on forever.
Mr. McDermott: You could debate the question in the following manner; is the objective to ensure that there will be captive ships in the port or to bring port operations to a halt? Personally, I think it's to bring port operations to a halt. The employer's objective in using the lockout is exactly the same; you bring a halt to operations and that brings economic pressure to bear on both parties.
Ms Lalonde: But you can bring economic pressures to bear on a single party.
Mr. McDermott: With what we had in the Code, it 's not possible to trigger a strike overnight. You have to go through the conciliation process. So there is a timeframe. In the maritime sector, what often happens is that the ships stop using a port two or three weeks before the possible date of a strike. With this 72-hour advance notice period, you know you are going to have a strike or a lockout. I think that's going to improve things, because operations can continue until there is a clear statement that there will be a strike.
The union raised the point that, especially in the St-Lawrence River ports, they have the right to a day of study and this provision will perhaps take this right away from them.
You certainly need a 72-hour notice before triggering a strike, but if the strike is not triggered on the date announced, then notice has to be given once again. However, if the strike is triggered, even if it is for a single day, you don't have to give any further notice. That is our position.
Ms Lalonde: Are you sure an arbitrator would interpret it like that?
Mr. McDermott: If I were the arbitrator, yes.
Ms Lalonde: Come now, sir! Indeed!
Mr. McDermott: On page 27, it states:
(3) Unless the parties agree otherwise in writing, where no strike or lockout occurs on the date indicated in a notice given pursuant to subsection (1) or (2), a new notice of at least 72 hours must be given by the trade union or the employer if they wish to initiate a strike or lockout.
But that's simply in the case where it has not yet been triggered. Once it's been triggered, it's something else altogether.
Ms Lalonde: So you're going to force them to strike once so that they can then do it again without having to give any further notice. Honestly! You can certainly do better for orderly labour relations! That kind of abuse makes absolutely no sense.
Mr. McDermott, when you have a conciliation process and everyone knows that negotiations aren't going to immediately lead to a settlement, you can be sure there's going to be either a strike or a lockout. It is also a well known fact that a lockout may occur when there's a slowdown in production and the employer prefers to trigger a lockout rather than to lose money and pay people who are not actually providing a service. But when do you have a strike and when do you have a lockout? That's very hard to determine.
.1300
In my opinion, if you push things and the strike and the lockout happens for a day, you're probably going to bring the negotiation process to a halt. I think there's really no answer for the longshoremen. They'd really have to strike for a day, but if they do it, there will be no one in port. So?
Mr. McDermott: But you still have equipment and investment in the port. Economic pressure is brought to bear by not using that equipment and those investments. In the federal sector also, where you have service industries, a 72 hour notice means that there's no nasty surprise for the third parties.
For example, in the transportation sector, you can know ahead of time that there might be a strike or a lockout in three days. In our present system, it can happen suddenly because once you have the right to strike or to lockout, then you can use the element of surprise. It's not simply a surprise for the other party, but also for third parties involved. That's another reason for this amendment.
Ms Lalonde: Mr. McDermott, is the nature of this 72-hour notice the same as the 48-hour notice that you have to give your employer in Quebec if you have voted for a strike? In Quebec, you must advise the employer within the 48 hours following a vote in favour of striking. No date is given for the beginning of the strike. If the strike has been voted, the notice is good for a month and a half.
Mr. McDermott: In that case, no it's not the same thing.
Ms Lalonde: No?
Mr. McDermott: No.
Ms Lalonde: Would the fact that a 72-hour notice is not given make the strike illegal?
Mr. McDermott: Yes, of course.
Ms Lalonde: This is really quite a shift in leverage. Anyway, for the longshoremen, it's clear cut and specific. You don't need provisions on essential services any more.
Mr. McDermott: I think I've already explained the objective of these provisions.
Mr. Ménard: Actually, there is another question that arises and I'd like to put it to the parliamentary secretary. When he appeared, at the beginning of our hearings, we pointed out that the 72-hour idea was certainly a factor that considerably decreased leverage and skewed the balance you have to reach in the longshoring sector. We thought we understood the minister was somewhat open to that idea. Actually, I think the minister was supposed to meet with the people in that particular sector on that very same day. I am astonished, because we thought it had been understood that the government even intended to table an amendment.
Could the parliamentary secretary tell us why the minister has remained deaf and insensitive and has finally not been in a position to agree to the argument and the extremely clear evidence presented by the port people, especially the people from the Port of Montreal?
[English]
Mr. Proud: Well, I think it is quite clear. It's 72 hours, and we put an amendment forth on the other part to it. This is what was agreed to. A consensus was reached that this could fly, and that's what he's come forward with.
[Translation]
Ms Lalonde: That's what Ms Nancy Riche said.
Mr. Ménard: That is not a consensus. You can't say that. Would you be ready to swear to it?
[English]
Mr. Proud: I just did.
[Translation]
Mr. Ménard: No, it's not a consensus and I think that FTQ Vice-President was very clear on that.
Ms Lalonde: Ms Nancy Riche was quite formal.
Mr. McDermott: It's in the Sims report.
Ms Lalonde: Yes, but what the Sims report mentions is different from the consensus between the parties. You should not pretend the unions agreed.
Mr. McDermott: We didn't look at this matter of consensus between the parties. At the end of the exercise for the Sims report and after consultations that the minister held here in Ottawa, both parties had accepted the Sims report, in principle.
Mr. Ménard: You were there when the longshoremen stated their opposition. We were clearly told that they were not always dealing with the same elements in the consensus reached at the beginning and the other one reached at the end. But the Official Opposition is not making it up when we're talking about what the Port of Montreal longshoremen said when they came here and told us the 72 hour advance notice was not a desirable element. You agree on that?
.1305
Mr. McDermott: Yes, yes, I agree. That's what they clearly said.
[English]
The Chairman: I gather everybody has put forward their case on this particular issue.
Shall amendment G-7 carry?
[Translation]
Ms Lalonde: I'm calling for the vote.
The Chairman: A recorded vote?
Ms Lalonde: If you please.
Mr. Ménard: We're keeping you fit, Mr. Chairman.
[English]
Amendment agreed to [See Minutes of Proceedings]
The Chairman: Okay. Is it Mr. Byrne's amendment we now have to deal with?
[Translation]
Ms Lalonde: We're only up to clause 87.3 on the 60 days.
[English]
The Chairman: Does everybody have Mr. Byrne's amendment?
[Translation]
Mr. Ménard: I believe my colleague has something to say on other provisions of the bill before the amendment.
Ms Lalonde: We have just disposed of 87.2.
[English]
The Chairman: Yes, absolutely.
[Translation]
Ms Lalonde: Then we're at 87.3
[English]
The Chairman: Yes, we are. You may speak to the issue.
[Translation]
Ms Lalonde: Thank you. I'd still like to put this to Mr. McDermott, and he probably already expects it. During the short hearings of this committee, I think we have amply established that the obligation to trigger the strike within the 60 days following a strike vote will not serve to modernize the code nor will it make labour relations more flexible. On the contrary, it is going to bureaucratize the process and make it more difficult to reach settlements.
I am perplexed, astonished and confused and I don't understand why we're being presented with such a provision which, instead of helping the parties reach an agreement, will make things much more difficult.
I would like to repeat that many unions have stated to us that quite a long period of time is required before holding a strike vote. Contrary to what some may think, you don't vote for a strike like that, just on a whim. No.
When you go to the workers to ask them for a strike vote, you have to negotiate. It takes a certain time to inform people and you can only ask them for a strike vote after that.
It often takes a while to trigger a strike vote. When you're dealing with national unions, negotiations can get under way after the strike vote, but not always right away. Sometimes, because of the fear negotiations might go beyond the 60 day period, the union can bring them to a halt rather quickly to have enough time to report back to the workers and convince them to vote another strike.
.1310
So instead of providing an incentive for a settlement, you are going to be putting an end to the settlement process. I don't understand why we're tying ourselves up this way. Instead of helping, instead of making efforts to balance out the leverage, we're doing exactly the opposite: we're going to be asking for another vote in favour of the strike when we simply might have been content with using the threat of asking for another strike vote to arrive at a settlement. You're pushing to get another vote in favour of the strike and that can only be prejudicial to the bargaining process. We can't come up with any good reason to find ourselves in favour of such a provision. Do you have any answer for me?
[English]
The Chairman: Mr. McCormick, do you have a point?
Mr. McCormick (Hastings - Frontenac - Lennox and Addington): Yes, Mr. Chair. My honourable colleague has a lot of knowledge on this, and I've heard other people on this side of the table question this. We have expert officials here. I'm just wondering if we could take this opportunity to ask them to study this clause further and get back to us.
Mrs. Lalonde: Oh, Mr. McCormick, I would love it.
The Chairman: They'll get back to us today, right?
Mr. McCormick: I don't think today is the last day of the world, as I see it.
The Chairman: You never know.
Mr. McCormick: No, Mr. Chair, we don't.
Mr. Johnston: On that cheery note...
The Chairman: Some of us have tickets booked to paradise.
[Translation]
Ms Lalonde: You see. If it were the last day, we wouldn't be able to resolve anything. That's the situation exactly.
[English]
The Chairman: Mr. McDermott, do you have all the answers?
Mr. McDermott: Not to everything. We could study this further. We could do some post-graduate work here, if you wish.
We have studied it very carefully. The minister has indicated that he feels it is important when a strike vote or a lockout vote is taken that it is based on what is currently being discussed at the negotiating table. The offers or demands that are there as the process comes to some kind of conclusion can be the point at which a strike or lockout vote is taken. We have had cases, and they may well be few, where such votes are taken so far in advance that they are quite meaningless by the time you come to the end of the conciliation process.
There are other jurisdictions that have provisions for setting a time for the strike and lockout vote. In British Columbia it's valid for 3 months or 90 days, something of that nature. In Ontario it's 30 days.
We were advised to have 60 days by Sims. Sims certainly likes 60-day limits for various procedures. Sims thought this through very carefully, discussed these kinds of issues across the country, and recommended 60 days. There are other jurisdictions that require a vote after the conciliation has been completed. You could argue that this might be the time to take it, but on the other hand, that's when you're perhaps adding an awful lot of time to the proceedings. We were told the other day that railway votes take 45 days. If railway votes go through conciliation and then there's 45 days, the world may have changed in that 45 days.
We don't think it's impossible in these days of improved communications for even a large union with people across the country to actually equip themselves with a vote in relatively short order. Clearly union negotiators and employer negotiators will have to adjust to this new provision, but it shouldn't be beyond their capacity to do so.
.1315
As I said, with the consequences that a strike and lockout can have, the minister certainly believes that a vote should be held close to the time so people know what they're voting on and they know that when they do vote there are consequences that may follow.
The Chairman: Thank you. Are there any further questions or issues?
[Translation]
Ms Lalonde: Does that answer your question? You are not asking him to study it until tomorrow morning?
[English]
Mr. McCormick: It wasn't a very good explanation.
[Translation]
Ms Lalonde: That is not an adequate explanation, Mr. McCormick. The minister says that he will oblige the unions coast to coast to equip themselves so as to be able to vote quickly. Not all unions are able to do that.
[English]
Mr. McCormick: Science and technology have come a long way under our government.
The Chairman: Madame Lalonde is still to come, through me, and the same thing forMr. McCormick. We need to establish a little bit of order.
You're not satisfied with the answer, but that's the answer he has to offer.
[Translation]
Ms Lalonde: I am not satisfied, that's for sure.
I remember that Mr. Nault agreed with me on that point. I am sorry that he's not here.
Mr. Ménard: Will he be here tomorrow?
[English]
The Chairman: Who are you talking about? Mr. Nault? He's not here. I don't speak on his behalf.
[Translation]
Mr. Ménard: Perhaps we should vote when he is here, out of respect for his position, since he is the Parliamentary Secretary to the Minister for Human Resources Development. Perhaps the vote could be postponed until tomorrow.
I think it is very important to respect people's duties, Mr. Chairman.
[English]
The Chairman: Are there any other questions related to clause 37?
[Translation]
Ms Lalonde: There is their amendment.
[English]
The Chairman: We'll deal with the amendment as proposed by Mr. Byrne. Everybody has his amendment.
Mr. Johnston.
Mr. Johnston: You asked if there were any other parts of clause 37 that we'd like to discuss. We will be introducing an amendment to proposed section 87.7, Services to grain vessels, in the House. We understand the government's position on the priority they've put on the loading of grain that has reached port.
We have some concerns with the exclusion of other high-priority shipments as well. We also have a bit of a problem with the fact that there's no provision to make sure that any commodity, including grain, doesn't reach the port. Fine, it gets loaded once it reaches the port, but there is no provision for it reaching the port. There still is, in our opinion, a lot of room to back up the shipment of grain right to the farm gate. There is, however, a provision to load it once it gets to the port.
I'm just rationalizing here, Mr. Chairman, and serving notice that we will be voting no on clause 37.
Mr. Proud: Will you be putting an amendment at report stage?
Mr. Johnston: I will be putting an amendment.
The Chairman: Mr. Byrne is next, because he is on proposed section 87.8.
[Translation]
Mr. Ménard: I have just one question concerning the procedure to be followed. Are we going to come back to clause 87.4?
Ms Lalonde: And do we have to vote on clause 87.3?
[English]
The Chairman: No, because proposed section 87.7 is being dealt with. We don't go backwards.
[Translation]
Ms Lalonde: That concerns what?
Mr. Ménard: As regards to essential services, I would like to have clarification about subclause 87.4.
We can of course deal with Mr. Byrne's motion, then I would like some clarification regarding the concept of essential services.
.1320
[English]
The Chairman: I'd like to deal with things in order, if possible.
Mrs. Lalonde: If it is in order, then you will go back to proposed section 87.4. We have to vote on proposed section 87.3, don't we?
[Translation]
You want the clause.
Mr. Ménard: We would like some clarification and then we will take the clauses in order.
I am sorry to have disrupted your order, Mr. Chairman. We can deal with Mr. Byrne's amendment, but I would like some clarification.
Do you want me to ask my question immediately, Mr. Chairman?
[English]
The Chairman: The point I'm making is a simple one. Proposed section 87.7 is after proposed section 87.3. We're already at proposed section 87.7 and proposed section 87.8 now. I'm not going to run this committee back and forth like a yo-yo. Do you know what I mean? Let's stay on top of it, because that's the only way we're going to deal with this thing.
It's not my fault.
[Translation]
Mr. Ménard: I see.
[English]
The Chairman: If you have a concern with proposed section 87.3 or proposed section 87.4, speak up. It's not my duty; it's your responsibility to do so.
[Translation]
Mr. Ménard: That's right, but you will appreciate that we are taking this opportunity to obtain clarification. Usually, in clause-by-clause consideration of a bill the clauses are taken in order, and we can go along with that. We will indeed try to comply with this mathematical sequence.
But can I ask my question?
[English]
The Chairman: Don't give me that. That's the way we operate here in committee all the time. We go from proposed section 87.3 to proposed section 87.4 to proposed section 87.5. I'll do it this time, but next time be alert and debate the issue when it should be debated. Is that clear? I'm not kidding. This is the last time I'm going back.
Let's go back to essential services now.
[Translation]
Mr. Ménard: Thank you, Mr. Chairman.
Mr. Deputy Minister, on a number of occasions in this committee, people had questions about the scope of clause 87.4. Their position was as follows: first, there was a premise that the clause, as worded, required the maintenance of essential services both in the public and private sectors. People didn't understand how the notion of essential services could apply to the private sector.
How would you respond to that position? And how should the scope of clause 87.4 be interpreted?
My last question is as follows: would you not think that, when essential services are maintained, this committee should be given legislative guaranties prohibiting the use of replacement workers, since it is obvious that these two concepts are inconsistent?
I don't know whether we should be referring here to this particular clause or to the clause concerning replacement workers, but I would like to express this concern to you straight away since it seems that there is an inconsistency here.
Mr. McDermott: Mr. Ménard, I think that there are other jurisdictions which, within their rules, have the concept of essential services in the private sector.
In the case of the federal jurisdiction, there is nothing in the Code at the present time. But there have been changes in jurisdiction. It has been necessary to transfer to the public service a few areas regarding health and safety which are important for the general public.
These activities are regulated by the legislation governing labour and management relations in the Public Service, which contains provisions on the maintenance of essential services in such cases.
The other day I gave the example of firefighters in airports, who were public servants but are now in the private sector. And there are other examples.
As regards health, in the Territories, these services were practically all run by the government. There are now a few private services.
I believe therefore that the Canada Labour Code should contain the same kinds of provisions as found in the legislation governing employment in the public service.
.1325
However, the scope of these provisions is quite limited. The parties are first asked to negotiate and find ways of ensuring necessary services, so as to avoid seriously endangering public safety or health.
[English]
It is a restricted requirement, where the parties will be given an opportunity to negotiate the services they require to maintain the level of either production or services necessary to prevent an immediate and serious danger to the safety or health of the public.
[Translation]
Mr. Ménard: Given the scope of that clause and its relationship to the reality of replacement workers, you could conceive of a situation where essential services, as negotiated between the parties, will be maintained while at the same time replacement workers would be used. Would such a situation seem plausible to you?
Mr. McDermott: That could arise with that provision, but I think it would be quite rare.
Mr. Ménard: But that does worry you?
Mr. McDermott: I think that would rather tend to worry employers. I can't imagine a situation where any employer wishing to avoid problems in his company would hire replacement workers and have his employees provide essential services.
Mr. Ménard: But you would agree that, as the provision is worded, such a situation is very plausible and could lead to violence.
Mr. McDermott: That could happen.
Mr. Ménard: I see.
Mr. McDermott: If there is no agreement on that point between the union and the employer, it is the Board which will decide whether essential services are to be maintained; it will also decide on the level of such services. I imagine that the question you asked me would be submitted to the Board.
Mr. Ménard: Thank you.
Ms Lalonde: But the Board will be faced with a small procedural problem if the employer interpret the clause differently and thinks that he can use replacement workers, because that is not prohibited. What is there to prevent an employer saying that is not prohibited under the Code and he can therefore do so?
That is really dangerous. Moreover, all these changes could lead to violence in labour relations. I hope that you are aware of that. Everyone knows full well that conflicts can be regulated but, when you try to prevent them, the result is inevitably violence.
If you try to eliminate this leverage, you will produce other kinds of reaction. I hope that my colleagues opposite will respond to the amendment I drafted to prevent the use of replacement workers at the same time as essential services are provided.
Mr. Ménard: There is still time.
Ms Lalonde: I didn't look at the finger you pointed at me, Mr. Proud. I hope it was the second one.
I would also like to refer to subclause 87.3(4). A number of groups express fear about the use of that provision, allowing a member of the bargaining unit to challenge the decision. You have remedied it in part, but not the essential part.
.1330
You corrected a provision which would have allowed an employer to challenge the validity of the strike vote obtained by the union. But the fear was often expressed that a worker, for example someone on behalf of the union or an employer on behalf of the management association, might be able to challenge the decision, as a result of which the courts would become involved in the strike process or lockout. If the decision can be challenged within 10 days, that means it would be during the strike or lockout. The fear was therefore that such a possibility might further complicate the administration or exercise of the right to strike or impose a lockout.
Mr. McDermott: Yes, I think we are aware of that possibility, and that is why there are the next two paragraphs helping the Board to deal with these questions quite quickly. Furthermore, subclause (6) provides the possibility of ordering a new vote, but only if the Board finds serious problems. A summary procedure has also been added which the Board can use to deal with such complaints as quickly as possible.
[English]
The Chairman: Are there any further questions on this clause?
[Translation]
Ms Lalonde: As regards this clause, there are still a lot of issues.
[English]
The Chairman: Oh, yes, and we'll want to take it slowly, nice and easy, so we can get all the answers.
Madame Lalonde, remember Mr. Byrne has an amendment; he is proposing section 87.8.
You'll tell me when you're ready to go there?
[Translation]
Ms Lalonde: There is subclause 87.7 which we haven't yet discussed.
[English]
The Chairman: Okay.
[Translation]
Ms Lalonde: We agree on a 87.8.
[English]
The Chairman: We're now on proposed section 87.8.
Mr. Byrne, I've reviewed your amendment, and it is compatible with the bill, so you may go ahead.
Mr. Byrne: I appreciate that, Mr. Chair.
My proposed section 87.8 deals with an issue that I originally brought before the minister when this committee's hearings first began on this particular issue, and Mr. Gagliano heard my concern about it. It was subsequently followed up by a number of witnesses who expressed a point of view that the issue is very significant.
I can understand why my colleagues around the table may not be as fully aware of it in recent terms, because it is one that in essence affects mostly just the province of Newfoundland and Labrador and has not really made the national stage, as have some other issues that have been dealt with in the context of this report.
The issue in question, however, dates back approximately 24 years. It's a very sticky, sore point with a number of Newfoundlanders and Labradorians. It deals with the provision of ferry service between North Sydney, Nova Scotia and Port aux Basques, Newfoundland.
This committee heard testimony from witnesses that this is a very important, essential link between the province of Newfoundland and Labrador and the rest of Canada. Indeed it is the only link between Newfoundland and the rest of Canada in terms of ground transportation.
This committee also heard testimony that this particular transportation link is absolutely important and vital to the economy and well-being of the economic climate in Newfoundland and Labrador.
.1335
We heard testimony that Newfoundland and Labrador is taking very substantial cuts in federal government transfer payments and other funding and that the Province of Newfoundland and Labrador is trying to accommodate those cuts and rebuild its economy.
The witnesses also described to the committee that there is an impediment to reaching our full economic potential, and that is the regular, frequent threat of strike on that one vital transportation link into and out of our province.
The witnesses described in some detail that whereas this particular ferry service is the Trans-Canada Highway to the province of Newfoundland and Labrador, the Trans-Canada Highway cannot be controlled by either employees or employers of a particular ferry service.
We also heard that this particular ferry service is extremely unique in all of Canada. As it stands now, or soon will with the creation of the fixed link, it is the only constitutionally subscribed interprovincial ferry service in all of Canada. The witnesses explained to us that this constitutional provision can indeed create an imbalance as it relates to the employer-employee relations. The fact that it is constitutionally guaranteed under the terms of union with Newfoundland means it has to be provided.
In 1973, in another constitutionally provided interprovincial ferry service, the service between P.E.I. and New Brunswick, there was a strike. The Court of Appeal found that strike, which prevented the actual service of the ferry, caused a breach in the constitutional obligation. The P.E.I. government took the federal government to court for breach of constitutional agreement, and they won. Since 1973, a federal crown corporation - an instrument of the federal government - has been negotiating with employees of the Marine Atlantic ferry services throughout the Atlantic region.
Since the formation of the fixed link between P.E.I. and the rest of Canada, the only constitutionally prescribed ferry service is now the service between North Sydney and Newfoundland. It has been argued that this constitutional provision does in essence create an imbalance. There is a court-tested ruling that says the federal government will pay for ferry services, whether or not those services are provided and whether or not there is a strike or a lockout action in progress.
In essence the constitutional obligation and the fact that it is court-tested mean the federal government does not have the legitimate right to lock out employees. It also means the employees can engage in activities that may impede the viability of that business. For example, we heard testimony that employees often distribute flyers telling prospective travellers not to travel on the route because they will indeed be barred from re-entry into the mainland should a strike occur, which is probably inevitable, as the flyers read.
In essence the employees can engage in tactics that the employer cannot. The employer knows that under mandate of the Constitution, it has to provide those services. The employees know that even though they may be participating in very destructive business tactics during the course of the negotiations, the Constitution will protect that service regardless. That service will be available whether there is one car or there are 50,000 cars.
That is what the witnesses have testified to and that's why I've asked the committee to consider a new section to this act, proposed section 87.8, which in essence provides the same things that are provided to the grain industry under proposed section 87.7, but parallels them to this particular one interprovincial ferry service.
The Chairman: Thank you very much, Mr. Byrne.
For everybody's attention, this will be referred to as amendment Lib-1.
Mr. McCormick.
Mr. McCormick: Thank you, Mr. Chair.
I just want to take a brief opportunity to speak in support of the great province of Newfoundland and Labrador.
.1340
This amendment certainly deserves the consideration of all the people in this room and in the House. Anyone who has crossed by ferry service from North Sydney to Port aux Basques knows the length of this crossing. It's certainly recognized as the roughest part of the Atlantic, if you're going all the way from North Sydney to Europe.
The challenges are immense. This is an accepted fact. Perhaps anyone who doesn't think so hasn't crossed there as many times as I have. It's a little smoother to P.E.I., I recognize, but until my honourable colleague has the expertise to put in another link that's a little longer, I do want to speak in support of this.
This province today is a have-not province, but with the projects that are happening there today and that will happen tomorrow, this can be turned around. To help support, this needs our endorsement, if possible from all people.
Thank you, Mr. Chair.
The Chairman: Anna Terrana.
Mrs. Terrana: I personally would like to support this amendment.
This country is known for its flexibility. It's a big country. It took me 12 hours to go from Vancouver, British Columbia to St. John's, Newfoundland. With the four and a half hours it was 16 and a half. It is a long way.
I also want to say it is important for them. They are trying to recuperate. They're trying to do things in order to become better off. They think this is help we can give them.
I wish British Columbia had the constitutional right to have the ferries in place all the time, because then we could do the same thing. But since we do not and they do, we should support this amendment.
The Chairman: Okay.
Mr. Proud.
Mr. Proud: Thank you, Mr. Chairman.
I also feel very much in line with what my colleagues said. However, I do believe that in this act there are already provisions for this. We've had this problem, as you said, in Prince Edward Island. The government took the Government of Canada to court and won and all that, but that still didn't stop the people from saying they were going on strike. You still have that provision.
So what my colleagues across the way are so much opposed to is that the employer and the employee can negotiate what is an essential service, and failing that, the board can determine what is an essential service. I fail to see where this amendment will make it any better. Therefore,Mr. Chairman, I can't support it.
The Chairman: All right.
Mr. Ménard.
[Translation]
Mr. Ménard.
Mr. Ménard: Thank you, Mr. Chairman. I listened carefully to the evidence submitted by three consecutive witnesses on the same day, as we will remember. They clearly explain to us the danger to the public who could be held hostage and faced with a problem of obtaining food and medical supplies. I am sure that the member of Parliament from this region will remember and will ask the question. I myself agree with the principle. I agree that this could be declared an essential service.
However, I think that we must ensure that it is consistent with the right to strike. What frightens me a little in the proposal is that, in maintaining all services at their usual level, for all practical purposes, the rights of workers to strike is no longer recognized. I think that this would constitute a clear attack on a principle which is fundamental to the Canada Labour Code.
I know that you belong to the progressive wing of a party which needs to extend that wing. Even if you recognize that essential services must be maintained and that, in the final analysis, they can be determined by the Industrial Relations Board, I would like you to reassure us that you don't want workers in your area to lose the right to strike if this amendment is adopted. In fact, in conferring a new right, we cannot deprive workers of the right to strike. I know that my colleague, Ms Gagnon, enthusiastically supports me, and I also know, Mr. Chairman, nobody wants that to happen.
So, how do you see the problem as a whole. I am of course asking you this question through the Chair.
[English]
The Chairman: Mr. Byrne.
.1345
Mr. Byrne: I don't believe the provision of ferry services between North Sydney, Nova Scotia, and Port aux Basques, Newfoundland, fall within the context of essential services, as outlined within this particular act. That does not mean that I don't feel they are essential, but we have to be very particular with the wording within the act itself. The wording within the act is strictly for the provision of emergency medical services, emergency foodstuffs, and that sort of thing.
The honourable members have to be aware that if the board were to deem the Port aux Basques-North Sydney ferry service to be essential, the precedent in terms of labour negotiations and collective bargaining would be far broader than what I think anybody in this room would like to have them considered to be. That is, all trains, all transportation...any mode of transportation that provides the passage of either medical supplies or foodstuffs will be deemed essential. I don't think that's a step the board is going to take; therefore I don't feel the provisions for essential services, as outlined within this act, are appropriate whatsoever to the issue we're talking about.
[Translation]
Mr. Ménard: Mr. Chairman, would my friend, the member for Humber - St. Barbe - Baie Verte support an amendment adding after "heir bargaining agents": "are required to maintain that service at the level indicated by the Industrial Relations Board"? Would that be acceptable to you?
[English]
Mr. Byrne: I would caution my honourable progressive member that the terms and conditions of the provision of this ferry service are specifically outlined within article 32 of the Terms of Union of Newfoundland and Canada. In other words, the actual level of service is a constitutional matter. Therefore, the wording you're proposing would provide a secondary interpretation of what level of service is required. The Canada Labour Relations Board would be making an interpretation on a constitutional issue, not on a labour issue. I think that would be terrain the Labour Relations Board would not like to enter into.
The level of service you're talking about is specifically discussed within the terms of union, the Constitution. Therefore, what you're potentially advocating is the Canadian Labour Relations Board interpreting the Constitution.
The Chairman: You have a question.
[Translation]
Ms Lalonde: Would it be possible to have the text, the Terms of Union of Newfoundland and Canada, at least for those particular provisions? If I understand the danger, it seems to me that the right to strike must be preserved. The principle would be to have the level of essential services determined by the Board on essential services.
You say that is not possible, given the provision of the Act. I cannot believe you because... I believe you, but if that were the case I don't think that you would need to present an amendment, since in any event these services would be maintained. Therefore, the legislation does not fully apply because you feel obliged to propose an amendment.
.1350
Consequently, I think it could be recognized that such services must be maintained. I think that's what you said in fact to Mr. Gagliano, the minister, who answered that the issue would be submitted to the Board for essential services.
Here, we are ready to go further, even to agree that essential services should be maintained, but at a specific level.
So we are ready to accept that. Could you perhaps think about it until we come back?
Mr. Ménard: Could we have the view of Mr. McDermott?
[English]
The Chairman: There's a point of clarification from Mr. Proud. I want to also get some input from the officials, and then I want to wrap it up. I think we've spent sufficient time to get all points of view across.
Mr. Proud: I was just going to ask for a point of clarification. If it is what Mr. Byrne says, that this couldn't be handled by the board or by the employees and the employer, then I wonder if it should not be outside this act altogether and in another act.
The Chairman: Do you have any comment, Ms Tremblay or Ms Robinson?
Mr. McDermott: I think I speak for all of us. We hesitate to enter the debate here, but from the point of view of background, the Canada Labour Relations Board does, on a fairly regular basis, entertain constitutional questions, jurisdiction being the most obvious one. That's a fact rather than a point of debate.
The problem is that we haven't really had the time to go into it in great detail. It was not raised during the Sims review, and Sims went across the country. He was not in Newfoundland but he was in Nova Scotia. It was not raised in Newfoundland when the minister was there for his consultations in St. John's.
Mr. Byrne: Who did the minister meet with in St. John's?
Mr. McDermott: At the actual public consultation, there was a grouping of industries from the Atlantic region. We can verify whether Marine Atlantic Incorporated was there or not. I think they had an opportunity to be there, but I don't have that formally in my memory.
Mr. Byrne: I'd like to read into the record, Mr. Chair, a letter from the president of Marine Atlantic Incorporated to me, where he discusses specifically that as it stands now he views the current situation as follows:
- The main tactic used by the Unions involved in this service is always ``the threat of a strike''. I
do accept that the threat of a strike can have the same effect as an actual strike, particularly when
reported in the press. Tourism can be affected as the travelling public tends to avoid making
travel plans when faced with the possibility of not reaching their destination.
- Although the option of lockout is not generally available to Marine Atlantic...
- And so on.
The Chairman: Mr. Byrne, would you agree, though, that you have reflected the concerns of the individuals affected through your amendment?
Mr. Byrne: Yes, I would.
The Chairman: Therefore we have their points of view expressed through you?
Mr. Byrne: Yes.
[Translation]
Ms Lalonde: Would it be possible to wait until after question period before voting on that amendment, so that we could discuss it and perhaps agree on changes?
[English]
The Chairman: I'm just saying that this is the impression of the chair, and it may at times not reflect the opinions expressed by the members of Parliament in this committee. I think the points of view have all been presented.
Mr. Byrne: There were specific questions and it should not take very long to answer them. I think we can carry on with our regular procedures. Could I just have a very quick moment to discuss some of the points that were raised?
The Chairman: Personally, I'd like to take this vote, because we are kind of stalling a bit here.
.1355
Mr. Byrne: Yes. It'll be very quick. I'd like to point out that within the provisions of this act -
The Chairman: I'm sorry. Madame Lalonde?
[Translation]
Ms Lalonde: I think we have almost finished. That is thanks to the speed at which you proceeded. Therefore, we can take the time needed.
Your minister will be proud of you.
[English]
The Chairman: Unfortunately we were delayed this morning, and that's why we have to go into this sort of speech.
Mr. Byrne: I'll be very quick, Mr. Chairman.
The Chairman: Yes. Go ahead, Mr. Byrne.
Mr. Byrne: The fact of the matter is that the Canada Labour Code is not an instrument to create an imbalance; it's an instrument to correct an imbalance. What has been provided here is testimony that there exists an imbalance. The employees did not have as a concern of theirs the viability of this enterprise. They know it's constitutionally obligated, so any tactics they participate in will not have a negative consequence on their future employment.
Further, we've indicated that the employer does not have the right to lock out. As an instrument of the federal government, he has a requirement not to be the participant in the breach of a constitutional obligation. Therefore, for Marine Atlantic, or any operator of this service, to lock out their employees and not provide the service would cause a breach of a constitutional obligation. No federal government employer is going to do that, nor can any other employer be put in that situation.
We have also pointed out that this service is absolutely essential, but it doesn't fall within the scope of this particular act.
The Chairman: Mr. Johnston has a question, I think, for you, Mr. Byrne.
Mr. Johnston: Just a comment, Mr. Chairman. I think Mr. Byrne has put his case very well. I think he's quite right in saying that the provisions for essential services as are outlined in the code do not allow for circumstances of this kind. What in fact Mr. Byrne is attempting to do is to seek a balance and level the playing field, and I am in support of his motion.
Mr. Byrne: Mr. Chairman, can I call the question?
The Chairman: You can. The question is being called.
[Translation]
Ms Lalonde: I did not get have an answer to the question I asked. Why not allow the Industrial Relations Board to determine the level of essential services?
It seems to me that it is important to state that principle. This was not done in the case of the Magdalene Islands, Prince Edward Island or elsewhere. Therefore, you won your point.
However, I think that there are limits to the degree in which you can divert from the general spirit of the Code, arguing that all services must be maintained, whereas this is not done in other cases. This is not required in the case of the grain industry, where the services to be maintained are determined.
That is why I would suggest to you... In any event, I fully agree with the amendment proposed by Mr. Ménard; it seems to me that it respects the spirit of the Code and would allow you to make the policy statement you are looking for.
[English]
The Chairman: Mr. Byrne, a final comment.
Mr. Byrne: As a final comment, in the other instances there are no constitutional provisions to provide these services. What we're addressing here is an imbalance. To provide a reference to other services, I think, creates a situation whereby that becomes an instrument of the collective bargaining process as to what level of service the board would recommend. I would argue -
[Translation]
Ms Lalonde: Otherwise, there isn't any.
[English]
Mr. Byrne: I would argue that in the provision of services, the board's function is to provide an opinion about the collective bargaining process, not the transportation issues. Right now Marine Atlantic, the ferry operator, is operating under, in my opinion, bare minimum provisions required within the Constitution. Any sort of interpretation of that from the Labour Relations Board, I personally believe, falls outside of the realm of the Labour Relations Board and falls within the National Transportation Agency. That is a separate board that I think may have a role to play, but not within this particular act.
So there is an arbiter that could have an involvement. It's called the National Transportation Agency, which is a board. Therefore I would ask that the amendment stay the way it is, and I call the question.
The Chairman: Is there a consensus? Do you want to vote now or do you want to vote after?
[Translation]
Ms Lalonde: I have submitted my amendment, I agree on the amendment, but not as it stands at present. Why not vote later, Mr. Chairman? I myself have nothing against trying to make him happy. In fact, it would be more than making him happy. I understand his viewpoint, but in supporting it I do not want to jeopardize several principles involved.
.1400
[English]
The Chairman: It's not a question of making somebody happy or unhappy. The only answer I want is, do you want to vote now or later? That's the only thing I want.
Mrs. Lalonde: Later.
Some hon. members: Question.
The Chairman: Question? Okay. Are you ready for the question?
[Translation]
Mr. Ménard: To avoid any misunderstanding, am I to understand, Mr. Chairman, thatMr. Byrne is not in favour of the amendment we wish to propose? Have you allowed yourself to be persuaded, Mr. Byrne, or are you strongly opposed to it?
[English]
Mr. Byrne: I would hope, and for the right reasons, that I've persuaded you that it's not really required and that, in essence, it would provide us a further problem in terms of having the Canada Labour Relations Board interpreting the provision of service. I think that's a question that would fall better within the scope of the National Transportation Agency.
[Translation]
Mr. Ménard: You will recognize that in the powers it holds or will hold, the Canada Labour Relations Board will have to rule on levels of essential services. This will not be a specific case for the situation in Port-aux-Basques.
[English]
The Chairman: It's now 2 p.m., and we have to -
[Translation]
Mr. Ménard: I think that you are placing Newfoundland at risk and the whole of Atlantic Canada is going to be cheated.
Ms Lalonde: Right, we're going to vote.
[English]
Are we going?
[Translation]
Mr. Ménard: If you are placing Newfoundland at risk, the whole of Atlantic Canada will suffer.
[English]
The Chairman: No, I understand. But it's not a question of offending; we have to break now. It's 2 p.m.
[Translation]
Ms Lalonde: That's right. We're going to vote.
[English]
The Chairman: We have to go to Question Period. We'll come back at 3:15 p.m.
.1401
.1522
The Chairman: We're ready to start. We were at clause 37, with Mr. Byrne's amendment, and we're ready for the vote.
Is that correct, Mr. Byrne?
Mr. Byrne: Yes.
The Chairman: We have to take a vote.
Mr. Ménard: Do you have new information?
Mr. Byrne: If you would like, Mr. Ménard, I will very quickly go through some of the points.
One of the points that you did bring forward is that there has to be a practical hand at the helm of legislation. Ms Lalonde gave an extremely good description of the fact that a practical hand on the pen of legislation is one of the most valuable assets any legislator can have.
From a practical point of view, I am suggesting to you that it would be better to leave some of these discussions unamended. We will come to them, because by enacting what Ms Lalonde has suggested - not formally proposed, but suggested - we will actually be prolonging the bargaining process. I ask you, Mr. Ménard, to please respect a fellow practical hand at the pen.
The Chairman: Okay.
[Translation]
Mr. Ménard: Mr. Chairman, your request will be heard.
The Chairman: Very good.
[English]
Now we'll vote.
.1525
Amendment agreed to
Clause 37 as amended agreed to on division
The Chairman: From what I can gather here, looking from clause 37 to 99, I don't see any amendments forwarded by any party. I expect everybody has read the various clauses and we'll move quickly.
Mr. Johnston: Yes, Mr. Chairman, you're correct in noting that the Reform Party did not put forth any amendments from here on, or actually for any part at this committee stage, but we will be putting some forth at report stage.
Clause 38 agreed to on division
On clause 39
[Translation]
Mr. Ménard: Mr. Chairman, could we ensure that we do not proceed too quickly? We will cooperate and not present any amendments. But I would nevertheless like to ensure that we understand and, if necessary, will be able to put questions to the Assistant Deputy Minister. After all, we are studying the Canada Labour Code; we are not dealing with just an incorporation act. We will not be wasting our time. I give you our word on that, Mr. Chairman.
[English]
The Chairman: Clause 38 was carried. Now we're on clause 39. I've asked if there -
Mr. Johnston: Mr. Chairman, could I point out one slight irregularity in clause 38? Proposed section 88.1 says ``strikes and lockouts''. I'm sure it should say ``strikes or lockouts''.
Mr. Byrne: It's ``and''.
The Chairman: It should be ``and/or''. Can we duly note that change? Would that be considered a sort of friendly amendment?
Mr. Johnston: In clause 38, the second word.
The Chairman: We need to pass a motion on that.
Mr. McDermott: It says ``strikes and lockouts''.
Mr. Proud: Right now it says ``strikes or lockouts''.
Mr. McDermott: Which version of the bill do you have?
Mr. Proud: Clause 38, in the explanatory note.
Mr. McDermott: Oh, the explanatory note. But in the bill, Mr. Chairman, it says ``strikes and lockouts are prohibited''. It must be -
Mr. Proud: It says that in the bill.
The Chairman: And the bill is supreme.
Mr. McDermott: Yes.
Clauses 39 to 41 agreed to on division
On clause 42
[Translation]
Mr. Ménard: Could we have clarification? It says that an employer is deemed not to have acted unfairly by expressing a personal point of view. Are those statements contained in the Sims Report?
Mr. McDermott: Yes, it was in the Sims Report. In the Bill, we have simply clarified the judgments of the Board.
Mr. Ménard: You are just updating the legislation in accordance with decisions handed down by the courts over the past few years?
Mr. McDermott: Yes.
[English]
Clauses 42 to 44 inclusive agreed to on division
On clause 45
Mr. Johnston: Perhaps just a general explanation on clause 45, Mr. Chairman, as to the need.
The Chairman: Mr. McDermott.
Mr. McDermott: Mr. Chairman, in clause 45, where we're dealing with section 99 of the code, we're really changing a whole set of numbers, for the most part. There are, in some cases, some new remedies put into the code. This is the section where the board's remedial powers are contained, and since there are some new remedies provided for in this code, we need...
.1530
[Translation]
I would ask Ms Tremblay to clarify certain points for you.
[English]
Ms Tremblay: It's basically granting the board additional remedial powers in order to deal with complaints that relate to new obligations that are being imposed on the parties by the bill.
Mr. Johnston: Okay.
Clauses 45 and 46 agreed to on division
[Translation]
Mr. Ménard: I would like to ensure that we know where we are going.
[English]
The Chairman: Mr. Ménard, if you can signal when you're ready so that we can -
[Translation]
Mr. Ménard: Yes.
[English]
The Chairman: There seems to be an agreement, more or less.
Well, I know the government members -
Ms Augustine: We studied the bill.
The Chairman: - by the fact that they've amended - the seven or eight amendments - know where they want to amend, so they must be happy with the rest.
Mr. Johnston, more or less, you're happy or unhappy, depending on which case.
But, Mr. Ménard, we just -
[Translation]
Mr. Ménard: Clause 47...
[English]
Mr. Proud: We're not sure where you are.
The Chairman: Okay.
[Translation]
Mr. Ménard: We agree, Mr. Chairman.
[English]
Clause 47 agreed to
Clause 48 agreed to on division
On clause 49
[Translation]
Mr. Ménard: Just a moment. I think that this is a new provision concerning off-site workers. Mr. Chairman, there is a major problem here. We are proceeding as if it should all be rushed through. However, we should remember that many witnesses told us to be very careful and ensure that the confidentiality of information is preserved. Mr. Chairman, you and the Parliamentary Secretary will no doubt remember those witnesses - I think it was the representatives of the Canadian Labour Congress - who asked us to take steps to entrust the Industrial Relations Board with responsibility for ensuring that information is transmitted. That off-site workers would be informed of the granting of certification, and that during this process the identity of the people concerned and confidentiality of information would be preserved.
This is a precedent. This is something very important. It is not certain that the approach being proposed is the best. Can you give us more information on this subject.
Mr. McDermott: The wording of the provision generally reflects what is contained in the Sims Report. Therefore, we have provisions on the protection of privacy towards the end, at paragraph 109.1(4). It will therefore be up to the Board to determiner what is necessary to ensure the protection of privacy.
Mr. Ménard: I think I remember that you, or the minister, informed us that new technology could be used by the unions.
Mr. McDermott: Yes.
Mr. Ménard: That is new.
Mr. McDermott: Yes, paragraph 109(3), as proposed, talks of electronic communications systems.
Mr. Ménard: I think that we will certainly propose an amendment over the next few hours, but not today. Don't worry, Mr. Chairman, it will be adopted on division.
.1535
[English]
Clauses 49 to 51 inclusive agreed to on division
[Translation]
Mr. Ménard: It deals with unfair practices. Does clause 51 concern the filing of complaints for certain unfair practices?
The Chairman: No. In the present Code, the minister has the power... Well, the consent of the minister must be obtained before filing a complaint for bad faith, for example. With the agreement of the parties, and also that of the Sims panel, it is proposed that this provision be removed from the Code. Experience shows that this causes unnecessary delays.
Mr. Ménard: Yes, that is true. The unions requested this, you are right. That is a positive change.
[English]
Clauses 52 to 55 inclusive agreed to on division
[Translation]
Mr. Ménard: Just a moment, please.
Ms Lalonde: I have one question. Why was the name "Labour Relations Board" replaced by "Industrial Relations Board"?
Mr. McDermott: It's simply to highlight the fact that this is a new board, a representative board rather than a non- representative board.
[English]
Clause 56 and 57 agreed to
[Translation]
Mr. Ménard: Just a moment please. We want to understand. Do you want us to vote without understanding?
[English]
The Chairman: That never happens. We always understand what we're voting on.
Mr. Ménard: Thank you.
The Chairman: Are you okay...?
Mr. Ménard: Oui.
On clause 58
The Chairman: Mr. Johnston.
Mr. Johnston: I have a question on clause 58. It says certain powers conferred on the board. Is this a normal sort of phrase that's in every bill, and if so, where are the powers? Are the powers delineated anywhere? Are they spelled out so you can refer to a different section in here and say, oh, these are the powers of the adjudicator?
Mr. McDermott: These are the powers given to the unjust dismissal adjudicator in part III of the code, which is primarily intended for access by the non-organized employees. They have a right, if they've been employed a year and they feel themselves to have been unjustly dismissed, to make a complaint, which can ultimately go to an adjudicator appointed by the minister.
As with arbitrators who hear grievances in the organized sector, certain powers are accorded to the adjudicators, and similar powers are given to the board under section 16. So you have to go back to section 16 to find out what those powers are.
Mr. Johnston: My point is, is where you'd find the powers of this adjudicator so well known that it doesn't need to be pointed out in here?
Mr. McDermott: I don't know if it's so well known. It's obviously well known to labour lawyers and industrial relations practitioners, but I think it's quite a usual practice in drafting legislation of this kind, rather than repeating the powers, to refer back to where else you can find them. It makes it a little complicated in this setting, but not when you're in the business of handling a grievance.
Mr. Johnston: Thank you.
The Chairman: Thank you, Mr. Johnston.
Clause 58 agreed to
.1540
Clauses 59 to 61 inclusive agreed to on division
On clause 62
[Translation]
Mr. Ménard: Is that the section from the Corporations and Labour Unions Returns Act?
Ms Lalonde: Yes. We didn't have any information on that. Why did they stop publishing because of CALURA?
Mr. Ménard: Could you give us a brief and general explanation? The act is being amended. The Corporations and Labour Unions Returns Act is being amended. Why did they stop publishing information which was available? Could you explain this to us generally to help us to understand?
[English]
Mr. McDermott: I will ask our colleague from Statistics Canada, Mr. Sahay, to reply to that question.
Mr. Krishna Sahay (Assistant Director, Industrial Organization and Finance Division, Statistics Canada): The CALURA legislation was passed in the 1960s to collect information on both labour unions and corporations. Since then it's been amended a few times, but in details, and the focus has been as usual on the foreign ownership element and, in the case of unions, on the questions of membership and the financial element. In the case of the business sector, the financial element was dropped following revisions in 1984, I believe, so that in the case of the corporate sector we've been collecting information solely on ownership structures and foreign ownership.
In the case of unions, we have continued to collect both financial data and union membership data. We have not had a great deal of demand for this, and in fact we've had virtually no demand for financial information on unions except from other government departments.
We have had a great deal of demand for information on the membership structure. We find that we are able to provide that information on membership from other sources, other new surveys that Statistics Canada is involved in. We believe they're better. For that reason we're proposing to stop collecting the information on unions. We continue to need the information on corporations, and that's why this legislation makes no reference to stopping the collection of corporate data.
[Translation]
Mr. Ménard: If you ask for it you can nevertheless obtain this type of information. It will be available from...
[English]
Mr. Sahay: What kind of information did you have in mind? If you have the union financial data in mind, the answer to that is no. We will not be collecting it.
We will be collecting other information on union membership by gender, by industry, by region, by province, etc., so we will have all of the information on the membership and industrial aggregation. We will not have the financial data.
The Chairman: Okay.
Mr. Ménard: Why?
Mr. Sahay: Because we've simply not been asked for it. The only people who have asked for that information have been people from other government departments. There has been virtually no demand for this information from anybody outside of government.
We discussed the issue with our government colleagues in various places. We have a Statistics Canada advisory committee on labour statistics consisting of academics and private sector people. There seems to be no demand for the information and it costs us money to collect, so we decided to stop.
The Chairman: Okay, this is the last point, Mr. Proud.
Mr. Proud: I understand that one of the reasons this was originally put in place was that a lot of people were concerned about international unions and how much money went from Canada to Washington or Pittsburgh, or wherever it was, and when they found out that if you sent $200,000 down and got $800,000 back, it wasn't all that bad. That's why I think today you don't need it as much as it was originally intended for.
.1545
Clauses 62 to 69 inclusive agreed to on division
On clause 70
[Translation]
Mr. Ménard: Please wait.
Ms Lalonde: You can't really take this seriously.
Mr. Ménard: In fact, it must be acknowledged that we're not really familiar with the provisions of this bill, because the witnesses didn't talk about them very much. As you will appreciate, that wasn't the essence of the bill.
Would you agree to provide us with the essential information needed to understand clauses 70 and 71?
We are told that Schedule I on Access to Information Act is amended to replace that old Board by the new one. This is just a change in names. You can understand that we are not opposed to that.
Ms Lalonde: As regards clause 71, the same comment applies.
[English]
The Chairman: On division?
[Translation]
Mr. Ménard: No, it's just a change in the name.
[English]
Clauses 70 and 71 agreed to
On clause 72
[Translation]
Mr. Ménard: What are we talking about?
Ms Lalonde: It's the same thing.
Mr. McDermott: These are all amendments consequential to more substantive provisions in the bill. I could ask Ms Beaupré or Ms Tremblay to explain that for you.
Ms Tremblay: Clauses 6 and 7 of the Airport Transfer Act made it possible to continue collective agreements or the industrial relations system when there was a transfer from the government to airport authorities. With the amendments to the Code, the amendments being considered, the provisions of the Airport Transfer Act, will no longer be necessary. Such transfers would be governed by amendments to the Canada Labour Code.
Mr. Ménard: Thank you very much, Ms Tremblay.
Ms Lalonde: That is clear, but are there changes?
Ms Tremblay: No.
Ms Lalonde: It's the same thing?
Ms Tremblay: Yes.
Ms Lalonde: Through operational changes, I presume?
Ms Tremblay: Through clauses 44 and 45, I believe.
Ms Lalonde: That's right.
Ms Tremblay: I am reminded that the amendments in question were made in the most recent legislation governing the Estimates.
[English]
The Chairman: Shall clause 72 carry? Is it on division?
[Translation]
Ms Lalonde: We are not taking any chances.
[English]
We will take no chances: on division.
Clause 72 agreed to on division
On clause 73
The Chairman: On division, Mr. Johnston?
Mr. Johnston: Yes.
Clauses 73 to 75 inclusive agreed to on division
Clause 76 agreed to
.1550
Clauses 77 to 95 inclusive agreed to on division
Clause 96 agreed to
Clauses 97 to 99 inclusive agreed to on division
The Chairman: Shall the title carry?
Some hon. members: Agreed.
[Translation]
Mr. Ménard: The French title doesn't cause me any worry.
The Chairman: You don't agree?
Mr. Ménard: We should agree with the title being carried. What do you think?
Ms Lalonde: It's fine.
Mr. Ménard: We will agree with the title being carried, Mr. Chairman.
[English]
The Chairman: Carried.
Shall the bill carry?
Some hon. members: Agreed.
The Chairman: Shall the bill as amended carry?
Some hon. members: Agreed.
The Chairman: Shall the committee order a reprint for use at report stage?
Some hon. members: Agreed.
The Chairman: Shall I report the bill to the House?
Some hon. members: Agreed.
Mr. Proud: Immediately, if not sooner.
The Chairman: That's it. Thank you very much, everyone.
[Translation]
Mr. Ménard: As you can see, we hurried along.
[English]
The Chairman: First of all, I would like to thank all the members of the committee, and of course the officials for all the help. You've done a great job on this bill. I know how difficult it was to find consensus. We look forward now to reporting the bill to the House and to the debate that will take place in the House, always with a view to improving this piece of legislation. Thank you very much.
The meeting is adjourned.