HRPD Committee Meeting

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

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

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, April 30, 1998

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[English]

The Chairman (Mr. Reg Alcock (Winnipeg South, Lib.)): Okay, let's convene. We're here at meeting 33.

Before we begin the meeting, I simply want to inform members that further to the discussion we had at the last meeting about the Italian delegation, as I understand it they will be here ready and willing to meet with us at 10.15 a.m. rather than 10.30 a.m. on Tuesday. That doesn't extend the time as much as we had hoped, but it gives us another 15 minutes for any discussion with them. Then we'll go into whatever we're going to go into at 11 a.m. on Tuesday, the normal committee business. It will be in room 209 West Block. There will be a notice coming around and all that kind of thing.

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Now we are on to clause-by-clause consideration of Bill C-19, and we are on clause 9.

(On clause 9)

The Chairman: Shall clause 9 carry?

Mr. Rob Anders (Calgary West, Ref.): Mr. Chairman, I believe I was speaking to a subamendment on clause 8.

The Chairman: Let's clarify first. Are you speaking to a subamendment on clause 8 or on clause 9? You can't be speaking to a subamendment on clause 8, because clause 8 has passed. So you must be speaking to either clause 9 or something else.

Mr. Rob Anders: Mr. Chairman, you're going to have to give me a second while I carefully look at my notes.

The Chairman: I don't have to do much of anything, frankly, other than chair the meeting.

Mr. Rob Anders: Well, I'm asking you, Mr. Chairman.

The Chairman: Mr. Johnston might have a question on clause 9.

Mr. Dale Johnston (Wetaskiwin, Ref.): Yes, Mr. Chairman. I would like to ask the officials today what problems they are trying to prevent in clause 9.

Mr. Michael McDermott (Senior Assistant Deputy Minister, Department of Human Resources Development): Mr. Johnston, I think we have put in the notes we provided for the committee a brief explanation of clause 9, the standing of the board. What we're doing is codifying what the Supreme Court has said is appropriate for administrative tribunals appearing before the courts. It guarantees that they can do so in certain circumstances but limits the purpose for which they can do it. We are putting this in the code, as I said previously, to make the code user-friendly so that people can look at it and know what it means and what they can do.

The Chairman: Thank you.

Mr. Anders.

Mr. Rob Anders: Speaking to the idea of an amendment to clause 9, where it reads:

The Board has standing to appear in proceedings referred to in subsection (1)

I move to amend that. After the word “standing” I move that the words “if requested by the court”, five words, be added as an amendment in that case, Mr. Chairman. I think that will better clarify.

As I recall, we were talking last day with regard to the whole idea of the board, in a sense, going beyond its jurisdiction and whether or not it was able to make presentations before the court. I felt a consensus around the table that if we wish the board to make applications before courts, they be free to do so in many respects, but that they not have the ability to make an application without the court's consent or that they not be able to make an application if not requested to do so by the court.

For the purpose of clarifying what I took to be the intention of Mr. McDermott and his rendition of what the Sims recommendations were on clause 9, I was suggesting that we go ahead and put in “if requested by the court” following the word “standing” because I think that would give us a better clarification.

As you can tell, at the end of that clause 9, it speaks to the board's jurisdiction policies and procedures. I think Mr. McDermott's concern was that when the board is called into question, they be called into question on things of jurisdiction policies and procedures when they make applications before the court. I think the problem we all had was whether or not the board should have standing irrespective of the court's wishes to make application to the court.

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I had a problem with the process, as did others, on whether or not it would be muddying the waters and whether or not the board should, in a sense, have the ability to muddy those waters and have its own discretion in matters of appearing before the court. It should be the will of the court in determining whether or not they want the board to appear, Mr. Chairman.

As a result, I'm going to move that the words “if requested by the court” follow the word “standing” in clause 9. That way it's more clearly understood what the intention of clause 9 should be, Mr. Chairman.

The Chairman: Okay. You members have heard the motion. Is there any discussion on the amendment?

Mr. Rob Anders: A recorded vote, please.

(Amendment negatived [See Minutes of Proceedings])

(Clause 9 agreed to on division)

(On clause 10)

Mr. Dale Johnston: Mr. Chairman, I'd like to speak to clause 10.

The Chairman: Mr. Johnston.

Mr. Dale Johnston: In clause 10 we're talking about the filing of board orders with the Federal Court. I'm confused. To me this implies that the board's orders are not enforceable unless they have gone through the Federal Court. If that's the case, why is it the case?

Mr. Michael McDermott: Your understanding is correct. The labour board orders are made and are usually complied with. In very rare cases they're not complied with. In those cases the method of enforcement is filing with the Federal Court of Canada, and the order of the board becomes then an order of the Federal Court and is enforceable as an order of the Federal Court.

In explaining that, I would suggest the reasoning is that labour boards try to stay away from enforcement and that kind of thing. They try to stay away from penal sanctions and those kinds of things, so that the atmosphere of the labour board is one of meeting together and trying to find solutions, possibly by mediation, to come to some consensus.

That is the way things are done, and this is enabling the orders to be filed not simply in the Federal Court but also in the provincial court of equal standing, so that the individual who wishes to file, or wishes to have a board order filed, can go to a court that may be more convenient.

As I've said before, we're endeavouring in these amendments to the code to make the code more user-friendly, and it might save an individual a trip of some distance to a Federal Court location. They can do it in a provincial court location, which may be closer to them.

Mr. Dale Johnston: Mr. Chairman, since this is a new clause, what was used in the past to ensure that the board's decisions, the board's rulings, were actually complied with? Was it an honour system, whereby if you agreed with the decision or if you were a nice guy, you complied with it? What was done in the past? How is this an improvement over what was in that code to begin with?

Mr. Michael McDermott: As I think we explained in the explanatory notes that were provided to all members of the committee, Mr. Johnston, the current provision is to file only in the Federal Court. As I said before, most of the people appear, the subjects of board orders are nice guys and even nice girls, and they comply without having them filed.

Where a board order is filed, it has to be in the Federal Court. That power is already there. We're merely providing people with the option of going to a provincial court.

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Mr. Dale Johnston: Of course I was referring to “guy” in the unisex, Mr. McDermott. That actually helped. Very good.

The Chairman: Mr. Bailey.

Mr. Roy Bailey (Souris—Moose Mountain, Ref.): Thank you, Mr. Chairman. I would like to inform you I'm not committee shopping, I'm here at the request of my colleagues.

The Chairman: Mr. Bailey, we're delighted to have you here, shopping or otherwise.

Mr. Roy Bailey: I find the wording of proposed subsection 10(1) rather interesting. It says “to hold office during good behaviour”. In my work in the past, good behaviour means a number of things. Very briefly, I'll hold—I have another question, and I would like to do them both at once—what that good behaviour would be.

Also, perhaps you could look at proposed subsection 10(5), Mr. McDermott. It says that the chairperson and the vice-chairpersons must have experience and expertise in industrial relations. Now, industrial relations to me means that you were either with one group or the other or you're a professional in industrial relations, meaning that you are a solver of the problems.

Could I have an answer to those questions, to see whether I'm clear on the meaning.

Mr. Michael McDermott: Maybe I should first seek the chair's guidance, because I think, Mr. Bailey, you're looking at proposed section 10, which is in an earlier clause.

Mr. Roy Bailey: Oh, I'm sorry.

Mr. Michael McDermott: We're dealing with clause 10. The particular clause you're referring to has already been passed.

I'm quite willing to answer your questions, but I seek guidance as to whether I will be out of order in doing so.

An hon. member: It's been passed?

Mr. Roy Bailey: Yes.

The Chairman: Unfortunately, Mr. McDermott, that would transgress the standing orders of the committee and the goodwill of the chairman. I suspect that you could answer that question for Mr. Bailey at one of your many luncheons.

Mr. Roy Bailey: Okay, I'm sorry.

The Chairman: Mr. Anders.

Mr. Rob Anders: Mr. Chairman, I'm sensing here on clause 10, as we had with clause 9, a muddling, as it were.

Mr. McDermott, in clause 9 there was this whole reference to courts generally, the standing of the board before courts. Now we've actually had this move into provincial superior court. As we touched on these same types of muddling problems and jurisdictional problems in clause 9, I'm wondering whether there was a particular reason why a provincial superior court was brought up specifically when some of these things were already covered with courts generally in clause 9.

Mr. Michael McDermott: I think, as I mentioned, the Federal Court and the provincial superior courts are courts relative to the same standing. The previous clause, which I can perhaps mention briefly—it has already been adopted—talks about the standing of the board before the Federal Court, where it would usually go. Occasionally there might be some activity in a provincial superior court on a writ of evocation or something of that nature, but it also would encompass proceedings before the Supreme Court of Canada.

Mr. Rob Anders: Mr. McDermott, in clause 9 there was talk of the board exceeding its jurisdiction. One of the reasons I understand clause 9 was put in was that there were concerns by some of the courts in the past, maybe in particular situations such as Greyhound, where it was felt the board had been exceeding jurisdiction. That's why you were seeking standing of the board when it came to matters of the court and being able to make presentations thereof.

Here we notice, for example, that once again you're requesting.... Does this speak to the Sims report as well on the recommendations therein?

Mr. Michael McDermott: Absolutely, yes. The recommendation that was made in this respect was universally welcomed by the parties as helping them, giving them a choice of location in the filing of a board order on the rare occasions they do.

Mr. Rob Anders: All right. Beyond, I guess, the idea that both clauses 9 and 10 were recommendations of the Sims report, we look at this area.... We looked at it in clause 9 in terms of particular circumstances where, for example, it was felt the board had possibly exceeded jurisdiction and how these whole questions came to arise. Ms. Beaupré elucidated and illuminated us with the case of Greyhound. She let us know that was one of the cases whereby it was brought to everybody's attention in indeed the Sims recommendations that there be changes, and therefore the amendments in clause 9 here, to section 22 of the act.

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There will be changes to section 23 with clause 10 of Bill C-19. I guess I'd like to find out, because we had the ability to find out with clause 9, what real problems there had been in the past and therefore these potential solutions recommended by the Sims task force. I'm wondering if we can have some examples therefore of circumstances where maybe there was a question of exceeding jurisdiction in provincial superior courts.

Mr. Michael McDermott: You're confusing two things. Clause 9, which has already been adopted, deals with the issue of standing, and clause 10 deals with the issue of filing orders to have them executed. The practical issue is one I've mentioned already. The Federal Court has limited locations around the country and the superior courts of the provinces tend to have more locations. So it is offering to people who work under the code a greater opportunity and a greater choice of locations in which to file an audit. There are two different things you're talking about.

Mr. Rob Anders: While you of course may be arguing that standing in clause 9 is different from orders executed in clause 10, I still think it speaks to the fundamental issue of the muddling of jurisdictions. We discussed previously how this clause 9, as passed here in HRD committee, would allow the board to make a presentation whether or not the court felt it needed to have a presentation from the board. The board would indeed be able to make a presentation notwithstanding that, or in spite of that, because it felt it had an interest on questions of or relating to jurisdiction, policies, and procedures, as I read it in clause 9.

In clause 10, then, really the only change is that we're dealing with a more specific area, defined as provincial superior court and with orders executed. I take it to mean that clause 10 would allow the board to make an application or, where somebody has made an application, the board would be able to file a copy of its order or decision whether or not the court—in this case a provincial superior court—has requested the board to go ahead and file a copy of an order or decision. Is that right, Mr. McDermott?

Mr. Michael McDermott: That is absolutely correct.

Mr. Rob Anders: If it is something that the Sims task force has looked to make a recommendation of, I would assume that therefore you're a supporter of this as well and that's why you're here defending it today. Can you give us some examples of where the board was wishing to file a copy of an order or a decision where it otherwise may not have been requested and now therefore is asking for the power to do so, irrespective of what the court may wish?

Mr. Michael McDermott: First, I'm here to explain the bill and to respond to your questions and to explain why the government is proposing these policy changes.

You're seeking examples. Probably the most obvious example of where an order may be required is in the event of an illegal work stoppage. Supposing, for example, there's been a work stoppage that's found to be either an illegal strike or an illegal lockout by the board and the situation persists, even though the board order is that the stoppage should come to an end and that operations should resume and people should be back at work. In that case it may be necessary and it has been necessary in the past to file an order with the court. All we're doing is increasing the number of courts in which this could be done and making it so that they're handier for the people who are involved.

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Mr. Dale Johnston: To clarify, did you say a legal or illegal?

Mr. Michael McDermott: Illegal. Unlawful.

Mr. Rob Anders: Would that be known as a wildcat strike in some circumstances, Mr. McDermott?

Mr. Michael McDermott: We're getting into a semantic debate. Wildcat strikes sometimes are not illegal. They may be strikes that are not authorized by the union leadership and constitution, so let's stick to the terms of the statute. Illegal, unlawful, contrary to the codes—those kinds of terms are much more precise than wildcat, which is a bit of a vernacular expression.

Mr. Rob Anders: All right.

You mentioned what you saw as one of the potential areas where clause 10 would be useful. Is there an example in the federal jurisdiction that you can think of in the last 10 or 15 years or so where this has come up, that you're requesting to have this power, that the government is looking to put in clause 10 and amend section 23 of the Canada Labour Code?

Mr. Michael McDermott: I don't have the specific cases or the list of board enforcements. There have been a number of occasions when board orders had to be large for the court to be enforced.

As I said, we're not changing that. We are simply adding to the options that will be available to a party that wants to have a board order filed with the courts.

Mr. Rob Anders: Mr. McDermott, in this case I think we've determined fairly well that what the board is looking to do here is have the ability to present these copies of its orders or its decisions before provincial superior courts.

Why wouldn't a provincial superior court, in matters related to this, not already be wanting or requesting a copy of an order or decision made by the board? I sense that's part of the crux of the problem here as well—the board feels it has to make a copy of its order or its decisions. Why, in these circumstances where these things are called into question, would the provincial superior court not ask for a copy of these things?

Mr. Michael McDermott: At the moment they cannot be filed in any place other than the Federal Court of Canada—that's what we're changing—so a provincial court doesn't have the opportunity to have an order filed with it at this time.

It is not the court that asks to have the order filed, it is the board itself on its own motion or on application from an affected party that would request or at least file the order with the court. The court does not request the order.

Mr. Rob Anders: Let me make sure I understand—you're saying it's impossible for a provincial court to request a copy of a board decision or an order. Is that right?

Mr. Michael McDermott: You're saying “request a copy”, but we are talking about filing an order for the purposes of execution. The provincial court would not be able to execute an order of the CLRB under the terms currently in the code.

We're saying they should have that option and that option should be there for the board to file its orders in a superior court of a province, in addition to its current option of filing the order in the Federal Court of Canada.

Mr. Rob Anders: Mr. McDermott, I'm inclined to move an amendment to this as well, now that I have a better understanding of the intention of clause 10.

I moved a similar amendment to clause 9. Some of the people in the committee may remember. After the word “standing” I added the words “if requested by the court”.

Clause 10 says:

The Board may, on application by a person or organization affected by an order or decision of the Board, file a copy of the order or decision, exclusive of the reasons for it

My amendment would be to insert the words “if requested by the court” after the word “may”.

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I think this once again speaks to this whole idea of judicial muddling, as it were, and the primacy of the courts. The board is not, as a quasi-judicial body, intruding on the ability of the courts to determine their future, their fate, their decisions, their jurisdiction, etc., of themselves.

I think that gets at some of the complications that may otherwise arise with regard to what may be the standing of the court vis-à-vis the board. I'd invite anybody to make comments with regard to the amendment as I've proposed it.

Mr. Dale Johnston: On clause 10, Mr. McDermott has said there was widespread support for such an amendment. Could you give us some examples of the people who were in support of this particular clause?

Mr. Michael McDermott: As you know, Mr. Johnston, the Sims task force report was discussed across the country in ministerial round table sessions and this was never questioned. This particular recommendation was never questioned and it's been put into an amendment. It has been supported by such people as the Canadian Association of Labour Lawyers, who appeared before this committee earlier, and I know it's also been supported by the management-side labour lawyers. These are the people who got involved in making an application to the board for a filing of the court.

I can't give you the names of the firms. I could name some firms that I'm sure will be very pleased to support this, but I don't particularly want to get into advertising legal firms in this case.

Mr. Dale Johnston: I think maybe you have clarified, but I just want to be sure. Before the Sims task force, there were no groups who came right out and said this clause is no good and it has to go. Rather than endorsing it, did they just sort of passively accept it or was it an active endorsement?

Mr. Michael McDermott: From the legal community there were expressions of appreciation for this type of move. From the companies themselves, it's the sort of thing they leave to their lawyers.

Mr. Dale Johnston: From my point of view, Mr. Chairman, this clause does make a lot of sense and it does help to expedite the process and probably cut down on the costs involved too, the distance that has to be travelled between Federal Court locations in some cases.

Mr. Rob Anders: Mr. Chairman, I'd like to direct another question to Mr. McDermott.

Mr. McDermott, in Mr. Johnston's question it was raised that the Canadian Association of Labour Lawyers were overwhelmingly in favour of this change in terms of clause 10, and you indicated that some management-side lawyers were as well. Was there anybody outside of the legal profession or was it predominantly lawyers who were in favour of adding an additional clause to the Canada Labour Code or amending the code?

Mr. Michael McDermott: It was predominantly lawyers, yes. These are the people who get involved in the actual practical matter of filing that application with the board for the subsequent filing of the order in the Federal Court. These are the people who may have encountered problems with the distance they had to travel to a suitable location of the Federal Court of Canada.

Mr. Rob Anders: I see. In terms of the Sims task force recommendations, then, and some of the submissions you may have received on this from the Canadian Association of Labour Lawyers, was it your feeling, your sense, that it was them approaching you on these things and driving this agenda and this issue? Was there a sense that there was a greater cry out there for this change from some of the unions or employee associations or from the employer associations or federally regulated businesses that may have been involved in the Canada Labour Code and its regulations here?

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Mr. Michael McDermott: I think the main enthusiasm for this type of course would come from the legal community and, as I said, the people who have to work with these legal measures. The companies and the unions themselves would leave it to their legal advisers. In passing, we could perhaps note that the three members of the Sims task force were all practising lawyers and may have encountered these kinds of issues before.

Mr. Rob Anders: I think you can understand that as a parliamentarian—or a politician, I guess, more bluntly—we often get criticisms when we go to the doorsteps in our communities and around Canada.

Mr. Dale Johnston: I don't.

Mr. Rob Anders: No? Well you haven't been door-knocking in our neighbourhood.

In terms of Ottawa and some of the solutions proposed to many problems being things that are largely driven by lawyers, I sometimes share views with my constituents, and I have to wonder whether a change that's promoted solely by lawyers or for lawyers is something that serves the broader community's interests. If you'd like to address that question, you may.

Mr. Michael McDermott: No, I'll let it pass. It really could be very helpful for an individual or a small company that wanted to have a board order filed and would probably contact a lawyer to do it but could have it done closer to home than now. It's a very helpful subamendment. It's an amendment to an existing clause and I think it will be very helpful in some circumstances. As Mr. Johnston so rightly pointed out, it could save time and money.

Mr. Rob Anders: Right. I have some others, but I'll let you jump in, Mr. Johnston.

Mr. Dale Johnston: Thank you.

Clause 10, as in other places in the bill, refers to the request of an individual or of a party, which would give the impression that any individual could initiate the action to take a decision to file an order in a superior court. We're hearing that by far it's the lawyers who do this. Aren't there cases when actually a private individual, a single person, does this? This tends to imply that it could be a delegation or it could be a single person. Are there cases when someone other than a legal practitioner does make application under this or other areas in the bill where it refers to a party or an individual?

Mr. Michael McDermott: Absolutely. The code itself would encourage that kind of approach to the board to dejudicialize, delegalize, proceedings before the board. So individuals can make applications; indeed, any person affected by a board order could make the application. It seems, however, that both on the labour union side and on the management side, the use of lawyers is quite frequent. We are doing things in the bill that might get people a little away from the legal steps. We're encouraging mediation and those kinds of things. Indeed you're right; an individual who has a reason to go to the board can do so without the help of legal advice or a legal counsel.

Mr. Dale Johnston: At the same time, though, that usually is not the case. As a matter of fact, it would be very seldom the case, wouldn't it?

Mr. Michael McDermott: I don't know that it would be very seldom, but I think at most board hearings you'll find a lawyer or two present playing an active role. That's my experience at the hearings I've had any knowledge of.

Mr. Rob Anders: Mr. McDermott, you said before...and maybe you misspoke. You said “the subamendment”, and I appreciate that. You thought it was a positive thing as well. On discussion of that subamendment that I was looking to move, I look to add the words “if requested by the court” after the words “The Board may”, and I'm wondering if you think “if asked by the court” would be a better terminology than “if requested”. Is there a semantic value there in terms of changing the way that may be presented? Do you think that will change your opinion on that?

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Mr. Michael McDermott: I don't think it would be a useful addition to put it by request. When the board has arrived at a decision and made an order, there is a clear indication that the order should be respected.

As I said earlier, in most cases people respect board orders forthwith, but in those rare cases when they do not, there should be a means of enforcing them. It should not be at the discretion of the courts to accept those orders. Obviously if there's something wrong with the order, the court might draw attention to some lack of correct form of those kinds of things, but it should not be a matter of the court being able to refuse an order. Then how would you get it enforced?

Mr. Rob Anders: It's fascinating how you bring up this issue of the court drawing attention to the board's possibly exceeding jurisdiction.

Mr. Michael McDermott: No, that's not what I said, Mr. Anders. I said some incorrect matter of form or something. It would be very rare, because the board is well equipped with some very fine legal counsel, and I'm sure that in 99.9% of the cases they would have due form.

Mr. Rob Anders: Fair enough, but the more checks and balances on these things the better, as I'm sure you find is the case, Mr. McDermott.

I'm wondering if I might move onto a separate area here, Madam Chairman.

The Vice-Chair (Ms. Bonnie Brown (Oakville, Lib.)): We have an amendment on the floor. The words are “if requested by the court”. You will please confine your remarks to that exact idea: “if requested by the court”.

Mr. Rob Anders: Indeed.

The Vice-Chair (Ms. Bonnie Brown): If you wish to discuss other parts of clause 10, we will do that after you finish discussing the amendment and we have voted on it.

Mr. Rob Anders: Fair point, Madam Chairman. Actually, this applies both to the subamendment and to the amendment in main, so thank you for reminding me of that.

Mr. McDermott, when we phrase the subamendment as “if requested by the court”, there's a later word that says “person or organization affected by an order or decision of the Board”. I'm wondering what your rendering is then. If we change “if requested by the court”, how is the word “affected” impacted by this subamendment, where we say “if requested by the court”?

My understanding would be that if we leave the subamendment with the word “affected” as it stands, this could potentially mean the union involved. It could of course be whoever is involved in terms of an employer or an employer's association.

Also, there are a lot of other Canadians involved. If it's mail, for example, all those people in this country who have received mail are affected. We certainly know about that with the Canadian Union of Postal Workers' strike that happened just previous to Christmas. Grain is affected by any rail stoppages. Any problems in terms of air transfer.... Federal Express is a company that comes to mind, and there are numerous others. The Canadian Courier Association has probably talked to a few members here, certainly in my time, and I've only been here a year. I'm wondering in terms specifically to this subamendment.

The Vice-Chair (Ms. Bonnie Brown): No, it's an amendment. It's not a subamendment.

Mr. Rob Anders: Actually, Madam Chairman, I believe clause 10 here would be termed an amendment and I'm moving a subamendment. Madam Chairman, perhaps you'd like to clarify that for me.

The Vice-Chair (Ms. Bonnie Brown): Well, we're dealing with the words on the paper and you are adding words to the words on the paper. So you are adding an amendment to the words on the paper.

Mr. Rob Anders: Fair enough.

The Vice-Chair (Ms. Bonnie Brown): I understand what you're saying, where clause 10 is amended by adding this. That whole clause 10 is an amendment, you're right, but it's not an amendment for the purposes of this meeting. It is the piece of paper we're dealing with. So you are adding an amendment to what we're dealing with. You can refer to it as an amendment and I would request that you restrict your remarks to the thought you put forward, “if requested by the court”.

Mr. Rob Anders: I am trying as best I can, Madam Chairman, with exception of interruptions.

The Vice-Chair (Ms. Bonnie Brown): Well, I'm having trouble following the logic of moving to later parts of the clause.

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Mr. Rob Anders: Madam Chairman, I apologize. Maybe what I should do is take a step back and say that once again what I'm speaking to, for your clarification and for those others who may be confused, is an amendment to go ahead and add the words “if requested by the court” following the words “The Board may” with regard to clause 10 in Bill C-19.

The Vice-Chair (Ms. Bonnie Brown): You've been very clear about what it is you're trying to do. What I'm having trouble with is following your questions on later parts of the clause, which in my view have nothing to do with your amendment, “if requested by the court”.

Mr. Rob Anders: Let me try to explain that again, Madam Chairman.

The Vice-Chair (Ms. Bonnie Brown): You can go another route; maybe it will seem to have some logic.

Mr. Rob Anders: I apologize. I tried to be less confusing, but I'm going to try once again for you, Madam Chairman.

I guess what I'm asking here is in terms of adding the words “if requested by the court” after the words “The Board may” as an amendment to clause 10 here. How is that going to impact all these “affected” parties? What I'm getting at here is how will that change the nature of the word “affected”? The court in a sense is affected by this whole thing. If we have “if requested by the court” changing the nature of whether or not the board has an official capacity or authorization to go ahead and file an order or a decision, how is that going to be impacting whether the court is or is not affected or the nature and definition of the word “affected” in this particular case?

Mr. Michael McDermott: Firstly, Mr. Anders, the cases you cited involved, I think in every case, a lawful or legal work stoppage. We would not get the kind of example I referred to earlier of unlawful or illegal work stoppage being involved. Leaving that aside, to put in the idea of a request would completely negate the purpose of the clause because a court is required to accept the filing of an order, not to have discretion in receiving it.

As I indicated, if it were discretion, you may arrive at a case where a board order cannot be executed, and that should not be the case. There should be finality once a board order is handed down. As I also mentioned, in most cases a board order is respected immediately without further ado, and only in rare cases would we need to go to the courts. I suppose we can go into basic legal principles, but courts as a rule do not initiate these kinds of things. You apply to a court to have something done. You don't have the court initiating these kinds of actions.

In this case the party would apply to the Canada Labour Relations Board and the Canada Labour Relations Board is required at that point to file the order with the Federal Court under the current circumstances. Now we are simply adding to that the option of going to a provincial court, which may prove to be much more convenient for the people affected.

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

Are you clear on that now, Mr. Anders?

Mr. Rob Anders: A little more, Madam Chairman, but I'm open to having other people comment on the amendment as it stands if they so wish.

The Vice-Chair (Ms. Bonnie Brown): Anyone who wishes to comment should comment on the amendment, “if requested by the court”.

Mr. Dale Johnston: Madam Chair, I would like to comment on this amendment put forth by my colleague, but oddly enough it's not in support of the amendment. I believe the onus is the other way, actually.

What I see here is that a group or an organization or an individual may make application to the board to bring their grievance or their points before the courts. With all due respect to my colleague, I see what he's doing here as taking the engine out of the front and putting it in the back. I guess that works all right on Volkswagens, or it used to, but I understand even Volkswagen now has gone to putting the engines in the front.

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Really, I'm pleased that my colleague has moved this amendment, because it certainly has helped to clarify this entire process for me, unless of course Mr. McDermott doesn't agree that I have the process straight.

Mr. Michael McDermott: I'm very pleased to agree that you do, sir.

The Vice-Chair (Ms. Bonnie Brown): Seeing that there is conflict between two members of the same party, and guessing that there isn't much support for this amendment around the table, I'm going to call the question. Those in favour of the amendment?

Mr. Rob Anders: Madam Chairman, with due respect, now that we have some earnest discussion on this, I'd like to ask for some clarification of Mr. McDermott for myself. My colleague had the opportunity to voice his concerns and I respect that of anybody on the committee.

The Vice-Chair (Ms. Bonnie Brown): You want to stand alone like Horatio at the bridge, is that it?

Mr. Rob Anders: Well, Madam Chairman, I stand for the people. I don't stand alone; I'm asking on their behalf.

The Vice-Chair (Ms. Bonnie Brown): I think one has to have some degree of humility to try to work in a committee, and the fact of the matter is, Mr. Anders, I predict that you will stand alone unless Mr. Bailey decides to boost your ego by voting with you. So that's why I'd like to call the question.

Mr. Rob Anders: Well, if I'm permitted one question—

The Vice-Chair (Ms. Bonnie Brown): One question and make it quick.

Mr. Rob Anders: Thank you, Madam Chairman.

Mr. McDermott, how do you assess the nature of this “engine in the front and the back” feeling? This is very important.

The Vice-Chair (Ms. Bonnie Brown): He agrees with Mr. Johnston's interpretation and disagrees with yours.

Mr. Rob Anders: I understand that he agrees with Mr. Johnston, and I appreciate and respect that. What I'm wondering is how he sees that analogy fitting. Mr. Johnston made a very simple analogy for it in terms of an engine in a Volkswagen, and I appreciate that he was able to boil that down. That's good. What I'm asking for is what Mr. McDermott would define as the car and what he would define as the engine in that analogy, if he agrees with it. That's what I'm asking for, Madam Chairman.

The Vice-Chair (Ms. Bonnie Brown): I don't know if you can follow the logic or lack thereof.

Mr. Michael McDermott: I wasn't following the analogy. I did agree with the analysis, but the analogy lost me a little bit. I drive a car with the engine in the front, which probably confuses me a little bit, I don't know.

Some hon. members: Hear, hear!

The Vice-Chair (Ms. Bonnie Brown): I'll call the amendment.

Mr. Rob Anders: Can I have a recorded vote, please?

(Amendment negatived [See Minutes of Proceedings])

The Vice-Chair (Ms. Bonnie Brown): I think we've had a fulsome discussion of clause 10. I'm going to call the question on clause 10.

Mr. Rob Anders: Madam Chairman, I'm sorry. We only discussed a little bit of clause 10 previous to my moving the amendment. You cut me off, Madam Chairman. I had questions with regard to who this affected and I restricted my comments in terms of who it affected to just the parameters of my subamendment.

The Vice-Chair (Ms. Bonnie Brown): If you have questions on the rest of clause 10, please go ahead.

Mr. Rob Anders: Thank you very much, Madam Chairman. I appreciate that.

Mr. McDermott, I had questions before with regard to who is defined as “affected”. In clause 10, as I read it here, it says:

The Board may, on application by a person or organization affected by an order or decision of the Board

I guess what I'm seeking here is clarification. In my humble opinion, I think we have more than 700,000 employees, as far as I understand, who are affected with regard to the Canada Labour Code. That's just employees. That doesn't speak to the employers. That doesn't speak to all the other parties that are downstream from this, in a sense. All Canadians are affected, and the courts are, obviously, in terms of this being something that specifically addresses provincial superior courts. When I was speaking to the effect of my amendment, Madam Chair, that's what I was inquiring about.

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But now I'm inquiring about the broader aspect of “affected”, and I'm wondering, when you say “affected”, is this taking into account all the people downstream, the Federal Expresses of the world, the courier associations of the world, the grain handlers of the world and the people who receive and send letters who are affected by whatever this legislation will have to do with CUPW or any other unions that fall under this jurisdiction? I want to find out more about who's affected by this in terms of this strict technical definition for this clause.

Mr. Michael McDermott: The board would determine who is affected. By the usual rule of thumb, you would see a number of parties appearing before the board. They would be listed in the application that is made. They would be listed in the reasons for the decision of the board and so on. Typically, in the matter of an illegal work stoppage, for example, if it's an illegal lockout, you would get a union applying and you would have the employer respondent. In the case of a legal strike, it would be the reverse situation. And there may be interveners.

Generally speaking, it would be somebody affected. You're suggesting that somebody could walk off the street and ask the board to file an application. I'm sure the board would certainly give an opportunity to that person to explain why that individual should be in a position to make that application, and if the board accepted that, the board would have to respond to it.

Mr. Rob Anders: All right. I believe Mr. Johnston has some questions.

Mr. Dale Johnston: Mr. McDermott, when I spoke to this in my last opportunity to speak, I talked about grievances, but when you really look closely at the clause, one comes to the conclusion that any person or organization affected by an order or a decision of the board may file in a court, whether it's a provincial court or superior court. That all is very clear in my mind, but what precipitates this? Is it just the fact that one of the parties didn't like the decision, that the decision was weighted too heavily, in that party's opinion, one way or the other? Or is it strictly to do with the legalities and jurisdiction of the case?

Mr. Michael McDermott: It is strictly to deal with the enforcement of the order or matters in the decision that need to be respected. If, for example, in the case of illegal work stoppages, they've given that and the order of the board is that it shall cease forthwith, and it is not respected, that is the purpose of filing it into the court, to get it enforced as an order of the court. The board does not have enforcement powers of its own. The courts do. And you could see an action of the court for non-respect of the board order.

Mr. Dale Johnston: So that is what would precipitate an application by a person or an organization.

Mr. Michael McDermott: Yes.

Mr. Dale Johnston: It would be that an order or judgment by the board was not being carried out, and so any person could then make an application to the court for enforcement.

Mr. Michael McDermott: Yes, any affected person could do so.

Mr. Rob Anders: Mr. McDermott, reading further in the clause, I notice that it says:

The Board may, on application by a person or organization affected by an order or decision of the Board, file a copy of the order or decision, exclusive of the reasons for it,

What I'm wondering, Mr. McDermott, is why you are looking for something that's exclusive of the reasons for it.

In clause 9, for example, which we previously discussed, the reasons for it were clearly laid out, I thought, in terms of the jurisdiction, policies and procedures of the board. While I recognize that clause 9 deals with the standing of the board and clause 10 deals with the orders executed, I'm wondering why, in the use of the term “exclusive” in clause 10, we don't have a definition.

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You preferred to restrict, in a sense, the definition in clause 9 on jurisdiction, policies and procedures, but in clause 10, we notice here, the reason that words are used in this capacity—that is, “exclusive of the reasons for it”—is that they do have certain gravity and meaning to them. Certainly there are reasons why the board would wish to file a copy of the order or a decision. I'm wondering why the word “exclusive” was used. Can you come up with any examples of why it was used rather than something that's a little more definitive?

Mr. Michael McDermott: “Exclusive” is quite definitive, I think, but one reason for this could well be that an order is made, and it is a brief command that something be done, that something be respected, and the reasons may well follow at some time afterwards. There may be quite extensive written reasons as to why the order was made.

The board has reached the conclusion that there has been a contravention of the code, for example, and has immediately ordered that this contravention cease and desist. It does that. The reasons for the decision may well follow at some later date. The reasons for the decision might be useful in an appeal matter or a judicial review matter, but in terms of the respect of the order, they are not relevant in the same way.

Mr. Rob Anders: I'll summarize what you said. You said that the reasons may be stipulated at a later date. That's kind of subjective.

I'm wondering why the reasons wouldn't be stipulated before rather than just after, and not even definitely after but possibly after.

Mr. Michael McDermott: “Reasons” for the decision refers to the accompanying documentation, or the documentation that either at the time or later supports the board order. Sometimes this will deal with the circumstances of the case set up, who the parties are, or the events that led to the board order.

You'll see this in the courts as well. They will make the order now and come down with the reasons at a later stage. It is not an uncommon situation.

The idea is that if there is a clear contravention of a provision of the code, it should be rectified immediately and not wait until the board writes out its five-page reasons. In fact, in some cases I've seen reasons for decision go into almost 100 pages.

You'll find that this is not uncommon in other tribunals. The idea is getting the effect of the justice implemented immediately.

Mr. Rob Anders: Mr. McDermott, certainly if you have a sense that an injustice has been done and needs to be rectified, and that's why you're seeking to have a provincial superior court enforce a particular order or decision of the board, then I think it's fairly clear that there are reasons, and that there aren't reasons exclusive of anything. There are fairly tangible reasons, I imagine, that the board would want to file a copy of its order or its decision. It should not arbitrarily be left to possibly be done afterwards.

I mean, the reason you file these types of things is that you clearly know. At least I would certainly hope you know, because I wouldn't like to think of the government using capricious or arbitrary measures in these circumstances. You tangibly know the reasons for filing a copy of the order or decision. Is that not the case?

Mr. Michael McDermott: The reasoning belongs to the board. Its order is the issue here. The respect of its order is the issue. The order is filed to be respected. That is the concern of the court, and that's the only concern of the court. The reasons do not assist.

Mr. Rob Anders: My sense of this is that there are fairly tangible reasons that the board would make a filing of a copy of an order or a decision. In that respect, I'm going to move an amendment.

Clause 10 right now reads:

The Board may, on application by a person or organization affected by an order or decision of the Board, file a copy of the order or decision, exclusive of the reasons for it, in the superior court of a province.

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Where it says “exclusive of the reasons for it” my reading of the situation is that it's not a matter of the reasons being exclusive. The reasons are fairly well determined, and so they should be for the board to intervene and file a copy of an order or a decision before a provincial superior court, to affect that and in a sense command the court. Therefore, I think the words “exclusive of the reasons for it” should be changed to read “only in cases where reason is stipulated beforehand”. I'm willing to discuss whether or not that could also be “only in cases where reason is stipulated to the court”.

I'm willing to add an actual mention of the provincial superior court there and that it should be stipulated beforehand, Mr. McDermott. That amendment forces the board, in a sense, to define what the reasons are for the court and still accomplishes the main engine of the argument here to go ahead and have the court execute the command of the board in terms of its filing a copy of the order or decision.

Mr. Michael McDermott: As I said before, the concern of the court that receives that order is the order, not the reasons. It's as simple as that. It's already in the code with respect to the Federal Court. The same language is used, “exclusive of the reasons”, and it hasn't caused problems in the past.

Mr. Dale Johnston: If I may speak to the amendment, proposed section 23.1 reads at the moment that an order may be brought before the courts without reasons for the board order. My colleague is suggesting they only be brought to the court in cases where the reason is stipulated beforehand. So only in cases where reasons for the decision are arrived at by the board would cases be brought to the court. In other words, the reason would arrive at the court accompanied by the rationale or reasoning for arriving at that decision. Do you see any problems? Is this an improvement to the bill, or a clarification?

Mr. Michael McDermott: No, it's not an improvement; it would cause delay. As I said, the role of the court in this case is enforcement. It is not to hear a review or rehear the evidence that was put before the board. The board is the common authority for that proceeding, and it's just enforcement of law that is the issue here.

Mr. Rob Anders: Mr. McDermott, you seem to be overly sensitive to whether or not the board will be going through a review of its decision before the courts, and that's not at all the intention of this amendment. I'm going to ask this again in a different way.

Doesn't the board have a moral obligation, when it seeks to file a copy of the order or decision, to disclose the reasons and have tangible reasons for why it's filing that before the provincial superior court? It doesn't just act with caprice or arbitrariness. It has tangible reasons for why it does what it does, does it not, Mr. McDermott?

Mr. Michael McDermott: I'm not sensitive to the kind of issue you mention; I'm simply saying what's in the code. The board has no discretion to file when an application is made under the current provision of the code. The only discretion we're giving it is the location of the court, either federal or provincial. The board does not have to file the reasons. The court is not dealing with the reasons, it's dealing with the implementation of the order.

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Mr. Rob Anders: I'm not asking for the court to review the decision of the board. I'm not asking for it to pass judgment on the reasons here. But I think it's important for the whole orderliness of government—and that government is not capricious or arbitrary in terms of the use or potential abuse of its power—that these tangible reasons, whether or not they're questioned by the court, be provided to the court nonetheless.

What you're asking for in proposed section 23.1 is exclusive of reasons. When the board is looking to file a copy of an order or decision, it isn't exclusive of reasons. It actually has reasons for filing it. What I'm getting at here is not that the court question what these reasons are or whether it has the jurisdiction to go through a full review of what the board's decision is, how it came to it and whether it's right or wrong, but nonetheless to prevent arbitrary and capricious decisions of the board and have a check and balance on this system.

Surely the board has reasons, and it should have reasons because there's no reason why a board should come before a provincial superior court to file a copy of an order or decision unless it has reasons, so we're saying here, only in cases where reason is stipulated beforehand.

Mr. Michael McDermott: Do you want me to comment?

Mr. Rob Anders: I'd love you to comment.

Mr. Michael McDermott: The single reason the board is filing the order is because it's been asked to do so and it does not have any discretion not to do so. You implement an order or a decision; you do not implement reasons. The sole purpose of going to the court is to have the order or decision implemented.

The Vice-Chair (Ms. Bonnie Brown): The staff's position is clear. I think it's time to call the question on the amendment.

Mr. Rob Anders: Madam Chairman, I would like to at least have a chance to speak to what you've just said. This calls it into question here, because Mr. McDermott has just said it's a question of whether or not the court was asked to do so. This is something we spoke to on clause 9. I tried to address it as well with my amendment previously on clause 10, in terms of whether or not the board is intruding on the jurisdiction of either the court in clause 9 or the provincial superior court in clause 10.

Mr. McDermott said the board doesn't file a copy of an order or decision unless it's asked to do so. That's exactly what we're debating with my amendment in clause 9. It's exactly what we were debating with my amendment in clause 10.

Mr. McDermott has gone ahead and, in a sense, contradicted what he previously stated the intent of clause 10 was. He said the board only has the ability to file if it is asked to do so. We were speaking to the question of whether or not the board has exclusive right to do so, whether it's asked to or not. Mr. McDermott was saying that—

The Vice-Chair (Ms. Bonnie Brown): The amendment we're debating right now has nothing to do with who's filing or why. It has to do with whether the copy should have to include reasons or not. This is getting off the subject of your own amendment.

Mr. Rob Anders: Okay, I'm going to let Mr. Johnston comment on this.

The Vice-Chair (Ms. Bonnie Brown): Let me just clarify. My understanding is that you think if something is being filed with the court it should indeed include the reasons.

Mr. Rob Anders: Yes.

The Vice-Chair (Ms. Bonnie Brown): That's the essential meaning of your amendment.

Mr. Rob Anders: Yes.

The Vice-Chair (Ms. Bonnie Brown): With that in mind, I don't know why you didn't just move an amendment to erase the phrase “exclusive of the reasons for it.” If that's what you were trying to achieve, why did you add all these extra words?

Mr. Rob Anders: Madam Chairman, what it speaks to at an even deeper level is the ability of the government to abuse its decisions with caprice or arbitrariness, through its exercise of this arm of the board. That's what this whole thing is speaking to.

Mr. McDermott adamantly said before that the board did not have the power to make presentations on its own and that it was seeking that through both clause 9 and clause 10. These were the sections it was amending, section 23 and section 22, so it could make an application independent of whether or not those courts respectively wanted it to. Now we're being told it's only if it's asked to do so.

Mr. Dale Johnston: That's what I understood.

Mr. Rob Anders: This gets right at the fundamental question of whether or not this is being exercised in a capricious or arbitrary way.

The Vice-Chair (Ms. Bonnie Brown): Let us see if the committee agrees with your interpretation of that. I'd like to call the question on your amendment.

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Mr. Dale Johnston: Madam Chairman, I'd like clarification on something Mr. McDermott said, because I really thought I had clause 10 straight in my mind and then Mr. McDermott said, “only when it is requested by the court”.

Mr. Michael McDermott: That's not what I said.

Mr. Dale Johnston: No?

Mr. Michael McDermott: I'm simply reading the clause, which says:

The Board shall, on the request

—this is the existing clause—

in writing of any person or organization affected by any order or decision of the Board, file

The “may” aspect is in this second option, where it can file it, not in the Federal Court but the provincial court. So it's not the court that requests the board, it's a person who's been before the board and is affected by an application.

Mr. Dale Johnston: Oh, good. It turns out that I understood it after all.

The Vice-Chair (Ms. Bonnie Brown): So let us call the question on Mr. Anders' amendment. Shall the amendment carry?

Mr. Rob Anders: I'm requesting a recorded vote, Madam Chairman.

The Vice-Chair (Ms. Bonnie Brown): Okay. We'll have a recorded vote on Mr. Anders' amendment.

Mr. Rob Anders: Madam Chairman, I'm not the lone voice on this one, and I know that.

(Amendment negatived [See Minutes of Proceedings])

The Vice-Chair (Ms. Bonnie Brown): I think we've sliced this clause 10 up six ways of centre. I'm now going to call the question on clause 10.

Mr. Rob Anders: Could we have a recorded vote?

The Vice-Chair (Ms. Bonnie Brown): A recorded vote on clause 10.

(Clause 10 agreed to [See Minutes of Proceedings])

(On clause 11)

Mr. Dale Johnston: Madam Chairman, I have some concerns with clause 11, which deals with the application for certification during a strike or a lockout.

The current code requires board approval for certification during the first six months of a strike or walkout. Is that correct, Mr. McDermott?

Mr. Michael McDermott: Sorry. Could you say that again, Mr. Johnston?

Mr. Dale Johnston: With respect to the current code, isn't it in the code already that board approval for certification is required during the first six months of a strike or a lockout?

Mr. Michael McDermott: Yes, but not for certification, for application for certification.

Mr. Dale Johnston: For an application.

So proposed subsection 24(3) says:

An application for certification under subsection (2) in respect of a unit must not, except with the consent of the Board, be made during a strike or lockout that is not prohibited by this Part and that involves employees in the unit.

Could you clarify that for me?

Mr. Michael McDermott: We're simply removing the six-month time limit in the current code, Mr. Johnston.

Mr. Dale Johnston: So they may apply for certification at any time?

Mr. Michael McDermott: They may make an application for certification, but it will require the consent of the board while a strike or lockout is continuing.

Mr. Dale Johnston: What about decertification? May they apply for decertification under the same set of rules and circumstances?

Mr. Michael McDermott: There's a mirror clause to this a little further along which deals with decertification. It's a little farther along. I can get the number for you.

Mr. Dale Johnston: Would that be—

Mr. Michael McDermott: It's clause 20.

Mr. Dale Johnston: In the code or in the amendment?

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Mr. Michael McDermott: No, that's in the amendments. There is something in the current code that's very similar for certification applications and decertification applications.

The Vice-Chair (Ms. Bonnie Brown): We don't want to get sidetracked by a clause we're going to do that deals with a subject that has been asked about. Let's stick to what's in the words of clause 11, and we'll do the clause on decertification when we get to it.

Is there anything further, Mr. Johnston?

Mr. Dale Johnston: Madam Chair, I'm very interested in the decertification of it—

The Vice-Chair (Ms. Bonnie Brown): I assure you that you'll have time to ask questions when we get there.

Mr. Rob Anders: Madam Chair, I have questions with regard to the certification, not the decertification.

The Vice-Chair (Ms. Bonnie Brown): Go ahead.

Mr. Rob Anders: Mr. McDermott, my understanding of this is that it allows for parties to go ahead and request the permission, I guess, or view, if you will, of the board in terms of certification during these special circumstances during strikes or lockouts. My understanding is that right now the board really doesn't have any discretion on this. There is no ability for a certification during a strike or a lockout. Is that right?

Mr. Michael McDermott: No, that's incorrect. The current situation is that the board's consent is required during the first six months of a strike or lockout. After that, an application can be made without the board's initial consent.

Mr. Rob Anders: So how does this differ, then?

Mr. Michael McDermott: We're taking away the six-month time limit and the board's consent will be required in every case as long as the strike or lockout continues.

Mr. Rob Anders: So in situations where the strike or lockout goes longer than six months, then the board still has the ability to decide that?

Mr. Michael McDermott: The board's consent will still be required for the locking-out application.

Mr. Rob Anders: Okay, I guess what I'm seeking clarification on, then, is this: in what circumstances do you feel that this six months, in a sense, has been abused? I take it that's why you're making this change. Is that right?

Mr. Michael McDermott: The change is in there on the recommendation of the task force, which found that there have been circumstances in the past when there's some feeling that the six months is waited out in order to see if there's going to be application for certification by a rival trade union. So the chances of a settlement during the first six months are made less not by the difficulty necessarily of resolving the issues in dispute, but by the chance that the union may be replaced by another one.

Mr. Rob Anders: So I take it that this not only affects the unions, but it also speaks to both the unions and the corporations involved so that neither of them try to wait out this six-month period. Is that right?

Mr. Michael McDermott: That's correct.

Mr. Dale Johnston: Mr. McDermott, I don't actually recall during the hearings whether anybody spoke in favour of or against this particular clause. I would have to assume that this goes back to the Sims report. If so, could you refer me to that section in Sims?

Mr. Michael McDermott: I don't recall anybody objecting to this. I can look at the Sims report and give you a direct reference. Ms. Robinson is looking at that. Maybe you can give us a second. We're just getting the actual page for you. Mr. Johnston, it's on page 135 of the Sims report. There's a section dealing with certification and decertification during a strike or lockout, and two recommendations are made there.

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Mr. Dale Johnston: Thank you. I'll have a look at that.

In the meantime, with regard to the parts that are underlined here in clause 11, do those represent the changes in the code—“must” and “and that involves”? I wonder why those areas of the bill are underlined here. Is there any particular reason for that?

Mr. Michael McDermott: They are the changes. In the bill you'll see the existing clause on the right-hand page and the proposed change on the left-hand page. The words underlined have been changed. There are some other words, I think, that would be removed from the current section.

Mr. Dale Johnston: In the bill I have, Mr. McDermott, I have English on the left-hand side and en français on the other.

Mr. Michael McDermott: It's on the other page, page 14a.

Mr. Dale Johnston: Okay.

What is the reason for adding the words “and that involves”? Wouldn't you think that any strike or lockout would involve employees? Why would we include such obvious words?

I'm talking about clause 11, proposed subsection 24(3). Lines 10 and 11 read:

during a strike or lockout that is not prohibited by this Part and that involves employees in the unit.

It seems so elementary that any strike or lockout would definitely involve employees of the unit.

Mr. Michael McDermott: You may have a situation in which a company has more than one bargaining unit, one of which may be on strike and the other not. This is an application for certification during a strike or lockout that involves the employees in that unit.

You could have, for example, a bargaining unit that is in the open period and that's not on strike, and there may be an application for certification launched then.

So it's a clarification. It's a change in the existing wording, as recommended by the drafters.

Mr. Dale Johnston: So it's a legal matter, I guess. Is that correct?

Mr. Michael McDermott: Yes. It specifies which employees would be concerned by an application, which ones would be involved in any application that would require this consent of the board. There may be other groups in the company that the consent of the board would not be required for.

Mr. Dale Johnston: Oh, I see. There may be more than one bargaining unit.

Mr. Michael McDermott: Yes, and the other one may not be on strike, for example.

Mr. Dale Johnston: Okay, because when I look at page 135, Mr. McDermott, I see in the recommendations that really all they're saying is that the reference to six months in this section should be removed. It really doesn't say anything about adding those extra words.

Mr. Michael McDermott: I think one of the situations was that the existing French was clearer than the existing English. You now see a closer parallel between the two.

Mr. Dale Johnston: I see—I think.

Mr. Rob Anders: Mr. McDermott, with reference to “and that involves”, you say it's there for the purpose of delineating, in cases of multiple bargaining units, between the particular bargaining unit that may be in want, by a union, of a certification.... Later, I guess, we'll discuss the decertification that may be launched in particular circumstances. But the purpose of this is to delineate between particular bargaining units where there are cases of multiple bargaining units in a given site or in a given work situation, I guess.

I'm wondering whether or not that wording has any implications for replacement workers in terms of whether they fall within or without the bargaining unit. Does it have any implications for replacement workers?

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Mr. Michael McDermott: This clause doesn't have any direct implications for replacement workers. You'll find something further along where you can discuss that, Mr. Anders.

Mr. Rob Anders: All right. I'm looking at the phrase “and that involves employees in the unit”. So it's because of the words “in the unit” that it doesn't involve replacement workers. Is that right, Mr. McDermott?

Mr. Michael McDermott: Absolutely.

Mr. Rob Anders: All right.

Mr. Dale Johnston: Now, I know that Madam Chairman was not wanting us to discuss the parallel clause—which Mr. McDermott has said is clause 20—at this point, but do I have the assurances of the department that it would be no more difficult to decertify a union under these circumstances than it would be to certify one?

Mr. Michael McDermott: Yes. It would be no more difficult.

Mr. Dale Johnston: As a matter of fact, it would be exactly parallel. Is that the understanding?

Mr. Michael McDermott: I'm sorry. Would you say that again, please, Mr. Johnston?

Mr. Dale Johnston: Am I understanding you to say, then, that the process for the application to certify and the process for the application to decertify are exactly parallel in this bill?

Mr. Michael McDermott: Yes. With respect to an application during a strike or lockout, we are putting in mirror clauses, parallel clauses.

Mr. Dale Johnston: Very good.

Mr. Rob Anders: Mr. McDermott, I guess part of my concern here is the phrase “except with the consent of the Board”. In what circumstances would the board give consent to application for certification during a strike or a lockout?

Mr. Michael McDermott: The board would look at the circumstances of the dispute and would decide whether it was appropriate on the face of all the facts that are put before it. I can't tell you the facts they would have in front of them, but that's what it would be. The board would make a decision. The board is empowered to say that there will be no change while a strike or lockout is continuing.

Mr. Rob Anders: I understand the cases. I think I can understand that because of the volatile nature of this, the board would disallow an application during a strike or a lockout. I have difficulty understanding why they wouldn't rule it out, and what I'm asking for is, therefore, I guess, a stipulation of why this isn't an absolute ruling out of an application during a lockout or a strike. In what circumstances would the board give consent to an application during those types of circumstances?

Mr. Michael McDermott: There may be cases where the existing bargaining agent has walked away from the case—that's one example—and there may be a group that wants to take over the bargaining rights.

Mr. Dale Johnston: Mr. McDermott, when you say “bargaining agent”, could it be either the employer or the employee?

Mr. Michael McDermott: No, sir. A bargaining agent is the certified union.

Mr. Dale Johnston: It's the certified union.

Mr. Michael McDermott: Yes.

Mr. Dale Johnston: Okay.

So just for clarification, perhaps you could walk us through a scenario under which the existing code would apply and then take us briefly through what improvements the new clause would bring to the process.

Mr. Michael McDermott: Currently the board is required to give consent to an application during the first six months. This would remove that time limit and require the board's consent at any time. It recognizes that a strike or lockout in progress is a period of instability and it would ensure that any application made is made for appropriate reasons.

There have been occasions in the past when employers may have waited the six months out and therefore did not try to settle a dispute during that time.

Mr. Dale Johnston: Are those the reasons for having the existing code the way it is? What were the reasons for the changes in the code, the changes that we see before us here today in clause 11?

• 1240

Mr. Michael McDermott: I think at some point there was always a feeling that six months would be the longest that any strike or lockout would go. Unfortunately, that has not been the case or experience. In federal jurisdictions we have had extremely lengthy disputes. The six months is (a) not enough in some cases and (b) seems to be a target in other cases; let's wait this out six months and see if the union disappears.

Mr. Rob Anders: Mr. McDermott, you mentioned instability, and I think in cases of strikes and lockouts, especially when you deal with industries that are as broadly encompassing as those that are federally regulated—because they have more than just a provincial nature, they affect the whole scope of the country and we think we touched on this previously in terms of air and rail and mail and all of the rest of these huge things without which the nation, frankly, can't function—in many circumstances there's shutdown.

In what circumstances, during these cases of strikes or lockouts, could a certification possibly make a situation more stable? You've recognized these situations are inherently unstable and I'm failing to see in what circumstances allowing a certification to go ahead during a lockout or a strike would be beneficial for the stability of the situation. Can you fill me in on that?

Mr. Michael McDermott: As I mentioned, there have been some cases where a trade union may have decided it no longer wants to represent the employees concerned and the employees do want to be represented, so an application is made and the board would give consent.

Mr. Rob Anders: Well, if the trade unions made a decision not to represent the employees, the employees are free to enter into their own independent contract with the employer, are they not, Mr. McDermott?

Mr. Michael McDermott: They may not wish to take that course. They may wish to remain collectively represented, and in order to do so they would have to get recognized and would have to be certified to do so.

Mr. Rob Anders: Let me get this right. You have a union, a bargaining agent, that has decided not to represent the employees, you have the employees, you have the employer, you have the board—excuse me if this sounds like it's getting complex—and rather than allowing the employees to go ahead and fill out or sign their own independent contract when the bargaining agent has, in a sense, tossed up its hands and no longer wants to sit at the table and doesn't want to represent the employees it was supposed to represent, how is that stable in that situation, to go ahead and try to bring in another union? How is that inherently—

Mr. Michael McDermott: It would have to be determined by the wishes of the employees themselves. If they don't wish to be independent contractors, as you put it—indeed, they wouldn't be independent contractors because they would be employees still—and if they wish to be collectively represented, they have the opportunity to do so. It may also be that the existing union wants to stay but the employees are dissatisfied with the way it is representing them and seeks to replace it for bona fide reasons.

Mr. Dale Johnston: Mr. McDermott, I would like to ask in what instances in the past you can think of where the bargaining agent has more or less abandoned the people in a strike or lockout situation and how it was resolved and how clause 11 will be a large improvement over that.

Mr. Michael McDermott: The case I'm more familiar with is the case where there was an effort on the part of the employees to replace the existing union, rather than where the union had walked away. In the trucking industry I have known where bargaining rights have been abandoned, but I can't recall if it was during a strike or lockout, or simply in the course of the agreement, or in the course of negotiations to renew an agreement. But there have been cases where a strike was ongoing and there's been an attempt to replace the existing union—unsuccessfully, I might say.

Mr. Dale Johnston: Isn't this a rather unusual situation, where the employees would either be on strike or locked out and decide to change negotiators mid-stream? Isn't that a very, very unusual situation?

Mr. Michael McDermott: It is unusual but it's not without precedent, where they've sought to replace the existing bargaining unit. Sometimes the applicant to replace them has been found to be employer dominated and therefore not eligible to replace them.

• 1245

Mr. Dale Johnston: Have you any indication whether this is the sort of thing that rank and file union members are pleased to hear as a change in the act?

Mr. Michael McDermott: I think initially they were concerned, but when they looked at the logic of this, certainly not rank and file members, but the labour movement felt this could be a valid change to the code.

Mr. Rob Anders: Mr. McDermott, having discussed this and getting a better understanding of what we have before us with clause 11, I'm going to move an amendment. Let me read the clause from the top:

(3) An application for certification under subsection (2) in respect of a unit must not, except with the consent of the Board, be made during a strike or lockout

I would like to strike the words “except with the consent of the Board”, so that it would read:

(3) An application for certification under subsection (2) in respect of a unit must not be made during a strike or lockout

The reason I do that is because I think we should fully allow employees in that circumstance, where there are problems with the bargaining agent not effectively representing them. Whether it's the employees themselves who have issue with the bargaining agent, or whether it's the bargaining agent that has thrown up its hands and refuses to represent the employees in this circumstance, I think we should allow them that opportunity and encourage them in that circumstance.

That's because we have a serious problem here. If the bargaining agent is so badly misrepresenting employees that the employees throw up their hands in disgust and say that they don't want the bargaining agent to represent them any more, or vice versa, if the bargaining agent who is duly certified to represent those employees no longer feels competent to do so, able to do so, or representative of the employees, then I think we should be encouraging, in that circumstance where you have a serious lack of representation from either party, a move to some sort of system of independent contracts.

The reason I bring this up and move this whole thing is from looking at the example of New Zealand, which brought forward the independent contracts act. New Zealand had a system of sectoral bargaining that existed for decades. Progressively, over time, it went from just organizing a particular unit or a bargaining agent in a particular single business to expanding out to being an entire industry and sectors. The inflexibilities that this caused in the New Zealand economy meant that over a period from 1960 until the 1990s they had little or no real growth in wages, whereas the rest of the OECD countries far surpassed that of New Zealand.

When New Zealand moved toward the Employment Contracts Act, this independent contracts system, that changed 180 degrees. New Zealand changed overnight.

You probably all recall Sir Roger Douglas and some of the books he's done. One of his books is called Unfinished Business. As you may recall, Sir Roger Douglas was a Labour politician. When they finally got into government in New Zealand, they found that basically they were bankrupt and creditors wouldn't loan them money. So they had to make drastic changes in all sorts of policies to open up their markets and increase labour market flexibilities.

But there was one thing they weren't willing to touch. As they were a Labour government, they were dependent on trade union labour support and those dues and funds coming into their party coffers, so they weren't willing to change this sectoral bargaining over to independent contracts.

Anyhow, when the other party took power, which was the National Party, one of the biggest changes they made after the Labour government was to make it the Employment Contracts Act. As a result, it was the one stagnating factor—I'll compare it to what's here in Canada—such that even though you may make changes in terms of your pension systems, welfare systems, and everything else, if you still have an inflexible labour market, the economy in the labour market is not allowed to respond in kind to any of those other changes that have been made to the system.

That's exactly what New Zealand went through. It it was only as a result of having independent contracts—this is what I hope striking those particular words there will help to encourage—that there was a movement toward independent contracts. That was exactly the type of stimulus that New Zealand needed.

• 1250

Since it introduced that, its level of strikes, lockouts and generally work days lost due to strikes dropped below what it had kept records on all the way back to 1921.

Most of the labour unions in the country lined up and said that moving toward independent contracts would be a big mistake, and it was a case of Chicken Little running around saying the sky was falling and the whole bit. The actual result after a year or two was that they had fewer strikes, lockouts and work days lost due to strikes.

I don't bring it up just because of the case in New Zealand. Great Britain, under Lady Thatcher, also—

The Vice-Chair (Ms. Bonnie Brown): Mr. Anders, do you think you could spare us the economics lesson according to the Reform Party and just address your comments to the actual words you want deleted and why?

I think you've already done that, actually. We understand what you're trying to do. We now have international examples from you as to why this is a wise idea. I think people would appreciate the chance to vote and accept or reject the idea.

Mr. Rob Anders: Madam Chairman, these have nothing to do with the Reform Party. These are things I raise as international examples where Reform Parties don't exist. I think it's pertinent—

The Vice-Chair (Ms. Bonnie Brown): It's history according to the Reform Party.

Mr. Rob Anders: No. It's not in any party document I'm aware of. I cite these because I know them from my own experience, not from any party involvement or background. I think we're richer as parliamentarians for the experience we bring to the table. This has nothing to do with partisan politics.

I'm bringing this up because I think making the changes where we get rid of the words “except with the consent of the Board” will help encourage independent contracts. It was not only of benefit in New Zealand, but it was of benefit in Great Britain, which also had the lowest level of strikes, lockouts and work days lost due to strikes and lockouts since 1897.

Mr. David Iftody (Provencher, Lib.): I have a point of order, Madam Chair. I think everyone has understood the point the member is trying to make. I think he has made it well. I think we should put the motion to the floor and vote on the honourable member's objectives with respect to the changes he seeks.

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

Mr. Rob Anders: I'd like a recorded vote, Madam Chair.

(Amendment negatived [See Minutes of Proceedings])

Mr. Dale Johnston: Madam Chair, I have a question on clause 11.

I was asking the official about the wording, and that portion of the bill involves employees in the unit. As I was looking through the Sims task force report, I noticed there is some mention in that very section regarding replacement workers. Are replacement workers considered to be employees in the unit or not?

Mr. Michael McDermott: That question has already been asked, Mr. Johnston. I replied they're not, but it's dealt with in another section. What we have here is a drafting change where the French and the English are brought closer into harmony. That's all.

• 1255

The Vice-Chair (Ms. Bonnie Brown): Carried on division.

Mr. Rob Anders: I'd like a recorded vote.

The Vice-Chair (Ms. Bonnie Brown): You'd better get your act together. What do you want, on division or recorded?

Mr. Rob Anders: I want a recorded vote.

The Vice-Chair (Ms. Bonnie Brown): Mr. Anders wants a recorded vote.

This is the regular clause.

Mrs. Sue Barnes (London West, Lib.): I'm sorry, you've take so much of our votes time—

The Vice-Chair (Ms. Bonnie Brown): I know.

Mrs. Sue Barnes: —that I need to have clarified exactly what we're doing here.

The Vice-Chair (Ms. Bonnie Brown): Yes. We have already defeated the amendment. We're now voting on the clause as in the bill.

(Clause 11 agreed to [See Minutes of Proceedings])

(On clause 12)

Mr. Dale Johnston: Madam Chairman, I have some questions on clause 12.

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

Mr. Dale Johnston: Clause 12 refers to trade unions that are not certified but enter into collective agreements:

the term of which has not expired may...make an application for certification at any time, in respect of the unit to which the collective agreement applies or substantially the same unit.

That's basically what that clause talks about.

What assurances could Mr. McDermott give us or are required from both sides to ensure that this is truly a voluntarily recognized union? Is there going to be any secret ballot to this? Could you explain briefly how that goes about?

Mr. Michael McDermott: The code offers recognition by two routes: certification and application for certification by the board, and the questions of majority support are determined by the board; or a union and an employer can voluntarily sign an agreement, and that amounts to voluntary recognition. In this case, there will be a collective agreement in place.

Mr. Dale Johnston: As we are aware, there are places in this act where unions can be certified without a majority. I can understand the employer actually could be one signature, but for the employees, what kind of assurances do we have that the majority of the employees actually agree to the certification of any particular union?

Mr. Michael McDermott: The board would still be required to ensure that there's majority support.

Mr. Dale Johnston: So the board undertakes to poll the employees, or do they hold an election?

Mr. Michael McDermott: The board can hold a vote in any case, but under these circumstances, it would almost certainly not go for a vote. It would assure itself that the employees do wish to have that voluntary recognition changed into a certified recognition.

Mr. Dale Johnston: You see, Mr. McDermott, what concerns me is, as you know, there are places in this bill where the board can certify a union without a majority, and I need assurances that the board will actually seek a majority, more than 50% of the people who are going to be unionized. If there were strictly all the way through this bill the respect of the majority and a secret ballot used throughout this, then I would not be questioning this particular clause. But I need some assurances that, indeed, the people who are going to form the bargaining unit have given their consent.

• 1300

Mr. Michael McDermott: The purpose of this is to enable a union to make an application, not necessarily to get certified. They can make an application for certification at times other than currently stated in the code, and they can do that because they have a voluntarily recognized bargaining relationship.

The board would still have to ensure that there is majority support. It can do so by means of a vote in any case, but it can also do so on the basis of a clear expression of desire to belong to the union and to be represented by that union by a majority of workers, employees in the unit.

Mr. Dale Johnston: With all due respect, Mr. McDermott, it does say here that they may make application for certification at any time. So what I am concerned with here—and you don't seem to be assuaging my concern—is that this board may decide, in their wisdom, to certify a union for which there is not majority support.

Mr. Michael McDermott: No, the only circumstances in which they can certify a union that doesn't demonstrate, at that time, majority support is in the remedial certification provision, which I'm sure we'll be discussing later on. This is not that case. Majority support would still have to be demonstrated. To apply is not necessarily to receive.

Mr. Dale Johnston: I appreciate that—and you're absolutely right; we will talk about the other aspect of the bill when we get to it—but I'm still not getting an assurance that the consent of the individuals here is going to be given. We're saying that an application for certification be made, and while it's very clear in my mind how the employer would give consent, because the employer may be one, two, three or a board of directors of people—that's really quite straightforward—it's not at all clear to me what the process would be for the employees making this application, how they would go about actually doing that, and I wonder if that shouldn't be addressed somewhere.

Mr. Michael McDermott: The process for applying for certification is currently addressed in the code. We're not changing that in any significant fashion. All we're saying here is that in the case of a voluntary unit, they can apply for certification at a time other than currently specified in the code.

Mr. Dale Johnston: Other than at the time—

Mr. Michael McDermott: Yes, other than at the time currently specified in the code.

The Vice-Chair (Ms. Bonnie Brown): Does clause 12 carry?

Mr. Dale Johnston: Madam Chair, I believe the meeting was scheduled until 1 p.m.

Mr. Rob Anders: I would like to make a motion to adjourn.

The Vice-Chair (Ms. Bonnie Brown): Do we have to? I was hoping to get some more work done. Seeing as we have taken, on an average, 20 minutes per clause, we are not moving as quickly as I hoped to achieve.

Mr. Rob Anders: Madam Chair, I was about to move an amendment to clause 12, so if you wish, I can do so now.

The Vice-Chair (Ms. Bonnie Brown): That's fine. Get it on the table.

Mr. Rob Anders: Let's do that.

I'd like to make a motion to adjourn. I don't believe that's debatable. We can just put that to a vote.

The Vice-Chair (Ms. Bonnie Brown): There's a motion to adjourn.

(Motion negatived)

The Vice-Chair (Ms. Bonnie Brown): We'll carry on.

Mr. Rob Anders: Fair enough. All right, here we go.

On clause 12, Madam Chair, I'd like to question the words “substantially the same unit” here, where it says at the bottom:

the unit to which the collective agreement applies or substantially the same unit.

My sense of clause 12 is that, first, it would increase the application abilities of the board, and secondly, it would also expand the unit potentially, because when you say substantially the same unit, I take it to mean that would mean that the unit could actually increase in size without there actually being some sort of vote or anything like that. The board could, in a sense, make a determination on their behalf and independently. Is that right, Mr. McDermott?

The Vice-Chair (Ms. Bonnie Brown): Excuse me, I thought you had an amendment. Now I'm hearing a question.

Mr. Rob Anders: I'm asking a question, and then I will move an amendment, Madam Chair.

Mr. Michael McDermott: The purpose of those words, “substantially the same”, is that the original voluntary recognition may have specified the nature of the unit. It may have changed slightly. It may have slightly expanded. In fact, in recent times it has probably diminished rather than gained in size, but it would be essentially and substantially the same.

• 1305

Mr. Rob Anders: I have problems once again with the arbitrary or capricious nature of this and going ahead and allowing—

Some hon. members: Oh, oh.

Mr. Rob Anders: Other members on the committee may laugh and scoff, because they—

The Vice-Chair (Ms. Bonnie Brown): I think it's the irony of your phrase, because some of us are having trouble with the arbitrary and capricious nature with which you are stretching out this debate. So it was a case of the pot calling the kettle black.

Mr. Rob Anders: You know, Madam Chairman, when I see powers given to a board to go ahead and certify willy-nilly, to go ahead and give automatic certifications without secret ballots and without consent, and to give these types of powers to the board, you bet I have concerns, and you bet there are changes I want to see to this bill.

That's why I'm speaking to them right now, and I'll continue to speak as long as it takes.

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

Mr. Rob Anders: Yes, I will, Madam Chairman.

The Vice-Chair (Ms. Bonnie Brown): Good. We'll continue.

Mrs. Sue Barnes: On a point of order, who's the chair? Did I just hear you say that you'll speak as long as you want, and that you don't take authority from the chair?

Mr. Rob Anders: I just said I will speak as long as it takes to get out my views with regard to amendments and changes to this bill.

Mrs. Sue Barnes: That's a little different from what I heard.

Thank you.

Mr. Rob Anders: The honourable member said she wasn't paying attention before. I wonder whether or not this was a similar circumstance.

Mrs. Sue Barnes: Madam Chair, will you recognize me?

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

Mrs. Sue Barnes: There is such a thing as being dilatory. I think it's about time the member opposite understands the meaning of being dilatory in terms of parliamentary procedure and the rules that govern the way this chamber operates.

As long as this member is repeating statements time after time after time, and not putting new information on the table, people will not pay attention to him.

Thank you.

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

Mr. Rob Anders: Madam Chairman, I'm going to move my amendment, and I'll continue on.

The Vice-Chair (Ms. Bonnie Brown): Please put it on the table.

Mr. Rob Anders: Madam Chairman, I would like to strike the words “or substantially the same unit”, which follow “to which the collective agreement applies”, and to put a period at that point.

I believe it should apply strictly to the unit in question, and I don't believe it should go beyond that. I believe the scope should be limited, because I don't want to be giving the board powers to go ahead and redefine the scope of the bargaining unit, as it sees fit, without having secret ballots and proper consent.

Speaking to that, then, to the very amendment I've just moved, Mr. McDermott, you look here to go ahead and increase the application abilities of the board and potentially expand the unit. Can you give me some examples of circumstances where these powers are needed by the board?

Mr. Michael McDermott: The board doesn't apply to anything, Mr. Anders. The application is made to the board and the board will have to follow its current procedures.

Mr. Rob Anders: I'm sorry, there was another member speaking, interrupting Mr. McDermott. I didn't quite hear what he said.

Mr. Michael McDermott: I'm simply saying that the board doesn't make applications itself; the applications are made to the board. When an application is received, the board applies the current powers and procedures it has already.

You talk about automatically increasing the size of a bargaining unit. As I pointed out, in many cases the size of bargaining units has diminished. In the railways, for a long time voluntary recognition was the case, but that's less so these days. In the meantime, employment in the railway industry has declined from something like more than 100,000, since I've been in the labour department, down to something in the region of about 40,000 or 50,000.

Mr. Rob Anders: Mr. McDermott, whether or not the size of a workforce changes due to implementation of technology or what not with regard to the railways, I have serious problems with the idea that one would brag about the arbitrary changes, whether they be increases or decreases, according to the decisions by the board rather than secret-ballot votes to determine the size of a bargaining unit and whether or not new units or other things are included or excluded.

I don't think it's a question—

The Vice-Chair (Ms. Bonnie Brown): That's why you've put your amendment forward, is it not? You have serious problems with it.

Mr. Rob Anders: Yes, but I'm speaking to the fact that we have here an official of the department who seems to think that my intention is merely to make sure that bargaining units don't grow, and he's therefore mentioned that, oh no, in many circumstances, bargaining units are shrinking, shrinking all the time, and as a matter of fact, this will help in some circumstances.

I'm not looking to shrink or increase bargaining units. I don't agree with the ability of the board to willy-nilly redefine what the scope of the board is.

• 1310

The Vice-Chair (Ms. Bonnie Brown): We all understand what you mean, because you put an amendment forward to change the meaning of the clause in order to address your own concern. We understand that.

Mr. Dale Johnston: Madam Chair, in response to Madam Barnes' concerns, I refer her to Standing Order 116. It says:

In a standing, special or legislative committee, the Standings Orders shall apply so far as may be applicable, except the Standing Orders as to the election of a Speaker, seconding of motions, limiting the number of times of speaking and the length of speeches.

Madam Chair, my colleague has not breached any of the standing orders and I cite Standing Order 116 to support the case.

The Vice-Chair (Ms. Bonnie Brown): Thank you, Mr. Johnston. Shall the amendment carry?

Mr. Dale Johnston: Madam Chair, I would like to have my colleague tell me exactly what the motion is, or maybe the clerk could read the motion back to me.

Ms. Monique Hamilton (Procedural Clerk): Mr. Anders moved the following amendment:

That Bill C-19 in clause 12 be amended by replacing line 21, page 14 with the following:

applies.

The Vice-Chair (Ms. Bonnie Brown): Shall the amendment to clause 12 carry?

Mr. Rob Anders: I'd like a recorded vote, Madam Chair.

(Amendment negatived [See Minutes of Proceedings])

The Vice-Chair (Ms. Bonnie Brown): Shall clause 12 carry?

Mr. Rob Anders: Madam Chair, I'd like to move another amendment.

The amendment I'd like to make and speak to is where it says:

A trade union that is not certified but has entered into a collective agreement the term of which has not expired may

and so on. I have concerns with—

The Vice-Chair (Ms. Bonnie Brown): Could you state your amendment at the beginning, please, then you can—

Mr. Rob Anders: Fair enough, Madam Chair. I'd like to strike the words “not certified” so that it reads “A trade union that is certified”, and after the word “certified” strike the word “but” and replace it with the word “and”.

The clause as amended would read:

A trade union that is certified and has entered into a collective agreement the term of which has not expired may

The Vice-Chair (Ms. Bonnie Brown): You want to alter the meaning of the clause, in other words.

Mr. Rob Anders: Madam Chair, I want to clarify the meaning of the clause, because down below we have, for example, that the board can go ahead and make exception. What we're doing is clearly defining in which cases that exception applies.

Right now, as the clause reads—in my interpretation of it—it is to incorporate above and beyond certified trade unions and also those that have not entered into collective agreements. What I'm looking to do is—

• 1315

The Vice-Chair (Ms. Bonnie Brown): Do you realize that this particular amendment is contrary to the general meaning of the clause and that you can achieve the same goal simply by voting against the clause?

Mr. Rob Anders: Madam Chairman, I'm trying to discuss the clause.

The Vice-Chair (Ms. Bonnie Brown): Or you can do it by speaking against the clause and hoping others vote with you against it, as opposed to reversing the meaning of the words.

Mrs. Brenda Chamberlain (Guelph—Wellington, Lib.): This is wasting taxpayers' money—clearly.

The Vice-Chair (Ms. Bonnie Brown): There is a strategy available, Mr. Anders, to achieve what you want to achieve.

Mr. Rob Anders: Madam Chairman, what I'm—

Mrs. Brenda Chamberlain: It's clearly a waste of taxpayers' money.

Mr. Rob Anders: —trying to do here is specify. I'm trying to bring in the parameters and limit the nature of the clause. I don't think that changes the general intent of the clause, because the general—

The Vice-Chair (Ms. Bonnie Brown): It does, because the subject of the clause is a trade union that is not certified. When you change the subject of the clause, you reverse the meaning. You said, “A trade union that is certified”. That is the opposite of a trade union that is not certified. The way you can achieve your goal if you do not want this allowance to be made in the code is simply to vote against the clause when we vote on the clause as it's written, as opposed to introducing this complication—

Mrs. Brenda Chamberlain: Wasting taxpayers' money.

The Vice-Chair (Ms. Bonnie Brown): —of reworking it to say the opposite in hopes of it failing.

Mr. Rob Anders: Madam Chairman, I think you're trying to boil this down and make this rather simplistic, and what I'm trying to do here is make—

The Vice-Chair (Ms. Bonnie Brown): Trying to make it more complicated?

Mr. Rob Anders: No. Madam Chairman, rather than just trying to vote down the clause, I'm trying to improve the clause, and I think that's my due diligence as a member, that I try to improve the clause. I could just vote against everything we do in this committee, but I try to participate and I try to make meaningful contributions, Madam Chairman, and that's what I'm trying to do in this case.

The Vice-Chair (Ms. Bonnie Brown): Put your argument forward, please, speak to it, and then we'll call the question.

Mr. Rob Anders: Thank you very much. I'd also like it if others who have a willingness or want to speak to it be allowed to as well, Madam Chairman.

The Vice-Chair (Ms. Bonnie Brown): Listen, the thing is that I'm finding it difficult to find anybody who wants to speak to your amendments, other than your colleague who is helping you out. No one else wants to speak to them. They just want to vote against them.

Mrs. Brenda Chamberlain: We want to work—

Mr. Rob Anders: There are some other people who—

Mrs. Brenda Chamberlain: —buckle down and do some work.

Mr. Rob Anders: —say they're not wanting to pay attention to some of these things, but that's their choice, Madam Chair. They could speak to it if they paid attention, so I'm going to move the—

The Vice-Chair (Ms. Bonnie Brown): They value the time of their colleagues. Go ahead and speak to your amendment.

Mrs. Brenda Chamberlain: Very disrespectful.

Mr. Rob Anders: Thank you very much, Madam Chairman. Once again, I wish to strike the word “not”. Let me read through it once again. Right now it reads:

A trade union that is not certified but has entered into a collective agreement the term of which has not expired may,

and I wish to change that to read:

A trade union that is certified and has entered into a collective agreement the term of which has not expired may,

Then it goes on to illuminate what the trade union may do.

The reason I've introduced that amendment, Madam Chairman, is that once again, it speaks to this whole idea of the board being able to override certification, the certification process, the proper due process, and it speaks to the ability of the board to override secret ballots and go ahead and do automatic certifications and all the rest of this nature of things, Madam Chairman.

And I'd like to pose a few questions, if I may, with regard to the changes.

Mr. McDermott, in light of the amendment that I've proposed here, I feel that this more clearly defines the nature of.... What I'm trying to do here, Mr. McDermott, is restrict the ability of the board to go beyond the bounds that it had before.

Is my amendment, in your opinion, Mr. McDermott, indeed making sure that the board stays within the limits, as it were, that it had before, and not expanding the powers? I'll have two questions, I guess, two parts.

First, this clause 12 expands the powers of the board beyond where they currently are. Is that right, Mr. McDermott?

Mr. Michael McDermott: I think I've said several times that it does not expand the powers of the board in any way whatsoever. It simply allows an application made by an applicant to be made at a time other than what is in the code right now—if it is a board-recognized trade union or bargaining agent. The amendment, if you want me to comment on it, strikes me like this: you'll end up with a union that is certified twice, which may make decertification doubly difficult.

Some hon. members: Oh, oh.

• 1320

Mr. Rob Anders: When we were speaking previously, Mr. McDermott, to some of the confusions that were caused by having some unions try to come in and take over others or bargaining agents that no longer were representative and employees who didn't want bargaining agents, it sounds like a pretty confusing process all in all to me, Mr. McDermott. So what I'm trying to do here is not allow the confusion to spread, trying to stem the spread of the disease, as it were.

Mr. McDermott, before you spoke to clause 12 increasing the application abilities. In my opinion...is that not giving the board more jurisdiction and more power to allow an expansion of application abilities?

Mr. Michael McDermott: It allows an application to be made at a time other than specified in the code at the current moment. That's all it does. But the applicant who can take advantage of that has to be voluntarily recognized in the first place. That is the only change it is making.

Mr. Rob Anders: All right. In that, Mr. McDermott, I hear an admission that there's indeed an increased application ability. I'm going to ask a second question.

Mr. Michael McDermott: I don't understand the term “application ability”, Mr. Anders. The board has no ability to apply for anything.

Mr. Rob Anders: No, I'm talking about the ability of the board to make decisions with regard to the application, so this is allowing for more applications and therefore allowing the board to rule in more cases of applications. Is it not the case, Mr. McDermott?

Mr. Michael McDermott: No, it's not the case. The board has to follow exactly the powers it has now when an application is made. It simply may receive an application at a different time than it is currently allowed to.

Mr. Rob Anders: And that's exactly the nature of the debate, Mr. McDermott. It's allowing for more applications. It's expanding the nature and the timeframe in which applications can be made. Is that right, Mr. McDermott?

Mr. Michael McDermott: In the case of a voluntarily recognized trade union bargaining agent, it changes the time in which that bargaining agent can make an application for certification. Yes, sir.

Mr. Rob Anders: Perfect. Good. So you're admitting to me now that it's expanding the nature of the applications in the timeframe in which they can be made. If you're expanding the timeframe in which the board may choose to allow applications, that's indeed expanding the powers of the board, is it not?

Mr. Michael McDermott: It expands the time in which an application may be made, but it doesn't expand the powers of the board in dealing with that application.

Mr. Rob Anders: It expands the time, then, that the board can exercise its power, does it not, Mr. McDermott?

Mr. Dale Johnston: Madam Chair, there's an awful lot of side conversation. Try as I may, I'm missing some of the conversation here, particularly comments made by Mr. McDermott, and I wonder if you could bring about about a little more order.

The Vice-Chair (Ms. Bonnie Brown): Mr. Johnston is complaining because he cannot hear the staff's responses to Mr. Anders' questions, so he's asking for a little more order in the room.

Mr. Larry McCormick (Hastings—Frontenac—Lennox and Addington, Lib.): On a point of order, Madam Chair, I certainly expect Mr. Johnston's correct in asking for that attention and less background noise. But I do want to point out, to put it on the record, that the senior bureaucrat here knows what he's saying and several times has answered the same same question from Mr. Anders. I just want to say that it certainly is a waste of the taxpayers' money and I hope they look at their own blues, at what's happening here. It would be a good thing for them that we're not calling—

The Vice-Chair (Ms. Bonnie Brown): Yes. I don't think we'd have any trouble keeping order in the room if what was going on was commanding the attention of those present, but the lack of order in the room is a reflection of the lack of interest in the questions and things that are coming forth from the speaker. I think the speaker should take note of that.

Mr. Rob Anders: I'm trying as I might to maintain the attention of all those involved, Madam Chairman.

The Vice-Chair (Ms. Bonnie Brown): Maybe you'd better question the content or the substance of what you're saying.

Mr. Dale Johnston: We would have to assume, Madam Chair, that all members who are in this committee are interested in labour matters, and if they're not, that's news to us.

The Vice-Chair (Ms. Bonnie Brown): Everyone here is interested in this bill. They're interested in passing it. They have done their homework. They don't have to refer to the Sims report. They read it long ago. They've read the clauses and they're happy to move forward, and they are a little bit dismayed at people who have to ask questions as if they'd never looked at the bill before they got here this morning. I think that is the answer to your question, Mr. Johnston.

Go right ahead, Mr. Anders.

Mr. Dale Johnston: Madam Chairman, with all due respect, this is our first opportunity to question the department with regard to the bill, and short of having personal meetings with them, what other opportunity was there?

The Vice-Chair (Ms. Bonnie Brown): Are you unable to phone the department to ask them what a certain clause means? That's called doing your homework, being prepared to come for the debate.

Mr. Dale Johnston: This is my first opportunity to question Mr. McDermott, and my understanding is that this is what clause-by-clause in committee is all about.

• 1325

The Vice-Chair (Ms. Bonnie Brown): Well, I think your understanding has come from some strange source, because I've never sat through clause-by-clause where people have commandeered so much of the time, been so disrespectful of the time of their other colleagues on the committee, and imposed on that time.

Mr. Rob Anders: Madam Chair, I asked for an adjournment.

The Vice-Chair (Ms. Bonnie Brown): We all would love to adjourn, but at 20 minutes a clause—

Mr. Rob Anders: You can't blame me for this.

The Vice-Chair (Ms. Bonnie Brown): —you have used up the time to the extent that we who are determined to conclude our work here are being prevented from doing so by your abuse of the process and your almost controlling use of the time.

Mr. Dale Johnston: I submit to the committee and to you that what you're accusing us of is exactly, if we looked back in the blues, what the previous Conservative government accused the Liberal Party of doing. If you asked the Liberal Party of the time, when it was in opposition, it would have said “No, we're not; we're simply trying to get clarification and information”. That's as longstanding a tradition in this House as the House or the Senate. So I don't think, Madam Chair, you should imply we're wasting valuable time. We simply want to make sure we're getting as much information as we can.

The Vice-Chair (Ms. Bonnie Brown): Go ahead, Mr. Anders.

Mr. Dale Johnston: While we're at it, Madam Chair, I'd like to ask the officials in what instances a trade union is not certified. Isn't that a contradiction in terms?

Mr. Michael McDermott: No, it's not a contradiction in terms. It would be in the province of Quebec under the Quebec Labour Code, where accreditation or certification is the only way to be recognized. In other jurisdictions it is possible to be voluntarily recognized, and that does happen.

Mr. Dale Johnston: Could you give us an instance of a trade union that is not certified but wishes to enter into a collective agreement in federal jurisdiction?

Mr. Michael McDermott: Certainly. I haven't looked of late, but for a long while railway unions were voluntarily recognized. In fact, railway unions existed long before the idea of certification came into being. They've existed for over 100 years.

Mr. Dale Johnston: So why are we writing legislation that would apply to something that happened over 100 years ago?

Mr. Michael McDermott: We're not. There are some that are voluntarily recognized who may wish to become certified.

Mr. Dale Johnston: I was asking for some examples of voluntary unions in Canada covered by the Canada Labour Code, part I.

Mr. Michael McDermott: I think some of the railway unions still are. I'm not absolutely certain. They've been reviewed a number of times. The teamsters have had their voluntarily recognized agreements, I think, maybe with some of the courier companies at various times.

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

Mr. Roy Bailey: A trade union that is not certified would need to have had certification at one time or another or it wouldn't be a trade union. Is that correct?

Mr. Michael McDermott: No. The one way to get certified in federal jurisdiction and in several provincial jurisdictions is to conclude a collective agreement with an employer. The employer says “Fine, I'm quite happy to negotiate with you”, and they conclude a collective agreement. The opening clauses of a collective agreement very often are recognition clauses.

Mr. Roy Bailey: Thank you. What procedure would take place to somehow assure that the certification process does represent the majority of people within that particular union?

Mr. Michael McDermott: I believe section 28 of the current code requires the Canada Labour Relations Board to ensure, in the event of an application for certification, that the majority of people in the bargaining unit wish to be represented by that bargaining agent.

Mr. Roy Bailey: Does it have a mechanism for that?

Mr. Michael McDermott: It does it in one of two ways. It can order a vote at any time. It must order a vote if only 35% to 50% have signed an application for membership of the union card. But at over 50%, the board may certify on the basis of those signed cards, which are usually supported by a $5 sign-up fee.

Mr. Roy Bailey: Thank you.

Mr. Rob Anders: I'd like to speak to the second expansion of the board's powers. Mr. McDermott and I talked about the increase in the application abilities here.

• 1330

The second one is—we talked about it, I guess—the ability of the board to expand the bargaining unit. Mr. McDermott, you adamantly maintained before that the powers of the board had not been expanded, but if the bargaining unit expands and the board's jurisdiction expands, has not the power of the board been expanded?

Mr. Michael McDermott: The issue is substantially the same. It allows for those changes that happen in life. A bargaining unit may grow by two or three people, some functions may become redundant and some new functions may be added, but essentially the bargaining unit remains the same.

Mr. Rob Anders: Mr. McDermott, you say that, and yet—

The Vice-Chair (Ms. Bonnie Brown): You debate with Mr. McDermott when you're to ask him for clarification. If he gives you an answer, it's not up to you to argue. He gave you the answer. Are you finished questioning him on the implications of your own amendment?

Mr. Rob Anders: I'd like to seek clarification, if I could, Madam Chair.

The Vice-Chair (Ms. Bonnie Brown): On what?

Mr. Rob Anders: Previously Mr. McDermott talked about how bargaining units often decrease, yet he just said bargaining units in most cases, and indeed substantially, stay the same. I need a clarification.

The Vice-Chair (Ms. Bonnie Brown): I heard him say they sometimes increase, they sometimes stay the same, and they sometimes decrease.

I believe this clause has something to do with allowing some flexibility to deal with a unit that might move from 100 employees to 102 or 98, without impeding it and somebody challenging and saying it's not the same unit because there are two names missing or there are two new names. It's just to get around the possibility of somebody using picayune points to challenge the board.

They're saying a few members up or down shouldn't make any difference if it's substantially the same. Now if it went from 100 to 300 members, that would be substantially different. This is to account for very small changes in the numbers so a very small point doesn't preclude the board from acting as it would normally act.

Mr. Rob Anders: Maybe I should be a bit more precise then in terms of the clarification I seek. I believe the words Mr. McDermott previously used were “in many circumstances”, not just some, “the bargaining unit decreases in size”.

The Vice-Chair (Ms. Bonnie Brown): Yes. It can decrease, stay the same, or increase.

Mr. Rob Anders: I recognize that, but he also said while many of the units decrease in size, for the most part they stay the same.

The Vice-Chair (Ms. Bonnie Brown): I think he meant many of the ones that change of late decrease, but he didn't say the majority. He said many of the ones that change decrease.

But what he said or didn't say doesn't have a whole lot to do with your amendment. You're supposed to address your amendment and clarify the implications of your amendment, which you should have thought about before you put it on the table, but that's my view.

Mr. Martin.

Mr. Pat Martin (Winnipeg Centre, NDP): Could we have the amendment read again? I forget, frankly, what the amendment was.

The Vice-Chair (Ms. Bonnie Brown): Would the clerk call the amendment? It was so long ago, we've all forgotten.

An hon. member: Did we vote on the amendment?

The Vice-Chair (Ms. Bonnie Brown): No.

Ms. Monique Hamilton: The amendment reads that Bill C-19 in clause 12 be amended at line 15, page 14, by substituting the following:

24.1 A trade union that is certified and

Mr. Pat Martin: Can I speak to that for a moment, please?

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

Mr. Pat Martin: I think we're way off topic in some of the conversations that have taken place since the amendment was moved. It currently reads that if you're already certified as a union, you can make application to the board to be certified as a union. It makes absolutely no sense; in fact it's redundant to the point of being silly.

The Vice-Chair (Ms. Bonnie Brown): It makes absolutely no sense. That's why I suggested to the mover he should analyse the substance of what he is doing. He should withdraw it because it does not make any sense.

Mr. Pat Martin: It really doesn't make any sense at all, so I would ask the mover to reconsider.

The Vice-Chair (Ms. Bonnie Brown): How can a union that is certified apply to be certified? It doesn't make sense.

Would you like to withdraw it, Mr. Anders?

Mr. Rob Anders: No. At this point I haven't had full clarification.

The Vice-Chair (Ms. Bonnie Brown): You don't need full clarification when your colleagues are telling you it simply does not make sense in English grammar.

Mr. Rob Anders: In all respect, Madam Chairman, I'm asking Mr. McDermott, not some of the colleagues here.

The Vice-Chair (Ms. Bonnie Brown): Maybe Mr. McDermott would like to tell you it doesn't make sense.

Mr. McDermott.

You're putting an official in an awkward position. We're trying to help you out and we're trying to prevent Mr. McDermott from having to tell you that.

Mr. Rob Anders: As a witness, he's free and able to tell me as he wishes. I wouldn't want to restrain Mr. McDermott's ability to freely express himself, and I hope he understands that.

• 1335

Once again, Mr. McDermott said that in many cases the bargaining units decrease, and that for the most part they stay the same. If many of them are decreasing but they mostly stay the same, then I don't understand. I need clarification on that. I have difficulty understanding how this can coexist.

The Vice-Chair (Ms. Bonnie Brown): I have difficulty even following your logic as to what it is you want to know and why you want to know it, but I think maybe Mr. McDermott, having had many years of experience in this House, might be able to understand what it is you mean and what it is you want to know.

Mr. Michael McDermott: I did say that of late the tendency has been for bargaining unit sizes to decrease in many industries, but a lot of them stay substantially the same. “Substantially” doesn't rule out the types of changes one could expect over a period of time to the size of a bargaining unit. Some functions may be new and some functions may disappear, and so on. That's all I was saying.

You were pointing out, Mr. Anders, that you were only using the example of expansion of bargaining units. I thought it was important to underline to you that bargaining units do also diminish in size as well as expand, and some remain the same.

Mr. Rob Anders: I guess that's as good a clarification as we're going to get, Madam Chairman.

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

Mr. Pat Martin: I have one more thing. I've stayed out of most of this, but I would like to comment on something Mr. Johnston asked. It's in the interests of actually trying to help him understand situations, or why this clause is necessary and useful.

In my own background, most of the bargaining units I've represented from the union side were non-certified. We weren't certified as the bargaining agent. It wasn't even through voluntary recognition so much as a lot of employers binding together into an employer association or whatever. That association will sign the collective agreement with the union. They have members coming and going in their association.

So I would have no direct bargaining relationship with even PCL Contracting or something, but if I was worried that PCL was going to try to pull an end run and try to subvert their obligations to unionize, then I would just go down to the board and file an application to have them certified. I'd have the right to do that, because all of their employees would be my members by virtue of the collective agreement they were bound to. It would be 100% support because there wouldn't be any non-union people on site.

That's the type of situation, in at least one industry, where this can happen.

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

I will now call the vote on the amendment.

Mr. Rob Anders: I would request a recorded vote.

The Vice-Chair (Ms. Bonnie Brown): We'll have a recorded vote on the amendment.

(Amendment negatived [See Minutes of Proceedings])

The Vice-Chair (Ms. Bonnie Brown): Calling the question on clause 12—

Mr. Dale Johnston: On a point of order, Madam Chairman, just for my information—and I'm not implying anything by this—with so many people coming and going here, are all the members opposite voting?

Mr. Lynn Myers (Waterloo—Wellington, Lib.): As substitutes, yes, we are.

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

Mr. Dale Johnston: Thank you very much.

• 1340

I have a question on clause 12, Madam Chairman. We're talking about a situation here....

I would also like to thank Mr. Martin for his clarification as far as speaking to my question about when a bargaining unit is not certified. He basically said that's when it's an employee association. I appreciate that.

Mr. Pat Martin:

[Editor's Note: Inaudible]...when a number of companies choose to belong to an association like Construction Labour Relations of Alberta, for instance. You still don't understand. I thought I would be helpful by trying to instruct you a little bit in this. I'm sorry, but you're not following me at all.

Mr. Dale Johnston: I'm listening.

Mr. Pat Martin: You would think the Reform Party would send somebody to this with at least some working knowledge, some basic, elementary background of the subject matter we're dealing with. It's very frustrating to listen to you guys plod your way through stuff that my job stewards would know about. Maybe I should circulate some of our job stewards' course material so you guys can get some background in basic labour relations.

Mr. Dale Johnston: I would like to know, Madam Chairman, assuming I won't get a tirade from Mr. Martin—

The Vice-Chair (Ms. Bonnie Brown): Mr. Martin has been very disciplined in trying to get the work done.

Mr. Dale Johnston: I would like to ask Mr. McDermott this. What would happen to the bargaining that was going on at the time this application is taking place? Would bargaining continue? What would happen?

Mr. Michael McDermott: Most frequently, there probably would not be bargaining going on. It's something that enables the application to be made during the term of the agreement. If bargaining were to be happening, they would continue.

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

Mr. Roy Bailey: Mr. Martin mentioned that there can be a group of employers who form a group for the purpose of bringing about one bargaining agency that represents many groups. Is that correct?

Mr. Michael McDermott: Yes.

Mr. Roy Bailey: What happens? Is the same thing available on the opposite side whereby many unions come together and they also have one bargaining agent?

Mr. Michael McDermott: There is provision in the current code for the formation of a council of trade unions that would bargain as a single unit, but it would be made up of more than one trade union, yes.

Mr. Roy Bailey: Thank you.

The Vice-Chair (Ms. Bonnie Brown): Shall clause 12 carry?

(Clause 12 agreed to [See Minutes of Proceedings])

Mr. Dale Johnston: Madam Chairman, I move that we now adjourn.

The Vice-Chair (Ms. Bonnie Brown): There is a motion on the table to adjourn. All those in favour, raise your hands.

Mr. Rob Anders: Could we have a recorded vote, Madam Chair?

The Vice-Chair (Ms. Bonnie Brown): This is pretty ridiculous on a motion to adjourn.

Mr. Rob Anders: All right.

The Vice-Chair (Ms. Bonnie Brown): All those in favour, raise your hands.

Mr. Dale Johnston: Did you say it's a recorded vote?

The Vice-Chair (Ms. Bonnie Brown): No, I don't think it's necessary on a little motion like this. All we have to do is count.

If they want a recorded vote, that's fine. Go ahead.

(Motion negatived [See Minutes of Proceedings])

• 1345

The Vice-Chair (Ms. Bonnie Brown): The motion to adjourn failed to carry so we'll carry on with clause 13.

On clause 13

The Vice-Chair (Ms. Bonnie Brown): Shall clause 13 carry?

Mr. Dale Johnston: Permanently assigned employees would also be included under this legislation. Why is that?

Mr. Michael McDermott: Are you saying permanently assigned?

Mr. Dale Johnston: Yes. They would be excluded. It says employees who are hired or assigned after the date on which the notice to bargain was given to perform all or part of the duties are not employees in the bargaining unit and are not eligible to take part in the representation vote.

Does that cover even employees who are permanently assigned? If so, why?

Mr. Michael McDermott: It would depend on when they were assigned. If they were assigned before the notice to bargain was given, this would have no application. If they were assigned after, it would have application.

Mr. Dale Johnston: So is this a clause that speaks to replacement workers?

Mr. Michael McDermott: Yes, it does.

Mr. Rob Anders: Exclusions, my goodness.

Mr. Dale Johnston: What was the rationale given for this? What are we trying to accomplish by putting this clause in?

Mr. Michael McDermott: What we're doing, Mr. Johnston, is codifying well-established labour board practice that has been confirmed by a plenary session of the board. When I say labour board practice, I mean labour board jurisprudence, which was confirmed by a plenary session of the board and not challenged in the courts.

Mr. Dale Johnston: Is this something that is in place in provincial labour legislation across Canada?

Mr. Michael McDermott: I'm not absolutely certain that it's in there in this wording, but in many cases the jurisprudence would be the same.

Mr. Dale Johnston: Could you give us an idea of what jurisdictions those would be?

Mr. Michael McDermott: Certainly, in British Columbia and Quebec it wouldn't apply, because there are no replacements whatsoever. It's quite clear that people outside of a bargaining unit would not be able to be considered to be employees within. In other jurisdictions, I'm not sure of the actual wording of the statutes, but the jurisprudence is there, I think, in almost every jurisdiction. They'd have something similar to this.

We're putting it in there, as I said before, to make the code clear in what the jurisprudence is. This arises out of certain cases in which there have been applications before the board to decertify during a strike or lockout and there's been an attempt to have persons who are not employees in the bargaining unit join in the vote.

Mr. Dale Johnston: Who are not employees in the bargaining unit.

Mr. Michael McDermott: Yes.

Mr. Rob Anders: Mr. McDermott, as I understand this, not only does it affect replacement workers, but it also affects permanent employees who in the case of a workplace disruption are just reassigned; they work outside the bargaining unit. But now, due to complications or problems, they're looking to work at that particular site. Right now those people, according to the definition here, are not allowed to vote, even though they're employees; they're performing the job on that particular site but they're being excluded from the vote, as are replacement workers. Is that right?

Mr. Michael McDermott: If they're not part of the bargaining unit, they can't vote. They can be reassigned. In fact, there are a lot of provisions currently in the code that require their permission to be reassigned. They can be reassigned, but they can't vote on an issue affecting the bargaining unit because they're not members of the bargaining unit. It is simple.

Mr. Rob Anders: I'm wondering about the fairness of that, in terms of whether or not these people should be excluded in those cases. As a result, I'm going to look to move an amendment to clause 13. The amendment would be as follows, then I'll speak to the clause. After the words “Any person”, I would look to insert “, except permanently reassigned employees,” and then continue on “who was not an employee in the bargaining unit”, etc.

• 1350

Is the intent of the amendment clear? Okay. Let me read that again then. I'll read it first as it stands and then I'll read it as amended. As it reads, it says:

Any person who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given

Now it should read:

Any person, except permanently reassigned employees, who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given

Is that now clear to the people taking this down? Okay.

That's the amendment. What I've done is included the words “except permanently reassigned employees” after “Any person”. The reason I'm doing that is that will allow permanently reassigned employees to vote in these matters. It's not a matter of including replacement workers. It's not redefining replacement workers within the bargaining unit. It's allowing permanently reassigned employees, people who would normally be working in some capacity or fashion for the business, but because they're not in that strict definition of the bargaining unit as it was set out before here....

We're looking to make changes to it. We're all in favour of change. Change is a good thing. We're looking to include permanently reassigned employees. They work in the same unit. These people are just being brought in to help out with tasks they otherwise understand and know how to perform. As a matter of fact they may be serving in some sort of seniority or management capacity in the particular company or situation. They're being brought in in this circumstance in order to help out with this labour stoppage or problem. As a result, they're as much a part of the workplace as anybody else is.

So what I'm trying to do here is be inclusive rather than exclusive. We're still exclusive, mind you, toward replacement workers. I may choose at some point to consider that during this deliberation, but for now I'm strictly focusing on people who are permanently assigned employees being brought into the process of the vote.

I'd like to let that stand then. I hope everybody understands the intent of that particular amendment. If people wish to, they can speak to it.

The Acting Chairman (Mr. Larry McCormick): Seeing no further debate on the amendment, may we vote on the amendment?

Mr. Rob Anders: If I could, I'd like to ask a few questions of Mr. McDermott then.

The Acting Chairman (Mr. Larry McCormick): Proceed.

Mr. Rob Anders: All right.

Mr. McDermott, these employees who otherwise work on these sites, sometimes in a management capacity, who are being called upon to take on the other tasks, as it were—the otherwise unionized or certified tasks in that particular location—these people are part and parcel of the organization, are they not?

Mr. Michael McDermott: Yes, they'd be part of the organization, but you're suggesting they become part of the bargaining unit, which is just a contradiction of their status as a manager.

Mr. Rob Anders: Actually, to be more precise, I'm not redefining them as part of the bargaining unit. What I'm doing is redefining them as part of the voting unit.

Mr. Michael McDermott: So somebody from another constituency can vote in your constituency. It doesn't make sense, Mr. Anders.

Mr. Rob Anders: That's the nature of the debate, Mr. McDermott. The constituency I take to be the company here, because the company is being affected.

Mr. Michael McDermott: No, sir. It's the bargaining unit.

Mr. Rob Anders: Well, fair enough. The bargaining unit, as part and parcel of the company, is being affected.

Let's break it down into several questions, I guess. One, Mr. McDermott, would you agree that in this circumstance in clause 13, the bargaining unit is being affected? Is that right?

Mr. Michael McDermott: No, the bargaining unit is not being affected by this. What it's saying is who can't vote in the bargaining unit, because they're not members of the bargaining unit.

Mr. Rob Anders: Well, okay. This is with regard to votes.

Mr. Michael McDermott: It's not just votes; it's just saying they're not members of the bargaining unit. But it's most frequently encountered during some kind of voting exercise.

Mr. Rob Anders: Right. So that would be affecting the bargaining unit, would it not, Mr. McDermott?

Mr. Michael McDermott: The bargaining unit consists of the employees in the bargaining unit. It doesn't consist of other people.

• 1355

Mr. Rob Anders: According to the current definition, I'm just asking if this vote does affect the bargaining unit. Yes? These votes do affect the bargaining unit; they are votes of the bargaining unit exclusively at this point right now.

Mr. Michael McDermott: It affects people who are not in the bargaining unit.

Mr. Rob Anders: Thank you very much. That's exactly my next point.

The Acting Chairman (Mr. Larry McCormick): May I make an announcement and interrupt you for just a moment? We have officials and staff here who have not had lunch, so I just want to inform you that at the call of the chair we have ordered in some sandwiches or whatever we can get at short notice. I'm sure everyone can also avail themselves of relieving each other at any position around the table, but it's officially our duty to say that lunch is just being ordered now. Excuse me for interrupting you.

Mr. Rob Anders: You're very gracious, Mr. Chairman. We appreciate that.

Mr. McDermott, we've determined a precedent here. The legislation, as it currently stands, is that the bargaining unit is the one that votes and is impacted by this, and you just recognized—and this is my next point, I guess—that it's more than just the bargaining unit that's impacted by this vote, it's the company. I guess in some respects it's even the community at large. Is that right?

Mr. Michael McDermott: Mr. Anders, you're not exactly putting words into my mouth, but you're placing them where you want to place them. A bargaining unit is a distinct entity within a company. There may be several. This simply addresses the issue of people in a bargaining unit being able to determine matters in association with other members of that bargaining unit, not with people who are outside that bargaining unit.

Mr. Rob Anders: All right, Mr. McDermott.

Right now I think we're looking tightly within the four corners of the page, in a sense, and what I'm asking here is for us to be a little more inclusive. I think there are many here who would support that.

With the mutterings around the table, Mr. Chairman, I have a tough time keeping my thoughts together, but to repeat that once again, Mr. Chairman, what we have here is only the bargaining unit being able to—

Mr. Pat Martin: Mr. Chairman—

The Acting Chairman (Mr. Larry McCormick): A point of order, Mr. Martin?

Mr. Pat Martin: Mr. Chairman, there's a motion on the floor and the argument is deviating far away from the proposed amendment. Can we deal with the amendment? If there are other things on this clause, I guess they can be raised then. I don't see the relevance.

The Acting Chairman (Mr. Larry McCormick): Mr. Anders, you heard the comment.

Also, we've been asked by Mr. Anders, the speaker, to keep the noise level down in the room, but, Mr. Anders, there's also been a request for you to keep your comments focused on the amendment.

Mr. Rob Anders: I am trying, to the best of my abilities, Mr. Chairman. There are mutterings around the table, of which Mr. Martin, I think, is intimately aware.

But anyhow, what I was speaking to, Mr. Chairman, is the amendment here, in terms of including permanently reassigned employees in the vote.

Just to clarify this, I'm not looking to include them in the bargaining unit, just in the vote, Mr. Chairman. What I'm asking for here is for us to look beyond the four corners of the page and to be more inclusive with regard to this. Mr. Chairman, if we could, I think it's a good idea to include these people, because they work in the business in one way or another, and I think it's well and just that they be able to vote in these circumstances.

The Acting Chairman (Mr. Larry McCormick): Would you like to put your ideas to a vote, Mr. Anders?

Mr. Rob Anders: Hold on.

Mr. Bryon Wilfert (Oak Ridges, Lib.): Put the question. Let's move along.

Mr. Rob Anders: Do we have quorum, Mr. Chairman?

Mr. Bryon Wilfert: Yes. You've been yakking so much that you never noticed.

Mr. Rob Anders: Mr. Chairman?

The Acting Chairman (Mr. Larry McCormick): Order, please.

Mr. Rob Anders: I count nine.

The Acting Chairman (Mr. Larry McCormick): We have ten. We have a quorum.

You have the floor, Mr. Anders.

Mr. Rob Anders: I'm sorry, but I count nine.

The Acting Chairman (Mr. Larry McCormick): Will we call the vote? We have quorum.

Would you like to call the vote?

Mr. Rob Anders: All right. If you wish to go by a roll call, Mr. Chairman, then so be it, I guess. Let the idea stand.

The Acting Chairman (Mr. Larry McCormick): No. We have quorum. Would you like to call the vote on the amendment, Mr. Anders?

Mr. Rob Anders: Sorry. Excuse me, I'm hearing mutterings, Mr. Chairman.... All right, Mr. Chairman, I guess I'm calling a roll call on the amendment.

Mr. Dale Johnston: Can I have clarification on the exact amendment?

Ms. Suzanne Verville (Procedural Clerk): Yes. Mr. Anders moved the following amendment: that clause 13 be amended by the substitution at line 24 on page 14 with the following:

Any person, except a permanently reassigned employee, who was not an employee.

• 1400

The Acting Chairman (Mr. Larry McCormick): We'll have a recorded vote on the amendment to clause 13.

(Amendment negatived [See Minutes of Proceedings])

The Acting Chairman (Mr. Larry McCormick): Now we'll take a vote on clause 13.

Mr. Rob Anders: By recorded vote, Mr. Chairman.

(Clause 13 as amended agreed to [See Minutes of Proceedings])

(On clause 14)

The Acting Chairman (Mr. Larry McCormick): Shall clause 14 carry?

Mr. Dale Johnston: Mr. Chairman, I have some questions on clause 14.

Since both clauses are written in French, would the officials mind translating that for me.

Mr. Michael McDermott: You have the translation of the English version of the clause on page 14a, Mr. Johnston. You'll find on page 14a the existing English translation, which is not being changed. But when these bills are presented—

The Acting Chairman (Mr. Larry McCormick): Excuse me, Mr. McDermott, a point of order.

[Translation]

Mrs. Jocelyne Girard-Bujold (Jonquière, BQ): Forgive me, Mr. Chairman; on a point of order.

After consulting with my party I request that this hearing be adjourned during the question period. Committees always adjourn during that period. Considering the importance of the matters currently discussed in the House most notably the Hepatitis C issue, I demand that this hearing be adjourned, so that the members may attend the question period. They will return back later.

[English]

The Acting Chairman (Mr. Larry McCormick): Just for a point of information, committees have sat through the House before. I've been in that position, whether I always agreed to do it or not. But we did take a vote on it, and I understand that if we vote on it that's the way it falls out.

So sorry about that, but we'll proceed, Mr. McDermott.

Mr. Dale Johnston: In that case, Mr. Chairman, I move that we do now adjourn.

The Acting Chairman (Mr. Larry McCormick): One moment, please.

We will have a recorded vote on the motion to adjourn by Mr. Johnston.

(Motion negatived [See Minutes of Proceedings])

• 1405

The Acting Chairman (Mr. Larry McCormick): Yes, Mr. Bailey.

Mr. Roy Bailey: Mr. Chairman, would it be proper—and I beg your opinion on this as the chair—that this committee do now recess until 3 p.m.?

The Acting Chairman (Mr. Larry McCormick): I'll refer to the clerk of the committee, but I believe we just voted on that.

Mr. Roy Bailey: One was adjournment; this is a recess.

The Acting Chairman (Mr. Larry McCormick): I'll get the interpretation. One moment, please. Ladies and gentlemen of the committee, I have to get someone to rule on that.

There was a request to suspend the sitting of the committee until 3 p.m. and to clarify whether that's the same as the recess. We will have a vote on whether we will recess.

Mrs. Brenda Chamberlain: Mr. Chairman, we've appeared a number of times on this bill. Reform keeps asking to suspend, to recess. We cannot do this any more. I tried to talk to Mr. Johnston today and yesterday and the day before.

The Acting Chairman (Mr. Larry McCormick): Could I have your vote, Mrs. Chamberlain?

Mrs. Brenda Chamberlain: My vote is no. We have to move on with the work of this House of Commons.

• 1410

(Motion negatived [See Minutes of Proceedings])

The Acting Chairman (Mr. Larry McCormick): We'll return to clause 13. Shall clause 13 carry?

Mr. Anders.

Mr. Rob Anders: Mr. Chairman, we were previously speaking with regard to employees who are not in the unit, and reading through it, if I may, Mr. Chairman, any person who was not an employee in the bargaining unit on the date on which notice—

The Acting Chairman (Mr. Larry McCormick): I had to leave the room, so my mistake, we're on clause 14. I apologize.

Mr. Anders.

Mr. Rob Anders: Mr. Chairman, we're addressing clause 13. I have an amendment to move on clause 13.

The Acting Chairman (Mr. Larry McCormick): Clause 13 is closed for debate. You have the floor on clause 14, Mr. Anders.

Mr. Rob Anders: Mr. Chairman, I'd like to move an amendment on clause 13.

The Acting Chairman (Mr. Larry McCormick): Clause 13 has been passed, Mr. Anders. We're at clause 14.

Mr. Rob Anders: This is a new amendment, Mr. Chairman. This is special.

The Acting Chairman (Mr. Larry McCormick): We're on clause 14 now, Mr. Anders.

Mr. Bryon Wilfert: Mr. Chairman, on a point of order. If this is not clause 13, you should now call clause 14.

The Acting Chairman (Mr. Larry McCormick): Shall clause 14 carry?

Mr. Dale Johnston: No, Mr. Chairman, I believe my colleague has—

The Acting Chairman (Mr. Larry McCormick): Mr. Johnston, you just spoke.

Mr. Rob Anders: I want to move an amendment on clause 13.

The Acting Chairman (Mr. Larry McCormick): Clause 13 has been passed, Mr. Anders, so at this time—

Mr. Dale Johnston: Mr. Chairman, I would like some clarification on clause 14. I would like the changes made in the French section explained, please.

Mr. Michael McDermott: The lines underlined in French,

[Translation]

"While no union represents the concerned unit",

[English]

would roughly translate as “when the unit in question is not represented by another trade union”.

Mr. Dale Johnston: Okay. There's been no change at all in the English version, then, of that particular clause.

Mr. Michael McDermott: That's correct.

What sometimes happens in the drafting of a bill, Mr. Johnston, is the legislative editors have a look at the existing provisions and will sometimes make editorial changes, but certainly not any changes in substance.

Mr. Dale Johnston: Did you say that was in...?

Mr. Michael McDermott: It's on page 14a of the bill.

Unfortunately, what we've done is, if you're working from the document that was circulated, we have put the explanatory notes on the right-hand side.

Mr. Dale Johnston: Yes, I have that.

Mr. Michael McDermott: A copy of the numbered bill like this will give you pages 14 and 14a, and on page 14a you'll see the existing clauses. So in clause 14 on page 14a, you have the full English text of the current provision.

Mr. Dale Johnston: Now you're talking about the code.

Mr. Michael McDermott: No, I'm talking about Bill C-19—

Mr. Dale Johnston: About the bill?

Mr. Michael McDermott: —except that on the one we circulated, we gave some clause-by-clause comments, and therefore we got rid of page 14a from that version, but a copy of the bill will give you both pages 14 and 14a.

The Acting Chairman (Mr. Larry McCormick): Shall clause 14 carry?

Mr. Rob Anders: Mr. Chairman, I'm sorry, I wonder.... We talked about these translations. Is there a way we can independently verify all of this? It's all fine and dandy for an official of the department to tell me this, but he's a witness.

The Acting Chairman (Mr. Larry McCormick): Mr. Anders, I've heard this question asked before.

Mr. Jacques Saada (Brossard—La Prairie, Lib.): I happen to have been in my former life a professional translator, and I can testify that the translation given by the witness is quite accurate.

The Acting Chairman (Mr. Larry McCormick): Also, Mr. Anders, I know I've heard the question asked before. The people who were hired to perform this are experts in their field, and I think we have to accept that, unless we do research on our own otherwise.

Mr. Rob Anders: I'm certainly supportive of that, Mr. Chairman. I've even moved to recess or adjourn until we can....

The Acting Chairman (Mr. Larry McCormick): Shall clause 14 carry, then?

• 1415

Mr. Rob Anders: Mr. Chairman, I'm putting a motion on the floor to recess or adjourn until we have independent translation.

The Acting Chairman (Mr. Larry McCormick): Mr. Anders, I understand we have independent translators. They do not work for a party here; they work for the Government of Canada.

Mr. Rob Anders: Forgive me, Mr. Chairman, but who are we asking for the definition of the bill but the Government of Canada? I think they have a vested interest in some respects here, Mr. Chairman.

The Acting Chairman (Mr. Larry McCormick): Mr. Anders, I have clarification that the translators work for the House of Commons.

I will ask the question again. Shall clause 14 carry?

Mr. Rob Anders: I want a recorded vote on my motion to recess or adjourn for independent clarification of the translation, Mr. Chairman.

The Acting Chairman (Mr. Larry McCormick): Mr. Anders, it has just been pointed out that what you're asking for here is to stand the clause and then to clarify whether we can have independent translators to look at it or whether that's in order or not. May we proceed that way?

Mr. Rob Anders: If you wish to hold a vote on that, then, I'd be so amenable, Mr. Chairman.

The Acting Chairman (Mr. Larry McCormick): A vote has been requested on whether we can stand the clause.

Mr. Rob Anders: I want a recorded vote.

(Motion negatived [See Minutes of Proceedings])

The Acting Chairman (Mr. Larry McCormick): I'm sure our translators will be glad to see there's excellent support for their work from both sides of the table.

We shall proceed. Shall clause 14 carry?

Mr. Rob Anders: I'd like a recorded vote.

(Clause 14 agreed to [See Minutes of Proceedings])

(On clause 15)

The Acting Chairman (Mr. Larry McCormick): Shall clause 15 carry?

Mr. Johnston, you have the floor.

Mr. Dale Johnston: If a new member in an employers' association is accepted, then the union has the option of applying for certification for each of the employers individually. Is that correct?

Mr. Michael McDermott: If I could take you back one step, Mr. Johnston, the purpose of this amendment is that we came upon a situation in which there was an existing employers' organization, a new member joined, and the union refused to recognize its adhesion to that group. The matter went before the labour board and it went before the courts. It was a long process.

• 1420

What we're saying here is who belongs to an employers' association is a matter for the employers to decide, not for the union to decide, in exactly the same way that who belongs to a union and who belongs to a council of unions is a matter for the unions to decide, not a matter for the employers to decide.

The reference you're making here is that the alternative...if the union does not agree, it might try to seek individual certification with each one of the members, merely explaining that that's their alternative. What we're doing in the bill is to make it clear to employers who bargain as an association that it is the employers themselves who determine the membership of that association and it's not the union's business.

Mr. Dale Johnston: That sounds like a pretty good clause, Mr. McDermott.

Mr. Rob Anders: I'd like a recorded vote on clause 15, please.

(Clause 15 agreed to [See Minutes of Proceedings])

(On clause 16)

The Acting Chairman (Mr. Larry McCormick): Shall clause 16 carry?

Mr. Rob Anders: I'll let my colleague do the honours.

The Acting Chairman (Mr. Larry McCormick): Mr. Johnston.

Mr. Dale Johnston: Mr. Chairman, could Mr. McDermott give us some rationale as to what groups were pressing for these changes in the code?

Mr. Michael McDermott: Mr. Johnston, the whole series of amendments to section 34 relate to the longshoring industry. Section 34 applies solely to the longshoring industry, where you have situations in which a number of employers draw their labour from a pool of labour, sometimes referred to as a hiring hall.

There were long processes before the Canada Labour Relations Board and before the federal courts and before the Quebec provincial courts in relation to situations in the St. Lawrence ports. What we've done here is to codify the board jurisprudence that was eventually developed, and it will make section 34 work as was originally intended. We think we've taken care of all the objections that could be made in that respect.

Mr. Dale Johnston: What you're saying is that this was brought about as a result of concerns of both labour and management. Is that right?

Mr. Michael McDermott: Yes, absolutely.

It's the underlying words that have changed, for the most part. There are some new sections on the next page, under the same section, but in the first two parts of 34, (1) and (2), it's just the underlying words that are changing.

The Acting Chairman (Mr. Larry McCormick): Shall clause 16—

Mr. Dale Johnston: No, Mr. Chairman.

This is going to be an improvement that both sides really have asked for and it's going to really expedite things and make everyone smile. Is that correct?

Mr. Michael McDermott: It will make life on the waterfront much easier.

• 1425

Mr. Rob Anders: Mr. Chairman, I'm wondering about the purpose of underlining the words “actively engaged”, “the”, “the”, and “actively” again. What is it about the words “the” and “actively” that seem to catch the attention in such a way that they need to be underlined?

Mr. McDermott, perhaps you might be able to explain their hypersensitivity, or the need for that type of embellishment.

Mr. Michael McDermott: They're the words that are being added, Mr. Anders. It's just to assist in the reading of the bill. It's so that you know what the changes are.

Mr. Rob Anders: Let me ask you this, then, Mr. McDermott. Where it says, for example, “employers actively engaged”, is that demonstrably different from employers who are engaged? If one is engaged, is one not actively engaged, Mr. McDermott?

Mr. Michael McDermott: In this industry it is important to use the word “actively”. There are associations of maritime employers in which some employers are actively engaged in stevedoring—the people who will be covered by this provision—but some of the people in the same association may be actively engaged in shipping and not in stevedoring. They may be shipping agents or in other related activities. Only those actively engaged in stevedoring—that is, in the longshoring industry—can benefit from these clauses.

Mr. Rob Anders: That explains the “actively”, but I'm not sure that it's not redundant.

What about the question of “the”? How is “the” a word that is of such particular significance that it needs underlining? Were these two “the” words not previously included in past legislation, Mr. McDermott?

Mr. Michael McDermott: Not in this place, no. You'd have to look at the existing clause. On page 15a you can see the way it's worded. It previously said in “such an” industry, not “the” industry.

The Acting Chairman (Mr. Larry McCormick): Shall clause 16 carry?

Mr. Rob Anders: I would like a recorded vote, please.

(Clause 16 agreed to [See Minutes of Proceedings])

(On clause 17)

The Vice-Chair (Ms. Bonnie Brown): Shall clause 17 carry?

Mr. Martin.

Mr. Pat Martin: Can I ask if my vote was recorded on clause 15? I was in the room, but I'm not sure if my “yes” was registered.

The Vice-Chair (Ms. Bonnie Brown): No, she doesn't have one on clause 15.

Mr. Pat Martin: You don't have me on clause 15. I believe I was in the room, but I don't know if I had the opportunity to vote.

The Vice-Chair (Ms. Bonnie Brown): Do you want your vote recorded as a “yes” on clause 15?

Mr. Pat Martin: Yes, I do, if that's possible.

The Vice-Chair (Ms. Bonnie Brown): Can we have the unanimous consent of people in the room?

Some hon. members: Agreed.

Mr. Pat Martin: Thank you.

The Vice-Chair (Ms. Bonnie Brown): Shall clause 17 carry?

Mr. Dale Johnston: No, we have some questions in this regard.

There are some underlined areas in this clause. They tend to talk about the declaration of a single employer. I wonder if Mr. McDermott would like to speak to that for a moment.

Mr. Michael McDermott: The underlined words again are the additions or the changes to the clause. What's being proposed here is to make it clear that both a trade union and an employer have the right to make an application for the declaration of a single employer.

• 1430

Under the current wording of the code, the inference is, although the wording is not there, that only a union may make that application. In times when there are major structural changes in industries and so on, the employer may have just as much interest in applying for a declaration of a single employer. It's giving the employer a very clear option to be able to do that. So it's just evening the scales, as it were.

Mr. Dale Johnston: Was there much demand for this? Was there a large amount of need to have this changed? Was the government lobbied by both employers and employees to have this change made?

Mr. Michael McDermott: The board itself dealt with a number of cases, and it was developing a jurisprudence in which it was allowing employers to come before it in these matters. That's the source of this. The Sims task force took note of the board issues in this respect, and several employers expressed to Sims that they should be given clear indication that they could make applications.

Mr. Dale Johnston: Is that in fact how considerable amounts of labour legislation are arrived at, through boards' decisions that become jurisprudence that eventually wind up being codified later on?

Mr. Michael McDermott: That is one of the sources. It's just like any other statute passed by the Parliament of Canada that may be interpreted by an administrative tribunal or the courts. They may discover that certain things don't work as intended or that new situations have arisen that are not covered by the clause, and they may comment. They're looked at by policy-makers and considered, and if there's a need for amendment, it's put forward.

Much in this bill is that way. Other parts come from consensus between labour and management who work under the code.

Mr. Dale Johnston: Is this one of those areas? I guess not. I guess you've already referred to this as one that's come about as a result of decisions made by the board.

Mr. Michael McDermott: Yes, decisions made by the board and some indications from employers that they would like this kind of power.

Mr. Dale Johnston: In the case where a decision is made by a board and it's obviously in a new area that if accepted would become jurisprudence later on, would there be any method by which one of the parties could appeal that decision on the ground that this had not been done before and that it's not exactly given them the liberty in the code?

Mr. Michael McDermott: Yes. If they exceed what the code allows them to do, the board's decisions and orders may be reviewed by the Federal Court, as I've explained before, if it's a matter within their jurisdiction. But if there's a disagreement as to the validity of the decision they've made, that can be reviewed by the internal review process, which can go to another level of the board, up to a plenary session of the board itself.

Mr. Dale Johnston: So basically what we're saying here is that the board can exceed its jurisdiction so long as nobody calls them on it.

Mr. Michael McDermott: Well, I guess that happens in a number of cases. If people don't complain, things go forward. But that doesn't happen very often. I assure you that the parties pay great attention to what the board orders.

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

Mr. Roy Bailey: Mr. McDermott, in relationship to this, you can have one employer, and you mentioned earlier in response to a question I had that you can also have one group. In a sense, at any one time, you could have one employer representing a number and you could have one trade union negotiating at the same time representing another as well, right?

Mr. Michael McDermott: Well, in the second case, Mr. Bailey, what you normally would see is a council of trade unions, where there would be two or more trade unions in a council.

Mr. Roy Bailey: Oh, okay. Thank you.

The Vice-Chair (Ms. Bonnie Brown): Shall clause 17 carry?

Mr. Rob Anders: I have a question for Mr. McDermott.

Mr. McDermott, it says, “Where, on application by an affected trade union or employer”. Can you give examples of where an employer would go ahead and make an application that they are in a sense multiple bargaining units or that they should be amalgamated for the purpose of putting them all in one bargaining unit?

Mr. Michael McDermott: Well, Mr. Sims and his colleagues in their report talked about this particular provision being useful. He says:

Single or common employer provisions are not only designed to protect against union avoidance schemes. They are also useful where, for tax, ownership or risk management reasons, businesses choose to operate associated undertakings together under common control.

• 1435

So we're talking about restructuring.

Mr. Rob Anders: Surely, Mr. McDermott, in terms of tax structuring, you'd think a corporation would be able to determine its own best interest in terms of how it structures its taxes. Would it not?

Mr. Michael McDermott: But it can't, at the moment, determine what bargaining relationship it would have, so this gives it an opportunity to come together for bargaining purposes.

Mr. Rob Anders: Does a business or those who represent it not have the ability to sign those respective bargaining agreements as they see fit in the circumstances? Certainly they're free to do that, aren't they?

Mr. Michael McDermott: If you have, say, a union certified with four companies that then end up wanting to make themselves into one company, until the paperwork is corrected, the company will have to sign four times. So this is just helpful to the companies, Mr. Anders.

Mr. Rob Anders: I have a sneaking suspicion that they wouldn't have done that if they didn't find it in their vested interests and they thought it was best for their operating procedures to be four separate companies.

Mr. McDermott, this applies not only to federally regulated private companies. This also applies to some government departments, in a sense. Right now, I know, there are discussions in terms of whether there should be something set up as an arm's-length relationship with Revenue Canada, so that Revenue Canada, in a sense, is independent and has a corporate mentality—I'm not sure if “corporate” would be the word—and has some independence from the government directly. At Revenue Canada, they feel they'd be more efficient that way.

My understanding of the way this is worded is that basically that change that's looking to be made right now to the structure of Revenue Canada would therefore not be as effective as they otherwise would hope, because part of the reason they were doing it was to separate themselves from the bargaining structure they're in right now. So I'm going to ask you, Mr. McDermott, with respect to Revenue Canada's plan to set up an arm's-length body, would it not be impacted by this?

Mr. Michael McDermott: Not in any way whatsoever, Mr. Anders. As you're well aware, I think, the Public Service of Canada and separate employers of government agencies are under the Public Service Staff Relations Act and have nothing to do with the Canada Labour Code.

Mr. Rob Anders: Certainly, Mr. McDermott, this would, in a sense, be helping to push the goalposts, as it were, would it not?

Mr. Michael McDermott: No.

Mr. Rob Anders: All right. That's your opinion, I guess.

I'm also going to ask, Mr. McDermott, about the mention in clause 17 of the whole idea of association—“associated or related federal works, undertakings or businesses”—and I'd like to inquire as to the nature of that linkage when you say “associated or related federal works”. Could you further define the nature of that linkage? What exactly is considered “associated or related”? That sounds like an awfully broad scope to me.

Mr. Michael McDermott: In the first place, Mr. Anders, we're not changing that. That's in the current code. It's not underlined, but just for information purposes, “associated or related” would mean that there's some element of common control and common activities.

Mr. Rob Anders: The reason I asked the question, Mr. McDermott, is that we're not just looking, I guess, at making your changes to the code; we're looking at making changes, and that's why this is before the committee—not just to rubber-stamp but to actually look at making substantive changes.

I also have a question, Mr. McDermott. Actually, I'm going to move an amendment as follows. I'll read from the top and then insert the amendment and then read it with the amendment. Without the amendment, the clause reads—

The Vice-Chair (Ms. Bonnie Brown): Go on with the amendment. We're able to read it without the amendment.

Mr. Rob Anders: Fair enough. I'll read it with the amendment:

Where, on application by an affected trade union or employer, associated or related federal works, undertakings or businesses are, in the opinion of the Board, operated by two or more employers having common control or direction, the Board may declare

—I'm striking the words “by order” so that the board may declare—

that for all purposes of this Part the employers and the federal works, undertakings

—etc.

• 1440

The reason I'm suggesting that is because down at the bottom it indicates

Before making such a declaration, the Board must give the affected employers and trade unions the opportunity to make representations.

What I'm trying to do here is change the nature and I guess the standing of the word....

Where did Mr. McDermott go?

Well, Mr. McDermott, the question as it stands, when you get back to the table, is the nature and the standing of the board and how it relates to “by order”.

The Vice-Chair (Ms. Bonnie Brown): Mr. Anders has made an amendment that deletes the two words “by order” on line 26.

Would you repeat the question, Mr. Anders?

Mr. Rob Anders: Indeed, Madam Chairman. What I've done is remove the words “by order”. The reason I'm doing that is because I'm trying to change the standing of the board. In a sense, I'm trying to prevent any excessive jurisdiction—I think those were some of the terms that were previously used—in this case so that it's even more striking that employers and trade unions have the opportunity to make representations. Indeed, this is more a suggestive power of the board than something that can be ordered by the board.

The Vice-Chair (Ms. Bonnie Brown): I don't think your amendment is achieving that. Requiring an order is actually requiring more of the board. By omitting those words, you're allowing them to declare, which is a very simple thing to do. So you're giving them more power by taking those words out.

Mr. Rob Anders: Maybe we need to change a little bit more, then, Madam Chair.

The Vice-Chair (Ms. Bonnie Brown): I'm just trying to help you out, Mr. Anders, so that your words do what you want them to do.

Mr. Rob Anders: Let's look at it, then. Right now it reads, “the Board may, by order, declare”. Maybe we should change that to read something to the effect that the board may—I'm looking for something a little less forceful than “direct”—the board may suggest, the board may make application, the board may—

The Vice-Chair (Ms. Bonnie Brown): Who would they apply to?

You already have an amendment on the floor and we cannot amend your amendment, apparently.

Mr. Rob Anders: I'll move a second amendment after we've dealt with this first one, I guess, Madam Chairman.

The Vice-Chair (Ms. Bonnie Brown): Can we vote on Mr. Anders' first amendment, the deletion of the words “by order”?

Mr. Dale Johnston: I have a question on Mr. Anders' amendment to delete “by order”.

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

Mr. Dale Johnston: I actually think this is more forceful. If Mr. Anders is looking at something forceful, I think this may be more forceful, because this is—

Mr. Rob Anders: I'm looking for something less forceful.

Mr. Dale Johnston: Oh, you're looking for something less forceful.

Mr. Rob Anders: Yes.

The Vice-Chair (Ms. Bonnie Brown): Mr. Johnston has gotten his clarification. I'll call the question on the amendment.

Those in favour of the amendment to eliminate the words “by order”.

Mr. Rob Anders: A recorded vote, Madam Chairman.

(Amendment negatived [See Minutes of Proceedings])

Mr. Rob Anders: Madam Chair, I have another amendment, then, that I think is probably a little more amenable to those in attendance here today.

The Vice-Chair (Ms. Bonnie Brown): Please state it.

Mr. Rob Anders: Where it reads “the Board may, by order, declare”, we would replace that with “the Board may note that for all purposes of this Part the employers”, etc. We're striking the words “by order” and “declare” and putting in the word “note”, so “the Board may note that for purposes”. We're also striking the two commas in there.

• 1445

The nature of that is to give the board a notification power but to remove from it any possibility of being onerous in terms of issuing orders, declarations, assertions, or those types of things, and therefore live up in true measure to the bottom where it says:

Before making such a declaration, the Board must give the affected employers and trade unions the opportunity to make representations.

I think in many respects we're strengthening that last sentence and making it clearer, and once again removing some of the caprice, arbitrariness, and power we're otherwise conferring upon the board in these matters.

The Vice-Chair (Ms. Bonnie Brown): We have a second amendment on the table to eliminate certain words and give the board the power to note something.

Mr. Rob Anders: I have some questions for Mr. McDermott on this.

Mr. McDermott, in the case of noting, where we remove the words “by order” and “declare”, I wonder right now, by ordering and declaration, if we change them to the word “note”, how you see that affecting the order in which the board would go about noting these types of things.

Mr. Michael McDermott: It would render the board impotent in such matters, Mr. Anders—a terrible thing.

Mr. Rob Anders: It would still allow the board to go ahead and make note and draw attention to these things, would it not?

Mr. Michael McDermott: But it couldn't bring matters to a conclusion.

The Vice-Chair (Ms. Bonnie Brown): To note something has absolutely no impact, so you are removing any impact the board might have that is provided by this clause.

Mr. Rob Anders: I would assert that's probably a point of debate, because noting things does have impact. I take notes all the time and I think they have some sort of impact. But I guess that's all a matter of interpretation. I would say that noting these things still has impact. But certainly if we remove the ability of the board to go ahead and order and declare, we're putting it more in its appropriate scope.

If others wish to comment—

The Vice-Chair (Ms. Bonnie Brown): I think it's clear. You have tried one amendment and it has failed to carry. This other one has a slight shading of change. I'm going to call the question.

Mr. Rob Anders: A recorded vote.

(Motion negatived [See Minutes of Proceedings])

The Vice-Chair (Ms. Bonnie Brown): I'd now like to call the question.

Mr. Dale Johnston: On clause 17 a change has been made to add “Before making such a declaration”. Does this imply that at some time the board has made declarations without actually hearing the concerns of the affected employers and trade unions?

• 1450

Mr. Michael McDermott: No, it's not meant to imply that; it's simply meant for re-emphasis. What we're doing in this code is encouraging the parties to resolve the matters themselves. It's making clear the order of things, and that before making a declaration, the parties have been able to make representations. That's all. It's just clarifying.

Mr. Dale Johnston: So were there some concerns actually brought forward that precipitated making these changes?

Mr. Michael McDermott: I don't believe so, Mr. Johnston. I believe this is one of those things where the legislative editors got a bit poetic.

Mr. Dale Johnston: I see. So this is, I guess, what we euphemistically refer to as “housekeeping”.

Mr. Michael McDermott: That's it, yes.

Mr. Dale Johnston: Well, if I were the housekeeper, I think I would have housekept a little more.

The Vice-Chair (Ms. Bonnie Brown): I'm calling the question on—

Mr. Rob Anders: Madam Chairman, I'm wondering about this from Mr. McDermott. Look at the last sentence in proposed subsection 35(1):

Before making such a declaration, the Board must give the affected employers and trade unions the opportunity to make representations.

I guess what I'm wondering is this. What type of time periods or parameters define an opportunity? How long do these employers and trade unions have to make their preparations for these representations? What time period is given?

Mr. Michael McDermott: A reasonable opportunity, Mr. Anders. It's the legal concept of reasonableness.

Mr. Rob Anders: With all of Bill C-19, you're looking to codify what was, in a sense, a precedent before. I'm asking for what the precedent was before, in a sense, with regard to the time periods for what was a reasonable opportunity.

Mr. Michael McDermott: Because the time period will change from case to case, it's not defined any closer than that. It would be interpreted as a reasonable opportunity that would be consistent with natural justice. People need to have an opportunity to prepare representations and the time to make them. It will vary from case to case.

Mr. Rob Anders: Mr. McDermott, do you or Ms. Beaupré know what the shortest time period made available to either a trade union or an employer was in this circumstance?

Mr. Michael McDermott: No.

Ms. Yvonne Beaupré (Senior Counsel, Legal Services, Department of Human Resources Development): I don't either.

Mr. Rob Anders: Do you know what the longest time period was in terms of allowing people to make a so-called reasonable representation or opportunity to make a representation?

Mr. Michael McDermott: No, I don't have it with me.

Mr. Rob Anders: All right, I'm going to move an amendment then. Where it says:

the Board must give the affected employers and trade unions the opportunity to make representations.

I'm going to go ahead and word it this way:

the Board must give the affected employers and trade unions the reasonable opportunity of one month to make representations.

Mr. Pat Martin: Did you just pull that out of the air, Rob?

Mr. Rob Anders: I was trying as best I could to get a reasonable estimate from Mr. McDermott and Ms. Beaupré. As a result, because we're trying to codify what is precedent, and since I wasn't provided with precedent, I'm in the seat where I have to, in a sense, go by what I consider to be reasonable. In that case, I'm going to word that as “the Board must give the affected employers and trade unions a minimum”....

Excuse me, I'm going to reword that:

the Board must give the affected employers and trade unions a minimum one-month opportunity to make representations.

Do the clerks and everybody have that down? It's a “minimum one-month opportunity”. So we're striking the word “the” and putting in “a minimum one-month”. Is that clear enough to follow? Okay? Great.

• 1455

Mr. McDermott, you said you believed in “reasonable”. I asked you for a short time line; I asked you for a long time line. You couldn't recall. Can you tell me whether or not you think a month is reasonable?

Mr. Michael McDermott: It might be in some cases; it might be too long and it might be too short in other cases. That's the whole purpose of leaving it open.

Mr. Rob Anders: In what cases do you think a month would be too long?

Mr. Michael McDermott: A difficult case, maybe.

Mr. Rob Anders: Do you mind being a little more specific?

Mr. Michael McDermott: I don't think I need to be more specific, Mr. Anders. This is in the hands of the board to determine, and it has to operate within the confines of natural justice. The concept of reasonableness is well-trodden ground in legal circles.

Mr. Rob Anders: Well, Mr. McDermott, I fail to see where one month or something less than a month is not unreasonable.

The Vice-Chair (Ms. Bonnie Brown): Mr. Anders, you are putting forward an amendment, which means you believe it's the right thing to do. I don't know why after you put the amendment forward, you then ask the staff what they think about it.

Mr. Rob Anders: I'm seeking clarification, Madam Chair.

The Vice-Chair (Ms. Bonnie Brown): You should ask the clarification questions before you move the amendment. Then we could ask you for clarification of your amendment.

Mrs. Brenda Chamberlain: He doesn't even know what he's putting forward.

The Vice-Chair (Ms. Bonnie Brown): You don't move an amendment and then ask somebody else what it means.

Mrs. Brenda Chamberlain: You're badgering the bureaucrats. That's not fair.

Mr. Rob Anders: Madam Chairman, I'm open. If you wish to ask me clarification of my intention, you're allowed to do so.

The Vice-Chair (Ms. Bonnie Brown): No. All I'm saying is be responsible. If you're going to put forward an amendment, the rest of us have the right to assume that you understand what you're doing. You don't move the amendment and then say, “I don't understand what my amendment means, or the impact of it”.

Mrs. Brenda Chamberlain: But he doesn't. Clearly he doesn't understand what he's doing.

Mr. Rob Anders: All right. Let's go ahead. My apologies, Madam Chair.

The Vice-Chair (Ms. Bonnie Brown): I don't mind accepting your amendments, Mr. Anders, but I would really be much more comfortable if I thought you understood what they meant.

Mr. Rob Anders: All right, Madam Chairman. Just for the point of clarification then, Madam Chair, do you think that allowing for a one-month minimum opportunity is unreasonable?

The Vice-Chair (Ms. Bonnie Brown): I am the chair; I'm not allowed to have an opinion. The question is, do you believe in the amendment you put forward?

Mr. Rob Anders: I do.

The Vice-Chair (Ms. Bonnie Brown): That's all you need to be comfortable with as an individual member.

Mr. Rob Anders: Madam Chairman, I'd like to ask the parliamentary secretary if she feels that allowing for a one-month minimum opportunity is unreasonable.

The Vice-Chair (Ms. Bonnie Brown): Do you want to answer that?

Mrs. Brenda Chamberlain: Thank you, Madam Chair. I would like to put this to a vote, and Mr. Anders will see very quickly what I think of it.

The Vice-Chair (Ms. Bonnie Brown): I'm calling the question, then.

Mrs. Brenda Chamberlain: Thank you.

Mr. Rob Anders: As parliamentary secretary, I think it's....

The Vice-Chair (Ms. Bonnie Brown): The same principle applies, Mr. Anders. You're obviously not getting it. The idea is that a member of a committee or a member of Parliament in the House does not put forward an amendment that he or she does not understand the implications of, because to do so would be irresponsible. You don't move an amendment and then ask other people what it means.

Mr. Rob Anders: I think it's reasonable. I'm trying to judge whether or not other people feel it's reasonable.

The Vice-Chair (Ms. Bonnie Brown): That's a risk you take when you move an amendment. You don't have to know whether we think it's reasonable. I'm going to call the question on this amendment of a one-month period.

Mr. Rob Anders: A recorded vote.

(Amendment negatived [See Minutes of Proceedings])

The Vice-Chair (Ms. Bonnie Brown): Will clause 17 carry?

Some hon. members: Agreed.

Mr. Dale Johnston: Madam Chairman, I have a question on clause 17. Could Mr. McDermott give us some examples where the board has made a declaration under proposed subsection 35(1) to determine one or more units, where the employees affected constitute one or more bargaining units? Can you give us an example in the past of where the board has made declarations pertaining to common employers?

• 1500

Mr. Michael McDermott: We're still on clause 17, aren't we?

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

Mr. Dale Johnston: Yes, proposed subsection 35(2).

Mr. Michael McDermott: Well, this has occurred in the trucking industry. I don't have specific examples for you. I think it may have occurred in broadcasting as well, but it certainly has in trucking.

Mr. Dale Johnston: Without being too specific, could you give us examples of more or less what happened there?

Mr. Michael McDermott: Ms. Robinson used to work with the board, and she has some thoughts on cases she was involved in.

Mr. Dale Johnston: Thank you.

Ms. Debra Robinson (Project Director, Legislative Review, Department of Human Resources Development): I can think of one case that comes to mind. There was an employer who operated several radio stations and the staff worked for all of them. They would move from one station to the other because they were small stations. A technician, for example, might work part-time in one and part-time in another, and the stations were all owned by the same employer. In those circumstances there was a single-employer declaration. That's the one example I can think of that was specific.

Mr. Dale Johnston: Weren't they all working for the same employer? They just went from station to station. They were still.... What was the problem? Were they under different unions?

Ms. Debra Robinson: The union applied to represent the employees at all the stations as if it were one employer. The board had to first determine whether or not there was one employer or more. They determined there was one employer. They determined that the bargaining unit covered all the employees, and then they determined whether the union represented the majority and issued a certification.

Mr. Dale Johnston: Okay, that's very clear. What is not clear is what the case was prior to that? Were the different stations all treating their employees like different employers?

Ms. Debra Robinson: In that particular case the employees were not unionized. This was raised by the union when they applied for certification. They simultaneously asked for a single-employer declaration.

Mr. Dale Johnston: So this really isn't as much about a single employer as it is about certification. There doesn't seem to be any question that they had a single employer in the beginning, but they were not all under the same union.

Ms. Debra Robinson: No; the issue the board had to decide was whether each radio station was an individual employer and the union could get certified for each group individually, or whether the bargaining unit should include all of the employees working for all of the radio stations.

Mr. Rob Anders: Madam Chair, now that I have a better understanding of proposed subsection 35(2), I'd like to make an amendment. The amendment is the following. It reads right now that:

The Board may, in making a declaration under subsection (1), determine

I would like to change that to:

The Board may, in making a declaration under subsection (1), suggest

It would involve striking the word “determine” and replacing it with the word “suggest”.

The Vice-Chair (Ms. Bonnie Brown): I think I'm going to rule that amendment out of order, because “determine” means make a final decision. “Suggest” implies sort of saying something to the wind, so your amendment is actually reversing the purpose of that clause. You cannot introduce an amendment that intends to go completely the other way from what the clause is already saying.

Mr. Rob Anders: Madam Chair, the intention of the clause, as I understand it, is to draw attention to whether or not employees affected constitute one or more units appropriate for collective bargaining.

The Vice-Chair (Ms. Bonnie Brown): You misunderstand, then. You're not reading correctly. It's not to draw attention to; it's to make a ruling. They are ruling whether it's one or more bargaining units. They are making a ruling, and to “suggest” something has no impact in the proceedings. To “determine” does.

If you don't like them having the ability to determine, again I say you vote against the clause. To “suggest” something has no meaning and is the opposite of having the ability to make a ruling.

• 1505

Mr. Rob Anders: Once, again, Madam Chairman, I think you're trying to oversimplify what I'm trying to make as a helpful—

The Vice-Chair (Ms. Bonnie Brown): No, I declare this amendment out of order. If you're unhappy, you can challenge the chair.

Mr. Rob Anders: Is that a votable motion, Madam Chairman?

The Vice-Chair (Ms. Bonnie Brown): There's no motion. I'm declaring your amendment as presented to be out of order.

Mr. Rob Anders: I'm asking you whether or not challenging the chair is a votable motion.

The Vice-Chair (Ms. Bonnie Brown): Yes, it's votable.

Mr. Rob Anders: Let's vote on that, then.

The Vice-Chair (Ms. Bonnie Brown): Mr. Anders has challenged the chair because I have just declared his amendment to be out of order because it is opposite to the intent of the statement that he's trying to amend. Those in favour of the chair?

Mr. Rob Anders: A recorded vote.

(Motion agreed to [See Minutes of Proceedings])

The Vice-Chair (Ms. Bonnie Brown): Moving on, I'm going to call the question on clause 17 now.

Mr. Rob Anders: A recorded vote.

• 1510

(Clause 17 agreed to [See Minutes of Proceedings])

(On clause 18)

Mr. Dale Johnston: Madam Chairman, I have some questions on clause 18.

The Vice-Chair (Ms. Bonnie Brown): Mr. Johnston has questions.

Mr. Dale Johnston: A portion of the bill that I have in front of me here—and I have the code as well—talks about striking out the word “and” at the end of paragraph (b) and adding the word “and” at the end of paragraph (c) and by adding the following paragraph after (c).

Could you tell me how that would read as far as the amended part of the act is concerned? I don't see it there.

Mr. Michael McDermott: Mr. Johnston, because the (d) is being added, the “and” is being removed from (b) and put at the end of (c) as a prelude to paragraph (d). That explains the “and”.

Mr. Dale Johnston: You took it out of one spot and put it in the other, and it would read....

Mr. Michael McDermott: Then (b) would finish with the words“employees” and (c) would end with the word “and”. Then we'd have (d), which you have there on page 17 of the bill:

(d) the trade union so certified is deemed to be the bargaining agent for the purposes of paragraph 50(b).

So you're adding a (d) to subclause (1).

The Vice-Chair (Ms. Bonnie Brown): It seems to me it's mainly grammatical, other than paragraph (d).

Mr. Dale Johnston: It was just for clarification, just to make sure I was reading it correctly.

The Vice-Chair (Ms. Bonnie Brown): Are there further questions?

Mr. Dale Johnston: Madam Chairman, for unions that make an application under section 24.1, are they different in any way from other applications? Is there some sort of special consideration there that there's a provision made for them that's different? How is the certification for a trade union that's applied under section 24.1 different from other applications?

• 1515

Mr. Michael McDermott: Proposed section 24.1 is the general application for a trade union. The rest of the proposed section sets out the timing for when it can be done. Of course in this bill there's provision for a voluntarily recognized trade union to make an application at any time, so that's a little different. But proposed section 24.1 is the general approach to how an application is made.

Mr. Rob Anders: Out of curiosity, Mr. McDermott, is there a reason the other special applications, other than the general application, are not included in clause 18?

Mr. Michael McDermott: You're now back at the bill. You're back at the limitation, is that right?

Mr. Rob Anders: Yes, that's right.

Mr. Michael McDermott: Proposed subsection 36(3) is where we get to that case. We put the note in the explanatory material we provided the committee. Where a voluntarily recognized trade union applies for certification, what they're saying is it doesn't get the right to start bargaining if it's during the term of the agreement.

An application under proposed section 24.1, if you read through the whole thing, leads to a point where, once certified, the union can give notice to bargain. We don't want that to happen in the case where a collective agreement is in existence and has a defined term and the union, which is voluntarily recognized by virtue of having that collective agreement, gets certified halfway through its term. It doesn't have the ability to give notice to bargain until the proper time, at the end of the collective agreement.

The Vice-Chair (Ms. Bonnie Brown): Roy, you have a question?

Mr. Roy Bailey: I'm sorry, Madam Chairman. I got reading ahead and I got into another subsection. I apologize for that. I'll get it when we get there.

Mr. Rob Anders: Madam Chairman, when it comes to the idea of general application versus special application, I'm sorry, I still don't understand why we have a differentiation there. Why doesn't it say basically “all applications” instead of just specific applications under proposed section 24.1? If it includes the general application, I don't see why it would apply at all.

Mr. Michael McDermott: The purpose is to make it not possible for a union voluntarily recognized that then goes to certification to reopen the agreement. It's a special case. It's not the regular way of achieving certification. Normally you achieve certification by applying for it, either when there's no union in existence or when there's another union there and there's a time given in the code for when that union's recognition rights can be challenged.

We're adding this particular case, which is where there's a voluntary recognition and an application for certification can be made at any time. We're just saying that doesn't give you the right then, immediately after you get certification, to reopen the collective agreement. That's all that's being said. So the reason it's specific is it deals with a specific case.

The Vice-Chair (Ms. Bonnie Brown): I'm calling the question, then, on clause 18, on a recorded vote.

(Clause 18 agreed to [See Minutes of Proceedings])

• 1520

(On clause 19)

Mr. Rob Anders: Madam Chairman, I have some questions on clause 19.

In proposed subsection 36.1(1), it says, “the employer must not dismiss or discipline an employee in the affected bargaining unit without just cause.” Here my question comes down to a practice known as snowballing, whereby after there's been some sort of strike or lockout situation and an employee has been found to be slashing tires, beating cars with pickets, and causing all sorts of violence on the picket line, what happens is the union tries to negotiate it away. They say to the employer that they're not willing to touch anything else in the collective agreement or move past that point unless those employees are forgiven, in a sense, and there's no dismissal or discipline applied against those employees.

I can think of taxicab companies in Toronto that faced this. I know this happened on the CP rail sites in Calgary during some of the altercations that happened there during the last strike at that site in Calgary.

I'm going to ask Mr. McDermott how this applies to the whole practice of snowballing and what his thoughts are on this, and whether or not this is something that allows the union to negotiate away violence that occurs on the picket line sites and to bury some of this in the snowballing practices.

The Vice-Chair (Ms. Bonnie Brown): I'm not sure the staff understands these slang words.

Mr. Michael McDermott: Snowballing is a new one to me, I'm afraid, Madam Chair, but I think I get the idea.

The Vice-Chair (Ms. Bonnie Brown): Who would like to respond to this one?

Mr. Michael McDermott: It doesn't apply in this case.

The Vice-Chair (Ms. Bonnie Brown): It doesn't apply, okay.

Mr. Michael McDermott: This doesn't deal with strike situations, Mr. Anders.

Mr. Pat Martin: If I could add a word, that was my read on it too. While I was listening to Mr. Anders' lengthy intervention, I didn't see how this clause had anything to do with lost time due to strikes or lockouts or picket line violence. They're talking about the date that certification is granted and the date that a first collective agreement is reached—that interval between, when there's a first contract achieved.

The Vice-Chair (Ms. Bonnie Brown): This is not talking about a strike, Mr. Anders, where there might be a picket line or violence there. This is talking about a period of time when probably the place of work is operating normally, a piece of paper has been sent in, and people are waiting for another piece of paper to come back. I think the scenario you described does not apply here.

Mr. Rob Anders: Well, unfortunately some of these problems don't just erupt during strikes.

The Vice-Chair (Ms. Bonnie Brown): Well, that's the example you chose, I'm afraid.

Mr. Rob Anders: Well, it's probably the best-known example, but they occur at times outside of strikes and lockouts, Madam Chairman.

The Vice-Chair (Ms. Bonnie Brown): In any case, if you have another question, please try to limit it to the clause.

Mr. Rob Anders: I think Mr. Bailey has a question right now.

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

Mr. Roy Bailey: Mr. McDermott, I'm always interested in this phrase, having served on both sides of the fence, as you may say. The terminology “without just cause” is just about as old as any piece of legislation can be, and it's also one of the most debated pieces of legislation. Who adjudicates in this particular case the phrase about just cause? Does that go back to the Labour Relations Board?

Mr. Michael McDermott: No, Mr. Bailey, that would go to arbitration if it could not be resolved between the parties.

What this provision is doing is, when there's no collective agreement in existence because one has not yet been negotiated, it is putting into effect a grievance arbitration procedure. So matters that occur during that time can in fact be referred to a third party for adjudication as to whether there has been just cause or not, sir.

Mr. Roy Bailey: Thank you. And am I up to date now in saying that in the contractual arrangements between the employee and the employer, this term, “just cause”, also has some negotiative bearing?

Mr. Michael McDermott: It's well trodden in jurisprudence, Mr. Bailey.

Mr. Roy Bailey: At the present time?

Mr. Michael McDermott: At the present time, yes.

Mr. Roy Bailey: Okay. Can I ask you another question, sir?

The dismissal procedure of an employee then would be guided by both the employer and the employee under the clause, so that the dismissal then would be an arbitrary thing after the point of dismissal, if either side wished it to be?

Mr. Michael McDermott: Well, I would assume the employer who had dismissed the employee wouldn't be taking it to arbitration—

Mr. Roy Bailey: No, they wouldn't be; that's right.

Mr. Michael McDermott: —but they would respond. So the union representing the employees, which is applying for certification, or the employee himself, could probably launch the arbitration proceedings and the employer would be required to respond.

• 1525

Mr. Roy Bailey: Thank you.

Am I correct in saying that in clause 19, during the period that begins certification and so on, the protection is there to make this a level playing field in the certification process, where no intimidation could be used? Is that correct?

Mr. Michael McDermott: That's certainly the purpose. I may have misled you slightly. Certification has happened and we're now at the stage of negotiating a collective agreement. During that time there is no provision of a collective agreement, because it doesn't exist, that would provide that forum. The idea is that if some incident takes place that results in dismissal, the fairness of that dismissal could be adjudicated.

Mr. Roy Bailey: Am I correct that with this legislation during this period of time it would be a critical area for that dismissal?

Mr. Michael McDermott: It could be. Certainly at the moment nothing exists. Perhaps Madam Beaupré can correct me, but I think part III of the code, the labour status, which has an unjust dismissal provision wouldn't apply because these people would be represented, although there has to be a collective agreement, I think.

This gives an additional thing for discipline and dismissal. Part III only applies to dismissal as such.

Mr. Roy Bailey: Thanks very much.

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

Mr. Dale Johnston: I have a question.

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

Mr. Dale Johnston: I see that clause 19 has a provision for the use of an arbitrator for final settlement. While that is quite a long way from a dispute settlement mechanism, it is in a sense a dispute settling mechanism.

I see the department has made some steps in using a settlement mechanism where it would be of benefit to the unions. As people around this table know, I have made the case many times that we should have a dispute settlement mechanism in some of the areas that are very much affected by work stoppages, which have a huge impact on the national economy. While this is quite a leap from a dispute settlement mechanism, it is at least a step in the right direction. I'm wondering if Mr. McDermott draws any parallels there.

Mr. Michael McDermott: I don't draw the parallel you would draw, Mr. Johnston, simply because we're dealing here with individual grievances. It's well established, and has been for a long time in Canadian labour legislation, that the statute provides that there must be a way of resolving these individual grievances without work stoppage. The kind of arguments you're concerned with deal with interest disputes where the collective agreement is up for renegotiation, which is quite a different concept.

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

Mr. Roy Bailey: Thank you, Madam Chairman.

Just on this case in point we're discussing, what has been the success rate in the past of this settlement in the dismissal? Do you have any idea how this has worked in the past?

Mr. Michael McDermott: I've looked more at part III of the code, the labour standards provisions, for unjust dismissals for unorganized people, and the settlement rate before they go to adjudication is very high. I've heard it quoted that it's as often as high as 70%. And as a prelude to the prospect of arbitration, a negotiated settlement of some kind, either reinstatement or some compensation is negotiated. That continues to be the case.

Mr. Roy Bailey: That was on the independent level or the private level. Mr. McDermott, you think, as it's been related in this clause 19, that percentage would probably remain about the same?

Mr. Michael McDermott: I would think so. It's a well-established procedure. We're just putting it in a different place where it doesn't exist at the moment.

• 1530

Mr. Roy Bailey: So that's all it is. We're moving it from practice into legislation.

Mr. Michael McDermott: We're moving it from when the collective agreement is in force to a period when there is no collective agreement in force.

Mr. Roy Bailey: Thank you very much.

The Vice-Chair (Ms. Bonnie Brown): Mr. Johnston, are you finished?

Mr. Dale Johnston: Actually, no, I'm not.

It says here in the code that:

the Board may make or issue any order or decision, prescribe any term or condition or do any other thing in relation to any person or organization, the Board may do so, either generally or in any particular case or class of cases.

That's under section 19 in the code.

Oh, I'm sorry; I'm on completely the wrong page. It's been a long morning. Perhaps you hadn't noticed.

Actually, Madam Chairman, unless my colleagues have any questions, I think the officials have answered my questions.

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

We'll call the question on clause 19.

Mr. Dale Johnston: Recorded division, Madam Chairman.

(Clause 19 agreed to [See Minutes of Proceedings])

(On clause 20)

Mr. Dale Johnston: Clause 20, Madam Chairman, is the one Mr. McDermott and I talked briefly about before we got to it. I was assured that it is a mirror of another clause regarding union decertification.

Perhaps, Madam Chairman, Mr. McDermott would explain the steps a union would go through under these circumstances to decertify.

Mr. Michael McDermott: This particular clause is parallel to the earlier clause that was discussed in relation to the application for certification during a strike or lockout. It was simply removing the six-month time limit from this.

The code currently provides for the decertification application to be made at certain times. The application is made to the board by an employee, a member of the bargaining unit who purports to represent a majority of members of that bargaining unit. The board considers that application, makes a determination, and says either the application is sustained or it fails.

Mr. Dale Johnston: So this is strictly a judgment call. After the board hears the evidence, they make the judgment.

Mr. Michael McDermott: They make the judgment as to whether the application is supported by a majority of employees in the bargaining unit.

Mr. Dale Johnston: How would they go about doing that? Through a secret ballot?

Mr. Michael McDermott: They can do it by a vote, if they wish. Remember, the board can order a vote in any circumstances.

Mr. Dale Johnston: Are there other ways in which it can be done as well?

Mr. Michael McDermott: The main way they do it, I think, is by a vote.

Mr. Dale Johnston: That would be a secret ballot.

• 1535

Mr. Michael McDermott: A secret ballot, yes. The code doesn't require them to do that, but, by practice, that's the way they tend to treat those applications.

Mr. Dale Johnston: Can you give us any reason why it's not in the code?

Mr. Michael McDermott: Well, it leaves the board flexibility to decide what is most fair. I presume that if 100% of employees signed an application or a petition, they might well take that as evidence on its own, or maybe 90%.

Mr. Dale Johnston: So one of the ways they can determine whether there is support for decertification of a union is through a ballot vote. What other way is there?

Mr. Michael McDermott: The individual who has brought the application may bring a petition with them and that could be examined.

Mr. Dale Johnston: Are there any other ways besides those two?

Mr. Michael McDermott: I can't think of another way. They would have to examine whether there is majority support for the decertification application.

Mr. Dale Johnston: Exactly. There has to be some way of determining whether there is support to either certify or decertify, and they should be entirely equal. What can be used to certify a union should also be the criteria on which you can decertify.

Mr. Michael McDermott: It can be, yes. The code doesn't prevent that.

Mr. Dale Johnston: It also doesn't explicitly express that—

Mr. Michael McDermott: I believe it does.

Mr. Dale Johnston: —other than maybe just this one—

Mr. Michael McDermott: It enables the board to make an application in any circumstances—I'm sorry, order a vote in any circumstances—both in a certification and in a decertification. Where it's required to order a vote is in a certification that is supported by a limited number, between 35% and 50%, of the members of the proposed bargaining unit.

Mr. Dale Johnston: In the bill there is provision for a union to be certified even though a majority of the participants don't express their will to be certified. The board can make a determination, because of coercion or pressure tactics, that the union could be certified. Is there any such parallel legislation here that would allow a union to decertify with less than a majority, if it could be proven that there's been pressure tactics or...?

Are you having trouble with the equipment? Is it not working? Is the sound coming through?

Mr. Michael McDermott: I can hear me but not you, Mr. Johnston.

Mr. Dale Johnston: I have been afraid of that. That's my worst fear, you know, Mr. McDermott.

Mr. Michael McDermott: That's better.

A voice: Plugging it in assists the quality of the sound.

Mr. Michael McDermott: It does, yes. I'm not a technician, you know. I'm really a policy man.

An hon. member: You're just a computer expert. That's the trouble.

Mr. Dale Johnston: I'll try again. I don't know at which point you lost contact, but the point I was trying to make is that we all know the board can certify, even though there isn't majority support. They can do that if there is evidence of intimidation or pressure tactics. Is there anything in the code or in the bill that gives the exact parallel for decertification of a union if the board can be convinced that there were pressure tactics applied by the union?

Mr. Michael McDermott: There is no direct parallel, Mr. Johnston, but there is a general prohibition in section 96 of the current code that no person shall seek by intimidation or coercion to compel a person to become or refrain from becoming or cease to be a member of a trade union.

Mr. Dale Johnston: Would it be correct to assume, then, that by invoking that part of the code—

Mr. Pat Martin: Point of order.

The Chairman: Yes, Mr. Martin.

Mr. Pat Martin: Are we debating clause 20?

The Chairman: Yes, we are.

• 1540

Mr. Pat Martin: I don't see the relevance to this whole line of very general questioning about clause 20. I think the topic will come up later, under other clauses.

Mr. Dale Johnston: I think it is relevant, Mr. Chairman. I believe this has to do with the revocation of an application while a strike or lockout is ongoing, and it very much parallels one clause we dealt with earlier that dealt with certification of the union. I just want to make it perfectly clear in my mind that this bill is not lopsided. Sims has said that we should seek a balance, and I concur with that.

The Chairman: Thank you, Mr. Johnston.

Mr. Dale Johnston: I just want to be assured that this is what we're doing.

The Chairman: If I may respond to the point of order, I have been paying close and careful attention to what Mr. Johnston has been saying, and I think the points he's making are quite relevant to his intentions on this bill.

I'll let this one pass, Mr. Martin, but I appreciate your intervention, and I would encourage you to continue to pay attention to the positions that are being taken by Mr. Johnston and the Reform Party.

Mr. Pat Martin: Believe me, we are.

The Chairman: Thank you.

Mr. Strahl.

Mr. Chuck Strahl (Fraser Valley, Ref.): Thank you, Mr. Chairman. If I may, I'd like to ask just a couple of questions.

Good afternoon, Mr. McDermott. My name is Chuck Strahl. I don't get a name tag, but....

Mr. Michael McDermott: I recognize you, Mr. Strahl.

Mr. Chuck Strahl: It's good to see you.

Dealing with clause 20, this is the recommendation of the task force that this six-month period we have now just be open-ended and not stop at six months. Could you tell me if there has been a problem with this? The rationale behind this is that people just wait out the strike or wait out the lockout or whatever it might be and move on. Has this been a chronic problem?

Mr. Michael McDermott: Maybe not chronic, but it's certainly been a significant problem in some of the high-profile situations. It's suspected to have been the case that people were waiting out a six-month period rather than trying to settle during a work stoppage; they were waiting for six months to elapse in expectation or hope that there would be an application either for certification by a rival trade union or organization or for revocation.

So the reason to remove the six months is to try to take away that target date so that people have no interest in delaying efforts at settlement during a work stoppage.

Mr. Chuck Strahl: What Mr. Johnston was talking about earlier, which was that the mode of decertification.... Or as you say, part-way through the process, people may choose to find another union that they feel better represents the workers. Is there any rationale in suggesting that whatever level of proof, if you will, on the initial certification.... In other words, was there a secret ballot or was there a petition, as you mentioned earlier, signed by all members and so on?

Is there any rationale in suggesting that the same level—I'm not a lawyer—or degree of proof should be required for any change of union application or revocation? Is there some idea that it should be the same? For example, you've made this first application with a petition, and if you want to change this deal, then you get a petition of the same strength, so to speak, to buttress your cause. Or should it be left to the discretion of the board?

Mr. Michael McDermott: The board has discretion in both cases, but it has tended to use the vote more frequently in the decertification process than it has in the certification process.

Mr. Chuck Strahl: Has the board had to deal with the revocation problem, if you will, often during the six-month period? Is this something that happens routinely after a couple of months? Or is it just that the six-month period was in there before for I don't know what reason? Let's say it was in there to give a liveable period, I take it, a finite period, so that people weren't strung out forever, so to speak, so that they would have another decision, another time to move on after six months. Has there been a history of when that typically happens?

Mr. Michael McDermott: A history of what? Of when the application might be made subsequently?

Mr. Chuck Strahl: Yes.

Mr. Michael McDermott: No. There have been cases, though, where the six months seemed to be the sort of trigger for an application, and in the meantime there was a lot of talk about how there would be an application, and thus any efforts to settle the dispute were perhaps not very serious.

• 1545

There are a couple of books out on the Royal Oak Mines dispute, and if anybody wants to follow this up, I would suggest they read those. They would see some indications that maybe the six-month factor was something that prevented perhaps a more successful effort to getting a settlement.

Mr. Chuck Strahl: How often has the board received an application in the last calendar year or the last fiscal year? Do you track that?

Mr. Michael McDermott: I don't have that with me at the moment, Mr. Strahl.

Mr. Chuck Strahl: Just for my benefit, is it often? I wonder, is this clause necessary? Do you use it monthly, daily?

Mr. Michael McDermott: It's not. Remember that in the federal jurisdiction we don't have that many work stoppages in the first place. Indeed, in all jurisdictions, the work stoppages are quite infrequent; 95%-plus of all collective agreements are settled without work stoppage. So in the cases where there are work stoppages, I'm not aware....

I don't know if Ms. Robinson, who worked at the board, has a better understanding of it than I do, but no, it's not a common thing.

Mr. Chuck Strahl: Okay.

Mr. Dale Johnston: Maybe Ms. Robinson would like to comment on that, on her experience in that regard with the board.

Ms. Debra Robinson: I can only say that during the eight years I was with the board and the office I was with, I'd be surprised if there were maybe two applications during that time, maybe three.

Mr. Dale Johnston: Is there any provision in the labour code that stipulates a bargaining agent certifying their status periodically, or every few years, sort of a recertification?

Mr. Michael McDermott: No, Mr. Johnston, but there is a periodic opportunity for the rival unit to launch a certification application or for a decertification application to be made.

Mr. Dale Johnston: Does that vary from business to business?

Mr. Michael McDermott: No, there's a set timetable. From quick memory, I think in a collective agreement that is negotiated for up to three years, it's the last three months of the contract period where an application can be made. If the collective agreement is longer than three years, it's the last three months of the third year, fourth year, fifth year—however many years it may be—for an application of that kind to be made, either for a rival certification or a decertification application.

So it's less than a general election, for example.

Mr. Dale Johnston: Which is also a good idea to be recertifying.

Wouldn't that be a good opportunity, then, to allow the unions, the bargaining agent, an opportunity to recertify or to verify? That would certainly be sort of a pre-emptive strike against a takeover by some different union, wouldn't it?

Mr. Michael McDermott: No, they don't have to. They already have the bargaining rights until somebody displaces them or until the employees say, we don't want you any more. It's right there.

Mr. Dale Johnston: It seems to me there's a lot more opportunity to opt into a union than there is to opt out of a union.

The Chairman: Shall clause 20 pass?

Mr. Dale Johnston: I'd like a recorded vote, please.

(Clause 20 agreed to [See Minutes of Proceedings])

• 1550

(On clause 21)

Mr. Dale Johnston: I have some questions on clause 21. I'd like to know, since the Sims report didn't seem to suggest this modification, what rationale we have for bringing it forward at this point.

Mr. Michael McDermott: I can ask Madame Beaupré to respond to that, but briefly, the explanation we gave in our explanatory material was that this is an amendment related to the Department of Justice initiative to make the legal terminology used in federal legislation consistent with that accepted and commonly used in civil law.

But, Yvonne, maybe you'd like to add to that.

Ms. Yvonne Beaupré: The idea is that both the civil-law and common-law concepts be reflected in federal legislation. The way the English version was drafted before sort of violated some principle of civil law.

I'm afraid I'm a common-law lawyer, but I understand that there was something wrong with a lease being considered to be a sale in civil law, and therefore we have specifically provided that a lease will be equivalent to a sale for our purposes.

Mr. Dale Johnston: Has this caused significant problems in the past, and if so, what are they?

Mr. Michael McDermott: None to us, Mr. Johnston, but apparently it has caused some terrible problems to the Department of Justice lawyers.

Mr. Dale Johnston: Why are we concerned about that?

Mr. Michael McDermott: It's for consistency, Mr. Johnston, across federal statutes.

Mr. Dale Johnston: In practical application, who has this been a problem for?

Mr. Michael McDermott: I'm not aware of anywhere it was causing a problem, but I know the Department of Justice, when looking at the federal statutes and making them consistent with civil law concepts, discovered this problem—or potential problem, shall I say. So we're really avoiding problems in future.

Mr. Dale Johnston: Is it indeed avoiding the problems, or is it putting the board in a position where they can't consider each case on its own merit?

Mr. Michael McDermott: No, I don't see that it's doing that, Mr. Johnston. It's simply allowing them to administer the federal law in such a way that it will not be challenged over semantics in a civil law tribunal.

Mr. Dale Johnston: So it would have this very narrow definition of what it means to sell.

Mr. Michael McDermott: No, the code doesn't have a narrow definition of “to sell”. In the code currently, “to sell” can include a lease or transfer of business. This simply means that it will not be narrowed by a civil law interpretation.

Mr. Dale Johnston: I'm afraid you've lost me. Are we talking about the civil law as applied in the province of Quebec?

Mr. Michael McDermott: Yes, the civil code, exactly. Sometimes the common-law concepts we use in other parts of the country do have different terminology, different meanings, under the civil code.

Mr. Dale Johnston: So we're talking about the British common law as opposed to the French civil law.

Mr. Michael McDermott: Exactly. The problem is, as Yvonne mentioned, leasing is not considered in civil law to be the same as a sale. Under the code, however, we equate lease, sale, and other transfer, I believe, as being the kind of trigger for the sale of business provisions of the code.

If a federal work or undertaking is located in the province of Quebec and the issue is taken before some civil code tribunal, they may have some problem accepting that rather larger definition in the code and the purposes of the code may be frustrated.

The Chairman: Mr. Kenney, go ahead.

Mr. Jason Kenney (Calgary Southeast, Ref.): Does this problem, in terms of the definition of what constitutes to sell, exist in other federal statutes, or is it unique to this statute?

Mr. Michael McDermott: I'm not sure about that; Yvonne may know better.

As I say, this is a whole exercise the Department of Justice has led to make sure that where there are these potential problems of terminology between the common-law world and the civil-law world, they will be overcome.

Mr. Jason Kenney: Is it not the general practice in such cases to introduce...where a refinement of statutory terminology is brought about through an omnibus bill that amends numerous statutes as opposed to the kind of piecemeal amendment we have before us?

• 1555

Ms. Yvonne Beaupré: I'm not aware of such an initiative in this context.

Mr. Michael McDermott: I am aware that, in many cases, an omnibus bill may be brought in periodically, but in the meantime, if there's a problem, or potential problem, uncovered in the specific statute, it will be amended in that specific statute at the time that's open for amendment.

Mr. Chuck Strahl: I have experience both as a member of a union and as an employer within a unionized setting at the provincial level, so we obviously didn't deal with the Canada Labour Code too much at that level. All of our experience was provincial.

Of course, the industry I was involved with—logging—was obviously a provincial industry, and it will stay that way. But look at other areas, especially something that's regulated provincially, such as a company that sells, leases, or whatever, and then takes over a contract under federal legislation. I don't know, maybe it could be a radio station. I don't know what it might be. It would be something that's federally regulated. Is it natural that the union that represented those employees will want to continue on in that bargaining unit, or should they have the opportunity to take that sale as an opportunity to renegotiate their position to either reapply, reaffirm, or revoke? Should they have that opportunity, given that they are changing not only owners, but also types of work, perhaps? At a minimum, they're living under a different code. Should they have the privilege at that time to reaffirm, change unions, or do whatever they might want?

Mr. Michael McDermott: The code currently within the jurisdiction provides for a succession, and the union in place will continue if it's a sale or merger. The collective agreement in force will continue.

All they're doing in this proposed subsection 44(3) is saying that a change in jurisdiction should not automatically exclude the presence of the existing union and existing terms and conditions. If the matter goes to the board, there can be a possibility for the board to order a reopening of the collective agreement.

The board will also have to determine, if there's more than one trade union involved—in this case, it's the same trade union—the representation ranks of that union if it's in question. A change of jurisdiction can happen, for example, in a trucking firm that doesn't change ownership at all but changes its field of operation to go beyond provincial boundaries. It will then become federal. Nothing else has changed, other than its legal and constitutional position, so why should the bargaining relationship change at that point? That's the purpose of proposed subsection 44(3).

Mr. Chuck Strahl: Again, I have not gone through this, because our business always stayed in one province in one obviously provincially regulated industry, so it wasn't an issue. I just have no experience in this.

It seems to me that the other way to approach it—I just wonder about the wisdom of it—is that rather than saying they could, it would be better to say that, when it happens, the union can stay in place until such time as the board asks them to pass judgment as to whether that's what they would like to do.

In other words, yes, there are succession rights, but is it automatic that it just goes on, or should that be an opportunity for the employees at that time to say they're happy with this union and they like what's going on, or they don't like it so they would like a different union or no union, whatever they might want to do, because it's so different?

The example you used is not different. It's someone who used to truck to Prince George now going to Peace River. But it could be somebody who said they used to be in a communications company and now they run a television station, so it's a totally different venue. Should there be some natural evolution where that just rolls over and the board says to them that they're in a totally different and now federally regulated industry and they should take steps in a certain timeframe to ensure that the workers are represented by the union they want?

• 1600

Mr. Michael McDermott: I think there will be an opportunity for that to happen. Proposed section 18.1 has already been adopted in an earlier clause and that would give an opportunity for the board to become involved.

One of the things the board could do would be to order a reopening of bargaining if it were appropriate. I think if there were a major change such as you're talking about, where the collective agreement was no longer relevant to the new activity, then that would make some sense. But again, the board would judge each case on its merits.

Mr. Chuck Strahl: Has there been any consultation with the provinces? Do they have any concerns about this, or do they think this is fine?

Mr. Michael McDermott: There are not many provinces that have this provision. For example, if a federal worker undertaking is sold and then becomes a provincially regulated undertaking, as we've had happen—for example, privatizations of crown corporations have gone that way—there isn't in most cases. I think Saskatchewan and British Columbia have provisions where, if that happens, there would be a taking over of the federal bargaining rights into the provincial jurisdiction.

Some years ago there was an effort made to get all provinces to agree, and we got as far as developing a model clause on which this is based, but then things changed and some of the provinces were not keen to follow up. But Saskatchewan and B.C. did.

Mr. Chuck Strahl: When something happens and it goes the other way, when something is federally regulated and it becomes provincial, is provincial legislation reciprocal?

Mr. Michael McDermott: No, that's what I was trying to explain. Just Saskatchewan and British Columbia.

Mr. Chuck Strahl: Okay. So what do those other jurisdictions do when that happens?

Mr. Michael McDermott: Well, there may be chaos. The employer may have an interest in just recognizing voluntarily, but if not, there could be a very difficult situation. What you would have is people losing collective bargaining rights and having changes in their terms and conditions simply because there's been a sale or a change in activity, rather than for any other reason.

Mr. Chuck Strahl: So this clause will prevent that chaos. Is that right?

Mr. Michael McDermott: This will prevent it if it comes into the federal arena, but we can't legislate for the provinces.

Mr. Chuck Strahl: No. It makes no difference when they go back, if it happens the other way.

Mr. Michael McDermott: None at all.

Mr. Chuck Strahl: That's interesting.

To make it clear, then, when you made up the model clause or legislation to address that, at one time there was some agreement to discuss it and that would have handled that issue. Is that so?

Mr. Michael McDermott: Yes, it would have. There's an association of labour legislation administrators who developed the clause. It's going back a few years now. There was a lot of interest, but then it waned.

Mr. Chuck Strahl: As you say, it was just a change of political masters and then, likely—

Mr. Michael McDermott: It could have been that.

Mr. Chuck Strahl: —interest. Who knows? Thank you.

The Chairman: Mr. Kenney.

Mr. Jason Kenney: Mr. McDermott, I presume that when this change of the regulatory status of a business occurs and they move from being a provincially regulated business to a federally regulated business, the protection that the collective bargaining unit acquired under the provincial statute isn't frozen in time, is not grandfathered, so that if the provincial labour statute is amended the coverage they inherited from the original statute will be changed. Do you follow me?

Mr. Michael McDermott: I think what would happen, Mr. Kenney, is that the basic tenets of collective bargaining, the union certification and the terms and conditions in the collective agreement, would transfer over. There would no longer be any application of the provincial law. However, the collective agreement will eventually—and not that long usually, because collective agreements on average are two to three years—come up for renegotiation and there will be an opportunity then for adjustments to be made. So nothing is frozen.

Mr. Chuck Strahl: On the civil law, which is quite Quebec-specific, has there been consultations with Quebec about this particular clause? Have they expressed any interest in this?

Mr. Michael McDermott: I believe the Department of Justice would have been motivated by the interests of the Civil Code. Yvonne, are you aware of any specific negotiations?

Ms. Yvonne Beaupré: No.

Mr. Michael McDermott: But this has clearly been motivated to make sure the federal statutes can work well in the Civil Code environment.

• 1615

Mr. Chuck Strahl: I don't know about the precedents in this, if there are any. In other federations similar to ours where you have a provincial jurisdiction that looks after labour and a federal labour code as well—I just think of others in the Commonwealth, perhaps Australia or others—do they handle it in this way? Is this how they handle changes from federal and provincial or territorial to federal? How do they handle that?

Mr. Michael McDermott: I'm not sure if we're unique, but federal jurisdiction and provincial jurisdiction labour matters are quite distinct in the Canadian context. They're quite autonomous of each other. You can't suddenly switch from one to the other. There has to be a clear set of circumstances that puts you in one or the other.

In the United States, for example, with which I am somewhat familiar, the federal jurisdiction is much more all-embracing than the Canadian federal jurisdiction. If you're active in more than one state, for example, that can bring you into federal jurisdiction. But here a retailing company, for example, that is active in more than one province is in provincial jurisdiction. It may be in seven provincial jurisdictions, but it's in provincial jurisdiction.

The Vice-Chair (Ms. Bonnie Brown): Is there a question on clause 21?

Mr. Dale Johnston: Yes, I have a few comments on it.

Have the people who regularly review the Canada Labour Code, the Canada Labour Code practitioners, been pressing for this change? Have they suggested this change in the code is desirable and needed?

Mr. Michael McDermott: Certainly the trade unions have, Mr. Johnston.

Mr. Dale Johnston: What about the employers?

Mr. Michael McDermott: They are somewhat less enthusiastic.

Mr. Chuck Strahl: I would like to ask for a clarification on that. I know it was somewhat tongue-in-cheek. Has there been representation on this clause from the employers expressing any concerns on what it may or may not mean for their industry?

Mr. Michael McDermott: The employers who are under the code represented by FETCO have accepted this as part of the package. They have not questioned this in any serious way.

Mr. Chuck Strahl: Okay, but they aren't doing cartwheels.

Mr. Michael McDermott: They weren't cheering, that's true.

Mr. Dale Johnston: Can we ask for a recorded vote on this one?

(Clause 21 agreed to [See Minutes of Proceedings])

(On clause 22)

Mr. Dale Johnston: Why does proposed section 45 not allow an employee who might be affected to bring his matter forward?

• 1610

Mr. Michael McDermott: Because you're in a collective bargaining setting and the representative of the employees is the bargaining agent, the trade union.

Mr. Dale Johnston: And he has no choice but to go through the union?

Mr. Michael McDermott: That's generally what happens when a majority of employees choose to be represented collectively. They then are bound to be represented by that bargaining agent/trade union. There is the duty of fair representation, which requires the bargaining agent to represent all employees in the unit.

The Vice-Chair (Ms. Bonnie Brown): Mr. Johnston, do you have more?

Mr. Dale Johnston: Yes, I do. Then there is no provision whatsoever, then...if the employee has a problem he must take it to the union. He can't take it to the employer, right?

Mr. Michael McDermott: What sort of problem is he going to have? Can you be more specific, Mr. Johnston? Here we're discussing what happens with the bargaining unit once there's been a sale or a change of activities, and the employees' interests will be somewhat collective.

Mr. Chuck Strahl: I know as a member of Parliament who deals a lot with federally regulated unions, of course—that tends to be almost the only type of unions I deal with now, ironically—it wasn't my experience earlier. But when people feel they're not being represented well by their union, which happens from time to time, then they need another venue, they need another way of handling the problem, and in some cases their problem is with the union.

Mr. Michael McDermott: That's a different matter, I think, Mr. Strahl. There is a provision in the statute for an individual union member to bring a complaint to the Canada Labour Relations Board if there's a failure to represent that member fairly and without discrimination. That's an existing section of the code, and there is indeed quite a lot of activity before the labour board on that particular provision, so it is already covered.

The Vice-Chair (Ms. Bonnie Brown): This is a specific situation, though, in the case of a sale or change of activity. Could you restrict your questions to that particular scenario?

Mr. Chuck Strahl: It does beg the bigger question, which is that some members of a union would have questions at this time, at a sale time, as they would have on other issues federally. I was just trying to make the point that if at times they don't feel they're being represented by the union, what do they do?

The Vice-Chair (Ms. Bonnie Brown): You made that point. Mr. Kenney.

Mr. Jason Kenney: Under proposed section 46, does the board have the authority to give its opinion before the transaction is concluded?

Mr. Michael McDermott: That's under proposed section 46?

Mr. Jason Kenney: Yes.

Mr. Michael McDermott: Not at the moment, I don't think, but we do have provision somewhere in here for declaratory opinions to be given. But I think, no, generally speaking, the board should.... It's after the sale has taken place that these applications come to the board. There may be situations in which a sale or a purchase is being contemplated and there may be some.... There would be provisions, if this bill is passed, for declaratory opinions to be given by the board on what-if circumstances—if we buy this will we be federal, all that kind of stuff. Normally people will get this kind of advice from their own legal counsels, I would think.

Mr. Jason Kenney: So they're able to provide that but they're not.... Under what conditions would they normally provide that kind of opinion?

Mr. Michael McDermott: Under the current code they can't do it at all. We are changing it so that there could be an exploration of what might be the reaction of the board to a particular change of circumstance; it's something new that's in the code. But in this particular one, the board would make the determinations after it receives the application after the sale has taken place.

Mr. Jason Kenney: What factors would the board take into account when determining whether one or more of the bargaining units is appropriate for collective bargaining under this section?

• 1615

Mr. Michael McDermott: It has already a lot of jurisprudence on what it does. Community of interest is the most common thing it determines.

When you have a sale, for example, and one company buys another, you might have two companies in exactly the same field of activity, and two bargaining units coming together as one. So it would have to look at questions of how this is rationalized and so on.

Mr. Jason Kenney: But there are no clear criteria defined in the act for a decision in this area.

Mr. Michael McDermott: As I say, the board determines what's appropriate. There's a whole bunch of jurisprudence. Community of interest is the main thing.

Mr. Jason Kenney: But can you provide us with the rationale as to why these factors shouldn't be specifically enumerated in the legislation or in a schedule thereto?

Mr. Michael McDermott: Because no set of facts is duplicated that often. Very often, similar situations will bring a whole different set of facts—the size of enterprise, those types of things. The board has to have a margin of flexibility to deal with each case on its own merit.

Mr. Jason Kenney: Okay.

Back to proposed section 46 and the question on opinions. You've testified that this section will empower the board to offer declaratory opinions. In terms of other jurisdictions, do the provinces permit their boards to give advance opinions on these matters?

Mr. Michael McDermott: I don't have specifics, but I understand that some do. This was a recommendation of the task force, which included, as you know, the former chair of the Alberta board and also an existing vice-chair from the Ontario Labour Relations Board.

They recommended that this be the case. They found it useful, from their experience, to have this kind of authority.

Mr. Jason Kenney: But we're unsure as to whether or not provincial statutes include a parallel—

Mr. Michael McDermott: I don't have any specific names in mind. My recollection from the Sims exercise is that this is not totally new.

So I'm afraid I don't have the specifics.

Mr. Jason Kenney: Speaking of the Sims report, on page 74 it says:

Unions voice concern that employees in these sectors have no real access to collective bargaining because, if they get certified, the employer may lose its contract as a result of the successive tendering process before, or as soon as, a first agreement is achieved.

My question is, is this unfair or inequitable?

Mr. Michael McDermott: That is in the next clause, Mr. Kenney, clause 24, the successive contracts for services provision.

Mr. Jason Kenney: But this relates to section....

Mr. Michael McDermott: Proposed section 47.3 in clause 24. We're on clause 22 at the moment.

The Vice-Chair (Ms. Bonnie Brown): I'll call the question. Shall clause 22—

Mr. Chuck Strahl: I have another question.

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

Mr. Chuck Strahl: Madam Chair, I'm not sure how you're going through on this.

The idea that the board can only make the determination after the sale—this is where proposed section 44 kicks in—seems to me a bit like an income tax ruling in that sometimes you make your decision based on the ruling. You apply to the tax department and you say, okay, I'm not sure how this affects me, or if it affects me, but I'd sure like to know ahead of time.

Could we amend this clause to read, “The Board shall determine any question that arises under section 44, or in anticipation of a sale under section 44”? Could we put that and give the board some...you know, could determine it or could tender advice on request?

In other words, it would be an opportunity for employers or unions to go to the board and say, all right, it looks as though we have a sale coming up—it's been in the newspapers or whatever—and I'd like to know how it's going to affect our company and our union. As well, I'd like to apply ahead of time for you to make a ruling on that, a tentative ruling or as much ruling as the income tax department ever does.

Would there not be value in that? Could we not amend this to include that opportunity?

• 1620

Mr. Michael McDermott: As I've said, there is already this declaratory opinion, which is in an earlier clause, clause 4. That was in proposed section 15.1. The board is empowered to make declaratory opinions on what-if circumstances. That's what I was referring to, what-ifs.

Here the issue is that sometimes something happens and it's not clear whether it's a sale or a change of activity. There may be questions and there may be allegations. This is really a sale, and somebody says, oh yes, it is, and somebody says, oh no, it isn't. Well, the board can determine that.

I would see that more evident in change of activity, where somebody would allege that you've changed your activity, that you're now provincial or you're now federal, that kind of thing.

Mr. Chuck Strahl: So if they wanted that other section you quoted, proposed section 15.1, they could make that application. They could ask you and say, I used to lease this company and I'm going to buy out their shareholder or whatever and I'd like to have an opinion on this. They could apply to the board, and the board could use not this section but proposed section 15.1 to make that.

Mr. Michael McDermott: That's the purpose of that section, to deal with those what-if situations.

Mr. Chuck Strahl: So it's the what-if, and this is also the what-if, but—

Mr. Michael McDermott: This is what happened.

Mr. Chuck Strahl: Okay, the what-ifs and what happens. Thank you.

Mr. Dale Johnston: And those are the technical terms.

The Chairman: Does clause 22 carry?

Mr. Dale Johnston: No, I'm still working on clause 22.

I had some questions about whether or not the business has been sold. That is something that the board determines, but they will do that with the definition of what actually constitutes selling a business, as we discussed earlier.

Mr. Michael McDermott: Again, we're amending existing clauses, and there is a definition of “sell” in the existing clauses.

Mr. Dale Johnston: In previous clauses?

Mr. Michael McDermott: In existing clauses.

Mr. Dale Johnston: Oh, in the code.

Mr. Michael McDermott: Yes.

Mr. Dale Johnston: How many times does the—

Mr. Michael McDermott: We're amending to some degree, as Mrs. Beaupré points out, on page 17. See the definition there?

Mr. Dale Johnston: So does the definition of “sell” appear in here numerous times?

Mr. Michael McDermott: No.

There's a definition on page 17 at the bottom:

“sell”, in relation to a business, includes the transfer or other disposition of the business and, for the purposes of this definition, leasing a business is deemed to be selling it.

That's the Civil Code thing. The only amendment we're making to the existing provision is the Civil Code aspect of it.

Mr. Dale Johnston: Even if this business hasn't been sold—say they were an interprovincial trucking company that is now going to operate within the province—then they are going to be reclassified.

Mr. Michael McDermott: It's more the other way around. If it's a provincial company—

Mr. Dale Johnston: Yes, I realize it's more likely to be.

Mr. Michael McDermott: That's where these sets of provisions would come into play. A provincially regulated company now, a bus company, for example, that's operating wholly within the province of Ontario, crosses into Manitoba, becomes federal; this will permit life to continue as before.

Mr. Dale Johnston: But is there any provision, then, for an interprovincial trucking company that maybe ran between two provinces and now is downsizing for one reason or another and they decide that they're going to operate locally? There doesn't seem to be any provision for that. Or is that more or less automatic?

Mr. Michael McDermott: No, there's no provision unless the provincial statute provides for it. It does, as I mentioned, in British Columbia and Saskatchewan.

Mr. Dale Johnston: It does in British Columbia and Saskatchewan only.

Mr. Michael McDermott: Yes.

Mr. Dale Johnston: We're talking about what-ifs. What if this were to happen in Manitoba where there's no provision for that?

Mr. Michael McDermott: I think we already covered that. There would be no automatic transfer of bargaining rights, there would be no automatic transfer of the collective agreement, and the Manitoba government would probably hear about it.

Mr. Dale Johnston: It would simply have to be negotiated, and it would no longer come under the Canada Labour Code.

Mr. Michael McDermott: If it's no longer in the federal jurisdiction, no, it can't.

The Chairman: Shall clause 22 carry?

Mr. Kenney.

• 1625

Mr. Jason Kenney: What's the rationale for the amendments to section 46?

The Chairman: Excuse me, Mr. Kenney, we are on clause 22.

Oh, I see, proposed section 46 of the bill. Okay.

Mr. Jason Kenney: I believe proposed section 46 falls under clause 22.

The Chairman: It does.

Mr. Jason Kenney: In regard to the determination of the board on questions, what's the rationale for these amendments?

Mr. Michael McDermott: It's because we're adding the change of activity to it. a A change of activity can create a change in an enterprise. It can change its jurisdiction, as we've said. A bus company that operates wholly in one province can.

Mr. Jason Kenney: I understand that with respect to proposed section 45. But the amendments in proposed section 46 are just consequential, following from that.

Mr. Michael McDermott: They're not consequential. They can address the same kind of issue.

Mr. Jason Kenney: Okay.

Mr. Dale Johnston: May I record a division on that?

(Clause 22 agreed to [See Minutes of Proceedings])

(On clause 23)

The Chairman: Mr. Johnston.

Mr. Dale Johnston: This says it made some changes in the French version, and I'd like to have the department explain to me just what happened here, please.

Ms. Yvonne Beaupré: There was a slight discrepancy between the English and French versions of section 47.1, which we are attempting to cure, if you will. The English version reads:

47.1 Where, before the deletion or severance referred to in subsection 47(1), notice to bargain collectively has been given

whereas the French before emphasized the giving of a notice to bargain—I'm sorry, I'm having trouble translating for myself—before the corporation was set up. So we want to bring it back to the concept of the severance or deletion in both the French and the English versions.

Mr. Dale Johnston: The severance and deletion?

Ms. Yvonne Beaupré: Yes.

Mr. Dale Johnston: Of what?

Ms. Yvonne Beaupré: Of a portion of the public service.

Mr. Dale Johnston: Oh, so it pertains wholly to the public service?

Ms. Yvonne Beaupré: That's correct, in the case of privatization of what are now activities carried on by the public service.

Mr. Michael McDermott: This section 47.1 was adopted two or three budgets ago, and the Canada Labour Code was amended as a consequence. This is a correction of the French drafting; that's all.

Mr. Dale Johnston: Do my colleagues have any questions on the French version?

Mr. Chuck Strahl: I could ask the Bloc if they agree with the translation, but it's more technical than I'm capable of interpreting en français.

Mr. Dale Johnston: Madame Beaupré apologizes for her interpretation, but I can assure her it's a whole lot better than mine.

The Chairman: Shall clause 23 carry?

Mr. Dale Johnston: We'll ask for a recorded division.

The Chairman: On recorded division.

(Clause 23 agreed to [See Minutes of Proceedings])

• 1630

(On clause 24)

Mr. Chuck Strahl: Let's talk on this one, I think.

The Chairman: Mr. Johnston.

Mr. Dale Johnston: Actually, Mr. Chairman, we have several concerns with this, which is on successive contracts or successor rights. Although I have had some explanation from the department on this, I don't agree that this should be all-encompassing. I'm sure Mr. McDermott will say that it's not all-encompassing, so perhaps I'll just have him comment on that aspect of it. It talks specifically about the pre-board security screening services at the airports, and does grant significant powers to the board in this regard.

Mr. Michael McDermott: I'm not sure that it grants any powers to the board, Mr. Johnston. It specifically would apply to the circumstances you mentioned. It would provide additional authority to the Governor in Council to extend its application by regulation to sectors other than the pre-board security clearance in the airline industry.

An hon. member: Jason, did you have any...?

Mr. Jason Kenney: Yes. Apparently there were problems caused by the practice of awarding successive contracts for services. What were these problems?

Mr. Michael McDermott: High turnover of employees. It involved some of the larger airports particularly, but was potential in any airport.

The security clearances you go through are done by contractors. You may have some of the main security companies who will do the scanning of baggage and of passengers. They would typically get a contract with the airline committee—that is, the using airlines of that airport. They would have a contract for a prescribed period of three or five years or whatever it may be. During that time their employees could become unionized and try to negotiate something better than they were earning. At the end of that they would find somehow that the contract would change hands and there was no succession. There are no successor rights in the code and there will not be, as such, for a change in contract.

The Department of Transport had problems with this. Indeed, the Minister of Transport of the day negotiated an agreement with the airlines that would give some protection to the employees in these cases where there was a change of contract. It fixed certain levels of remuneration and required the new contractor to offer employment to a percentage of the employees of the former contractor.

What we're doing here is simply taking over the remuneration aspect of that agreement and giving it the force of the statute. This is in light of the fact that Transport Canada is no longer in many cases the owner of the airport, so it can be a time of instability. It was having an adverse impact on the quality of security services provided.

Mr. Jason Kenney: How was the quality of service compromised? There may have been administrative difficulty in dealing with the change of jurisdiction from the Department of Transport to a regional airport authority, but I don't understand how the quality of—

Mr. Michael McDermott: Well, there was a high turnover of employees, because if you ran the risk of losing your benefits and returning to virtually minimum wage, this had some impact on whether you stayed with the employer. It was having great impact on the turnover and thus the experience of the employees concerned, in a very sensitive area, I might add.

• 1635

Mr. Chuck Strahl: Mr. Chairman, I notice it's kind of unusual in federal statutes to have a small group of people be isolated or singled out—you know, the people providing pre-board security screening. You're talking about just trying to reflect the reality of an agreement that was in place.

Is there a union like the pre-board security union? Is there a union that does that?

Mr. Michael McDermott: No, there are several unions in the business. I think the steelworkers are into it now. There may be other unions that represent security guards.

Mr. Chuck Strahl: It is unusual, though, am I not right?

Mr. Michael McDermott: It's not common in the code, but it's not unknown in the code. Longshoremen have clauses all of their own. It's not unusual to indicate one group, where there's been an identified problem.

Mr. Jason Kenney: Have the newly established regional airport authorities been consulted about this?

Mr. Michael McDermott: They're not very happy about it. The Air Transport Association of Canada is a member of FETCO, Federally Regulated Employers, and they were involved in the discussions. They were not too happy about it, either.

Mr. Jason Kenney: What was the nature of their concern?

Mr. Michael McDermott: They don't want this stopped within statute. They say that they have respected the policy and should continue to be left out of the policy.

The government's decision is that given the removal of airports from Transport Canada, it doesn't want to see the stability that this clause introduces disappear.

Mr. Jason Kenney: If I have this straight, the government is concerned that quality of security services was being compromised or was jeopardized, but the people who actually run the airports, who are responsible for security, who hire and contract the security services, didn't agree with the government.

Ought not we be taking the direction and guide of those who actually operate the airports and have direct responsibility for their management?

Mr. Michael McDermott: Well, public concerns about security at airports are frequently directed to governments rather than the airport authorities and the airlines. I don't want to make a big thing of some of the incidents that took place, but the criticism was of the government and representations for the government, not to the companies concerned.

Mr. Chuck Strahl: If it has been the case that the airport authorities—and of course I go through the Vancouver Airport Authority weekly—but if it's their opinion that they.... You know, I think they would be slightly insulted there, probably saying, “We're doing everything we should. We're being good employers. We're treating employees and the union in a proper manner. You're using a sledgehammer to kill the non-existent annoying fly. It's just not there.”

Why would we need it if there are no outstanding cases or continuous harassment or problems? Why would you put something in the code if it's just not proven to be a problem?

Mr. Michael McDermott: Transport Canada continues to be responsible for airline safety matters, although it doesn't own the airports directly any more. I don't think one should minimize some of the past events involving security of airlines.

Mr. Chuck Strahl: Paragraph (a) of proposed subsection 47.3(1) specifically talks about pre-board security screening services. Paragraph (b) of that proposed subsection says that any other service may be designated by regulation of the Governor in Council. Does that mean any service in an airport or any federally regulated service, or what does that mean?

Mr. Michael McDermott: It could extend to any federally regulated service, but it doesn't specify which. That would be specified by the Governor in Council. The minister has indicated, in response to representations that have been received on this, that he would only do so in specific circumstances that appeared to merit extension of the scope of the clause, and that he would clearly consult.

Mr. Chuck Strahl: I have a real problem with giving this kind of power to the minister. This is the kind of handing over of authority that parliamentarians just tremble about, because once this has passed, then this committee is not necessary and Parliament is not necessary.

The minister, through the Governor in Council, can step forward and say, “Well, I just decided. I got up this morning and said I didn't like this situation. It's gone on too long”, or whatever it might be. The Governor in Council—the minister, in other words—can just step in and say it applied to pre-board screening—this is proposed paragraph 47.3(1)(a)—but he just stepped in and decided that this applied to whatever he felt like today. He might do it after consultation, but it might be tough toenails for those who feel the consultation might mean a phone call, and then the order comes down from on high.

• 1640

Maybe I'm asking a political question, but it seems to me that this isn't even power to the board, this is power to the minister. Is that right?

Mr. Michael McDermott: Well, it's power to the Governor in Council, which is more than a minister, as you may know. The regulation-making process requires a number of steps, including a very clear consultation with affected parties. So it's not something that happens as a result of a phone call.

Mr. Jason Kenney: I have a question. We speak about these safeguards to ensure that this provision is not used flippantly. They're not defined in legislation, they're just defined by convention, is that correct?

Mr. Michael McDermott: There are a whole series of steps that are taken, such as publication in the Canada Gazette, due notification, and those kinds of things.

Yvonne, they're covered by legislation, aren't they? It's delegated legislation, isn't it?

Ms. Yvonne Beaupré: The regulations themselves are called delegated legislation, but you're right, it is a convention that most regulations will be pre-published. In some cases it's a requirement, but it wouldn't be in this case.

Mr. Jason Kenney: As I read it, proposed paragraph 47.3(1)(b) says:

(b) provided any other service that may be designated by regulation of the Governor in Council, on the recommendation of the Minister, to another employer or a person acting on behalf of that other employer in any industry that may be designated by regulation of the Governor in Council on the recommendation of the Minister.

If this is so sweeping, why do we need to designate even the pre-board security screening services personnel? Why can't we just leave those people out of the coverage of the statute and allow the Governor in Council to include them? Why are we giving them carte blanche to bring anybody into this, but specifying one particular industry? It seems contradictory.

Mr. Michael McDermott: The application to that industry is a recognition of difficulties that were experienced in the past and that fact that that industry is undergoing considerable change at the moment in the way of privatization. I believe they use the term “commercialization” in the case of airports.

Mr. Chuck Strahl: I don't want to pick on you, Mr. McDermott, or blame you for this, of course, but it just seems to me that there are two issues here. In response to political pressure or public pressure, I guess you could say, the politicians have tried to pass some reassurance by saying they're so concerned about this that they specifically included it.

But then they can use the sledgehammer of proposed paragraph 47.3(1)(b). Any previous contractor means that the minister—I know it's on recommendation to the Governor in Council—basically can decide. I wonder whether both the union side and the employer side want the minister to have that power. Have you had representations from the unions and from the—

Mr. Michael McDermott: The unions have not objected to it. The unions would like far more than this, Mr. Strahl. They would like full successor rights in the case of changes of contract. It's quite clearly their position. There have been representations from industry and industry associations on this additional—

Mr. Chuck Strahl: There have been?

Mr. Michael McDermott: Yes, there have been.

Mr. Chuck Strahl: And they have voiced—

Mr. Michael McDermott: They have voiced their opposition. The minister has responded to say that he would not contemplate any recommendations to the Governor in Council without due consultation, an identified problem being involved, and full consultation with the parties concerned.

Mr. Chuck Strahl: Has that satisfied the concerns of the employers?

Mr. Michael McDermott: They would prefer not to see that here. But the government prefers to see it here, and is putting it forward in this legislation.

Mr. Chuck Strahl: Well, okay. I'll just go on the record as saying that I think that's a shame. I think it's unnecessary. It's the kind of thing that causes politicians to cringe when they see that kind of power given to the minister. I know it's the Governor in Council, but it's on the recommendation of the minister, and I think the minister just takes too much power to his chest with that one.

The Chairman: Shall clause 24 pass?

• 1645

Mr. Dick Harris (Prince George—Bulkley Valley, Ref.): I have a question, Mr. Chairman.

Mr. McDermott, just following up on Mr. Strahl's question, you mentioned that the employers were not happy with this particular piece of the legislation. I'm just wondering, what kind of rationale did the minister use in drafting this up that would have him disregard the concerns of the employers? What did the employers put forward that was not palatable for the minister in drafting this legislation?

Mr. Michael McDermott: The airline employers were not keen on the first part and other employers and industry associations were not keen on the second part. The minister's rationale, as I indicated in the first part, is that there have been serious problems in the past. It is possible that problems may arise in other cases in the future, and there seems to be some feeling that it's rather difficult to get labour legislation through in any short order of time.

The Chairman: Mr. Kenney.

Mr. Jason Kenney: Given the serious concerns we have and that have been expressed by employers, I move the deletion of proposed paragraph 47.3(1)(b).

An hon. member: I second that.

The Chairman: It's not necessary to second it. Just give me a second to consult on whether or not that's in order.

• 1646

• 1648

The Chairman: So you're moving a motion to amend clause 24 by deleting proposed paragraph 47.3(1)(b)?

Mr. Jason Kenney: Yes, Chairman, that's the substance of my motion.

The Chairman: Okay. It has been moved.

Mr. Dick Harris: Can we have a discussion on that?

The Chairman: If you so wish, yes.

Mr. Dick Harris: I think the root of Mr. Kenney's motion is that if we were in fact looking for balance in this legislation, then the balance is missing from that clause, because what it does is cause a further division between some employers who didn't want that stipulation in there and the minister, who apparently did. I'm sure some division is going to be caused between the employers and the employees as well with the retention of that clause.

In the interest of fairness and balance, I think we should be considerate of both sides of the particular clause and include.... We can't have one at the exclusion of another. We can't have a balance unless both parties are happy.

Mr. Chuck Strahl: Could I put my thoughts on the record on that, Mr. Chairman?

I just remind the other members of the committee that this is the first instance I've seen in this bill where this kind of power is handed over to the minister, or to the Governor in Council on recommendation of the minister.

In other legislation where we have seen that recommendation, where the minister steps forward and from this day forward will not be consulting with Parliament.... If you pass it in its current form, it will go and the minister will do as the minister wants. That might be fine if you have an all-gracious and all-knowing and powerful minister, but—

• 1650

An hon. member: He is all-powerful here.

Mr. Chuck Strahl: Well, he's all-powerful, but it may not be in the best wisdom of Parliament to hand that kind of power over to a minister.

In the future, I remind the members over there, there may not always be a Liberal minister. It may be another minister. It may be a minister who has leanings one way or another, doesn't want to do it, never will do it, or wants to do it every day. You don't know. When you provide this much authority to a minister and it bypasses Parliament for the rest of time, so to speak, then you just live with the consequences.

We saw that in other regulatory bills, for example the gun control bill, Bill C-68, where you just said the minister shall, at his discretion, or the Governor in Council, on the recommendation of the minister, can designate any firearm of any size, any dimension, any calibre, or whatever. From here on he can just step in and change it. It never comes back to Parliament.

This is another one of those cases where I would urge the members of the committee to think of Parliament's role in labour legislation and in individual cases.

Mr. Larry McCormick: We have elections, though.

Mr. Chuck Strahl: Yes, but the problem is you're dealing with legislation that gives the minister that kind of discretionary power in between times.

My point, Mr. Chairman, just to conclude, is that whenever we do that, instead of referring back to Parliament when we have a problem—and I think some of it should come on Parliament, because parliamentarians have a right to answer to their constituents.... So instead of just saying, “It's up to the minister; it's out of my hands”, I would like it if, and I do like it when, people can come to my office and to government members' offices and bring forward the argument that they don't like something or they do like something and they want us to act on it, and parliamentarians can act, or they can try to act. They may not win, but this will preclude that from happening.

So I just urge the members of the committee to delete this proposed paragraph, to agree with the amendment, and to find other ways to provide those successor rights. It's not the minister's discretion or power we should be increasing here. Parliament is to be a check and a balance on a minister's power, and this will make sure that doesn't happen. So I will be supporting the amendment for those reasons.

Mr. Jason Kenney: Mr. Chairman, could I speak to the motion?

The Chairman: Yes, Mr. Kenney.

Mr. Jason Kenney: This is not a frivolous point, Chairman. This is a very serious point.

I would remind my colleagues opposite that when the New Democratic Party government in Ontario passed its radical labour legislation in, I think, 1991, it included provisions of this nature, which gave the Governor in Council the power to extend successor rights without any specified statutory criteria. This is an enormous power.

I'm pretty sure, although I don't know—you could go back and check the record—that the Liberal opposition of the Queen's Park provincial legislature of the Province of Ontario opposed provisions of this nature at that time, as likely has the Liberal opposition in the provincial legislature of the Province of British Columbia, with some of the rather radical labour legislation that's been introduced by the government of the New Democratic Party and Premier Glen Clark there.

An hon. member: And they have some new stuff.

Mr. Jason Kenney: So, Mr. Chairman, I would just point out that this is not a partisan issue, because wherever we are empowering the Governor in Council to extend carte blanche statutory power to bring other people under the coverage of the legislation, in this case as it relates to successive contracts for services, what we're doing is diminishing parliamentary accountability.

Mr. Chuck Strahl: Exactly.

Mr. Jason Kenney: We're not saying for one moment, Mr. Chairman, that the government ought not to be able to extend successive successor rights or successive contracts for services. What we're saying is the government ought only to be able to do so through amendments to statutes—amendments that have to come before Parliament; have to be debated at first, second, and third reading; have to be debated at clause-by-clause in this committee; have to go to the Senate for sober second thought; and have to come back.

We have a process, all of which is short-circuited by the kinds of end-run provisions that are contemplated by proposed paragraph 47.3(1)(b), which my motion seeks to delete.

• 1655

The Chairman: Shall the amendment to clause 24 carry?

Mr. Chuck Strahl: May we have a recorded vote?

The Chairman: A recorded division on the amendment to clause 24 proposed by Mr. Kenney.

Mr. Dick Harris: I have a point of order, Mr. Chairman.

The Chairman: A vote is under way and a point of order cannot be made at this time.

Mr. Dick Harris: Is a member permitted to vote while he is not seated?

The Chairman: He is in the room and is duly registered with this committee.

(Amendment negatived [See Minutes of Proceedings])

Shall Clause 24 carry?

Mr. Chuck Strahl: I have a point of order before we get into another vote.

The Chairman: Mr. Strahl.

Mr. Chuck Strahl: Mr. Chairman, on your suggestion that if someone's in the room, can you be anywhere in the room here and vote? Can I go sit by the coffee pot and vote?

The Chairman: He is a registered member of the committee. We're not going to deprive him of the right to vote simply because he's making a phone call.

Would you quote for me the standing order that contradicts that, please?

Mr. Chuck Strahl: Can you quote me the standing order that says it's okay.

The Chairman: Committees are the masters of their own rules and procedures. If you'd like to challenge the chair, you're welcome to do so.

Mr. Chuck Strahl: Mr. Chairman, I'd move that people who are going to vote on clause-by-clause have to be seated.

The Chairman: I'm sorry, Mr. Strahl, it's not possible to move a procedural motion without written notice 24 hours in advance. If you wish to make such a written motion, do so and submit it to the clerk and we'll deal with it.

Mr. Chuck Strahl: I move non-confidence in the chairman, then.

The Chairman: You can challenge the ruling of the chair and we will deal with that. That's a non-debatable motion.

Mr. Chuck Strahl: Okay. I challenge the ruling of the chair.

The Chairman: Thank you.

Shall the ruling of the chair be upheld?

Mr. Chuck Strahl: No way.

The Chairman: All in favour.

Mr. Dick Harris: I'd like a recorded vote, please.

The Chairman: A recorded division, please.

(Motion agreed to [See Minutes of Proceedings])

Mr. Chuck Strahl: I know in the Standing Orders there is no such order that you have to give 24 hours of written notice. Is it an order of this committee?

The Chairman: Yes, it is.

Mr. Chuck Strahl: Okay. Could I have a copy of that?

The Chairman: Yes, the clerk will provide you with that.

Shall Clause 24 carry?

Mr. Chuck Strahl: I'd like to speak to this one, if I could.

The Chairman: Mr. Strahl.

Mr. Chuck Strahl: Pardon me, we were still on clause 24. We're ready for the vote.

The Chairman: Okay. All in favour of Clause 24—

Mr. Jason Kenney: I'd like a recorded vote, please.

Mr. Dick Harris: I have a question to ask about this.

The Chairman: Oh, I'm sorry. I thought Mr. Strahl said you were ready for the vote.

Mr. Dick Harris: Mr. Chairman, I have a question about the French version of proposed subsection 47.3(2). In the English version it says “who provided the same or substantially similar services”. The French version appears to me to indicate that it means essentially the same services. I think there's a difference between the English definition of “substantial”, which means “a large part of”, and the French version, which seems to indicate “essentially”. The word “essentially” can hold a little less weight than the word “substantially”.

• 1700

I'm just wondering if we can have some clarification on the French version of this. Do we have any type of expert advice in the room?

The Chairman: Ms. Girard-Bujold, do you care to respond to that question?

[Translation]

Mrs. Jocelyne Girard-Bujold: It seems to me that "substantially" in English and "essentiellement" in French have the same meaning.

[English]

The Chairman: We have an opinion from someone who purports to speak French that it is essentially the same.

Mr. Harris, does that satisfy your question?

Mr. Dick Harris: I suppose so.

The Chairman: Shall clause 24 carry?

Mr. Chuck Strahl: Can we have a recorded vote on this?

The Chairman: A recorded vote has been asked for.

(Clause 24 agreed to [See Minutes of Proceedings])

(On clause 25)

The Chairman: Mr. Strahl.

Mr. Chuck Strahl: On this clause, you specify, “Either party to a collective agreement may, within the period of four months immediately preceding”, and so on. Why was the four-month period chosen?

Mr. Michael McDermott: Mr. Strahl, we're simply extending the current three months to four months. The idea is give to encouragement to the parties to get together sooner than they do today, so that they can get on with the business of renewing their collective agreement, hopefully before it expires.

Mr. Chuck Strahl: But four months is preferable to six months or to two months?

Mr. Michael McDermott: If they wish to go to six months, they can do so. The statute is giving them an extra month. That's all. This is a period during which one party can give notice to bargain and the other one must respect it. If they jointly agree to any longer period, they may do so.

Mr. Chuck Strahl: So this is just notification.

Mr. Michael McDermott: That's correct.

Mr. Chuck Strahl: Why was it necessary? Was it just to bring it in line with other jurisdictions in North America?

Mr. Michael McDermott: Because we're trying to shorten things on the other end, the amount of time that people spend and sometimes waste in conciliation—and you'll see amendments later on that tend to shorten that exercise—the idea was that we would get them going sooner into the process, with the hope that they won't have to go to conciliation.

Mr. Chuck Strahl: Is this consistent, then, with other jurisdictions? Is this consistent with provincial labour legislation or other North American legislation?

Mr. Michael McDermott: The 90-day period is quite common, I think, in other jurisdictions. I could check it. There are some that are longer. All of them offer to the parties the option of agreeing to it themselves, but this is in here not so much because of what happens in other jurisdictions but because of what we're doing to the changes in this one.

Mr. Chuck Strahl: I'm just wondering why it's four months. I'm not sure why it needs to be changed from three months to four months. Of course, anybody who wants to start negotiations earlier can just step up to to the telephone and start at any time they want. It doesn't preclude earlier intervention. It's just that this is the written notification where someone can get someone else to the table. Is that right?

• 1705

Mr. Michael McDermott: This doesn't preclude the parties jointly agreeing to a longer period, but this enables them to require the other party to be there a lot sooner than currently is the case.

Mr. Chuck Strahl: Is there another provision, or maybe it's coming up, about requiring the other party to the collective agreement to commence collective bargaining? Is there any technical way of knowing when they're not serious about that? How do you know when somebody says, “I sent you the letter, let's commence”, and the guy phones back and says “I'll see you in September”. Is there some way to make sure that serious negotiations are going to take place once that notification takes place?

Mr. Michael McDermott: They are required to respond already in the code within a certain period. I thinks it's 20 days that they're required to start bargaining by.

Incidentally, we just checked the facts and figures here of notice period, and you'll be pleased to know that in the province of Alberta the notice period for notice to bargain is between 120 days and 60 days prior to expiration of the collective agreement. So the 120 days that we're introducing is probably modelled on Alberta, sir.

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

Mr. Werner Schmidt (Kelowna, Ref.): Thank you, Madam Chair.

The question here is a rather interesting one. The requirement is on the one part that either party may. It does not have to exercise this request but it may do so. If it chooses not to do so the ordinary provisions of the collective agreement would obtain? Is that correct?

Mr. Michael McDermott: Yes, the collective agreement would still be in force and the collective agreement could expire. At some point one party will have to give notice to bargain a renewal of that collective agreement.

Mr. Werner Schmidt: Do the collective agreements generally not include the basis on which the contracts may be opened up either before or at the expiration date? Is that not part of the collective agreement itself?

Mr. Michael McDermott: It depends on the collective agreement. Some collective agreements provide for automatic renewal unless notice to bargain is given. That's some cases. Other collective agreements may have provisions in them that would provide for an earlier start to collective bargaining to renew, and others would simply rely on the code.

Mr. Werner Schmidt: So you're suggesting, then, that this particular clause here is a minimum requirement for the commencement of negotiations.

Mr. Michael McDermott: It is a requirement in which one party can give notice and the other one must respond. Prior to that it's mutual agreement.

Mr. Werner Schmidt: So the intent of this particular clause is to require the two parties to an agreement to negotiate. Is that correct?

Mr. Michael McDermott: It's to get them at it more quickly than they seem to these days. It's to give them an opportunity to start more rapidly. It's a signal that was being given in the code to encourage the early commencement of negotiations.

Mr. Werner Schmidt: Supposing there is no provision within an existing agreement to start negotiations at any particular point, then. There's no requirement in the agreement and there's no requirement here that they must meet. All this does is say they may give notice to the other party to start negotiating four months before the expiration of the existing contract. Supposing a group chooses not to do this and doesn't negotiate. What happens then?

Mr. Michael McDermott: They don't negotiate, so the collective agreement may expire as far as it's calendar date is concerned, but the terms and conditions continue in force.

Mr. Werner Schmidt: And if that is the case, is there any redress?

Mr. Michael McDermott: The other party can give notice is they're concerned about it. If both parties are happy to leave the current terms and conditions in place and nobody's complaining, I suppose you could go on forever.

Mr. Werner Schmidt: Okay. Thank you very much, Madam Chair.

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

Mr. Dick Harris: Thank you, Madam Chair.

Mr. McDermott, I wonder how this four-month period fits with each of the provinces. The reason I ask that is because it's my understanding that the provincial labour laws are of course the jurisdiction of the provinces. Here we have federal legislation that is saying you must do this. So where provinces may have labour laws in regard to the time period to call for collective bargaining where it may be at odds with this piece of legislation, first of all, are there any provinces whose current labour laws may be at odds with this clause? And if so, how is the federal government going to reconcile this clause with a provincial regulation that would be in conflict with it?

• 1710

Mr. Michael McDermott: The provincial situation will not conflict. Labour jurisdictions in Canada are quite autonomous, one from the other. What the federal government does in the Canada Labour Code is quite autonomous from whatever a province does.

As I mentioned earlier, Alberta does permit the notice to be given between 60 and 120 days prior to the expiry of a collective agreement. British Columbia says 4 months. Manitoba says between 30 and 90 days. New Brunswick says 30 and 90. I could give you the whole gamut, if you wish.

Mr. Dick Harris: So you're saying that this clause would not apply to any provincial labour codes?

Mr. Michael McDermott: You can't be in two jurisdictions at once, no. You're either provincial or federal.

Mr. Dick Harris: So you're saying that if we have federal employees in, say, the province of British Columbia—

Mr. Michael McDermott: It depends on what you mean by federal employees. If you mean federal public servants, they're not covered by the Canada Labour Code. Employees of federal works or undertakings are. They are not government departments; they're private companies. Some crown corporations are engaged in federal works or undertakings.

Mr. Dick Harris: So this clause applies to private companies.

Mr. Michael McDermott: Private companies and some crown corporations. The Canadian Broadcasting Corporation, for example, is covered by the Canada Labour Code.

Mr. Dick Harris: Okay. So in terms of a private company operating in any particular province, how would this federal legislation affect them? Would it not be the provincial legislation?

Mr. Michael McDermott: No, not at all. A private company in the airline industry, for example, is automatically in federal jurisdiction, even if it's located in only one province. A trucking company that's based in Alberta but has routes into Manitoba, say, or British Columbia, would be in federal jurisdiction. It wouldn't be in Alberta's jurisdiction.

Mr. Dick Harris: I see. Okay.

The Vice-Chair (Ms. Bonnie Brown): Shall clause 25 carry?

Do you want a recorded vote?

Mr. Werner Schmidt: Yes, please.

(Clause 25 agreed to [See Minutes of Proceedings])

(On clause 26)

The Vice-Chair (Ms. Bonnie Brown): Shall clause 26 carry?

Mr. Chuck Strahl: No.

Mr. Werner Schmidt: I want to speak to this one.

Mr. Chuck Strahl: Go ahead.

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

Mr. Werner Schmidt: Madam Chair, the question I have is with regard to the rationale behind the change here. The term that exists at the present time says it is “to be heard”. The new phrase is “to make representation”.

I'd like to know if you could tell us, Mr. McDermott, why we move from “heard” to “representation”.

Mr. Michael McDermott: Mr. Schmidt, the term “heard” may be confused with giving an automatic right to an actual oral hearing. Elsewhere in the bill—in fact, in a part of the bill that's already been approved—we made it clear that the board will have discretion not to hold oral hearings unless there's a reason to do so. Right at the moment, it has no full discretion in this respect.

This simply makes the distinction that this is a provision in which they will ask for representations. They are not required to hold an oral hearing.

Mr. Werner Schmidt: Does this mean, then, the board could refuse to have an oral hearing?

Mr. Michael McDermott: Yes.

• 1715

Mr. Werner Schmidt: Doesn't this then restrict, rather dramatically, the opportunity for individuals to exercise their ability to express themselves orally as opposed to in writing? Is there some kind of rationale that says written communication is somehow superior to oral communication?

Mr. Michael McDermott: Written submissions are quite frequently the way a tribunal of this kind—a labour tribunal or other administrative tribunal—will determine matters. However, the tribunal is governed by the rules of natural justice, and if there is some reason why there should be an oral hearing, the board will be able to grant an oral hearing.

Mr. Werner Schmidt: I refer specifically now, sir, to the most recent call by the Supreme Court of Canada in the Delgamuukw case, where it was made abundantly clear that the oral testimony—and indeed, the oral history—of a whole people ought to be recognized and taken into account. So what is happening here is that a particular culture would automatically be excluded by virtue of this amendment.

Mr. Michael McDermott: Not automatically excluded. The board would have to—

Mr. Werner Schmidt: But didn't you, sir, just say to us that oral communication is excluded?

Mr. Michael McDermott: Not excluded. What I said, in using the term “automatic”, was that previously the legislation had been interpreted to say there was an automatic right for an oral hearing, and there isn't. This makes it clear that there isn't, that the matter may be determined by representations. If there's an overriding reason why there should be an oral hearing, I'm sure the board would entertain submissions with respect to that. And if it determines that an oral hearing is in fact required, it would hold one. It doesn't take away the discretion of the board to hold an oral hearing in any case, but what it does do is that it doesn't require them to hold one in every case.

Mr. Werner Schmidt: I think, Madam Chair, that the issue is really being confused here. With modern technology, especially the ability to digitize oral communication almost instantaneously, this kind of shift, it seems to me, is not only unnecessary but gives, I think, credence to a particular direction and reduces, apparently—at least on a perceptual basis—the ability of certain people to express and represent themselves.

So I would strongly urge, Madam Chair, that we revert to the original wording here.

Mr. Chuck Strahl: Again, to make representations, I see what the effort was, I think, which was to make sure we go past just “hearing”, as in “the audible word”, and move over to “representation”, which could be either/or. What about an amendment? I think I'm going to make an amendment in a minute to make representations be either oral or written at the discretion of the parties. That way there is no doubt that if someone wants to make an oral representation, it can be done. In other words, it won't be at the discretion of the board. It will be at the discretion of the parties.

If a union or an employer says that its best case is to get a person who is probably a previous member of Parliament with awesome oratorical powers to move in—

Some hon. members: Oh, oh.

Mr. Chuck Strahl: —and make a presentation to the board, that person could do so orally. Someone else may say, “I took my instruction from the health minister and I'm better at the written word.” That way, the discretion wouldn't be the board's; it would be at the discretion of the parties. Is it necessary to do that? Right now the parties may say they like to do their presentations orally and the board may say it's busy this week, so “give us your submission in writing and we'll review it”. Some people do better at one than the other.

So I'd like to move, Mr. Chairman, that we add, after the words “to make representations,” in this clause, the words, “either orally or written at the discretion of the parties”.

Mr. Werner Schmidt: I second that. That's a good amendment.

The Chairman: It has been moved by Mr. Strahl—

Mr. Dick Harris: I'd like to speak to the amendment, Mr. Chairman.

The Chairman: Oh? I'm dying to hear it, Mr. Harris.

Mr. Dick Harris: I'm certain you are, as are the other members of the committee and the witnesses.

Some hon. members: Oh, oh.

• 1720

Mr. Dick Harris: Mr. Strahl makes a pretty rational point here. In consideration of the excellent example that Mr. Schmidt gave when he referred to the recent decision, the Delgamuukw case, where in fact the Supreme Court chastised the previous provincial supreme court ruling because they did not give credence to oral submissions, I suspect the reason for this was that during the provincial supreme court hearings the people who were able to give historic accounts of the history of the aboriginal people in B.C. certainly we're simply not able to give written reports. They wanted to give the reports in an oral fashion, but the judge ruled that for some reason these oral reports would not carry the full weight of written submissions.

The point is that if someone is not equipped to give a credible written report—and let's face it, there are many people in this country who simply cannot prepare written briefs in a professional manner, including some members of Parliament, which seems to be the requirement in this clause—then I think it's incumbent upon the government to ensure that anyone who has this inability would certainly be able to give their presentation in an oral fashion.

I think Mr. Strahl makes an excellent amendment and, once again, a very rational amendment, which he's known for. I think we have to consider this amendment and I would certainly speak for it.

The Chairman: Mr. Martin.

Mr. Pat Martin: Yes, I'd like to intervene here just briefly.

I'd like to ask Mike whether, in regard to the language in the original amendment here, the change recommended to make representation to the board, he wouldn't agree that natural justice again dictates that the person would be allowed to make representation in the way they were most able to. For instance, I'm thinking that if a person didn't have the skills to write a presentation they may be allowed to make a videotape and send it in, or they might be allowed to make a tape-recorded message or send something by e-mail. My question is, would he be satisfied that the existing language and not the amendment would give access to people even if they had physical barriers or educational barriers?

The Chairman: Mr. McDermott.

Mr. Michael McDermott: Yes, absolutely, Mr. Martin. I think overriding all of these amendments would be a requirement to respect natural justice. It's absolutely fundamental. This does not in any way prevent the board from hearing somebody in person, but it simply removes the automatic oral hearing, which can be time-consuming and sometimes wasteful.

Mr. Dick Harris: I want to perhaps question what Mr. Martin had to say. One thing about legislation is that it's generally worded so that the average person simply can't understand it. I can just imagine that someone out there would be looking at this legislation and not be able to clearly see a provision that gave them the right to make an oral presentation.

The phrase “subject to the rules of natural justice” I think is open to many different interpretations, and certainly the main phrase a layman might see there—and I was speaking of someone who wasn't a lawyer—would be the phrase “without holding an oral hearing”, and they would think they would be exempted from making a presentation. The following phrase, “subject to the rules of natural justice”, wouldn't really give a layman any encouragement or indication that they could in fact make a presentation.

• 1725

So before we proceed with this, we should have absolute clarification of the most profound definition of the phrase “subject to the rules of natural justice”. You can't just accept that phrase as being so all-encompassing that it—

Mr. Michael McDermott: Maybe I'll just clarify one point. An individual cannot make this application. This is an application under section 53 of the code, which can be made by a bargaining agent, who would normally know what they're doing.

Mr. Dick Harris: I beg to differ.

Mr. Michael McDermott: Well, that's what the code says. Section 53 says that where a bargaining agent alleges that sections 52, 54, 55, blah, blah, blah, it's the bargaining agent who makes the application.

This, incidentally, relates to technological change, which when I first started in the department—or, rather, when I'd been here a few years—was one of those issues that was brought into the code, and it was deemed to be the end of the world by some groups. In fact it's only been used about half a dozen times since 1973, when it was brought into the code.

Mr. Dick Harris: Well, that begs the question, is it an absolute requirement for a bargaining agent to have had some high academic achievement so he can understand the legalese of this type of legislation and clearly understand the meaning? I've met a lot of bargaining agents in my life who entered the workforce at age 15, so they missed out on a lot of schooling. Quite frankly, they did their jobs very well and they bargained very well, but they may not have had the ability to interpret the legalese, if I can put it that way, of legislation. I just wanted to get some clarification of what that term, “subject to the rules of natural justice”, really means.

Mr. Michael McDermott: Under natural justice you have to give the right to people to make their case and put their views in submissions or some form or another.

Mr. Dick Harris: Well, that's the point. I know it means give a person the right to make the case, but in what form?

Mr. Michael McDermott: In whatever form is appropriate.

Mr. Dick Harris: But it just says in the previous phrase, “without holding an oral hearing”. That's—

Mr. Michael McDermott: Where does it say that? It doesn't say that.

Mr. Dick Harris: Well, it—

Mr. Michael McDermott: It says, “to make representations”.

Mr. Dick Harris: I realize that, but by interpretation, it could mean, “without holding an oral hearing”.

Mr. Michael McDermott: Yes.

Mr. Dick Harris: That's the reason Mr. Strahl wants to make this amendment, so it would guarantee that a person would have the right to make a presentation in an oral fashion. That's the root behind Mr. Strahl's amendment.

Maybe Mr. Strahl would like to explain that a little more.

Mr. Chuck Strahl: The only word in there that I think would clarify it—and maybe you could pick out another word or two, but this is the big part for me—is “at the discretion of the parties”. In other words, the discretion is not of the board. The board then wouldn't determine natural justice; it would be at the discretion of the parties. So the party would make that choice and it would be up to them. That way they wouldn't feel they were waiting for natural justice or waiting for a ruling or waiting for a format that was proper; they would just say, “It's at my discretion”.

The only other change we could make—and maybe I should have done this—is to add, “orally, written, or other means at their discretion”. Maybe I've made it too restrictive—I'm not sure—but the intent was to make the discretion at the part of the parties as opposed to the discretion at the part of the board. That was my intent.

The Vice-Chair (Ms. Bonnie Brown): I'm calling the vote on Mr. Strahl's amendment.

Mr. Dick Harris: Recorded, please.

The Vice-Chair (Ms. Bonnie Brown): It will be a recorded vote.

(Amendment negatived [See Minutes of Proceedings])

• 1730

The Vice-Chair (Ms. Bonnie Brown): I'm calling the question on clause 26.

Mr. Chuck Strahl: I have a question for Mr. McDermott.

After the words “make representations”—and this is in the form in which I guess it's going to stay—it says “the Board may, by order”. Is it best to have the word “may” in there as opposed to “shall”? Should this be at the discretion of the board again?

Mr. Michael McDermott: Those words come from a current provision of the code that, as I told you, has not been used as much as some people had feared. There's no reason to change that at all from the current provision of the code.

Mr. Chuck Strahl: Okay. It's just that when you throw in a word like “may”, that means there's discretion of the board.

Mr. Michael McDermott: Yes, but “may” is there already.

Mr. Chuck Strahl: If we put the word “shall” in there, what difference would it make?

Mr. Michael McDermott: It would remove the option of the board not to do what follows, in the current subsection 53(2). The board may decide not to do what's in the next section.

But you have to read the whole section there. In this bill, you get only the first part of it.

Mr. Chuck Strahl: I'm just wondering if it would strengthen the board's....

Well, if it's only been used a half dozen times, as you say, then maybe it's fine just the way it is.

Okay, Madam Chair.

The Vice-Chair (Ms. Bonnie Brown): I'll call the question on clause 26.

Mr. Chuck Strahl: Can we have a recorded vote on that?

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

(Clause 26 agreed to [See Minutes of Proceedings])

(On clause 27)

Mr. Chuck Strahl: I have a couple of questions on this.

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

Mr. Chuck Strahl: Proposed paragraph 60(1)(a) refers to powers previously discussed and so on. My understanding, if I have this right, is that this is amended to provide arbitrators and arbitration boards with additional powers to compel any person to produce documents.

Are the type of documents specified in terms of what type of document can be compelled to be produced?

Mr. Michael McDermott: No, they would have to be relevant to the case at hand. There's no telling in advance what would relevant and what wouldn't be relevant until the arbitration was under way.

Mr. Chuck Strahl: In terms of this power that is now going to be conferred on the board, if right now the board wanted that power, what would it have to do?

Mr. Michael McDermott: This is not the board, Mr. Strahl. This is an arbitrator who's hearing a grievance, for example.

There are similar provisions adopted for the board. They've already been adopted by the committee in earlier provisions that are somewhat parallel to these, where documents can be required by the board. But this is about arbitration.

Mr. Chuck Strahl: Right.

Without this clause being passed, what would the board have to do right now?

Mr. Michael McDermott: It may not have the necessary documents available. Certainly in some cases previously—in board cases, for example—they had to hold hearings in order to get produced the documents they should have had before, as they were preparing for the hearings.

I think this gives an opportunity to speed up the arbitration process. Like a number of judicial proceedings, arbitration gets backlogged and delayed. This is helping to speed them up.

Mr. Chuck Strahl: I just want to be clear in terms of normal procedure now. If they didn't get the documents they wanted, would they have to go to court?

• 1735

Mr. Michael McDermott: I suppose they could. They would be the parties. They would subpoena the parties and so on, but this makes it clear that they have the power to have documents at any stage of the proceeding, rather than get into those legal arguments of mandamus or whatever it may be.

Mr. Chuck Strahl: Right. If one of the parties at any stage of this proceeding decides that the documents are not relevant and says they don't want to produce them, what remedy do they have?

Mr. Michael McDermott: They can make representations to the arbitrator, or the arbitrator would consider this. I suppose ultimately it could go to the courts, but that would be a delaying tactic, I would think.

Mr. Chuck Strahl: It says they have the power to compel. If someone doesn't obey the order or the request for documents, what happens to that party?

Mr. Michael McDermott: They could be filed in the courts and become an order of the court and administered that way. That's my understanding of what an arbitrator can do.

Mr. Chuck Strahl: So if someone is being intransigent and just doesn't want to deliver documents, will this actually speed up the process? If somebody just says, “He's going to compel me, I'm going to refuse and then we're going to go to court over it”, is that what would happen?

Mr. Michael McDermott: It could happen, but I think this is a clear signal that ultimately the arbitrator has the power to compel those documents, and if you're being sensible and you want to save money and save time—particularly money, I guess, in the case of legal proceedings—you would realize that the jig is up.

Mr. Chuck Strahl: Right. So the power, then, is given to the arbitrator. That's a fair chunk of power. It's not the board's. But it's transferred from the board to the arbitrator, I guess.

Mr. Michael McDermott: No. Arbitration takes place separately from board proceedings. An arbitrator is a quasi-judicial tribunal, just as the board is.

Mr. Chuck Strahl: Right. That's what I mean. The power is given from the board, transferred to the arbitrator, so to speak, and the arbitrator takes on that responsibility.

So I'm just wondering what you do if you have a problem. If you say a document's not relevant and the arbitrator says he wants to look at it anyway and tells you to deliver it, it's not coercion, but the party has a real problem, because, as you say, unless you're born wealthy you just have to adhere. Is that right?

Mr. Michael McDermott: I'll ask Madame Beaupré to respond. She has a lot of experience with these things.

Ms. Yvonne Beaupré: Paragraph (f.1) does provide that the power is exercised after providing the parties with an opportunity to make representations, so if somebody thought that the documents being sought were irrelevant, he or she could make representations on that. One would think that in the ordinary course of things, once the ruling of the arbitrator had been made, the parties would abide by it.

Mr. Chuck Strahl: And I guess they can make representations either orally or in writing.

Some hon. members: Oh, oh.

Mr. Chuck Strahl: No, we won't get into that. We just dealt with that.

Go ahead, Mr. Harris.

Mr. Dick Harris: This deals at length with the powers of the arbitrators, and what seems to be conspicuously missing from this is the power that the arbitrators would have to implement what is commonly known as final offer resolution to disputes. Is the issue of the final offer mechanism for settling disputes dealt with in some other section in this legislation?

Mr. Michael McDermott: No.

Mr. Dick Harris: It's not? Is it something that perhaps should be in this section when dealing with the power of the arbitrators?

As you know, in this method of settling long-lasting disputes where both parties have their heels dug in and are not budging, if getting the business up and going again is the prime goal of the arbitrator, then I think final offer dispute resolution should certainly be a part of the arbitrator's options. And I'm just wondering if maybe there's some background as to why it might have been left out of this, if in fact it doesn't appear in some other place in the legislation.

Mr. Michael McDermott: This is not usually a dispute that involves a work stoppage. This is a grievance dispute. Often the parties fashion their own grievance procedures, and they may be free to include in those grievance procedures arbitration by final offer selection, but the statute doesn't do that and I don't believe the statute should.

Mr. Dick Harris: So you're saying that this clause does not refer to a work stoppage but solely to a grievance dispute?

Mr. Michael McDermott: Yes.

Mr. Dick Harris: I see.

• 1740

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

Mr. Werner Schmidt: Thank you, Madam Chair.

I'd like to refer back to proposed paragraph 60(1)(a.1), which is:

the power to interpret, apply and give relief in accordance with a statute relating to employment matters, whether or not there is conflict between the statute and the collective agreement;

It seems to me, Madam Chair, that in effect this clause gives to the arbitration board or arbitrator the power and authority to interpret, and to provide remedial action with regard to any statute applying to employment matters. This is a very, very broad-ranging power, and means that the arbitration board in effect has more power to interpret and apply a statute than a court would. Is that not correct?

Mr. Michael McDermott: No, I don't think it has more powers than a court would have. I guess what it deals with here is a situation where the collective agreement may not be in accord with the statute in question, and the arbitrator can use the statutory standard when adjudicating the case.

Mr. Werner Schmidt: That may be so. That would clearly be one interpretation, Madam Chair.

I think the point remains that if an arbitrator or an arbitration board has given a particular interpretation or has taken or given a particular remedial action that the labour group might later decide is not appropriate or is incorrect or insufficient, there is no recourse to the courts, because this particular board has the right to make that kind of declaration. Where is the redress in case of a disagreement with regard to either the interpretation, the application, or the remedial action that has been proposed?

Ms. Yvonne Beaupré: The remedial provision would be found in provincial legislation that allows for review of administrative decisions.

Mr. Werner Schmidt: But this is not an administrative decision, Madam Chair.

Ms. Yvonne Beaupré: Well, quasi-judicial. I'm sorry.

Mr. Werner Schmidt: You see, this is a statutory power that is being given now. How can another statute override a statutory provision in this legislation?

Ms. Yvonne Beaupré: It does not override. It complements it.

Mr. Werner Schmidt: No, but my question isn't that. My question is that this board has the authority, has the power to make certain interpretations, has the right to provide certain applications, has the right to provide certain remedial action. Having done so by virtue of the power accorded it under statute, how can another statute either take away or ameliorate in any way the decision that has been made by a board that has done so under the full authority of another statute?

Ms. Yvonne Beaupré: If the arbitrator acted in error, a court will correct the error of the arbitrator.

Mr. Werner Schmidt: That's exactly my point. You see, the board has the authority to apply and to interpret. It's the word “interpret” that causes me very grave and serious concern, because there isn't an indication here that it may interpret. It “has the power” to interpret, which means that decision is binding and final.

Ms. Yvonne Beaupré: It does not mean that.

Mr. Werner Schmidt: Why doesn't it mean that?

Ms. Yvonne Beaupré: Because the arbitrator's decision is reviewable, in this case, in the courts of the province.

Mr. Werner Schmidt: Well, if this is federal jurisdiction, which it is, and this is federal legislation, how can we have a provincial statute override what is existing in a federal statute? I don't think that's correct, ma'am.

Ms. Yvonne Beaupré: This provision does not preclude the application of the provincial legislation, judicial review, provincial law.

Mr. Werner Schmidt: Well, Madam Chair, if that's the case, then this doesn't mean anything.

Mr. Michael McDermott: It means a heck of a lot, actually. This means that you can get matters resolved before an arbitrator and not before about three or four tribunals. This was welcomed by the labour law community on both sides of the table—management and union. This will help rationalize some of the arbitration proceedings that take place, and will assist the resolution of disputes. It will enable, as I said, situations wherein collective agreements that may be in conflict with employment legislation, equity legislation, and those kinds of things can be resolved by the arbitrator rather than going to another tribunal.

• 1745

Mr. Werner Schmidt: But the point I'm still not satisfied with.... I quite agree that may be the intent of the legislation; I don't question the intent. In fact the whole idea behind this legislation was to make the whole arbitration procedure a little more efficient and to expedite it. I understand that. I understand the intent, and I have no quarrel with that intent. But what I do have a quarrel with is the way it is worded. I do not believe you are correct. If this went to a further board, the suggestion you're making that another statute would override this.... I really question whether you could make that stick, what you've just suggested. I don't think so.

Mr. Michael McDermott: It's not a matter of overriding; it's a matter of the decision of the arbitrator being reviewable by another court, which is quite a common proceeding. A lower court or tribunal can be reviewed by a superior court or tribunal if there are grounds to do so, and nothing is taken away from that superior tribunal in this case.

Mr. Werner Schmidt: Well, then, please help me—

Mr. Lynn Myers: Why don't we try to listen to the response rather than hear the question re-asked again? This is now ridiculous.

The Vice-Chair (Ms. Bonnie Brown): In actual fact, Mr. Schmidt, you've asked your questions, the staff have given their answers, and what you're now doing is debating with the staff because you interpret it differently. But it's clear to those of us who are listening that you are interpreting it one way and the staff is interpreting it another way. So I guess you have to vote based upon your own interpretation, but toing and froing on the same point is getting a bit onerous for us.

Mr. Werner Schmidt: Okay. Thank you.

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

Mr. Chuck Strahl: I have a question on proposed subsections 60(1.1) and 60(1.2). Proposed subsection 60(1.2) includes the phrase, “the arbitrator or arbitration board may, if the parties agree...”, and then it goes on. However, proposed subsection 60(1.1) doesn't have that in there; it just says they “may extend the time”, I guess at their discretion. Is that an intentional difference?

Mr. Michael McDermott: Yes, it is intentional, but you should read the last lines of proposed subsection 60(1.1), which say, “...if the arbitrator...is satisfied...that the other party would not be unduly prejudiced by the extension.”

Mr. Chuck Strahl: Yes, I did read the whole clause, but—

Mr. Michael McDermott: They're two different things. That accounts for the different wording.

Mr. Chuck Strahl: So it is deliberate, then?

Mr. Michael McDermott: Quite deliberate, yes.

Mr. Chuck Strahl: So the power to mediate, then, is if the parties agree, the power to extend time is at the discretion of the arbitrator if he or she is convinced that it's in the best interests of both sides.

Mr. Michael McDermott: And that no undue prejudice would be caused.

Mr. Chuck Strahl: Okay. I just wondered why there was that difference.

Mr. Dick Harris: Madam Chairman, I want to get back to the powers of the arbitrator once again.

I thank Mr. McDermott for clarifying that this particular clause refers to grievances. However, I believe that in fact this clause is not complete and that final offer selection arbitration should have been included in this. I want to go into the rationale of that, and then perhaps Mr. McDermott can give me the rationale as to why it was excluded.

As the members will understand, the purpose of a grievance is to try to resolve some dispute and force a settlement to that dispute, and that's why final offer selection arbitration is very appropriate, because it puts the onus on both sides to reach an agreement or a resolution to that grievance. It can also be used equally by both labour and management to provide a permanent, just, and effective dispute settlement mechanism so that this grievance would not be a prolonged item that could eventually lead to a work stoppage. And of course, as we know, final offer selection arbitration does not favour one side over the other.

So if we are making provisions in legislation for the powers of the arbitrator, certainly they should have the power—

Mr. Pat Martin: I have a point of order.

The Vice-Chair (Ms. Bonnie Brown): There's a point of order, Mr. Harris.

• 1750

Mr. Pat Martin: I have a feeling the long argument the member is going into is about final offer selection, which is about collective bargaining when collective bargaining breaks down.

We're talking about grievance arbitration here, an arbitrator hearing a grievance, not necessarily even an interest arbitration. It could be arbitration dealing with language in a collective agreement, where I think even he would admit final offer selection just doesn't even enter into it. He's completely off the mark. He's talking apples to oranges. Save that pitch for final offer selection, for the clause we're going to come to.

The Vice-Chair (Ms. Bonnie Brown): We're going to have a debate in great form, Mr. Harris, a little later on.

Mr. Pat Martin: I think you're springing this particular ammunition at completely the wrong time here, and it isn't relevant to this clause.

Mr. Dick Harris: I think it is a debatable issue as to whether it is relevant, and I maintain that final offer selected arbitration could apply equally.

Some hon. members: No, no.

Mr. Dick Harris: I believe I have the floor, Madam Chair.

Final offer selection arbitration could be appropriately applied to a grievance dispute, so it doesn't escalate into a work stoppage.

Mrs. Sue Barnes: I have a point of clarification. Are we studying this bill for the first time, or is this—

The Vice-Chair (Ms. Bonnie Brown): Some people are.

Mrs. Sue Barnes: Is this the first time some people have tried to understand this bill, or is this the clause-by-clause? I would suggest that if the same answers are being sought time and time again and the same answers are being given, maybe it's about time in this process somebody says we've already dealt with that.

The Vice-Chair (Ms. Bonnie Brown): We have done that in the public hearings, Mrs. Barnes.

Mrs. Sue Barnes: Yes, I realize that.

The Vice-Chair (Ms. Bonnie Brown): I'm thinking about this point of order Mr. Martin raised, because I thought I heard Mr. McDermott say the purpose of not naming final offer selection or any other method was to leave the parties free. A variety of disputes can come up, and Mr. Martin has listed a few of them. There is a variety of ways of solving them. Mr. McDermott said, five or ten minutes ago, that final offer selection may be something the parties in the dispute might choose to use.

So, Mr. Harris, just for your clarification, my understanding of the situation is that it is not named in this clause, nor is any other dispute settlement mechanism, because traditionally the parties have chosen their own mechanism to use to settle the dispute, whether it be an employee grievance or one of these other things Mr. Martin has mentioned. So I don't know why we're talking about it, because it is not excluded by this clause. Rather, all mechanisms are included and it becomes the choice of the two parties.

In that sense, we don't need to explore whether it's a good idea or a bad idea; we accept it as an idea that is on the table for the use of the people who are having the dispute.

Mr. Dick Harris: I brought this up because if we're being asked to accept this clause and there appears to be, in our eyes, something lacking in the clause and it doesn't go far enough, how can we possibly accept it?

The Vice-Chair (Ms. Bonnie Brown): Are you suggesting we list all the mechanisms that might possibly be used?

Mr. Dick Harris: No. I'm saying it might be appropriate to put an amendment to this clause because it deals with providing arbitrators and the arbitration board with additional powers. So if an additional power that might be beneficial to settling grievances—as Mr. McDermott has pointed out this clause applies to—is final offer selection and if that might be beneficial to this clause, I think it should be in there. Perhaps an amendment should be made.

The Vice-Chair (Ms. Bonnie Brown): I would caution you against that, because if you name one mechanism in the statute, it will suggest that's the only one that can be used. Do you really want to limit the employers to one mechanism, or do you not think some of the employers, and the employee groups, might like to select their own mechanisms?

Mr. Dick Harris: No, I think we should give them the option or this additional tool under the powers of the arbitrator.

Mr. Lynn Myers: On a point of order, if there is an amendment to be put, now is the time, so we can vote on it and save this to and fro of debate.

The Vice-Chair (Ms. Bonnie Brown): Okay. Put your amendment, Mr. Harris.

Mr. Dick Harris: I will present the amendment in writing. In the meantime, I think Mr. Schmidt wants to speak to this.

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

Mr. Werner Schmidt: Thank you, Madam Chair.

• 1755

I would like to ask for a further clarification on proposed subsection 60(1.2):

(1.2) At any stage of a proceeding before an arbitrator or arbitration board, the arbitrator or the arbitration board may, if the parties agree, assist the parties in resolving the difference at issue without prejudice to the power of the arbitrator or arbitration board to continue the arbitration with respect to the issues that have not been resolved.

I think I understand the intent here. My question is, though, does this include in it or have the possibility of a perceived, if not real, conflict of interest?

Mr. Michael McDermott: I think that's taken care of by the prior agreement of the parties being necessary. They commit themselves to a process and it's saying you stay in there. If a real conflict of interest were to emerge, there are ways of dealing with that, but generally speaking this is a mediation arbitration technique that is behind this kind of provision, and it is well known in labour relations circles and should not cause the kind of problem you suggest, sir.

Mr. Werner Schmidt: I understand the intention here. In fact, when a conflict of interest, or a perceived conflict of interest, arises, do the parties then automatically exclude the arbitrator, or does the arbitrator withdraw himself from the particular issue, or what happens?

Mr. Michael McDermott: No, the arbitrator would have the authority to stay in the case. Clearly, I would assume the arbitrator would listen if there's a perceived conflict of interest. He would listen to what that is and then make a judgment on that case. The idea is you're not going to have people wasting their time and committing themselves to the process and when it looks like it's not going to go their way, they check out. That would be a waste of time and an abuse of process, sir.

Mr. Werner Schmidt: That's not exactly what I had in mind. The conflict of interest I'm talking about is that the respective interests are opposite because that's why mediation is taking place. There's disagreement on the two sides, otherwise there would be no point in getting together. Because there is this disagreement, and if the arbitrator simply performs the role of saying, look, couldn't you agree on this and this together...and if he does that, I think the intent of what is being attempted here is correct and I think it would work.

The other kind of question is if one party perceives the arbitrator as favouring a particular resolution that neither of them really likes, but they take it a little further and say this now puts the arbitrator into a conflict of interest vis-à-vis a particular position. That's the point I'm raising. In your experience, has that ever happened?

Mr. Michael McDermott: I know people are frequently dissatisfied with the outcome of an arbitration, but I'm not so familiar with circumstances in which that kind of conflict of interest is alleged. The losing side is quite often dissatisfied with what the arbitrator decides, but not the kind of problem you're suggesting, sir, no.

Mr. Werner Schmidt: I suppose my other very practical question is that when the arbitrator uses this particular approach and there is an agreement reached there, the arbitrator then, I presume, does not have to rule on this issue because it's been resolved and is off the table.

Mr. Michael McDermott: That could happen. Sometimes there is a thing that is known as a consent ruling, or a consent order, where what the parties agreed to is then written up as an order of the arbitrator.

Mr. Werner Schmidt: Yes. Thank you, Madam Chair.

The Vice-Chair (Ms. Bonnie Brown): Mr. Harris, would you like to present your amendment, please.

Mr. Dick Harris: The amendment would be to clause 27, subsection 60(1) under proposed paragraph (a.3), where it says “considers appropriate or to which the parties agree”. Proposed paragraph 60(1)(a.3)—and I'll give you a copy of this, Madam Chair—would then read:

consider such submissions provided in such form or by such method considered appropriate or to which the parties agree, provided one such method be final offer selection arbitration.

I submit that as an amendment, Madam Chairman.

• 1800

The Vice-Chair (Ms. Bonnie Brown): Mr. Harris has read his amendment. We can call this question. All those in favour of the amendment?

Mr. Harris would like to speak to the amendment.

Mr. Dick Harris: Well, as you can understand by the amendment, the purpose of this is to give the arbitrator or arbitration board one more power for an effective grievance settlement mechanism. Mr. McDermott is quite right that final offer selection arbitration has been used primarily in ending work disputes.

I'm sorry, maybe I misinterpreted your comments. Perhaps you could just clarify what you meant by that.

Mr. Michael McDermott: I've encountered it in interest disputes, but it's by far the most infrequent method of settling an interest dispute.

Mr. Dick Harris: Okay. However infrequently it's used, it's still a very effective method because it does not favour one side over the other. I think in the case of this clause, where we're talking about grievances, if both parties have their feet dug in over this grievance and there seems to be no resolution, then what we want to do is give the arbitrator or arbitration board this effective tool to settle this dispute before it escalates into a work stoppage. That's why I wanted to have it included.

The Vice-Chair (Ms. Bonnie Brown): Thank you. We'll now call the question.

There will be a recorded vote on Mr. Harris' amendment.

(Amendment negatived [See Minutes of Proceedings])

The Vice-Chair (Ms. Bonnie Brown): We'll now go to the main question, which is clause 27. All those in favour of clause 27?

I think we've had every paragraph questioned in the course of this. No one seems to have a question ready, so let's have a recorded vote right away.

(Clause 27 agreed to [See Minutes of Proceedings])

(On clause 28)

Mr. Dale Johnston: We have some questions on this one.

The Vice-Chair (Ms. Bonnie Brown): Who has questions? Mr. Harris.

Mr. Dick Harris: Madam Chair, in response to the members across the way, yes, we have read it. That's why we have so many questions. In reading this legislation, we simply can't accept so many of the clauses that are in there. That's why we're looking to make additions or deletions to it. The question was whether I read it, and the answer is yes.

The Vice-Chair (Ms. Bonnie Brown): The members of the Reform Party indicated they wanted to ask questions, but I don't see one hand up.

Mr. Dale Johnston: Madam Chairman, I'm just waiting for the discussion to stop here.

• 1805

The Vice-Chair (Ms. Bonnie Brown): Order. Calm down.

Mr. Johnston.

Mr. Dale Johnston: Thank you, Madam Chairman.

I'd like to ask the officials here today why it is we have a section here that refers to arbitrator and arbitration board, and yet any time we've offered to make an amendment to bring in a final offer selection or a dispute settlement mechanism, it's always turned down, rejected out of hand by the department and by the individuals.

We have here reference to an arbitrator and an arbitration board. What has prompted the need for this arbitration in this case?

Mr. Michael McDermott: Arbitration, Mr. Johnston, in labour relations terms is used for grievance arbitration. In nearly all Canadian jurisdictions you're not allowed to go to work stoppage over a grievance—that is, over the interpretation and application of the collective agreement. This is an element of stability in the term of an agreement. Both sides know there will not be a work stoppage.

However, you're referring to arbitration in an interest dispute, which is when a collective agreement is being negotiated. As bad as the outcome may occasionally be with a work stoppage, which is very occasional, there has been no better way found to bring pressure to bear on parties to make compromises other than to give them the threat of a work stoppage. It's as simple as that.

So they're two very different things. We've had the discussion many times. They are quite distinct.

Mr. Dale Johnston: Is there any—

Mr. Michael McDermott: While I have the microphone, I might point out that all we're doing in this particular provision is removing the requirement for an oral hearing. We had a long discussion about that. That's the only change to this provision.

Mr. Dale Johnston: Okay.

Is there any appeal process here, or is the arbitrator's decision final and can't be challenged?

Mr. Michael McDermott: The arbitrator's decisions are reviewable by the courts. That includes such things as whether they're patently unreasonable, those kinds of issues.

They are reviewable, yes.

Mr. Dick Harris: Okay.

Mrs. Brenda Chamberlain: Mr. Harris, who was so interested in it, isn't here. What happened, Madam Chair?

The Vice-Chair (Ms. Bonnie Brown): I can't answer that.

Mrs. Brenda Chamberlain: I'm sorry. I just wondered about it, because he was so very interested in this.

Mr. Dale Johnston: Madam Chair, I think the same standing orders apply to the committee, to a certain extent. It's only a matter of principle that we don't refer to either the presence or absence of people. We do have a full complement of people here.

As far as I know, substitution is a perfectly acceptable practice here. We've been substituting all day, as have all parties.

Mrs. Brenda Chamberlain: Madam Chairman, I didn't realize Mr. Harris wasn't here. It's just because he had been interested. I apologize.

Mr. Dale Johnston: I'm sure Mr. Harris is interested, but you know, you can only drink so many cups of coffee before you have to get up and move around a little.

Mrs. Brenda Chamberlain: Exactly.

Mr. Dale Johnston: We wouldn't want to suffer the consequences.

Some hon. members: Oh, oh.

Mrs. Brenda Chamberlain: No. I would agree with that.

The Vice-Chair (Ms. Bonnie Brown):

[Editor's Note: Inaudible]

Mr. Dale Johnston: Actually, no, although the officials have clarified it.

He's gotten to the point where he can almost anticipate.... It's rather spooky the way we're starting to communicate here.

Mr. Michael McDermott: Oh, oh.

The Vice-Chair (Ms. Bonnie Brown):

[Editor's Note: Inaudible]

Mr. Dale Johnston: It's possible, but I'd rather think it's just because he's such a perceptive fellow.

Now, this—

Mr. Michael McDermott: I just got a memory, Mr. Johnston; I've heard the question before.

Some hon. members: Oh, oh.

Mr. Dale Johnston: That's what the chairman thought perhaps might have happened.

This was not in the old code. They actually had to hold hearings before they could make any—

Mr. Michael McDermott: There was doubt. The use of the word “hearing” led some people to believe there was an automatic right to a hearing. The Supreme Court has found that this is not the case. We're merely clarifying.

As I've said on many occasions, we want to make this code user-friendly.

Mr. Dale Johnston: So what you've done here is to clarify the part about an oral hearing. Is that correct?

Mr. Michael McDermott: Yes, sir.

• 1810

Mrs. Brenda Chamberlain: Is there a question on the floor, or are we ready to vote?

The Vice-Chair (Ms. Bonnie Brown): Mr. Johnston, are you finished?

Mr. Jason Kenney: Madam Chair, I have a question.

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

Mr. Jason Kenney: At clause 28, subsection 65(1) speaks of the rules of natural justice. I'm not a lawyer and not trained in the rules of natural justice. Perhaps one of the officials before us could explain for me exactly what the parameters of natural justice are as it applies to this section.

Ms. Yvonne Beaupré: Basically, the rules of natural justice are that the person have sufficient notice that a matter is to be dealt with by the tribunal, be given an opportunity to respond by an independent decision-maker.

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

Mr. Dale Johnston: Madam Chairman, that brings up another question regarding the differences we talked about earlier today between the British common law and the French civil law. Are the rules of natural justice any different between those two? Natural justice is natural justice, regardless of which system you use.

Ms. Yvonne Beaupré: That's right.

Mr. Dale Johnston: Okay.

We'd like a recorded vote.

The Vice-Chair (Ms. Bonnie Brown): We'll have a recorded vote on clause 28.

(Clause 28 agreed to [See Minutes of Proceedings])

(On clause 29)

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

Mr. Dale Johnston: Thank you. Could I have the officials give us a general explanation of how this particular clause is an improvement to the code?

Mr. Michael McDermott: This is a provision similar to the one we dealt with at certification. It will provide that there will be a grievance procedure leading up to arbitration in the event that a collective agreement is no longer in place.

A collective agreement remains in place until the requirements of the code are completed and the right to strike or lockout is achieved, and if a strike or lockout commences, the collective agreement is no longer there, and with it the grievance arbitration provisions of the collective agreement also disappear.

It has been a matter of contention in the past. There have been dismissals during that time, and often a collective agreement will have been settled, all the arguments about what should be in the collective agreement will have been settled, but the employer is saying, “Those people aren't coming back”, and the union is saying, “Oh yes, they are, and until they do, we won't sign a thing”.

Both labour and management who appeared before the task force, the FETCO group and the CLC group, jointly agreed that it would be a most desirable element of stability. They recommended that to Sims, and Sims recommended it in his case, and the government has taken up that recommendation and put it in the statute.

Mr. Dale Johnston: So this is one of those areas in which all the affected management groups and labour groups concur?

Mr. Michael McDermott: Absolutely. It was in the consensus documents, sir.

• 1815

Some hon. members: Oh, oh.

The Chairman: Order.

Mr. Dale Johnston: You did say that was a very contentious issue, and I guess in a way you answered who raised the contentious aspect, but can you give us an example?

Mr. Michael McDermott: You may recall the Royal Oak dispute, Mr. Johnston, at the Yellowknife mine. The issue that was eventually found by the board to be the substance of the failure to bargain in good faith was, in fact, the lack of response of the employer to the union request for some kind of just-cause procedure in settling dismissals. That was perhaps the most recent high-profile case that is relevant.

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

Mr. Jason Kenney: Mr. McDermott, with respect to the arbitration contemplated by this section, on whom does the cost for the arbitration fall?

Mr. Michael McDermott: On the parties, sir.

Mr. Jason Kenney: So there's no potential government liability here at all.

Mr. Michael McDermott: No.

Mr. Jason Kenney: Is this clause mirrored in or analogous to similar provisions in provincial labour statutes and labour codes?

Mr. Michael McDermott: I'm not sure. I think we're responding to particular problems in the federal jurisdiction. I'm not sure what the provincial situation is. Certainly not all the provinces have it—but they probably will after they realize how sensible it is.

Some hon. members: Oh, oh.

Mr. Jason Kenney: Do you have an estimate as to roughly what percentage of labour disputes in federally regulated industries currently seek arbitration as opposed going to the strike or lockout options? Do you keep statistics on it? Does the labour board keep statistics on that?

Mr. Michael McDermott: No, the labour board wouldn't. There are very few that have it as the standing system of contract renewal. By law they all must have a means of solving grievance disputes by arbitration or by some other method, without work stoppages, but it's extremely rare for the parties. All the parties supporting this kind of solution on the west coast that came from other jurisdictions settle their disputes without arbitration.

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

Mr. Dick Harris: Yes, Madam Chairman, in proposed subsection 29(6), I guess it is, the last statement is:

The relevant provisions in the collective agreement and sections 57 to 66 apply, with such modifications as the circumstances require, to the settlement of the disagreement.

Mr. McDermott, could you tell me exactly how sections 57 to 66 apply to this?

Mr. Michael McDermott: Sections 57 to 66 are the sections relevant to grievance arbitration. In the event that the collective agreement doesn't deal with the issue satisfactorily, the code takes over, so it's quite pertinent to this provision.

Mr. Dick Harris: All right. Thank you.

The Vice-Chair (Ms. Bonnie Brown): Shall clause 29 carry?

Mr. Dale Johnston: No, not yet, Madam Chair.

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

Mr. Dale Johnston: Did the Royal Oak mine come under federal jurisdiction because of its location?

Mr. Michael McDermott: Yes, sir.

Mr. Dale Johnston: Other mining is not under federal jurisdiction, but this is, because of its location in the Northwest Territories. Is that right?

Mr. Michael McDermott: Mining in the Yukon Territory and Northwest Territories—and indeed, all private sector industries in those two territories—comes under federal jurisdiction. The only other mines I'm aware of that come under federal jurisdiction are the uranium mines and the Cape Breton Development Corporation coal mines.

Mr. Dale Johnston: Why do the Cape Breton coal mines fall under it?

Mr. Michael McDermott: They're crown corporations, sir.

Mr. Dale Johnston: Oh, yes. Okay.

In the new territory of Nunavut, with respect to the mines there, is creation of the new territory going to have any impact at all on this bill?

Mr. Michael McDermott: My understanding is that there will be no immediate impact in the sense that I believe the jurisdiction of the Canada Labour Code will continue to apply.

• 1820

Mr. Dale Johnston: But you said that in your opinion there would be no immediate....

Mr. Michael McDermott: At any point, if the Yukon Territory or the Northwest Territories—and as they split into two parts in the Northwest Territories—wish to adopt their own statute for industrial relations purposes, they would be able to do so. They've done so in the case of health and safety and in the case of labour standards, but they have not done so in the case of industrial relations. It's their choice, sir.

Mr. Dale Johnston: Are you saying that would be a very easy transition?

Mr. Michael McDermott: I presume they would want to negotiate something that worked. And if they were to ask, I'm sure the federal government would discuss the matter with them, but they haven't asked lately.

Mr. Dale Johnston: Okay.

The Vice-Chair (Ms. Bonnie Brown): Shall clause 29 carry?

Mr. Dale Johnston: Could we have a recorded vote?

A voice: Can you give us 30 seconds?

A voice: Who's on first?

The Vice-Chair (Ms. Bonnie Brown): The clerk's department needs some time to organize who's here and who's voting.

We've had a request for a 10-minute break from Mr. McCormick. I think that's fair at this time. I declare a 10-minute break from the proceedings.

• 1821

• 1839

The Vice-Chair (Ms. Bonnie Brown): We're about to do the recorded vote on clause 29.

• 1840

(Clause 29 agreed to [See Minutes of Proceedings])

(On clause 30)

The Vice-Chair (Ms. Bonnie Brown): Shall clause 30 carry?

Mr. Harris.

Mr. Dick Harris: I want to ask Mr. McDermott about proposed subsection 71(1). It reads:

71.(1) Where a notice to commence collective bargaining has been given under this Part, either party may inform the Minister by sending a notice of dispute, of their failure to enter into, renew or revise a collective agreement

Does that refer to the four-month period we talked about earlier?

Mr. Michael McDermott: Yes, it does.

I'm sorry, no, it doesn't. The earlier one was the four months with notice to bargain.

The part that says:

71.(1) Where a notice to commence collective bargaining

is the four months, but this whole thing deals with the notice of dispute, which is when they have been bargaining and they've failed to reach an agreement. So the first line is the four months, and the next thing is the notice of dispute, which is different.

Mr. Dick Harris: It says:

notice of dispute, of their failure to enter into, renew or revise a collective agreement

What timeframe does that fall into?

Mr. Michael McDermott: The parties determine themselves. The code talks about meeting and trying to enter into a collective agreement within 20 days of notice to bargain having been given, but it frequently goes a lot longer. It's up to the parties themselves to determine when they will tell the minister they have reached an impasse.

Mr. Dick Harris: Once an impasse is reached, are they not obligated to tell the minister?

Mr. Michael McDermott: Well, if they want to do something about it, yes. If they want to go to the next stage and go to conciliation, they have to; otherwise they just leave things in place, the collective agreement carries on, and there's no change.

Mr. Dick Harris: So the ultimate outcome of that could be a work stoppage.

Mr. Michael McDermott: No, there can't be. Until they go to conciliation, they can't engage in a work stoppage.

Mr. Dick Harris: Okay. Now under proposed subsection 71(2), the party who sends a notice of dispute under proposed subsection 71(1) must immediately send a copy of it to the other party. What does the word “immediately” mean?

Mr. Michael McDermott: It means what it says. When they're sending the notice to the minister, at the same time they should send one to the other party. I suppose they could be there afterward. There's some latitude as to what “immediately” means.

Mr. Dick Harris: For the spirit of the clause, I think it would be important to put a timeframe in and replace that word “immediately”. We could say “as soon as possible”. That still leaves latitude.

It might end up tying things up, so I would like to propose an amendment, Madam Chair.

On clause 30, in proposed subsection 71(2), we should delete the word “immediately” and add the words “within 48 hours”. I have that written in amendment form.

The Vice-Chair (Ms. Bonnie Brown): There's an amendment on the floor.

Mr. Dick Harris: I'd like to speak to that.

The Vice-Chair (Ms. Bonnie Brown): Yes, go ahead, Mr. Harris.

Mr. Dick Harris: The purpose of putting a timeframe in there is that I think one thing we find in many agreements with regard to timeframes is the vagueness of the word. I think the word “immediately” could be abused, whereas a set time limit certainly could not. There could be penalties imposed if in fact it wasn't adhered to.

So I think 48 hours is a reasonable time for parties to send their notice of dispute, and it would take away any vagueness that the word “immediately” might cause.

Perhaps one of my colleagues might want to speak to that as well.

The Vice-Chair (Ms. Bonnie Brown): You explained it quite clearly, Mr. Harris.

• 1845

Mr. Dick Harris: Just in case there was another side to it that I left out.

The Vice-Chair (Ms. Bonnie Brown): I believe the amendment is on the floor. It has been fully explained by Mr. Harris. We will now call the question on Mr. Harris' amendment.

Mr. Dale Johnston: Madam Chair, on the amendment that my colleague raises, as far as the word “immediately” is concerned, I'm wondering if this could be a contentious issue in that it could be actually an issue that parties might wind up suing themselves over. Did you or did you not send this “immediately”? It's one of those things that is ill-defined. I think the suggestion of 48 hours is a reasonable one and it certainly is a definitive one, and it gives some latitude within the 48-hour period. It would seem to me that it would be less of a contentious issue than the word “immediately”.

The Vice-Chair (Ms. Bonnie Brown): Mr. Johnston has given his reasons in favour of the amendment. I'm now calling the question on the amendment.

Mr. Dale Johnston: Could I have a recorded division, please?

(Amendment negatived [See Minutes of Proceedings])

Mr. Dick Harris: Madam Chair, I just want to finish off on this clause.

I think I erred in putting that amendment forward. In proposed subsection 71(2) I had believed that 48 hours would be an appropriate time. I think it was voted down by the other members because they felt that perhaps a longer time would be necessary.

I would like to propose another amendment, Madam Chair. That would be in proposed subsection 71(2), to replace the word “immediately” with the words “within 72 hours”. That would give, I'm sure, a lot of satisfaction to the other members knowing that there was a large enough time. I think that's probably what caused—

The Vice-Chair (Ms. Bonnie Brown): I think that amendment is out of order, because the spirit of it is the same as the spirit of the one that was soundly and resoundingly defeated. Your interpretation of the motivation of the people who voted a certain way is only your interpretation, so I'm not going to accept that second amendment, which is almost the same as the first.

Mr. Dale Johnston: I'd like to ask Mr. McDermott how clause 30 is an improvement over what is in the code at the moment. What were the motivating factors to bring about these changes?

Mr. Michael McDermott: The main improvement is proposed subsection 71(2), because there is no provision in the code right now for providing a copy of the notice of dispute, which is sent to the minister, to the other party. The other party sometimes finds out by accident or finds out from the minister. I think this is merely a matter of encouraging politeness among the parties, so that when they tell the minister something they also tell the other parties.

Mr. Dale Johnston: What were the motivating facts behind this?

• 1850

Mr. Michael McDermott: It just makes logical sense. We have run into situations in the past where parties have complained. When they hear from the minister that a conciliation officer has been appointed, they say they never even knew there'd been a notice of dispute. So this is going to help that; they will now know, and there is a notice of dispute.

Mr. Dale Johnston: Is this as a result of a section in the task force? It says here the task force made this recommendation. Did they have a lot of people come to the hearings who said this was necessary to bring about these changes?

Mr. Michael McDermott: I believe the task force did hear some discussion of that, but the task force also used its own considerable experience in these matters and knows this to be of some value.

The Vice-Chair (Ms. Bonnie Brown): It's a fairly trivial matter. It's putting into the code something that's essentially for courtesy. I don't think there's any machiavellian purpose to putting it in.

Mr. Dale Johnston: Well, what I was getting at is whether it has caused grievances in the past that the minister's gotten the notification and one of the other parties has not.

Mr. Michael McDermott: I think I said that. I said yes. I spent many years as head of the conciliation service, and we got complaints from people who, when a conciliation officer was appointed, said that was the first they'd heard of the notice of dispute having been given. I said that quite clearly. I hope I've been equally clear the second time around.

Mr. Dale Johnston: Oh, absolutely. As you can appreciate, there's been a little disturbance here, and I've actually had a little difficulty hearing you.

Mr. Michael McDermott: Okay.

Mr. Dale Johnston: Why is it that in proposed subsections 71(1) and 71(2) the minister has 15 days to appoint a conciliation officer or conciliation commissioner or a board? Why is it necessary to have such a long time? Is that considered a long time period or is it not?

Mr. Michael McDermott: No, not particularly. Government moves slowly sometimes; 15 days is not a long period.

Mr. Dale Johnston: It sure would be a long time for clause-by-clause, though, wouldn't it?

The Vice-Chair (Ms. Bonnie Brown): Are there any further questions?

Mr. Jason Kenney: I have a question, Madam Chair, for the officials.

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

Mr. Jason Kenney: Proposed subsection 70.1(2) speaks of the head of the Federal Mediation and Conciliation Service. I gather, Mr. McDermott, that's a position you once held. Is that correct?

Mr. Michael McDermott: Yes, sir. Guilty.

Mr. Jason Kenney: Is the head a Governor in Council appointment or is it a civil service position?

Mr. Michael McDermott: It's a Public Service Employment Act position.

Mr. Jason Kenney: And how many employees are there currently in the service to which this proposed subsection refers?

Mr. Michael McDermott: My recollection—and I've not been there for a while—is it was 60 people maximum; it's a little less now.

Mr. Jason Kenney: I'm asking these questions because I'm not familiar with the mandate of the service. Do they advise the minister on industrial relation matters only with respect to federally regulated industries that fall under the ambit of the code?

Mr. Michael McDermott: Yes, sir.

The Vice-Chair (Ms. Bonnie Brown): No other questions, then, on clause 30?

Mr. Dale Johnston: I'd like a recorded vote, please.

The Vice-Chair (Ms. Bonnie Brown): A recorded vote has been requested.

(Clause 30 agreed to [See Minutes of Proceedings])

(On clause 31)

The Vice-Chair (Ms. Bonnie Brown): We'll move on to clause 31.

• 1855

Mr. Dick Harris: Madam Chairman, I seem to have been left out of the vote.

The Vice-Chair (Ms. Bonnie Brown): Okay. Mr. Harris?

Mr. Dick Harris: No.

(Clause 30 agreed to [See Minutes of Proceedings])

(On clauses 31 and 32)

The Vice-Chair (Ms. Bonnie Brown): Moving on to clause 31—

Mr. Dick Harris: Before we start, Madam Chairman, may I say on behalf of our members here, thank you for the dinner. We really appreciate it, and now we can get down to work.

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

Mrs. Brenda Chamberlain: We hope you appreciate it—we really do—and that you will show that in your working style.

Madam Chair, I wonder if it would be possible for us to consider perhaps moving five clauses at a time and to debate that in the spirit of the supper and the good working conditions.

The Vice-Chair (Ms. Bonnie Brown): We could try that.

An hon. member: In the spirit of the supper?

Mrs. Brenda Chamberlain: Yes.

The Vice-Chair (Ms. Bonnie Brown): Let us try this.

Mr. Dick Harris: Is that a motion, Madam Chair?

Mrs. Brenda Chamberlain: Yes.

The Vice-Chair (Ms. Bonnie Brown): No, I can make that decision.

Shall clauses 31 to 36 carry?

Mr. Jason Kenney: Point of order, Madam Chair.

The Vice-Chair (Ms. Bonnie Brown): We had an agreement, Mr. Kenney, at the beginning of this, that that was a possible strategy we would use. I understood Mr. Johnston and the chair had that agreement. However, when we began, Mr. Johnston seemed to have questions on each clause and preferred to move singly, but he said it was possible we would try that.

There is nothing to restrain you from asking questions on any one of the five clauses under question, if we do five at a time. You might find that within the five there is one you really want to hone in on.

Mr. Dale Johnston: Madam Chair, I think my colleagues wouldn't mind asking questions on five at a time, but we will vote on them one clause at a time.

The Vice-Chair (Ms. Bonnie Brown): No, I think we we'll discuss and vote, so if you want to vote on one at a time, we'll have to take one clause at a time.

I'll say again, shall clause 31 carry?

An hon. member: No.

The Vice-Chair (Ms. Bonnie Brown): Are there questions?

Mr. Dale Johnston: Yes.

The Vice-Chair (Ms. Bonnie Brown): You're against restraining the minister's power?

Some hon. members: Oh, oh!

Mr. Dale Johnston: It depends on who the minister is, of course.

The Vice-Chair (Ms. Bonnie Brown): This is a limitation on power. Considering the theme of your other questions and comments, I would think we could pass this one pretty quickly.

Mr. Dale Johnston: Do you think so?

The minister may make only one appointment. Why would the minister ever be tempted to make more than one appointment? Would he want to appoint a conciliation officer and a commissioner to the same case?

Mr. Michael McDermott: Not at one and the same time, but I think as you know from your close study of the existing code, Mr. Johnston, there is the option of the appointment of a conciliation officer followed by the appointment of a conciliation commissioner. Federal employers and federal unions that appeared before Sims said that doesn't make any sense, so let's have one stage, but the minister can have a menu. This reflects that consensus agreement. So it's one appointment and no second stage available.

Mr. Dale Johnston: Put most eloquently, I must say, and for the benefit of my colleagues, I'm sure they appreciate that. On their behalf, I thank you for that, but they may have some questions.

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

Mr. Dick Harris: I would like to know if Mr. McDermott can explain to me under what circumstances the minister would make the appointment of, for example, a conciliation officer, a conciliation commissioner, or in fact a board. Under what circumstances would a minister likely choose one of those three?

Mr. Michael McDermott: I don't want to in any way constrain the minister's discretion. The minister will decide these matters. From experience, though, most appointments are of a conciliation officer. I think the wishes of the parties will be somewhat of interest, but the minister will retain discretion in all cases.

Mr. Dick Harris: Would the minister first contact the two parties and ask which one they think is the most appropriate?

Mr. Michael McDermott: One of the parties that gives notice to bargain may well express a preference at the outset.

Mr. Dick Harris: Okay. The thing that bothers me is that I think history will show that boards take considerably longer to make decisions than, say, one person. That's why I'm wondering under what circumstances the minister would consider a board a good choice, if in fact historically, where you have to get a collective agreement as a conciliator, one person would be able to make a quicker decision on something.

• 1900

Mr. Michael McDermott: That is exactly the case, Mr. Harris. The code was amended in the early 1970s to introduce the concept of a conciliation commissioner. Since that time I think there have only been about three conciliation boards appointed. Two of them were where the parties agreed that the board's findings would be binding. The other one was a post office dispute that went on interminably and I think proved your point, sir.

Mr. Dick Harris: I appreciate that. I'm just wondering if perhaps somewhere in that clause, if the conciliation board is probably the more cumbersome of the three, and in the interest of streamlining dispute settlement, we should put forward an amendment that would take away the conciliation board option to the minister.

Mr. Michael McDermott: The parties expressed the wish to keep it there for occasional use, and I think they may have in mind some of those cases when they may want to make a decision of the board binding. There is provision in the code where the parties can agree that the board would be binding, and if they're going to a binding dispute they would probably want to have side members representative of their interests. I would suggest you leave it, sir.

Mr. Dick Harris: Was this part of the task force recommendation?

Mr. Michael McDermott: It was the group the task force established of labour and management representatives who recommended this, coming out of their consensus exercise, and also it was recommended by the task force.

Mr. Dick Harris: I see.

All right, Madam Chair, I'm satisfied with that answer.

The Vice-Chair (Ms. Bonnie Brown): Thank you. We'll call the question on clause 31.

Do you want a recorded vote, Mr. Johnston?

Mr. Dale Johnston: Yes, but I think I have one more question on clause 31, actually.

At the moment, Mr. McDermott, only the minister has the prerogative of extending the appointment of the conciliation officer, if all parties agree that the appointment can be extended. I don't quite understand. Wouldn't the appointment of the conciliation officer be until he reaches an agreement? I can't quite understand what would precipitate him having to be reappointed.

Mr. Michael McDermott: The code currently provides for the appointment of a conciliation officer and to report back within a certain given time—I think it's 14 days or such period as the minister may extend it to.

The conciliation officer will stay until there's either a settlement or no chance of a settlement at that point. The stage has to be completed before the right to strike or lock out is acquired. It may be in some cases that the parties are not going to make those final compromises until they know they're looking at each other with the prospect of economic sanctions against each other.

Mr. Dale Johnston: What I can't understand is, is the conciliation officer appointed for a set period of time, and when that time runs out then the parties may agree to extend? That set period of time is either 14 days or a longer period as agreed to by the minister—

Mr. Michael McDermott: Yes.

Mr. Dale Johnston: —or by the parties?

Mr. Michael McDermott: In the case of the officer, the minister extends, or it can be agreed to by the parties, yes. Do you mean currently or as we are proposing it?

Mr. Dale Johnston: Well, both.

Mr. Michael McDermott: In the case of an officer right now, it's within 14 days, or such longer period as the minister may allow.

Mr. Dale Johnston: My apologies, Mr. McDermott. I skipped ahead a clause on you.

Mr. Michael McDermott: Okay.

The Vice-Chair (Ms Bonnie Brown): If we've skipped a clause, are there any other questions on clause 32? Then we can vote on both. They're kind of tied together.

Mr. Dick Harris: I have a question on clause 32, Madam Chair, where it reads:

73(2)(b) within fourteen days after the date of the appointment or within the longer period that may be agreed to by the parties or allowed by the Minister, report to the Minister as to whether or not the officer has succeeded in assisting the parties in entering into or revising a collective agreement.

• 1905

I have two questions. First, I have trouble with the wording “that may be agreed to by the parties or allowed by the Minister”. I can just imagine two parties at loggerheads. If they can't agree on anything up to that point, how on earth are they going to agree to something as simple as an extension of the 14-day period?

The second thing is the words “or allowed by the Minister”. Does that mean the minister would be involved in this dispute at this point?

Mr. Michael McDermott: The minister is usually involved by virtue of the conciliation officer, who is, in most cases, a departmental employee at the Federal Mediation and Conciliation Service.

Mr. Dick Harris: A conciliation officer who would have been appointed under....

Mr. Michael McDermott: Yes.

Mr. Dick Harris: Okay, but it may not be a conciliation officer. It could be a conciliation commissioner or a board.

Mr. Michael McDermott: Yes, that's true.

Mr. Dick Harris: Now we're on clauses 31 and 32, Madam Chair?

So if the two parties that were in dispute had failed to fulfil their obligation within 14 days, would the minister be within his or her rights to make demands on the two parties at that time through the conciliation officer?

Mr. Michael McDermott: To extend; when you say make demands, the minister's demands are not in the negotiations.

Mr. Dick Harris: To extend, yes.

Mr. Michael McDermott: Yes, he would.

Mr. Dick Harris: Okay, and he could also allow or disallow an extension.

Mr. Michael McDermott: No. Right now the minister could disallow an extension, even if the parties want to carry on in the case of a conciliation officer but not in the case of a conciliation commissioner or a board. The parties agreeing can extend the process.

Under this sort of collapsed provision here, this amalgamated provision, generally speaking, the minister will have discretion to extend up to a certain period. There is a time limit imposed, as you will see later on. That's why there is some virtue in considering all these clauses together.

Mr. Dick Harris: So could the minister disallow a request for extension?

Mr. Michael McDermott: No, not up to the limit. If the parties agree—both parties and not just one—the minister will be required to agree to the extension.

Mr. Dick Harris: So he's bound to agree. I don't see that anywhere in here.

Mr. Michael McDermott: If you see “within fourteen days after the date” in clause 32....

Mr. Dick Harris: Okay, there it is. I have it.

Are we doing clause 33 in this?

The Vice-Chair (Ms. Bonnie Brown): No, it's clauses 31 and 32.

Mr. Dick Harris: I have no more questions on clause 32. Perhaps one of my colleagues does.

The Vice-Chair (Ms. Bonnie Brown): So we are ready for the question on clauses 31 and 32.

Mr. Dick Harris: I'd like a recorded vote, please.

The Vice-Chair (Ms. Bonnie Brown): A recorded vote has been requested.

(Clauses 31 and 32 agreed to [See Minutes of Proceedings])

(On clause 33)

The Vice-Chair (Ms. Bonnie Brown): Clause 33 is rather a long one. I think it could stand alone.

Mr. Kenney.

Mr. Dale Johnston: This clause, Madam Chair, lays out the conciliation process.

The Vice-Chair (Ms. Bonnie Brown): Mr. Johnston, Mr. Kenney indicated.

Mr. Dale Johnston: Oh, did he? I'm sorry.

Mr. Jason Kenney: I was indicating questions. I said “Questions”, Madam Chair.

• 1910

Mr. Dale Johnston: We promise not to fight over them. Thank you, Madam Chair.

Is the conciliation commissioner appointed by the minister actually under the minister's signature, or is this a departmental thing? If the minister were out of town, could the ADM or deputy minister sign these appointments?

Mr. Michael McDermott: The actual instrument of appointment is signed off by the minister or the acting minister, as the case may be. Usually a recommendation would come up from the head of the service.

Mr. Dale Johnston: So it is possible that the minister might not even be aware of the appointment?

Mr. Michael McDermott: Oh, the minister would be informed, sir, absolutely.

Mr. Dale Johnston: Oh, I see.

Mr. Michael McDermott: With the delegation powers that are envisaged in this statute there is the prospect that the minister would delegate that responsibility to the head of the mediation service, but it's not clear if that will be done or not.

Mr. Dale Johnston: So these people are on staff all the time?

Mr. Michael McDermott: No, not the commissioners. The commissioners are usually independent people. Sometimes they're academics. Those experienced professors who you saw come before the committee have been appointed in this case. People like them have been appointed.

Mr. Dale Johnston: So are they always academics—

Mr. Michael McDermott: No.

Mr. Dale Johnston: —or are we talking about labour lawyers, as well?

Mr. Michael McDermott: They are freelance mediators. Usually they have to be neutral. I mean, they are labour lawyers, but they're people who have established themselves as known neutrals. They may be arbitrators, for example.

Mr. Dale Johnston: I'm interested in how they would establish themselves as neutrals.

Mr. Michael McDermott: Well, they're accepted by the parties, like Mr. Sims, who chaired the task force. He is an arbitrator, and he is chosen by labour and management. He has been appointed as a commissioner. You may recall that he was the commissioner at Edmonton airport.

Mr. Jason Kenney: I have a question, Madam Chair. Proposed subsection 74(2) under clause 33 states:

Where a conciliation commissioner has been appointed or a conciliation board has been established under subsection 72(1), the conciliation commissioner or conciliation board shall

(a) immediately endeavour to assist the parties to the dispute in entering into or revising a collective agreement;

What form does the assistance spoken about in that paragraph take? What kind of assistance is that?

Mr. Michael McDermott: It is the application of mediation techniques, Mr. Kenney.

Mr. Jason Kenney: Concretely speaking, does that mean such things as arranging for negotiations, meetings...?

Mr. Michael McDermott: Well, it means listening to the parties' positions, maybe testing to see where there is room for compromise.

It's mediation. We use experienced mediators for this.

Mr. Jason Kenney: “Assist” is pretty vague wording. Why isn't it to provide mediation services between the parties, or—

Mr. Michael McDermott: That's just the language used in the code. Everybody knows what it means. It means to provide conciliation and mediation assistance. That is the first responsibility of a conciliation commissioner.

The difference between an officer and a commissioner is that if a commissioner fails to bring about a mediated settlement, the commissioner may write recommendations.

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

Mr. Dick Harris: I want to go back to the wording in a prior clause as it applies to this one. That is where we were talking about conciliation officers, conciliation commissioners, and conciliation boards.

Whereas a prior clause talks about the fact that the minister may appoint either a conciliation officer, a commissioner or a board, proposed subsection 74(1) specifically names a conciliation commissioner or a conciliation board, but it deletes the term “officer”. I just wanted to get clarification of the difference between an officer and a commissioner.

Mr. Michael McDermott: I guess I must have seen the question coming, because that's what I was referring to when I made that additional comment in the previous answer.

• 1915

A conciliation officer only has the power to mediate, to assist the parties to reach a settlement. A conciliation commissioner or board has that responsibility, too, but if they fail, they can write a report with recommendations for settlement. This can be sent to the parties, and the minister has discretion to make them public. That is the essential difference between the two.

I might point out that this whole clause 33 really has some very minor changes to reflect the fact that we've collapsed the option of two levels into one level. So nothing here is breaking new ground.

Mr. Dick Harris: Okay.

The Vice-Chair (Ms. Bonnie Brown): Are there any further questions on clause 33?

Mr. Jason Kenney: I have a question, Madam Chair, regarding deemed reporting in proposed subsection 75(2). It says:

The conciliation officer is deemed to have reported sixty days after the date on which that officer was appointed or at the end of the extended time limit to which the parties consent, unless she or he actually reports earlier.

Take me through is. My question is on the fact that he is deemed to have reported 60.... I don't understand what this means. Even if it's not after 60 days, it's deemed to be 60 days? Why do we need this? Why don't we just have a time limit?

Mr. Michael McDermott: Well, that's in the event that the report hasn't come in. If the officer has not reported, he's deemed to have reported at that point.

We are imposing a 60-day limit on the process, and the only way it can be extended is by the parties' consent.

Mr. Jason Kenney: So the process ends at 60 days or at the end of the extended period, even if there's no report?

Mr. Michael McDermott: Even if there's no report, yes.

Mr. Jason Kenney: What happens in such a circumstance, when there is no report?

Mr. Michael McDermott: Well, in the case of an officer's report, the officer only reports whether there's success or failure. That should be evident.

In the case of a commissioner's report, there will be no report and no recommendations. It would be unfortunate, but it could happen.

The whole process here is predicated on the fact that the parties, labour and management in a federal jurisdiction, told the task force they wanted a shorter process. They were concerned about the dragging on of conciliation procedures, sometimes beyond a year, which did not help settlement.

Then Sims and his colleagues heard this and recommended 60 days. That has been put into the statute.

The Vice-Chair (Ms. Bonnie Brown): Sometimes these things fail, but they're still over, even if they fail?

Mr. Michael McDermott: To sort of coin an old phrase, they're over even if it's not over.

The Vice-Chair (Ms. Bonnie Brown): Okay. There's a little more on this clause on the next page.

Mr. Dale Johnston: Actually, Madam Chair, Mr. McDermott has got so good about anticipating our questions that he even anticipated Mr. Harris' question.

I'm quite sure—I paid attention, and it wasn't asked previously—so I wonder if the minister could predict my next question.

Some hon. members: Oh, oh!

Mr. Dale Johnston: Well, I thought it was quite funny. If I had told it right, I think you would have thought it was funny, too.

The minister—I guess this is what got me tongue-tied—may direct a conciliation commissioner or board to amplify or clarify the report. This is from proposed section 76 under clause 33.

What exactly does that mean? Does it mean that a conciliation commissioner is in the habit of writing reports that people don't understand?

Mr. Michael McDermott: No, they're not in the habit of doing that, but once in a while something crops up that does need some amplification.

I have one example myself. When I was in the service and receiving a commissioner's report, some important details were missing. The annex for the wage rates was not there. So we had to send it back to get the annex wage rates, which were rather important to the settlement of the dispute.

Mr. Dale Johnston: You would think that would be a fairly important thing.

So you're talking about errors and omissions?

Mr. Michael McDermott: Usually, yes.

Mr. Dale Johnston: Okay.

• 1920

Mr. Jason Kenney: I have a question, Madam Chair. Proposed section 78 reads:

Where a conciliation commission or a conciliation board has been appointed or established in respect of the dispute, the parties, at any time before the report of the conciliation commissioner or conciliation board is made, may agree in writing to be bound by the recommendations of the conciliation commissioner or conciliation board and, on their making, shall give effect to those recommendations.

Madam Chair, what sanction is there to enforce a written agreement by which the parties bind themselves? Legally speaking, how are they bound in this kind of an agreement?

Mr. Michael McDermott: Well, they bind themselves. In a sense, they enter into a contract, and it's enforceable.

Mr. Jason Kenney: So the sanction available to either party is a civil remedy?

Mr. Michael McDermott: They could go to the board, because the board can decide whether a collective agreement has been entered into.

The board would look at the agreement they made to be bound by the findings and then decide whether the collective agreement exists.

Mr. Jason Kenney: With respect to the words “shall give effect to those recommendations”, who arbitrates on whether the recommendations have been given effect?

Mr. Michael McDermott: The parties would themselves give effect to the recommendations. If they have a dispute as to what the recommendations mean and how they changed the contract, the matter could go to arbitration.

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

Mr. Rob Anders: Madam Chair, I have a question relating to proposed subsection 75(2). It states that

The conciliation officer is deemed to have reported sixty days after the date

The Vice-Chair (Ms. Bonnie Brown): Mr. Anders, that section has been thoroughly explored, your colleagues have asked those questions, and it's been explained to the group.

I can't go back to something that....

Mr. Rob Anders: I would be shocked if they had asked my particular question, Madam Chair.

The Vice-Chair (Ms. Bonnie Brown): Well, they actually didn't understand any of the clause, and it was fully explained by the staff.

So your question is out of order. We can't go back. We cannot expose people to the repetitive questions, particularly when you were not in the room to hear the answers.

Mr. Rob Anders: I was in the room, Madam Chair. I was in the room when clauses 31 and 32 were voted on. I've been here.

The Vice-Chair (Ms. Bonnie Brown): You weren't at the table.

Mr. Rob Anders: Well, I was listening. I had an earpiece.

The Vice-Chair (Ms. Bonnie Brown): Well, then, it's hard to believe you'd have a question on this clause.

Mr. Rob Anders: Nonetheless, I do.

The Vice-Chair (Ms. Bonnie Brown): Just let me go back to....

No, it's still the same clause, but this clause is three pages long, as you'll recall.

Mr. Rob Anders: It's still the same clause, Madam Chair. I don't see a problem here.

The Vice-Chair (Ms. Bonnie Brown): Pose your question and I'll decide if it's out of order.

Mr. Rob Anders: Okay. It's a question. It's also an amendment based on the question, depending on what the answer is.

The question I have has to do with the fact that it states:

The conciliation officer is deemed to have reported sixty days after the date on which that officer was appointed

Now, are they deemed to have reported, whether or not the report was actually made?

The Vice-Chair (Ms. Bonnie Brown): That question was asked before. Put your amendment, Mr. Anders.

Mr. Rob Anders: Then my amendment, Madam Chair, is to strike the word “deemed” and replace that with the word “ordered”. I think if we're going to deem a report to have been made, indeed there should be a report made. After that it should continue to read “to report,” instead of “to have reported”.

The Vice-Chair (Ms. Bonnie Brown): I'm going to rule that amendment out of order, because the explanation to your question, which was given earlier, suggests that your amendment is directly opposed to the meaning of this.

Just for your edification, this is to say that sometimes there is no solution, and that's why there can't be a report. The system has failed in that case. So there is no report, but it's deemed to have been reported so that there's a closure to the time and it doesn't drag on. Your amendment is trying to create a report where no real report can exist.

Mr. Rob Anders: Well, Madam Chair, I—

The Vice-Chair (Ms. Bonnie Brown): I'm going to call the question on clause 33.

Mr. Rob Anders: Just a minute.

The Vice-Chair (Ms. Bonnie Brown): Shall clause 33 carry?

Mr. Jason Kenney: I have a question on proposed subsection 79(2).

Mr. Rob Anders: This has—

The Vice-Chair (Ms. Bonnie Brown): Proposed section 75 is over, Mr. Anders. I'm sorry.

Mr. Kenney wishes to continue with a question that has not been asked before.

• 1925

Mr. Rob Anders: Madam Chair, I'm going to have to challenge the chair if you don't allow me to speak on this.

The Vice-Chair (Ms. Bonnie Brown): Okay. The chair has been challenged. Those in favour of supporting the chair? All in favour?

Mr. Rob Anders: I want a recorded vote.

The Vice-Chair (Ms. Bonnie Brown): A recorded vote. Those who are supporting the chair?

Mr. Anders?

Mr. Rob Anders: Yes.

Some hon. members: Oh, oh!

The Vice-Chair (Ms. Bonnie Brown): Mr. Anders, it's your motion!

Mr. Rob Anders: I'm sorry, Madam Chair, I was pouring the water, and it was going by so quickly.

The Vice-Chair (Ms. Bonnie Brown): I think you want to vote “no”.

Mr. Rob Anders: If the idea is that I'm challenging the chair, and if you asked if I support the chair, I do not support the chair. Thank you.

Mrs. Brenda Chamberlain: Madam Chair, please take the vote. I really think this is most disrespectful to the chair.

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

Mr. Dale Johnston: Even without that admonishment, Madam Chair, I think you've done an excellent job.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): On a point of order, Madam Chair, Mr. Johnston doesn't appear to be voting.

Would you please take the vote, Madam Chair?

The Vice-Chair (Ms. Bonnie Brown): I don't take the recorded vote. The clerk takes the vote, thank you.

(Motion negatived [See Minutes of Proceedings])

The Vice-Chair (Ms. Bonnie Brown): Mr. Kenney has the floor. He has one last question—I hope—on clause 33. We're almost to the end of the set of paragraphs.

Mr. Jason Kenney: The entire clause is self-referential, Madam Chair. It's not entirely chronological, so this may lead to other questions.

This particular question deals with proposed subsection 79(2), which reads:

The agreement suspends the right to strike or lockout and constitutes an undertaking to implement the determination.

My question is similar to one I've already asked with respect to the written agreement. How is this suspension given force? That's my question. Suppose one party to the agreement chooses after the fact to engage in a strike or a lockout. What remedies are available to the other party who has been violated in this agreement?

Mr. Michael McDermott: In the event of an allegation of an unlawful strike or lockout, the matter can be determined by the Canada Labour Relations Board and under this statute would be determined by the Canada Industrial Relations Board.

Mr. Jason Kenney: They can be determined, but my question was, how is this suspension given force? What sanction is there if the agreement—-

Mr. Michael McDermott: If somebody goes on strike or locks out, the other side takes the thing to the board. That's what I said.

Mr. Jason Kenney: And the board says?

Mr. Michael McDermott: The board says either you're right or you're wrong, and if you're wrong, it says go back to work.

Mr. Jason Kenney: Right. That's an order. How is that given force? That's my question.

Mr. Michael McDermott: You weren't here for that long discussion we had on the Federal Court and the provincial courts, were you? That was this morning. Mr. Anders was here. Maybe he will recall that an order of the board can be filed with the Federal Court or under this bill with the superior court of the province; it becomes an order of the court and is enforced that way.

Mr. Rob Anders: Just to clarify that, Mr. McDermott, we talked about that this morning, but I didn't talk about the enforcement mechanisms.

Mrs. Sue Barnes: Madam Chair, on a point of order, I don't think the speaker was recognized.

The Vice-Chair (Ms. Bonnie Brown): Yes. I think Mr. Kenney had the floor last.

Are you finished, Mr. Kenney?

Mr. Jason Kenney: No, I'm not, Madam Chair. The witness indicated that he had already, this morning, provided an answer to the question I just asked, which I find difficult to understand given that we're just dealing with this clause now. He also suggested one of my colleagues was.... Here I would point out that on these committees, members from both sides come and go; it's the way this place functions. I would ask the witnesses to indulge us with their patience.

But for my edification, I would like to know how force is given to these kinds of orders.

Mr. Michael McDermott: In the first instance, if there is an agreement to have something binding and it's not accepted, they go to the Canada Labour Relations Board or the Canada Industrial Relations Board, and either board will make a finding.

If the board indeed finds that there is an illegal strike or a lockout, there will be an order made for that to cease. In most cases that is observed. If it is not observed, an order of the Canada Labour Relations Board, at the present time, can be filed with the Federal Court of Canada. It becomes an order of that court and is enforceable as an order of that court for those kinds of things.

• 1930

What we're proposing in this statute.... Often, as you said yourself, one refers to another section. In this case, if this comes into law, the provincial court will accept the filing of that order too; it's enforced as an order of that court.

Mr. Jason Kenney: I asked this question because it occurs to me that when we have labour disputes that get out of hand, often they're out of hand precisely because one of the parties, usually the union party, is disrespecting an order.

The Vice-Chair (Ms. Bonnie Brown): You're blaming one side only.

Mr. Jason Kenney: I'm entitled to my opinion as a member of Parliament, am I not, Madam Chair?

The Vice-Chair (Ms. Bonnie Brown): I think it's fair to say that it often breaks down. But I don't think we should cast aspersions on either side. We're trying to build a labour code that is good for both parties to these disputes.

Mr. Jason Kenney: I agree, Madam Chair. I think in building such a code we have to refer to the history of labour disputes in Canada. I think it's a matter of historical record that when court orders have been violated in the past—and perhaps the witness can correct me—they've tended to be violated by unions. But that's not the point. Whichever party it is—

The Vice-Chair (Ms. Bonnie Brown): That's my point.

Mr. Jason Kenney: —my point is when conflict arises, when violence happens, usually it happens because orders are not being respected and the rule of law is not being respected. That's why I'm trying to reason all the way down the chain of how these orders are implemented. But I appreciate the answer. I appreciate what's been offered.

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

We're now ready to call the question on clause 33.

Mr. Dale Johnston: Madam Chair.

The Vice-Chair (Ms. Bonnie Brown): Mr. Johnston, I think we have gone right through them.

Mr. Dale Johnston: Yes, but there's a question that arises in that we're talking about enforcing the decisions by the board once they've been submitted to a court, but there's nothing anywhere in this that I've come across yet that talks about penalties for non-compliance with board orders. How is that dealt with?

Mr. Michael McDermott: The contempt of court proceedings? There are penalty sections in the code, too, which we will come to later because they're further down in the statute. Certainly if a court order is defied there are means of enforcing the court order.

The Vice-Chair (Ms. Bonnie Brown): They're not getting it, Mr. McDermott. Is it something like call the police and arrest people?

Mr. Michael McDermott: That doesn't usually happen.

The Vice-Chair (Ms. Bonnie Brown): But is it possible?

Mr. Michael McDermott: It is possible. The court sheriffs would—

The Vice-Chair (Ms. Bonnie Brown): That's what they want to hear.

Mr. Dale Johnston: No—

The Vice-Chair (Ms. Bonnie Brown): I think we always got to the point of the court order. Mr. Kenney's questions were the same, and then you came in with a similar question. I'm assuming you want to know what happens after the court orders, such as what could we visualize happening?

Mr. Dale Johnston: I simply asked if there was a provision for penalties and Mr. McDermott said there was.

The Vice-Chair (Ms. Bonnie Brown): Yes. It could be fines or—

Mr. Dale Johnston: Sure. I'm not trying to get to the finite detail. I just want to make sure I understand that there is a sanction.

The Vice-Chair (Ms. Bonnie Brown): There is a sanction.

We'll go to the vote on clause 33. We've had a recorded vote requested for clause 33.

(Clause 33 agreed to [See Minutes of Proceedings])

(On clause 34)

The Vice-Chair (Ms. Bonnie Brown): Clause 34 begins at the bottom of page 25 and really appears mostly on page 26.

Mr. Rob Anders: I have some questions, Madam Chair.

The Vice-Chair (Ms. Bonnie Brown): Shall clause 34 carry?

Mr. Rob Anders: No, there are questions.

The Vice-Chair (Ms. Bonnie Brown): We have questions.

Mr. Anders.

• 1935

Mr. Rob Anders: Thank you very much, Madam Chair.

We notice there is an underlining of the words “two years after” in proposed subsection 80(4) in clause 34, which we're debating now.

Mr. McDermott, the whole reason you underline things, as we learned earlier today, is that those have been substantive changes. Correct me if I'm wrong, but my understanding is that the previous stipulation or timeframe as put in there was “one year” after.

Is that right? Do I understand that correctly?

Mr. Michael McDermott: Yes, sir.

Mr. Rob Anders: The intention of changing it to two years, therefore, is, to my understanding, to penalize, in a sense, either unions or employers that have gone into these negotiations such that when they have a settlement made by the board they'd understand it's not something they'd ride out for a year. Indeed, it's to increase the penalties of whatever the board's decision may be, and they have to live with those terms. I guess it's thereby trying to entice them to make a decision on their own.

Is that the way you'd describe it, Mr. McDermott?

Mr. Michael McDermott: In the very rare circumstances where this provision is brought into play—and I wouldn't call it a penalty—the board prescribes the bare bones of a collective agreement, which is currently for one year. The idea is to give the parties a little longer to get to know each other and hopefully settle down to a fruitful relationship together for many years to come.

Mr. Rob Anders: Did any employers make representations asking for the change?

Mr. Michael McDermott: No, sir, and nor did any unions, actually. This is not a recommendation of the Sims task force.

Mr. Rob Anders: I see. So it wasn't recommended by unions, it wasn't recommended by employers, and it wasn't recommended by Sims. Who was it recommended by?

Mr. Michael McDermott: It was recommended by the government. In other jurisdictions where they have first-agreement arbitration, it tends to be for a longer period. If you're going through all that procedure, and putting people to a lot of trouble, it's perhaps felt useful to give them a longer period to get to know each other.

Mr. Rob Anders: You mention other jurisdictions having periods of two years or things different from what the federal government previously had at one year. Do you know what the short timeframe is and what the long timeframe is?

When you refer to other jurisdictions, I take it you're referring to the provincial governments rather than to other jurisdictions in terms of other nations. Is that right, Mr. McDermott?

Mr. Michael McDermott: Yes, sir. Quebec, for example, has two years. I think there may be an optional third year, but two years certainly.

Mr. Rob Anders: That would be on the long side, I take it?

Mr. Michael McDermott: Yes.

Mr. Rob Anders: What would constitute the short side?

Mr. Michael McDermott: One year is minimum under the code. You can't have an agreement for less than one year, under the code. There's no sense in having a collective agreement for less than one year.

Mr. Rob Anders: You're referring to the Canada Labour Code, are you, Mr. McDermott?

Mr. Michael McDermott: Yes.

Mr. Rob Anders: So it was previously one year. What I'm wondering is, do any provincial statutes stipulate something less than a year?

Mr. Michael McDermott: No, not to my knowledge.

Mr. Rob Anders: Okay.

Are there any other stipulations beyond one or two years?

Mr. Michael McDermott: I think there may be an optional third year in Quebec, but certainly there's a second year in Quebec.

Mr. Rob Anders: What was the rationale of the federal government? There must have been something beyond just “somebody else is doing it”. If Quebec is the jurisdiction you point to when you say they're moving this from a one-year to a two-year timeframe, surely there must be something beyond this other than just because one other government considers it. What would be the rationale beyond somebody else's looking at it? There must be a reason.

Mr. Michael McDermott: I think I have explained the reason. If you're going to go through all this procedure, then one year is not sufficient for the parties to have a trial period. So we've put two in.

I must say, none of the parties who work under the code objected to this. It passed without any comment whatsoever.

Mr. Rob Anders: By what determination do you think one year isn't reasonable? You mentioned that one year is not a reasonable timeframe in which the two parties can come to an understanding of each other. In all other jurisdictions outside of Quebec, I understand, that is deemed to be reasonable.

Mr. Michael McDermott: No, I don't think it is.

The Vice-Chair (Ms. Bonnie Brown): Mr. Anders, if you don't like two years, you can vote this down. If you want to propose an amendment, do so.

Mr. Rob Anders: Fair enough.

I'd like to move an amendment, Madam Chair.

The Vice-Chair (Ms. Bonnie Brown): Well, get it on the table.

• 1940

Mr. Rob Anders: I move that the words “for a period of two years after the date” be struck and be replaced by “for a period of”—I'm going to meet you somewhere in the middle, Mr. McDermott. Rather than stipulating one year and rather than two, if you like what's going on in Quebec with the two, the possible three-year thing, I'm going to recommend that we stick in there eighteen months, which would work out to a year and a half, so “for a period of eighteen months”. Strike the words “two years” and write in “eighteen months” after the date on which the board settles the terms and conditions of the collective agreement.

Mr. McDermott, I'm going to ask, then, based on that amendment—

The Vice-Chair (Ms. Bonnie Brown): That's in order. We'll now call the question.

Mr. Rob Anders: I'd like to ask some questions.

The Vice-Chair (Ms. Bonnie Brown): You can't ask a question on your own amendment. You have to ask the questions first. I've told you this three times, Mr. Anders.

Mr. Rob Anders: May I speak to the amendment?

The Vice-Chair (Ms. Bonnie Brown): You may advance the good idea in your amendment, but you may not ask questions about your own amendment.

Mr. Rob Anders: No problem, Madam Chair. I'll do my best.

My understanding of this is that other jurisdictions in this country, excluding Quebec—nine other jurisdictions, and the territories are covered by this code, so nine jurisdictions provincially and the federal government, which previous to any of these suggestions on behalf of the government would have been one year—have all stipulated a one-year timeframe and a date on which the board is going to settle the terms and conditions of a collective agreement where they need to do so, where there hasn't been an agreement between the parties.

If Quebec has experimented with two years—and I haven't had a chance to ask whether or not that has made for more labour peace in Quebec, but nonetheless, maybe those things should have been considered and we should have had a chance to debate those, and maybe we can consider that once the amendment is voted upon—in that circumstance, I think if people are leaning toward going where Quebec is going on this, that we not go whole hog in creating a new sense of precedent and quasi-jurisprudence, if you will, with regard to the board, and that we settle for something that's in between.

If we want a change, that's fair enough; that's what we're here for. That's what it's all about. Let's examine something along the lines of 18 months and move it up from the current year, but not go the full way that Quebec has. So I think to go at 18 months rather than two years after the date is an amenable compromise.

The Vice-Chair (Ms. Bonnie Brown): Mr. Anders has fully advanced his cause, so we'll now vote on his amendment, for 18 months.

Mr. Rob Anders: A recorded vote.

The Vice-Chair (Ms. Bonnie Brown): A recorded vote has been requested.

(Amendment negatived [See Minutes of Proceedings])

The Vice-Chair (Ms. Bonnie Brown): A recorded vote has been requested, Mr. Clerk, on the passage of clause 34.

(Clause 34 agreed to [See Minutes of Proceedings])

(On clause 35)

The Vice-Chair (Ms. Bonnie Brown): Clause 35 is on page 26. It's only one paragraph. Shall clause 35 carry?

• 1945

Mr. Jason Kenney: I have a question, Madam Chair.

The Vice-Chair (Ms. Bonnie Brown): Mr. Kenney has a question.

Mr. Jason Kenney: With respect to clause 35, proposed subsection 82(1) reads:

82(1) Where the Minister has, pursuant to section 72, decided to establish a conciliation board, the Minister shall immediately, by notice in writing, require each of the parties to the dispute to nominate, within seven days after receipt by the party of the notice, one person to be a member of the conciliation board and, on receipt of the nomination within those seven days, the Minister shall appoint the nominee to be a member of the conciliation board.

My question, Madam Chair, for the witness is, what is revised in this section of the statute, and why is it revised?

Mr. Michael McDermott: If you look at page 26a, you will see that the word “forthwith” has been changed to “immediately”. This is part of the intention of legislative drafters to use plain language.

Mr. Jason Kenney: So this is the only change?

Mr. Michael McDermott: That's the only change.

Mr. Jason Kenney: There are no substantive changes?

Mr. Michael McDermott: I'm sorry, a reference to the new section is there too. There's a reference to “section 72”, whereas previously it was “section 72 or 74”. We put them together, so now there's only one section to be referred to.

Mr. Jason Kenney: With respect to the section as originally stated and as it will appear in the new act, the minister makes these appointments based on what list of candidates? What sort of people does the minister draw upon for these appointments?

Mr. Michael McDermott: This deals with a nomination by the parties of their nominees to a conciliation board. The parties nominate somebody and the minister then names them.

Mr. Jason Kenney: This is to the conciliation board?

Mr. Michael McDermott: Yes. They then try to find a chair, and if they can't, the minister names a chair.

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

Mr. Rob Anders: Madam Chair, I recognize there's been a change from the word “forthwith” to the word “immediately”. I'm wondering in either case whether you could give us some timeframe of what the definition of that would be.

Mr. Michael McDermott: It usually means “do it”.

Mr. Rob Anders: Sometimes when I ask people to do something, they do it more quickly than at other times, Mr. McDermott. Unfortunately for me, in terms of the purpose of this legislation and its intent, that doesn't give me much of a scope. Whether you say forthwith or immediately, what's the low end and what's the high end? What's a reasonable timeframe? When you use the word “reasonable”, what is the usual reasonable timeframe?

Mr. Michael McDermott: It depends on the circumstances. I'm not going to give you a figure, Mr. Anders, as it's quite clear. We had this discussion a little earlier on something else, I think.

Mr. Rob Anders: This is what I'm trying to get to, in a sense, Mr. McDermott. It mentions here that there's actually a time period of seven days. Does it mean this has to be done within seven days? Is that what “immediately” refers to?

Mr. Michael McDermott: No, that's a different issue.

Mr. Rob Anders: The seven days applies to the parties involved. Is that right, Mr. McDermott?

Mr. Michael McDermott: Yes.

Mr. Rob Anders: Would it not be fair, if the parties have to go ahead and do their thing within seven days, that “immediately” should also pertain to the minister and should be defined as seven days? Is that not reasonable?

Mr. Michael McDermott: Seven days is not necessarily immediately. Immediately well may be shorter than seven days.

Mr. Rob Anders: Is is not fair then to ask that it be replaced with “in seven days or less”?

The Vice-Chair (Ms. Bonnie Brown): The usual thing that happens in federal law is that the minister is not to be constrained particularly by little details like how many days or how many hours. It seems to me that “immediately” probably means as quickly as it can be done.

Suppose this happened on a Monday and the minister was in Vancouver. His staff would probably begin to prepare the documents so that upon his return on Tuesday he would sign it. That would be maybe 24 hours later, but it was immediately from the point of view of how quickly they could get his signature on it.

• 1950

Mr. Rob Anders: I understand that, Madam Chair. What I'm getting at with this is that we have an actual time period laid out for the other parts.

The Vice-Chair (Ms. Bonnie Brown): They have to find people who agree to be nominated. That's a big task. The minister only has to write a letter and sign it.

Mr. Rob Anders: Therefore, he should be able to do it in seven days or less.

The Vice-Chair (Ms. Bonnie Brown): He should be able to do it in 24 hours.

Mr. Rob Anders: If you wish to move an amendment to that effect, I'd be willing to accept it.

The Vice-Chair (Ms. Bonnie Brown): No.

Mr. Rob Anders: I'd like to, therefore, move an—

The Vice-Chair (Ms. Bonnie Brown): I don't know why you feel compelled always to amend everything. People who have been in this business for 100 years have been doing this. Every time we come to one, you think you know better.

Mr. Jason Kenney: They've also been filibustering in opposition for 100 years, Madam Chair.

The Vice-Chair (Ms. Bonnie Brown): Mrs. Barnes.

Mrs. Sue Barnes: A point of order. I'm beginning to find this now not only badgering our witnesses, who are here for our benefit, but also badgering the chair. I just find this dilatory.

If you know so little about this bill that we're back at A, B, C, every time on every question.... The amendments you seem to be tabling tonight look like they've been done on the back of an envelope. There's so little thought in them, it's ridiculous. If that's what you want your record in history on this bill to be, so be it.

I'll stay here for a long time and entertain this clause by clause, but I will not, Madam Chair, put up with badgering witnesses on points that have been explained, especially when the witnesses so politely told you they already told you that.

Thank you.

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

Mr. Anders, I'm trying to help you, but you might get an amendment passed tonight if you had one ready that made some sense.

Mr. Rob Anders: That's exactly what I'm trying to do.

The Vice-Chair (Ms. Bonnie Brown): This is one of Mr. Anders'.

Mr. Rob Anders: Madam Chair, I'm wondering who's badgering who.

I'm going to move an amendment, Madam Chair, that we strike the word “immediately” and go with a wording that's been suggested by yourself that the minister “shall within 24 hours”. So you strike the word “immediately” and put in “shall within 24 hours” instead of “immediately”.

I'd like to speak in favour of my amendment, Madam Chair. After the debate we've had on the nature of the word “immediately”, Mr. McDermott has indicated that a reasonable timeframe on this is as quick as possible and that, in his words, it should be done at the snap of a finger. This seems to be the indication.

Madam Chair, you indicated that as soon as the minister's signature could be found and affixed to this document...it should be done within 24 hours; that indeed the timeframe for the minister could and should be less than what it is for the parties to be able to find their respective interested people.

As a result, I'm going to move that the word “immediately”, right now looking to be replaced by the word “forthwith”, be given even a little more gravity and specificity and be replaced with “within 24 hours”. I think that really addresses the timeframe we're talking about here and moves it out of vagary. It certainly puts it in plain language. Moving from “forthwith” to “immediately” and then to “within 24 hours” I think really does speak to the specificity, to the timeliness, and to the non-legalese and direct common language we're looking for and seeking in this legislation.

Mr. Jason Kenney: I'd like to speak to the amendment.

The Vice-Chair (Ms. Bonnie Brown): I have nothing to say about it, Mr. Kenney, but anyway go ahead.

Mr. Jason Kenney: Madam Chair, I'm going to support this amendment after great consideration. I was going to explain my reason to support it, and I'll offer a reasonable reason why I'm supporting it, Madam Chair.

A voice:

[Editor's Note—Inaudible]

Mr. Jason Kenney: I will do just that, Madam Chair, if I'm allowed to have the floor.

I'm supporting this amendment, Madam Chair, not because I think technical amendments of this nature are strictly necessary, but I'm supporting it in the spirit of what opposition parties have done for decades in this place, and probably centuries in the parliamentary system, and that is, Madam Chair, to use the procedural levers at our disposal to make amendments at the clause-by-clause stage of bills at committee review to make a point about the failure of government to accept substantive amendments proposed by the opposition.

• 1955

In response to the point of order, which I think really constituted debate, by Madam Barnes, I am supporting this amendment, Madam Chair. I am supporting it not because I want to be petty, not because I want to be here at 8 p.m., and not because I want to badger you or any other member of this committee or its witnesses. I am supporting it because we believe that in the best interests of our constituents and Canadians this bill requires certain substantive amendments that have not been accepted.

So I intend to continue supporting what have been referred to as dilatory amendments such as these as long as it's necessary to make our point.

I would suggest, Madam Chair, to those members opposite who are in opposition as Liberal members that they used precisely the same kinds of motions once upon a time when they were in opposition. It tries everybody's patience, but I would remind them that these are some of the levers the system allows opposition parties, and I don't apologize for using them.

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

Mr. Larry McCormick: Madam Chair, about three or four years ago this committee sat here on a Saturday and a Sunday, I understand, for the first time in 25 years. I believe it was a west coast strike, and yes, enough of us were able to get here to proceed with the legislation, and that would be 24 hours.

I'm sure the intent of the motion is not ridiculous, and I'm trying to be polite, but you're going to have a minister do this in 24 hours? We were here that day on a Sunday. I'm using Sunday for an example. It could be a Saturday; it could be a Monday. Did we ever stop to think that someone might not always be available for 25 hours in a row, heaven forbid, as we serve our country?

Thank you, Madam Chair.

The Vice-Chair (Ms. Bonnie Brown): I'm going to call the question on the amendment.

Mr. Rob Anders: I've been moved by the member's speech, and as a result I'm quite seriously...if he is referring to a weekend, say, for example, in a Saturday-Sunday situation, would it be more reasonable to change that to a 72-hour time line because that would take into account the weekend?

Mr. Larry McCormick: It would depend on the floor.

The Vice-Chair (Ms. Bonnie Brown): You'd have to withdraw your amendment, and to do that you'd have to have unanimous consent. Do you want to withdraw your amendment?

Mr. Rob Anders: I'm—

The Vice-Chair (Ms. Bonnie Brown): You can't poll the committee before you decide.

Mr. Rob Anders: Madam Chair, can I ask a question in clarification? I'm wondering whether or not I can make a subamendment to my amendment.

The Vice-Chair (Ms. Bonnie Brown): No, you can't amend your own amendment.

Mr. Rob Anders: I guess we'll have to vote on it as is. I would call the question, Madam Chair.

The Vice-Chair (Ms. Bonnie Brown): The question on Mr. Anders' amendment, which is the 24-hour suggestion for the minister to act within....

Mr. Clerk, we've had a recorded vote requested.

(Amendment negatived [See Minutes of Proceedings])

The Vice-Chair (Ms. Bonnie Brown): Mr. Anders' amendment has failed to carry, so now we have clause 35. Shall clause 35 carry?

A recorded vote has been requested on the clause.

(Clause 35 agreed to [See Minutes of Proceedings])

(On clause 36)

The Vice-Chair (Ms. Bonnie Brown): Shall clause 36 carry? We have a question from Mr. Kenney.

Mr. Jason Kenney: Thank you, Madam Chair.

• 2000

With respect to clause 36, which amends section 86 of the bill, I have a question. The clause consists of the following:

(a) to question the appointment of, or refusal to appoint, a conciliation officer or conciliation commissioner, or the establishment of, or the refusal to establish, a conciliation board; or

(b) to review, prohibit or restrain any proceeding of a conciliation officer, conciliation commissioner or conciliation board.

I wonder if Mr. McDermott could give us a rationale for this amendment.

Mr. Michael McDermott: All right.

This is an amendment that's consequent upon the putting together of the two stages of conciliation. It's presently in the code, except there is no mention of a conciliation officer in the current provision. It's putting that mention of the officer into this provision.

Mr. Jason Kenney: What I have difficulty understanding is why should anybody be able to question the refusal to appoint a commissioner or an officer, etc.?

Mr. Michael McDermott: It emphasizes that the minister has the option not to appoint a conciliation commissioner or a conciliation officer. That is always an option.

When a notice of dispute comes in the minister has the option of saying no, I'm not going to appoint any conciliation here, and within seven days, under the current code, the parties would acquire the right to strike or a lockout. It just simply emphasizes that the minister has that right and it cannot be questioned. It's the minister's discretion.

In point of fact, I've only ever known it happen about twice in my experience that the minister has refused to appoint a conciliation officer in some particular circumstances.

Mr. Jason Kenney: What is meant by “to review, prohibit or restrain any proceeding of a conciliation officer”? I don't understand that in context. How is a conciliation officer's proceedings restrained?

Ms. Yvonne Beaupré: The idea here is to prevent somebody from taking action in the courts to prevent one of the officer's boards from going ahead with the conciliation.

Mr. Jason Kenney: It wouldn't remove their right to proceed with conciliation; it would just diminish it? Would they still have their right to seek conciliation?

Ms. Yvonne Beaupré: No, not to seek...the purpose of the clause is to prevent judicial proceedings from being taken to prevent, for example, a conciliation commissioner from proceeding with the conciliation.

Mr. Rob Anders: Madam Chair, I have a question with regard to when a minister would not appoint a conciliation board or a commissioner.

Mr. McDermott, you indicated that this was an option available to the minister, either to choose to appoint a commissioner, to refuse a particular commissioner, or simply just not to appoint one at all. I can imagine the circumstances where a minister may refuse to appoint a particular individual, because not everybody is appropriate to all jobs—I can fully appreciate that—but when would a minister simply just refuse to appoint a conciliation board or a commissioner?

Mr. Michael McDermott: Right now, as you're aware, there are two stages. If there is no indication that the second stage would be useful, the minister refuses to do that. In fact, he does that more often than not. The conciliation proceedings usually involve just the conciliation officer.

In the five years that I was head of the conciliation service we only appointed one conciliation commissioner and one conciliation board. So it's quite common not to appoint a commissioner.

In the circumstances of not appointing an officer, it's a little different. We've done that in cases where, for example, you've had the rump end of a continental bargaining unit in an airline. The terms and conditions were settled in the United States because it was an American airline with local Canadian staff at Toronto International, for example. There was no point in having any proceedings for them, because their future was determined elsewhere.

• 2005

Mr. Rob Anders: Am I to understand, Mr. McDermott, that the only time a conciliation board or commissioner has not been appointed, in your recollection, or that there's been a question in terms of this particular dynamic you're looking for here, was merely on a question of jurisdiction? Is that right?

Mr. Michael McDermott: That the minister doesn't appoint? No, the minister has full discretion not to appoint. It's not just a question of jurisdiction. I'm just telling you the circumstances in which the minister has refused to appoint a conciliation officer. That was in fact where it made no sense to make an appointment, because the dispute was really taking place elsewhere.

Mr. Rob Anders: So the only time when there's actually been a refusal is in a case of jurisdiction? Is that right?

Mr. Michael McDermott: Refusal of an officer.... That's my recollection. No, there have been other cases too. There was an agreement by railways, and I'm going back now to about 1966 or 1967, which is a long time ago, when the parties requested the minister not to appoint an officer and the minister agreed and didn't.

Mr. Rob Anders: Mr. Chair, I'm going to defer to the parliamentary secretary. I believe she has a comment to make.

Mrs. Brenda Chamberlain: Thank you.

Mr. Chairman, I wonder if you would let us have a five-minute recess. I'd like to work out a few things with the Reform Party.

The Acting Chairman (Mr. Larry McCormick): It looks as though we have agreement around the table to have a five-minute recess.

• 2006

• 2012

The Acting Chairman (Mr. Larry McCormick): We are resuming debate on Bill C-19, clause by clause. Shall clause 36 carry?

Mr. Dale Johnston: Mr. Chairman, I would like to withdraw an amendment standing in my name that specifically says:

That Bill C-19, in Clause 45, be amended by replacing line 1 on page 36 with the following:

that final offer selection arbitration be used as a method of resolving those terms,

I would like to withdraw that motion.

The Acting Chairman (Mr. Larry McCormick): Mr. Johnston, just to tie up the paperwork here, I know it's your Reform motion here in front of me, but I don't think it's been put forward officially as of now. So I'm not sure you can withdraw it, because it hasn't been put forward now. You can put it on the table if that's your....

Mr. Dale Johnston: Very well, Mr. Chairman. I was under the impression that it had been placed on the table.

The Acting Chairman (Mr. Larry McCormick): I'm informed not.

Mr. Dale Johnston: If that's the case, it won't be necessary.

I would like to move, while I have the floor, an amendment to clause 50 of Bill C-19 by replacing lines 12 to 14—

The Acting Chairman (Mr. Larry McCormick): Mr. Johnston, I understand from the officials that we have to finish with clause 36. We can do clauses 36 to 50 or we can do clause 36.

Mr. Dale Johnston: Just clause 36, Mr. Chairman.

The Acting Chairman (Mr. Larry McCormick): Okay.

(Clause 36 agreed to on division)

(Clauses 37 to 49 inclusive agreed to on division)

(On clause 50)

Mr. Dale Johnston: Mr. Chairman, I would like to introduce an amendment to clause 50 that lines 12 to 14 on page 38 be replaced with the following:

(a) provide each employee with the opportunity to refuse the giving of their name and address to the representative of the trade union that the Board authorized and, if the employee does not so refuse, may transmit that name and address to the authorized representative; or

(b) transmit the information that the union wishes to communicate to the employees in the manner it considers appropriate.

• 2015

The Acting Chairman (Mr. Larry McCormick): Thank you. I believe the parliamentary secretary for the labour department wants to speak to that.

Mrs. Brenda Chamberlain: As I said, Mr. Chairman, I was in labour three times and I didn't like it.

Some hon. members: Oh, oh!

Mrs. Brenda Chamberlain: Mr. Chairman, I would like to say that the government would accept that amendment. We did talk. Mr. Johnston worked very hard on that particular privacy clause and there were members on this side of the House who also had concerns. I think this will go a long way to addressing those concerns.

The Acting Chairman (Mr. Larry McCormick): Shall the amendment carry?

(Amendment agreed to)

The Acting Chairman (Mr. Larry McCormick): Shall clause 50 carry?

(Clause 50 agreed to)

Mr. Dale Johnston: Mr. Chairman, I move that the remaining clauses be carried on division.

(Clauses 51 to 97 inclusive agreed to on division)

The Acting Chairman (Mr. Larry McCormick): Shall the preamble pass?

Some hon. members: Agreed.

Some hon. members: On division.

The Acting Chairman (Mr. Larry McCormick): Shall the title pass?

Some hon. members: Agreed.

Some hon. members: On division.

The Acting Chairman (Mr. Larry McCormick): Shall I report the bill with amendments to the House?

Some hon. members: Agreed.

Some hon. members: On division.

The Acting Chairman (Mr. Larry McCormick): Thank you very much.

Some hon. members: Hear, hear!

The Acting Chairman (Mr. Larry McCormick): Thank you, staff.

The meeting is adjourned.