[Recorded by Electronic Apparatus]
Wednesday, December 4, 1996
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[English]
The Chairman: I'd like to call this meeting to order.
Welcome, everyone. This afternoon we continue our study of Bill C-66, an act to amend the Canada Labour Code (Part I) and the Corporations and Labour Unions Returns Act and to make consequential amendments to other acts.
We have the pleasure to have with us representatives from the Canadian Bankers Association. They are Mr. Fred Cowell, Vice-President, Operation and Administration, Human Resources, from the Bank of Montreal; Mr. Santo Alborino, Chair, Senior Manager, Employee/Industrial Relations, Bank of Montreal; and Dave Dorward, Manager, Industrial Relations, CIBC.
You have approximately one hour. You have probably ten to fifteen minutes to give us an overview of your presentation, followed by a question-and-answer session. On behalf of the committee, I'd like to welcome you. You may begin.
Mr. Fred Cowell (Vice-President, Operation and Administration, Human Resources, Bank of Montreal): Thank you, Mr. Chair. I'll refrain from reintroducing ourselves, since you did that so nicely.
The industry, and more particularly the Canadian Bankers Association - which I'll refer to as the CBA afterwards - appreciates the opportunity to provide our views on Bill C-66 before this committee. The CBA has been very supportive of the government's initiative to review part I of the Canada Labour Code and to establish the Sims task force to conduct this review. We believe it was long overdue.
The world of work has changed irrevocably since the early 1970s. More specifically, both employees and employers, and their needs, have been transformed. As an industry, the banks are eager to see the regulatory environment keep pace with the evolving labour markets, and with business conditions. Accordingly, we participated fully in the hearings conducted by the Sims task force and in the consultation process launched by the present Minister of Labour, the Honourable Alfonso Gagliano, on the report of the Sims task force, in the hopes of contributing to the modernization of Canada's industrial relations environment.
The CBA represents 52 chartered banks in Canada that, along with their subsidiaries, employ over 206,000 Canadians. Eight of the largest banks employ about 90% of that workforce. Within the banking industry there are at present nine bargaining units covering approximately 2,450 employees, slightly over 1% of the workforce. The largest unit has approximately 1,800 employees.
Although a very small number of our employees are unionized, the banking industry fully supports freedom of association and free collective bargaining, where a majority of employees choose that method of handling the employer-employee relationship.
A collective bargaining regime can work well in some circumstances, although we do not particularly subscribe to the view that it is inherently superior to any other alternatives available to employees.
All approaches have pros and cons. We believe that what is important in any approach is open and effective two-way communication, flexibility, and employee involvement.
The Sims task force appropriately identified the competing interests and values that required consideration in order to maintain a stable, but adaptable, labour relations system. They produced a commendable report, which was called Seeking a Balance.
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We support the general approach taken in that report, and we believe that the balance being sought between labour and management interests and powers was largely achieved. The potential was there, however, for this balance to be destroyed if any of the recommendations that impact the collective bargaining arena were to be changed, or added to substantially.
In our view, the treatment of the replacement-worker issue in Bill C-66 tips that balance from the fair approach achieved by Sims. We plan to address that and several other issues in this submission, which demonstrate that the needs of labour and employers do not receive the appropriate, even-handed treatment in the draft bill that is so important for enabling labour and employers alike to function effectively in the current, competitive business world.
We will not repeat the full range of views we have submitted in earlier stages to the task force and to the minister, but we'll focus our comments directly on the matters raised by the provisions in the bill.
For your information, however, because of our very strong concern regarding the matter of replacement workers, we have added a complete review of our thoughts on this issue in the appendix to our full submission.
Let me first deal with the bill's treatment of the use of replacement workers. The wording in proposed subsection 94(2.1) of the bill dealing with replacement workers is simply inadequate. It does not provide balance, clarity or guidance on this difficult issue. It would be a mistake to pass the bill with the present wording.
The provision is not in keeping with the majority recommendation of the task force. It does not provide guidance to the Canadian Industrial Relations Board for determining that an employer is demonstrated to be using replacement workers for the purpose of undermining a union's representational capacity, rather than the pursuit of legitimate bargaining objectives. We predict that it will result in litigation before the board in every circumstance where replacement workers are engaged. It is somewhat offensive, in that it links the use of replacement workers directly to an intent to bargain in bad faith.
Accordingly, the CBA recommends several amendments to clarify this provision. First, the law should make clear that the use of replacement workers is a legitimate option for an employer in a strike situation. Second, it should require that if a charge of unfair labour practice is brought before the board, based on the use of replacement workers, and before the board may prohibit the use of such workers, the board must have evidence that: the employer's conduct is motivated by an anti-union animus; the employer has engaged in a course of conduct with the clear intention of undermining the union's representational capacity, rather than the pursuit of legitimate bargaining objectives; and the employer's conduct has seriously damaged the collective bargaining relationship.
Simply speaking, Mr. Chair, there ought to be some test that the board can put in this issue, and we prescribe that this would be the test.
Turning to the issue of off-site workers, the CBA objects to proposed section 109.1, which would allow the labour board, on application by a union, to order an employer to provide names and addresses of employees who work off-site. This order may include permission for the union to use any electronic system the employer uses to communicate with employees.
As unions already have access to many workers who work at locations other than the employer's premises, it appears that the intent of this provision is to cover employees who are working in new ways, most likely at home, we suggest - that is to say, home workers or telecommuters.
The Sims report notes correctly that workplaces are changing, and that a new category of worker is emerging. The report's final chapter is devoted to a discussion of possible implications of such changes, and the need for further work in this area. Frankly, not enough is known about such employees at the present time: who they are, where they are, and how they work. We strongly agree that further study is required before amendments are made to the law in this matter.
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Furthermore, the Minister of Labour has launched several initiatives to examine the changing workplace and the new needs of employers and employees. Examples include the collective reflection on a changing workplace, the national forum on the information highway - to explore its effects on employment - and the review of part III of the code. None of these initiatives has been in place long enough to allow the appropriate time to study the complex issues, conduct the necessary research, and reach conclusions or report on them.
The provision to allow a union to make use of an employer's electronic communications system constitutes an unwarranted interference with the employer's privacy. In fact, based on a recent Supreme Court of Canada case, we could argue that the interference with private communication mechanisms violates the employer's freedom of expression under the Charter of Rights.
The disclosure to a third party of personal information on an individual without that individual's consent would have a significant effect on the individual's right of privacy. The banking industry recommends that the provision for off-site workers be removed from Bill C-66 at this time in order for there to be a thorough investigation and full understanding of the growth in the number of off-site workers, the kind of work they are doing, and why they are doing it.
I would like to discuss the matter of certification and the perceived unfair labour practices. Proposed section 99.1 of the bill would permit the board to certify a union, despite lack of evidence of majority support from employees.
If there is evidence of an unfair labour practice on the part of an employer during a union drive for certification, that is a matter the board must deal with. But in our view it is highly unreasonable to expect the board to make a determination of whether the union would or would not have achieved majority support, particularly if the union card-signing never exceeded 50%.
The CBA recommends that proposed section 99.1 be amended to provide that in cases where an employer has been found guilty of engaging in a practice that may have undermined - simply ``may have undermined'' - the union's ability to obtain signed cards, the board should be required to supervise a secret ballot vote to determine if there is majority support for certification.
Finally, on the issue of successor rights, the CBA cannot agree with the proposal that when a change of activity or sale results in a provincially regulated business being taken over by, or merged with, a federally regulated business, to which part I of the code applies, the union that was the bargaining agent for the employees while in the provincial business should continue to be their bargaining agent for the purposes of part I, and the collective agreement in place, while in the provincial business, shall continue to apply and be binding on the new employer.
The proposal has not taken into consideration the considerable labour relations complications that could flow from the automatic continuation of the existing collective agreement. What the parties have negotiated in the provincial context may be entirely inapplicable to the federal legislative environment. The basis on which bargaining rights were originally obtained by the union may vary from province to province, and from the federal jurisdiction.
The distinction between a provincially regulated business and a federally regulated business is not a mere technicality, but reflects the constitutional division of powers in Canada. A business that transfers between jurisdictions has, in all likelihood, significantly changed its form or nature.
Successorship, or the automatic transfer of bargaining rights and collective agreement provisions is inappropriate in this circumstance. Thus, the CBA recommends that proposed subsection 44(3) of the act be amended to require that the provincially regulated unit seek federal certification in such circumstances. If the unit of employees it represents in the provincial jurisdiction remains an appropriate one to certify in the new federal enterprise, such certificate should be readily available from the board.
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Mr. Chair, these are the banking industry's particular concerns with Bill C-66. My colleagues and myself at the table would be pleased to answer any questions, and again we thank you for this opportunity.
The Chairman: Thank you very much for a very thoughtful presentation. You can probably hear the bell ringing. We're going to go to vote in approximately 20 minutes, so that allows us anywhere between 15 and 18 minutes for questions and answers.
We'll start with the Bloc. Mr. Nunez.
[Translation]
Mr. Nunez (Bourassa): I listened very carefully to the presentation by the Canadian Bankers Association. I will examine it more closely later.
I see that your association has 206,000 employees, 95 % of whom are in eight banks; that means there are a lot of small banks. I also note, and I am surprised to see this, that there are 19 bargaining units for 2,450 employees. There are very small units and one major bargaining unit, which implies a considerable imbalance.
Often, the union movement complains that it is almost impossible to organize within the banking industry. The unions charge that you are against them.
I saw on television the conflict at the Laurentian Bank. I think that the bank in question is a member of your association. Labour relations are very difficult there.
Could you explain to me why so few employees in the banking sector are unionized, whereas in other sectors under federal jurisdiction, for example the railways, the rate of union membership is very high? Why are you accused of being fiercely against unions and using intimidation tactics when organization drives are held? Could you explain that to me?
[English]
Mr. Cowell: Thank you, sir. The banking industry has taken its licks, if you will, before the Canada Labour Relations Board on many occasions. We have been accused and found both guilty and innocent of unfair labour practices. We know full well the power of the board and the meaning of the law.
Quite frankly, it has yet to be proven that we are in fact anti-union in our approach. I don't believe that to be the case at all.
To answer your question as to why so few of our employees have chosen to be organized or represented -
Mr. Nunez: Around 10%?
Mr. Cowell: It's 1%.
Mr. Nunez: It's 1%?
Mr. Cowell: It's a little more than 1%.
Mr. Nunez: Yes, right.
Mr. Cowell: I believe the answer to that is that we are forward-thinking in our approach to employees, our benefits programs, and our compensation systems. Our management style is such that the only thing I conclude is that our employees haven't chosen to be represented.
At any time since 1970 it has never been that more than 3% of the population has chosen to be represented.
[Translation]
Mr. Nunez: Therefore, you agree with modernizing the Canada Labour Code. Since the 1970's there have been a lot of changes in the organization of labour. However, in fact, all you are telling us is that you are opposed to certain fundamental provisions of the Code, for example subclause 42(2) which deals with replacement workers. The unions consider this provision to be very weak. This is a considerable problem for the union movement. You believe that this provision goes too far and you want to weaken it, or even get rid of it. In your amendment, I see that any evidence regarding unfair practices by the employer is... That cannot be proven. The conflict will go on and on and will not be resolved. How can you explain your opposition to such a weak provision, namely subclause 42(2)?
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[English]
Mr. Dave Dorward (Manager, Industrial Relations, CIBC; Canadian Bankers Association): I should just explain that CIBC actually has five bargaining units, one of which is fairly large for the banking industry. That is the Visa centre in Toronto, roughly 500 employees, which, by the standard of the banking industry, is fairly large.
The unions we do have include every one from the United Steelworkers, to the Canadian Auto Workers, to the British Columbia Government Employees' Union, and we do have the United Food and Commercial Workers Union in Quebec.
We actually have a very good relationship with the unions. I'm sure if you talk to them... In fact in Quebec the United Food and Commercial Workers Union have just moved their union funds to CIBC, so I think that says something about us as employers.
Aside from that, and addressing your question relating to replacement workers, I was involved in the minister's hearings and the original task force hearings that went across Canada. One of the great issues we have with this bill relates to replacement workers. As a result of those hearings, both employers and unions backed off their initial positions. They arrived at a compromise, and that was reflected in the Sims report. What's missing in this matter -
Mr. Nunez: Not these matters... Return to the question.
Mr. Dorward: In fact the issue that is missing... The original task force recommendation explicitly stated that where the use of replacement workers can be demonstrated to be for the purpose of undermining a union's representational capacity, rather than the pursuit of legitimate bargaining objectives... That's the part that's been left out of the current bill: ``rather than the pursuit of legitimate bargaining objectives''.
So the issue, from our perspective - and the unions have certainly put us on notice - is that any use of replacement workers is going to be subject to legal challenges. From an economic perspective, I don't think that's something the country wants to see. Frankly, I'm not sure it's something the unions originally wanted to see. That's why the compromise was arrived at in the Sims report. That's what's really lacking in this legislation.
The Chairman: You have one final question.
[Translation]
Mr. Nunez: It is incredible that only 1 % of your employees are unionized, because the people concerned complain about various problems. The first six banks, the major banks, made $6 billion in profits this year, but at the same time there are many mass layoffs and people are complaining. There is no protection as regards jobs security.
In Quebec, as you know, we have anti-scab provisions. Initially, the employers were fiercely opposed to these provisions. Today, however, they accept them. I don't know if you come from Quebec, but in that part of the country labour relations are more peaceful. There is more harmony. There are fewer conflicts, and the conflicts do not last as long. How do you explain that? You are opposed to that here, but in Quebec things are working and the employers seem to be quite satisfied.
[English]
Mr. Dorward: Just to address that, I'm not totally familiar with the labour relations climate in Quebec. From the perspective of our industry, and I suspect from many of the other reports you have received, there was a compromise reached by the Sims report, and why would the government or the committee choose to ignore the compromise that was reached? It was a compromise reached with both parties backing off their position and arriving at a middle ground.
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The ground that Andy Sims came up with was one both parties can live with. Most importantly, and from our perspective, it recognizes the economic importance of this issue. We're talking about industries that are across Canada, and have significant economic impacts. That certainly is an issue for us, and hopefully is an issue for the committee. I would strongly urge you to look at this issue.
The Chairman: Mr. Johnston.
Mr. Johnston (Wetaskiwin): Thank you, Mr. Chairman.
Thank you, gentlemen, for a very thoughtful presentation. I'd like to talk a bit about off-site workers. Of your 206,000 workers, I imagine the percentage of off-site workers in the banking industry would be extremely small. If that's not true, I'm certain you will straighten me out on that.
Mr. Dorward: This came up at the original hearings, and in fact Mr. Alborino and I were at the hearings with the Sims commission in Toronto. The banking industry has very few people who are classified as off-site workers. We have some workers who occasionally telecommute for a day or two, with the approval of their supervisor.
As I mentioned to the committee, this is not an issue for the banking industry, in that the security concerns are too great to have people working consistently from home. We don't want people moving money around from home sites. We never really overcome any of the security issues.
We have discussed this issue. We have virtually no one as an off-site worker. I really don't know any federal industries that have large numbers of off-site workers. It's just not the nature of the industry, be it Air Canada, CN, or CP. I don't know where many of these people are. I just don't know anyone in the federal sector who has large numbers of these people.
Mr. Johnston: On page 4 of your submission you have said that you feel this would be a breach of the Charter of Rights and Freedoms, and you seem to predict that there will be challenges under the Charter of Rights if this legislation goes through as it is. Would you like an opportunity to expand on that? How do you see that this interferes with the Charter of Rights? Would it be the right to privacy, or do you see it as an issue with the employees - for example, the employees not having any say as to whether they agree to having this information made available to the unions? Is that where you see the problem?
Mr. Santo Alborino (Chair, Senior Manager, Employee/Industrial Relations, Bank of Montreal): Thank you for your question.
First, I'd just like to reference the case that went before the Supreme Court of Canada: RJR McDonald v. Canada Attorney General (1995). It was established in that case that freedom of expression encompasses commercial expression. That in itself probably provides the basis for the type of discussion one would have.
More importantly, when we're talking about privacy, when we're talking about employee privacy, there's a tremendous amount of importance attached to collecting information with respect to what the employees are willing to share with us for different purposes, and being able to turn around and provide at-large information about employees' personal home addresses, domiciles, telephone numbers, and what have you. I mean, this is an infringement of the privacy of the specific employees.
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More importantly - and I can tell you from experience - our employees are very guarded about their own personal affairs. From the surveys we have done and the discussions we have had in the various focus groups, employees do object to their employers utilizing the information they've collected for purposes other than for the purpose of employment.
And we did have a suggestion as to how some of this information, if we are to move forward and help this issue forward... In our submission we did talk about the possibility of an employer, such as ourselves as an example, providing the employees with the type of information a union may wish to convey, and allowing the employee the choice of communicating with the respective unions. I think that is a fair way, and from our point of view, as well as that of our employees, a better way. That's what we are suggesting as one of the possible alternatives.
Mr. Cowell: Mr. Chairman, I just wanted to add to that. I sense that the question may not have been fully answered. I didn't mean to imply a threat when I said we could argue that that would be an issue we would push to the Supreme Court; I was not trying to be threatening. It was just that we...
The Chairman: We are never threatened in this committee -
Voices: Oh, oh.
The Chairman: - at any time.
Mr. Johnston.
Mr. Johnston: Just in response to that, Mr. Chairman, maybe I didn't put my question in the proper frame. I didn't mean to put it so it would come out that way.
But what did occur to me, Mr. Chairman, is that if this particular group has some concerns about the charter, certainly they wouldn't be unique in that. There would be other groups that would have charter concerns about that.
A voice: Right.
Mr. Johnston: I would just like to talk a bit about the business of replacement workers for a moment. Certainly we have had witnesses come before this committee who have said they would feel that any use of replacement workers would be seen as an undermining of the union, or I guess, to put it in the vernacular, ``union-busting''. If a replacement worker came on the job at all, they would see that as a case of interference with the unions.
Now I'm wondering, just for my own information, how often it is required that you use replacement workers in the banking business.
Mr. Cowell: As the previous questioner noted, we haven't had a tremendous amount of unionization in the industry, nor have we had a tremendous number of strikes. Where we have had these, we've heretofore had the opportunity or the right to use replacement workers, not for the purpose of union-busting, but for the purpose of keeping the branch bank open so that people can get their money, make their deposits, and feel secure in the system.
So the answer is that we haven't had a lot of experience with it, but we just think the Canadian public could be vastly spooked by such a proposition, that they couldn't get access to their money.
The Chairman: Would you like to add something, Mr. Dorward?
Mr. Dorward: I will just make a quick addition to that. I think there may be some confusion. In the banking industry, due to the amount of training... There's an implication there's some misunderstanding. We do not use replacement workers. CIBC has never used replacement workers. We use existing employees of CIBC from other branches to keep the branch open. These are not people we are hiring - like a Canada Post situation - off the street, and training to do that job. These are existing employees of CIBC, and I'm sure that's the case with the rest of the banks.
So I just want to emphasize that really from our perspective the replacement-worker issue per se would not affect us because of the low level of unionization, but we are very concerned about the economic aspect overall for the country.
Mr. Johnston: Well, that's a good point, because nowhere in the bill does... There seems to be a certain amount of confusion as to whether a replacement worker is somebody you hire off the street to take the duties for a certain period of time, or management steps into non-management positions, or members of the union cross the picket lines. I think the bill is probably deficient in that area too.
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The Chairman: Thank you, Mr. Dorward, for that point of clarification.
We'll now move to Mr. Robert Nault from the Liberal side.
Mr. Nault (Kenora - Rainy River): Thank you, Mr. Chairman. I want to deal with the off-site workers.
Let me give you a scenario, and then you can tell me whether in fact it's any different from what you're suggesting. What you're suggesting is that the ability of the Industrial Relations Board to allow a union to unionize off-site workers would be an infringement on someone's rights.
I'd be interested in knowing the difference between what is being proposed there, and the fact that if I, as an individual, hire on on the railway, which is a closed shop and is already unionized, and I walk into the job and I automatically have to join the union. Automatically they get my home address, my phone number, and everything goes with it.
It's a common occurrence; it happens every day all across Canada, and it has been happening for a number of years. It has been to court, and it has been proven that this is perfectly acceptable.
In your mind, why would this be any different if in fact a portion of the workforce was unionized, and then the company decides they want to create an off-site workforce? So in fact they're not giving access to that particular group, because they're not on the site, and nobody knows where they are.
Can you tell me the difference between those two scenarios that makes you think the courts would rule differently from how they have already ruled in the closed-shop scenario?
A voice: Good question.
Mr. Cowell: I think the essential difference is that the experience of which you speak is a closed shop at the railways. But let me remind this committee that the form of union security called closed shop has been negotiated at the bargaining table between the employer and the union at some point in past history.
In our industry there is a significant difference, because we are not substantially organized. But the question of union security is still very much a negotiable issue. I mean, we recognize the requirement to bargain collectively about such things as security, but our industry is not in any way close to anything other than a modified Rand formula.
So joining the bank doesn't require... By virtue of the fact that it has not yet been negotiated in a due collective bargaining process, it's not an undertaking by two of the parties that you must join the union to be able to work there. I think that's the essential difference.
Mr. Nault: Let me follow this up, because I wasn't making that suggestion. I was suggesting to you in fact that the labour relations board will make that determination. They're not suggesting in this act, nor in the changes, that if in fact a union that will decide they want to target your bank goes to the labour relations board and says, I'd like to get all the names and addresses of all the employees off-site, they'll necessarily get that from the labour relations board.
This basically allows the situation I was mentioning to you, where unions that already exist in some cases, in some particular areas, in some industries, deal with companies interested in getting around unionized workers by moving them off-site. They should have a right to deal with those particular employees, if that's the case.
Now, that's not to suggest that some union might not come along, and try to unionize your bank, and that they would go and ask for those names and addresses. They've probably done that in the past already. But my point is that I'm trying to get a sense of what you think the difference is between that scenario and the one that exists now, where someone is a closed shop.
And you're not factually correct when you say they negotiated that. Sometimes people move in, sign people up, and it becomes a very difficult struggle. It's not as simple as saying they peacefully went along; otherwise, the banks would all be unionized.
Mr. Cowell: Well, I guess it's a matter of opinion, and where you come from. My assessment of the preamble of the code, which quite frankly isn't dealt with very much here... If we go back to the preamble of the code, it says that Canadian society accepts freedom of association. It accepts the fact that a collective bargaining process decided by the majority of people is good, can be good, and everybody ought to support it.
It does not say that everybody has to subscribe to it, or in fact that every employer must be a closed shop, or advocate the requirement or the belief that people should join a union.
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Mr. Nault: No. I wasn't suggesting that. But it's obvious from the comments of the witnesses that the lack of respect for the Labour Relations Board and their ability to make good quality decisions is part of the problem. Up to now, they've been able to make those decisions remarkably well on your behalf. Otherwise you'd be all unionized by now.
Mr. Cowell: Mr. Chairman, let there be no misunderstanding. The banking industry and every member thereof has no disrespect for the power of the Canada Labour Relations Board. We have all been there. We fully understand their powers and we fully understand the consequences of messing with our own interpretation of the law.
We fully respect that, sir, absolutely. We just submit that the Labour Relations Board currently has sufficient power to do its business.
Mr. Nault: Thank you, Mr. Chairman.
The Chairman: Now we're going to Mr. Peric. We have two minutes left before we break.
Mr. Peric (Cambridge): I understand that, Mr. Chairman.
There is some confusion here. In your statement you inform us that a very small percentage of your employees are interested in being part of the union. At the same time, you're asking or recommending - and I'm going to quote you - that:
- First, the law should make clear that the use of replacement workers is a legitimate option for an
employer in a strike situation.
Mr. Dorward: It's a very legitimate question, and I perhaps did not adequately address this.
As you pointed out, we are largely non-union as an industry, but the point I've been trying to get across is we are interested in the economic impact of this bill on large, federally regulated industries, which are largely unionized - railways, airlines and telecommunications. This is of great concern to them. I'm sure you've heard the FETCO brief.
Obviously, as a banking industry, it has to be of concern to us in terms of the economic impact that we see this is potentially going to have. I can only bow to their superior experience, and I'm sure you're going to study their briefs. They do feel it is going to have a significant impact, and from studying it, we feel it will have a significant economic impact.
So while it will not impact on us as an industry per se, it has an indirect impact from an economic standpoint. That's what I'd urge you to look at.
Mr. Peric: Thank you.
Unfortunately, Mr. Chairman, we have no time, but I would continue on with more questions later on, if it's possible.
The Chairman: It will not be with the Canadian Bankers Association.
On behalf of the committee members, I'd like to thank you, Mr. Cowell, Mr. Alborino andMr. Dorward, for what I thought was an excellent presentation of your point of view.
We will now be adjourning to go and vote. We will come back to hear from the Mining Association of Canada.
Thank you very much.
The meeting is suspended.
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The Chairman: I'd like to call the meeting to order again. We took a half-hour break to vote and now we're back here with the Mining Association of Canada.
I'd like to personally welcome Gisèle Jacob, vice-president, public affairs; Ray Duret, manager, employee relations, CAMECO Corporation, representing the Saskatchewan Mining Association; and Thomas Wakeling.
As you know, you have approximately one half hour that will be divided basically into two sections. There will be a 10- to 15-minute overview of your brief, followed by a 15-minute question and answer session. You may begin.
[Translation]
Ms Gisèle Jacob (Vice-President, Public Affairs, Mining Association of Canada): Thank you, Mr. Chairman, members of the committee.
[English]
Thank you for receiving us here today. You've already introduced my colleagues.
I will keep my remarks relatively short. Very briefly, I did want to say a few words about the Mining Association of Canada and its member organizations.
We are the national organization of the Canadian mineral industry. Our members are engaged in mineral exploration, mining, smelting, refining, and the production of metals, industrial minerals and mineral fuels. Member companies of our association account for the vast majority of Canada's output of metals and major industrial materials.
Some of you may know already that mining is truly a Canadian industry. Over 70% of the industry is controlled and managed by Canadians. We are an important contributor to Canada's economic activity. Our sector contributed close to $24 billion to the economy in 1995, or 4.4% of Canada's gross domestic product. We provide 300,000 jobs directly, with an average weekly wage of $1,000, which is well above all other sectors. Over 150 communities in Canada depend in part or in large measure on mineral activities and their spin-off.
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Mining is also a key player in Canada's transportation network, with metals and minerals accounting for close to 65% of Canada's rail and sea freight. Our extensive use of land and marine transportation systems is certainly one of the reasons we're here today. Over 110 kilotonnes of crude minerals and fabricated mineral products were loaded and unloaded in Canadian ports in 1994. Some 65% of total tonnage loaded in Canada came from our industry. As you can imagine, what happens in Canadian ports is of substantial interest to us.
Before I go to Bill C-66 directly, I would like to make a few general statements about the process by which part I of the Canada Labour Code is being amended.
The process itself has been a long and detailed exercise. I wish to congratulate those who've been part of this process and who have taken the time to hear, listen and act on many of the issues that have been raised over the past few years.
Let's not forget, however, that all of those efforts were carried out in order to bring us today to the point where we are; namely, actually amending part I of the Canada Labour Code. The final outcome of this lengthy and serious process is indeed Bill C-66.
My question to you, therefore, is why, after having taken so much time to put in place a thorough process, are we getting the impression that you're rushing through the review of its most important and final product? Why is the committee proceeding so quickly in its review of such a crucial piece of legislation? Previous consultations have been on preliminary documents. The bill itself requires a thorough review. Hopefully you will take the time to proceed with a thorough review of the act and to meet and hear the views and suggestions of representatives of various sectors affected by this important piece of legislation.
We believe that even though extensive consultation has occurred previously, and during the Sims report, there are some provisions in Bill C-66 that have not been discussed through the Sims report process - for example, subsection 47.3(1), successive contracts for service; subsection 87.7(1), service to grain vessels; or elements that provide what we see as unsatisfactory means to deal with the contentious issue, specifically the prohibition related to replacement workers.
As I mentioned, two of those issues are of major interest to our industry. One is the service to grain vessels - and I know that we're not the first ones to raise this issue with you. Our colleagues from the Coal Association of Canada and the Canadian Chamber of Commerce have mentioned their concern to you already on this issue, and we support their position entirely.
As a major user of railway and port systems in Canada, we are surprised and dismayed at the preferential treatment afforded one segment of our economy. We recognize that grain is important, but so are many other products. The provision in the act creates an obvious unlevel playing field, creating different classes of industrial citizens. It makes Canada less than attractive as an investment destination. We ask you, therefore, to modify this section to either allow the movement of all commodities in and out of Canadian ports or to prohibit movement altogether for all commodities.
The other provision we are concerned about is the one relating to replacement workers. We've mentioned in previous consultations on this issue that we object to any provision in the Canada Labour Code that prevents employers from using replacement workers. As it is now written, proposed subsection 94.(2.1) is vague. Words such as ``undermining a trade union's representational capacity'' is open to interpretation and perhaps even subject to litigation.
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An employer's right to attempt to maintain operations is the only countermovement to the employees' right to strike. This delicate balance of power is what achieves in our mind success in meeting both employer and employee needs. To our knowledge, the need to change that balance has not been demonstrated. On the contrary, even the Sims report recognizes that
- the use of replacement workers (is) a legitimate economic step taken by the employer to sustain
the economic viability of an enterprise in the face of harsh economic climate and unacceptable
union demands.
In our opinion, prohibiting the use of replacement workers is not the appropriate tool to address concerns regarding unfair labour practices. We ask you, therefore, to introduce a provision in the code that would maintain employers' rights to use replacement workers during legal work stoppages.
In conclusion, I would like to summarize the three main recommendations we make to your committee today: (1) to allow sufficient time for proper consultation and review of Bill C-66; (2) to remove the unfair advantage given to the shipment of grain; and (3) to remove the ban, partial or total, on the use of replacement workers.
Thank you. I will now pass to my colleague, Ray Duret.
Mr. Ray Duret (Manager, Employee Relations, CAMECO Corp., Representing the Saskatchewan Mining Association; Mining Association of Canada): Good afternoon. CAMECO Corporation is a uranium and gold producer based in Saskatoon. Today I represent the Saskatchewan Mining Association, the uranium section of the association, which is governed under the Canada Labour Code.
At present there are three operating uranium mines in the province of Saskatchewan. Of these, two mines are unionized. One mine is currently under construction to begin operation in 1997, and proposals for the development of three additional uranium mines are currently under review by the joint federal-provincial panel. They are therefore awaiting approval.
The uranium industry in Saskatchewan is directly and indirectly the largest private sector employer in the remote areas of the province's far north. The uranium mines presently employ directly in excess of 1,200 employees.
It is the opinion of the Saskatchewan Mining Association that there are a number of positive proposed amendments to the Canada Labour Code in Bill C-66. The Saskatchewan Mining Association fully supports these amendments, including the obligation to hold strike or lockout votes, the need to provide strike or lockout notice, and the reorganization of the board, to name just a few.
There are, however, several amendments the Saskatchewan Mining Association disagrees with. I would like to focus on three of these. The first is replacement workers.
Subclause 42.(2) of Bill C-66, referring to proposed subsection 94.(2.1) of the Canada Labour Code, is not acceptable to the Mining Association of Saskatchewan. The practical results of the recommendation would be to have employers charged with an unfair labour practice virtually every time replacement workers are utilized during a strike or lockout. Unions will, we believe, always be of the view that when replacement workers are used there is an attempt on management's part to break the union or undermine the union's representative capacity. In a recent CBC interview, a Canadian Labour Congress representative said exactly that.
The practical effects of this amendment to the code will be to impose unnecessary cost and delays on employers to defend against unfair labour practices. Disputes will end up on the board's agenda. Unions are already protected by the duty to bargain in good faith and by other amendments to the code, such as enshrining the rights of persons who were in the employ of the employer prior to the issuance of a notice to bargain to return to work following the conclusion of a strike.
The proposal to amend the code is out of the mainstream of labour relations in Canada. Only Quebec and British Columbia have such provisions. The issue was considered by the current Government of Saskatchewan in 1993 and rejected, as it should be rejected, we submit, by this committee and the Government of Canada.
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The Saskatchewan Mining Association believes that employers have the right to hire replacement workers during a strike, just as striking workers have the right to find other jobs and collect strike pay. The suggestion that the quid pro quo to the right to strike is the employer right to lockout is not reasonable.
In the uranium industry in Saskatchewan the development of a mine from discovery to production takes a minimum of ten years and the investment of the minimum of several hundreds millions of dollars. No employer can afford to idle such an investment of time and money by locking out its employees.
The real quid pro quo for the right to strike is the right to keep production facility operating utilizing replacement workers.
In our submission, the playing field is level now and should not be tipped in favour of the unions. The arguments that replacement workers spawn picket-line violence is flawed and misrepresents the legal purpose of a picket line, which is to disseminate information about the fact that a strike is in progress. A strike or lockout is not a licence to commit unlawful acts. Employers have the fundamental right in our society to carry out their lawful business, a prohibition of any nature on utilizing replacement workers during a strike to prevent picket-line violence makes no sense to the industry.
Practically speaking, in many instances in the mining industry if the employer cannot operate the mine during a strike, there will be no jobs left to come back to or contracts left to fill when the strike ends.
Uranium mines are built to achieve certain production capacities and mine owners seek to sell all that production in an effort to drive unit production cost to a minimum. In the uranium industry the world is the marketplace. Uranium companies sell their product to electrical utilities on the basis of long-term contracts and utility customers do not alter their demands for power simply because a mine in Saskatchewan's north may be on strike. In tight market conditions, such as we experience at the present time, failure to deliver product to an electrical utility could well result in the cancellation of contracts.
On point number two, I want to say a few words in terms of just cause protection following certification.
The Saskatchewan Mining Association agrees with the suggestion that employees should have just cause protection at all times to include the time between the date of certification and the date that the first collective agreement is concluded. The mining association's concern, however, is that the provisions of clause 19 of the bill, section 36.1 of the code, may not permit an employer to terminate an employee due to lack of work during the period in question.
The issue revolves around the question of what constitutes just cause. It is our understanding that the concept of just cause means termination for sound disciplinary reasons and does not include termination for lack of work. The association urges the committee to suggest the clause be amended to ensure that employers have the right to dismiss employees during the period between certification and the first collective agreement due to lack of work.
There's no logical reason why employers should not be able to adjust the size of the workforce due to market conditions or other conditions at any required time.
Point number three is about unfair labour practice certification. Clause 46 of the bill, referring to section 99.1 of the code, provides that in certain circumstances when an employer has committed an unfair labour practice the board may certify the union, even if the union cannot demonstrate majority support.
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The association disagrees with this amendment. We submit that this concept is out of step with the mainstream of labour relations thinking in Canada. The concept was considered and rejected recently by the Government of Saskatchewan. The Government of Saskatchewan came to the conclusion that it would be virtually impossible for the board to predict whether the union would have been certified but for the commission of an unfair labour practice. Any such assessment by the board could at best be speculative.
If an unfair labour practice is committed by an employer during a certification drive, the board can order a vote to determine the true wishes of the employees as provided for under the Trade Union Act in Saskatchewan. If the unfair labour practice relates to the termination of employees for union activity, the board can, and often does, order reinstatement and have such employees participate on the board.
This is our summary of our brief comments. I will now turn it over to Mr. Wakeling.
The Chairman: Mr. Wakeling, before you begin, is this your brief?
Mr. Thomas W. Wakeling (Milner Fenerty, Representing Echo Bay Mines Ltd.): Yes, it is.
The Chairman: It's fairly lengthy, correct? It's about 19 pages. Given the time we have, is it okay if we accept your brief as part of the record and you could give us an overview? Otherwise we'll run out of time. We won't have time for questions and answers.
Mr. Wakeling: I'd be delighted to proceed that way, sir.
The Chairman: Thank you very much.
Mr. Wakeling: Would you like me then to give you the overview now?
The Chairman: Yes, an overview, and then we'll get on to the question and answer session. Thanks very much.
Mr. Wakeling: Mr. Chair, members of the committee, I appear on behalf of Cominco, Echo Bay, and Kennecott. Each of these companies carry on business in the Northwest Territories. Polaris is a Cominco facility. It's within spitting distance of the magnetic North Pole. Echo Bay's Lupin mine is in the vicinity of the Arctic Circle. And Kennecott is looking at a diamond development in the Northwest Territories.
I have not had a chance to look at all the material that's been filed with the committee, but from what I've seen, I haven't noticed that any other group has suggested that the certification procedure, as it's currently set out in the code, and as it would not be changed by Bill C-66, is unconstitutional.
Here's the argument in a nutshell. In Canada and other jurisdictions in North America, a certificate is issued to an applicant trade union for all of the workers in a proposed bargaining unit. In other words, there's a principle of exclusivity at play. The trade union is given a certificate that allows it to bargain on behalf of everyone in the bargaining unit, not just those who support the trade union but everyone who works in the bargaining unit.
The Supreme Court of Canada has said that freedom of association includes the right to associate with others to take advantage of the energies of a number of people to accomplish a social or lawful objective. But just as clearly the Supreme Court of Canada has said that the freedom to associate has a negative aspect and that negative aspect is not to be forced into an association.
The forced association arises here when the principle of exclusivity is at play. Those who do not support the applicant trade union are required to live with it. That's what happens when the majority rules. The minority must live with the group that the majority selects as the bargaining representative.
I realize there's nothing in the code that requires the minority to join the trade union, so I'm not suggesting there's a constitutional problem because the current legislation requires even a minority or a dissident person to join the trade union. But the forced association arises because of the critical role that the bargaining agent plays in a unionized setting, and the critical nature of that relationship is what supports the argument that there is a forced association.
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On page 10 of my brief, Mr. Chair, I note that Justice Cory, in a 1990 decision of the Supreme Court of Canada, emphasized the important role a certified bargaining agent plays in the life of a worker:
- For an employee, the right to choose the group or association that will negotiate on his or her
behalf with regard to those wages and working conditions is of fundamental importance. The
association will play a very significant role in almost every aspect of the employee's life at
work, acting as advisor, as spokespersons in negotiations, and as a shield against wrongful acts
of the employer.
We don't have any problem with the ends. The ends of this legislation are to promote labour relations peace. But we think there are significant problems with the means. It's our suggestion that one is obliged to adopt a mechanism that is least invasive of the rights of those who do not support trade union representation, and the right way to proceed is to have a secret vote.
If you have a secret vote, the losers have had their opportunity to participate in the process and cannot complain if they've not been able to convince their co-workers that the workplace should continue to operate without a trade union.
We point out in our material that there are problems with cards, and the Canada Labour Relations Board itself has, on a number of occasions, adverted to that. We relate some of those cases on page 16 of our brief. Let me read to you just one passage, if I might. This is the Canada Labour Relations Board passing judgment on the reliability of cards in a raiding context, and I emphasize it is a raiding context. Here's what the board said:
- Our rule with respect to the taking of votes, even when a union has a majority at the time when it
files its application, takes account of the fact that the employees are torn between several unions
and are subjected to a great deal of pressure. In such circumstances, we have often seen different
unions display a majority support from the same employees. Experience has taught us that in
cases of union raids, a vote should be ordered so that the employees may choose freely, within
the privacy of the polling booth, which union they wish to have as their representative.
That, Mr. Chairman, is an overview of our 19-page brief.
The Chairman: Thank you very much. We appreciate it. That was very succinct and to the point.
I'm going to go to the Reform Party and then we'll go to the Liberals.
Mr. Johnston: How could you ever get the two confused, Mr. Chairman?
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Thank you for a very informative presentation.
Could you tell me how common unionization is in the mining business? Are you 50% unionized? Are you 100% unionized?
Mr. Duret: In the case of the Saskatchewan uranium industry, two out of the three presently operating mines are unionized. The one under construction has already been unionized, so come next year 75% of the operating mines would be unionized.
Ms Jacob: I don't have the precise number. My impression is that about 60% to 70% of the mining workforce is unionized, but I would like to check that number. I'm not certain.
Mr. Johnston: So roughly two-thirds is a good guess, perhaps.
Certainly we've had indication that the unions would seem to assume that any use of replacement workers would be an erosion of the union's rights and their ability to do business. From your presentation I get that you have that impression about the union as well. How many times in the last ten years have you needed to use replacement workers in a work stoppage?
Mr. Duret: In the uranium industry in Saskatchewan, the industry has a long history of some 40 years. There has been only one strike in the last 25 years, and there were no replacement workers. There's a very mature relationship within our industry, and there have been no work stoppages except one in the last 25 years. That occurred in the early 1970s.
Mr. Wakeling: I can tell you about the activities of my clients in the Northwest Territories.
The Cominco mine at Polaris is not unionized. There is an application for certification pending. Echo Bay Mines is a non-union operation at Lupin, and Kennecott is in the formative stages of its diamond enterprise.
The Chairman: Would you like to add a few words there?
Ms Jacob: Yes. I would add very briefly that except for mines operating in the north and the uranium sector, most of the mining companies in Canada do not fall under the federal labour code. On the other hand, because we're depending so much on the infrastructure, especially the rail lines and all that, any strike there has a direct impact on mining operations. So the use of replacement workers is also in terms in the infrastructure system, not just directly on the mine site.
Mr. Johnston: Okay. Could you then clarify for me what you would see as an ideal situation concerning replacement workers then, to summarize for us?
Mr. Duret: We would see the present clauses in the labour code as being quite adequate. As I indicated to you before, we have a very mature relationship. We find that we have been able to resolve the issues as we go, and we find the code quite adequate in its present form.
Mr. Johnston: Thank you.
The Chairman: Thank you, Mr. Johnston. Now we will move to Mr. McCormick from the Liberals.
Mr. McCormick (Hastings - Frontenac - Lennox and Addington): Thank you for appearing here today. Your presentations are very good and there's a lot of good information.
We've just heard that most of your member companies are regulated by the provincial jurisdiction and of course the rails and the ports are what makes a difference. But what has been the labour relations experience in recent years with your members in the unionized section? Have there been many work stoppages? We hear about the major ones, but what's the record of your sector?
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Ms Jacob: I would have to get back to you on that. I don't have the statistics with me and I've not been involved in the labour file long enough to go back in my own experience on the issue. I'd rather check and give you accurate information than speculate at this time.
Mr. McCormick: Okay, thank you.
Has arbitration or some other form of binding arbitration been used to settle these disputes? It ties into what you're saying about the replacement workers, and yet what system is being used to settle most of these disputes?
Mr. Duret: As part of the collective bargaining process, the standard conciliation, mediation, hard bargaining, and passage of time, the bargaining process has worked and has worked quite well. Our employees probably enjoy benefits in compensation, work, health and safety protection, and employee training and development that are second to none, but it has been obtained not through the means of strike action.
Mr. McCormick: I realize you don't want the strikes or the lockouts, especially for the export of your commodities. But how do you see these disputes in the future? In what degree of respect and how do you acknowledge the Canada Labour Relations Board, the new board, the way it's going to be set up? Are they not going to be able to handle a lot of these decisions with their knowledge and their degree of experience and breadth of experience on the board?
Mr. Wakeling: One always has to be more cautious when empowering a board to make decisions that have dramatic impacts of the kind we're looking at here.
If, for example, it's the Canada Labour Relations Board that determines whether replacement workers are allowed, the question the legislation gives the board jurisdiction to answer is an extremely difficult one. How does one determine when the use of replacement workers is for legitimate purposes, as opposed to illegitimate purposes?
Historically, it has been a battle between the resources of the workers and the management that operates the facility. Historically, that has been a system that has worked. It forces both sides to consider carefully what it is they're doing and in almost all cases drives into agreement.
Mr. McCormick: You mention that has worked, and I know it has in many many cases and I'm glad it has. Yet when we move to the west coast, especially with the ports, and we talk about the strikes where it shuts down the ports, it seems to make some sense that the labour board, if it's built and designed the right way, could be of great assistance here.
Mr. Wakeling: I don't think we're suggesting that there's not a role for the labour board to play when collective bargaining doesn't work, but I understood you to be asking a more specific question that ties in with replacement workers.
I don't suggest to you that the board is in a position to make the kind of judgment that this legislation would require it to do. It is generally wise to restrict the questions you leave to an administrative tribunal to those that don't require such a huge policy issue to be decided. Invariably that's what's going to be left to the Canada Labour Relations Board: will the enterprise be allowed to carry on its activity?
I'm sure this committee realizes that in some circumstances a provision that would stop someone from carrying on business for a period of time can have dramatic effects. For example, if you operate a facility at the North Pole, where the sea lanes are only open for a short period of time, and you're barred because of the statutory provision from carrying on work, if it's for that critical period of time, the impact can be draconian. It might be that the product for a year isn't getting out, or the supplies needed for the year aren't coming in in the manner anticipated.
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Mr. McCormick: I have one comment. I'm certainly on your side with the mining because I am a prospector, and I do have a prospector's licence. I recall the largest trucks in Canada on a public highway this year in the Yukon, delivering products to the port in Alaska for loading.
But let's go to grain for a moment. I think you might want to consider allowing grain as a different commodity. I think you and the unions both need the support of the public and the support of the media to do what this act is designed to do, to bring the two sides together and to have fewer situations in the future.
Ms Jacob: I agree with your point of view that what we're looking for is to create a balance between the needs of employers and the needs of employees. What we're saying is that there are provisions in the act that are shifting the balance in a certain direction without necessarily the need having been demonstrated to do so.
When it comes to grain, though, the rationale isn't clear as to why there would be preferential treatment given to one sector of the economy when you have so many communities in Canada that depend on other sectors and the movement of goods related to those sectors. It's the unlevel playing field we're creating that sort of sends a signal to investors around the world and to people from around the world who do trade with Canada that different industrial sectors are being treated differently.
Mr. McCormick: As my parting thought on your investors around the world, we're an exporting country and our situation shows that. Money is coming into this country continually from around the world. But I think most of these buyers from around the world would respect that grain is a different commodity, and it's only because grain, as you know, is food. You have to be very careful about the way you handle that in the press or else you could lose mileage.
Thank you, Mr. Chairman.
The Chairman: Thank you, Mr. McCormick.
Does Mr. Proud have a question?
Mr. Proud (Hillsborough): I have a follow-up, and I want to add on that business that I do believe foreign investors would not have very much problem with our labour relations versus some of the other countries in the world they have to deal with, where there are much more stringent rules on both sides. So I fail to see that.
I want to come back for a moment to the issue of the new board and the replacement workers. Listening to your presentations, you'd almost think we weren't allowing replacement workers. Replacement workers are allowed. What we're saying is that there are certain things that could deem those replacement workers to be there for other reasons than the ongoing economy of the company.
I'm surprised to hear Mr. Wakeling saying that he wouldn't feel comfortable with a board that is chosen from both sides of the spectrum, who I would assume - and I'd be awfully upset if they're not - would be people who are learned in this respect and could take these issues into their understanding and come up with a decision as to whether or not that was an unfair labour practice. I firmly believe there are people who can do this, and I'm sure there are going to be such people on this board. I think it's probably not the best of all worlds, but it's certainly a balanced approach.
A lot of unions are totally opposite to your perspective, but there was a union here yesterday from the west who believes it's a step in the right direction.
I believe and I'm convinced by my time around this business that if and when this board is chosen, the people chosen to do that will be very credible people and people who will be able to do that job. If you don't do that, then you're going to have one choice or the other: you're either going to allow replacement workers or you're not going to allow them, and I don't think that's in the cards for this legislation.
Mr. Wakeling: If I might respond, I don't think any of the comments we've made are directed at the capacity of members of the board. As it's proposed, the legislation says that no employer shall use for the purpose of undermining a trade union's representational capacity the services of a person who is not an employee.
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The determination of that question doesn't require an appreciation of the dispute, of the factors at play. It really invites nothing more than wild speculation. It has nothing to do with the capacity of the adjudicator.
I'm not going to say anything unkind about adjudicators. I am one myself most of the time. I've chaired labour boards. But there are some questions that are so difficult to answer that when you put them to a board it's nothing more than a forensic lottery.
Mr. Proud: But would you not think most of those who you would think would be ridiculous would be picked up by people like yourself as being just that, and turned down?
Mr. Wakeling: I think the question is so difficult that it's dangerous to leave it to someone to answer. Some questions you don't want to ask. This is one of them.
The Chairman: Thank you, Mr. Proud.
On behalf of the committee, I certainly would like to thank you very much for what I think was one of the most thoughtful presentations we've heard to date, and we look forward to working with you also in the future. Thank you for your kind contribution.
As you know, we'll be meeting tomorrow at 10:30 a.m. at the same place.
The meeting is adjourned.