HRPD Committee Meeting

STANDING COMMITTEE ON HUMAN RESOURCES DEVELOPMENT AND THE STATUS OF PERSONS WITH DISABILITIES

COMITÉ PERMANENT DU DÉVELOPPEMENT DES RESSOURCES HUMAINES ET DE LA CONDITION DES PERSONNES HANDICAPÉES

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, March 26, 1998

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[English]

The Acting Chair (Ms. Carolyn Bennett (St. Paul's, Lib.)): I apologize. Our caucus somehow seems to be a tiny one, but I think we should proceed in order to stay on time.

As you know, there are 30 minutes for your panel presentation. The committee loves it if the presentation is shorter so that they have more time for questions, and sometimes you have a different idea, so it's up to you in terms of the 30 minutes.

Our first witnesses are from the Professional Institute of the Public Service of Canada.

Steve, do you want to explain what you're going to do?

Mr. Steve Hindle (President, Professional Institute of the Public Service of Canada): Yes. I'll make the main presentation, Madam Chair, and then my colleagues will help in answering questions, especially anything of a more technical nature.

Thank you for agreeing to hear from the Professional Institute of the Public Service of Canada with respect to the proposed changes to the Canada Labour Code in Bill C-19.

Before I get too far into this, I'd like to introduce Mr. Michel Gingras and Mr. Andy Zajchowski, who are negotiators on our collective bargaining staff. As I said, they will have some technical expertise if there are questions in that vein.

We welcome the government's initiative in updating the Canada Labour Code and generally support the amendments in Bill C-19. Our concerns are confined to five problem areas, which we discuss in the brief, and to the emerging problem of the labour relations jurisdiction that should apply to federal government services that are being moved to new forms of agency outside the traditional public service.

The Professional Institute represents 33,000 professionals and scientists, most of whom work in the federal, New Brunswick and Manitoba public sectors. In the past, these employees have been governed almost exclusively under the Public Service Staff Relations Act at the federal level or by similar legislation for provincial government employees. This situation is now changing through the processes of downsizing, devolution and the creation of agencies under the government's policy of alternative service delivery. Changes in the Canada Labour Code are therefore of increasing interest to the institute as the number of its members governed by the code increases.

The first issue is the right to be heard. The powers of the Canada Industrial Relations Board are proposed to be amended by adding a new provision permitting the board to decide any matter that comes before it without holding an oral hearing.

Throughout Bill C-19, the previous right of the parties “to be heard” in various actions before the board is replaced by a right “to make representations”. The objective of many changes proposed in Bill C-19 is to streamline the business of the board under the code and to provide more rapid and effective service to the parties. The institute strongly endorses this general objective.

We are concerned, however, that subclause 16(1) and related amendments may lead to a situation where the board seldom, if ever, agrees to the legitimate request of a party to hold an oral hearing prior to determining an issue even where oral evidence and argument is vital to due process.

For this reason, the institute suggests that subclause 16(1) be modified to require the board to conduct an oral hearing on a request of a party where there is reasonable justification for such a hearing. In short, you can't easily cross-examine a piece of paper.

In regard to compulsory strike votes, the government proposes, with proposed section 87.3, to codify binding procedures that a union must follow in order to secure a mandate for strike action from the employees it represents in the bargaining unit. Bill C-19 will require a secret ballot vote to be conducted within 60 days prior to initiating a strike. The Canada Industrial Relations Board will have the power to review any complaints related to the conduct of the vote by the union and to intervene if the strike does not conform with the proposed requirements of the code.

The institute is not aware that there are real and persisting problems in the processes used by bargaining agents under the code in preparing for the possibility of strike action and questions the need for this statutory intervention. The underlying philosophy of the code in the past has been to provide a relatively non-intrusive framework for labour relations. Amendments of the type in proposed subsection 87.3(1) suggest that the balance is shifting to more intrusion into the internal operations of at least one of the parties, the union. Employer lockout decisions will remain unaffected except for the rare instances of multi-employer councils, whereas unions governed by the code will have to comply with the new notice and secret ballot requirements for strike votes in every case.

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On voting by non-members, one feature in particular of the proposed strike vote procedure stipulated by proposed section 87.3 presents grave difficulties, that being the requirement that a secret ballot vote be conducted among the employees in the bargaining unit rather than among those employees in the bargaining unit who are members of the union.

The existence of a union is dependent upon its ability to maintain majority support among the employees of a bargaining unit. It need not be supported by every employee, yet it bears the continuing legal obligation to represent the interests of all. The Rand formula, which is used in many Canadian workplaces, recognizes this obligation by requiring all employees to financially support the union chosen by democratic decision of affected employees. This crucial formula protects the right of any individual employee to decline membership in the union without losing the benefits and protection of a collective agreement. For its part, the union is not compelled to extend voting and other participation rights to non-members. These are core rights of membership, and represent the principal incentive for individuals to affiliate as a member of the union.

The proposed amendment undermines the careful balance of the Rand formula, and it intervenes deeply into the internal affairs of the union. It is not simply an isolated requirement relating to infrequent cases of strike action. Instead, it may well force many unions, including the institute, to modify their governing constitutions and bylaws and radically alter the concept of membership.

Moreover, full compliance may be next to impossible. In the institute's case, we are often unable to locate non-members because adequate identifying information is not provided by employers, while non-members themselves often insist on privacy. The Sims report, Seeking a Balance, justifies a strike vote involving all employees by suggesting that a fundamental decision of this type requires a democratic vote. We reject the implication that unions are not democratic, and we challenge the practical logic of the proposed amendment. Should contract ratification votes that are now conducted among signed union members also be open to all employees? In the political realm, would the members of this committee feel it was more democratic to allow all Canadians to participate in selecting political party candidates and leaders regardless of whether they have joined the political party in question?

Both on principle and for practical reasons, the institute opposes including employees in any strike vote procedure if they have consciously and freely made a decision not to become members of the union. We therefore urge the committee not to endorse proposed section 87.3 or, failing that, to provide that the required strike vote be conducted among all members of the union in the bargaining unit.

In the event that this recommendation is not accepted, the institute respectfully submits that the committee must, in fairness, take its understanding of democracy one further step. Where a majority of all employees in a democratic vote of the bargaining unit vote to support strike action, this vote must be respected. Subject to considerations of public safety and health, no employee or any other person in any circumstance should be permitted to perform the work of striking employees. This is a simple extension of the democratic principle that a majority vote binds everyone, not just those who voted in favour.

There are a couple of aspects to the issue of essential services. Bill C-19 proposes inclusion of essential services requirements in the Canada Labour Code for the first time. Proposed section 87.4 and related provisions create a mandatory process for the identification of the supply of services, operation of facilities, or production of goods that must be continued in order to prevent an immediate and serious danger to the safety or health of the public in the event of a strike or lockout. Employers and unions are required to negotiate arrangements for such essential services before the right to strike or lock out can become effective. In the absence of bilateral agreements to this end, the reconstituted Canada Industrial Relations Board is empowered to make a binding determination.

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The institute understands the public's concern for the maintenance of services essential to safety and health. Nevertheless, we are disappointed that the government should feel it necessary to require, as a matter of law, a process we believe responsible employers and bargaining agents are already undertaking voluntarily. We are concerned that the inclusion of specific essential services provisions may add unnecessary bureaucratic rigidity to this process and may lead to the proliferation of cases requiring intervention by the Canada Industrial Relations Board. The institute would have preferred that the code not address these matters.

The Civil Air Navigation Services Commercialization Act, passed by Parliament in 1996, created a not-for-profit commercial enterprise mandated to provide air traffic control services in Canada and regulated for labour relations purposes by the Canada Labour Code. The act establishing NAV CANADA contains detailed measures in sections 73 through 84 for the maintenance of services related to humanitarian or emergency flights in the event of a strike or lockout. These provisions address the special requirements of the civil aviation sector and enjoy support of the employer, the unions involved and the government.

Bill C-19 creates the possibility of confusion between the essential services provisions of the Canada Labour Code and the NAV CANADA Act. In order to avoid this problem, the institute asks the committee to include a stipulation in Bill C-19 to the effect that sections 73 through 84 of the Civil Air Navigation Services Commercialization Act are deemed to comply with the essential services provisions of the Canada Labour Code.

On alternative service delivery, the prominent element of the government's approach to reducing the size of the public service is its intention to decentralize various functions to a variety of new entities in the public and private sectors. Under the alternative service delivery initiative, 6,000 employees have already been transferred to NAV CANADA, as indicated above, with the Canada Labour Code as the applicable labour law. The three other large ASD projects that have already been established or are currently being legislated are the Canadian Food Inspection Agency, the Parks Canada agency and the proposed Revenue Canada agency.

The institute is discussing these ASD initiatives with Parliament and with government officials in a number of settings. There is a major issue involving the Canada Labour Code, however, that we should bring to your attention. This is the question of which labour law should be used to regulate labour relations in the new ASD organizations as they are created.

In the federal sector, the choice of applicable labour legislation is the Canada Labour Code or the Public Service Staff Relations Act. The latter applies to situations where a new organization is removed from a department of government and given separate employer status but remains within the broader public service. The government has established a new Canadian Food Inspection Agency as a separate employer under the PSSRA, and we suspect this will be a precedent for the proposed Parks Canada and Revenue Canada agencies.

The Public Service Staff Relations Act is an outdated labour law that restricts rather than encourages the ability of employers and bargaining agents to solve their own problems. Bargaining rights under the PSSRA are severely limited. In many aspects of labour-management relations, the act takes an intrusive and paternalistic approach that does not facilitate a mature relationship between the parties in the workplace.

The institute has for years been on record as supporting the revision of the PSSRA to make its provisions comparable to those of the Canada Labour Code. Some minor improvements have been made, but the PSSRA remains a very deficient and anti-labour law. In the case of a separate employer, the act applies numerous restrictions on matters that can be bargained or settled through arbitration that are absent from the Canada Labour Code. It also excludes employees from the protection of the Public Service Employment Act without providing an alternative that would allow employees to negotiate the areas covered by that act in their collective agreement.

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Between the PSSRA and the Canada Labour Code, there is no question which statute provides a more modern basis for conducting effective labour-management relations. Nonetheless, some public service managers continue to promote the PSSRA in preference to the code, ignoring the many precedents of organizations that successfully operate under the code in the wider federal public sector.

One of their arguments is that the code would be inappropriate for public service programs given the absence of procedures for protecting public safety and security in the event of a strike or walkout. With the essential services amendments to the code now before the committee, this objection falls away.

The institute urges the committee to include in its report on Bill C-19 to the House of Commons a special recommendation to the government that the Canada Labour Code should be preferred as the statute applicable to new organizations created by alternative service delivery initiatives. If they are to be created, it's crucial for each new service deliverer to be given the most modern tools available in order to maximize the prospects for success. In the field of labour legislation, this must be the Canada Labour Code, not the Public Service Staff Relations Act.

Thanks for the opportunity. Mr. Gingras, Mr. Zajchowski, and I will now entertain questions.

The Acting Chair (Ms. Carolyn Bennett): Thank you. We have 15 minutes. We'll start with Mr. Johnston.

Mr. Dale Johnston (Wetaskiwin, Ref.): Thank you, Madam Chair.

There is a provision in these revisions that allows for the employer to hand over to union organizers the names and addresses of people who don't work on site, meaning off-site workers.

We had the privacy commissioner here yesterday. He made quite a compelling case that this was an invasion of these people's privacy. He said that, in his opinion, what's missing from this is the consent of the individuals involved. I wonder if you'd comment on that.

Mr. Steve Hindle: I guess it will be difficult to understand the difference between somebody who works on site and somebody who works off site, because under most of the provisions, the employer is compelled to provide the union with dues and identify the person from whom the dues have been collected. This is the Rand formula. Whether the person chooses to join or not is not the point in question. The employer has to collect dues and remit them to the union and identify the person from whom they have been collected.

Now, there may be some compelling issues why the person's home address would be protected by privacy legislation, but I think it's also incumbent on this committee and anybody looking at the Canada Labour Code to ensure that the union has access to the people it's required to represent.

I'd just like to point out that whether or not someone chooses to join a union, they still have all the protections of the collective agreement and the union has an obligation to provide them with fair representation. It seems only normal that in order to be able to do that, the union would have to be able to identify who it is they represent and where they can contact that person. So I think it would be a miscarriage of justice. Maybe I wouldn't go that far, but I think it's important that the employer be required to identify the location and the name of the people in the union.

Mr. Dale Johnston: I think maybe we're talking about two different cases. You're talking about the collection of the dues on behalf of the individual. What I'm talking about is the submission to a union organizer of the names and private home addresses of people who have not indicated a desire yet to join a union. From my point of view, if there were a provision in there that anyone who was interested in certifying a union could have the choice of submitting their names and addresses to the CIRB, who in turn could submit them to the union organizer.... But what is missing in that, in my opinion, is the element of consent of the people involved.

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Mr. Steve Hindle: The person involved does have the right to decide to join or not join, but it's not incumbent upon the employer to determine whether or not that person wishes to join. Equal access should be given to the union to explain the benefits of membership, as well as for the obligation the union has to that member.

One of the aspects of telework, for example, is what provisions cover the person while they are working in their home. What are the obligations of the union to the person who is in the bargaining unit, irrespective of whether or not they've joined the union?

It's also incumbent upon the union to have some reasonable expectation that it can define the scope of the bargaining unit and where those people work. It is very difficult for a union to conduct discussions or negotiations with an employer without having a full understanding of the workplace, and if the workplace extends to the private residence, it's incumbent upon the employer to ensure the union knows where that private residence is.

The Acting Chair (Ms. Carolyn Bennett): Thank you.

Monsieur Rocheleau.

[Translation]

Mr. Yves Rocheleau (Trois-Rivières, BQ): You say that you wish in general that the Canada Labour Code will cover more and more workers in Canada, among others the government employees who are removed from the public service following an administrative decision. You say on page 9 of your brief that: “Bargaining rights under the PSSRA are severely limited.”

Could you give us a concrete example of the difference in actual practice between the Public Service Act and the Canada Labour Code?

[English]

Mr. Steve Hindle: I can give you a very specific and very timely example. The Public Service Staff Relations Board will not allow for the bargaining of staffing processes, so the process by which the federal government, as employer, staffs positions is governed under the Public Service Employment Act, and there is redress under that act through the Public Service Commission if there is a complaint about what's going on through a competitive process. The Canada Labour Code allows that to be bargained as part of a collective agreement.

What we are going through right now with the Canadian Food Inspection Agency is they are under the Public Service Staff Relations Act for labour relations, but they are not under the Public Service Employment Act. Therefore the employees are not able to bargain staffing in their contract, yet they do not have redress to the Public Service Commission if they have problems with staffing at the Canadian Food Inspection Agency. There is no clearly defined mechanism for an employee to seek redress from an action of the employer in a staffing process at the Canadian Food Inspection Agency.

And that's just one example.

The Acting Chair (Ms. Carolyn Bennett): Mr. Martin.

Mr. Pat Martin (Winnipeg Centre, NDP): Thank you, Madam Chair.

I'm very interested in the first points you raised: the right to be heard and the right to an oral hearing. One of the arguments you used, which is very good, is that you can't cross-examine a piece of paper. Anybody who's been involved in labour arbitrations knows that you often gain more out of the cross than you do from the direct examination. This is a serious issue, in my mind.

Another thing along the same lines that I'd like to ask you about is one of the provisions. Now, with the more representative board, there are opportunities for a single chair to hear certain cases. Does the institute feel this is a positive step, to have cases that are able to be heard by a single chair rather than by a panel?

Mr. Steve Hindle: I'm going to turn this over to Michel, who's actually done this.

[Translation]

Mr. Michel Gingras (Negotiator, Professional Institute of the Public Service of Canada): There is a principle of natural justice which the right to be heard follows from, like you mentioned.

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The balance proposed in the Bill between employers' and unions' panels, self-discipline of future boards as well as arbitration by a single adjudicator do not seem like a drawback to us. We already have the experience of grievance adjudication under the Canadian code and other acts on labour relations. We are aware that the Board can only function, when there are two such panels, if they function in a just and equitable manner.

It's obvious that the decisions won't always be in our favour, but we know that there is an internal balance. People talk to each other within a board. It's a permanent institution and we have no problem with that. Besides, it's a lot quicker and less costly.

[English]

Mr. Pat Martin: The other thing that's very interesting to me, and something I should have in fact twigged to earlier, is the point you raised about who should be voting in the matter of a strike vote.

I agree with you that it should be all members of the bargaining unit who are members of the union, for the reasons that you point out—that you may choose to exercise your right to not join the union if you so wish, but by doing so you forfeit some opportunities to participate. So I certainly agree with your point that only members of the bargaining unit who are members of the union should be voting on these kind of choices.

Could you expand a bit on your opinion of ratifying contracts? Did you have the same feelings about who should be voting to ratify collective agreements?

Mr. Steve Hindle: I think you will find that our point on that is fairly consistent—that, as American Express says, membership has its privileges. One of the advantages of being a member of the union is having some input into what actually happens internally in the union. That includes the election of officers and representatives. It also includes setting goals for bargaining and having a say on what the results of the bargaining are—either to accept or reject a proposed tentative agreement.

I think it's incumbent upon people who have made a conscious choice to recognize that they are choosing to have somebody else represent them, and choosing to let other people make the decision for them. I respect their right to make that choice, but I think when they make that choice it has to be a total choice. If you choose to reject membership in the union, you choose to reject participation in all the affairs of the union, including voting on a collective agreement.

Mr. Pat Martin: May I ask a quick question on the same subject, Madam Chair, just for clarification?

The Acting Chair (Ms. Carolyn Bennett): Okay; you have three seconds left.

Mr. Pat Martin: Okay.

Your recommendation, then, to give you satisfaction on that issue, would be to add the words “among all members of the union in the bargaining unit”. That would satisfy that particular consideration?

Mr. Steve Hindle: Yes, it certainly would. Thank you.

Mr. Pat Martin: Thank you.

The Acting Chair (Ms. Carolyn Bennett): Mr. Wilfert.

Mr. Bryon Wilfert (Oak Ridges, Lib.): Thank you.

The bill, as it's comprised at the moment, provides for maintenance of service provisions for the first time under the Canada Labour Code. I understand you've had experience with this type of provision under the public service legislation. Could you give us your thoughts on that in terms of how you see this provision, and how has it worked?

Mr. Steve Hindle: It has been hit and miss under the Public Service Staff Relations Act in terms of actually determining who should be designated as essential. It's a very time-consuming process. It takes a lot of energy as well as resources, not just from the union but also from the employer as well. Frequently, and especially with this current round of collective bargaining, it has required the intervention or the assistance of a third party to try to resolve disputes.

We have found that it has been less than efficient in its application. It is very bureaucratic. Once the designation process is completed and people have been identified, it's difficult to make changes—some that the union would agree are absolutely mandatory to be made, because somebody is replaced in a position. The new person has to be designated, and there's a whole process for identifying and notifying people. It's quite a time-consuming, unwieldy process. So it has been less than great, from our point of view.

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Disputes also arise as to whether or not the position should be designated and there is the possibility of litigation that flows from them, either through challenging what has happened at a designation review panel in front of the staff relations board or by challenging a decision of the staff relations board in Federal Court. So it hasn't been very useful.

Mr. Bryon Wilfert: Without throwing the baby out with the bathwater, are there some suggestions you might offer for streamlining the process? You talk about being bureaucratic. Are there ways you would suggest would make it more efficient and yet take care of the interests of all parties concerned?

Mr. Steve Hindle: Without getting into any specifics, I would suggest the models are out there with large employers covered by the Canada Labour Code. You need only engage the union and the employer in those situations in a discussion of what process you used, how you came to a decision that 25% of the plant would be designated or what the plant shutdown process would be. You can actually learn from the experience of others.

I myself and the institute have very little experience in the industrial world in dealing with that, yet it is a very common occurrence for large employers and unions to come together with it. Perhaps the process at Atomic Energy of Canada Ltd. is one that would be worth looking at.

The Acting Chair (Ms. Carolyn Bennett): Thank you very much. We seem to have done this almost on time. We look forward to what I'm sure will be your ongoing relationship with this process.

The Acting Chair (Ms. Carolyn Bennett): We welcome the next panel, PSAC.

Nycole Turmel, how would you like to organize your half-hour?

[Translation]

Ms. Nycole Turmel (National Executive Vice-President, Canadian Alliance of the Public Service): Thank you. My name is Nycole Turmel and I am accompanied by Mr. Georges Nadeau from the Negotiations Section and by Mr. Steve Jelly, researcher at the Alliance. We will make our presentation in both languages and answer questions in the language of your choice. The three of us will try to answer the Committee's questions.

Did you receive our document? Yes? No? It just got here. We apologize to the Committee. Sometimes, we don't have enough copies. We are a bit behind our schedule. I apologize to the interpreters. I will try to go slowly if necessary.

Do they have it?

The Clerk of the Committee: The interpreters have their own copies but we don't have enough for all members.

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[English]

Mrs. Brenda Chamberlain (Guelph—Wellington, Lib.): I would just mention, Madam Chairman, that there's only half an hour, so we are on a tight schedule.

To the panel, if we get 10 minutes of presentation, then it allows for questions, but if not, if it goes longer, then there's hardly any time for questions. I'd just make that clear for you.

Ms. Nycole Turmel: Ten minutes will be fine, I think.

[Translation]

Having participated in a number of discussions and consultations on proposed Canada Labour Code amendments over the last three years, the Public Service Alliance of Canada welcomes this opportunity to participate in Committee review of Bill C-19.

As members of the Committee are aware, the process that led to the introduction of Bill C-19 has been lengthy. During the last three years, we have been an active participant in a process initiated by the Canadian Labour Congress that was designed to ensure that the voice of Canadian workers was heard. In addition, we prepared a submission on the issue that was presented to the Canada Labour Code Review in October, 1995.

By and large, the process that led to the introduction of Bill C-19 has been positive. That said, a number of the positions advanced by the labour movement in general, and the Alliance in particular are either absent from the current Bill, or present in watered down and sanitized form. Many of these problem areas were raised before your Committee by the Canadian Labour Congress and we should like, for the record, to extend our full support to the positions advanced by the CLC.

Rather than reiterate the same points during this presentation, we will focus our comments on a couple of situations that apply, more or less, exclusively to PSAC members.

[English]

While it may be outside the scope of your committee deliberations, the principal failure of the review process is that the legislation will continue the legislative distinction between workers directly employed by the federal government and other workers in federal jurisdictions.

From our perspective, the Canada Labour Code, particularly as amended by Bill C-19, is a far more comprehensive piece of legislation than the Public Service Staff Relations Act and, as such, should govern all federal public sector workers. Hence, we would like to reiterate the position we advanced to the Canada Labour Code review, that the Public Service Staff Relations Act should be repealed and that the provisions of the Canada Labour Code should be modified to apply to all federal public sector workers.

Failure to cover federal public sector workers under the Canada Labour Code will continue the existing inequality whereby federal public sector workers are subjected to a labour relations regime that limits our ability to negotiate all terms and conditions of employment. In our view, this inequality will become more glaring as the restructuring that is currently under way in the federal public service takes hold.

Hence, while the government is in the process of reconstituting departments as agencies to make them more independent and adaptable, it is hobbling them with the outmoded collective bargaining relationship they had as departments.

The government's commitment to the status quo with regard to the new agencies is not accidental. To date, the PSAC has made representations to government on the creation of the Canada Food Inspection Agency, the Canada Customs and Revenue Agency, and the Canada Parks Agency wherein we strongly advocated that the new agencies be constituted under the more encompassing Canada Labour Code. Our representations have been wrongfully rejected and the new agencies are being constituted under the Public Service Staff Relations Act.

At the same time as the government is moving to create a number of agencies under the PSSRA that will continue the work and functions that were previously done by departments, it's hiving off some other services to the private sector. Since some of these functions properly belong under the Canada Labour Code, the government's restructuring program has made the issue of successor rights of particular importance to the PSAC.

Moreover, while the government did amend both the PSSRA and the code in 1996 to expand the scope of successor rights, there are a number of problems with the existing provisions that should be addressed.

[Translation]

While the Alliance was supportive of the amendments to section 47 of the code when they were introduced in 1996, our experience over the past two years has led us to believe that the section needs to be amended to achieve its stated objective—that is to properly extend successor rights and protect the acquired rights of former government workers when their work is transferred to a business covered under Part I of the code.

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In essence, the problem with section 47 is that while it extends successor rights to workers who are actually covered by a collective agreement or an arbitral award, it leaves the affected workers vulnerable for a protracted period of time when a collective agreement or an arbitral award have expired prior to the transfer.

The consequences of this legislative oversight have recently been played out for PSAC members employed at the Thunder Bay Airport and are likely to be repeated in short order at defence establishments in Goose Bay and Moose Jaw.

At Thunder bay, and notwithstanding the successor rights protection afforded by section 47 of the code, the Alliance was forced to apply for what was considered a new certification under section 24 of the code. As a result of delays generated by the new employer, it took fully six and a half months from the time we filed the application until the unit was certified on March 16th of this year.

As a result, we would urge your Committee to support an amendment to sections 47(3) and 47.1(c) of the code to the effect that an application can be filed immediately in the event that the transferred workers are covered by an expired collective agreement or arbitral award.

We would remind members of your Committee, as well, that the extension of successor rights under section 47 of the code is not all encompassing. As a result, a considerable number of federal workers are not being protected when their employer, the federal government, takes action to restructure their work environment.

At that same time that you are reviewing Bill C-19, a considerable number of federal workers are being transferred to private companies with no protection from either the Canada Labour Relations Board or the Public Service Staff Relations Board.

As well intentioned as we believe them to be, the successor rights provisions of both the code and the Public Service Staff Relations Act are incapable of protecting workers who are transferred to private companies in a majority of situations. Hence, over 500 workers with the Department of Public Works and Government Services are being forced to certify under provincial labour codes despite the fact that their work is being transferred to a single company.

Situations like these are not protected by the amended section 47, and will more than likely be repeated with increasing regularity in the months and years ahead.

[English]

With regard to the application of the code at airports such as Thunder Bay, and to defence establishments such as Goose Bay and Moose Jaw, the situation is problematic as well. While all the workers at these facilities were covered by the PSSRA, some will be subject to the provision of the code on transfer, while others will likely be subject to provincial legislation.

This division will result in two fundamental problems that should be of concern to Parliament. First, the certification process under the code will be delayed because questions as to the appropriateness of a bargaining unit must be determined. Secondly, and more importantly, the historical relationship at the workplace, both within the local structure of the union and during the bargaining process, will be disrupted or worse.

Finally, with regard to successor rights, we believe that while the drafters of Bill C-19 add an opportunity to address situations such as those that occur both during bankruptcy and franchising and subsequent to them, and in subcontracting where the work is transferred from one contractor to another, they failed to do so. It needs to be underscored that this failure will inevitably undermine the continued representation of thousands of workers.

Before closing, I should like to take a few minutes to briefly comment on some of the other aspects of Bill C-19. The alliance is generally supportive of the certification procedure amendments that are outlined in Bill C-19 because they should serve to speed the process and more fully address unfair labour practices. That said, we believe the government should have eliminated the $5 sign-up fee, as has been implemented in other Canadian jurisdictions. In our opinion, when a worker signs a card, he or she has made a commitment that is comprehensive, and it should be considered proof of membership in the union.

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[Translation]

As members of the Committee are undoubtedly aware, reform of the Canadian Labour Relations Board has been a priority for the labour movement for a considerable period of time. We have taken the view that since the Board's activities and rulings impact directly on the rights of employers, workers, and unions, the Board should be representative of the parties involved.

Unfortunately, while Bill C-19 moves a long way towards implementing the consensus that has been achieved by the labour movement and employers, the legislation falls short of the mark in a number of areas.

As currently worded, Bill C-19 gives the Governor in Council the unfettered right to appoint the Chairpersons and Vice-Chairpersons of the Board. However, since these positions, and particularly that of Chairperson, are pivotal to the operation of the Board, we firmly and fundamentally believe that labour and management should have a formal opportunity to participate in the selection process. In our opinion, such involvement could include a review of potential candidates and the proffering of advice to the Minister without undermining the neutrality of the persons appointed. On the contrary, involvement of the parties in the appointment process should serve to ensure that the appointees are qualified, and enjoy the confidence of the parties.

A second area of concern with regard to the appointment process as proposed in Bill C-19 relates to the members of the Board appointed to represent employees and employers. In this regard, we take the position that the legislative requirement that the Minister consult with the organizations representative of employees or employers is insufficient and inadequate. We take the position that the discretion vested in the Minister and the Governor in Council should be limited to the appointment of individuals to these positions from lists of names provided by the parties.

Other aspects of the composition of the Board and the appointment process are disquieting as well.

First, while the drafters of Bill C-19 deem experience and expertise in industrial relations as a prerequisite for appointment to the position of Chairperson and Vice-Chairperson, expertise and experience are not a requirement for persons appointed as members of the Board. If it were not for the fact that this provision was lacking from Bill C-19 and its predecessor legislation, Bill C-66, we would have concluded that the omission was a simple oversight. Unfortunately, this would appear not to be the case. As a result, we are forced to conclude that the government has no problem allowing issues as important as those routinely addressed by labour boards, to be heard by people without any direct knowledge or expertise.

Second, as the Alliance argued in its submission to the Canada Labour Code Review, language, gender and equality should be considered important selection criteria for the Board.

I'm going to skip a few paragraphs because it's 4:15 already and you want to ask a few questions.

In our opinion, amendments to Bill C-19 that incorporate the preceding points into Bill C-19 will strengthen the legislation, and result in a Board that is more representative and qualified.

We particularly wanted to look at the issue of replacement workers. One of the most controversial and contentious issues with regard to labour relations at the federal level has been the use of replacement workers and the absence of federal anti-scab legislation. While it is true that a serious philosophical difference exists between employers and unions on this issue, the absence of anti-scab legislation tilts the balance of labour relations so far in favour of employers that it undermines the integrity of the entire system.

As a result, we believe that government should act legislatively to restore the balance. That they have failed to do so in a comprehensive way in both Bill C-66 and Bill C-19 is more than a little unfortunate. Instead, the drafters of Bill C-19 have included a provision that will amend section 94 of the Act by adding the following subsection:

(2.1) No employer or person acting on behalf of an employer shall use, for the demonstrated purpose of undermining a trade union's representational capacity...

I won't read the whole subsection as you have it.

This so-called prohibition relating to replacement workers is subject to interpretation and as such will leave the question open as to what the precise prohibition is until such time as the Board has reviewed a few cases.

In strongly advocating on behalf of a general prohibition on the use of replacement workers, we would, once again, urge your Committee and the government to consider some of the negative consequences of allowing replacement workers.

• 1620

There is considerable evidence that the use of replacement workers increases the potential for picket line violence and confrontation. While the government may believe that enforcement is the appropriate response to such occurrences, legislative provisions that prevent occurrences of violence and confrontation in the first are a far better approach.

It needs to be underscored as well that the threat of replacement workers and their actual use undermines the integrity of the labour relations system and results in more conflict between employers and unions. And more conflict means more strikes and lockouts. This in turn undermines meaningful collective bargaining and makes it significantly more difficult to resolve the dispute between the parties.

[English]

In the light of the above, we are constantly arguing that the Canada Labour Code should be redrafted to prohibit the use of both bargaining units and non-bargaining unit workers or any person, including those who have exercised managerial functions; prohibit the use of persons engaged, transferred or hired after the earlier of the dates, that on which a notice to bargain is given and the date on which bargaining commences; and prohibit contracting in or out of the establishment.

While these proposed amendments will go a long way towards ensuring that the bargaining environment is fair, they need to be augmented by specific provisions that protect workers from an abuse of the anti-scab provision. In this regard, we have proposed and reiterate here today that provisions protecting any person who honours a picket line need to be enshrined into the code. Moreover, enforcement of the system requires that the unions be given access in the company of government, labour relations officers and a representative of the company to enter and inspect the employer premises.

I think I'll stop there. You have the last few pages. We'll be able to answer a few questions. Thank you very much.

The Acting Chair (Ms. Carolyn Bennett): Thank you very much.

We have 12 minutes left, so I would suggest that we will go around and get our four questions in, and then we will let the panel answer the questions in whichever order they like so that they can run out of time, if they see fit, on questions they don't want to answer.

So let's have 30-second questions a round, but you may need a pen and pencil to take the four questions.

Mr. Johnston.

Mr. Dale Johnston: Thank you, Madam Chairman.

I do notice you submitted in your presentation that a complete ban on replacement workers, in your opinion, would have an effect of more peaceful strikes and shorter durations, and so forth. We've heard that alleged before, but we are having difficulty getting any figures on it. I wonder if you could supply us with any figures to substantiate what you've said in that regard.

[Translation]

The Acting Chair (Ms. Carolyn Bennett): Mr. Rocheleau.

Mr. Yves Rocheleau: I would like to congratulate you, Ms. Turmel, for your presentation. I hope that we get your document because it's very interesting.

I would like to know what you think of the representativity of the Canada Industrial Relations Board. When the government says that the Minister will be able to consult with employers' and employees' associations and not with the unions or the union representatives, do you think that there's something in the wind or that it's just a slight difference?

[English]

The Acting Chair (Ms. Carolyn Bennett): Mr. Martin.

Mr. Pat Martin: Thank you very much for an excellent presentation.

I have two questions. You mentioned that in signing union cards you should do away with the $5 fee. I agree, but a number of people have come forward saying that there should be a mandatory secret ballot vote after the fact, even if you have a majority of cards signed. I'd like your opinion on that idea.

And also, at Goose Bay and Moose Jaw we have some horrendous things going on with workers as terms and conditions are being altered as the situation gets privatized. Is there any amendment to the code you might see that would try to shield workers from this downward trend as the alternative service delivery things take place?

The Acting Chair (Ms. Carolyn Bennett): The last group indicated they did not have an opportunity to participate in consultations, and I was wondering if PSAC had an opportunity to engage in the consultation with the Sims task force.

• 1625

Mr. Steve Jelly (Public Service Alliance of Canada): Let me just quickly take care of the Sims task force. We did participate in it both as an individual union and through the Canadian Labour Congress. By and large we found the process to be useful and beneficial.

With regard to a complete ban on replacement workers and the argument that we and others would use, that it reduces picket line violence, we don't have any figures per se and certainly not any macro figures, but we could, like a number of other unions, provide anecdotal information. In terms of situations where replacement workers have been used, there is, in our opinion, an increase in violence.

There was a question as to what we think with regard to representation and consultation and so on with workers as opposed to directly with unions. I believe that argument was certainly raised in response to the last piece of legislation by the CLC, which we were a part of. We took the position then and we take it now, if I understand the question correctly, that the appropriate avenues for the government to address those questions are through the employers and through the unions, not through individual workers.

In response to Mr. Martin's question in terms of the mandatory secret ballot, secret vote, regardless of the number of cards that are signed when you apply for certification, we believe, and have believed for a long time, that if you can demonstrate a majority support for the union when you apply for certification, and if the processes have been followed and are appropriate, then there is no reason whatsoever for a vote in those circumstances.

In terms of alternative service delivery and the Goose Bay situation, we believe there is a problem with the successor rights provisions that were implemented after the 1996 budget and we would propose a couple of specific amendments to both proposed section 47(3) and section 47.1 that we believe would rectify this situation.

An hon. member: Could you make those available?

Mr. Steve Jelly: We can make it available. We'll make the specific amendment available to you.

Those are all the questions I got.

[Translation]

Ms. Nycole Turmel: I would like to add something, regarding replacement workers especially.

Experience has shown over the years that... I cannot give you statistics like those Steve Jelly mentioned, but we can remember some circumstances—I'm thinking of Halifax and the North, in the mines—where having replacement workers was more trouble than it was worth. There was violence. The hiring of replacement workers increases the potential of violence. We consider it possible to protect essential services without resorting to replacement workers.

I would like to add something else regarding the proposed changes to the Act. It's about the 72 hour notice before the announcement of a work stoppage. We think that this could create even more conflict than right now. Presently, after 7 days, workers can announce a work stoppage. Besides, it's not 7 days anymore but 21 days. It's another change that you're proposing. Our opinion is that it won't help solve any collective bargaining problem.

Mr. Yves Rocheleau: Nobody answered my question. I asked earlier if talking about representatives of employee organizations instead of representatives of trade unions would make a real difference? Does the legislator has something specific in mind or is it trivial according to you?

• 1630

Ms. Nycole Turmel: I think, and so does the Alliance, that it's very important to seek the unions' advice. In our presentation, we explain that the amendment you're proposing won't answer the needs of the Board.

As for consultation, consulting with the unions—and this is being done at other levels—can solve part of the problem. This is our position.

[English]

Mr. Pat Martin: Ms. Turmel, is it your official position that you would like to see the abolition of the PSSRA and to have all employees in the public service fall under the Canada Labour Code?

[Translation]

Ms. Nycole Turmel: It's not a secret: for years, we've been demanding that the Public Service Staff Relations Act be abolished in order to regroup all members under the Canadian code. That has always been our position before every committee, in the civil service or elsewhere: we would like all workers to be under the Canada Labour Code.

That would simplify all problems that arose over the years regarding staffing, classification and so on in terms of labour relations, consultation, claims or negotiation.

[English]

The Acting Chair (Ms. Carolyn Bennett): Thank you very much.

Professor Knight, welcome. As you know, there's half an hour at your disposal. The wish of the committee is generally more questions, but how you want to divide it up is up to you.

Professor Thomas Knight (Associate Professor, Faculty of Commerce and Business Administration, University of British Columbia): Thank you very much. It's a pleasure to be here.

I also anticipate having more time for questions. I don't have an extensive text of remarks to present. I really have four or five points I want to make. Then I would prefer to have an exchange that ranges perhaps more widely.

• 1635

The perspective I'm bringing, of course, is from Vancouver, from the west coast. There have been several issues in the federal jurisdiction out there that are of higher visibility and perhaps greater importance. So I've chosen to focus my thoughts, my comments, largely on transportation and largely in the area of the port of Vancouver or the ports on the west coast.

First, I thought I'd just set a little context by acknowledging, as I'm sure you've heard many, many times, that there are several conflicting policy values at stake here. Really, which one you put in the stronger position is a matter of political judgment. But there's no question that the code, certainly in my view, strongly supports collective bargaining as a method of determining working conditions and providing workers with participation in those determinations.

As the task force pointed out, there is a strong value of voluntarism and, as much as possible, seeing the parties reach their own terms and conditions, their own settlements when they have disputes, and I think in general, a move in the direction of less regulation. That is true generally but in labour relations in particular.

There's also a concern, and I think it's particularly important in so much of the federal jurisdiction, with protecting the interests of third parties. This goes back to the early days of federal legislation and is reflective of the nature of the industries that are involved in the federal jurisdiction. I think this is particularly important in some of what I have to say from that west coast perspective.

Fourth, I think there's also a policy value to be placed on stability in the legislation. Along with that, I think there's generally a concern, as well as a concern about costs and competitiveness and all of those surrounding issues, that we somehow achieve labour relations with perhaps a bit less litigation as the way in which disputes are resolved, whether those are day-to-day disputes or the big disputes having to do with the code itself.

These four values, therefore, are the ones that I place greatest value on, and inevitably they come into conflict. As I said, which ones you place in greater priority is essentially a political judgment.

In focusing on transportation, it goes without saying, perhaps, that work stoppages are integral to collective bargaining. That is to say, it is the method we prefer as a matter of policy to resolve conflict—conflict to resolve conflict, differences of interest at the bargaining table, the potential for those costs. So it's there. That's a part of the institution.

It seems to me at the same time, though, that we need to acknowledge that bargaining disputes, work stoppages in transportation, inherently affect a lot of third parties. Whether that involves the grain farmers, the rest of the transportation system, or the forestry industry in B.C., other commodity sectors that are very important economically, inevitably there's going to be that impact. I think we need to be explicit about that.

I think it important that we also, as the world changes and all of the issues of international competitiveness and globalization continue to represent very significant pressures on all of us, acknowledge somewhere, somehow, the potential impact of service disruptions on our international reputation, our reputation as a supplier, as a shipper, as a producer, as an economic partner. I think it's important to make that explicit here.

Another thing I've observed, and I've been in British Columbia for 16 years and have been through several major disruptions in the port—it's not just in the ports, but I think in B.C. labour relations—is that there is a certain volatility and tendency to both get depolarized in disputes and then escalate very rapidly. I have observed that where bargaining itself has gone on for a very long time, and then the conciliation process has drawn it out even longer, it can take a very small spark to ignite the entire coast, or to shut it down in a coast-wide dispute. I think that's something that is a part of the west coast experience and something we should take note of.

• 1640

Among other reasons—that was my third point about conciliation procedures—I support the approach taken in the proposed amendments to the code. I think it's extremely important to streamline the process, to make it faster, make it more decisive, and to insulate it, as the task force also pointed out in their report, from more transient political concerns.

I think the key term I would use is to make it more decisive, to make an effort to resolve disputes but to acknowledge, when that is not possible, to then decide where we go from there and to do something rather than drawing that process out and waiting for something else to happen. It's while we're waiting for something else to happen that there tends to be an explosion of one sort or another frequently in B.C. I have observed this in the longshoring labour relations. I think it's also important here to reinforce, support and encourage voluntary settlements between the parties in the ways that those proposed amendments do.

My last two points here are clearly controversial and I'm going to be expressing my opinion. I know you've heard lots of opinions in lots of different directions. I would hope that mine is regarded as being a little bit removed and disinterested—not uninterested in the least—but removed from a partisan view. Nonetheless, they are opinions.

As for work stoppages, I do believe that having a secret ballot vote and a notice requirement are two essential ingredients and should be added to the structure under the code.

When it comes to essential services, I think it's also important to have some mechanism in place to deal with situations where a work stoppage would represent an immediate threat and a serious threat, to use the language of the proposed amendments, to public safety or health. But it is important to notice that that provision does not include the word “welfare”, and it's welfare that generally opens the door to treating a dispute that has major economic impact as an essential services dispute. The choice has clearly been made to exclude that particular term. So the essential services component in the proposed amendments wouldn't reach an economic dispute or a dispute that's having a very significant economic impact.

I am of the view that the proposed protection of grain shipments through the ports—and this is particularly important, obviously, in Vancouver—is a questionable compromise. It's a compromise between completely free collective bargaining and maintaining our international reputation, minimizing the impact on third parties. It clearly is an extremely important area. But I'm concerned about just insulating grain shipments. I think there are other kinds of shipments that go through the port that have a similar economic impact when they're disturbed, but I don't know that there's as strong a political representation behind those interests.

My own view is that having this special treatment could lead to further instability, further litigation. It could be very difficult to enforce. I could imagine situations where an effort would be made to actually disrupt grain shipments where a dispute is occurring elsewhere in longshoring. So I'm concerned about it administratively.

More than that, I'm concerned about the ports in general, especially on the west coast, and I think that I agree, until dissuaded, with the commission on the west coast ports when it recommended that there be a standing authority on the part of the minister to intervene in disputes, rather than going through Parliament, and as necessary impose some form of arbitration, whether mediation arbitration or final-offer selection.

• 1645

This goes back to my point that we need something more decisive here, because as long as we're just drawing it out waiting for something else to happen and waiting for somebody else to intervene, the dispute becomes more intractable. I think that applies to the ports in general and not just to grain shipments. So that's my thought there.

Finally, the issue of replacement workers continues to be very controversial, of course, in British Columbia. We recently had a review and some recommendations on the subject. I think it's important to acknowledge that this is essentially a power issue. It's often framed in terms of much loftier values and abstractions, but we're essentially talking about power and the ability to mount an effective strike or, on the employer's point, to take a strike and continue operating, if that's the employer's choice.

I think it's an area that has much greater symbolic force than practical. It's in about one-quarter of the disputes in the federal jurisdiction where there is any effort to involve replacement workers. That's not insignificant, but it's certainly not all disputes. I think it is an issue that clearly inflames people and inflames partisan views.

Because it is such a polarized issue, the questionable compromise I see here is to say there will be no general ban on employers hiring replacement workers during a work stoppage, except where the employer's motive is to actually attack the representational status of the union. That one really concerns me. Any time you turn a piece of legislation on motive, you're inviting litigation and probably lots of it. Because it's a power issue, I can't imagine a union not declaring that the only reason the employer is bringing in replacement workers is to undermine the union.

I'm concerned about this one in terms of what it would do to disputes, the amount of litigation it would probably provoke, and how long it would take for us to understand when it's the employer's motive and when it's not. The task force was very honest in saying there is no easy test for that. It's very difficult.

I believe, on the other hand, the proposed amendment that would make it a right for workers to return to their jobs at the conclusion of a dispute is a valid and important one, and would go a long way toward dealing with both the volatility of this issue and the legitimate concern workers have that the employer is trying to just bring in replacements and go on with the status quo.

But it has to be acknowledged, and I think it sometimes gets lost in strong statements made on this issue that sometimes unions can take unreasonable positions as well, and the employer needs to be able to continue operating and needs to be able to make that choice. I just get concerned when we start wading into the waters of regulating the relative power of the parties.

I'll stop there and see what conversations that might provoke.

The Acting Chair (Ms. Carolyn Bennett): Thank you very much for that very clear presentation. From my point of view, it would have been great if you had presented first.

Mr. Johnston.

Mr. Dale Johnston: Thank you very much for that presentation. I would like to apologize on behalf of the committee that there are so many empty seats here today. I think your presentation would have gone over pretty well with most of them.

You read so many things that I hardly know where to start. I was very pleased to see that you raised the point about the west coast ports inquiry. One of my questions would have been about the need for a dispute settlement mechanism rather than approaching everything on a piecemeal basis.

• 1650

One of the things that have been brought to our attention is this, and I wonder if you could comment on it. During the work stoppages at the west coast port that affect grain, often what happens is the union will go out, but they will say they will load the grain as it comes in in the meantime. Of course, their employer sees that as a way for them to subsidize the strike and bring everything to a head and make Parliament act to get them back to work. They rely on the back-to-work legislation. Then the employer doesn't seem to see any way out of this other than to....

In my opinion, the way out of it in the first place was to get down to brass tacks and bargain their way out of it, but they seem to find themselves in a position where they think they're compelled to lock the workers out so that they bring Parliament to action and legislate them back to work. Now they're still faced with the prospect of settling whatever it was that was grieving these people in the first place, and often they use that very same mechanism, which is final-offer selection in some cases, and in some cases it's just straight mediation.

Could you confirm if I have that...?

Prof. Thomas Knight: I think you do. Of course the employers tend to see the union's offer to handle the grain as a bit of a “divide and conquer” strategy, notwithstanding that it's an essential services approach and it puts the union in a good light. Employers are more frequently accused of doing that, but that's how the employers tend to view that tactic, that it diminishes the pressure for intervention, and once they're into a dispute, there is this tendency to seek it.

As far as final-offer selection goes, I suggested that as one possibility. I know the task force was very negative, really, about that as an alternative. They seem to be saying you have a single issue, and generally it's the most competitive issue, which is just money.

Mr. Dale Johnston: The Sims task force?

Prof. Thomas Knight: Yes.

I'm not quite as pessimistic about it. It is true that it tends to create winners and losers, but it does exert a great deal of pressure on the parties to negotiate. Again, this is me from a bit of a distance, but certainly, from being in the environment and observing port negotiations, it has seemed to me that those are among the parties who need some pressure to negotiate—as you say, to get down to brass tacks. They have been working in recent years on how they conduct their negotiations. I don't know what their current status is—I guess we'll find out when the contract comes up—but it's an example of where they could certainly use some assistance in improving their relationship and developing better bargaining techniques.

That's the great virtue of final-offer selection: it does put enormous pressure. However, as the task force correctly pointed out, when you're dealing with very complicated language issues and change issues, it's not necessarily the best way to go. But then again, maybe the pressure it exerts could be beneficial.

Mr. Dale Johnston: I have just one very brief comment. I believe what you've just said would be the case: the fact that it is there would put pressure on the two parties to really get down and bargain earnestly to come to a conclusion, rather than using this final step. So final-offer selection, when used to its ultimate, would not be used at all.

Prof. Thomas Knight: That's really the objective of final-offer selection as a dispute mechanism. It's designed to restore the pressure of an outright work stoppage.

The Acting Chair (Ms. Carolyn Bennett): Mr. Martin.

Mr. Pat Martin: I don't know where to start. That was a very good and thought-provoking presentation.

I would like to comment that it's funny how when the ILWU does show goodwill and good faith and agrees to handle grain in the interest of the well-being of the nation, they get slapped with a lockout as if they're up to something sneaky by actually cooperating and handling the grain. In 1996, when it was the ILWU foremen who were out, two days of handling the grain and, boom, they are locked out and the back-to-work legislation process starts.

• 1655

I have two questions. One aspect you didn't deal with was access to off-site workers, which is part of the new code amendments. Do you have any feeling on the right of a union to find out who all the members of the bargaining unit are so they can approach them to see if they are interested in joining the union? I would like you to comment on that.

Then you mentioned how difficult it is to determine motive when you are talking about using scabs to undermine the ability of the union to operate. As a union we have to demonstrate motive, and how do we know what is in somebody's mind? It's a very difficult issue. What would you recommend, then, a total ban on replacement workers or no ban on replacement workers, in your own opinion?

Prof. Thomas Knight: On the first point, the off-site workers issue, my own view is that for collective bargaining and union representation to be fairly available and to proceed effectively there needs to be complete information of that sort. As you say, employees who are actually in the bargaining unit...I think it is appropriate that such information be available.

It's rather like what we've had for many years in B.C., the right of access of unions to the actual property of the employer where that's the only opportunity the union might have, or those workers would have, to come into contact with union representation. It's an analogous provision. I don't see it as something that needs to provoke a major controversy, in my opinion.

On the replacement workers, my own view is that there should not be a ban on the employer's right to hire other workers during a dispute if that's what the employer chooses to do. As I said, I think the real issue of representation and whether workers will retain their jobs is addressed in the other proposed amendment, which is guaranteeing that they would be able to return to their jobs at the conclusion of a dispute.

My point here, regardless of where you come down on replacement workers, is that this as a compromise, allowing the union to challenge the hiring of workers only where it can demonstrate that motive of trying to undercut representation, is a bad solution to the controversy. My own opinion is that we are better off staying out of that kind of regulation.

If you really pursued the logic of that—from a labour point of view, this is a distasteful kind of analysis—you would have to start doing things such as saying workers can't take alternative employment. If what you are trying to do is maximize the cost to both sides and therefore to make it result in a shorter dispute, if you followed that logic all the way out, you would have to restrict recourse to the union strike fund.

I guess I would also have to say the right to collectively withdraw labour is not the right to shut the employer down in an absolute sense. It is the right to withdraw labour collectively; and that's a lot of power. It's not a cost-free decision for the employer to consider hiring replacement workers.

My own opinion is that's where we start getting into regulating the relative power balance of the parties. It invites instability in the legislation, among other things. That is certainly the case in British Columbia, where we have a history of the pendulum swinging quite widely. We all know that should there be a change of government, which inevitably some day there will be, that will be one of the first targets, and there will be a lot of controversy around that.

• 1700

These things do have a way...I mean, most of my work is actually at the workplace level, and I see the impact of the symbolism of the legislative controversy and instability. It does have an impact in how workers and supervisors and union representatives and everybody relates, and I don't think it's very productive.

Mr. Pat Martin: Thank you.

The Acting Chair (Ms. Carolyn Bennett): Raymond Bonin.

Mr. Raymond Bonin (Nickel Belt, Lib.): Thank you, Madam Chair. I'm not a member of this committee; I'm replacing, but I've been on all sides of the table, and I've been chairman of my local.

During a strike there's an awful lot of power given to a few: the leaders of the union, the negotiating team. On the picket line, there are two things that are the most frustrating. One is seeing other people go in and do our job. The other one is wanting to go back to work, but being denied the opportunity to put it to a vote by our own unions.

Do you believe there is room for a compromise or a trade-off between replacement workers and a mandatory vote to return to work, subject to a substantial new offer? Presently in my own riding I have a lot of federal government employees who want the pay equity settlement, but they're being denied the opportunity to grasp it. Is there room for compromise, do you think, between those two?

Prof. Thomas Knight: I don't know. I need to think about whether it's appropriate to link those two directly. I do resonate to the suggestion. I don't know if I'd make it mandatory—you know, mandatory upon what? Who would trigger it?

Mr. Raymond Bonin: It's not an easy thing to do, but it can be done.

Prof. Thomas Knight: No. I do resonate to the desire.... In my experience many workers, including the reservations person I spoke to in making my flight reservations to come here...as soon as she found I was in labour relations she gave me an earful on how she felt not being allowed to vote on things as the—

Mr. Raymond Bonin: As a labour leader, I was chairman of an airline employees' union.

Prof. Thomas Knight: Okay.

Anyway, I think that's a reflection of changes that are taking place in the workforce. There was a time when it was really, “Our leaders make our decisions for us, and that's what we elect them to do”. That's still the case by and large, but I think there does need to be a point, certainly in prolonged disputes, where workers would have that opportunity.

Every time I hear the word “mandatory”, though, I start getting nervous and try to think what all the ramifications of that would be. Who would declare it? Who would move it?

Mr. Raymond Bonin: On replacement workers, it'll be mandatory, so strictly the other side.

Prof. Thomas Knight: Yes. Well, I guess I would prefer to see that in place than a complete ban on replacement workers, if it's a choice.

The Acting Chair (Ms. Carolyn Bennett): Thank you very, very much for your presentation. We'll keep your cheat sheet now for our further questionings of the other panellists.

Prof. Thomas Knight: Thank you.

• 1705

The Acting Chair (Ms. Carolyn Bennett): As you know, you have half an hour to divide up as you see fit. Sometimes the question period is the most interesting, so we hope—

Voices: Oh, oh!

Mr. George C.B. Smith (Chairman, Federally Regulated Employers—Transportation and Communication): So you want us to be shorter on the presentation and longer on the questions?

The Acting Chair (Ms. Carolyn Bennett): We always worry about the ones who present for the full half hour, but maybe they don't want any questions.

Mr. George Smith: Attention: strategy in the making!

Let me begin by introducing myself. Then the rest of the group can do that. I'm the vice-president of human resources at the Canadian Broadcasting Corporation and the chairman of FETCO, federally regulated employers in transportation and communication, on whose behalf I will be speaking today.

Ms. Leslie-Anne Lewis (Federally Regulated Employers—Transportation and Communication): I'm Leslie-Anne Lewis from Canadian National. I'm on the main committee of FETCO.

[Translation]

Mr. Jean Bédard (Federally Regulated Employers in Transportation and Communications): My name is Jean Bédard, from the Maritime Employers Association.

[English]

Mr. David Olsen (Federally Regulated Employers—Transportation and Communication): I'm David Olsen. I'm assistant general counsel at Canada Post Corporation, and a member of the subcommittee at FETCO dealing with part I of the Canada Labour Code.

Mr. Richard Cavanagh (Federally Regulated Employers—Transportation and Communication): I'm Richard Cavanagh, national director, external relations, for Stentor Telecom Policy Inc., and am representing Canada's major telephone companies.

Mr. George Smith: I will attempt to be brief. I intend to divide the presentation...and copies of the formal presentation will, I hope, be circulated shortly.

There are really four points I want to hit on. I want to begin with who we are, because I think it's important for you to understand on whose behalf we are speaking today. Secondly, I want to briefly discuss concerns that we have and that we believe you should have around any legislative reform. Thirdly, I'll focus on the process of legislative reform used in this particular circumstance. And finally, I have a couple of brief comments on several sections of the proposed amendments that we would like to draw to your attention.

In terms of who we are, FETCO is an association of over 20 federally regulated companies. We have in our employ over 400,000 employees in the federal sector. You can see from our brief that we represent airlines, railways, the post office, broadcasters, maritime employers—a huge section of the federal employers. For the most part, we are highly unionized. And I would make note of the fact that our operations are unique in that we operate 24 hours a day, 7 days a week, 365 days a year, which is significant when you consider this in relationship to legislation that might exist in some of the provincial sectors.

In terms of general concerns that we believe must be considered in terms of legislative reform, it really comes down to consideration of two issues as it relates to our member companies. One is the issue of competitiveness and the other is the issue of stability.

The world has changed a lot in the last almost 20 years since the last revision of the code, and we believe that virtually all of the member companies have been affected by changes such as deregulation and free trade. And competitiveness is a thrust that does get translated into our industrial relations and that we believe has to be taken into account in any legislative reform.

In addition, we believe the need, the desire, to have a stable framework within which labour, management and employees can operate is an overriding consideration.

• 1710

So we strongly believe the law should only be changed where it is seen to be not working or where it is not in line with general public policy and the economic environment.

My third section relates to the process; just a short history here. Most of the folks at this table have been involved since the conception of this legislative reform. It was really in early 1995 that this was first born of a labour minister who, I think, has been three times removed by now. In fact, we believe four labour ministers have reigned during the particular process we're describing.

That is not to be critical of the process. We believe it was and is an extremely positive process. But the fact is, there was really only one stable force and only one link of continuity through that time—I believe he's sitting behind me here—in the person of Michael McDermott. He did steward—and I must say, very positively—the movement of this activity between ministries. That's no easy task, as you know.

I think it is most important that we acknowledge that the consensus-building process that was identified and followed in the Sims commission report is something that should be a model for legislative review. FETCO fully endorsed it and participated. Our members and the individuals around this table contributed hundreds of hours of their own time, but all of us believe that was time well spent. Quite frankly, though, we believe it's time to get on with it and pass this bill.

We would compare and contrast what happened here—in a very positive sense, in favour of the process used—with the politicization of labour code amendments in the Ontario situation, with which I think many of you are familiar.

Successive governments have politicized the labour code, and the appointment of people for the administration of that code, to the detriment of the industrial relations community, and injected instability in that community. Again, we believe this is a model that should be followed by Ontario and other sectors.

We had some concerns when Bill C-66, as the translation of the Sims report into legislative language, was made. We had an opportunity, through a committee like this, to address our concerns, especially in the area where we felt that either the recommendations did not reflect the consensus that had been reached...and I must emphasize, in a huge majority of situations, I think, we surprised people with the ability of a group of labour-management folks to come to consensus on some very contentious issues. So were concerned when that wasn't reflected. We were also concerned in areas where there were aspects of the bill that had not been part of the consultative process.

We are content that, on balance, Bill C-19 does address the concerns we raised and does represent a package that, as federal employers, we're prepared to endorse. We are very positive on the process, and for the most part, the product, we believe, is one we can live with.

There are two areas, which we highlight for your consideration, where we do continue to have concerns. Proposed section 47.3, the provision for successive contracts for service, is a concern to us: (a) since it was not something that was subject to the consultative process; and (b) because it does not meet the test of competitiveness that we believe, as I mentioned at the outset, is so significant to the consideration of labour reform.

We would also point out to you that, in particular, proposed paragraph 47.3(1)(b) gives the Governor in Council what we believe are unprecedented powers to enact regulations to designate other industries. Should you decide not to address the general issue of proposed section 47.3, we believe that specific section is potentially troublesome because of those unprecedented powers.

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The final area of concern relates to proposed section 87.7. We don't intend to get into the specifics of that provision other than to say we believe the provision in and of itself, where a commodity or service is designated, is an issue of precedent and to our mind flies in the face of full free collective bargaining, which we endorse as the foundation of the federal labour code. We believe once you've designated one industry or one service there's a potential slippery slope that would take us in a direction away from full free collective bargaining.

In summary, as I say, we endorse, and fully endorse, the process, the product, subject to the input I've just given you on those two proposed sections. We believe we should move the bill forward to passage now so the parties can begin to adjust to the changes.

The Acting Chair (Ms. Carolyn Bennett): Thank you.

Mr. Johnston.

Mr. Dale Johnston: Thank you, Madam Chairman.

Thank you for your presentation.

So you're not in favour of successor rights. Is that correct? Would you like to see that part removed from the bill?

Mr. George Smith: It's not that we're not in favour of successor rights. Successor right provisions exist in other parts of the code. It's the nature of this successor right. The application of normal successor rights opens the contracts and allows the parties to negotiate terms and conditions that are suitable to the current circumstances. In this particular case there is a provision that eliminates the negotiation, and in fact it fixes the wage rates.

Mr. Dale Johnston: It could be very much of a factor as far as competitiveness is concerned.

When you talk about competitiveness, are you talking about your domestic competitors? They would all be covered by the same labour code. You must mean you have to compete internationally as well.

Mr. George Smith: In particular, the way this is written now, with the impact on air carriers, yes, that is a concern to those carriers that have a large percentage, or a certain percentage, of their business outside the country.

Mr. Dale Johnston: Do you see proposed section 87.7, which essentially makes essential services out of a certain sector, as having a potential for litigation or court challenges?

Mr. George Smith: Again, we're focusing here on the principle—

Mr. Dale Johnston: That's exactly what I'm talking about.

Mr. George Smith: —of that kind of designation. Without getting into detail about the commodity or services that might be affected, we think there is a potential for litigation, but there's also an incredible potential impact on the industrial relations fabric when you have interconnected industries facing that kind of designation.

Mr. Dale Johnston: How do you feel about a dispute settlement mechanism in place of something like this, the designation of one particular commodity or one or two particular groups?

Mr. George Smith: Our very strong preference is for full free collective bargaining, which would result in the parties ultimately finding a solution themselves and not having the intervention of government.

Mr. Dale Johnston: How about a dispute settlement mechanism that encouraged every aspect of collective bargaining and reaching a settlement on their own but did provide, for the instance in which they did not reach a settlement, that one would be provided for them?

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Mr. Robert D. Nault (Kenora—Rainy River, Lib.): No one agrees with the Reform position.

A voice: You missed the best presentation.

Mr. Robert Nault: I apologize for that.

Mr. George Smith: Having been part of an experiment in a previous life when I was vice-president at Canadian Pacific Rail, I can say with all the good intentions of that kind of process that full free collective bargaining is still the preferred option.

Mr. Dale Johnston: We've all had previous lives too.

Thank you.

The Acting Chair (Ms. Carolyn Bennett): Mr. Martin.

Mr. Pat Martin: Thanks for the presentation.

First of all, there's nothing in here that precludes the two parties, if they see fit, from using some form of binding third-party arbitration.

Mr. George Smith: There's nothing in the current act that precludes that either.

Mr. Pat Martin: Right. I just wanted to make that clear.

With your reservations about proposed section 47.3, my only comment is that the whole principle here is to take wages out of competition in terms of contracts. We would like to see contracts awarded based on the skill, ability and productivity of the contractors and not on their ability to find cheaper and cheaper wages. I think that's really the motive here.

We're seeing a classic example in Goose Bay-Labrador right now with the contracting out of non-military services to an English company. Unfortunately, it falls under the old Public Service Staff Relations Act rather than the Canada Labour Code because nothing binds it to carry on paying the same employees at the same rates of pay. In fact, wages are vastly reduced. It's just an example of what probably motivated the people who wanted this protection in place and why we would argue for it to stay.

You mentioned in your report that some aspects you agreed to during the exhaustive consultation process, with the compromising and giving and taking, failed to make it into the final package, and some things that weren't raised during the consultation process are showing up here, so you didn't have an opportunity to comment or negotiate on them. Could you give us any specifics of things that showed up that you didn't actually see raised during the two years of consultation?

Mr. George Smith: I'm sorry if I wasn't clear, but I was referring there to when the Sims process was converted into the first piece of legislation, Bill C-66, and we had a few bumps in the road. At an earlier committee such as this we had divided those concerns. It's our belief that through that process, and since then, the majority of our concerns have been addressed.

Mr. Pat Martin: That's fine. Thank you.

The Acting Chair (Ms. Carolyn Bennett): Mr. Nault.

Mr. Robert Nault: I was here the last time you came. Your presentation is markedly different this time, and I appreciate that.

I also am somewhat of a purist when it comes to collective bargaining. I would agree with you about the whole issue of proposed section 87.7 if bargaining were going on at all on the west coast, and we could have a serious debate.

But I can tell you, being a purist, that I hate even more to have to legislate people back to work, and it seems to me that's all we're doing on the west coast. I hope this will be a change that will reflect an improvement in the collective bargaining process on the west coast. If it doesn't, we'll be back doing what we have to do for the good of the nation: legislating people back to work, putting a third party in there, and not resolving the issues that should be resolved by the parties.

Having said that, I'm sort of biting my tongue and holding my nose with this as well, as you are, but I think we have to attempt to do something, because we haven't had anyone come here and say that the process on the west coast works.

Would you agree with me that this at least is a good solid attempt? Even my friends in the labour movement are biting their tongues and agreeing that this is at least a solid attempt to get back to the majority of people out there and to the collective bargaining process. Would that be fair?

Mr. George Smith: I'm going to take the same high ground I took with your friend. We prefer free, full and collective bargaining. However you cut this, it's down a slippery slope. Your rationale or the background you've given can be debated, but we think the parties should be left to their own devices. I will leave it at that.

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Mr. Robert Nault: To me, the only slippery slope that we're down is from Mr. Johnston's approach or this one. In essence, his approach is that collective bargaining isn't working so let's just intervene and put a mandatory arbitration process in place. That's the slippery slope I'm scared to death of, quite frankly, versus this approach.

So would it be safe to ask which one do you choose?

Some hon. members: Oh, oh!

Mr. George Smith: There's that movie. I think that's Sophie's Choice.

Some hon. members: Oh, oh!

Mr. Robert Nault: It's been a long day, I understand that, but it's hard to get the witnesses, Madam Chair, to say what I want. I've been around here for 10 years and I still can't get them to say what I'd like them to say.

The Acting Chair (Ms. Carolyn Bennett): It was an exemplary leading question, though.

Mr. Robert Nault: Thank you, Madam Chair, I appreciate that.

Mr. George Smith: I almost deferred to counsel.

Some hon. members: Oh, oh!

Mr. Robert Nault: David would would like to get in on this. Let me conclude by asking you this question.

You've been involved in FETCO for quite some time. We had some people who were not quite accustomed to this whole issue of having employers and employees work on a consensus and then come and say here it is. Do you think it's worth while for us to continue to do that in the federal jurisdiction? It's much slower, obviously, than having a government come in and say that it knows what it's doing and that it's going to change this.

This is what they did in Ontario, for example. They didn't really care what those guys thought. They just went way over there on the right because it was going to work better. It would be more of a free market, so watch them really go. But then every time they turn around, someone in the labour movement is as mad as hell and they're on strike.

Do you find this approach, even though it may be somewhat hard on the backside because you're at more meetings, much more effective?

Mr. George Smith: I think it's evident in our brief that one of the principles around which FETCO was founded was that the consultative approach was a preferable one. In fact, in the 15 or so years since we were founded, we believe this has probably been the most effective use of that process. It has been used in revisions to part II and part III as well, but never around such contentious issues.

The time is an issue. It's a trade-off and the temptation is to short-circuit it, but given the choice, we'll take the time every time. We believe that talking is, as it is at the bargaining table, a much preferred route.

Mr. Robert Nault: The other issue we haven't asked a lot of witnesses about is the language of the legislation. Has counsel checked the language? Those of us who have been involved on one side or the other know that language in legislation can always be interpreted in certain ways. We're assuming of course that our friends in the justice department are so bright that they've made no mistakes.

I haven't asked this question, but now we're getting to the point of, for example, the union movement in FETCO in particular saying that this isn't too bad, so let's get on with it. Has anybody started to look at the legislation and the changes to see whether in fact it's what you had agreed to during the Sims discussions and to make sure the wording is right?

Mr. George Smith: I think your two questions are related. One of the huge advantages of our having the extended consultation process and a little hiccup around an election was that, in a sense, we got a practice round in Bill C-66. I think there were some hiccups because of some time constraints and the difficulty of handing someone a product of seven or eight months of consultation and then saying that they should turn this into legislation.

The good news is that I believe—I will defer to counsel—that for the most part, the language we see in Bill C-19 is reflective of the spirit, intent, and content of the Sims report in most of the critical areas.

Mr. David Olsen: I think that's fair. Certainly, if you were to go back and review FETCO's brief on Bill C-66, a lot of the concern that was expressed in that brief was whether the intent of Sims had been fairly and accurately translated into Bill C-66. A lot of the presentations at that time were devoted to those kinds of issues. On balance, I think we're pleased that those drafting issues were addressed during that process under Bill C-66 and over the period that transpired before the reintroduction of the bill.

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As well, in the consensus process that FETCO engaged in with the Canadian Labour Congress, they had counsel present at that time and we had counsel. There would be a meeting of the minds between those present. Mr. Sims did accurately reflect, for the most part, the consensus that was reached.

I think you can have a fair degree of comfort that the bill you have before you fairly reflects the consensus process. I think most of the slips, if any, were caught in the lengthy process in Bill C-66.

Mr. George Smith: Any of our concerns have dissipated with a desire to get on with it, really. That's reflected in our brief.

Mr. Robert Nault: Madam Chairman, I've been here since that started myself. I would concur. Let's get on with it.

Thank you very much. I appreciate it.

The Acting Chair (Ms. Carolyn Bennett): Thank you very much.

The meeting is adjourned.