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]

Wednesday, March 25, 1998

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[English]

The Chairman (Mr. Reg Alcock (Winnipeg South, Lib.)): Let's come to order so we can get started.

Let me begin by apologizing to our witnesses. This is the reality of this place. When there are votes, we attend the House, and the whole world stands still.

Now that the world is moving again for a brief moment, I understand, Mr. MacFarland, Mr. Benoit, that you are from the dehydrators. We have roughly half an hour for your presentation. I would advise you take about 10 minutes to make the essential points you wish to make, so we can allow members an opportunity. We have, as you know, five parties in the House, and the questioning takes a little longer than it may have in the past, so—please.

Mr. Brent MacFarland (Director, Canadian Dehydrators Association): Thank you, Mr. Chairman. As you know, my name is Brent MacFarland. I'm a director with the Canadian Dehydrators Association, and with me is Garry Benoit, our executive director.

We maintain an office in Edmonton, Alberta. The plant I represent is located in Falher, Alberta, which is in the Peace River district. We're presently shipping through Neptune Bulk Terminals in Vancouver. We're a shareholder shipper, and we're also involved and will have dedicated storage in the newly announced Vancouver Wharves project for agriproducts.

I'd like to give a brief opening statement. The Canadian Dehydrators Association represents processors and marketers of dehydrated alfalfa products. Most of our 29 member plants are located in Alberta and Saskatchewan, but there are others in Manitoba, Ontario and Quebec.

We export more than $100 million worth of product annually. Our largest markets are in the Pacific Rim. Japan is our best customer, but we also have significant sales into Korea, Taiwan and the U.S.

As a value-added industry based mainly on the prairies, we have been held up by federal government as a model in terms of value-added agriculture development, export success and agricultural diversification.

Our products for Pacific destinations are shipped to Vancouver by rail. They are then transferred to Neptune Bulk Terminals or Vancouver Wharves, the two bulk loading terminals at the port.

We are part of what is known as the grocery vessel program. Ocean-going grain vessels load the bulk of their cargo at the licensed terminals, which are referred to in proposed section 87.7 of Bill C-19. Those vessels then berth at our terminal, to be “topped off”, so to speak, by our products or other small cargoes of processed bulk oilseeds or grain products, in the range of 3,000 tonnes to 5,000 tonnes, to complete their load before heading overseas.

Proposed subsection 87.7(1) requires legally striking longshoremen to maintain services “to grain vessels at licensed terminal or transfer elevators”. The result is that the major grains loaded through the licensed terminals will be protected in the event of a strike by the longshoremen's union, while the smaller alfalfa portion of the same vessel's cargo will not be loaded. This is because the bill before you uses the Canada Grain Act definition of grain. It does not extend to the two bulk loading facilities that handle other grain products and alfalfa.

Bill C-19 represents a serious break from federal policy established with the Western Grain Transportation Act in 1984. The WGTA specifically included dehydrated alfalfa and other products because the government wanted to encourage western industry and exports of value-added products. That inclusion has paid off. Our industry has grown and created jobs.

The same principle was carried forward by the current government in the Canada Transportation Act of 1996. Both these major acts specifically covered dehydrated alfalfa and grains and oilseeds products.

The government's position paper on the Canada Transportation Act said it was intended to eliminate discrimination against value-added production and processing, thereby stimulating diversification and economic growth. This industry has successfully met those goals.

Mr. Chairman, we have been advised by the Minister of Agriculture that the purpose of proposed section 87.7 is, and I quote:

- to remove grain as a bargaining tool so that the onus is on labour and management to resolve their differences themselves through real collective bargaining; and

- to remove the government from repeatedly being involved in resolution of the labour disputes between the parties.

This is scary stuff for us, Mr. Chairman, because what the minister is really telling us is that in the event of a longshoremen's strike, the government is hanging us out to dry.

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In the past, work stoppages resulting in disruption of both Canada Grain Act products and our own have usually resulted in significant and timely pressure to resolve the disruption, up to and including back-to-work legislation.

Bill C-19 would free the major grain sector from the urgency to seek a rapid resolution, leaving small shippers of bulk grain and products that are shipped on the same vessel vulnerable, and with little leverage to act.

Our customers in Japan would once again be short-changed, as they would only get a portion of their feed order. Also, our industry would be further damaged by the dead freight and demurrage charges.

This bill differentiates among commodities in providing protection against certain labour disputes. Public policy that favours one commodity over another is bad public policy, especially if it works against value-added processing, soil conservation, and jobs in rural communities.

We are strongly recommending an amendment to proposed subsection 87.7(1): that after the reference to the “loading of grain vessels at licensed terminal and transfer elevators”, the words “and bulk loading terminals” be added.

There are only two bulk loading terminals that handle alfalfa and bulk grain products in the port of Vancouver—Neptune Bulk Terminals and Vancouver Wharves. This change would remove the discrimination within the agriculture sector that exists with this current bill.

Reliability of supply is critical to the maintenance of export markets. We have lost sales in the past because of work stoppages as well as other disruptions in supply. On August 18, 1995, we told the industrial inquiry commission that reliability of supply and timeliness of shipments are essential to the maintenance of our markets. We further testified that work stoppages have damaged our reputation as dependable and competitive suppliers.

It is less than a year since the Japan Feed Trade Association warned the Canadian government that delays in delivery of shipments have been, and I quote, “very detrimental to the image of Canadian shippers and future business”. The association's letter was with specific reference to our products, and not to the grains that are covered by the definition in Bill C-19.

Mr. Chairman, we have been told that the intent of this legislation is to address labour problems and not to protect grain, but the solution is seriously flawed, and we are the victim, unintended as that may be.

We are not asking for special treatment for alfalfa products. If our proposal has that result, we must ask you to reject this section of the bill altogether or come up with an alternative that treats all commodities fairly in practice.

Federal policy should not, on the one hand, encourage this industry to develop export markets and, on the other hand, put in place blunt legislative instruments that undermine those markets. The draft legislation leaves a $100 million agricultural export industry unprotected.

Thank you.

The Chairman: Thank you very much. You make your time restrictions admirably. I couldn't help but wonder whether or not being hung out to dry was an occupational hazard for dehydrators.

We'll start the round with Mr. Johnston. We can do about five-minute rounds to start with. If you wish to share that with Mr. Anders, that's five minutes for the two of you.

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

Thank you for your presentation. You are suggesting amendments to proposed section 87.7 of this bill that would apply to all bulk loading terminals. This would mean that the same status would be given to lumber, coal, potash, dehydrated alfalfa, and petrochemical products as is given to grain. Is that right or wrong?

Mr. Brent MacFarland: That's wrong. We're only asking for agriproducts to be loaded, and there are only two terminals involved. These two terminals both handle not just alfalfa products but such products as wheat bran pellets, canola meal, and other byproducts of the grain industry such as bran screening pellets—not lumber, not potash, simply grain products.

Mr. Dale Johnston: Okay. Would you be a supportive of an amendment for a dispute settlement mechanism that would allow all products to flow through the port?

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Mr. Garry Benoit (Executive Director, Canadian Dehydrators Association): I would say we would be supportive of anything that prevents our products from being stopped from moving to our customers because of strikes.

Mr. Dale Johnston: Occasionally we have work stoppages there because of lockouts as well. By saying “strikes” you mean strikes and lockouts, right?

Mr. Garry Benoit: Right.

Mr. Dale Johnston: Under your allegations there are about $100 million worth of agricultural exports represented by the dehydrators. How many plants does that represent and roughly how many producers do you have across Canada?

Mr. Garry Benoit: It represents about 30 processing plants. The figure on the value of our exports has varied between $100 million and $130 million over the last few years. It's about 700,000 tonnes of exports.

I'll let Brent talk about his particular plant and how many jobs there are and what it means to the community.

Mr. Brent MacFarland: In our plant in particular we have about 400 suppliers, who of course are all farmers. Adding all the plants together, we're talking about thousands of farmer suppliers. In our busy season we employ 200 workers. Presently we're doing sun cure and we have about 85 people working. So it's a significant employer. Certainly in a small town like our town we are the largest sole employer of the area, and many other dehydrator processors are the same.

Mr. Dale Johnston: Is this seasonal work or do you have sun-dried alfalfa that you can process during the off-season as well? Does it work out to a year-round industry for you?

Mr. Brent MacFarland: We process sun-dried and our season lasts about ten months. We have a short period where some of the workers are laid off, but we do employ 60 people year round.

Mr. Dale Johnston: I know you've suggested changes to proposed section 87.7. If there were one thing this committee could do for your industry, could you put that in one sentence? Is there anything besides what you've said here about proposed section 87.7? Is there one thing that could come out of this committee to address the concerns of alfalfa dehydrators?

Mr. Brent MacFarland: Stop strikes and lockouts from impeding the movement of agricultural products in Canada. Make Canada a good shipper.

In my travels to Japan there was no question that Canada as a country.... It's being suggested in the international circles that we're not a good supplier, and that's not just the alfalfa industry. There is a generalization. One of the companies we deal with decided to take no vessel loadings in January because they said Canada can't load ships in January.

Mr. Dale Johnston: Are you saying that customers you have traditionally had are now seeking out alternate suppliers of alfalfa? Are you losing markets because of the inability to meet customers' deadlines?

Mr. Brent MacFarland: Yes, some of our customers are searching the world for other suppliers for that reason.

Mr. Rob Anders (Calgary West, Ref.): I have just a quick question. With the $100 million worth of business you do, how much do you figure goes through those ports?

Mr. Brent MacFarland: The industry exports more than 90% of all their goods. It's all offshore business.

Mr. Rob Anders: Wow! There you go. So that's about $90 million.

Mr. Brent MacFarland: That 10% is over and above. There's $100 million in actual export dollars. It's all through the port of Vancouver.

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Mr. Rob Anders: There you go. It's $100 million just through the port of Vancouver.

The other thing I was going to ask about is the 200 direct employees you talked about. If you look at how many employees are affected directly with your companies and also what happens in terms of feeding down the line and the other businesses that are somehow tied in, what would you say the entire impact of this whole thing would be in terms of jobs?

Mr. Brent MacFarland: I don't actually know what the entire industry employs in terms of numbers. I just know of our own plant.

Mr. Rob Anders: Can you give me a guesstimate?

Mr. Brent MacFarland: Our industry is very labour intensive. The number of workers required to run our industry is in the hundreds and it's millions of dollars worth of payroll.

Mr. Garry Benoit: I've used a figure of about 1,000 jobs.

The Chairman: Thank you.

Mr. Rocheleau.

[Translation]

Mr. Yves Rocheleau (Trois-Rivières, BQ): The bill contains special provisions regarding grain transportation. Am I to understand that you would like the same provisions to apply to other grains and to perishables?

[English]

Mr. Brent MacFarland: Yes, that we be treated like the other grain products that will be handled through the licensed elevators. We just want to be equal with the other agricultural products.

[Translation]

Mr. Yves Rocheleau: Thank you.

[English]

The Chairman: Thank you, Mr. Rocheleau.

Mr. Martin.

Mr. Pat Martin (Winnipeg Centre, NDP): I'm interested in the size of your workforce. You estimate it to be about 1,000 with all the members of your association.

Mr. Garry Benoit: Approximately, yes.

Mr. Pat Martin: Which union represents those workers?

Mr. Brent MacFarland: They would be non-union workers.

Mr. Pat Martin: What has been your recent history, say in the past ten years, regarding lost opportunity or lost time due to strikes or lockouts at the west coast ports?

Mr. Garry Benoit: There are strikes all the way through the system, in the transportation system moving product to ports.

Mr. Pat Martin: But really we're only talking about the handling of grain to load the ships. Specifically in that segment, what's been the pattern or the experience recently in your industry, say in the last decade?

Mr. Garry Benoit: I've only been working for the association for four years. In that period I believe there's been one major strike and I believe it was the rail.

Mr. Pat Martin: The actual handlers at the port is really what we're talking about. The loading of the ships is the only thing this bill could give you relief on, right?

Mr. Garry Benoit: Yes.

Mr. Pat Martin: So what you're asking is to be treated the same as the grain industry in terms of the ships being loaded even if there is a strike or a lockout among the longshoremen or the longshoreman foremen. Has that happened to you recently?

Mr. Brent MacFarland: Not recently it hasn't, but then I don't think there's been a strike that shut grain down recently with longshoremen either. Previously whenever there was a strike that stopped grain, our product obviously stopped at the same time.

Mr. Pat Martin: In other words, for the last decade that you know of in recent memory your product has moved and there hasn't been any problem. In other words, most negotiations have been resolved without strike or lockout. In fact, I think the figure is 97% of the time.

What I'm getting at is that the relief you're asking for is really at the port, right? It's not the rail system along the way, etc.

Mr. Brent MacFarland: That's right.

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

The Chairman: Mrs. Chamberlain.

Mrs. Brenda Chamberlain (Guelph—Wellington, Lib.): I just wanted to know if this is correct. The owners and the operators of the wharves through which your products pass are members of the British Columbia Maritime Employers Association and have some opportunity for input into collective bargaining with the longshoremen's union, unlike the grain terminal operators who have no such relationship with longshore employees. Is that right?

Mr. Garry Benoit: Could you go through that once more?

Mrs. Brenda Chamberlain: I just wanted clarification, because you did mention in the last questioning somewhere along here that people were not properly represented. The owners and operators of the wharves through which your products pass are the members of the British Columbia Maritime Employers Association and they do have some opportunity for input into collective bargaining with the longshoremen's union.

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I see this as being different—and I'm just asking if that's so and if you agree—from the grain terminal operators, who have no such relationship with the longshore employers.

Mr. Garry Benoit: I certainly don't have an answer to that.

We're talking Neptune Bulk Terminals and Vancouver Wharves, all loading facilities that handle grains and grain products. I was not aware of that, and I can't confirm if it is true. I have no idea.

Mrs. Brenda Chamberlain: Okay, thank you. It was just a point—

Mr. Garry Benoit: We don't own the terminals or operate them.

Mrs. Brenda Chamberlain: I just wanted clarification on it. If you don't know, that's fine. Thanks very much.

The Chairman: Okay, that's it.

Thank you very much. I appreciate your taking the time to be here.

Mr. Garry Benoit: Thank you.

Mr. Brent MacFarland: Thank you.

The Chairman: This is not a breakfast cereal you two sent here.

Mr. Garry Benoit: It's a breakfast cereal for cows.

The Chairman: Yes, well, it would tighten me up pretty well, I would think.

Now we're looking for the Canadian Association of Labour Lawyers. Are we ready to go?

Mr. Michael A. Church (Canadian Association of Labour Lawyers): We're ready to go whenever you are, Mr. Chairman.

The Chairman: We're ready to go.

There have been some comments about lawyers at this table already in these hearings.

As the other witnesses were advised, you have roughly half an hour depending on the number of questions. I would ask that you try to keep your remarks to about 10 minutes. Perhaps you could start, and then I'm sure there will be questions from members.

Mr. Michael Church: Thank you very much. I'll try to keep it to 10 minutes regular time as opposed to lawyer time.

The Chairman: What are you billing for it?

Mr. Michael Church: There's no billing here.

Good afternoon, members of the committee. I'm here on behalf of the Canadian Association of Labour Lawyers. I'm here with my two colleagues, Mr. Denis Bradet from Quebec City and Ms. Elizabeth Mitchell from Toronto. Ms. Mitchell and I will speak in English. Mr. Bradet is fluently bilingual in both of our official languages and will probably address you in French.

We'll each address you for a few minutes. I will try to be brief. We will all try to be brief, given the late start and your time constraints.

I'd like to introduce you to CALL for a few moments, tell you about our role in the consultation process, and briefly explain our support of the proposed Bill C-19. Then Ms. Mitchell and Mr. Bradet will talk about a few areas they've come to address you on, and they will summarize our support for the key or central reforms of the bill. Of course, we'll be available to answer any questions if we can.

My particular area of interest is labour relations, particularly with federal industries, such as rail, airline, and truck.

I wish to emphasize that our role today is to assist your committee in understanding our support of the bill from a practitioner's perspective. We work with the code. We work with the Canada Labour Relations Board. So we're trying to assist you in understanding how the process works under the existing code and the existing board, how we think the new amendments will assist all parties, and how the new board to be proposed will be an improvement over the present board. It's important to understand. We're not trying to repeat the comments of our clientele. Our constituents, whom we all represent, can speak for themselves; these are the employee groups, the associations, and the trade unions. We believe we have a unique perspective.

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To speed things up, if you want to know who the Canadian Association of Labour Lawyers are, the material we put in front of you at tab three summarizes the Canadian Association of Labour Lawyers. We're a national association. We represent practitioners in every province and territory in both official languages. We have members all across Canada. The members of the association tend to be people who practise exclusively in labour relations work. A lot of us do a lot of federal work.

Tab 4 summarizes—there should be a motion in both official languages in the material placed in front of you—a motion passed by our association at our last annual convention, supporting what was then known as Bill C-66 and lamenting the fact that it did not pass. It's self-explanatory; we'll leave it with you.

We generally supported Bill C-66. We generally support Bill C-19. We've been involved in the process from I think the earliest stages, by presenting representations to Mr. Sims and his task force, attending the minister's round tables, filing submissions with the minister, sending letters, and those sorts of things.

The bottom line is that the current code is not adequate, the current board is not adequate. The proposals under Bill C-19, while not perfect and not progressive enough in our view, are an acceptable compromise and we urge that the proposals be passed.

I was going to take you through our positions and summarize, but I think I'll let my two colleagues speak for themselves on those two points. I'll turn it over to Ms. Mitchell right now. Thank you.

The Chairman: Thank you.

Ms. Elizabeth Mitchell (Canadian Association of Labour Lawyers): Thank you, Michael.

As Mr. Church has indicated, our theme today is that we are very supportive of Bill C-19, because we do think it's a matter of some urgency that the Canada Labour Relations Board and the Canada Labour Code be reformed.

We also are appreciative of the degree of consensus that many proposals in the bill have won. It's been a very long process and there's been a lot of study, but the degree of consensus is probably unusual for many of the provisions in Bill C-19. We are supportive of the process—how it got here, the length of study, and the degree of consensus sought and obtained to the key provisions.

Obviously some of them have not received consensus at all. We don't support all the provisions, but we are happy that a compromise has been reached. We're supportive of that concept.

At tab 1 of our booklet is the submission of our association, and that submission is divided into two parts. First, we have decided to submit only two of the points we would like to see this committee at least consider as amending the bill in what we propose to be relatively minor ways. Second, we have a review of what we consider to be key reforms, which we have put our support behind.

Many of the provisions in the bill we had supported the first time around as Bill C-66, and behind tab 5 of our materials are the original proposals that CALL made in response to Bill C-66.

I'm going to speak about the first part of our materials, which are the two proposals we are suggesting would be an improvement to the bill without causing any fundamental rethinking of the bill.

We're suggesting that the replacement worker provision, proposed subsection 94(2.1), be amended to shift the evidentiary, not the legal, burden onto employers in any applications made under that proposed subsection.

Second, proposed subsection 10(1) provides a maximum five-year appointment for chairs and vice-chairs and is silent with respect to a minimum term. In our view there needs to be a minimum term as well in order to protect the independence of the members of the tribunal.

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To first touch on the shift in the evidentiary burden under proposed subsection 94(2.1), the replacement worker provision, if you troubled yourselves with our earlier submissions you would see that CALL was a supporter of a ban on replacement workers, so this current proposal is not as progressive as we would have liked. We support the fact that a ban on replacement workers cuts down days of strike. It generally shortens strikes, they are fewer in number, and they are more peaceful.

However, given the language that has been proposed as a compromise, we think this committee should consider adding a shift in the evidentiary burden at any hearing. As practitioners we're aware of the difficulties in an application where the law requires that there be a demonstrated abuse of the replacement worker provisions in order to get any kind of ban imposed by the board.

The issue in any application under section 94 would be the motivation of the employer in starting to use replacement workers. Well, all of the knowledge on how the decision was made, the purpose and intent, is with the employers who made it. Since these people are in a strike or lockout position, that evidence will not be available to the trade unions representing the employees.

Accordingly, we've proposed very specific language dealing with a shift in the evidentiary burden so that in any application under the proposed subsection the employer would go first and would introduce its evidence with respect to the fact that it made its decision for legitimate reasons and not to undermine the trade union. The burden at that point would shift to the union.

The language we are proposing is found at page 3 of our proposals. We've made a very specific submission there.

The second provision is another straightforward point. We're concerned about the appearance of the independence of the new board. Proposed subsection 10(1) talks about holding office for a term not exceeding five years for the chairs and the vice-chairs. We're suggesting that proposed subsection be amended to include a provision that the term be for not less than three years and for not more than five years.

We have concerns that without a minimum term the governor in council may appoint people, for whatever reason, for very short terms of one or two years. This would not be conducive to creating an independent board that is able to attract experienced people to those positions of chair and vice-chair. We would like to see the minimum term introduced.

We think the concept of the independence of the board has been emphasized, certainly even in today's Ottawa Citizen, in an article in which the federal court was talking about the Canadian Human Rights Tribunal and the appearance of independence. We think this would enhance the appearance of independence, as well as the actual independence of the new chair and vice-chair of the new board. Accordingly, we're making a proposal that the minimum term be included.

Those are my submissions at this point. Thank you.

The Chairman: Thank you.

[Translation]

Mr. Denis Bradet (representative, Canadian Association of Labour Lawyers): The French version of our brief is at tab 2. We apologize to the francophones for the somewhat clumsy translation. Still, it is quite well done, and I would like to point out in a friendly fashion to my colleagues from Toronto that it was done in Toronto.

I would like to mention the initiatives we particularly support. The main points are found on pages 4 and 5 of the English version, and at the end of the French version.

First of all, we particularly support the right to automatic certification in cases of misconduct on the part of the employer. We think the requirements surrounding this automatic certification right ensure that the provision is totally acceptable, even though it is rather unusual.

The second point we support concerns employee protection during the certification period. We think the Canada Labour Code must now contain a provision to protect employees during the crucial certification period.

The third point concerns the provision regarding employees who work outside traditional workplaces. We support all of the provisions that cover this category of employees. However, I would like to speak briefly about the Privacy Commissioner's position. He made some comments regarding confidentiality.

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As we emphasize in our brief, we do not think privacy would be threatened by the provisions of the bill authorizing the release of the name and address of some wage earners who do not work in a traditional workplace.

In our presentation, we mention three reasons why this does not constitute a violation of privacy. First, as we all know, a number of pieces of legislation already provide for the disclosure of similar information, including the tax legislation. Information much more important than this is disclosed in many cases. Second, we think the disclosure of information is designed to promote the right of association, which is one of the fundamental objectives of the Canada Labour Code. Third, we think that privacy is guaranteed by the Board's power to apply certain conditions to the disclosure of names and addresses.

Our brief also deals with the provisions of proposed section 18.1 in Bill C-19, which provide that in the future bargaining units must be found inappropriate before they may be reviewed. In other words, the Board must now make a preliminary finding before changing bargaining units. We think this change is essential to protecting the stability of certifications. Similarly, we think the powers given to the Board to deal with problems that could arise when units are reviewed, including issues of seniority and the expiry date of collective agreements, are essential.

Finally, we would like to emphasize that we support the inclusion in the Canada Labour Code of many references to the deadlines for doing certain things. We think these deadlines will make a major contribution to improving the certification process and the entire process protected by the Canada Labour Code. And, as we mention at the end of our brief, we think these provisions will help limit the use of the saying that labour relations delayed are labour relations denied. So we support these changes for that reason.

Thank you.

[English]

Mr. Michael Church: Mr. Chairman, with your indulgence, I'd just like to wrap up very quickly.

A summary of our position is set out at page 2 of our brief. The bottom line from our perspective is that although the bill proposed now is not as progressive as we had originally hoped, it represents an acceptable compromise. That's a compromise between FETCO and the unions represented by the CLC and many industrial relations experts.

We think the bill proposes minimum amendments and minimum protections. We also think there's nothing particularly revolutionary in the bill or particularly onerous upon employers. In fact, many of the provisions the bill proposes are analogous to the recent Bill 7 in Ontario put forth several years ago by the government of Premier Harris. Many of those provisions, of course, are somewhat similar to these provisions or they're maintaining other provisions, such as the automatic certification in Ontario, which is egregious conduct by an employer. That's a very rare matter in my province.

Lastly, we'd like to say to you that the code must be workable and the board must be workable, and in our view the proposed bill would promote both of these aims while at the same time maintaining a balance.

There is one last point I'd like to ask the committee to consider in its deliberations, if I could just take one more moment. One point that did not get into this bill is the exclusion of the right of the RCMP officers throughout Canada to certify and to unionize. That issue was discussed in the Sims task force review. You'd find it at pages 48 to 50. There was a recommendation that the government seriously study that issue.

Unfortunately at this point the RCMP officers are in limbo. They're one of the only police forces in Canada that is disenfranchised from unionization, certification, and collective bargaining. That's an issue that should not be forgotten, in our respectful submission. We have no wish to hold up the present bill, but it is an issue supported and recommended by the Sims task force, and it involves the right of the members of that police force.

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I understand there is a case winding its way up to the Supreme Court, and if it is successful there may yet be an application to the present board or the new board. That may present an interesting dilemma to the chair of the new board, but that's another issue that will be addressed in the near future. However, if there is such an application it's important that it receive, and be seen to receive, a fair and unbiased hearing.

Lastly, I understand the RCMP officers themselves will be presenting their views to you on April 1. I'd let them speak for themselves.

Other than that, thank you for your time and for allowing us to present our submission. We're prepared to answer any questions, to the extent that we can, if you or your members have any questions.

The Chairman: Thank you.

You've caused me a bit of confusion. I was prepared to support this bill until you said it was like Harris's.

Mr. Michael Church: Some of the provisions. Sorry.

[Translation]

The Chairman: Mr. Rocheleau has a brief question.

Mr. Yves Rocheleau: Mr. Bradet, how do you interpret the intention behind the change to the provision in Bill C-66 regarding replacement workers. The new version in Bill C-19 adds the words “for the demonstrated purpose”.

Mr. Denis Bradet: I must confess that I have not studied the provision enough to give you a specific answer. One of my colleagues might be in a better position to do so.

[English]

Mr. Michael Church: If I understand your question, it was to comment on the difference in the replacement worker language between Bills C-19 and C-66.

Bill C-19 expressly provides a defence to employers to say that they are utilizing, or can utilize, or can continue to utilize replacement workers, although not for the purpose of undermining the union. It codifies that they could use replacement workers to enhance a hard bargaining position, or just to simply exercise their rights to continue to operate their businesses in the ordinary course of business. That appears to have been placed there—I'm not an expert on drafting, nor did I draft that portion of the bill—to codify the defence in the bill itself to employers.

I hope I've answered your question adequately. I think that's the difference. I'm not sure if anyone has any further comments.

The Chairman: Unfortunately, we went longer than anticipated. I would like to give each member a chance to ask a question, so short questions and short answers.

Mr. Dubé.

Mr. Jean Dubé (Madawaska—Restigouche, PC): Thank you, Mr. Chairman, and I apologize for being late.

I'm looking at your brief. My question has to do with your proposed section 99.1—certification as a remedy. I have serious problems with this section of the bill, and yours supports the inclusion in Bill C-19 of a right to automatic certification as the remedy for employer misconduct, which is so serious.

You have probably heard about the Wal-Mart case. I'll bring it to your attention because you are lawyers. I want you to explain to me what you consider serious misconduct.

We have a case here where certification was granted for a vote of 151 to 43 against, and the misconduct on this part was that the manager of the store did not want to answer the question...if they would unionize. It was a situation where you're damned if you do and damned if you don't, so he did not answer. Do you call that serious misconduct?

Ms. Elizabeth Mitchell: Mr. Dubé, if you look at other jurisdictions that allow automatic certification where the misconduct is serious, I think you will find the vast majority of cases involve situations where employers have taken advantage of their ability to fire people for specious reasons, but their true agenda is to fire them because they're trying to organize a trade union. In the vast majority of cases under similar sections, you'll find that's the serious kind of conduct that attracts this remedy of automatic certification.

The Wal-Mart case has attracted a lot of attention, because people don't.... I don't mean to sound condescending, but if you take the time to read the decision—it's a lengthy decision by the Ontario board—the Wal-Mart executives did much more than refuse to answer that one question. The Wal-Mart executives held meetings every day. That was part of their normal course of business, but they used that regular short meeting to talk about the beauties of not having a union.

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They had extra management people shipped into that particular shop from all over the world. They stayed all day and spoke to the clerks working there about their general problems, etc. They set up a very intimidating environment where they answered every possible question any employee could raise. They were encouraged to come forward with their questions, and they would provide answers to all other questions.

The implication had to be, from an ordinary employee's perspective, that the answer to that particular question was too dangerous for the employer to answer, that they were going to fold up shop and go away if there was unionization. So that becomes the kind of egregious conduct....

It was not an isolated situation of not answering one question, but an entire group of circumstances that were extraordinary, and it was an extraordinary response in a very vulnerable time in the employees' employment in that shop. So I don't think the inclusion of this section will create a landslide of cases. It's going to be unusual, extraordinary circumstances that cause that remedy to be invoked by any board.

The Chairman: Okay. Mr. Martin.

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

It's a very good brief. Thank you for bringing it to us. We don't have much time, so I'll limit my remarks to one question. Your recommended change, which would be proposed subsection 94(2.1)....

As a bit of background, one of the things that most concerned us—I'm the labour critic for the NDP—was that between Bills C-66 and C-19, where the union would have to demonstrate there were unfair labour practices that were serious enough to justify, etc.... So the burden of proof was clearly planted there. Do you think this extra clause—and I haven't had time to read it carefully—would relieve that and sort of reverse the burden? Is that the intent?

Ms. Elizabeth Mitchell: We would have liked to recommend to the committee a reverse legal onus of proof and, in a suspicious circumstance, make the party that may have offended the act prove its innocence, which happens in the code with respect to discrimination towards individual employees, for example. Our recommendation is also a compromise to go along with the compromise theory of the bill, and we are recommending only a reverse evidentiary onus. It's a very pragmatic and practical suggestion in order to shorten the litigation that will go on before the new board to try to get what is the demonstrated harm here. For the trade union to try to establish what was the motivation of the decision maker, they would have to rely on circumstantial evidence.

So asking the employers to go first, provide the direct evidence and establish what their true motivation was will hopefully shorten the litigation that would go on before the Canada board and applications under this section, while leaving the legal burden of having to prove its case on the trade union.

Mr. Pat Martin: I see.

One more?

The Chairman: No. Nice try, Pat.

Bob.

Mr. Robert D. Nault (Kenora—Rainy River, Lib.): Thank you, Mr. Chairman.

Yesterday the CAW made a presentation and suggested that proposed sections 87.3 and 87.2 of the bill, which are the 60-day period for a strike vote and then the 72-hour notice provision, should be rethought. We think they will serve only to encourage strike action.

In your submission there is no mention of that, even in the preliminary observations on the last tab. I'm curious as to your opinion on that particular section, because of course it's not the intent of the code to create strikes. It's the reverse.

Has the legal profession looked at those two particular clauses? Why would an organization as large as CAW make that comment, and why would an organization like yours, which acts on their behalf or works with them in a lot of cases, not touch on it in the brief? I'm looking for some background information on those two clauses because we want to make sure we do the right thing here.

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Mr. Michael Church: I'll answer that. First of all, our brief is brief. We're trying to come from a different perspective, one of process and procedure.

The average labour practitioner does not get involved very much in collective bargaining. The unions do that themselves or employee association reps or employees do it. They do that themselves and they're very good at it and they don't want to be paying us labour lawyers, to be quite frank. We usually get the cases well after that.

I wasn't here yesterday and I haven't seen the CAW brief, but frankly I think they're correct. Whenever you have a deadline like that, where the union has a strike vote in its pocket and when the clock's ticking, sometimes it forces organizations to do things they otherwise wouldn't do. If there's no caution or if it's that short, unions may feel the need to actually act on the strike mandate they have. Strikes and lockouts are tough times for employees and for employers as well, and people sometimes feel forced into situations.

I have to think they're correct. In the province of Ontario we've made the same submission. Bill 7 requires a strike vote in every case and a strike vote will only last so long. I have done negotiations in Ontario, and when unions face a situation where their strike vote mandate may run out, rather than go back to the people at an incredibly emotional time, it tends to promote one to call a strike earlier than otherwise. I don't think it does guarantee it, but it does tend to happen; that's just a fact of life. I can't really explain why it happens and I haven't really followed through at this point, but I just know it happens and it will happen federally as well.

Ms. Elizabeth Mitchell: I do have a comment with respect to proposed section 87.3. When the Ontario changes came in, instead of a 60-day limit the strike vote had to be taken within 30 days of the end of the collective agreement or any time thereafter. You don't necessarily have to have the 60 days expire. If you were prepared to amend this section, at a minimum you may want to just have the one vote. As long as it's taken within 60 days of the end of the agreement, then it will be good for all time.

I think the CAW would be concerned that on the 59th day it would have to decide to go out on strike and do that repeatedly. At least you could open it up; if they've taken it within the last 60 days of the collective agreement, then that's good for that entire set of negotiations. That may be a compromise position that the committee could consider so that you can get over that forced 59th day decision-making that would have to be repeated and another vote need to be taken. That's the way the language is right now in proposed section 87.3.

Mr. Robert Nault: Just for clarification of the practitioners, my understanding is that with mutual consent of the parties you can extend the 60 days. In fact the union could go to management and say things are going pretty well here, so let's extend the 60 days to 120. It does allow for that. That's why I was a little bit surprised at the CAW's insistence that this was a bad thing.

I can understand the whole issue of having to go back to membership. As we well know, it's very expensive to go and ask for that strike vote. That's the concern. If you have a big union like the railway union, for example, it costs you a heck of a lot of money to go and canvass your membership. Would that not deal with it, then, that you can go to mutual consent?

Ms. Elizabeth Mitchell: No, I don't think so. You're talking about two parties that are on the verge of a strike. It may be that the employer doesn't have any interest in saving the union money and saving it the necessity of going back repeatedly for these votes. To be expecting or putting on this extra layer where you have to get an agreement in writing between the trade union and the employer at that particular time in order to extend it is not enough of a saw-off to resolve the problem that the CAW and the other national unions would be facing.

Mr. Michael Church: That's also assuming that they're even talking to each other on the 59th day. If the situation is that bad they may not be talking to each other or the bargaining committee might want to bring the matter to an end but the membership might want the world, and sometimes it's difficult. The emotions and the stresses are quite strong at that point.

The other point is that in the railway industry the members are spread out in little terminals across Canada, all over the place. It's not only expensive, it's time-consuming to conduct another vote. It's very difficult, as you know.

Mr. Robert Nault: Thank you, Mr. Chairman.

The Chairman: Mr. Johnston.

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Mr. Dale Johnston: Thank you, Mr. Chairman, and thank you for your presentation, witnesses.

I noticed that Ms. Mitchell said that you support a total ban on replacement workers because, to paraphrase, a total ban tends to make for a more peaceful strike that is of lesser duration. Do you have any statistics to back that up?

Ms. Elizabeth Mitchell: I'm sorry, Mr. Johnston, I did not come equipped with statistics. I think the most recent time this was canvassed was, you might recall, under the NDP government in Ontario. There was a brief period when Ontario had, I think it was, only two years with a ban on replacement workers. In that short period of time—not a lot of time to get statistics together—there was a drop in the number of days lost to strikes and the number of strikes as well. If you would like assistance from me in gathering them, I could offer to get some statistics for you, just from reported Stats Can cases. I'm sure some of the research assistants here could also find you the statistics on this.

But that was certainly the experience in Ontario, and it was reflective of earlier statistics. That's why the NDP government introduced that initiative some years ago anyway. It was based on that kind of figure and that kind of study.

The Chairman: Do you have another question?

Mr. Dale Johnston: I'll defer to Rob.

Mr. Rob Anders: I'd like to say that I don't think I've ever seen quite as passionate a defence of the Wal-Mart decision as I've seen out of you today, Ms. Mitchell.

Ms. Elizabeth Mitchell: Thank you, Mr. Anders.

Mr. Rob Anders: Anyhow, I'll move on to clause 42 of Bill C-19, that being the section dealing with replacement workers. I guess you'd view this as a real opportunity in Canadian labour jurisprudence because, of course, it's something new to the labour jurisprudence in this country in terms of how it deals with replacement workers. It's not a total ban, but obviously you'd like to go for one. As it stands right now, with the way this would have to be looked at and worked with, it's something new to Canadian labour law, is that right?

Ms. Elizabeth Mitchell: I believe it is unique, yes.

Mr. Rob Anders: It would probably create a lot more work for people like you.

Ms. Elizabeth Mitchell: In all honesty, Mr. Anders, I think if you introduced a ban on replacement workers, I'd have less work.

Mr. Rob Anders: Okay, fair enough.

I have a couple more questions, if I may, Mr. Chairman.

On the clause 50 provisions that deal with privacy in terms of how that clause was related to Bill C-66 and as it now exists in Bill C-19, were you supportive of this even before the Privacy Commissioner was expressing concerns with regard to the violation of the Privacy Act and off-site worker lists and all the rest of it?

Ms. Elizabeth Mitchell: That's right. Between Bill C-66 and Bill C-19, I think there have been quite a few more protections built into the access to information about employees. We did support the concept of access to employees who are off-site because we think it's quite an important initiative in today's work world.

Mr. Rob Anders: I just wanted to verify that.

I have one last question, Mr. Chairman.

The Chairman: See how fast you can get it out.

Mr. Rob Anders: Okay, Mr. Chairman.

Clause 46 deals with the secret ballot provisions and moving to a union card system. Are you in favour of moving to the union card system, and of therefore also opening up the prospect of union raiding that the Canada Labour Relations Board has recognized in the past?

Mr. Michael Church: There is a union card system already in place. I don't think we understand your question, Mr. Anders.

Mr. Rob Anders: Well, right now, under the act that we're trying to amend—

Mr. Michael Church: The Canada Labour Code, yes.

Mr. Rob Anders: Yes. Right now there is a secret ballot, 50% plus one system for determining these things.

Mr. Michael Church: I don't think you're correct.

Ms. Elizabeth Mitchell: It's 50%...it's majority support on a card-based system that's in place now, and Bill C-19 doesn't change that.

Mr. Michael Church: That's like five other provinces, as well. I don't understand your point. We're operating from different assumptions. There's a membership system under the Canada—

The Chairman: That's been obvious from the beginning.

Mr. Michael Church: With the greatest of respect, I don't think you're correct there.

Ms. Elizabeth Mitchell: It is a card-based system federally and it has been, I believe, since the code was first introduced.

Mr. Rob Anders: Okay, I'll boil it down for you. You'd be in support of putting in a provision that would be very similar to what we saw in Ontario and British Columbia, a provision that allowed this Wal-Mart decision to take place. I'm sure that must be the case, because I've never seen as passionate a defence of the Wal-Mart decision as came from you, Ms. Mitchell.

Ms. Elizabeth Mitchell: I'm completely and utterly supportive of this. I think there's absolutely no other remedy in serious situations where there has been serious infringement on the rights of workers to unionize. With the kind of standard a union has to prove in order to get automatic certification, this is the only remedy that makes sense.

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I've been practising for quite a few years in this area and I can tell you I'm completely and utterly behind it. If I sound impassioned about Wal-Mart, it's because I think it was the right decision.

Mr. Michael Church: Mr. Anders, that legislation has been in Ontario for 25 years or so. Automatic certification has been put there by Progressive Conservative governments time and time again. In fact it was left there by the Harris government. It's used very rarely and it's successful even more rarely. That provision has been there for a long time and it's in other provinces. It's been there, it's not new, and that's why perhaps I confused the chairman when I said that. That provision has been there and the Harris government left it there. It's only used in extraordinary cases and it's very difficult to prove.

The Chairman: Thank you, Mr. Church. Repetition of the Harris government's accomplishments is not necessary.

Some hon. members: Oh, oh!

Mr. Michael Church: I'm just trying to be fair.

The Chairman: Ms. Mitchell, this committee is not at all opposed to passion of any sort.

Thank you very much. I appreciate your time.

Ms. Elizabeth Mitchell: Thank you.

Mr. Michael Church: Thank you.

The Chairman: Now from the Canadian Chamber of Commerce we have Ms. Glover and Mr. Lewis.

Ms. Glover and Mr. Lewis, I'm sorry to be a little pushy. We are faced with yet another vote coming up so I want to try to hear both the witnesses and prevent the need for everybody to wait again.

Mr. Dale Johnston: We want to make sure we get finished here so we can go over to the House and wait.

The Chairman: Yes, that's right.

You are experienced in this process. We ask you to keep your remarks to about 10 minutes. As you see from the last presenter, there are a lot of questions, a lot of interest, and I just don't have the time to get everybody in if you go over that.

Ms. Sharon Glover (Senior Vice-President, Corporate Affairs and Membership, Canadian Chamber of Commerce): Thank you, Mr. Chair. On behalf of the members of the Canadian Chamber of Commerce, I'd like to thank you for the opportunity to appear before you today to discuss the proposed amendments to the Canada Labour Code, Bill C-19. My name is Sharon Glover. I'm the chamber's senior vice-president of corporate affairs and membership. With me is John Lewis, an associate of the law firm of Heenan Blaikie.

The Canadian Chamber of Commerce is Canada's largest and most representative business association. Our members cover the entire spectrum of private enterprise. Our network of 500 community chambers and boards of trade provides us with affiliate partners in every federal member of Parliament's constituency. The network has a total membership of more than 170,000 and includes many of the federally regulated employers who will be affected by changes to part I of the Canada Labour Code.

As you well know, many of the employers we represent, including key players in the transportation, telecommunications, and banking industries, are involved in the provision of many of the country's essential public services and form the infrastructure of the Canadian economy. The Canadian chamber has been an active participant in the public policy dialogue leading to these amendments proposed in this bill for several years. In fact, we've been working on this issue since early 1995.

Before I begin detailing our specific concerns with Bill C-19, I must at the outset say that we question the need to make the sweeping changes that are proposed to Canada's framework governing labour management relations. While we see the need for some of the housekeeping provisions of the bill, provisions such as the creation of the Canada Industrial Relations Board, we do not believe the need to change the framework for collective bargaining in the federal jurisdiction has been demonstrated or that the proposed amendments will do anything to strengthen Canada's competitiveness. To the contrary, we believe the proposed amendments to part I of the Canada Labour Code may in fact undermine Canada's competitive position relative to other industrialized countries.

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In view of this, the request we would like to make to you today is that, above all else, the committee consider the very big picture of Canada's competitiveness in the world when debating the merits of this bill and its effects on investments in the future.

Much as is the case with our broader concern of competitiveness, our specific concerns over Bill C-19 are largely unchanged from what they were in regard to Bill C-66 in spite of the changes that were made to the legislation prior to reintroduction. While the new wording for some of the key provisions of the legislation is certainly a step in the right direction, it does not go far enough to ease our most fundamental and long-standing concerns with the proposed amendments to the code. Specifically, we take issue with three elements of the bill that are critical in importance to our members and that we will go over now.

First of all, with respect to the first issue of concern, replacement workers and the partial ban on the use of replacement workers during legal work stoppages, I must preface my comments by noting that we are pleased that the federal government heeded our concerns with respect to the earlier wording of this provision and is proposing to amend the legislation accordingly.

In particular, the addition of the words “rather than the pursuit of legitimate bargaining objectives” in proposed subsection 94(2.1) will ensure that any tribunal interpreting this legislation will be guided by the explicit obligation to consider the reason why the employer may have hired strike replacements rather than only the protection of a union's representation rights, as was the case under Bill C-66.

This new wording, in our opinion, much better conveys the federal government's intention in strike replacement legislation, which we are told is to remedy inappropriate bargaining conduct rather than to strengthen the bargaining power of labour unions.

The new wording of this provision, however, does not erase our most long-standing and fundamental concerns about the inclusion of strike replacement legislation in any form of part I of the Canada Labour Code. Indeed, we object to the rationale for amending the code to include such a provision.

Federal sector businesses are, by definition, interprovincial, national or international in scope. They include many large integrated networks spread across great distances connected by air, rail, road or technology. Federal undertakings correspond to a high degree with essential public services and constitute the very infrastructure of Canada. Often, federal business is the only operation that provides services to this country. Inhibiting the federal sector employer's ability to maintain operations is therefore, by definition, inhibiting the national economy from functioning. The unique nature of the federal sector should therefore give the federal government pause in the wholesale borrowing of any labour reform created in the provincial jurisdiction.

As we've noted in the past, the employer's equivalent weapon to the strike is not the lockout but the ability to take a strike. After much study, the Sims task force said:

Replacement workers can be necessary to sustain the economic viability of an enterprise in the face of a harsh economic climate and unacceptable union demands. It is important in a system of free collective bargaining that employers maintain that option, unrestrained by any blanket prohibition. If this option is removed, employers will begin to structure themselves to reduce their reliance on their permanent workforces for fear of vulnerability, to the detriment of both workers and employers alike.

In our view, restricting these replacement workers during a legal work stoppage, even if the restriction is only partial, clearly shifts the balance of power in labour-management relations in favour of unions.

To summarize, while we believe the current wording of proposed subsection 94(2.1) is certainly an improvement over its earlier version, we continue to take issue with the inclusion of any provision that would see any restriction whatsoever on the use of replacement workers during legal work stoppages. We urge this committee to reconsider the inclusion of such a provision in the legislation.

In terms of off-site workers, as you know, the Sims task force identified the emerging categories of employees, those “no longer required to be physically at the employer's premises or even to operate the employer's equipment to work for that employer”. The task force had in mind employees linked to the employer by new technologies and thereby able to work at home or off-site. The task force was concerned that these workers might be “isolated from each other” and that it may be “virtually impossible” for a union interested in organizing them to locate and contact them.

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We recognize that in today's labour force there is an emerging category of workers that may be labelled off-site. However, there is an important distinction to be made between workers who normally work in locations other than the employer's premises and workers who are virtually impossible to contact.

Many employees work off-site yet report to the employer's premises on a regular basis. The use of new technology to enable employees to work off-site, including at the employee's home, does not in our view justify the creation of a new category of employees under the code that should be dealt with any differently from any other employee category under the code.

Our second major concern with the off-site worker provision, beyond its mere inclusion in the code, relates to the transmission of information to employees and the issue of consent. We continue to be deeply concerned that this bill provides for the Canada Industrial Relations Board to give names and addresses of workers who work off-site to unions in order to certify. In the current labour regime, at no time ever are unions given the names and addresses of prospective union members by the board.

While the bill specifies the board must include, as part of the giving of the list, conditions that must be met in order to ensure the protection of privacy and the safety of affected employees, and to prevent the abusive use of information, we believe that, at the very least, consent should have to be given by employees before their names and home addresses are given to labour unions.

This is a practice currently followed by Industry Canada, which uses as a foundation for privacy of personal information a code put together by the Canadian Standards Association, entitled “Model Code for the Protection of Personal Information”. This code states that personal information shall not be used or disclosed for purposes other than those for which it was collected, except with the consent of the individual.

We believe the model should be incorporated in part l of the Canada Labour Code as it relates to a union or to the Canada Industrial Relations Board communicating directly with off-site workers.

The third important element of this bill that we take issue with is a provision calling for the continued movement of grain through ports during legal work stoppages. Not only do we take issue with the fact that such an important issue found its way into the legislation without having been addressed by the Sims task force, but we also believe that what the bill proposes is fundamentally misguided. It's a misguided solution to a complex labour relations problem. Indeed, the selective treatment of commodities during a legal work stoppage distorts the traditional dynamics of collective bargaining, and is likely to prolong the dispute in respect of other businesses using the port in question.

Finally, with regard to certification as a remedy for unfair labour practices, I'd like to conclude by expressing our serious displeasure with the way the automatic certification procedures have been drafted in the legislation. We believe it is of paramount importance in cases where an employer has engaged in an unfair labour practice that the true wishes of employees be respected. We believe a very effective way to elicit the true wishes of employees is simply by a vote.

To conclude, we'll reiterate our requests to the committee. Eliminate the partial ban on replacement workers from the bill. Delete clause 50 from the legislation, the clause dealing with off-site workers. Eliminate the preferential consideration accorded to grain in the event of a legal work stoppage at a port. Require the CIRB to consider whether any other remedy, including the taking of a vote, to ascertain the true wishes of employees is sufficient to counter the effects of any contravention by employers.

These are the principal messages the Canadian chamber would like to leave with you today. With this in mind, we welcome your questions.

The Chairman: Thank you very much, Ms. Glover.

We'll start the questioning with Mr. Dubé.

Mr. Jean Dubé: Thank you very much, Mr. Speaker.

The Chairman: I like “Speaker”.

Mr. Jean Dubé: You'll be there next time around.

I'm going through what you said here. You hit me hard with that question. I wasn't really ready for it.

The Chairman: Pass?

Mr. Jean Dubé: Yes, I'll pass for now.

The Chairman: Mr. Martin.

Mr. Pat Martin: I will be very brief.

In the final summary of items you'd like to see changed, you mentioned the handling of grain at ports. Did I understand you properly that you don't think the Canada Labour Code should ensure that grain should go through in the event of a legal strike or lockout?

Ms. Sharon Glover: That's correct.

Mr. Pat Martin: So you'd like to eliminate that idea.

Ms. Sharon Glover: Correct.

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Mr. Pat Martin: That's good. As long as I understand you.

The other question I have is with regard to certification as a remedy for unfair labour practices. I'd just like to comment a little bit on the way you voiced your concern about that.

My understanding is that certification isn't really granted as a remedy for the unfair labour practice, so much as it's granted because it is deemed or demonstrated that the interference by the employer was such that holding a vote wouldn't give you an accurate picture of what the true wishes of the employees are. The interference skewed that picture.

Really, that's what the automatic certification is a remedy for. It's not really so much a remedy for the unfair labour practices. It wouldn't do any good to hold a vote now because fear of reprisals would be such that you'd be unable to ascertain the true wishes of the employee. In most provinces, that's the way the situations goes.

Do you want to comment further on that?

Ms. Sharon Glover: John, perhaps you could comment on that for us.

Mr. John Lewis (Canadian Chamber of Commerce): I'd say you're accurate in the sense that an automatic certification is given usually because of what's called the chilling effect that happens upon the employees when the determination is that the conduct is such that the true wishes would not be able to be ascertained via a vote. That is taken in light of the remedial powers of the board and what the board may be able to do to counterbalance the effects of the unfair labour practice. The board has broad remedial powers, and whether it would be captive audience meetings with the union or letters home to the employees stating that the employer has violated the code and apologized.... There is a whole host of remedies.

In Ontario, what they've basically done is taken a compromise. They've said the board should at least be directed to look at the situation to make sure all the remedial powers that the board has at their hands—and that includes another vote after dealing with all these remedial powers—can't ascertain the true wishes of the employees. What we're suggesting is that this be mirrored in the Canada Labour Code as well. As presently drafted, the CIRB wouldn't even be able to, as one of their effective remedies, put another vote to the employees after doing various remedial actions in order to help them to ascertain what are the true wishes of the employees in this matter.

Mr. Pat Martin: Thank you.

The Chairman: Thank you, Mr. Martin.

Mr. Wilfert.

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

Thank you for your presentation. In the Sims task force, one point that we noted was that on the issue of replacement workers, both labour and management agreed that there should be no attempt or purpose to rid the workplace of unions. In your submission on proposed subsection 94(2.1), you indicated that you didn't want any provision that would see to any restriction whatsoever in the use of replacement workers during legal work stoppages.

If you go through the process of negotiating and are not able to come to an agreement and the workers are exercising the democratic right to go out on strike, I fail to understand why you would encourage or support the use of replacement workers when there is a process that has, for whatever reason, broken down. The objective, hopefully, is to get people back to the bargaining table. The introduction of replacement workers would, in my view, fuel the nature of the conflict that's going on, and would therefore make any kind of agreement less likely.

I was particularly surprised because you said “legal work stoppages”. This isn't a case in which people have gone on a wildcat strike and are picketing the place of employment. They have gone through a process and, for whatever reason, it has broken down.

Can I get your comments on that?

Ms. Sharon Glover: Well, if I may—and, John, you may want to add some points—essentially we believe that unions have a right to strike, but employers have a right to operate. We don't believe there's anything wrong with the current Canada Labour Code as it is now operating, and we don't believe any remedy is needed to allow a partial ban on replacement workers. We think the code works fine the way it is. We have presented statistics in previous appearances that show that those places that do have a ban on replacement workers have longer strikes, and more strikes.

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So we have statistics, particularly from Quebec—they've had this provision for a number of years—that show that it has a negative effect on the workplace and in fact shifts the balance of power that currently exists more onto the labour side.

Mr. Bryon Wilfert: That's interesting, because the Canadian Association of Labour Lawyers was just before us. Although they didn't have the statistics in front of them, they took diametrically the opposite view, that in fact where there is a ban on replacement workers, the strikes are shorter, etc.

Mr. John Lewis: May I reply to that? One, when you're dealing with the issue of strike statistics, there's a whole host of factors—number of strikes, frequency of strikes, duration of strikes, and so on and so forth. Statistics can usually be used to a certain extent to anyone's particular purpose.

In Ontario, the most recent example has been where you had a very restrictive provision dealing with strike replacements under the NDP government there. That was taken away by Bill 7. The last statistics I've seen—and I have looked at them—is that the duration and the frequency of strikes have either gone down or there's been no change in Ontario.

So I think to a large extent what the previous association was saying isn't backed up by the actual facts that have come through so far on the strike data in Ontario. If you take away the large public sector strike, and the CAW strike that has occurred, the frequency and the duration of strikes is actually down.

The Chairman: Thank you, Mr. Wilfert—

Mr. Bryon Wilfert: I wonder if we could ask our research staff if it's possible, since we seem to have two different viewpoints here, to have some statistics, particularly in terms of the two-year case in Ontario, to evaluate that information. Clearly we have two respected organizations here, but they have put information on the table that to me would require information, if we could.

The Chairman: I believe there's already been an indication from Mr. Nault that he would seek out some information on that. Our very capable researcher, when she gets back from her conference tomorrow, will do the same thing.

Mr. Bryon Wilfert: Thank you, Mr. Chairman.

Mr. Robert Nault: Just as an add-on to the point that's being made, Ontario was only at it a very short period of time. I think you want to look at Quebec's and B.C.'s situations, because they've been at it a lot longer. You'll get a better understanding of how that legislation works than from the short period of time in Ontario. So I would suggest we get all three.

The Chairman: We will endeavour to do that for you, Mr. Wilfert, and thank you, Mr. Nault.

Ms. Brown, you have a very brief question, I understand?

Ms. Bonnie Brown (Oakville, Lib.): Yes, I do.

Am I correct in assuming that you are the national association and are authorized by the community affiliates to speak on their behalf on these kinds of issues of federal legislation?

Ms. Sharon Glover: Can I explain our structure briefly? We have 500 local chambers of commerce. The way it usually works is that if you're a local chamber, you lobby and speak to local issues. If you're a provincial chamber, you speak to provincial issues. We speak to the national ones. There are no rules that say if you're a local chamber you can't speak directly to the federal government, or if you're a provincial chamber you can't speak directly. So while we would be the main participant on federal legislation of any type, local chambers at any level are always welcome to approach the federal government, as they wish.

Ms. Bonnie Brown: But seeing as your chambers are very concerned about all the different affiliates, yours included, and seem to be very concerned about waste of government funds, does it not annoy you, as it does me, that we hear exactly the same points, with exactly the same conclusions, today from you as we heard yesterday from representatives of Calgary and Edmonton? At the same time, your members' taxes paid for their trip here, whereas you're in town here, I assume.

Ms. Sharon Glover: Actually, no, I'm not. I'm based in Toronto.

I think this is a public debate, and anyone who wishes to ask to speak should be allowed to speak. I'm certainly not going to comment on who should and who shouldn't be allowed to speak to this committee. That's up to you.

Ms. Bonnie Brown: So if all your affiliates decided to come here, that would be okay with you?

Ms. Sharon Glover: If you wished to hear from them, it would be okay with me.

Ms. Bonnie Brown: Thank you.

The Chairman: Thank you, Ms. Brown. There are good taxes and there are bad taxes.

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Ms. Bonnie Brown: Very interesting.

The Chairman: Mr. Johnston.

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

Thank you for your presentation. I notice that in item (c) on page 9 of your presentation you refer to the grain provision being included in this bill, although it wasn't included in the Sims task force, which seems to be the template for the bill.

I wonder if you're aware that in the west coast ports inquiry a recommendation was made that there should be a dispute settlement mechanism. I wonder if you would like to comment on whether or not you would support a dispute settlement mechanism in the case of transportation and the west coast ports rather than this.

Ms. Sharon Glover: Mr. Johnston, I'm sorry, but I'm not aware of that.

John, are you aware of that?

Mr. John Lewis: I'm not aware of that, and depending on what the dispute settlement mechanism is, what we're really concerned about is fairness to all federal employers who may be involved in the port system. If there is a dispute settlement mechanism that would assist all parties put in difficult situations at ports, that might very well be something worth pursuing.

The Chairman: Mr. Anders.

Mr. Rob Anders: I'd just like to touch on this because you mention in your presentation on page 5—and I know this to be the case because we're talking about 700,000 workers who are affected by the Canada Labour Code—that a lot of these things are essential public services in many respects, because few businesses operate in some of these areas and spheres. I'm wondering if you can speak to some of the member businesses you represent, businesses that have a national nature and for which it would potentially mean a shutdown as a result of not being able to use replacement workers.

I'd like you to paint for the committee, in a sense, some of the businesses and some of the types of activities that would be involved in a ban of replacement workers and what types of industries and services to the public would be shut down.

Ms. Sharon Glover: If you would like to hear about some of our members by type of sector, we have, for instance, those in the telecommunications sector and those that provide long-distance services, and I would assume that if those types of companies, especially the providers of long-distance services, are closed down...I have heard that would be quite a problem because our ability to place long-distance calls and receive them could be at risk.

We have members in the transportation sector, in trucking, rail and air. Not being able to fly from Toronto to Ottawa would probably inconvenience a lot of people, but you could drive. But a lot of people in northern communities rely on airplanes to get food and medical supplies and it would be more than an inconvenience to them for airlines to go on strike. And truckers deliver all kinds of commodities for export so there would be businesses that would suffer. It goes on and on.

We have a number of members in all different sectors who provide goods and services, and if pieces of the infrastructure get shut down...lots of our companies work on just-in-time delivery. If you're an auto company and you can't get stuff because the rail lines shut down, what does that mean to your auto workers and to producing cars and to exporting? This has very serious implications for a lot of companies and employees across the country.

Mr. Rob Anders: Right. There's another thing I want to touch on, because yesterday Buzz Hargrove, with the Canadian Auto Workers, touched on it. He said that sometimes with union cards they can sign up 70% of the people at a site—according to his own words—and yet when they actually trigger a representation vote as a result of the card sign-ups, they lose the vote.

So if Buzz Hargrove is willing to admit that sometimes they can sign up 70% of the people at a site and still lose a representation vote, can you comment on the provisions whereby they would have automatic certification now with these changes to Bill C-19? What that would mean in terms of this drastic change?

Ms. Sharon Glover: John, could I get you to comment on that?

Mr. John Lewis: Again, that's why we're suggesting that the Canada Industrial Relations Board be specifically directed to take a look at their full remedial authority and the fact that they could order a representation vote to help determine the true wishes of employees. You have a situation—the Wal-Mart case was mentioned—in which 70% of those employees voted against the union, but 44% were signed up by the union going into the vote.

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I think it's important that signing cards is one indication of support for a union, but people obviously have second thoughts or further reflections. The mechanisms have to be in place so that if some people do change their minds, that can be reflected. In automatic certification, we think the best way is to make sure there is an opportunity for a vote there if it's appropriate.

The Chairman: Thank you, Mr. Lewis, Mr. Anders.

Mr. Rocheleau.

[Translation]

Mr. Yves Rocheleau: You say on pages 3 and 4 of your presentation that you are pleased that the government added the words "rather than the pursuit of legitimate bargaining objectives", with respect to replacement workers, in the wording of the new version of Bill C-66, namely Bill C-19.

Are we to understand that you are pleased because you have made some representations to the government along these lines? What arguments did you put forward to the government to get these words added, in addition to the word "demonstrated"?

[English]

Ms. Sharon Glover: Specifically, we have obviously been talking about this clause for a number of years. Our preference is obviously—or maybe we haven't made it obvious enough—to have this clause removed, any restriction on replacement workers removed. If that is not the case, we have provided alternate wording that we would suggest. So have a number of other business associations, and they were all similar in wording.

Of the wording suggested by one of our colleagues in another business association, 80% has been put in the act. It's now much better than it was, because it better reflects what we think the Sims task force was trying to do. In fact, in Bill C-66, only half the wording that appeared in Sims was put into the bill. This has brought back some of the balance to it. It's not perfect, but it's better than it was. We wanted to acknowledge that they had made some attempt to try to balance some of the concerns we had with the partial ban on replacement workers.

The Chairman: Thank you, Mr. Rocheleau.

I'm sorry to be.... This is an unruly mob when we try to keep them on time here, but thank you for your presentation.

Ms. Sharon Glover: Thank you, Mr. Chair.

The Chairman: We now have Mr. Bruce Phillips, the Privacy Commissioner. He is here to share with us the contents of Mr. Anders' file.

Mr. Phillips, welcome. It is always a pleasure to have you here. I see you have been the subject of some discussion already on this particular bill, so I will give you the floor.

Mr. Bruce Phillips (Privacy Commissioner of Canada): Thank you. We will try to comply with your desire to get out of here and get to dinner.

The Chairman: No, actually, you'll hear a bell. We have a vote coming, so that's the deadline we're being pressed against.

Mr. Bruce Phillips: I think everybody knows why I am here, so by way of prelude, let me remind you that I don't represent any other interest here except the privacy rights of Canadians as defined in the Privacy Act. I am neither pro-union nor pro-management in my capacity as Privacy Commissioner. Whether this issue facilitates or impedes communications between these two groups is a matter of professional indifference to me. I am concerned only to the extent that such communication as does take place takes place in a way that is respectful of individual rights as contained in the act.

Secondly, I should point out to you that section 3 of the Privacy Act defines the names and addresses of individuals as personal information, and they are therefore entitled to the protection of the Privacy Act. The Canada Labour Relations Board—soon to be the Canada Industrial Relations Board—is on the schedule of the Privacy Act, and is therefore obliged to conduct its activities in a way that respects the guidelines set out in the Privacy Act.

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Clause 50, which deals with the provision of information, namely names and addresses, by the board under order to trade unions, was the subject of my appearance the last time around. We objected to it then and I tip my hat to the department for at least listening to us and making some modifications to these clauses, but I have to tell you that they do not remove the basic objection.

The right of a person to withhold or give consent to the disclosure of personal information under the Privacy Act is a right that can only be abrogated when there is an overriding public interest. The circumstances under which that can be done under my act are set out in specific cases. I have yet to hear an argument that constitutes an overriding public interest here. If there is one, I would like to hear it.

The only way, therefore, that this particular right can be abrogated, the right of consent, is by the statute itself vitiating the privacy rights that are contained in the act, and that is what is proposed here. They propose to strip these individuals of their right to withhold their consent.

I think, therefore, the issue for the committee to consider is whether there is such an overriding public interest.

I did hear the previous witness for the labour lawyers association raise a couple of points. He said that privacy is frequently invaded, the Income Tax Act, for example. Indeed, it is. Parliament in its wisdom on those occasions has decided that it is impossible to collect income tax and manage the affairs of this government if people do not give them that information, and I don't think there is any dispute about that. It seems to me that this falls into a somewhat different category.

He also stressed the right of association. I think we all agree that the right of association is a very important one—likewise, one that depends upon the free choice of people who wish to be associated.

I can only repeat here what I said on the last occasion, that this would be greatly improved if the workers concerned were given the right of consent. It does occur to me, and I put this forward by way of argument, that although I've heard a good deal of debate back and forth on this issue over the intervening months, I've yet to hear anybody say that the people most directly concerned have had their opinion solicited on this subject. It seems to me that this might be a useful thing for members to want to look into before passing final judgment on this provision.

I don't think I have any more to say on that subject at this stage of the game, except to say that this could be improved by the insertion of a simple clause that would require the board, in passing such an order, to obtain the consent of any individual whose name they wish to pass on to the union.

Finally, in looking at the amended section, it does seem to me that what this says, as I understand it, is that privacy will be protected after the privacy has already disappeared. They will provide this information under order to a trade union under what appears to be circumstances in which the union offers some sort—although it is not defined—of confidentiality to the use of that information.

However, the real privacy question here, Mr. Chairman and members, is whether a person consents to that kind of communication on his or her behalf without consent. That is absent as it stands and could be fixed very easily, simply by putting in a clause requiring consent. That's all I have to say on that subject.

There is one other aspect of this bill dealing with board members' notes, which is now the subject of an appeal before the Federal Court. Once again, the department is seeking to pre-empt the court that is hearing this case by putting a clause in this bill that exempts board members' notes from the purview of the Privacy Act. As I said the last time, I think they should be prepared to wait upon the judgment of the Federal Court on this issue and not try to end run around the whole process.

Do I accurately express the position? If you want any more detail on that subject, our general counsel, Ms. Harris, will be happy to respond. We're available for questions.

The Chairman: Mr. Martin, the questioning will begin with you now, sir.

Mr. Pat Martin: I guess the question I have is how is it different in a union organizing drive, which is really an election process? You're asking people to vote on whether or not they want a union to represent them and you're trying to get the information to them first. How is it different to have a voters' list available to all the candidates in an election? How is that different from any union organizing drive where the union wants to find out about where voters live?

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Mr. Bruce Phillips: Let me try to deal with your question in a slightly different way, Mr. Martin. If you talk about elections, the Canada Elections Act specifically allows people to decline to have their names put on a voters' list. The Government of Canada, for the purposes of conducting federal elections, must obtain the consent of the person before the name goes on the list.

I put it to you that in the case of managing a sensible federal election process, there is an overriding public interest in making the list as complete and comprehensive as possible. Even so, the Chief Electoral Officer did not feel it necessary in those circumstances to strip people of their right to consent.

Therefore, if what you're saying here is that you feel that a trade union, or anybody else—I'm not concerned whether it is a trade union or who it is—should somehow or other have a right that even at the very highest expression of people's democratic rights their privacy right is respected, while somehow for these other things it should not be, I'm unconvinced.

Mr. Pat Martin: Do I have a short follow-up?

The Chairman: Oh, please.

Mr. Pat Martin: My understanding is that there could be situations where the board would take care of circulating the communication on behalf of the union, then the respondent could actually make the contact with the union themselves, if they see fit, if they want further information. Don't you see that as enough protection in a case where somebody doesn't want the union making the first contact? The first contact could be mailed out by the board.

Mr. Bruce Phillips: Well, Mr. Martin, I guess by reading this section you could conclude that that is one way it might be done, yes. But looking at the language:

...the Board may, by order, require an employer to give an authorized representative of the trade union mentioned in the order...the names and addresses of employees...

The whole thrust of this is the non-consensual disclosure by the board of names and addresses to the union. I grant you that they could do it some other way, but there is no assurance in this language that they would choose a more consensual method, none whatsoever. That is my whole objection.

Mr. Pat Martin: Thank you.

The Chairman: Mr. Nault.

Mr. Robert Nault: Mr. Phillips, I understand what your role is as it relates to people's privacy, and I also understand that you've suggested that the Government of Canada and Parliament have a right to, when it's in the public interest, override that. What the Government of Canada is intending to do in this piece of legislation is just that. That's what Parliament is doing right here with this piece of legislation. And it has done it on many occasions—we know that—for what we believe to be in the public interest.

If this becomes a phenomenon of the global economy, where people in the new global economy work at home and it becomes a larger and larger percentage, I for one have a difficult time understanding that there is a concern of privacy when there isn't too much that people don't know about you and me in our society.

I don't know who got my name to call me about Big Brothers and Big Sisters for donations, but they got my name and they call regularly, as a number of other charities do. I didn't give it to them, but they call me. And I can go on and on and list a number of other organizations that seem to have my name on their computer. It therefore seems to me somewhat strange to suggest that people don't have a right, through the collective bargaining and labour relations systems that we have in Canada, to know that a particular union would like to represent them.

I guess my only concern is that your argument is suggesting that the Canada Labour Relations Board would be the only mechanism by which these particular or potential employees can be informed of a union's interest in putting them in their bargaining unit.

Do you not think that would be a very expensive endeavour of the Government of Canada or the Labour Relations Board to have to go through that on behalf of these potential workers, who could, in the new global economy, be 30% or 40% of the workforce over time? Of course, that would make it unmanageable and a very expensive venture.

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What would your sense be on those two questions? One is the whole issue...Parliament is basically telling you, as the Privacy Commissioner, we intend to override a certain percentage of a person's privacy. The other one, of course, is the whole issue of how we deal with the cost.

Mr. Bruce Phillips: I'll be as brief as I can.

The issue...of course, that's what is in this bill. It constitutes a Privacy Act override. If Parliament approves it, Parliament is saying that in its opinion this is a justified override. I think that's clear.

You posed a number of issues here, one, that you are the subject of a great many unsolicited marketing schemes of one kind or another. That's a bit beyond my jurisdiction, but clearly most people object to those things, as do I, because people are out there in the economy gathering and profiling me and you and everybody else for their profit and benefit, without ever asking me or asking you whether we want that kind of solicitation. In that sense it's not much different.

I grant you a person working for an enterprise or for himself might be interested in the subject of a labour union that might want to represent them—and might not be. The real issue here, sir, is the issue of personal consent for the disclosure of personal information. If you're going to strip people of that, you have to have a pretty good reason.

Mr. Robert Nault: I have just one point, and it's very important. When I went to work for the railway a number of years ago, I had no ability not to join that union. It was told to me that under legislation, because that was a bargaining unit, I didn't have to give my consent. I automatically became a member of that union. What is the difference between that and a closed shop and this whole issue of the ability of someone to join?

The Chairman: Mr. Phillips, before you answer that question, I'm a little concerned.... As you can hear, it's a 15-minute bell. I'm going to monitor the time, but let me suggest this. There are a number of questions here. Mr. Nault has just posed one. I'm going to let each person here pose their question very quickly, very concisely, and then, Mr. Phillips, ask you to respond en masse, just to give us a chance to make sure everybody has had their opportunity.

Mr. Johnston.

Mr. Dale Johnston: I would like to thank Mr. Phillips for a very concise and eloquent presentation, one with which I concur, by the way. I would like to ask him if he thinks this will be the basis of a court challenge, and if so, whether in his opinion it would stand up in court.

The Chairman: Mr. Anders.

Mr. Rob Anders: That was my chief question.

The Chairman: Mr. Rocheleau.

Mr. Yves Rocheleau: That's fine.

The Chairman: Mr. Dubé.

Mr. Jean Dubé: Mr. Phillips, you had concerns about Bill C-66. We read those and you communicated with the minister then. You also have concerns, I hear today, about Bill C-19. Have you communicated your concerns to the minister?

Mr. Bruce Phillips: We have certainly conveyed these concerns about this issue to the minister, yes, by way of this committee, and I believe by way of correspondence; but I stand to be corrected on that point, Mr. Dubé. My memory is elusive.

The Chairman: You're doing fine, Mr. Phillips.

Mr. Bruce Phillips: About a court challenge, I'm sorry, Mr. Johnston, I just don't have a crystal ball. If this bill is passed as currently drafted, the issue would then turn on whether the department was acting within its authority in doing this. I'm not a lawyer, but it would seem to me the answer to that would be fairly simple and straightforward, and I wouldn't have any real basis on which to challenge it. But that's a very off-the-top-of-the-head answer.

The Chairman: Mr. Phillips, could you respond to Mr. Nault's question about the automatic—

Mr. Bruce Phillips: Yes, I can, Mr. Alcock. It seems to me, sir, it answers itself.

The practice to which you referred was deemed by successive Parliaments and other regulators to be objectionable and they have removed it. However, some features of it were retained in such things as the Rand formula, so if you were an employee getting the benefits of a collective agreement but did not wish to belong to the union, you had to cough up some dues, although you didn't have to belong to the union. There at least was a recognition that some consensual element should be put back into the process. If you didn't like it at the time, you wouldn't dislike it quite so much today if you were to repeat the experience.

The Chairman: Mr. Phillips, you are a—I was going to say “an old hand”, but that's probably not the right term—an experienced presenter at these committees. I appreciate your being here. I apologize for the bell, but I think the point has been made.

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Mr. Bruce Phillips: C'est la vie. Thank you, members, and Mr. Alcock.

The Chairman: We're adjourned.