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]

Tuesday, March 24, 1998

• 0939

[English]

The Chairman (Mr. Reg Alcock (Winnipeg South, Lib.)): Let us come to order and begin our journey down the Bill C-19 road.

I'd like to welcome the minister here. Mr. Minister, I appreciate your being here to introduce this particular bill. We'll let you introduce the people you brought with you and hear what you have to say about it, and then I suspect there will be a question or two from members.

Hon. Lawrence MacAulay (Minister of Labour, Lib.): Thank you, Mr. Chairman and colleagues, members of the committee.

With me is Deputy Minister Mel Cappe, and Mike McDermott, Senior Assistant Deputy Minister.

• 0940

I'm very pleased to be here to discuss the important provisions contained in Bill C-19.

Let me start by suggesting some basics that we can all agree on. There is little doubt that in the second-largest country in the world, with a relatively small population and labour matters split among 11 jurisdictions, getting labour relations legislation written so it pleases all people all the time is a difficult task.

We would all acknowledge Canada's long history of honouring the collective bargaining process, a process that dates back to the turn of the century and that has served this country well. Even during our current debate, we have acknowledged a 95% success rate for a resolution of collective bargaining negotiations. That is to say, 95% of all disputes are settled without strike or lockout.

We have all agreed that part I of the Canada Labour Code is in need of substantial and speedy revision so a new act can meet the demands of the 21st century.

Finally, I think most if not all honourable members would agree that the Sims task force, whose mandate was to come up with a comprehensive set of recommendations, consisted of the best individuals in the industry to do so. They had the expertise and the wisdom to know when and where compromise had to be made.

Those who contributed to the process of consultation took their time, did their homework, and came up with options that they knew would be satisfactory to both labour and management. And a lot of consultation took place, I can assure you. These issues were repeatedly raised in the House during the second reading debate, for the most part the very same issues that proved to be the most troublesome for the Sims task force. Agreement on these issues was only reached through consultation and compromise. I would like to discuss three of those issues.

Receiving most discussion was section 87.7. This section resulted from input from the Industrial Inquiry Commission into Industrial Relations at West Coast Ports and from the recommendations put forth by the Sims task force. Both the inquiry commission and the task force identified disruptions to grain exports as the primary trigger for back-to-work legislation. The commission compared collective bargaining in the west coast longshore industry to a ritual that is more akin to a poker game, with the ace in the hole being the capacity to halt grain exports.

While both investigations agreed upon their identification of the problem, they differed in their proposals to solve it. The inquiry commission favoured an approach that would ultimately involve a standing system of compulsory arbitration. I know some of you have suggested final-offer selection as the most effective way to solve these stand-offs, not only in the grain industry but in other sectors as well. The Sims task force suggested a less intrusive way of removing the political pressure point of grain exports from the port labour negotiations.

When we examined the options before us, we had to take into account the overall opposition of both labour and management to compulsory arbitration as a means of resolving labour disputes.

The purpose of section 87.7 is not to eliminate or remove collective bargaining from the grain transportation sector. Rather it deals with one commodity that is susceptible to the bottleneck at the point where it's loaded onto the ships. We want to eliminate that ace in the hole, which has been used by both sides to shift the responsibility of solving their problems to Parliament when negotiations get bogged down.

The best resolution for everyone involved is a collective bargain reached by the parties themselves, without the imposing of back-to-work legislation, or for that matter, through forced arbitration.

Third-party settlements rarely solve complex issues. A short-term difficulty is relieved, but left in its wake can be an angry workforce or an unhappy company whose reaction may be a long-standing, simmering resentment. Nothing is more effective than an agreement negotiated by the parties and finalized by the parties themselves.

• 0945

This is not to say that final-offer selection does not have its place, especially when the sides are down to one or two monetary issues. When it is the parties themselves that determine arbitration to be the best option, then final-offer selection is a reasonable tool available to the arbitrator. But it's no panacea, and the threat of its legislated intervention for every work stoppage could well result in misuse and manipulation.

As well, of course, final-offer selection results in a winner and a loser. The best solution continues to be the one that is reached by the parties themselves through collective bargaining.

At its core, proposed section 87.7 is designed to reduce disruption to the grain exports and to discourage reliance on legislative interventions.

Will proposed section 87.7 solve all our problems? Of course not. But it is an important starting point, so important, in fact, that we are committed to reviewing its effectiveness in 1999, when the next round of bargaining is completed.

The use of replacement workers has caused considerable and lively debate among certain hon. members. I observe that those from the Reform and the Bloc Québécois are having trouble reaching consensus on legislating the right to use, or deny the use of, replacement workers. This suggests that perhaps we have found a reasonable compromise.

I might add that I did respond to concerns raised by the labour management stakeholders last summer on the wording of this provision. It now reflects the language used in the Sims report, which is what they requested.

Wherever you come down ideologically on this issue, for this bill, at this time, we must chose the middle ground. For us to prohibit the use of replacement workers entirely, or alternatively, to allow their use indiscriminately, without regard to the notion of fair labour practices, would set our course back considerably. The long-fought battle for a reasonable compromise on this sensitive issue would be re-ignited.

Given the conflicting views expressed in our deliberations, to choose the extreme suggestions either by one party or the other would only hinder the passage of this bill by continued heated debate and disagreement. I believe the provision, as worded, represents the best possible compromise.

I appreciate the concerns raised by the honourable members on the issue of privacy and confidentiality for off-site workers. If we agree with the notion that these workers have the right to all the information that a union would distribute in the traditional worksite, then all we have to agree on is the manner of distribution.

I would argue that the efforts we have made this past summer to build in appropriate privacy safeguards answers both a worker's right to information while at the same time protecting their privacy and security.

I would urge a careful reading of clause 50 in its entirety. It speaks specifically to the issue of protecting the privacy of individuals and the powers of the board to ensure such privacy is indeed upheld. I know other issues have been raised by my colleagues, but these three have attracted the most discussion.

I would like to close by saying that this bill reflects the study, compromise and consensus of those who must live with the consequences. It was a long process, as consensus-making always is. Any substantial change to any of these provisions will put in jeopardy that long-sought-for balance and compromise.

I would ask my colleagues to consider that in your desire to improve the bill you don't inadvertently alter that which the major players have already agreed upon. In the end, it is not possible for one piece of legislation to be all things to all people at all times, but the work of the Sims task force, whose recommendations are the backbone of this bill, comes close.

We have a unique opportunity to move forward by making the possibility a reality. Let's not lose the momentum now. At the end of the day, we must pass Bill C-19.

I thank you. If there are any questions, I would be pleased to entertain them.

• 0950

The Chairman: Thank you, Mr. Minister. That was nine minutes and forty-eight seconds, a record of efficiency.

Mr. Lawrence MacAulay: Thank you, Mr. Chairman.

The Chairman: And I might add, clarity.

Mr. Lawrence MacAulay: I must add, Mr. Chairman, that I am suffering. I had an eye operation and things are not clear. Some of my honourable colleagues might indicate that I can never see—sometimes I have some difficulty recognizing... Whatever.

The Chairman: I just want you to know that I always look this way, so it's not just—

Some hon. members: Hear, hear!

The Chairman: I'm going to watch the time pretty carefully to make sure everybody gets a chance to ask questions while the minister is here. I understand the officials will stay until 1 p.m., so we can continue the discussion.

I will begin with Mr. Johnston.

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

Good afternoon, Mr. Minister and officials. Thank you for coming before the committee.

The minister spent a good deal of time talking about proposed section 87.7, which deals with the movement of grain in the port. Would he like to comment on what exactly this applies to, in particular whether it applies only to the grain in the port or will ensure the movement of the grain right from farm gate, to the ship and out through the harbour?

Mr. Lawrence MacAulay: Thank you, Mr. Johnston.

Over the past 25 years we had 12 work stoppages, nine of which involved grain. Seven had to be legislated back to work by Parliament, and it was because grain loading at the port had been stopped. It was not a problem of the grain going from the farm to the port. The problem we have is that grain is used as a weapon, it is used to settle the issue.

As I indicated when I spoke, it becomes a bottleneck at the port, at the loading site. I am sure all honourable members agree that we all support the collective bargaining process, but in the end this does not allow the collective bargaining process to work, because government must intervene. It is not because of the dispute that the government intervenes, but so that the grain can move. Passage of this bill will allow both management and labour to take responsibility for settling the labour dispute without having Parliament get involved.

Mr. Dale Johnston: Further to that, there are about seven unions in the railroad, and if there was a work disruption with any one of those, the grain wouldn't reach the port. So basically this legislation applies only to grain that's in the port.

I concur that there have been instances in the past where work stoppages came about as a result of either the people who load the grain or the managers at the port. So does this apply just to grain that's at the port? How will it help if there's a work stoppage with any one of those unions that affects the transportation of grain to the port?

Mr. Lawrence MacAulay: Dale, as I indicated earlier, this is not the answer to everything and for everything. It is impossible to come up with a piece of legislation that will solve all problems.

As you're aware, the Sims task force dealt in depth with this, and the problem they found was that at the loading point, as I indicated clearly, they looked at Parliament as being the ace in the hole. The intent of this bill is to make sure the collective bargaining process works in this area.

When you have 12 stoppages, nine involving grain and seven having to come back to Parliament...I suspect that is why the Sims task force recommended we take action, and this is why we took action. As I indicated before, we took action to allow the collective bargaining process to work at the west coast ports. There are other problems in other areas, either provincially or federally regulated, and there will be ongoing problems, but what this addresses is this problem.

• 0955

Mr. Dale Johnston: What we seem to be trying to do here is to make essential workers out of a small group of people, but then in other places of the bill we're going to have a sort of de facto ban on replacement workers. Why wouldn't some sort of dispute settlement mechanism, whether it's final offer or something crafted in your own department, be a better tool than these two particular...? I think some kind of a dispute settlement mechanism would address both those things.

As well, the last time we had a work stoppage at west coast ports, Parliament had to legislate the parties back to work. Ultimately, the two parties had to come to an agreement as far as the outstanding issues were concerned. What was used in that case?

Mr. Lawrence MacAulay: If you're asking me what was used in that specific case, I would ask Mike McDermott.

Mr. Michael McDermott (Senior Assistant Deputy Minister, Department of Human Resources Development): Are you talking about the two longshore disputes, Mr. Johnston?

Mr. Dale Johnston: I am talking about the most recent dispute at west coast ports in which Parliament intervened and legislated the parties back to work. That got them back to the table but it didn't do anything about their contract. How was it settled?

Mr. Michael McDermott: The two in the last Parliament? It certainly did do something about the contract. The first was Bill C-10, and that was settled by final-offer selection. It was actually more a lockout than a strike and it was over something like 25¢ in each of two years. It was more like two nickels, and final-offer selection was able to say you're down to that narrow margin, and that was used. In the second one, I gather it was mediation arbitration that was used in the longshore foremen's dispute.

Mr. Dale Johnston: Why wouldn't a dispute settlement mechanism in place of declaring grain handlers essential services, or the de facto ban on replacement workers—rather than those two clauses in the bill, wouldn't both of those problems be answered by some sort of dispute mechanism, either one or the other or a combination of the two that Mr. McDermott mentioned?

Mr. Lawrence MacAulay: The west coast grain handling deal allows, as I said before, the bargaining system to work. If there's a strike and it involves certain issues, what we don't want is Parliament having to intervene to put people back to work. The only thing we want is the two parties, labour and management, to be in a position where they must settle this themselves. Too often it had to be settled because of the bottleneck created by the grain. This legislation means that won't happen and they will have to resolve the issues without Parliament. I know you're fully aware of it, but that's how the collective bargaining system works and that's what we want to see happen.

Mr. Dale Johnston: I'm certainly no fan of back-to-work legislation. What I'm suggesting is that if we had a dispute settlement mechanism instead of back-to-work legislation, instead of making essential workers out of the people who load grain at the west coast ports, instead of having this sort of back-door anti-replacement worker legislation... Put in some kind of dispute settlement mechanism that would encourage the parties to come to a negotiated settlement without putting the economy and the Canadian people through the stress of withdrawing these services that can't be obtained anywhere else.

Mr. Lawrence MacAulay: I agree with you to the point that I'm not big on back-to-work legislation either. It's unfortunate but sometimes it has to happen. Without trying to repeat myself, with this legislation there will be much less back-to-work legislation.

As you know, we're going to review this in 1999. The government wants to make sure that grain is not used as the deciding factor. It's really not involved, but we have to intervene because of the grain bottleneck. There will be no need for another settlement mechanism because we're going to use the collective bargaining system. Both labour and management on the west coast are very capable of using it and will be aware that grain will not cause a problem so that Parliament will have to become involved. What it does is leave the onus on labour and management, which has worked so well in this country for the last 100 years, and that's why I support this bill so strongly.

• 1000

Mr. Dale Johnston: Okay, I'll shift gears a little bit.

The Chairman: Mr. Johnston, this will be your last gear shift in this round.

Mr. Dale Johnston: That's okay because I'm in high gear now.

Mr. Minister, do you support the democratic right of workers to vote using a secret ballot on whether their union should be certified or whether they want union representation?

Mr. Lawrence MacAulay: You're sharp, Dale.

The Chairman: It's the first time we've heard that in this committee.

Mr. Lawrence MacAulay: I support the bill, and as you're aware, if over 50% of the cards are signed up, the union would be certified. I support that in the legislation, and I know you're fully aware it's there. I think that is also a democratic process. You don't have to sign the card, but if you do and you have a majority, then that is the union that has control, and I think that is totally democratic and fair.

The Chairman: Thank you, Mr. Johnston.

Monsieur Rocheleau.

[Translation]

Mr. Yves Rocheleau (Trois-Rivières, BQ): Mr. Chairman, my question relates to the absence of real measures for the hiring of replacement workers. In this respect, the Bill takes the position of the Sims report but the particular chapter dealing with the issue of replacement workers can be considered one of the weakest chapters of the report.

Do you recognize that the government is legalizing or backing the hiring of replacement workers instead of denouncing this employer practice and taking the appropriate measures?

[English]

Mr. Lawrence MacAulay: Mr. Rocheleau, just to make sure I understand, you are asking me whether I agree they should be able to hire replacement workers. Is that correct?

[Translation]

Mr. Yves Rocheleau: Are you aware of the fact that in the wording of this bill the government is legalizing the hiring of replacement workers, a practice that is prohibited in Quebec?

[English]

Mr. Lawrence MacAulay: Thank you very much. The legislation indicates that a company has the right to use replacement workers, and I support that. As you are aware, however, if there's a problem they have the right and responsibility to indicate that to the labour board. If it's a situation where the company attempts to undermine the union with the use of replacement workers, then the board has the authority to not allow replacement workers for the duration of that dispute, and I think that's fair.

[Translation]

Mr. Yves Rocheleau: Could you tell us why the government of Canada is not making greater use of the experience in other jurisdictions, notably in Quebec, where for over 20 years there has been antiscab legislation with very positive effects on the duration of labour conflicts and violence?

• 1005

We know that certain situations can become extremely tense and dramatic when workers have their job taken away from them and see new people hired to take their place. We saw an example of what can happen in the case of Ogilvy in Montreal. These people were able to make use of unemployment insurance along with the complicity of the Canada Employment Centre to hire scabs. You're setting people at each other's throats when you allow this kind of practice to go on nowadays.

We have an example very close to us in Quebec where there's been a significant improvement in the situation. Why not take your inspiration there and perhaps in some other examples showing in this your respect for the civilized evolution of social practices.

[English]

Mr. Lawrence MacAulay: Are you asking me, Mr. Rocheleau, whether you can hire the replacement workers after the dispute?

[Translation]

Mr. Mel Cappe (Deputy Minister of Human Resources Development): Mr. Rocheleau, we've taken our inspiration from several experiences throughout Canada.

An important thing about the wording of the bill is that the parties are allowed to settle their own disputes themselves. However, the bill does specify that employers may not hire people to replace strikers

for the demonstrated purpose of undermining a trade union's representational capacity rather than the pursuit of legitimate bargaining objectives.

So, the Act does allow the hiring of scabs or replacement workers but prohibits the hiring of such people in order

[English]

to undermine the ability of the parties to regulate their problem.

Mr. Lawrence MacAulay: And I might add that this was supported by the Sims report. It was a very divisive issue, but the final consensus was that this is what would be put in place.

[Translation]

Mr. Yves Rocheleau: I have another question. Could you tell us, Minister, why the federal government has not been more attentive to the demands of members of the RCMP desirous of more equitable treatment in their labour relations? They're not asking for the right to go on strike but to have at least the right to negotiate some of their working conditions instead of having them left up to the goodwill, not to say the arbitrariness, of the employer.

Lastly, why did you not go along with the demands of employees of the Public Service of Canada wishing to be subject to the Canada Labour Code rather than the Public Service Employment Act that now regulates relations between the employer and the employees of the government of Canada?

[English]

Mr. Lawrence MacAulay: Mr. Rocheleau, the Sims report did not recommend that. Mike McDermott may have something more to add to that.

[Translation]

Mr. Michael McDermott: The Sims report says that bargaining rights in the RCMP come under the authority of the government and are not to be dealt with in the Canada Labour Code itself. That is quite clear. It says that it must be determined whether it is necessary to have a bargaining system in the RCMP. I believe the Solicitor General has already taken steps to ensure that there is consultation between the members of the RCMP and their management. They have not yet adopted a system of collective bargaining. Sims never said that this should come under the Code.

The same is true for the public service. Sims did not deal with the matter. He agreed to hear representations on the subject but he took note of the fact that there already was a well- developed system of collective bargaining in the public service outside the Canada Labour Code.

• 1010

Mr. Yves Rocheleau: Yes, but we have to be aware of the reasons why people in the public service of Canada are asking to be subject to the Canada Labour Code.

At the present time, as I understand it, they are deprived of very important rights in comparison to union workers who come under the Canada Labour Code. You can say that there are two categories of workers in Canada. Workers for the federal public service complain about this fact and in order to obtain certain rights wish to be subject to the Canada Labour Code. Why? Because, I suppose, the Labour Department of Canada displays a certain freedom of thought in relation to the Sims report.

I dare say that in view of the quality of our public service there may be some senior officials, particularly in the Department of Labour, who are capable of thinking outside the terms of the Sims report and able to make the appropriate recommendations to the government both for the RCMP and the public service at large. I suppose we are not completely bound to the Sims report.

[English]

Mr. Lawrence MacAulay: As you're aware, it's under a separate regime. But Mike might have more to add.

[Translation]

Mr. Michael McDermott: The system of collective bargaining as regulated by the private sector code is not something that is found uniformly throughout the country; the police are an example of this. Collective agreements often come under a different regime, as is the case for public servants. Some adopt almost the same code for public servants and have specific provisions relating to them. In other provinces, there is specific legislation relating to public servants, the police, fire departments and other groups of this type. In the federal government, we have a well-developed system for public servants.

[English]

The Chairman: Thank you, Mr. Rocheleau. I should welcome you here and Mr. Martin also as the critics for your parties.

I'll go to you now, Mr. Martin.

Mr. Pat Martin (Winnipeg Centre, NDP): How much time do I actually have, Mr. Chair?

The Chairman: I'm doing a 10-minute round on the first round.

Mr. Pat Martin: First of all, Mr. Minister, regarding maintenance of service, the obvious issue there is that the grain will be handled, the grain will go through, but there's reference to another example of when service will be maintained, even though there's a strike or a lockout, and that's in the event of public health and safety. Can you elaborate on that? In what instances might that be used or where do you contemplate that being invoked?

Mr. Lawrence MacAulay: Of course, Pat, that's part II of the code, which is health and safety.

Mr. Pat Martin: I believe there's reference to it, though, in terms of maintenance of service.

Mr. Lawrence MacAulay: Maintenance of service, yes, of course, in part I. Can I give you an example of where it will be used. Is that what you're looking for, Pat?

Mr. Pat Martin: More the process of how that would be invoked, of who would be able to appeal to the board that this was the case...I don't need specific examples. Would you comment on the mechanism for how someone would invoke this particular activity to carry on even though there's a strike or lockout?

Mr. Lawrence MacAulay: They would have to go to the labour board. I'll let Mike answer, but you take your problem to the labour board, whichever one it is. There'll be a new board established, of course, when the legislation is passed. That's where it would go.

Mike.

Mr. Michael McDermott: There's a very heavy emphasis in that section on allowing the parties, the union and the employer an opportunity to negotiate what is necessary to protect the health and safety of the public in the event of a work stoppage. And that would be the first step.

There is a requirement for the parties to look at this issue once they enter into negotiations, where notice to bargain has been given and they can see if they can come to some agreement. That agreement is filed with the labour board and the labour board can look at it. If there is no agreement, the labour board can also look at the issue.

In the event that the issue has not been looked at by the parties, the Minister of Labour can refer the issue to the board and have the board determine whether there is any need to have certain services continued in the interest of public health and safety. It's been so constructed so that negotiation is important. It's also been constructed so that as time develops the situation can be looked at and reviewed. What might not be essential to public health and safety on day one of the dispute might become essential later in the dispute, and it's been so crafted so that there is this flexibility.

• 1015

Mr. Pat Martin: Okay, thank you.

One of the differences between Bill C-66 and the current Bill C-19 was that when talking about banning the use of replacement workers in the anti-scab section, the word “demonstrated” arrived in the language, where the onus is on the union to demonstrate that the use of replacement workers shows that the company is trying to undermine the union. That was a change that seems subtle but adds the burden of proof and the onus. Once it gets tested in arbitration or at the labour board, how do you see that word having an impact on the administration?

Mr. Lawrence MacAulay: Mike has given me something to read, and they wrote that very small, so with the problem I have I won't be reading it.

Mr. Michael McDermott: That's the bill.

Mr. Lawrence MacAulay: Quite simply, it leaves the onus on the union to bring forward a problem. Let's say, if the union feels that management or the company is trying to use the replacement workers in order to undermine the union, then they must determine or bring forth the problem to the labour board. If it is indicated or proven that this is what's taking place, then that's against the intent of the legislation. Quite simply, that is the intent of the legislation. Replacement workers can be there if they're not used to undermine the union, and if it can be proven that management or the company undermines the union, then it's against the intent of the legislation.

The word “determine”—

Mr. Pat Martin: “Demonstrate”.

Mr. Lawrence MacAulay: Oh, “demonstrate”. Quite simply, what it means is that they have to demonstrate to the labour board that the company is not dealing fairly and they're using the replacement workers to undermine the union. As you're well aware, this was a very divisive issue, but this was the compromise. There are a lot of compromises here, and a lot of my good friends here disagree. This whole package was that they agreed to disagree and move on, and that's why this is worded the way it is.

Mr. Pat Martin: Okay, thank you. Do I have time for one more?

The Chairman: Yes indeed. If they're of that quality you can have two questions.

Mr. Pat Martin: As for the use of off-site workers, some of the correspondence I've had states the main issue is what steps the government might be taking to ensure the privacy of on-site workers. One of those steps is that the board can actually intervene and circulate the union's information to those off-site workers, and we're certainly in favour of that. We believe the off-site workers deserve the opportunity to view whatever information is available so that they can make up their minds freely on whether they want union representation or not.

In that light, my only comment is that the communication becomes very one-dimensional and there's no opportunity for give and take. In any of the union organizing I've done, I wind up at people's kitchen tables and I talk with them into the evening over coffee about the pros and cons of being represented by a union. Do you have any comment on how we can overcome that hurdle? Do you see that board intervention being a common occurrence, or will the union usually be allowed to communicate the information directly to the off-site workers?

Mr. Lawrence MacAulay: You're well aware, Pat, there was quite a concern for the privacy of the employee. As you indicated, it's certainly true too that it's the right of the employee to also obtain the information, and my problem in the middle was to make sure the employee was able to receive the union information.

• 1020

Quite simply, if they were on-site, as you're well aware, they would receive the information at the plant door or whatever. When it's off-site then it creates these problems of privacy. If they want you at the kitchen table, you'll be at the kitchen table.

Mr. Pat Martin: Not if we don't know their address or their phone number—

Mr. Lawrence MacAulay: There is a process in the bill for them to receive the information, and that is quite fair. If they receive the information and they wish to become involved in the union, then I think it's only fair that we...as the minister I had to put something in place that provided some protection to their privacy. And that's exactly what happened here.

Mr. Pat Martin: I agree.

The last point I'd like to raise is the composition of the board. We're quite pleased with the new idea of a truly representational board, and the idea is good. In terms of expedited cases, where a single chair or vice-chair can hear matters, could you elaborate on that a bit? Do you see that speeding up some of the backlog, for instance, of applications for certification? What kinds of cases could be heard by that single arbitrator or single vice-chair?

Mr. Lawrence MacAulay: Of course, as you're well aware, Pat, this was put together in order to make sure that it was speedy and also fair. You're also well aware that the board is put together quite fairly with representation from both sides.

We have succeeded in this legislation in making sure that the board is truly representational of labour and management. I'll let Mike respond on the specific issue.

Mr. Michael McDermott: We have in this bill something that is not strange to some legislation in other Canadian jurisdictions. There are things that come before labour boards that could just as easily be heard by a single, neutral member as opposed to a tripartite tribunal.

Most commonly, it would be issues such as duty of fair representation, where a union is required to represent all members of a bargaining unit without discrimination and to represent them fairly. If there's a complaint against the union it goes to the board. Obviously if you have a tripartite panel perhaps it's a little difficult for the union nominee to hear some of these things and actually appear to be objective.

Even if they are objective, there will be questions about their objectivity at the end of the day. Even management doesn't want to get involved sometimes in these disputes between a union and its members, so it's that kind of case.

You'll see it again in duty of fair referral in the case of a hiring hall. That has been specified in the statute as being one that is suitable for the chair of the board to decide should be heard by a single member.

There are other issues such as uncontested applications, preliminary proceedings, and those kinds of things. Where the chair is of the view that something needs to be handled very expeditiously, it may also name a single member. In each case, of course, it would be a neutral member of the board.

The Chairman: Thank you, Mr. Martin.

Mr. Dubé.

[Translation]

Mr. Jean Dubé (Madawaska—Restigouche, PC): I'd like to thank you, Minister, for your short presentation that will give everyone a chance to ask questions. I must say that you have made many good changes to a piece of outmoded legislation. It was time for change. Today we have a chance to propose additional changes and perhaps make it a bit fairer.

You said that today we have the opportunity to express our points of view on this bill. I hope you will take into account the concerns that were heard today reflecting as they do the experience of many Canadians in different fields.

You've heard the concerns about replacement workers and distance workers. But there is a serious problem, namely the fact that certification does not require a majority vote of employees. I have a great deal of trouble with that as a Canadian and as a citizen of a democratic country. I can tell you that if this situation had occurred in the last referendum, we would have had a serious problem. I am afraid that we are creating a dangerous precedent.

• 1025

I am a new member of Parliament and when I read this for the first time, I had some very serious doubts. In a democracy, in the country where we live, 50 plus 1 has always been a majority. So I am asking you then what we can do and whether we are not running the risk of creating a dangerous precedent.

My next question deals with the

[English]

privacy commissioner. I have a question here. I know the privacy commissioner wrote to your office in December 1997 stating his preoccupations with this bill. Would it be possible for you to table that letter to this committee saying exactly what the commissioner's preoccupations were with the new legislation here in place? I know he still has preoccupations. Are you willing to listen to what he has to say before we bring this to a vote?

Mr. Lawrence MacAulay: Your first question was concerning the board having the authority to certify a union with less than... This is really complex, without a doubt, but quite simply, if you can bring the evidence to the board, which as you're well aware is made up of labour and management equally with neutrals, and if you can convince this quasi-judicial body that some improper activities took place, then they do have the right to certify the union. Quite simply, they're in the position of authority. They are quasi-judicial and I do not have a problem... Should this happen, they are proving to this quasi-judicial body that inappropriate action took place and that is why that is there.

On your second request, I understand this gentleman could be or is requested to be a witness. I will let you deal with him on that issue and he will respond for himself.

Mr. Mel Cappe: Perhaps Mr. McDermott will want to add to this, but you're right that the privacy commissioner had concerns. There were extensive consultations and discussions with his office and with him personally. He and I spoke after we had worked out this accommodation and he was quite satisfied that we had taken account of many of those concerns. This was a serious concern and we took it seriously.

Mr. Michael McDermott: There were concerns expressed by both the information commissioner and the privacy commissioner in the course of the discussions on Bill C-66. Many of those concerns have been addressed. I think the privacy commissioner does still have a concern but it's largely in connection with a case that he has before the courts. That is an issue of the protection of notes. I believe he will be speaking to that. He may also speak to the off-site worker provision as well when he appears here.

To my knowledge, the correspondence was addressed to me. It's something that the commissioner may well bring with him; if not, we can produce it. We'll consult with him, and if we can bring it I see no problem in that.

Mr. Jean Dubé: I have another question. Since this bill deals with a major restructuring of the Canada Labour Relations Board, I'd like to take this opportunity while we have the minister here with us to bring up what I find is a troublesome issue.

The preamble of the Canada Labour Code is very clear in establishing the principles governing labour relations. It reiterates the principles of freedom of association and free collective bargaining as the base of good labour relations. Yet in the documents I received that profile Mr. Paul Lordon, the new chair of the CLRB, in preparation for his appointment to the RCMP pay council, it says that Mr. Lordon “feels it is critical that the RCMP don't unionize”.

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Does the minister not think it is problematic that someone having these views would preside over the board?

As a supplementary, if this lack of scrutiny can occur in the appointment of this person, how can Canadian workers and employers trust that the minister will appoint impartial and competent members to the new board he plans to create with his changes to the Canada Labour Code?

Mr. Lawrence MacAulay: Thank you very much, Jean. As you know, there are provisions in other areas for these types of things. As you are also aware, the RCMP is under a different regime.

I suppose it is pretty difficult to get somebody who doesn't have an opinion on something to chair a board. I am not trying to be smart, but—

Mr. Jean Dubé: You have some bureaucrats, so you have three who'll answer.

Mr. Lawrence MacAulay: Now, now; be good.

In all fairness, it is handled under a different regime from what he will be handling.

Mr. Mel Cappe: I would add that there is a recognition that there are some essential services that require a different regime. As Mr. McDermott noted earlier, in many jurisdictions there are exceptions and exemptions for police services.

I think it was a very particular comment on the Royal Canadian Mounted Police and not on the freedom to associate or the freedom to collectively bargain.

Mr. Jean Dubé: I am a little worried about the transition from the old board to the new board your department is getting ready to name. There are members, and these members who sit on this board were named for four years, I believe. Their mandate is about extinguished, and some have maybe two years left.

Would it not be a good recommendation that we keep the members who still have two years in transition of that new board and after they have completed their mandate move on to something else? I am concerned about the transition of the board. I would like your comments on that, Mr. Minister.

Mr. Lawrence MacAulay: Of course, the transition is an issue. You are also aware that when this legislation received royal assent the board was then not in place. But that is a decision Mr. Lordon will make, in consultation. Then, of course, the new members that will be sworn in will be done by order in council.

In detail, as to what will happen legally or whatever, I wouldn't respond to that, because the decision hasn't been made yet. We're dealing with that situation on an ongoing basis. There are a number on the board who are, as you say, close to the end of their term, some up to a couple of years. It's an ongoing management problem we must deal with.

So that's where we are—unless you have something to add to it, Mel—and if we so desire, we could extend them, too.

Mr. Mel Cappe: As the minister noted, it isn't royal assent that proclaims the legislation. Clause 97 of the bill provides for provisions of the act to be brought into force at different dates. In the transition provisions, though, there is a provision for continuing jurisdiction of former members, at subclause 88(2) of the bill. It's conceivable that there might be a need for that kind of continuation, but it's a case-by-case determination, in effect, and board member by board member.

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Mr. Lawrence MacAulay: That's something we have to evaluate. As you know, Mr. Lordon was appointed not too long ago and the legislation is not passed yet. We don't take anything for granted, but when it is passed, it's quite simply a management problem, which we are certainly looking at, I can assure you.

The Chairman: Mr. Wilfert.

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

When you're in the clean-up order of the batting rotation, most of the questions have been taken.

Mr. Minister, in your comments at the beginning you talked about the moderate middle and the need for balance in the proposed legislation, which I certainly concur with. I want to revisit one section you talked about and introduce another.

Just so that I am clear, on the issue of automatic certification you'd indicated that you support 50% or more. In the present code that is in fact what happens. When a proposed bargaining unit wants to come into place, it has to have 50% of the employees or more. This bill as I read it would in fact give the board significant power to override that. Of course, in the Ontario Labour Relations Act, which I believe is even stricter in terms of automatic certification, the famous Wal-Mart case came to play and 44% were proven to have endorsed the membership, according to the United Steelworkers.

The question I have is what would be the criteria, the mechanisms or the evidence required for the board to overturn what would be on the surface a minority, if a minority of people were supporting the certification of a union, and the board is empowered to review that based on what specific evidence and what criteria they're going to have? Otherwise I would agree with my friend across the way that this would lead us to undemocratic and unfair practices.

Mr. Lawrence MacAulay: Bryon, you're right. That's exactly what we don't want to have, unfair and undemocratic process in any way, shape, or form. As I indicated previously, the board is a quasi-judicial body. It's not there to create favours for one or the other.

What happens is that if a union attempts to certify and they can bring forward evidence to the new labour board that some injustices or some practices that were deemed as inappropriate were done, then this quasi-judicial body has the appropriate right to overrule the vote. This is the case if the evidence presented indicates that without this happening they would have achieved more than 50%. This bill is built totally on fairness, to make sure there is fairness straight through.

If the union that is attempting to be certified can bring forth evidence to this quasi-judicial body that practices were used by the company or by management that were inappropriate, then this board does have the authority. I'm sure it's something that won't be taken lightly, but you must realize you're dealing with a quasi-judicial body. There's evidence brought forward and they evaluate the evidence and then make their decision.

Mr. Bryon Wilfert: Mr. Minister, as a quasi-judicial body, they will determine in their own mind what it is that is admissible.

Mr. Lawrence MacAulay: Yes.

Mr. Bryon Wilfert: Is there a timeframe in which this evidence has to be brought forward? Let's say the union is not certified and then the union comes back and says this and this happened. Is there a timeframe?

Mr. Lawrence MacAulay: I'm not sure of the specifics. I don't know that there is. I don't imagine anybody is going to sit around for two years and wait.

Mr. Bryon Wilfert: No, but in terms of being logical, would it be six months? Would it be a year?

Mr. Mel Cappe: Mr. Wilfert, as I read it, the board does not have a time limit. However, it does have the obligation to find. It says where “the Board is of the opinion that, but for the unfair labour practice,” the union would have received the 50%. That's a very challenging determination. It has to attribute causality and it has to have a finding that there was that unfair practice. There would have to be some evidentiary based process to make that determination.

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Mr. Bryon Wilfert: I raised the question because I didn't see anything of that nature and I wasn't clear as to that. Thank you.

The second question is with regard to the issue of the board being empowered to disclose confidential names of employees and addresses to third-party unions. I'm concerned about confidentiality. Proposed subsection 109.1(4) talks about the word “consistent”. I'm concerned as to why this information would be released and the implications of it being released to parties that may in fact have no legitimate or direct interest in the particular situation.

Mr. Lawrence MacAulay: It would be inappropriate. Do you mean for other uses?

Mr. Bryon Wilfert: To third parties, yes.

Mr. Lawrence MacAulay: It is written very clearly in the bill that it can only be used for unions if it's union information. Do you mean for names to solicit in other areas?

Mr. Bryon Wilfert: Yes.

Mr. Lawrence MacAulay: There is a specific section written in the bill. Mike can give you the exact location. That's taken care of. It's against the principle of the bill for this to be used for any activity other than for the information of the union.

Mr. Mel Cappe: I was going to point to proposed subsection 109.1(3), where it points out that the board has the ability to distribute the information on behalf of, as opposed to leaving it to the unions, if it's their opinion that there is a problem.

Mr. Michael McDermott: Also, proposed subsection 109.1(3) is a new provision in this bill which was not in Bill C-66. Proposed subsection 109.1(4), which is what the minister referred to, is also new and it reads quite simply:

The names and addresses of employees provided under subsection (1) shall not be used unless it is for a purpose consistent with this section.

That is an added safeguard that the minister has put into Bill C-19 that was not clearly expressed in Bill C-66.

Mr. Lawrence MacAulay: It's a good point. If I understand right, Bryon, what you're bringing up is that it be used for activities other than for what the bill specifically indicated. What I have added just makes sure that the information that's released is for specific use only and not for other uses.

Mr. Bryon Wilfert: Thank you for that clarification.

The Chairman: Mr. Nault.

Mr. Robert D. Nault (Kenora—Rainy River, Lib.): I have two questions. One relates to the issue of replacement workers.

If I understand the wording in the legislation, it says “for the...purpose of undermining a trade union's representational capacity”. I know this is going to be a very large bone of contention with a lot of the employers that come to the committee, so I am looking for some clarification, if in fact this does exist in another jurisdiction somewhere where we can get some information. It's sort of going halfway from where we're accustomed in some jurisdictions of having total replacement workers. Here you obviously have a caveat built into it.

Is this the first time we will encounter this? Are we going to create new labour jurisprudence or is there some available that we can look at? I think it would help the committee in discussion with witnesses in the next two weeks. That's the first interest I have. If you don't have the information today, could you get it for us?

Mr. Lawrence MacAulay: Is that on the issue of replacement workers and if it's used anywhere else?

Mr. Robert Nault: Yes, in this capacity. This is a different formation from going all the way and saying replacement workers are totally banned. In essence, there's a caveat that says you have to show that the trade union's representational capacity has been undermined, and that's very unique in that respect. I'm curious as to whether it exists anywhere else in the world.

Mr. Lawrence MacAulay: Mike, can you assist? I'm not sure of other areas.

Mr. Michael McDermott: This is the first time in Canadian jurisdiction we've had such a provision on replacement workers. You have in two cases a virtually total ban on the use of replacements, and in the other provinces there's no discussion at all in the legislation of the use of replacements.

The concept of representational rights is something that's fundamental to a labour statute. You have things like duty of fair representation. You seek representational rights when you apply for certification. What representational rights are is a concept that is not strange to labour boards, “representational” meaning pertaining to representation. That is the role of a union, to represent the employees in the bargaining unit—not just the members in the bargaining unit but all employees, not just the members of the union.

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So it's not a concept that is strange to labour boards. It's dealt with in all kinds of unfair labour practice issues. When people are looking at whether there's been some violation of the duty to bargain in good faith, the representational issue is always in the background. Is bargaining being conducted in such a way as to reach agreement or is it being conducted in such a way as to avoid agreement and perhaps simply ignore or undermine the presence of the union?

So it's not that strange, but it's never been expressed in quite these terms before, Mr. Nault.

Mr. Robert Nault: If I may, Mr. Minister, before you answer, I'd like to elaborate a little further.

Because it's never been attempted, I'm very curious as to the process of how you do this when a strike is already ongoing. If there is a strike ongoing and there is an interest of an employer to use replacement workers and the union applies to the board for the authority to not allow this, is there a process that this will be done in an expeditious fashion? Is this going to be done in a week or is this going to drag on? Remember, we're in the midst of a strike now.

So I think process is important. One of the issues, of course, we will confront in this committee is the fact that most employers that come before us...except for the ones, I suspect, from Quebec, I hope, and a few others that think this is not a bad issue or not a bad way to go.

It's so new, I'm trying to get some direction from you as to how you see this process unfolding at the board.

Mr. Lawrence MacAulay: Quite simply, Bob, it would have to be handled fairly quickly or it wouldn't be of any value. What has to happen, of course, as you are aware from reading the bill, is that if the union feels there has been some undermining, immediately they contact the labour board and deal with it as quickly as possible.

Mike, is there anything saying specifically one day or two days?

Mr. Michael McDermott: No, there's nothing specific. The labour board usually accords priority hearings to matters pertaining to work stoppages, particularly those that are not legal under the code. As you probably know from your experience in the union movement, this is something the labour board rushes into, when there's an allegation of a legal work stoppage. They also look very carefully at, and have in the past tried to give priority to, any complaints of unfair labour practices that come in during the course of a work stoppage, much more so than if work is continuing.

There are all kinds of exhortations in the Sims report that the board has to speed up its procedures. There are some things in the statute that will aid that. The single-member panel thing will aid that. There's also a requirement for the board to issue its decisions within a shorter period of time than in the past, wherever possible.

I think you can see that if there is a work stoppage ongoing, the board will turn its mind to it as quickly as it can.

Mr. Lawrence MacAulay: I think, Bob, as Mike has explained, it will be as quick as possible, but there's no specific figure in the bill.

Quite simply, on replacement workers, this has been a big issue. This is a compromise and new ground, and what we think is very fair ground. There's a group of people who feel they shouldn't be there at all and there's a group of people who feel there should be no provision whatsoever.

What this does is allow businesses to use them as long as they're used properly. But it is not fair to use replacement workers in order to undermine the union. That is also protected in this legislation.

So it is new, middle, and I think excellent ground in the line of fairness and keeping us in the middle, in a compromise.

Mr. Robert Nault: The other one, Minister, I think we're going to hear a lot about is off-site workers. I want to commend you—and the government, obviously—for getting into this issue.

In the golden age we're entering into, and the fact that the global economy and our own economy is changing dramatically, there are going to be more and more off-site workers—

Mr. Lawrence MacAulay: Absolutely.

Mr. Robert Nault: —working at home. That is pretty obvious to us all. For you to tackle this is very important for the long-term viability and respect of labour relations as we know them in Canada.

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I want to ask you one specific question as it relates to off-site workers. Have we gotten our own people at Justice to confirm that this will meet the test? I think we normally do send draft bills to them. I suspect that this is one area in the bill that we will have challenged in court somewhere down the line because of the Privacy Act.

I'm very interested to know whether in fact we have put our people to work to make sure it's crafted in such a way that we won't have this thrown out somewhere down the line by somebody because of some technicality in the Privacy Act that in fact those people will not be able to get representation if they so choose.

I caution that somewhere down the line it will certainly be someone's interest to do that, because this is growing so fast. As you know, there are many employers in this country who don't want unions at all, or representation of their employees.

Have you done this, and can we get some information as it relates to that somewhat along the vein of Mr. Dubé's question about the privacy commissioner himself and what exactly they see this accomplishing?

Mr. Lawrence MacAulay: Well, Bob, it is consistent with the Privacy Act, this part of the legislation. You're absolutely right that it's going to be a much bigger issue after the turn of the century. There's going to be more home workers.

It was a test to take this on, for sure, but what we had to do was make sure it was handled properly. Fairness was in the middle of the road, and fairness was the main objective here in this legislation.

On the first point you mentioned, Bob, Justice did draw up the bill, so...

Mr. Robert Nault: As I've heard some colleagues say, Justice's record isn't so good, if it comes to that.

I was wondering whether you had talked to some of the labour relations experts in the field. I assume Mike has done that. This is fairly new ground, and I think it's important that we get this right, because it's going to grow as a percentage of workers as times goes on. It's going to be a big issue in the committee over the next number of weeks, where people will come forward and say, “That's totally against my rights. You can't do this”.

As you know, having sort of déjà vu, this is the second time this bill has been to the committee. I'll be hearing this for the second time. I was looking for some help from you, Minister, as to whether in fact we've done our homework.

Mr. Lawrence MacAulay: Well, Bob, as you're well aware, I've done nothing but consult since I got here. I've consulted with pretty nearly everybody I could possibly consult with.

I can assure you that, yes, you're going to hear at this committee how perhaps inappropriate this part is, but this part is so important. Then the other group will come in and say this part is inappropriate, and this part is important.

I think you will find in general that most of the people who come before the committee will in the end not want to see this bill scrapped. If we start tinkering, quite simply, the compromises we have come to here... The Sims task force is the backbone of this legislation, but there's been a lot of consultation. We've made a number of changes over the last summer in this legislation, and continually and down the road again it will have to be adjusted, because of, as you say, off-site workers and workplace changes and this type of thing.

So your concerns, sir, are justified, but they're in hand.

Mr. Robert Nault: Okay. I appreciate that.

The other issue—and the last one, Mr. Chairman—is that a number of resource-based industries and corporations, such as coal, potash, and others, are going to be coming to you saying, “Why was there given a particular one? Why did you favour grain and not us?”

Could you give us your view as to the rationale, not only from yourself and Sims, for this particular issue? I think we all know that grain has been used as somewhat of a way of holding the collective bargaining process hostage. What do we say, and what's the argument we make, to the rest that they shouldn't be part of this whole project of seeing whether in fact this is a positive change in the right direction? If I recall the discussion we had previously, the previous minister and I think even Mike himself said this is a test to see whether it works.

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Is that not correct, Mike? I don't want to put words in your mouth.

Mr. Michael McDermott: Not quite. Public servants don't say things like that.

Mr. Bob Nault: This must have been done in the backroom.

I am trying to get a sense of this, because we are going to get a number of witnesses coming forward to the committee with that particular argument and I would like your views on it.

Mr. Lawrence MacAulay: Well, Bob, quite simply, the Canada Labour Code and this country support collective bargaining. This bill was not put in place to destroy the collective bargaining process; this bill was put in place to enhance the collective bargaining process. The problem you have, and what I would suggest as a response, as the response I have received from travelling across this country, is this. In the last 25 years there were 12 work stoppages, I believe, on the west coast ports. Nine involved grain and seven involved legislation specifically because of grain. I know that other commodities are going to say why not coal or why not many other commodities? But it is the grain that has forced Parliament to move.

The only problem is that when Parliament moves, the decision is made for labour and management on this issue because of the grain, and quite simply... The grain was likely not part of the dispute; it could be dollars or hours or whatever. But it is unfair to have grain become the ace in the hole. I would suspect that if it was potash or whatever creating the same problem, we would have had the same recommendation from across the country to put this in place. What we want to do is let the collective bargaining system work and not have third-party interference.

The Chairman: Thank you, Mr. Minister.

That completes this round. We have enough time for a very quick round. I will try to make sure everybody gets a question, starting with Reform.

Mr. Dale Johnston: Thank you, Mr. Chairman.

I notice that some of my questions about certification of the union without a majority have been asked, but I don't think they have been sufficiently answered. There is a section of the bill that basically says, contrary to what the minister has previously said, that a union can be certified without a majority. The minister said that as long as there was a majority of people signing their cards... Well, there is a provision in there through which you could certify a union.

The other thing I would like to point out is the business of off-site workers. It points out in several clauses here that the employer may be instructed by the CIRB to release the names and addresses of off-site workers, and barring that, the board may be given these names and addresses of off-site workers in place of the union. What is missing here, Mr. Minister, in my opinion is the consent of the workers themselves. They seem to be the biggest players in this and they have the least say. My problem with the privacy issue here is that the permission of the workers themselves has not been asked for and indeed is not a requirement for this.

Mr. Lawrence MacAulay: Thank you, Dale.

Quite simply, on the first question you brought forward, the only reason the labour board would certify is if the union could bring about legitimate proof that there has been inappropriate action taking place. Quite simply, that has been brought to a quasi-judicial body, which has the right to make those decisions.

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On the off-site workers, which is a problem, you indicate that they would get the information and perhaps they don't want it. If the union organizer is standing at the gate of the plant, they also get the information whether they want it or not.

You have to look at both sides of the issue. I don't think it is fair to let off-site workers be deprived of the information they would probably want in order to decide whether they wish to have this union speak for them or not. Quite simply, what this legislation does is allow fairness along with making sure we protect the privacy of the individual.

The Chairman: Thank you, Mr. Minister.

Mr. Anders, do you have a quick question?

Mr. Rob Anders (Calgary West, Ref.): I think the subject I'm going to go after in this round I have with you, Mr. Minister, is this whole idea of democratic representation and certification.

We have members of the Reform Party, members of the Liberal Party, and members of the Progressive Conservative Party who have raised questions and concerns with regard to the legitimacy of moving to a union card certification. You have the Canada Labour Relations Board itself in terms of its own decisions in 1979 with the Communications Workers of Canada versus the Communications, Energy and Paperworkers Union of Canada.

You have your own party in terms of the Liberal-majority Senate committee when it was reviewing Bill C-66 in April of last year, which said “we strongly recommend that the Minister consider deleting this provision” when they were speaking with regard to clause 46, the certification clause. It has remained largely unchanged between Bill C-66 and Bill C-19.

You have employer and employee groups across this country that are talking about the fact that you have provisions already in the Canada Labour Code with regard to a 50% plus 1 recognition in a secret ballot.

When you have all these groups lined up against, including people in your own party, your own committees, and your Senate, people who have problems with this and you don't have a consensus on this, why would you possibly want to continue with this? For goodness' sake, I'm afraid the opinions of Mr. Cappe and Mr. McDermott just don't wash in this in terms of being legitimate enough to tell us why, when you have this many people lined up against it, you would continue to put this forward in Bill C-19. It was turned down by your own people in the Senate and you have questions with your own people in your own backbench and your own caucus on Bill C-19. Why would you continue forward with this?

Mr. Lawrence MacAulay: I certainly agree with the democratic process, and I think my honourable colleague is well aware that the new board is going to be totally representational of the union and management with new process chairs and vice-chairs. This is supported by both sides.

Quite simply, what I cannot support as the Minister of Labour is something that is determined or viewed as unfair labour practices. This bill gives the labour board the authority to review information that's brought forth by a union. Let's say they receive less than 50%. If they can prove to this quasi-judicial body that management has acted inappropriately, that there were unfair labour practices, and that if it had been done fairly it would have been certified, I am sure you would agree that they should be certified, because you're a fair man.

In fact, what I wanted to do was to make sure that fairness and consensus are the basis of this bill. What happens here is that they bring their information forward to the board, it's evaluated by people who are quasi-judicial, and a decision is made. If that group, which is represented by both labour and management, are convinced that unfair labour practices took place, and because of the unfair labour practices they did not receive over 50% of the vote, then it would only be proper and just that the union be certified. That is the direction of this bill and I highly doubt you would disagree with that.

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The Chairman: Mr. Anders, given that you've had just a couple of minutes, if we have time we will come back to you for one final question. But I want to give Mr. Rocheleau and Mr. Martin an opportunity before the minister has to leave.

Mr. Rocheleau.

[Translation]

Mr. Yves Rocheleau: Mr. Minister, let's compare the two versions of the bill, that is C-19 and C-66. C-66 would have been voted on if the election hadn't been called. In the new version, in bill C-19, a word was added to clause 42, which amends section 94 of the Act, relating to replacement workers:

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

The term “demonstrated” was not in Bill C-66. What does the department wish to achieve by adding this word, if not to make more difficult the burden of proof for the victims of the hiring of replacement workers? It will be necessary to prove that it is “for the demonstrated purpose of”.

[English]

Mr. Lawrence MacAulay: Thank you very much.

The word “established” demonstrates that the intent of the legislation is to make sure that if the union can clearly prove there were unfair labour practices, then they have the right to certify. I couldn't be any clearer than that, and I'm sure you would agree that if it can be determined that is the case, then that is what should happen.

As for why there would be changes between this legislation and Bill C-66, I suspect that if we're back here in two years' time there will be more changes. What I tried to do, with the help of my officials, is make sure we have the best possible revision of part I of the Canada Labour Code. I wanted to ensure fairness and to make sure we stay in the centre of the road as well as we can, making sure labour and management both have—they will more or less run the show because in the new board they will have equal representation.

There will always be changes, but in this piece of legislation...and there are other areas where a number of words have been changed. In my opinion, it sometimes didn't change the intent of the legislation, but groups desired it and it's consensus. This is here because of consensus too, but it also ensures the rights of the unions to get certified if something inappropriate was done and is proven.

The Chairman: Thank you, Mr. Minister. Thank you, Mr. Rocheleau.

Mr. Martin.

Mr. Pat Martin: I have a brief comment and then a quick question.

In terms of the automatic certification, the minister pointed out quite ably that if any kind of interference or coercion can be demonstrated, or illegal or unfair labour practices... The real issue is whether anybody would be able to determine the true wishes of the bargaining unit, I think.

I think it's only fair that automatic certification would be granted in a case like that. If, through fear of reprisals, the employees are unable to answer whether they wish to be represented by the union, then I think it's only right and I'm very pleased to see this go into the legislation.

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The question I have is regarding—I'm sorry, I don't know the clause, so I hope you'll recognize this part—the idea of the configuration of bargaining units in a national enterprise. Could you elaborate on some of the criteria used to rule whether it would be an appropriate bargaining unit for collective bargaining if, for instance, it's a national organization but the unit being applied for is operating only in one province? Will the new changes in the code accommodate that kind of an application to organize?

Mr. Lawrence MacAulay: You're asking if it operates in one province only, whether it would fall—

Mr. Pat Martin: Let's use the example of a trucking firm that operates across the country and may have employees in a number of provinces, but the union is making application to represent the employees within one province. If they only have cards to indicate support in one province, would the new changes clarify the issue of whether they would be appropriate bargaining units?

Mr. Lawrence MacAulay: There is no change in that at all, in this legislation.

Mike.

Mr. Michael McDermott: No, I simply misunderstood. I thought you were leading to proposed section 18.1, which does give the board some new powers when there are mergers of companies, sales of business, and that kind of thing. But there is nothing that would change that particular case.

I know there was a case before the board, and I'm sure you're referring to that case. The board retains full discretion to determine the scope of a bargaining unit, and we're not changing that directly.

Mr. Pat Martin: Thank you very much.

The Chairman: Thank you, Mr. Martin.

Ms. Bennett, did you have a brief question?

Ms. Carolyn Bennett (St. Paul's, Lib.): Yes.

I want to thank you for coming. I think you should know that some of us view this bill as the “Goldilocks bill”. Some people think the porridge is too hot, some people think the porridge is too cold, and maybe the porridge is just right. I guess there were three bears as well.

In my constituency there were just a couple of concerns about the powers of the new board and how its existence might undermine the fair workings of a negotiation, in that it could become involved particularly in what bargaining unit is appropriate. Obviously in times of mergers and downsizing people feel that usually the unions can come to some agreement as to who should bargain. When there's this sort of Damocles around, maybe knowing the board will interfere may undermine the bargaining or the negotiation of who actually would be the appropriate unit.

We will hear from the committee that certain unions are very worried about the labour board being able to interfere in seniority issues.

Mr. Lawrence MacAulay: Thank you, Carolyn.

Of course there are concerns right across the country. As you say, the porridge is too hot and the porridge is too cold, but nobody wants to throw the porridge out, thank God for that. I don't think anybody wants to throw it out.

The Chairman: Well, Minister, on that particular note, this might be an appropriate time to thank you for spending time here. You will now forever be known as the Goldilocks minister, and we will endeavour to spread that word.

I understand the officials are available to stay on if there are a few more questions from members.

We'll take a three-minute recess, and we'll start again.

Mr. Lawrence MacAulay: Thank you very much.

The Chairman: Excuse me, Mr. Minister, I'm very sorry. In my enthusiasm over that particular presentation, I did indicate earlier that I would allow Mr. Anders one more brief question, and I overrode that.

Mr. Anders, we are all awaiting this gem with great enthusiasm.

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Mr. Rob Anders: Well, I heard from the departmental officials today, and also from the minister. They all admitted that the privacy commissioner still has problems with certain aspects of Bill C-19. Indeed, once again, even the Liberal-majority Senate committee said that, at the very least, the board should treat very seriously evidence of a direct request made by an employee requesting that certain information not be provided.

Your committee—and that is the Senate committee—also believed that the Canada Industrial Relations Board must comply with the Privacy Act. Once again, within your own party, your own caucus, within parties across the House in the opposition, with your own departmental officials, and within your own Senate committee, you have people who have all said there are still problems in this bill with regard to privacy concerns.

Mr. Robert Nault: The Senate's very helpful.

Mr. Rob Anders: Well, you're the ones defending it.

Now, in that case, when you have all these problems still existing with privacy and with off-site workers, surely is that not compelling evidence that there must be changes still to Bill C-19 in terms of privacy and off-site workers?

Mr. Lawrence MacAulay: Thank you very much, Mr. Anders. I really do appreciate your question. I can tell you that this in an issue I've heard a lot about since I became Minister of Labour. What we have to do is make sure that the workers can receive information that's rightly theirs. What we have to do is make sure that we comply with the Privacy Act. Our lawyers clearly indicate that we are complying with the Privacy Act, and that is in essence exactly where we are.

I'm sure you do not want to deprive the workers of their information. I know you don't. And I know that you want to protect their privacy.

Mr. Rob Anders: You bet I do.

Mr. Lawrence MacAulay: In fact, that is why I suspect you will be supporting this legislation in the end.

Mr. Rob Anders: When your own party has problems with it, I fail to see why you can't see it.

Mr. Lawrence MacAulay: And I thank you for your input.

The Chairman: Thank you again, Mr. Minister.

We'll take a five-minute recess, then we'll be back with officials.

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The Chairman: Let us come back to order now.

First, Mr. McDermott, I'll ask you to introduce the people with you and then we'll start with some of the questioning. I should remind members it is not necessary to fill all the available time. It is an option but it is not a requirement.

Mr. McDermott.

Mr. Michael McDermott: Thank you, Mr. Chairman.

With me today is Debra Robinson, who is the project director for the review of the Canada Labour Code, part I, which has been going on now for well over two years. Also with me is Yvonne Beaupré, who is a justice lawyer with the legal services of Human Resources Development Canada, who has also been working on the review of the code. From Statistics Canada we have Krishna Sahay. Part of the bill, as you know, deals with the Corporations and Labour Unions Returns Act. Krishna is here to answer any questions the members of the committee may have in that respect.

The Chairman: Okay, so let us start in the same order. We will start with a five-minute round.

Mr. Dale Johnston: Thank you.

I have a question for Mr. Sahay. Under the provision in the act that provides for the non-collection of information by Statistics Canada, we often hear of the documents that have been collected on our behalf by Statistic Canada, but I don't think the committee is familiar with those documents. Would it be possible to have them distributed to the committee?

Mr. Krishna Sahay (Director, Industrial Organization and Finance, Statistics Canada): Do you mean the questionnaires and—

Mr. Dale Johnston: Yes, and I also mean the results of the questionnaires—information that was on the questionnaires in the past.

Mr. Krishna Sahay: I don't have them with me here, but we can certainly make them available. There's a parliamentary report, the last version of which I'll have sent to the committee.

Mr. Dale Johnston: Further to that, is there some way the public could access this information even though it won't be collected by Stats Canada any longer?

Mr. Krishna Sahay: The information Stats Canada will not be collecting is private financial information on labour unions. Labour union members, I suppose, have access to that information, but we don't collect it.

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Mr. Dale Johnston: I guess that was my question. Is there any way members of the public could access this information, even though Statistics Canada will not be collecting it?

Mr. Krishna Sahay: I'm not immediately aware of any way for people to collect all that information separately.

Mr. Michael McDermott: If you're talking about union financial statements, there's currently a provision in the Canada Labour Code where a member of the union can demand a copy of the financial reports and is required to receive it. Your union members are also members of the public. Obviously, members of the public who are not union members wouldn't have the same access, but it wouldn't be too hard to ask a friend to obtain that kind of information. That provision has been in the code for some time.

Mr. Dale Johnston: Of course, this was presented under the guise of being a cost-saving measure, but the information was available to the public in the past and I'm now hearing this information will not be available to members of the public at large.

Mr. Michael McDermott: Some of the information that's collected under the Corporations and Labour Unions Returns Act will continue to be available. It talks about membership of trade unions and the names and addresses of the officers. That is published by Human Resources Development Canada in a publication called Directory of Labour Organizations in Canada. The information was being collected in two places and continues to be available at modest cost. That kind of information continues to be collected. I understand—and maybe Krishna Sahay could tell me whether this is true—it was the financial information that was being collected but was not being used. That is where the cost saving comes in.

Mr. Krishna Sahay: Absolutely. The reason for doing this is twofold. The types of information being collected were some financial data and some membership and industrial data on labour unions.

The industrial and membership information is now being collected in other surveys. We believe we can provide the same quality of information, and maybe even a better quality of information, relating to labour union membership and industrial gender distributions from our other sources.

Quite frankly, at the time we were making this decision we had not had a request in the previous five years for that kind of financial information to be provided. We consulted very widely with the users of our data, including a labour statistics advisory committee we have—not a labour union advisory committee—and we found no real interest in those financial data.

It's a cost-saving measure. We were asked to come up with some costs and that's where we found we could save some money. But the key is that the information simply hasn't been requested of us, and that's the important part.

Mr. Dale Johnston: I defer to my colleague.

Mr. Rob Anders: I have a couple of questions for Ms. Beaupré.

First, is clause 46 in Bill C-19, which deals with the certification of a union without a majority and the use of union cards, similar to the section that exists in British Columbia and Ontario legislation?

Ms. Yvonne Beaupré (Senior Counsel, Legal Services, Department of Human Resources Development): I can't answer for Ontario's legislation, but it is my understanding that it is similar to B.C.'s.

Mr. Rob Anders: There have been many references to clause 46 of Bill C-19 being very similar to the clause in Ontario that allowed the United Steelworkers in a Wal-Mart certification in Windsor, and the Ontario Labour Relations Board decided they would be certified despite a vote of 70% of the employees against the United Steelworkers' certification.

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Allowing for clause 46 in Bill C-19 being very similar to the clause...as it is for the Ontario Labour Relations Board, would you not therefore conclude that those same types of provisions that happen where 70% of people vote against the certification could indeed be invoked in the case of the Canada Labour Code as well?

Ms. Yvonne Beaupré: I imagine they could be invoked. Whether it would be successful or not is another question.

Mr. Rob Anders: Okay, all right. That being the case, would you agree with the opinion of the Canada Labour Relations Board in 1979, where they say that:

Experience has taught us that...a vote should be ordered so that the employees may choose freely, within the privacy of the polling booth, which union they wish to have as their representative.

Does that precedent by the Canada Labour Relations Board not set out clearly what their understanding or their ruling on this whole case of certification and union cards is, what their opinion is?

Mr. Michael McDermott: Obviously not, because they continue not to regard that as a precedent. The particular case may have required that kind of comment.

In your question to the minister you referred to the board having indicated that a vote was necessary in a certain case. You specifically named a case that involved two unions, which involved, I presume, a raid situation or something of that nature.

Whenever there are competitors for the bargaining rights, whether by a raid or some other purpose, the board has invariably exercised its discretion to hold a vote, and almost exclusively has held votes when there are candidates for the position. Normally in a certification process there is one applicant. There is no choice between the applicants. And in that case when they've signed up 70%, 80% sometimes, as they do, the board has taken these signatures to be proof of a wish to be in a union. They recognize the signature and the $5 fee, the minimum that's been given at the same time as that signature is collected.

Mr. Rob Anders: Mr. McDermott, by your very statements do you not admit, because it's implicit within your last comment, that if you make a change to moving toward a union card system from having a secret ballot vote, you open up the Canada Labour Code to having union raid situations? This would be just like what happened in 1979 when the Canada Labour Relations Board ruled against it.

Mr. Michael McDermott: There's nothing in Bill C-19 that makes a change to the current certification process and the percentages that are required to make an application. Between 35% of the signatures of the people in the bargaining unit and fewer than 50%...the board is required to hold a vote. Beyond 50%, the board has discretion as to whether it will hold a vote or accept the proof of the wishes to be represented on the basis of signatures and the fee that's paid at the time the signature is made. That is not being changed in this bill.

Mr. Rob Anders: Mr. McDermott, nobody argues—

The Chairman: Mr. Anders, I've let you go considerably over time. Let me cut you off there. There will be another chance here.

Mr. Rocheleau.

[Translation]

Mr. Yves Rocheleau: I'd like to ask you the same question that I put to the Minister. When we compare the two versions of the Bill, C-66 and C-19, we see that senior officials have added the word “demonstrated”—“for the demonstrated purpose of”. What was the reason for adding this word “demonstrated”.

Mr. Michael McDermott: Mr. Rocheleau, when the Minister engaged in country-wide consultations, he met with a number of interest groups. Some of them expressed the view that the wording of C-66 was not sufficiently clear with respect to the burden of proof. We were of the view that it was clear enough in Bill C-66 but we eventually concluded that it was possible to add this word without changing the tenor of this provision.

So the Minister said that we would specify quite clearly that the burden of proof rests with the union making the complaint.

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Mr. Yves Rocheleau: We have to realize that this very significantly increases the burden of proof for the union which will have to show that scabs were hired “for the demonstrated purpose of”. It's a very important word that will give pause to the union that might go along with this provision. I think it must be denounced even more vigorously.

I'd like to know whether as a respected advisor of the Minister you have given thought to particular scenarios or ways in which this provision will be managed. It says:

...for the demonstrated purpose of undermining a trade union's representational capacity rather than the pursuit of legitimate bargaining objectives...

How will this be validated? How can an assessment or a judgment be made enabling an arbitrator or a judge to decide that the practice goes against the Act or the spirit of the Act? How will this evaluation be made in actual practice?

Mr. Michael McDermott: I think it will be assessed in the same way that the C.I.R. Board assesses the complaints that are now submitted to it. When there is a complaint on unfair practices, the complainant must adduce evidence. We will have the same system in this particular case. They will bring a file on the complaints and submit evidence to the tribunal. In this case the tribunal will be the Canada Industrial Relations Board. The board, in this particular case tripartite, will evaluate the evidence before it.

Mr. Yves Rocheleau: It will be interesting to keep an eye on how it evolves. We should bring this process to a stop. If we start hiring scabs to replace workers at Maple Leaf or Ogilvie and production keeps on... What is meant in actual practice by “undermining a trade union's representational capacity”? Let's assume that someone is legally on strike and someone else is hired to replace this person for production purposes. That is the reality of the situation. As for this idea about the representational capacity of an union, the question we ask in Quebec is what does it do to put food on the table in the winter.

Mr. Michael McDermott: In some cases, there is a strike or a lock-out and the company continues operations with management or sometimes with replacement workers. However, it is clear that the employer wishes to settle the matter as soon as possible.

In other cases, and we have seen this sometimes before the Canada Labour Relations Board, we have the feeling that the employer is not particularly interested in settling the matter and would rather continue operations. In an number of disputes we've seen, things have been drawn out for a year or even 18 months.

That's when the Board will say: Do we really get the impression that anyone wants to settle anything here? Does anyone wish to come up with a collective agreement or are they trying to avoid the responsibilities imposed by the Code?

[English]

The Chairman: Mr. Martin.

Mr. Pat Martin: Thank you, Mr. Chairman.

In the case where the board does grant automatic certification, it would have to be satisfied that unfair labour practices have taken place to the point where you wouldn't be able to determine the true wishes of the workers. Therefore, they give the benefit of the doubt and grant certification.

But in a case like that, can you answer one thing I missed or failed to see reference to in Bill C-19? Is there a time limit after an automatic certification is granted before which the bargaining unit can make application to decertify? For instance, if they're not satisfied or if the board maybe erred in their judgment and granted automatic certification to a bargaining unit that was not thrilled with the idea of being unionized, within what timeframe could they make application to decertify?

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Mr. Michael McDermott: The time limits that are currently in the code would apply. There are no changes to those particular time limits—

Mr. Pat Martin: There are time limits.

Mr. Michael McDermott: Yes, there are time limits that apply. From memory—I have a copy of the code in front of me and I guess I could look at it—if a union has not seriously tried to negotiate in the first year of being certified, a decertification application could be made.

Mr. Pat Martin: I think it's one year in the current code. And my question was—

Mr. Michael McDermott: It's one year in the current code. And then, of course, if an agreement is negotiated, there are the open periods that apply when either a raid for a certification by a rival organization or a decertification can take place.

Mr. Pat Martin: I only raise that to point out that those are options for a bargaining unit that may not be satisfied with the representation. Whatever you can certify you can “uncertify” within fairly short order as well.

So my question's answered there. There is no change to those provisions and the one-year term applies.

Thank you.

The Chairman: Thank you, Mr. Martin.

We're back to Mr. Johnston.

Mr. Dale Johnston: Thank you. I think Mr. Martin raises an excellent point. And just to add to what he said, if the board were to exercise its power of automatic certification, does the membership—the employees—then have the same right to make application to the board and say, for example, that 35% of them don't want to be in the union and that given different circumstances there would have been more of them? Let's say that's their case to the board. Would the board consider the decertification on the same grounds as it does the certification?

Mr. Michael McDermott: The current code prohibits any person from using coercion, intimidation and threats to persuade a person to belong to a union, to cease to belong to a union or to refrain from belonging to a union. So yes, complaints could be brought to bear under that basis. But the equivalent of clause 46 is not in the bill.

Mr. Dale Johnston: But what you're saying is that it could be argued under the same rules or there could be a case made to the CIRB under the same rules.

Mr. Michael McDermott: Not under this provision. But there are already provisions in the code that protect against intimidation of an individual to join a union against that individual's will, let's say. And if there's fraud, for example, a certification could be dismissed. If fraud is proved, it's dealt with specifically in the code as it stands right now.

Mr. Dale Johnston: What I'm getting at is that if it's fair to certify a union without a majority, then it should be fair to decertify any union without a majority. That's simply my point. And there doesn't seem to be any provision for that here. We're seeking a balance, and it seems like that's one area in which there is not a balance.

Mr. Michael McDermott: You're saying that it's not fair to decertify without a majority or certify without a majority if unfair labour practices are not present. The bill provides that unfair labour practices have to be present, and they have to be of such gravity that they have made it impossible for a vote to determine the wishes of the majority.

The Chairman: Thank you, Mr. Johnston.

Mr. Anders.

Mr. Rob Anders: I haven't touched on this issue, but others have, and this is the whole subclause 42(2) as it existed in Bill C-66 with regard to use of replacement workers.

Once again, because many people have had a chance to pore over this legislation already and I'm going to refer to some people who've already had a chance to go through this and have already recognized concerns, and yet they haven't been dealt with even to this point... And that, once again, is the Senate committee. On the whole issue of replacement workers, that committee said there was a fundamental difference between using replacement workers to ensure that the employer may carry on its normal business during a strike and using them for the purpose of undermining a union's representational capacity. The mere use of replacement workers does not, in and of itself, raise the presumption of unfair bargaining practices.

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I want to get your opinion on that in terms of how you think that's going to shake out when these things do actually come to the board if Bill C-19 passes without changes.

Mr. Michael McDermott: I think Bill C-19 as it's now written puts the burden of proof on the applicant, as was the case before in Bill C-66, but maybe with greater clarity now. The burden of proof is very much on the applicant, and it has to be established that the purpose of using replacement workers does not have to do with the usual business of trying to maintain operations while pursuing the achievement of a collective agreement. It has to be established that it's for other purposes. I don't see that we're really at odds with what's said in what you just quoted from the Senate.

Mr. Rob Anders: Mr. McDermott, your response worries me. In other jurisdictions that have a provision allowing for the board to decide on a ban on replacement workers, indeed they've made decisions that a lot of people have problems with in terms of whether or not the replacement workers were just brought in in order to continue work at a worksite. Even though there were no other circumstances present, they were ruled to be undermining the representational capacity of the union. Precedent itself indicates that this violation could indeed occur under Bill C-19 as you currently have it worded.

Mr. Michael McDermott: I think the two statutes that have replacement worker prohibitions in them, those in Quebec and British Columbia, do not go into the motives of using the replacement workers but simply ban the use of them. They don't allow them to even continue operations. This clearly makes that distinction.

Your point would have more validity if the burden of proof was reversed. If all the union had to say was that there were replacement workers and they were being used to undermine it, and if the burden of proof was on the employer to refute that, I think I could see that your point would certainly have validity, but that is not the case here. The burden of proof, as in most unfair labour practices, is on the applicant. In this case the applicant can only be the trade union, the bargaining agent.

Mr. Rob Anders: I think I'm going to submit that what this boils down to is your excitement to be able to create, as Mr. Nault has said, a new form of Canadian labour jurisprudence. I don't think this is wise in this case; nonetheless, I think you want to leave your stamp on this.

The Chairman: Well, Mr. Anders, I may point out that Mr. McDermott is a very experienced public servant and therefore he's not allowed to get excited.

Some hon. members: Oh, oh!

An hon. member: And we make sure of it.

The Chairman: Mr. Rocheleau.

[Translation]

Mr. Yves Rocheleau: My question concerns the Canada Industrial Relations Board and the appointment of members representing the unions and the employers.

The wording states that these people are designated

...on the recommendation of the Minister after consultation by the Minister with the organizations representatives of employees or employers that the Minister considers appropriate...

That gives the Minister a lot of discretion and we should be conscious of that. That is probably what the spirit of the Act is all about. Was any consideration given to another way of doing things which simply would have been based on a list of names agreed to by the unions and the employers each on their own and which would be presented to the Minister? The Minister could choose someone but that person would already have been agreed to by consensus in both of those camps. I wouldn't want to be imputing motives, but it does say “organizations representative of employees or employers that the Minister considers appropriate”.

One could imagine a very tense situation between the government and Canada's unions for a period of time. That would allow the Minister to go and fetch whomever he wants from the ranks of the unions. It all depends on the whim of the Minister and not the wish of whatever organization is directly concerned.

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Mr. Michael McDermott: And just in passing, I can tell you that I remember times when the unions refused to appoint people. Because they were having problems with the government, they refused to appoint people to certain agencies, not to the Board, but still... So it can happen the other way around. But the Code is there and the Minister must consult. At the end of the day, the Minister's proposals will be submitted to the Governor-in-Council.

As you know, the unions and the federal employees were very active participants in the consultations that led to the Sims Report and Bill C-19. So I imagine that some of these people will be consulted by the Minister, but one should probably put the question to the Minister at some point.

Mr. Yves Rocheleau: Thank you.

[English]

The Chairman: Pat, do you have anything else?

Mr. Pat Martin: Sure.

One of the questions I asked earlier, which Mike answered, was what sort of cases would be heard by a single arbitrator or the single vice-chair rather than the full panel. I'd like to build on that a little bit.

Would the applicant, whether union or management, putting a case up before the board have any choice in whether they wanted some matter heard by the full panel? What types of cases perhaps would be scheduled to be heard by a single chair?

As well, during the two years of consultation, what type of input and feedback did you have from labour and management on that issue?

Mr. Michael McDermott: First, on the involvement of the parties in deciding single panels or otherwise, there is a part of the provision that says if the parties consent to a determination by a single member, which is not the sense you were putting it, the chair, in some cases, on a duty of fair representation case, has the discretion to name the single member regardless of the wishes of the parties. But I think probably it would be something the chair would want to take into account, the wishes of the parties in such cases.

During the consultations, this particular provision was welcomed by both labour and management. Like many things in this bill, it is not without precedent. We find precedence in provincial statutes for this kind of thing. It has helped in the past to move caseloads along, and has seemed to be quite valuable, providing of course there is still some assurance that in particular cases, where a tripartite tribunal would be valuable...

From the experience we've seen in other jurisdictions, when there are trailblazing cases that will set new precedents, you will see the tripartite panel, yes.

Mr. Pat Martin: To build off that, one of the most serious backlogs right now is that currently, I believe, there are about 90 applications for certification pending to be heard. These are very time-sensitive issues. If you do have working people who have had the courage to sign a union card, often the employer uses that lag period to try to convince the employees that it's a bad idea to join the union. In other words, there's a window of opportunity there for interference, so we're always anxious to see those move forward quickly.

Is an application for certification one of those matters that might be heard through the expedited process of a single chair?

Mr. Michael McDermott: It is not specifically mentioned in here that this is the case other than under the residual, where the chairperson may determine it's appropriate to use a single member because of the possibility of prejudice to a party.

I don't know what the board will decide on particular cases. I would seem to think that the tripartite would probably be somewhat the way to look at a certification, because there will be views on both sides.

There is a clause of the bill, which Debra Robinson has just pointed out here, that says the board “may” make regulations to establish an expeditious procedure and matters that may be determined under that procedure. So there is some thrust in the bill to try to speed up the board. And even though it's not cast in iron, there's also a requirement here, an urging, that once it has completed its hearings the board must try to get its decisions out within a reasonable delay. That's there because they have sometimes gone far too long.

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Mr. Pat Martin: Thank you.

The Chairman: Thank you, Mr. Martin.

Mr. Johnston.

Mr. Dale Johnston: I don't know if it's fair to ask a hypothetical question, but let's set up a scenario whereby there's a strike or a walkout—there's a work disruption, at any rate—at the west coast ports. We have a specific group, like the grain handlers or managers who have stopped the movement of grain in the past. This bill will essentially require them to load the grain, but that group is still either on strike or locked out.

What is there in the bill to prevent other unions—for instance, the railway unions, or the boat pilots—from saying they're not going to cross those picket lines, they're not going to work out of respect for those picket lines that are set up? You might be able to load the boat that's in port, but if the pilots say they're going to respect those other picket lines, you're not going to get the loaded boat out of port. If some of the railroad unions say they're also going to respect that line, then the flow of grain stops between the farm gate and the port elevator. That really doesn't keep the grain moving.

Mr. Michael McDermott: Well, there are a couple of things. You refer specifically to tugboats. They would be covered by this provision because your example is port related. Longshoring is mentioned specifically in the provisions, but there is also an additional definition that would cover port-related activities. The grain workers in the dockside elevators would continue to work under the collective agreement that they have separately with their employers, quite separate from the longshore agreements with the British Columbia Maritime Employers Association.

As far as the railways are concerned, they would not be affected by the provision. If there was some allegation of a work stoppage that was illegal, though, the board could hear that. And as I mentioned earlier, I think the board hears these things and makes a determination very rapidly.

Mr. Dale Johnston: Maybe I didn't make my question clear. If you have this group, the longshoremen, declared as an essential service and they are on strike but are still required to load the boats, what's in this legislation to prevent, say, the International Brotherhood of Electrical Workers from saying they aren't going to cross the picket line to bring the grain into the port?

Mr. Michael McDermott: That's what I'm referring to. If the group you're referring to is currently under a collective agreement and does not have the right to strike or to be locked out, then a complaint can be brought to the board, simply saying that they should be at work. The board will examine this and will make a determination as to whether it's legal or illegal. That's the way this has happened in other cases when we've had sympathy walkouts.

Mr. Dale Johnston: Okay, thank you.

The Chairman: Mr. Anders, do you have a question?

Mr. Rob Anders: Once again, this is to you, Ms. Beaupré. With regard to the privacy provisions and off-site workers, I have some serious problems with it—and I'm not the only one—in terms of it violating a person's right not to associate.

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I refer here to Supreme Court Justice LaForest's decision in 1991 in Lavigne v. Ontario Public Service Employees Union. It applied to privacy and whether or not off-site workers must be included and, without their consent, have their names and addresses given out to union organizers:

Forced association will stifle the individual's potential for self-fulfilment and realization as surely as voluntary association will develop it. Moreover, society cannot expect meaningful contributions from groups or organizations that are not truly representative of their memberships' conviction and free choice. Instead, it can expect that such groups and organizations will, overall, have a negative effect on the development of the larger community. One need only think of the history of social stagnation in Eastern Europe and the role played in its development and preservation by officially established “free” trade unions, peace movements and cultural organizations to appreciate the destructive effect forced association can have upon the body politic. Recognition of the freedom of the individual to refrain from association is a necessary counterpart of meaningful association in keeping with democratic ideals.

So not only do we have problems with people on the Supreme Court, Supreme Court justices, but on top of that, Canada was a signatory in 1948 to the United Nations Universal Declaration of Human Rights. Under that, there is a provision that no one may be compelled to belong to an association. Yet with these violations of the Privacy Act, with these problems the privacy commissioner has, we're going to go ahead in Bill C-19 and without the consent of workers allow their names and addresses to be given to union organizers, in violation of the UN declaration in 1948 and previous decisions written by Supreme Court justices of this country.

Is that not a problem?

Ms. Yvonne Beaupré: May I suggest that, first of all, there are exceptions. It may be the board that will communicate with off-site employees if the board thinks that is the action that should be taken.

Second, yes, presumably the employees will receive communication by the unions, but it is then up to the employee to decide what he or she will do vis-à-vis the union. It does not compel the employee to respond to the union in any particular fashion.

Mr. Rob Anders: They weren't asked in the first place, and Bill C-19 doesn't provide or make any provision for them to be asked whether or not their contact information should even be given to the union.

Ms. Yvonne Beaupré: I don't ask for all the mail I receive.

Mr. Rob Anders: I don't think that's good enough. Neither do workers.

I'll leave it at that.

[Translation]

The Chairman: Mr. Rocheleau.

Mr. Yves Rocheleau: Bill C-19 is also intended to amend the Corporations and Labour Unions Returns Act by repealing Part II. What led the government to suggest that new change?

Mr. Krishna Sahay: The proposed changes were brought about by our analysis of needs. At the outset of this period, we had to decrease our budgets. When we examined the program, we saw that there were two parts to that one. There was the part whose intent was to inform the public about the number of members, the rate of unionization and so forth. There are a lot of requests for information of that kind. But we presently have two new programs that can provide those figures very efficiently and at less cost. There are even those who say we can do it better now.

The figures concerning the union finances are not available otherwise. As Mr. McDermott said, you can get the figures from a specific union by asking that union, but they are not available in statistical form.

We undertook rather exhaustive consultation and also reviewed our own files. We did not get any requests for information of that kind during the five years preceding this decision. We were looking for ways to decrease our budget and it was found this would be the best program to target.

Mr. Yves Rocheleau: Any idea of how much will be saved?

Mr. Krishna Sahay: About $300,000 a year.

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Mr. Yves Rocheleau: Thank you.

[English]

The Chairman: Thank you.

I believe I have a final indication from Mr. Anders. Do you have another question?

Mr. Rob Anders: Yes, a brief follow-up.

In retrospect, I thought it was actually a cute response by Ms. Beaupré, that she doesn't get all the mail she receives.

A voice: She doesn't “ask” for it.

Mr. Rob Anders: Okay, she doesn't ask for all the mail she receives.

Unfortunately, though, it's not just a question of mail, because even this morning your minister admitted that union organizers, if they so wished to organize in the kitchens of this nation, would have the right to do so. He recognizes that by Bill C-19, it's not just a question of mail but also allowing names and addresses, and allowing union organizers to knock on doors and enter the kitchens of those workers' homes without their permission.

The Chairman: Their kitchens, yes, but their bedrooms, no.

Some hon. members: Oh, oh!

Ms. Yvonne Beaupré: If I may, the board is to specify the means the union is to use to communicate with the workers. I suppose if a board considers it's appropriate to do so, it will authorize union representatives to go to homes.

I would not expect that would be the usual way in which a board would authorize communication with the workers, though—without wanting to in any way bind the board. It will have to decide what is the appropriate means of communication in each case.

Mr. Rob Anders: So you're admitting that this entirely does allow, in Bill C-19, more than just mail, but of course you're validating what the minister said this morning, that it would allow union organizers to go door-knocking into the kitchens of off-site workers.

Mr. Michael McDermott: I believe, Mr. Anders, the minister did indicate that the kitchen table contacts are on invitation. That was my recollection of what he said this morning.

The Chairman: Thank you.

I thank all members and the staff who are here. I appreciate the time.

I remind members that we are due back here in this room at 3.30 p.m. We have one witness representing both the Alberta Chamber of Commerce and the Calgary Chamber of Commerce. The second witness is Buzz Hargrove from the auto workers. The other two for this afternoon have cancelled. It will be a brief and interesting hour and 15 minutes.

Thank you, Mr. McDermott, and thanks to the staff.

We are adjourned.