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, April 2, 1998

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[English]

The Vice-Chair (Ms. Bonnie Brown (Oakville, Lib.)): Ladies and gentlemen, it's my pleasure to call this meeting to order at last. My deepest apologies for keeping you waiting for 16 minutes, but these things happen. There was a particular event going on in the House of Commons this afternoon and this is what has held us up.

We now have quorum and so I welcome, from the Air Line Pilots Association, Roman Stoykewych, Captain Dan Adamus and Captain John Dunlop. Whichever one of you would like to begin, please do so.

Captain John Dunlop (President, Canada Board, Air Line Pilots Association): Thank you, Madam Chair and members of the committee. Good afternoon. My name is John Dunlop. I am president of the Air Line Pilots Association's Canada Board, which is responsible for representing our members in Canada before the Canadian government.

With me today is Captain Dan Adamus—Dan is a captain with Air Canada Regional and is our legislative affairs specialist—and also Mr. Roman Stoykewych, who is an ALPA senior counsel.

Personally, I'm a 767 captain for Canadian Airlines. I fly the line when I'm not sitting here addressing you people. I'm also an executive vice-president of ALPA International and we represent 46,000 airline pilots across North America.

I'm here today on behalf of the association's 2,700 members at our 10 airlines in Canada. Through the process of collective bargaining and by working with various governmental agencies, ALPA promotes aviation safety and the health and welfare of our members.

ALPA appreciates this opportunity to speak and support Bill C-19. In our view, the bill encourages balance and fair resolutions to complex labour-management issues. We also wholeheartedly endorse the thrust of the legislation where it provides for the expeditious and consistent administration of the federal collective bargaining regime.

My association is situated in the rapidly changing commercial environment of the airline industry. ALPA and its predecessor, CALPA, has often relied heavily upon the provisions of the Canada Labour Code in order to secure a modicum of stability and equity in our collective bargaining relationships.

Our members have experienced firsthand the delays and the administrative problems outlined in the Sims task force report. I know you've heard others state, and we can also testify to the validity of the maxim, that labour relations delayed are labour relations denied.

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In our view, the enhanced powers of the new tribunal equip it to tackle the airline industry's thorny labour relation issues. We applaud in particular the proposed provisions empowering the new tribunal to proceed in an expedited manner and to provide interim relief during the course of pending litigation. Labour relation solutions must be timely in order to be fair, and these provisions give the board some of the tools to achieve fair results.

While we are generally in favour of the proposed legislation, ALPA is nevertheless disappointed by the absence of significant prohibitions against the use of replacement workers. In our experience, the use of replacement workers during the course of a strike or lockout has a serious long-term destabilizing influence upon a collective bargaining relationship. In addition, it is apparent that the employer's continued right to utilize replacement workers provides an unfair advantage to employers during the course of a strike. After all, a union does not possess analogous powers to protect its members in the event of a lockout.

We consider the absence of significant protections against the use of replacement workers to be a weakness in the bill, in that it does not adequately address the balance that needs to be struck in labour law. We therefore urge the committee to consider stronger prohibitions against the use of replacement workers.

Alternatively, where replacement workers are used, it would seem reasonable to provide an offset to labour in the form of protection to workers from employer discipline in the event of their voluntarily honouring picket lines.

Of particular interest to professional airline pilots is proposed section 18.1. This section specifically outlines the board's powers to fashion a new merged seniority list upon a single employer declaration, a sale of a business, or upon the board's finding that existing bargaining structures are obsolete. Each of these may significantly affect an employee's seniority rights, which would obviously be an important issue for any organized worker. However, for most professional pilots, seniority is a crucial determiner of pay, domicile, cockpit position, aircraft type, schedule, and various other aspects of the employment package.

We therefore consider it essential for the board to have the necessary powers to effect a fair and balanced resolution of seniority disputes where the employee representatives are unable to come to a mutually agreeable resolution.

It should be recognized that this seniority merger conflict is not a normal incident of collective bargaining. The situation results from the board's own determination that sound labour relations purposes are best served by combining two bargaining units into a single bargaining unit under the aegis of a single trade union. Thus, pilots who had previously worked in separate bargaining units and were probably represented by different unions often cannot agree on the appropriate weight that should be given to aircraft and route experience, length of service, date of hire, career expectations or other factors that may determine their positions on a merged seniority list.

Many unions, including our own, have developed sophisticated internal dispute resolution mechanisms for the mediation and adjudication of seniority disputes. In our experience, we have found these to be for the most part satisfactory. The proposed legislation does not detract from these internal union processes. However, these procedures are not normally applicable where employees are being merged from two different unions. In such circumstances, where a dispute exists over the seniority rights of employees to be integrated into one bargaining unit, and especially where the employee groups are of different size, it could be devastating to the smaller group to have its seniority rights arbitrarily determined by the representative assuming the bargaining rights for all employees.

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Regrettably, in the absence of a dispute resolution mechanism, the possibility of substantial unfairness affecting employees for the remainder of their careers cannot be precluded in seniority disputes. For that reason, we applaud the proposed legislation's provisions empowering the board to do justice where a negotiated result is not feasible.

Effective labour relations legislation is a delicate balance of voluntarism and coercion. We think just this balance has been struck by proposed subsections 18.1(2) and 18.1(3) of the proposed legislation. There, a procedure is set out in which the parties involved in the bargaining unit merger are provided an opportunity to negotiate, and hopefully agree upon, the whole range of representation issues arising out of the merger prior to their being submitted to the board for adjudication.

We consider this opportunity to canvass the representational issues arising out of a common employer declaration as vital in ensuring a viable bargaining structure and, in particular, in the perception of legitimacy of the subsequent representational arrangements. We therefore urge you not to modify this extremely beneficial provision.

Madam Chair, let me conclude by saying that although ALFA Canada finds some areas of Bill C-19 taken by themselves to be worthy of scrutiny, we nevertheless agree the legislation as a whole will significantly benefit both workers and employers in this country. We believe the legislation to be balanced, reflecting the substantial process of consultation and compromise by stakeholders and the federal labour relations community. We therefore urge the committee to act quickly to ensure the bill's swift passage.

I'd like to thank the committee for permitting our presence here and I'd be very pleased to answer any questions.

The Vice-Chair (Ms. Bonnie Brown): Thank you for a brief brief. We appreciate that.

We'll begin questioning in the regular fashion, but I think we have to unravel some of this. We heard the other side this morning. I'll let Mr. Johnston start and have a good five minutes.

Mr. Dale Johnston (Wetaskiwin, Ref.): Thank you, Madam Chairman, and thank you, gentlemen, for your presentation.

My understanding is that you have at the moment a case before the CLRB that has been there for some time, and you encourage the swift passage of this bill, part of which I'm sure has to do with the new CIRB. How do you see the new CIRB, the Canada Industrial Relations Board, being of benefit to the case you have now?

Capt John Dunlop: First of all, I'm somewhat reluctant, Mr. Johnston, to respond to a case that's already before the CLRB. If you don't mind, I'll let my counsel generally speak to how cases like this might be improved under the CIRB. I think that's really your question. Is that correct?

Mr. Dale Johnston: Yes. Rather than be too specific about the particular case, I would be willing to hypothesize and ask what if you had a similar case like this come before the board?

Capt John Dunlop: Roman.

Mr. Roman Stoykewych (Legal Counsel, Air Line Pilots Association): Of course, as Captain Dunlop indicated, we're reluctant to discuss it in any specific form because the matter is properly before the CLRB. I don't wish to have any analogies drawn too closely to the case that is currently before the board.

But we think the new powers of the board to have a variety of proceedings on the basis of its new powers to have pre-hearing procedures, to implement expedited forms of litigating contentious issues.... The power of the new tribunal under the proposed legislation allowing for pre-hearing production of documents is an extremely beneficial procedure where the power of the board could be used.

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There are a number of other procedures that the legislation permits. For example, the interim proceeding that is now contemplated under the proposed amendments to the Canada Labour Code could allow for either maintaining the status quo or perhaps granting relief in circumstances where justice would be served to have an interim solution rather than one that would have to wait until the completion of the litigation.

I also note in the legislation that the board has enhanced powers for rule making and for expedited procedures. The precise content of that would have to await the board's processes. The board itself would be largely responsible for the promulgation of these regulations. But I think we can expect, as a whole, a quicker process. Results could be produced in a way that will not have the solutions at the end of the day being essentially ones of purely historical interest.

If I could just add, one power that could be extremely beneficial is the new power of the chair in the new tribunal to either sit alone or designate a vice-chair of the board to sit alone.

In large measure, the delays of the CLRB are attributable to scheduling difficulties. There's a relatively small group of people, all of whom have to hear a relatively large number of cases. The amendments to the code would permit a single vice-chair to hear a case, and simply arranging for all three people to be in the same city on the same day is often a reason for substantial delays in the resolution of extremely time-sensitive labour disputes.

Mr. Dale Johnston: Very good. Thank you.

You also say that there are some parts of the bill that would be worthy of scrutiny if you took them by themselves. Would you care to enlarge on any of those concerns?

Capt John Dunlop: We've already mentioned the replacement worker issue. We are concerned about that part of the bill. We don't think the bill will really allow for, in any realistic way, the prevention of replacement workers. We felt that there should be some offset for labour in these circumstances, and if you read our document, you'll see a suggestion about one offset that would be helpful: the issue of the crossing of picket lines and the discipline issue.

Mr. Dale Johnston: Yes, I did read that part. I was wondering if there were any others.

Capt John Dunlop: No, I don't think we want to comment on those.

Mr. Dale Johnston: Thank you.

The Vice-Chair (Ms. Bonnie Brown): Mr. Rocheleau.

[Translation]

Mr. Yves Rocheleau (Trois-Rivières, BQ): You came here today essentially to talk about section 18, as did the people from Air Canada.

This morning I asked the spokesperson for Air Canada's pilots, who considered that section 18 is not a solution, if there was any possibility of a compromise. Mergers are not the solution, but not merging is not a solution either. Is there a possible compromise solution?

Mr. Adamus, I think you were here when the people from Air Canada told us that, in the past, they had offered compromise solutions, but those had not been accepted. Could you comment on that?

[English]

Capt John Dunlop: Again, it's a specific case that is before the CLRB. Obviously, the pilots in our organization have some differences in the perception of history and what the reality is today.

I don't see this as an issue for Bill C-19. I don't think it makes a lot of difference whether we have the CLRB or CIRB with respect to the dispute we have with the pilots at Air Canada.

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You have to understand that the association represents one pilot group in Canada, the largest airline, whereas my association represents 10 carriers of different sizes. We have people like myself who fly for Canadian Airlines. It's not too difficult to postulate a merger of bargaining units between Canadian and its regional carriers. We represent both.

It is also possible to postulate a merger of bargaining units between Canadian and a higher carrier, such as Air Canada. It's very important to us, as a union that represents more pilots than any other union in the world, that whatever process is put in place is fair and works for both the small carriers and the large carriers.

We think this legislation, the new CIRB, is a fairer process than what we have now, and it really doesn't matter whether it's a dispute between an Air Canada-sized group and a smaller group, or between a Canadian Airlines and a smaller group within our union. We were looking for a solution that works in both cases and we think this does. We really don't think the Air Canada pilots have that philosophy in mind.

I know that doesn't answer the question. I don't want to get into the dispute between the two pilot groups, which I think is degrading to our association and to the piloting profession. It's unfortunate that it's there. It will eventually come to a close, but this particular bill really isn't directed at that dispute. It may in fact bring that dispute to a quicker solution, and hopefully it will.

[Translation]

Mr. Yves Rocheleau: One argument that was presented to us was that in a country such as Canada, where there is a national carrier, if you want to have an integration of the national carriers union, as is the case in other countries, you need to start from the beginning.

If I understand correctly, that is not what will happen with section 18. So you will be the winners, but does that mean that the pilots at Air Canada do not have a valid argument or is it that the rules are different?

[English]

Capt John Dunlop: There are two different situations here. Let me just give you a little bit of the history with respect to pilots in Canada.

When a pilot leaves one company and goes to the other, he goes to the bottom of the list, and we certainly support that as a philosophy. We have people historically who left Transair and went to Nordair, and then went to Canadian. Each time, they started with a new employer at the bottom of the list. That's acceptable and we support that. It has, in the light of later mergers, created some problems.

The problem, of course, is when a decision is made that there should be one bargaining unit—not a pilot going from one company to another company, but that there is one company and that there should be, for sound industrial reasons, one bargaining unit and that those employees all should be part of that bargaining unit and should have a position on one common seniority list. That's not taking an employee and having him voluntarily going to a new company. In those circumstances you can say, yes, I think there's a big airline, it has big airplanes and everybody should go from the smaller company to the bottom of that list. But it may not be two airlines of different size. It may be two major carriers the same size flying the same equipment. Whose list do you go on the bottom of? Is it fair to say that all Air Canada pilots, for example, should go on the bottom of a Canadian Airlines list under those circumstances, or all Canadian Airlines list should go on the bottom of an Air Canada list?

First, you say to these people, you're one bargaining group. We have to put you together. You guys go away and sort it out. If you can't sort it out, there is a fair, arbitrated method that will sort it out for you.

I can't tell you today that I could honestly say where I should be on an Air Canada list, because I have my own opinions on that. All I can say to you is that where there's a small group and a large group, the problem is that the large group will probably damage unacceptably the seniority of that small group.

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You have to protect it. Our union has to do that for our smallest members. We suspect this bill and the CIRB will do that also.

The Vice-Chair (Ms. Bonnie Brown): Thank you, Mr. Rocheleau.

Is there a question over here?

Mr. Robert D. Nault (Kenora—Rainy River, Lib.): Madam Chairman, I don't want to get involved in negotiations in the committee of two particular unions. It's not really what this is all about. I think the real issue that we were trying to get at was whether in fact proposed subsections 18.1(1) and 18.1(2) were reasonable changes to the act and whether this was fair.

Before I do that, though, I would like to get this straight in my head: do some of the Air Canada pilots also belong to the Air Line Pilots Association?

Capt John Dunlop: No.

Mr. Robert Nault: None of them. Okay.

Well, that clarifies what this whole issue is about. I understand now. These are two very separate situations.

Well, Madam Chairman, with getting that all cleared up, as I said, I don't want to get into proposed section 18.1. In a way, it has been sort of started already.

Having been involved in the negotiations between two unions in the past myself, I notice it's not something that people cherish having to talk about publicly.

But I just want to suggest to the presenters that, in essence, they basically have said, as most organizations have said when they came to the committee, that the legislation overall is a very positive thing and will be a step in the right direction. It's more fine-tuning. A profound change isn't here; it's incremental.

I just wanted to make those comments. I really don't have a question.

The Vice-Chair (Ms. Bonnie Brown): Thank you, Mr. Nault.

Thank you, Mr. Dunlop, for making your presentation. I see no further questions, so thank you for coming. We'll take your brief, which is short and easily read, into consideration.

Capt John Dunlop: Thank you, Madam Chair.

The Vice-Chair (Ms. Bonnie Brown): My pleasure.

We'll now call forward the British Columbia Maritime Employers Association.

Ladies and gentlemen, it's my pleasure to introduce Mr. R.V. Wilds, president and CEO, and John Wilcox. Mr. Roper was unable to come, so it's in your capable hands.

Mr. Wilds, would you like to begin?

Mr. Robert V. Wilds (President and CEO, British Columbia Maritime Employers Association): Thank you, Madam Chairman and members of the committee. We very much appreciate the opportunity to appear before you today on this proposed legislation, which has major implications for our industry.

We have both a written submission and some speaking notes. I will be strictly addressing my comments today to the speaking notes. I may make reference to the written submission, but most of the comments are based on the speaking notes, for the benefit of the committee members.

Our association represents approximately 75 companies that are engaged in shipping, ship agencies, stevedoring, dock operations, local loading facilities, and specialty grain handling operations. We've included a membership list with our written submission.

Our association negotiates the collective agreement on behalf of the industry with representatives of the International Longshoremen's and Warehousemen's Union, Canadian area, and with the presidents of the six major locals.

We perform many other services; however, the negotiation and the administration of the collective agreements are our primary responsibilities. It is for that reason that we appear before you today to express our views on Bill C-19.

We would first like to congratulate the government for this legislation, which by and large is a balanced and fair approach for dealing with a complex and conflicting stakeholder demand. Minister MacAulay, in particular, has done a fine job of improving the legislation by making several small but vital changes.

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As is the case with most issues, and with labour relations in particular, it is impossible to please everyone. Bill C-19 is no exception. One member of Parliament has referred to this as the “Goldilocks bill” since some say it's too hot and others say it's too cold, so the government must have it just right. By and large we agree with this assessment. However, we do have one major concern with one provision, proposed section 87.7, dealing with the continuation of services to grain vessels.

Unlike the Goldilocks fable, our concern over the grain provision is not based on a subjective assessment of temperatures but on a fly in the porridge. That contaminant is proposed section 87.7. We do not want to reject the porridge; we just want the contaminant removed. Unless proposed section 87.7 is removed or changed, it has the potential to taint—no, poison—what is otherwise a very reasonable piece of legislation. The adverse consequences, if this section is implemented as is, will be profound and direct.

As members of the Standing Committee on Human Resources in considering Bill C-19, you are presented with the opportunity to repeal proposed section 87.7 and make this legislation just right.

We certainly want to keep workers working, we want to keep employers employing, and we want all commodities moving. Proposed section 87.7 as it currently stands poses a direct challenge to these objectives. The provision runs contrary to the general aim of the Canada Labour Code itself by threatening the stability of labour relations at west coast ports. This, in turn, will have devastating effects on all other western Canadian port customers, from potash to lumber to petrochemical to coal producers.

The inclusion of proposed section 87.7 at this time is premature. In doing so, the government is putting the cart before the horse and may be pre-empting the recommendations of its own commission, assigned to consider some of the very issues that this provision purports to address.

As you know, the government recently appointed the Honourable Justice Estey to conduct a comprehensive review of all aspects of the grain handling and transportation system. That commission has identified labour relations within the grain handling system as one of the areas to be considered. Furthermore, the fact that the government saw the need to conduct this review is, in our view, evidence of the fact that there are numerous complex problems associated with the movement of grain. Proposed section 87.7 in its present form will only affect one small aspect of the grain transportation system, and even then only certain grains.

It is our submission that the introduction of proposed section 87.7 at this juncture is neither appropriate nor timely. Proposed section 87.7 threatens the stability of labour relations at west coast ports. If implemented, it will effectively contribute to extended labour disputes by allowing employees to profit from the mandatory movement of grain during a labour dispute. In effect, the mandatory movement of grain during a legal labour dispute would be a subsidy to employees. A labour dispute is a labour dispute, regardless of commodity. We have had labour disputes in the past when no opportunity for earnings existed. This provision will only make that situation worse.

Proposed section 87.7 unfairly introduces industrial discrimination into the Canada Labour Code by granting preferential treatment or a special status to grain as a commodity over all other western commodities. This special status for grain is introduced without foundation. The Minister of Labour has stated that these provisions will prevent grain from being the ace in the hole for both sides in the bargaining process.

Should this provision remain, the exact opposite may turn out to be true. Grain will become the ace in the hole by subsidizing employees during a legal labour dispute. This will unnecessarily prolong labour disputes. Further, if the push for legislative intervention to resolve a strike does not come from the grain lobby, it will come from other commodity producers, effectively making other industries the ace in the hole for either side in the bargaining process—if not grain, then potash, forest products, coal, petrochemicals, or all of them.

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Should this provision remain, we believe it will have major negative consequences in our collective bargaining. Should prolonged strikes not be acceptable to our customers, Canadian importers and exporters, we will be force to accede to unrealistic demands or forgo necessary changes to our collective agreements to achieve efficiency in productivity. Neither of those alternatives are attractive. Even worse, customers may seek permanent alternate routes for their cargo, something that would be to the benefit of no one.

We are not attempting to diminish the importance of the Canadian grain industry. In fact, approximately $4 billion of grain cargo moved through the port of Vancouver in 1996 alone. This is no small sum. Of note, however, this represents only 13% of the total dollar value of cargo moved through Vancouver that year. The other Canadian imports and exports accounted for the remaining 87%, or $26 billion. That's only the port of Vancouver. It doesn't include any other ports that we represent.

At the best of times, we have a very complex and difficult bargaining system. We bargain with the Canadian area, who sits at the bargaining table with voice and no vote. There are six of the major local presidents at the bargaining table with voice and vote. They, in turn, answer to a caucus that's elected by the membership of approximately 55 people, and that group then answers to the membership.

In order for us to be successful in bargaining, we must get 66% agreement of the presidents at the bargaining table. They then take the proposition to the caucus, which requires 75% agreement, before we ever get to the vote of the membership on any proposal from the industry for settlement.

We're not making any suggestions on how they run their unions. That's their business. But it is a complicated system as far as the industry's concerned. We've lived with it; we can live with it and we can bargain with it. But this provision clearly, in our view, will tip the balance in favour of the union by requiring us to employ employees during disputes. How could this possibly discourage or shorten disputes?

Proposed subsection 87.7 is selective and discriminatory within the agricultural sector itself, since it only applies to those commodities handled at grain elevators—the five in Vancouver and the one in Prince Rupert. What about agricultural products handled by other terminals, such as Neptune Bulk Terminals, Vancouver Wharves or Coastal Containers? As a matter of fact, for interest, approximately 28% of Canadian export containerized cargo are agricultural products. None of those are included in this legislation.

Maybe I could ask Mr. Wilcox to make a few comments at this point on this aspect of it.

Mr. John Wilcox (British Columbia Maritime Employers Association): Thank you very much, Bob.

Madam Chairman, members of the committee, my name is John Wilcox. I'm the president of Neptune Bulk Terminals in Vancouver.

My company exports or imports 11 million tonnes of commodity per year—that is, coal, potash, fertilizers, canola oil—but we also handle about 850,000 tonnes, or 12,000 cars per year, of specialty grains. These grains are valued at a quarter of a billion dollars.

The grains themselves are comprised of approximately 20 products, but the majority is dehydrated alfalfa products, canola meal, pellets and mash alfalfa cubes, and malt for brewing purposes. These exports alone, purely at one terminal, employ 35 to 40 people full-time. This industry has been slowly and painfully developed over the last 20 years and we've been in this business for that period of time. As you can see, then, it is not only the registered elevators that handle grain products but also bulk terminals and containers, as Bob has mentioned.

This type of handling is increasing due to the growth of specialty crops and pulse crops, such as peas and lentils, and also the increase in inland cleaning. You've seen that in elevators, such as the one at Weyburn, which has been there for many years.

We support the position of the BCMA and have particular concern regarding proposed section 87.7 of Bill C-19. To be very specific, this section discriminates against the major Canadian industries, such as coal, potash and fertilizers, and even against the specialty crops I've mentioned.

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It also puts us, as one example, at a competitive disadvantage in that we could have a potential shutdown while our next-door neighbour, which is Saskatchewan Wheat Pool, is open for business as normal, handling exactly the same agricultural commodities that we are prevented from doing. This business is easily transferable to the elevators or terminals in the Columbia River and other facilities.

Almost all of our commodities are cost-sensitive and cannot bear the additional price of an imbalanced labour relations playing field. Our Asian markets are already unsettled due to severe economic problems. How do we as a company explain to NKK, which is the coordinating Japanese steel mill, or to Zen-Noh, who are taking coal and/or fertilizers, why their commodities and their exports are impeded due to the effects of a prolonged strike while grain itself continues to move?

Having said that, I'd ask Bob to continue.

Mr. Robert Wilds: Thank you, John.

Proposed section 87.7 will undermine Canada's reputation for reliable deliveries of commodities to world markets. This is particularly relevant for the other western commodity producers, including the forest, mining and petrochemical industries. These products will remain stagnant in the event of an extended strike indirectly subsidized by the mandatory movement of grain. In effect, this subsection can be considered an indirect grain tax levied by Ottawa against all industries based in western Canada who are dependent on exporting their products through western ports.

Proposed section 87.7 is an uncontrolled experiment being conducted by the federal government. The Department of Labour admits as much when they state they intend to review this provision in 1999. They do not know what the impact will be. The 87.7 experiment is based on no supporting analysis, no research and no economic impact assessment. The government is not even waiting for the conclusion of the Estey review prior to implementing this radical change in labour policy. We suggest members of the committee ask the Department of Labour for their supporting studies, analyses and impact assessments. None will be forthcoming, we believe, because none were conducted.

Neither the Sims task force nor the industrial inquiry commission made this recommendation in their recommendations to the government on labour relations at west coast ports. This approach reflects a fundamental lack of understanding of the western economy, the British Columbia economy in particular. Under proposed section 87.7 the western economy and its supporting industrial sectors, including all commodity producers from lumber to potash to petrochemicals, are being used as guinea pigs for an uncontrolled labour relations experiment in Ottawa. The outcome is potentially devastating.

Given the tenuous position of the current western economy as a result of the drop in world oil prices and the Asia crisis, such a threat to future economic stability could not come at a worse time. The federal government would not have tabled this bill if such potentially devastating effects would redound, for example, on the Ontario or Quebec economies. This could only be allowed to happen in western Canada.

If movement of grain is so critical, why didn't the government declare it an essential service and require all associated with its movement to continue to provide service? That would include the prairie pools, the elevators, the rails, government and longshore. There are other alternatives that could treat all customers of ports fairly and treat western Canada fairly.

Thank you.

The Vice-Chair (Ms. Bonnie Brown): Thank you, Mr. Wilcox and Mr. Wilds.

We'll begin the round of questions. That was quite a long brief so I think we'll put the questions forward and then have them answered in a group. Is that all right with you?

Mr. Dale Johnston: Sure.

The Vice-Chair (Ms. Bonnie Brown): Okay, Mr. Johnston, would you like to start?

Mr. Dale Johnston: Thank you, Madam Chairman. Thank you, gentlemen, for your very concise presentation.

I noticed you referred to the west coast ports inquiry and made some mention of essential service. The west coast ports inquiry did come up with a suggestion—a recommendation, actually—that there be some sort of dispute settlement mechanism for work stoppages at the west coast ports. That would not be commodity specific; it would be something that would allow the work to continue at the port while negotiations continued as well.

I wonder if you would comment on that for me, please.

The Vice-Chair (Ms. Bonnie Brown): Mr. Yves Rocheleau.

[Translation]

Mr. Yves Rocheleau: You said that no impact assessment, no analysis were done, but the government has held wide consultations since 1995.

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We have had the Sims report. We have heard witnesses come to speak in favour of that section. They were ordinary people, farmers. At the very least, there is a difference of opinion. There may not have been any analysis, but on the other hand, there may be some sort of consensus among those who have studied the issue.

[English]

The Vice-Chair (Ms. Bonnie Brown): Thank you, Mr. Rocheleau. Is there a question over here?

Mrs. Brenda Chamberlain (Guelph—Wellington, Lib.): Madam Chair, I would just say there is no doubt about Mr. Rocheleau's comment. There have been extensive consultations for a number of years now, actually.

Mr. Wilds, I know you were there in Vancouver when we had about 150 people in consultations. I can't specifically remember the group you were in, but I can say this: out of about 150 people whom we consulted in western Canada, by far and by large, the groups were supporting en masse this particular piece of legislation. I know you didn't, but there certainly was very strong support for this bill when we were out west, and from many groups. I would just really like you to express whether or not you are generally in support of the bill, other than this particular clause. Do you believe this piece of legislation is important?

The Vice-Chair (Ms. Bonnie Brown): Gentlemen, if you could, please begin to answer those questions, starting with Mr. Johnston's, followed by Mr. Rocheleau's, and then Mrs. Chamberlain's comment.

Mr. Robert Wilds: Thank you, Madam Chair.

With respect to Mr. Johnston's question, we are aware of the recommendation of the industrial inquiry commission suggestion for resolution of disputes at west coast ports. I think it's important to understand that, as an industry and as a practitioner, we clearly support the right to bargain collectively. We do not like or do not want any interference in our collective bargaining process. We also recognize that, as a service sector, the economic impact that we have in a labour dispute on third parties that have no participation in our bargaining is outstanding. It's our view that in the IEC's recommendations, it did not take away the right to strike or walk out. It put in a series of mechanisms, and we did support that.

With respect to the fact that there has been considerable consultation and there are two opposite points of view, clearly that is correct. I think it's safe to say that in western Canada, the majority of people who spoke in favour of it were from the farm community. It's not surprising that they're supportive of the legislation. I believe there have been considerable representations made to this committee and to previous committees from groups other than the farm community. Those groups are going to bear the brunt of this legislation and are not supportive of this piece of legislation.

With respect to the overall legislation, as my comments stated, I think it is a very good, balanced piece of legislation, with this major exception. There are other things we would prefer not to have in there, that we'd like not to see. Again, though, not everyone can be satisfied on all the issues. It is a good piece of legislation, no question about it, and it is balanced legislation.

Our major concern is with this, and we think it's a problem not just for us but for labour purists, actually. This is the beginning of a legislative intrusion into removal of the right to strike. If it's enshrined in the code and it applies to grain this year, will it be another commodity next year, or more commodities? Will it be extended to rail? Will it be extended to other industries? I have to believe that labour has some difficulty with this.

It's certainly not good for us because it provides a subsidy for extended strikes. It's not good for industries because it's discriminatory. It's not good law because there is no special status for grain as far as the legal point is concerned. And it's not good public policy because there has already been a study announced, and it's pre-empting the results.

So we think it is the beginning of a very dangerous move for the government into removing the right to strike legislatively. It's not an essential service because they didn't want to declare it that.

The Vice-Chair (Ms. Bonnie Brown): Thank you, Mr. Wilds.

I think I saw Mr. Nault suggesting that he wanted to comment.

Mr. Robert Nault: Thank you, Madam Chair.

In part of your brief, you made some suggestions that the Department of Labour and the Department of Human Resources Development have done absolutely no analysis. I'm led to believe that you've asked them, and they basically cannot give you any background documents that suggest otherwise. That would be one question.

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The other one is based on your appendix A—I've looked at it, Madam Chairman. People did take a look at it and they find it quite intriguing that from 1986 on we've had a number of strikes that have lasted until the 25 days of disruption. Of the ones that affect the ports directly, three of the four were legislated back within a matter of days. Then, if you go and take a look at the railway strikes, they of course were legislated back as well.

If we don't attempt to do something different from what we've done in the past, then in fact there is no collective bargaining going on at the west coast ports. My question to Mr. Wilds is, what would be your suggestion, other than—and please don't tell me that you accept the option that's being put forward, because that option is as fluffy as you can get. I mean, we're seriously looking for another option—something with a little more meat to it.

Proposed section 87.7 is very dramatic, you're right, and does change the rules of the game dramatically. We're looking for something that would make collective bargaining a possibility on the west coast, as opposed to legislated third-party mandated solutions that obviously haven't worked on the west coast. We're really looking for some input from you on that.

Those are the two questions—one was the analysis and then this one.

Mr. Robert Wilds: It is our belief that there hasn't been an analysis done. I have not asked the labour department for information. I suspect that if there were analyses done, we would have been asked for some information, and we certainly weren't asked for any. As one of the major participants in it, I would think that we'd be involved in any analysis that was done. There certainly has been worked done by the industrial inquiry commission and Sims. There's no question we participated in those.

With respect to your second question, I believe there is a perception that bargaining does not take place on the west coast. I think it's safe to say that in the last round of collective bargaining we concluded negotiations with the union prior to the conclusion of the contract, and it was ratified within 14 days after expiry date by both parties.

In our dealings with the longshoremen, we have had one labour dispute in our particular group since 1987. We have negotiated a number of collective agreement renewals. We've negotiated complex pension issues. There is on the west coast a considerable amount of bargaining that takes place, both during the bargaining process and during the term of the collective agreement.

How we preclude ourselves from ending up in a labour dispute at the west coast—I don't think we can solve that any more than any other industry can give you an assurance that in today's day and age, when we're pressured by customers to become more competitive, more efficient, and to reduce costs.... We don't always have a common agreement with our workforce on how to achieve that.

If we end up with a disagreement, one option obviously is the right to strike and lock out, and we don't dispute that. We support that. Whether or not the Canadian economy, the western economy can take an extended strike in an industry such as ours—that is a role for the government, and one that they have to make a decision on.

We do not want to have a labour dispute, I can assure you, under any circumstances. We will do everything humanly possible to avoid it. But they are not always avoidable, as you can see with the grain elevators, with railways, with everyone else. There are issues that are not resolvable without the unfortunate economic impact of a labour dispute.

In our particular case, those most grossly affected by it are third parties, because in some cases the cargo doesn't move at all. In other cases it may be re-routed at a significant expense to them.

We will search for any reasonable means of resolving our disputes with our employees first, with the assistance, and the capable assistance, of federal mediation and conciliation, or we would agree with them if they would agree with us to find another way of resolving it that we could jointly agree to. We will pursue all those avenues. The last issue that any of us want is government intervention or legislation. It is not good for anybody. It's not good for the government; it's not good for our industry; it's not good for collective bargaining.

The Vice-Chair (Ms. Bonnie Brown): Thank you, Mr. Wilds. I think you've made the position of your association very clear, and we have your written briefs. Thank you for coming and sharing your wisdom with us.

Mr. Robert Wilds: Thank you very much for your time.

The Vice-Chair (Ms. Bonnie Brown): I'll now call forward the delegation from the Waterfront Foremen Employers Association, and those representing Cominco Ltd. and the Canadian Federation of Independent Business.

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Could we begin with the people from the Waterfront Foremen Employers Association, please? Mr. Mebs or Mr. Weymark.

Mr. Grant Mebs (President and CEO, Waterfront Foremen Employers Association): Thank you, Madam Chairman. My name is Grant Mebs. I am the president and chief executive officer of the Waterfront Foremen Employers Association. With me is Mr. Bill Weymark, who is the chairman of our board of directors and also president and CEO of Vancouver Wharves Limited, one of our member companies, who will appear with me today and have some comments towards the end.

Madam Chairman, I recognize we are short of time, and inasmuch as we are sharing the table with two other gentlemen, I'll try to make my comments brief. I have provided the committee with a detailed submission. I'm going to speak to that submission, but for all intents and purposes, I intend to skip over some provisions of it in the interest of expediency and time constraint. I'll highlight very briefly those areas I intend to skip over, and move through the presentation and give the committee time for questions.

First of all, as would all of the participants, we would like to thank the committee very much for the opportunity to appear before it to present our members' concerns—and they're very serious concerns—with respect to some of the provisions of Bill C-19.

We note that the Minister of Labour, in his speech to the committee on March 24 of this year, stated that the current Bill C-19 represents a consensus and that the major stakeholders have agreed to a number of the bill's controversial amendments. We represent a group of companies that have a focused and a significant investment in the longshoring industry on the west coast, and although some of Bill C-19's amendments are positive and we acknowledge the improvements to Bill C-66 through Bill C-19 by Mr. MacAulay, there are still some very significant and politically motivated amendments that our membership in no manner endorses.

Our association is further concerned that the government is moving to enact this proposed legislation far too quickly and without having had the benefit of any significant impact analysis on concerned federally regulated employers and unions. If some of the provisions of Bill C-19, as worded, are passed without a thorough impact assessment, in our submission, the opportunity to correct unintended consequences and improve this legislation will effectively be lost.

As you recall, Bill C-66 was introduced on November 4, 1996, and this revised legislation, Bill C-19, was introduced on November 6, 1997. Although there have been some improvements to the bill, as I stated, our membership still has very real and substantial concern with respect to some of the central provisions.

As I said, we've acknowledged some changes have been made with respect to successive contracts, which is clause 24; the privacy rights, clause 50; and replacement worker provisions, clause 42. Again, we congratulate Minister MacAulay for his leadership in that area, but for the most part, we have serious concerns regarding some provisions that remain.

There were no changes made to the following provisions about which we have, again, some serious reservations: clause 4 of Bill C-19, which amends section 15 of the code, dealing with mediation by the board; subclause 5(4), which amends paragraph 16(m); subclause 44(2), amending subsection 98(3), which deals with referral of matters by the board; clause 37, amending section 87.7 of the Canada Labour Code, which is service to grain vessels; and subclause 42(3), amending subsection 94(3) dealing with continuation of benefits.

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Briefly, our association deals specifically with matters relating to collective bargaining dealing with the longshore foremen who supervise the longshore workforce at the west coast ports. We were enacted to represent our members after certification back in 1977. Our membership consists of three primary groups, which are stevedoring companies, general terminal operators and coast-wise class operators, as well as bulk terminals. I won't go through the make-up of what those members are. I urge you to read that at your leisure to give you some background.

However, the foremen who are individually employed by our member companies and collectively represented by Local 514 supervise the employees who are dispatched under the B.C. and ILWU collective agreement. That agreement covers the terms and conditions of employment of longshore labour represented by all members of the ILWU.

In early 1995 the west coast ports were legally struck by the ILWU ship and dock foremen, Local 514. That resulting work stoppage was resolved by the passing of the West Coast Ports Operations Act, 1995. That work disruption occurred within 12 months of a work stoppage by the ILWU Canadian area, longshoremen, and the B.C. Maritime Employers Association.

The association, as a result, appeared before the industrial inquiry commission on a number of occasions commencing on August 20, 1995, and before the Sims task force on October 26, 1995. In addition, following the release of the findings and the recommendations of both the industrial inquiry commission and the Sims task force, the association appeared before the minister at round-table discussions held in Vancouver in April 1996. And finally, we have made a presentation to the standing committee that reviewed Bill C-66 back on December 3, 1996.

Given the time constraints, I intend to confine my comments to only two or three primary areas of concern with respect to this bill: proposed section 87, dealing with the movement of grain and proposed section 24, dealing with the successive contracts.

Let me begin by voicing our concerns with respect to proposed section 87 of the code. We strongly oppose the proposed amendment to the code on the following grounds: the amendment demonstrates, in our view, regional discrimination; the amendment is ineffective with respect to the end that it's attempting to achieve; and the amendment demonstrates, in our view, poor labour relations policy.

With respect to regional discrimination, it's our submission that the proposed amendment clearly has a genesis within regional politics. The federal government has made a decision to assist prairie grain farmers at the expense of the Pacific region and the resource sectors of B.C. This preferential treatment of grain effectively undermines the strategic importance and the impact of the B.C. economy and the industries moving commodities through the west coast ports. This is especially the case for those industries that have made or that have committed to make considerable capital investment in infrastructure for the purpose of securing import/export cargoes through the west coast port systems.

For example, the port of Vancouver has recorded capital expenditures of $224 million in the last four years dealing with Deltaport, and another $18 million to be spent in the next 18 months on Ballantyne and Centerm Piers. In addition, individual member companies of the association have committed a further $173 million over the next five years for capital improvements to terminal and dock facilities located through the port system.

The preferential treatment of the prairie grain farmers' economic interest over those industries, investing in the transportation infrastructure unrelated to the shipment of grain is an affront, especially where grain accounts for only 13% of the dollar volume of cargo moved through the west coast ports of Vancouver—$4 billion dollars of $30 billion in 1996 alone. Additionally, grain represents less than 2% of the total dollar exports relative to other Canadian exports. You'll find those statistics I believe in the Business Council of B.C. submission, which highlights the differential between all of the exports in Canada.

In addition, while the west coast ports are struggling to modernize facilities to attract and retain customers, to improve services and to present an economical and reliable alternative to other port facilities on the U.S. west coast, the federal government's preference for one region's economic interest at the expense of another severely undermines these efforts designed to ensure continuing competitiveness.

This particular provision is ineffective. If the purpose is to ensure the free flow of grain from sprout to spout, why are other transportation links and infrastructures not included in this legislation? These amendments do nothing to prohibit work stoppages that may occur at the prairie grain elevators, by truckers transporting grain to those elevators, by the railways transporting the grain to the west coast, or even by the grain workers handling the grain at the port elevators.

In fact, since 1986 there have been six work stoppages, totalling 90 days, unrelated to waterfront employers and the ILWU. By contrast, the total number of days lost involving waterfront employees is 25. Therefore, we question the provision's effectiveness in achieving its desired end of ensuring the continuous flow of grain through to market, where only 21% of the total number of days lost due to strike or lockout since 1986 falls at the hands of our industry and its unions.

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We've heard that bargaining at west coast ports, or the perception of bargaining at west coast ports, doesn't happen. Since 1977, when our association became the bargaining agent for the industry employers only two disputes, as you see, totalling six days in this 20-year period, have occurred. Collective bargaining does take place and it does result in collective agreements. Those who have the perception that there is no bargaining clearly have never been to our bargaining tables.

In addition, the legislation does not continue the movement of grain through container terminals on the west coast in the event of a work stoppage. Recent statistics indicate that as much as 28% of the export container traffic relates to the shipment of specialty grain.

As a comparison, 760,000 TEUs or containers that moved through the ports, which would be equivalent to 212,000 TEUs that may contain specialty grain, would continue to move. As this type of grain is not protected by the proposed provision, it would not continue to flow during a work stoppage, while that which is covered by this amendment, proposed section 87.7, would. The result is discrimination not only vis-à-vis other commodities but also between the types of grain shipments as well.

Given the above, it's respectfully submitted that this provision of legislation is, on its face, inadequate to ensure the free flow of grain from sprout to spout. In light of those shortcomings, why would the government seek to single out the one link of the transportation chain involved in moving grain to the international markets? It's poor labour relations policy, in our view, as the Sims task force in the report itself, Seeking a Balance, set out.

We identified a number of disadvantages of undue politicization of the labour relations laws.

First, it distracts parties from the primary role of negotiating appropriate collective agreements, tempting them instead to seek political fixes for what should mutually be bargain solutions.

Secondly, it introduces an element of political confrontation in the bargaining relationships that undermines the ability of parties to communicate frankly and directly with each other.

Thirdly, it creates a habit of seeking legislative intervention in the collective bargaining of disputes. This has a long-term effect, and in our experience it causes more labour disruption than it averts.

Fourthly, it implies that labour relations is simply a political question that denies the fundamental compromise of self-determination inherent in our present legislative scheme.

Finally, it leads to competition between jurisdictions, where one jurisdiction is pressed to minimize the impact of its laws to attract jobs from another. In Canada, in certain cases this has led to a fragmentation of national bargaining structures and unnecessary variances in the various labour law regimes. This adds both cost and complexity to doing business in Canada.

We say there's clearly no labour relations purpose to confer any special status to the movement of grain. This, at its root, is a political issue. Our industry is clearly not alone in warning against such quick political fixes that should be embedded in labour legislation.

It's further submitted that there is inadequate attention being paid to the impact and the effect this amendment would have on bargaining agents and to the responsibility of negotiating collecting agreements in the longshoring industry. Our association has members who derive the majority of their revenue from the movement of grain, while other members derive no revenue at all from that commodity.

Under the proposed legislation, the burden of negotiating the collective agreement and the negative consequences of any job action would be distributed inequitably. The challenge of negotiating an industry-wide collective agreement is made exponentially more difficult, thereby creating labour relations and economic instability not only for our industry but also for the customers and commodities that use the west coast ports as their transportation link.

We are not alone in identifying that any legislative mandate that provides that certain members within a bargaining unit who are engaged in a strike be permitted to earn an income in the industry when they have struck will undoubtedly reduce the negative impact on the bargaining unit and lengthen the strike for those other operations that are not protected by the code.

Paul Weiler, in his book Reconcilable Differences, said:

What contribution does a strike make to resolving the impasse? The employer's operations are shut down without any employees to run them. The employer loses the flow of revenues. In turn, the employees are out of work, deprived of their earnings. Thus, both sides are being hurt economically. They experience viscerally the pain of disagreement with their opposite numbers at the bargaining table. Soon they realize that it is much less painful to agree, even if they do have to move considerably closer to the terms proposed by the other side. In that way, strike action plays an indispensable role in resolving deadlocks in a collective bargaining relationship.

To the degree that a component, and in this case a significant component, of the struck bargaining unit can be held harmless in an economic conflict, there's a reduced incentive, in our view, for that party receiving the benefit of continued economic assistance to settle.

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It's important to note this provision effectively takes away the right to strike at the grain...and particularly in the elevators. The longshore would effectively be prohibited from striking at the grain elevators. Surely even the most strident labour purists can recognize that's the thin edge of the wedge: if it's grain they're precluded from striking, what commodity is next? It effectively removes the right to strike, which we say at the end of the day has to be bad for labour.

Finally, it's been suggested this proposed amendment will remove what's being referred to as the “hot button” or the “ace in the hole” allegedly used by the ILWU and the waterfront employers engaged in collective bargaining to encourage government to intervene. With respect to that allegation, our members continue to be appalled. Government intervention of any form in our collective bargaining process is neither desired nor specifically sought. That's especially so where the intervention results in third-party imposed settlements, effectively removing the ability of our membership and its union to achieve a negotiated result.

Furthermore, if either our union or this association entered collective bargaining premised on the fact that the ace in the hole existed, that theory would likely engender bad faith bargaining allegations. No such allegation has ever been filed or raised with respect to our bargaining.

Finally, if the government accepts that the ace in the hole theory applies to the waterfront, it must certainly apply to other links in the transportation chain not covered by the provision. In fact, of the six work stoppages in the last 12 years disrupting the flow of grain, and unrelated to the waterfront, five of those six ended in government intervention. That again raises the question as to why legislation only focuses on our industry, which is the final link in the transportation chain.

We appear before this committee, as we have before the other committees, to advise not only of the inherent flaws and the ineffectiveness of the existing code and its proposed amendments, but to provide solutions that meet the need of all stakeholders.

Our suggestions have historically included a menu approach for the minister, which have included alternate dispute resolution mechanisms ranging from final-offer selection to specific forms of mediation and interest arbitration to address actual or threatened work stoppages at the west coast. All of those were proposed to minimize economic harm to the economies of B.C. and Canada when work stoppages are threatened to occur or do occur and to encourage free collective bargaining and the conclusion of collective agreements.

The Vice-Chair (Ms. Bonnie Brown): You're over your time, Mr. Mebs. Can you summarize?

Mr. Grant Mebs: I'm just going to summarize now, thank you.

We set out other concerns which I encourage you to read with respect to the legislation, but let me just summarize with respect to proposed section 87.7. We say it's a poor piece of legislation because in our view it removes the right to strike from labour's perspective, and it's bad for management in the extent to which this subsidizes strikes for extended periods. It's bad for industries in that it discriminates one cargo or one commodity from the other. There is no special status that exists in any law that we can find, including the Constitution, which specifies that grain is to be treated differently. And it's a bad public policy with respect to the fact that—as you know and as you've heard already today—Justice Estey has been appointed to look at labour relations, among other things, in the transportation and handling of grain throughout Canada; this legislation pre-empts the review of that.

I'll take two minutes and ask Mr. Weymark to make a comment as a user of the port services as well as a long-term employer.

The Vice-Chair (Ms. Bonnie Brown): Mr. Weymark.

Mr. W.J. Weymark (Chairman, Waterfront Foremen Employers Association): Thank you, Madam Chair and members of the committee.

As chairman of the WFEA and president of Vancouver Wharves, I just have one real message to deliver about why proposed section 87.7 should be removed: fundamentally I believe it's going to undermine competitiveness in the west coast ports.

I think it's going to lengthen strikes. I think it's going to force shippers who do not have the ability to sustain lengthy strikes to accept higher settlements than they can or should afford. And I think it's going to negatively affect the port of Vancouver's reputation as a reliable deliverer of terminal services.

Vancouver Wharves handles mineral concentrates, methanol, pulp, paper, potash, fertilizers, sulphur and agricultural products. We have five berths. Over the last year and a half, moving forward to the next two years, we have invested in excess of $120 million in facility upgrades, and we are very concerned about this legislation. Over the last two years, our customers, without exception, have been unable to accept any increase in terminal rates. They are looking to us to find solutions on how we can improve productivity, give them lower terminal rates and improve reliability. I believe if proposed section 87.7 is retained it's going to severely affect our ability as a terminal operator in the port of Vancouver to provide that service to our customers.

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Thank you.

The Vice-Chair (Ms. Bonnie Brown): Thank you, Mr. Weymark.

Now we'll hear from Mr. Utley, please.

Mr. Jim A. Utley (Vice-President, Human Resources, Cominco Ltd.): My friend here tells me he represents 88,000 members across Canada. I only represent one employer, albeit a big one.

First, I'd like to thank the standing committee for the opportunity to present the views of Cominco Ltd. respecting the proposed changes to the Canada Labour Code, part I. Also, I would like to acknowledge the committee for their efforts to develop legislation that meets the needs of employers, employees and trade unions working within the federally regulated sectors in Canada.

I'll give you a bit of background on Cominco. Cominco has been around since 1906; it's an integrated natural resource company for which the principal activities are exploration, mining, smelting and refining. The company is the world's largest zinc concentrate producer and the third largest zinc metal producer. Other concentrates produced by Cominco include lead, copper, germanium and so on. Other metal products are lead, copper, gold, silver and so on.

We're committed to promoting the health, safety and training development of our employees, to the protection of the environment, and to achieving a favourable return to the shareholders. Cominco owns or is a major partner in two metallurgical complexes and five mines that produce zinc, lead, copper and other primary products. In Canada Cominco owns the zinc refinery and lead smelting complex at Trail, B.C.; the Sullivan Mine at Kimberley, B.C. is also wholly owned, while Cominco is a major partner in the Polaris mine in the Northwest Territories and the Highland Valley copper mine near Kamloops, B.C.

We have in total about 5,700 employees of whom 4,250 work in Canada. Our Polaris mine is regulated by the Canada Labour Code. This operation is the world's most northerly based metal mine; it's situated on the northwest shore of Little Cornwallis Island in the Northwest Territories. This facility is approximately 1,000 air miles north of Yellowknife and more than 1,600 miles north of Edmonton. The nearest community is Resolute, a small coastal village that is approximately 60 miles to the southeast.

This operation consists of an underground zinc and lead mine concentrator, a deep-sea dock, a personnel administration complex and a number of related support facilities. The property produces two commodities, a zinc concentrate and a lead concentrate, and it operates on a consistent rate year-round. As a result, these products must be stored at the site until ice conditions permit access by ocean-going vessels during the brief Arctic summer shipping season.

All of the individuals who work at the property are employees of Cominco, except for approximately 12 people who work for an on-site catering contractor. Both hourly paid and staff employees typically work on a rotational schedule consisting of approximately eight weeks on site followed by four weeks of leave. Generally employees work six days a week, 11 hours a day, with Sunday being optional if work is required.

Polaris employees live throughout Canada. Cominco pays the cost of travel between the site and the major airport nearest the employee's place of residence. While on site, employees live in an accommodation complex made up of eight major units; four of these contain individual rooms and associated facilities, and the other four units are made up of a cafeteria, a gym, a mechanical equipment area and an indoor swimming pool. Approximately 30% of the hourly employees share rooms, while the remaining are accommodated in single rooms or couples quarters.

Polaris is the most remote industrial operation in Canada. The climate at the site is also one of the harshest in the world. Winter temperatures commonly reach minus 50 Centigrade. Strong winds often generate wind-chill factors that effectively make the prevailing temperature twice as cold. Moreover, from November until February the sun does not come above the horizon. The operation is therefore in total darkness for about four months.

During this time particular attention is paid to minimizing risk to employees from polar bears, which are frequently seen in the area. The prevailing climatic conditions, lack of daylight and the presence of polar bears effectively confine employees to the workplace and accommodation facilities for much of the year. Privacy is therefore a scarce commodity in this environment.

In my submission in regard to the legislation, I want to touch on four areas, those being replacement workers, successive contractors, special treatment for the grain industry, and automatic certification.

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With regard to replacement workers, Bill C-19 addresses a number of the issues employers have raised respecting proposed replacement worker legislation set out in Bill C-66. We acknowledge the government for making those amendments; however, I would like to make a few comments on this matter.

Replacement worker restrictions found in legislation in some jurisdictions in Canada significantly tip the scale in favour of trade unions during collective bargaining. Employers in the mining and metal refining industries producing commodities that are subject to global competition and pricing would be put at a significant economic disadvantage if they had no choice but to shut down during a strike. Customers and market share would be lost to worldwide competitors, many of whom operate in jurisdictions with significantly less labour legislation than Canada. As stated in the Sims task force report, replacement workers can be necessary to sustain the economic viability of an enterprise in the face of harsh economic climate and unacceptable union demands.

Use of replacement workers allows a struck employer to meet its customer requirements during a labour dispute, while striking workers are free at the same time to seek alternative employment to replace lost income. This arrangement provides a level playing field for both employers and employees. At our Polaris operation, replacement workers may be required to maintain the powerhouse and heating systems during the winter months. Additionally, should the strike extend into the brief shipping season without the ability to utilize replacement workers to unload supply ships and load concentrate ships, employers would be shut down until the next shipping season, one year later.

One remaining concern that we have with the proposed replacement legislation is the use of the word “representational” rather than “representative”. We suggest that the word “representative” be used, as it is more common terminology in labour legislation and jurisprudence, whereas the word “representational” is not normally used.

With regard to successive contracts for federally regulated service providers, Bill C-19 includes a provision to require a service provider contractor who succeeds another such contractor to pay remuneration not less than that provided by the preceding contractor. Although the immediate application of this provision is limited to the pre-board security screening of contractors in the air transportation industry, set out in proposed paragraph 47.3(1)(b) of the proposed legislation, is a provision allowing the Governor in Council to designate other industries within the federal sector as subject to this provision.

At our Polaris operation, we engage a catering contractor who prepares meals for our employees while they're on site. In order to maintain our competitive position at the global zinc and lead concentrate market, it is essential that we are able to continue to engage contractors who provide quality service at least cost. Interference by the government in setting of rates of remuneration will deny free collective bargaining, as well as the competitive tendering processes. Quite simply, what motivation would a contractor have to reduce wage costs if these expenses were fixed as a result of this legislation?

In regard to preferential treatment for the grain industry, you've heard quite a bit on this subject just this afternoon. I'm just going to move through my material and simply say that reliable access to port facilities is critical to the mining and refining industry to compete in the world marketplace, maybe more so than the grain industry. We need access to port facilities to both receive concentrates in order to operate our smelting and refining complex at Trail, B.C., and to ship concentrates and refined metal products to customers around the world. As we've noted before, failure to meet the demanding requirements of the global marketplace will result in lost market share and, ultimately, lost jobs to producers in other jurisdictions.

Further, and probably most importantly, giving special consideration to the grain industry will have the unintended effect of lengthening labour disputes at our ports. The requirement to handle grain shipments during a strike will provide an opportunity for striking port workers and their trade unions to finance longer labour disputes. Again, this type of dispute, especially if prolonged, will significantly reduce Canada's ability to compete on a worldwide basis.

Before addressing our concerns respecting automatic certification, I'd like to review the process that took place at our Polaris operations during 1996. During that year, more than 50% of the employees at Polaris signed union cards, giving rise to an application for certification. One of the issues during the certification process dealt with the exclusion of temporary employees from the bargaining unit. The union argued that these employees should be excluded, while the company argued for their inclusion. The company took this position as these temporary employees had a long association with the Polaris operation and a work schedule very similar to the that of the permanent employees. A number of these temporary employees are Inuit and were classified as temporary in order to allow flexibility in scheduling of their work to facilitate participation in traditional lifestyle activities.

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Throughout the certification process the union argued strenuously that these temporary employees had no interest in collective bargaining and should therefore be excluded from the unit. The Canada Labour Relations Board ultimately decided in favour of the union and excluded the temporary employees from the bargaining unit. However, once the certification was established and a notice to bargain was received from the union, the union included, in their initial list of bargaining proposals, a demand to include these temporary employees in the unit. This proposal was tabled despite the union's earlier position that these same employees had no interest in bargaining.

A further issue that arose during the certification process was the board's decision to deny employees affected by this certification an opportunity to express their views following the card-signing process. A number of employees who had signed cards had second thoughts about joining the union, but were not provided with the opportunity to express these views to the board.

In responding to the employees' concerns the board had this to say:

The Board received a petition and a number of individual letters from employees expressing their opposition to unionization as well as others reporting to renounce their membership in the Union. However, we are satisfied that none of these letters were signed before the application was filed. As such, the Board attributes little weight to them.

Additionally, a group of employees sought an opportunity to make a submission to the board. The board also rejected this request, stating, “Individual employees have no automatic right to participate in certification proceedings....”

After reading the board's decision, one wonders if the current certification process and regulatory requirements really address the true wishes of all the employees who may or may not wish to be organized. As we saw through the Polaris operation certification process, temporary employees who apparently wanted to participate in bargaining were excluded from the unit and employees who wanted to express their views about inclusion were excluded from participating in the certification decision process.

Bill C-19 provides the board with the ability to certify a trade union, despite a lack of majority support, if the board believes but for an unfair labour practice by the employer, the union could reasonably have obtained majority support for certification. This change compounds a flaw in the current legislation, that being that the current process prohibits a secret ballot if 50% of the targeted group of employees sign union cards.

The underlying assumption of the current legislation and the proposed change contemplated in Bill C-19 is that employees are not capable of reconsidering their decision to sign or not sign a union card and it is only employers who are capable of engaging in unfair labour practices.

At the Polaris operation, as I noted above, a number of employees requested the opportunity to reconsider the decision but were denied this opportunity by the board. Additionally, at the Polaris operation, given the very close living and working conditions, it would be very difficult for employees not to be subject to the views of others as they made their decisions to sign or not sign union cards.

A secret ballot for all certification decisions would address these issues and ensure that employees are given the opportunity to express their views privately and without either the union or the employer looking over their shoulders.

What is the problem with guaranteeing a right to a secret ballot? The process is the cornerstone of our democratic society, yet the proposed legislation expands circumstances where this fundamental right is denied employees.

Finally, Bill C-19 recognizes the right of an employer to express a personal view regarding the representation of its employees if the employer does not use coercion, intimidation, threats, promises or undue influence. Whether this provision will be helpful remains to be seen. However, it is clear that the personal views of the employer will be in the eye—and the ear—of the beholder. What is objective and non-threatening information to one person will be seen as coercion and threatening by another.

The Canada Labour Code has a major impact on the viability of our operations in this country, especially on our mine at Polaris and our operations in the south, and on other possible future developments in Canada's north.

I encourage you to take our thoughts into consideration as you review this legislation and I once again thank you for the opportunity to make this submission.

The Vice-Chair (Ms. Bonnie Brown): Thank you, Mr. Utley.

Now we'll hear from Mr. Whyte.

Mr. Garth Whyte (Vice-president, National Affairs and Research, Canadian Federation of Independent Business): Thank you, Madam Chair. I would also like to thank the committee for inviting the Canadian Federation of Independent Business to appear. You did invite us to appear yet again, so I'm here.

• 1715

I know you're tired; it's a long day, and not only that, it has been a long process. I told Mike he should get an A-plus for perseverance, and so should you. I hope you can stay with me for another 10 minutes, because I'm going to talk about something completely different, from a different direction.

My name is Garth White. I'm the vice-president of national affairs and research for the Canadian Federation of Independent Business. We're a non-partisan, non-profit organization that represents 88,000 small and medium-sized business owners from all sectors and from across Canada.

We work on the principle of one member one vote. What I'm going to show you here are votes in the tens of thousands, between 10,000 and 20,000 responses of business owners from across Canada, men and women from your constituency.

But first, some have asked.... I'm a member of the Canada Labour Code review committee, and the biggest compliment I got from some of my labour colleagues is, what's Garth Whyte and the CFIB doing here? Well, you may ask that, and there are several reasons we're involved with the Canada Labour Code.

One reason is that I'm on the review committee. Another is that we have many members who are federally regulated. We have members from transportation, broadcasting, trucking, communications, members in the Yukon, Northwest Territories, and they all fall under the Canada Labour Code. We also have members who are significantly impacted by large government entities such as the post office, grain handling, port operations, and railways. We represent the taxpayers who are concerned about what the code may do to increase government costs. We're concerned that the code will accommodate unions who have openly stated they are targeting small and medium-sized enterprises because big business and governments are downsizing.

That is the one I would like to impress on you, being the Canadian employer representative at the ILO last year and this year, and what we're dealing with is small business job creation over at the United Nations. This is a big issue on the table, so I think what you're doing is bigger than even what you may first appreciate.

We are also concerned that changes to the code can be precedent-setting for provincial legislation, so that's why we're here.

In summary, our summary position, there are many points, but there are four I want to talk about.

First—I'm now referring to the charts on page 1, and I'll pass them on through my colleagues here—the proposed amendments do not recognize the positive employer-employee labour relations environment in small workplaces.

Two, small business opposes the prohibition relating to replacement workers, which is clause 42.

The third point is that small business opposes the requirement that business owners give the names and addresses of off-site workers, and I think I'll give you some new reasons why, rather than just what you've been hearing.

Four, similar to my previous colleague, we think automatic certification should require secret ballots.

As to page 2, I've thrown this in here because I think it's important. If we remember the government throne speech prior to Bill C-66, which is the precursor to Bill C-19 upon which this current bill is based, it stated that part I of the Canada Labour Code should be modernized to promote a proper climate for economic growth and jobs. I think, then, it's important for this committee and for us who are trying to draft the bill to understand the important role small and medium-sized enterprises play in Canada's economic growth and job creation.

Here is StatsCan information—and we get the most recent we can; they'll be giving 1996 in a couple months, I'm sure. You'll see over 95% of all businesses have fewer than 50 employees; almost 80% of all businesses have fewer that 5 employees. Page 3 shows the vast majority of jobs have come from small firms and the growth of the self-employed sector. This is an important point that I want to refer to later.

On page 4, we talk about knowledge that the net new jobs are created by small business. This government and actually all parties have embraced this and talked about the importance of small business to job creation. But usually they say what about total jobs?

Total jobs are shifting from larger firms to small and medium-sized firms. You can see that the green, being large firms, has been downsizing and shrinking in 1979 to 1995, and that's another important point.

Some people, particularly union representatives, will argue that small workplaces, and individuals who work out of their home, need union representation because their interests are not adequately protected. They will argue that employees in smaller workplaces have poorer working conditions, and therefore legislation should be modernized to better enable unions to organize employees in this area.

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In fact, research on Canadian employee attitudes on job satisfaction has consistently found that the opposite is true. Several studies in the 1990s have found that employees in non-unionized smaller workplaces tend to be significantly more satisfied with their workplace conditions than employees who work in large unionized workplaces. We did this report in 1995; as you can see on page 5, under “job in general”, employees in small firms with less than 10 employees had a higher degree of job satisfaction in general, in terms of openness, flexibility of hours, flexibility for family, workplace morale, responsibilities and advancement opportunities. Training was slightly better in a larger firm and also salaries and benefits. By the way, if you want to talk about it, CFIB is working with the Department of Finance and the insurance industry to give benefits to smaller workplaces.

But there have been more recent studies. In 1996, for example, they found that the happiest employees—and this is a national opinion survey—the most satisfied with their jobs, were the self-employed and those who worked for small companies. Among the least happiest were those who worked for large companies and union members.

This brings us back to our first and primary concern with this proposed bill. We're not trying to knock the management-union relationship. It's necessary. We understand that. But what we're trying to say is open the bill a bit to another type of important labour relations. This bill does not recognize the positive employer-employee labour relations environment in small workplaces. This bill is based on the premise that collective bargaining is the only way to ensure good labour relations.

Just look at the preamble of the bill, Madam Chair. The preamble, the first line of part I, says: “policy designed for the promotion of the common well-being through the encouragement of free collective bargaining”. Why isn't there something in the preamble that states this bill is to promote and encourage a good labour relations environment? Why not open the door a little more?

The government had it half right when it said that this code needed to be upgraded from the 1970s, but unfortunately the bill does not reflect the new and growing small business and home-based workplace of the 1990s. The bill is based on the Sims report, called Seeking a Balance, which focuses on a balance between large, federally regulated corporations and large unions, a management-union relationship, but it ignores another very important and less adversarial employee-employer relationship in small workplaces. It talks about consensus, and it is a consensus, but it is a consensus between very large unionized corporations and large powerful unions.

Often labour legislation is seen as a means to protect employees from the coercive power of large corporations, but what instruments are in place to protect small employers from the coercion and power of large unions? At the very least, this should not make it easier for unions to organize small firms.

We think the changes in the Canada Labour Code should ensure a balance not just between big employers and big unions, but also between small employers and big unions, and hopefully when the proposed neutral chairperson and the ministerial advisory appointments are made they'll be sensitive to small workplace issues.

I'd quickly like to move to our second concern, clause 46, which gives the board discretionary power for arbitration and automatic certification. In table 6.2 on page 60 of the Sims report—and here's the graph, Madam Chair, in the Sims report—they talk about how many bargaining units per year are certified. It's about 100 per year. And if you look at it, which you can see on this graph, it says in the Sims report that the majority of those bargaining units have less than 30 employees. In fact, one out of four have less than 10 employees.

Proposed section 99.1 should be amended so that the board should be required to call for a secret ballot vote to determine if there is a majority support for certification. On page 10, the back page—I'm sorry it's not in chronological order—it shows our members' vote on that, and they believe secret ballot vote should be necessary for automatic certification.

When there was a consensus, the consensus was with large unionized business groups and large unions. These business groups are already certified, so this issue did not come up. The issue of a free vote from our point of view is fundamental to the employer-employee relationship, and this could be used as a means to certify a workplace.

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Who's protecting the small employer—the small employer has never worked with a union, doesn't have a labour lawyer, and doesn't know labour legislation—from being preyed upon by the unions? I guess I've mentioned this in previous presentations to this committee, and I quoted unions who said that they had to expand to the smaller workplaces because their traditional membership sources were downsizing.

So this is why I would implore the committee to seriously state that if the employer does something wrong, and is wrong, they should require a secret ballot vote.

I'd like now to refer to page 6. Again, we think this is an important issue. This just shows Internet use by small business.

It's increasing dramatically. We have a website. We are the small business link to Strategis, which gets about 200,000 hits per day. And although Canada is a leader in electronic communication, we have a lot to learn.

E-commerce, electronic commerce, is just beginning. We were asked by Industry Canada to chair the OECD committee on e-commerce two months ago.

We found out that they don't know what to do. Industry Canada's coming forward with some privacy legislation. They've been knocking at our doors. They're anxious to meet with us next week because they don't know how to deal with electronic messaging, e-mail, and the privacy issue.

If the government doesn't know, the OECD doesn't know, then how can we put it in the legislation to allow the labour board to arbitrarily say that you can use electronic means to deal with off-site workers? What you don't understand—remember that the theme is to create a better economic client and help job creation—is that with one push of a button, we could lose jobs.

One example was in Britain, where they legislated that you could not make a sale using credit cards over the net. They had to change that law because people were shifting that enterprise to the United States.

This is something that I think we have to understand, and that brings us, I guess, to our third issue.

We think you have to rethink this issue of off-site workers and, if nothing else, get out the reference to electronic means, because we have to study it further. There's a big privacy issue. Most people who are off-site who use computers are not the only ones using their computer for messaging.

I think this is one thing that definitely should be taken off. We asked our members about the whole issue of union access to off-site employees. The majority said no. That's on page 7.

We're concerned for a couple of reasons. One, of course, is the privacy issue. At the very least, the board should be required to get permission from the employee that their off-site address and e-mail address, or whatever, can be given.

But also we're concerned again because we're being targeted. Was this section included to protect employees or was it to help union growth? We think it should be taken out. Employers should only be required to send notice to their employees that a certification process has commenced. We strongly urge you to do that.

The final point is related to our opposition to the prohibition on replacement workers. Our members oppose this because they depend on federally regulated businesses, such as Canada Post, for their business. The recent Canada Post strike, for example, which is deemed a non-essential service, cost our members $200 million a day.

Many of our members are also federally regulated and they're afraid that it could be used to hurt their businesses. It could take away their right to do business, right to supply, and right to trade.

What's the purpose of this amendment? Is it to deal with exceptional circumstances where a company is illegally trying to undermine the union? Also, what does that mean? Is it undermining a union to keep your business working?

The Sims report said that circumstances have to be a totally illegitimate activity in the most exceptional circumstances. This section, which can be broadly interpreted by the board, should be based on the worst-case scenario.

But how do we protect business owners from the worst-case scenario? How do we protect business owners that don't have a labour lawyer, that don't know labour law, have never dealt with a union, from having this section used to hurt them?

Again, as I say, is continuing to keep the business open undermining legitimate union activities? And can we count on the board—to date, we don't even trust them with their own expenses—to make a decision on exceptional circumstances?

The Canadian Federation of Independent Business hopes that the committee will take into account some of our recommendations in order to create a better-balanced labour code that protects the interests of small workplaces, as well as large ones. We urge this committee to adopt our proposals to ensure that the Canada Labour Code promotes a proper climate for economic growth and jobs.

• 1730

Thank you, Madam Chair.

The Vice-Chair (Ms. Bonnie Brown): Thank you.

We'll take questions for any of the witnesses, and then they can answer as a group. Mr. Johnston.

Mr. Dale Johnston: Thank you, Madam Chair, and thanks for your presentation, gentlemen.

Mr. Mebs, I was most interested to hear your comments about final-offer selection and about the special status conferred upon grain shipments through the ports. Being a farmer myself, I'm pretty interested in things that will remove some of the impediments for grain shipments to reach port and to indeed reach their customers. But I tend to agree with you that a lack of a lot of other commodities reaching port would be detrimental to the Canadian economy.

I think it's only going to be a matter of time before there will be other commodities that are going to be just as hot as grain and that we're going to have to deal with, so I was very pleased to see that you recommended some kind of dispute settlement mechanism. I've been flogging final-offer selection, which I think will actually augment the system.

You also talked about a secret ballot. We've had a lot of people coming before this committee and talking about certification of the union without a majority. They speak in favour of it in terms of thinking that there could be coercion, intimidation and so forth put forth by the employer. Well, I would submit to those people or to anyone else that this is the whole idea behind an election: neither side can intimidate or coerce anyone. Elections in the free world are carried out with a secret ballot, and I was very pleased to see that most of you agreed that a secret ballot would be a way to determine whether or not there would be support for certification of the union.

I guess those are just general comments, and you did mention also that you had some concerns with successor rights. I would be interested to know how successor rights would affect any of you. I throw that open to the entire slate of witnesses, for any of them to comment.

The Vice-Chair (Ms. Bonnie Brown): Are there any questions from this side? Mr. Wilfert.

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

Mr. Utley, your comments about secret ballots and the case of your Polaris operation certainly were interesting, and I've certainly taken note of them. As far as I understand your presentation, I believe you indicated that you don't want strikes or lockouts in a federally regulated sector interfering with the export of your commodities. How do you see the collective bargaining disputes being resolved in those sectors, then? Following up on Mr. Johnston's comments on the issue of compulsory arbitration for settling your company's own labour disputes with the union representatives or employees, would you favour that type of approach?

My last one, Madam Chair, is to Mr. Whyte.

My understanding is that most labour relations for your federation are regulated by provincial laws. They're not covered by the Canada Labour Code. If you can give me percentages, I'd be curious to know how many of your membership are covered by the Canada Labour Code, and what percentage of your members engage in collective bargaining.

On the issue of replacement workers, I'm still having a difficulty understanding the rationale. If a union was to in fact sit down with an employer to negotiate, failed to come to a collective agreement, and then exercised its right to strike—which is a legal right—I cannot fathom why you would then, in that case, bring in replacement workers. That would in fact undermine any initiative on either side, particularly on the side of the employer, to end the dispute.

I would be interested in your comments on those issues, I guess fairly succinctly given the hour.

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The Vice-Chair (Ms. Bonnie Brown): Thank you.

Who's going to begin now, with Mr. Johnston's question?

Mr. Grant Mebs: Let me deal with Mr. Johnston's question with respect to the issue of alternatives to strikes, in particular, and work disruptions.

As we've indicated, we were in favour and support the menu approach to be used and adopted by the minister for particular disputes. We adopt and accept early intervention so that collective bargaining, and the link with the federal government and the minister in particular on those sensitive areas, and particularly the west coast courts, can be monitored for the purposes of monitoring and averting or, if in fact the ultimate occurs, to reduce the impact of any labour disruptions through the application of other methods and other mechanisms such as increased mediation, fact finding, interest arbitration and including final-offer selection.

We are not in favour of final-offer selection as a be-all and end-all, because I think frankly it's not a panacea, but there are other mechanisms that we have endorsed and that we proposed not only to the IIC but also to the Sims commission and the minister's round table—the Hon. Alfonso Gagliano, minister at the time.

So we do accept those. We support them and we would cooperate most fully with respect to any of those kinds of solutions that would avert labour disruptions at the west coast ports.

We favour first and foremost the process of collective bargaining. And as I indicated before, in the 20 years we've been bargaining with our unions, there have been only two minor disputes. To say that collective bargaining doesn't work on the west coast ports, at least from our association's perspective, would clearly be an overstatement. It does work, it does happen, and frankly we wouldn't encourage any outside intervention.

I'll leave my comments with respect to Mr. Johnston's comment that way.

The Vice-Chair (Ms. Bonnie Brown): Mr. Whyte.

Mr. Garth Whyte: Thank you, Madam Chair. I think I'll deal partially with Mr. Wilfert's question—we'll get back to it—with the secret ballot.

A month ago an association called me at the CFIB directly, and said, “Can you put something together, because our industry is being targeted”—this is the accommodation industry in Ontario—“and our business owners aren't sure what they can or cannot say.”

Now, they're not federally regulated, but I'm just using it.... I mean, it's saying, well, who cares about the ILO? The ILO—and I deal with Mr. Parrot, Nancy Riche, and Mr. White; and I spell my name differently, by the way. I spell it with a y, but anyway....

I deal with them, because they say, well, you agreed with it over at the ILO, so why not bring it here?

Being part of the Canada Labour Code—and I'll get back to secret ballot—getting back to the Canada Labour Code, Nancy Riche said to the committee, “We want to be leaders in minimum wage, not followers in minimum wage. We want to get the provinces to follow us along.”

So let's keep it in perspective. I will tell you how many are federally regulated, but let's keep some of these things that can be precedent-setting in perspective. I'm talking now about the off-site worker issue. It's all interrelated.

You're right, I didn't necessarily want to go through this bill again, but here I am, and it is important to us.

The secret ballot: They ask for 1,000 copies—that's right in the article—because they're not sure what they can say and what they can't say. Now, let's say you're federally regulated. We have thousands of members. We have people in trucking, communications, small airlines. We have people in the Northwest Territories.

It was asked how many people we have to the code. I can't give you the exact number, but it's quite a few, probably more than a lot of other business people who have presented before you, but they're smaller. The fact that there are 100 a day, 100 a year, and most of them are small workplaces, says that there are quite a few. And once we get into e-commerce and the Internet, it's even going to be bigger, because it's now going across jurisdictional lines.

But they don't know what to say.

One thing that was positive, I think, was the introduction of clause 42 on page 33, which amends subsection 94(2), and says that the employer can express a personal point of view. That was a recognition by the Department of Labour that if you're a small employer, you may want to tell your employees, “Look, here's the other side of the coin”. Just as unions can argue that employers are going to give you all sorts of false information, so can unions. Unions can say a bunch of things, too. I mean, they have a checklist of what business you can certify and what you can't.

So let's say an employer of 10 employees—again, who doesn't have a labour lawyer, doesn't know anything about labour legislation—gets up there and says the wrong thing. A smart union representative with the weight of a big union organization behind him says “Aha—I've got you”, and they go to the board, and they see these board people on a regular basis. They say, “This guy crossed the line” or “This woman crossed the line”—a lot of our members are women business owners—and they may win. We've had members with four employees where they've won, but it cost them $15,000 or $20,000 to go before the board to try to defend themselves on other issues. They have to hire a lawyer because they don't know where to begin.

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But on this one, the fight's over before it begins. The board can arbitrarily certify them because under this act, under proposed paragraph 94(2)(c), they went beyond expressing their opinion or whatever and the board is going to automatically certify.

But the employees may not want to join a union. What's wrong with giving employees the right to decide for themselves whether or not they want to belong to a union, especially when it pertains to smaller workplaces? Let's put it in context.

That's our position on the secret ballots. What's wrong with that? Our whole system's based on democratic votes. This is very important to a smaller workplace—very important.

The Vice-Chair (Ms. Bonnie Brown): Thank you, Mr. Whyte.

Would anybody else like to respond to Mr. Wilfert's question?

Mr. Jim Utley: Was that in regard to replacement workers?

The Vice-Chair (Ms. Bonnie Brown): Mr. Wilfert, could you re-frame your question, just to remind us?

Mr. Bryan Wilfert: If I understood you right, you said that you didn't want strikes or lockouts in the federally regulated sector to interfere with the export of your commodities. So how do you see the collective bargaining disputes being resolved in these sectors?

Mr. Jim Utley: If you understood that, that's not correct. What we're basically saying is that we agree with the others: collective bargaining is the right approach to take. The concern we had was the singling out of one group working at the ports and giving them some kind of special treatment or preference. The implication or result there was that it could lead to longer strikes because those employees are able to maintain a certain part of their earnings to finance the strike for a longer period of time. That was our concern.

The Vice-Chair (Ms. Bonnie Brown): Thank you very much.

Did you want to speak to this too, Mr. Mebs?

Mr. Grant Mebs: No, Madam Chairman, thank you, but I wanted to make sure I addressed one of the original questions with respect to successorship. I just have two minor points. I didn't want to leave your comment unaddressed. I've addressed that in my submission, so I would encourage the panel to read those points.

But from a summary perspective, my quick notes are that the successorship provisions go beyond Sims. In fact, Sims makes it very clear that legislators ought not to interfere in the standard, commercial, legitimate operation of a commercial business and the exercisers of that business in terms of the contracting and the awarding and the tendering of those contracts.

But more specifically, I can bring to you and to this panel some experience from the provincial sector, in particular with B.C., where the B.C. government had proposed legislation similar to that which you see in terms of the broad effects of successorship provisions in what they called Bill 44. That was put aside by the B.C. government as a result of some lengthy opposition, and a panel was commissioned to review the entire issue with respect to successorship provisions.

It's interesting to note that the panel's recommendations are that the government not get engaged in legislative amendments with respect to successorship. They recognized difficulties with it, but what their review said to them, and what their recommendation to the government was, is that the solutions are not in legislative amendments with respect to the issues and the problems related to successorship, that they are in relationship to dialogue and continuing cooperation between the parties—but not with respect to legislative amendment.

Thank you, Madam Chair. Those are my comments.

The Vice-Chair (Ms. Bonnie Brown): Yes, Mr. Whyte.

Mr. Garth Whyte: Mr. Wilfert asked how many members of ours are union versus how many are non-union. The majority are non-unionized. And he asked why we are concerned with replacement workers. One reason is the right of supply. We're very concerned where there's a break. We have a lot of grain farmers, a lot of people who are dependent on grain transportation, for example, and they're concerned with that type of issue.

However, those that are certified and a unit, to say that...I guess there's a question I'd like to ask this committee: are we undermining a trade union's representational capacity by keeping the business open?

The Vice-Chair (Ms. Bonnie Brown): I think the format is that we ask you questions.

Some hon. members: Oh, oh.

Mr. Garth Whyte: Okay, it's a rhetorical question. But to say that an employer who has 10 employees being certified—the majority of employers now have fewer than 20 employees-can't keep his or her livelihood would be similar to saying to employees on strike that they can't get other forms of income. Is it fair to say that in the legislation, because to shut down a small firm...I know it's bizarre, but when you're a small firm with 10 employees and that's your sole source of income, it is not the same as shutting Canada Post or CN. That's why we're afraid of this.

The Vice-Chair (Ms. Bonnie Brown): Is it not the same for all employers? If you're shut down by a strike, your source of income is shut down whether you have 10 employees or 100.

Mr. Garth Whyte: When you're on strike?

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The Vice-Chair (Ms. Bonnie Brown): Yes.

Mr. Garth Whyte: Can't you work elsewhere? Can't you get other forms of income?

The Vice-Chair (Ms. Bonnie Brown): Most people who work in management for a big company don't have some other little job they can run off to in order to generate income.

Mr. Garth Whyte: The thing I think we have to take into perspective here is the intent of doing this. This was intended because there were two big events that happened—and this is for those of us who were around when we started this whole process. One was Ogilvie Mills in Quebec, the other was the Giant Mine. The government was frustrated and wanted a way to deal with those issues. We could get into the whole replacement worker issue. Many of us said we wanted you to tighten this up with Sims words, so that there have to be extraordinary circumstances.

My question is whether or not this bill would be undermining a trade union's representative capacity., I guess you're right, you should ask me questions, I shouldn't ask you, but I guess I'm asking somebody to answer that question. It's scary. It's not totally tightened down, as far as we're concerned.

The Vice-Chair (Ms. Bonnie Brown): Anyone had enough?

Mr. Robert Nault: I have one question.

The Vice-Chair (Ms. Bonnie Brown): Okay, Mr. Nault.

Mr. Robert Nault: Mr. Whyte and I have had this discussion before, so I don't want to have it again today. The answer to his question, though, is that the board will decide that definition, not this committee. I have great faith in the board, but I know Mr. Whyte doesn't.

I wanted to ask the presenters from the Waterfront Foremen Employers Association a very specific question, Madam Chairman, because I know it's late.

In this submission, you deal with the section that says the provision is in effect with proposed section 87.7, of course. You go on to say:

...since 1986, there have been six (6) work stoppages totalling ninety (90) days unrelated to Waterfront Employers and the ILWU. ... By contrast, the total number of days lost involving Waterfront Employees...is twenty-five (25). ... Therefore, we question the provision's effectiveness in achieving its desired end of ensuring the continuous flow of grain through to market where only twenty-one percent (21%) of the total number of days lost due to strikes or lock-outs since 1986 fall at the hands of our Industry and its Unions.

You've been involved because you lay out pretty succinctly all of the things you've been doing with the Department of Labour and the different ministers involved. I assume you have made the same argument to them in person that you've made to us today. What was the answer when you asked them this question as to why they would be including proposed section 87.7 when only 21% of the work stoppages directly affected or were caused by you and/or the unions you're involved with, while the rest were from others that you have no way of dealing with? If this is indeed the case, obviously you must have asked why this was seen as a fix.

Mr. Grant Mebs: Thank you, Mr. Nault. That's a good question, and you're right, we have asked that question. The answer that we have received back has been addressed in our submission: there is a perception that there is no collective bargaining on the west coast and that the parties use grain as the ace in the hole. That's the answer to that.

Our response to that is that, first of all, as we indicate, we are not interested in intervention in our collective bargaining. We do bargain collectively. We have done so on many occasion, and have done so successfully. If the ace in the hole exists—and we deny categorically that it does, for the reasons I set out in my report—then it also exists for every other commodity as well.

So the answer to our question has been that it's because the parties—the union and the waterfront employers—use grain as the ace in the hole.

Mr. Robert Nault: Just for your knowledge, the French translation doesn't explain what ace in the hole is. You might want to have someone explain to my French colleague just what the heck an ace in the hole means. I couldn't, because I don't know how you'd say it in French, but it's an English expression and it's not translated the same way. Everyone on the French side is probably wondering what an ace in the hole is. People use that expression on a very regular basis in this committee, so we might want to fix that, starting when we get back, Madam Chairman. I just thought I'd point that out to you, because I have trouble explaining it myself.

The Vice-Chair (Ms. Bonnie Brown): Mr. Wilfert, are you satisfied with the answer to your question, or did you have one more?

Mr. Bryon Wilfert: If we all believe in collective bargaining—and I believe we all do—I'm just curious as to why this is in here. If you go through the collective bargaining process and at some point there is no agreement, then under the law the employees have the right to withdraw their labour. In my view, bringing in replacement workers seems to undermine that ability. I don't know what the incentive would be for the employer to come to an agreement.

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Mr. Jim Utley: Alternatively, what is the incentive for the employee to come to an agreement? That's the difficulty with the replacement worker concept.

The Vice-Chair (Ms. Bonnie Brown): You're short of money, short of cash.

Mr. Bryon Wilfert: I would say (a) cash, but (b) I think we all know the experience of strikes. It's clearly not in anybody's interest. But in my view, if you are going to allow someone to strike and then you say...it's like the post office in my personal opinion. If you're going to let them strike and then you legislate them back, then don't give them the right to strike.

Mr. Garth Whyte: That's right.

Mr. Bryon Wilfert: That's not the position of the government, but that's my view.

Mr. Jim Utley: What does that have to do with replacement workers?

Mr. Bryon Wilfert: Because what you're doing is you're undermining...you say you favour collective bargaining. At the same time, when the bargaining fails, some of you have said in the past and some of you say today that we'll bring in replacement workers and that way we'll keep our operations going.

At the same time as your operations are going, the employees who are out on strike have no other recourse. I don't think it's that easy for them to find other jobs on a short-term basis, nor do I believe that because they do run out of cash there is going to be an incentive. No one wants to have a prolonged strike. I believe neither the unions nor the employees want a prolonged strike, but that's a philosophical discussion.

Mr. Garth Whyte: But there is more than that.

Mr. Dale Johnston: What I think this is all about is what Sims said, to start with. It's about a balance, and if you give employees the right to strike and you take away the right of the company to operate, then you'd no longer have a balance. I think that's what constitutes—

Mr. Bryon Wilfert: That tips it significantly.

The Vice-Chair (Ms. Bonnie Brown): To end this discussion as we're beginning cross-debate, I want to thank our guests for coming. They came a long way and they did a lot of work putting their thoughts on paper.

We're very grateful to you and we assure you that your briefs will be considered as we go down the road to the legislation. Thank you very much.

Mr. Grant Mebs: Thank you.

Mr. Garth Whyte: Thank you, Madam Chairman and members of the committee.

The Vice-Chair (Ms. Bonnie Brown): This meeting is adjourned.