Human Resources Committee on Jan. 30th, 2007

[The Chair, Conservative, Dean Allison]

Pursuant to the order of reference of Wednesday, October 25, 2006, Bill C-257, An Act to amend the Canada Labour Code (replacement workers), the committee will now continue to hear witnesses on its study of the bill.

Before we get started, we have a somewhat different makeup to our committee from what we had before we broke at Christmastime. I welcome all the new Liberals who have new critics roles. Thank you for being here.

Ms. Davies, on a point of order.

[Libby Davies, NDP, Vancouver East, BC]

I would like to move a motion dealing with the way the committee manages its business on this issue. When we recessed before the holiday break we had a couple of meetings scheduled, and unfortunately they were cancelled. We lost some time there where we would have heard witnesses, and then over the break the chair—

[The Chair, Conservative, Dean Allison]

Do you have a motion?

[Libby Davies, NDP, Vancouver East, BC]

Yes, I do. I'm just going to read the motion. The chair made a decision to schedule six other meetings to hear about 35 witnesses. We've already heard from 34 individuals. I have a concern that we put forward a plan to make it clear that we are managing the time, that we provide adequate time for witnesses but we not allow this to be delayed and to be stalled. We also have to make sure there is time for technical or expert witnesses to appear, as well as the clause-by-clause.

Mr. Chair, I move that in relation to Bill C-257 this committee direct the clerk to ensure that the hours of the currently scheduled committee meetings are extended as necessary so that a technical briefing be held no later than February 1 and that all currently scheduled witnesses be heard by no later than February 7 and that a clause-by-clause reading of this bill be completed on February 8.

The intent of the motion is simply to manage our time. It provides for all currently scheduled witnesses to be heard. I think the implication of this is that for possibly two meetings we might need to extend the hours so we can hear a few more witnesses during that time slot.

I've noticed that at some of the meetings anywhere from three to five witnesses have been scheduled at a time. In many other committees a greater number of witnesses would be heard. We know the finance committee has scheduled about 16 witnesses in a two-hour period, so I feel what we're proposing is very reasonable to ensure that we can get to the technical briefing we need prior to finishing with the witnesses, just in case issues arise out of that. Then clause-by-clause would be completed by February 8, and if we need to go later into the evening on that day that would not be a problem.

So I'd like to move that motion.

[The Chair, Conservative, Dean Allison]

We are going to discuss the timetable afterwards. I have a timetable proposed, and it's not that far off what you're suggesting, so I would ask if it is okay for the committee to hear the witnesses. We will make some time at the end of the meeting to discuss the timetable, including your recommendations.

[Libby Davies, NDP, Vancouver East, BC]

My motion is on the floor because I have moved it.

[The Chair, Conservative, Dean Allison]

Yes, your motion is on the floor, and we will be happy to discuss that after the witnesses. We're going to leave it at that.

Madame Lavallée.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

First of all, I'd like to apologize to our witnesses here, but I'm sure they'll understand that we must solve our housekeeping problems before we start hearing the testimony for which they've prepared.

I thank you very much, but I would ask you to wait a little bit, with our apologies.

Mr. Chairman, it's quite unusual for the chair to propose a timetable without consulting anyone and without calling a meeting of the steering committee. Normally, a chairman who wants to change a timetable or create one ask the steering committee to meet, and together, they determine the calendar of meetings. In this case, he didn't even attempt to do so, which is quite unfortunate, because normally we enjoy good cooperation here.

I would also like to remind you that Standing Order 117, which also applies to committees, stipulates that that is the role of a chairman. Allow me to quote from it. This will be a good thing because it will remind all of us of what the Standing Order says:

The Chair of a standing, special or legislative committee shall maintain order in the committee, deciding all questions of order subject to an appeal to the committee; ...

You will understand that what I'm doing right now is an “appeal to a committee”.

The Standing Order continues:

...but disorder in a committee can only be censured by the House, on receiving a report thereof.

One cannot say that there is disorder in the committee. Therefore, the third part is of less concern to us, but the fact remains that it says that the chairman “decides all questions of order subject to an appeal to the committee”. I'm currently appealing through this intervention and not only do I absolutely want to hear a statement to the effect that this will be solved before the end of this meeting, but I want us to decide immediately how much time we will have at the end of the meeting today in order to settle this important issue of the calendar of meetings, which is the subject of the NDP motion.

[The Chair, Conservative, Dean Allison]

Thank you, Madam Lavallée.

I refer to Marleau and Montpetit, chapter 20, where it says:

Chairs of standing and special committees also often assume a leadership role in planning and co-ordinating the committee’s work and in conducting its investigations.

Based on the motions that were before us before we broke for Christmas, we've put together a tentative plan. We will make some time at the end of this meeting to discuss the rest of the details of that plan. We will make sure we have time for Ms. Davies' motion.

Madame Lavallée, I reiterate that we will have time to look at the schedule of events before us, and we'll make sure we make the time tonight. Thank you very much.

Do we have any other individuals?

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Mr. Chairman, how much time will we have exactly?

[The Chair, Conservative, Dean Allison]

We'll leave the customary half-hour before that's given to hear the witnesses. But if we need additional time, based on the committee we can certainly make sure we spend that until we have some resolution on it.

[Libby Davies, NDP, Vancouver East, BC]

Based on your suggestion today, at an earlier meeting when the mover of the bill, Monsieur Nadeau, came to speak to his bill, why did you allow a full discussion right in the middle of his presentation? You seemed to have no objection then to putting something off until the end of the meeting in planning the time. Why did you decide that then, but you're now saying this should be put off until the end of the meeting? It seems very contradictory.

I'm sure you remember that meeting when the mover of the bill, Monsieur Nadeau, was here. Basically one of your members interrupted him in the middle of his presentation and you allowed that to happen. It was ruled to be in order.

[The Chair, Conservative, Dean Allison]

If the members of the committee would like to continue to debate this, I'm just saying that on the orders of the day there was already time set aside for this. That was a new motion at the time, so there has been time allocated for that. If you look at part two, committee business in camera, there is a proposed calendar of future business.

Once again, I'm at the will of the committee. Should the committee want to discuss this, my suggestion is that it is already on the paper to be discussed and it will be discussed. We'll sit here as long as it takes.

Mr. Lessard.

[Yves Lessard, Bloc, Chambly—Borduas, QC]

Mr. Chairman, because I was on duty in the House of Commons, I had to arrive a little later than I anticipated and I do apologize to you and my colleagues.

Mr. Chairman, your decision surprises me. On three occasions, on three different days, when we began work with the witnesses... My NDP colleague has just pointed out that when Mr. Nadeau and the minister testified, they were interrupted by a Conservative Party motion to amend the order of business.

Mr. Chairman, I do want to cooperate with you, but we have to know exactly how you intend to chair this committee. You said on three occasions, on three consecutive days, that it was acceptable and provided for under the rules to have a motion at the beginning of the work of the committee even though witnesses are present; today, you are telling us that is no longer the case.

I'm not calling your authority into question, but I would like to know how we are to conduct ourselves given the way you are chairing this committee.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Lessard.

What I would like to point out again is that on the order of business, we have time to look at the schedule, as was suggested. What happened with those days is that the information was not on the schedule, so it was at the will of the committee to move forward with that. That time has been set aside. My suggestion is that we look at that issue and deal with it in due course.

Ms. Yelich.

[Lynne Yelich, Conservative, Blackstrap, SK]

Mr. Chair, I'd just like to point out that Mr. Nadeau is a parliamentarian. There is quite a difference and quite a comparison to make between talking about witnesses who have come in from out of town who have had to work just to be here today and to get their presentations ready in both official languages. I think there is quite a difference between them and parliamentarians being witnesses. I would just like that to go to the record. It's etiquette that we are talking about.

Thank you.

[The Chair, Conservative, Dean Allison]

Okay.

Monsieur Lessard.

[Yves Lessard, Bloc, Chambly—Borduas, QC]

I did listen to my colleague's argument, but it doesn't hold up. Indeed, when the chairman's motion was adopted by a majority, we had outside witnesses before us. They were not parliamentarians, Mr. Chairman.

[The Chair, Conservative, Dean Allison]

Okay.

We have our first witness. The way it's going to work today is that it will be seven minutes per witness. There will then be two or three rounds of questioning. The first round will be seven minutes, followed by a second round of five minutes.

We'll start with Mr. Lampert and Mr. Alley. You have seven minutes. I will let you know when you have one minute left.

Mr. Lampert, for seven minutes, please.

[Jerry Lampert, President and Chief Executive Officer, Business Council of British Columbia]

My name is Jerry Lampert. I am president and chief executive officer of the Business Council of British Columbia. I want to thank the standing committee for the opportunity to be present here today and to present our views on Bill C-257. We appreciated the committee's offer to appear by teleconference from Vancouver, but given the importance of the legislation you are considering, we felt it was essential to be here in Ottawa.

The business council is an association representing major enterprise in British Columbia. Our members are drawn from all the major sectors that make up the provincial economy. In our 40 years, the business council has been an active voice and participant on labour and employment issues at the provincial level and the federal level.

As British Columbia has had replacement worker legislation since 1993, the business council believes it can offer the committee a unique perspective on such legislation. I would also point out that we've been active participants in the periodic review of the Canada Labour Code, including the in-depth review of part 1 conducted by the Sims task force.

Our submission has been distributed to you.

Before turning our presentation over to Doug Alley, vice-president of human resources and labour relations with the business council, let me leave you with this thought. Bill C-257 raises broad economic concerns. The industries covered by the Canada Labour Code provide services and manage infrastructure essential to the smooth functioning of the national marketplace and have a direct impact on local communities right across the country. There is much at stake in your consideration of Bill C-257.

We're here to indicate to you as best we can that we do not believe this legislation should proceed.

I want to turn it over to my colleague, Doug Alley.

[Doug Alley, Vice-President, Human Resources, Business Council of British Columbia]

Thank you.

Because B.C. passed replacement worker legislation a few years ago, I think it's important that you understand fully how this occurred.

When the NDP provincial government was elected in 1992, it did a full review of what was then the Industrial Relations Act through a special subcommittee consisting of one employer representative, one representative from the trade union movement, and a neutral chair. They agreed on 95% of the new labour code. There were four issues they did not agree on, one of them being replacement worker legislation.

The adviser for the employers recommended that nothing be done on replacement workers. The labour adviser recommended a limited ban on replacement workers. The neutral chair was in between, talking about a mechanism to settle a dispute where replacement workers were used.

What came about, however, was something far beyond what the committee even remotely recommended. The government at that time arbitrarily decided to incorporate restrictions on the use of replacement workers into the revised code. The employer community at the time did not support this and felt it tipped the balance of the labour code in favour of trade unions. We have never changed our position.

We do an annual member survey on labour and employment legislation, and the removal of the prohibition on the use of replacement workers tops the list every year. We will continue to press our provincial government to remove this provision from the B.C. code.

I want to talk briefly about what we have in B.C., versus what's proposed in Bill C-257. While employers in B.C. find the replacement worker legislation repugnant, what we find under Bill C-257 is even more draconian. Employees under the B.C. code can cross a picket line; they cannot do so under this. Employers can attempt to manage their businesses under the B.C. legislation; under Bill C-257, they cannot.

The only thing an employer can do is manage his business to avoid the destruction of his or her property, or for conservation matters. In other words, a struck employer would not be allowed to continue to produce goods or provide services, no matter what the consequences.

This will have a great effect not only on employers but on the public at large. We believe that the measures contained in Bill C-257 are extremely harsh and far exceed anything found in any jurisdiction in North America.

I don't have to tell you that Canada doesn't operate in a vacuum. Investors seek stability and familiarity. Generally investors prefer the same rules across jurisdictions. They are reluctant to invest dollars where jurisdictions differ.

In our submission to the Sims task force in 1995, we stated:

A legislated prohibition on the use of replacement workers would greatly increase regulatory disparities between Canada and the United States, and thus erode Canada's ability to compete and to attract new business investments.

We still believe that to this day.

We believe that there needs to be a balance in the labour code. We believe that Sims found this balance when he made his recommendations in the 1990s, and the Liberal government adopted them in 1999.

We believe that suddenly including a replacement worker provision in the Canada Labour Code will have negative effects on investment, and not only on employers but on their workers and communities. We do not want to see businesses structure themselves so that they could possibly leave our jurisdiction—that is in no one's best interest.

I would like to point out that HRSDC did a study. Proponents of the bill have argued that replacement worker legislation will shorten the duration of strikes. The HRSDC study, which was produced last year in October, proves the opposite.

As my colleague Mr. Lampert said, we believe that good labour and management relations involve valuable input from both sides. By this, in our view, the bill should not pass.

[The Chair, Conservative, Dean Allison]

Thank you very much, Mr. Alley.

We're going to move to Mr. Koshman, from the British Columbia Maritime Employers Association. Mr. Koshman, you have seven minutes, please.

[Jason Koshman, General Counsel, British Columbia Maritime Employers Association]

Thank you, Mr. Chair.

My name is Jason Koshman. I'm general counsel with the British Columbia Maritime Employers Association.

We wish to thank the committee for this opportunity to appear before it on Bill C-257.

The BCMEA is a federally regulated not-for-profit employer association representing 70 member companies on Canada's west coast. All our member companies are involved in port operations and in shipping. The BCMEA is the labour relations and collective bargaining agent of west coast waterfront employers. Our partner and counterpart is the ILWU Canadian area. The union represents our valuable employees from as far north as Prince Rupert, British Columbia, to as far south as Delta, B.C., and ports in between, including those on Vancouver Island.

In appearing before the committee today, the BCMEA wishes to draw two important points to the committee's attention. The first is the Sims task force. In 1995 the federal Minister of Labour appointed a task force to conduct a comprehensive review of part I of the Canada Labour Code. Wide public consultation with federal employers, trade unions, academics and other interested parties took place over several months across every major centre in Canada. The task force took almost two years to complete its work and produced a report with recommendations on amendments to the Canada Labour Code. That report was entitled “Seeking a Balance”.

A very specific section of that task force's mandate was to examine the issue of the need for and possible scope of restrictions on the use of replacement workers. In short, the issue that is now the subject matter of Bill C-257 was thoroughly analyzed and reviewed by the task force. In chapter 9 of its report it described the issue as follows, and I am going to cite from the report itself:

No issue divides the submissions we received more than the issue of replacement workers. Labour was virtually unanimous in favouring a legislated prohibition on the use of replacement workers (a so-called "anti-scab" law). Management was equally unanimous in its opposition to such a proposal.

The task force carefully and thoroughly analyzed arguments for and against such a measure in the federal sector. Ultimately they concluded as follows, and I'll quote again:

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

and then,

Once the strike or lockout commences, we believe that it should be fought out on the bargaining issues, not on the question of representation. Replacement workers should only be prohibited where they are used for an illegitimate end. Our recommendation can achieve this while preserving the basic balance of collective bargaining.

The Sims recommendation on this very issue saw the enactment of subsection 94(2.1) under the current Canada Labour Code. It is our view and that of our members that Bill C-257 clearly undermines the significant consultative work of the task force and the resulting enactment of subsection 94(2.1).

Bill C-257 substantially amends the code and is far more draconian than existing B.C. replacement worker legislation. It is our view that balance was achieved with the enactment of subsection 94(2.1), and Bill C-257 threatens this balance. We believe that Bill C-257 pushes the pendulum too far. Moreover, it amends the current code just a few short years following the enactment of subsection 94(2.1), and it should be noted that since the subsection's enactment, Parliament has not on a single occasion had to enact legislation forcing a federal labour dispute to an end.

The second point the BCMEA wishes to draw to the committee's attention is the nature of Canada's federally regulated industries. Federal industries regulated by the code are infrastructure industries necessary for the economy of Canada and the well-being of all Canadians. The ability of federally regulated employers to operate and to sustain their economic viability is important to all Canadian businesses, not simply those under federal jurisdiction. A halt to the provision of port services, telecommunications, air travel, banking, or other federally regulated industries has profound effects on all of Canada. Indeed, Parliament has been forced to intervene in work stoppages in west coast ports on several occasions through back-to-work legislation, due to the negative effects on Canada's economy when trade stops moving through the west coast ports. Examples are the West Coast Ports Operations Act of 1972; the West Coast Ports Operations Act, 1975; the grain handling operations acts of 1991; West Coast Ports Operations Act, 1994; and the West Coast Ports Operations Act, 1995--and this list does not include legislation relating to national railways, which occurred in 1995.

We feel it important to note that a work stoppage at a unionized pulp mill, mine, or factory in the province of Quebec or the province of British Columbia, although detrimental, does not carry national ramifications to Canada's economy. A halt to port operations or national rail operations clearly does. Restrictions on the use of replacement workers for federally regulated industries must be seen in the context of this reality, one that the Sims task force clearly recognized when recommending enactment of what is now section 94(2.1).

In conclusion, the task force chaired by Andrew Sims thoroughly reviewed the issue of restrictions on the use of replacement workers in Canada's federal sector. Its recommendations were reasoned and thorough, following extensive and wide-reaching consultation and resulting in the enactment of section 94(2.1). Balance was achieved and has been maintained without Parliament having to end federal disputes since its enactment.

Bill C-257 is not provincial legislation affecting one local region. Canada's national industries regulated by the code are the lifeblood of the economy and essential to all Canadians.

Thank you.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Koshman.

We're going to move now to our third witness, Mr. Winter, from the Coalition of BC Businesses. You have seven minutes, sir.

[John Winter, Vice-Chair, Coalition of BC Businesses]

Thank you, Mr. Chairman.

Good afternoon. My name is John Winter, and I'm here to represent the Coalition of B.C. Businesses. I'm also the president of the B.C. Chamber of Commerce. Thank you for the opportunity to present today.

The B.C. chamber is one of 16 business associations that comprise the coalition, which has been acting on behalf of 50,000 or more small and medium-sized businesses since 1992. The coalition supports labour policies that will help foster a positive working relationship between employers and employees and a climate for economic growth and jobs. We are relieved the committee agreed to expand its consultation on this critical piece of proposed legislation.

We speak on this issue with some authority and some experience. As you may know, B.C. has a legislated ban on replacement workers, and has had it since 1993. Over that time, we have become quite familiar with the same myths and misinformation that proponents of Bill C-257 have been offering up. Chief among them is the erroneous assumption that a ban on replacement workers levels the playing field between labour and management.

Take, for example, a neighbourhood bakery in Vancouver and the relative leverage of the parties involved in a labour dispute. On the one hand, the striking employees have the ability to continue earning a livelihood by working elsewhere if they so choose, a scenario quite likely in today's hot economy and worker shortage. On the other hand, the bakery owner's ability to maintain his livelihood, without staff, is all but eliminated. Remarkably, it's against the law in B.C. for him to even hire family members to keep those ovens operating. All the owner can do is to carry on under the burden of an over-worked and over-stressed management, who are putting in extra hours and doing the job of multiple employees for the length of the strike, which could be months.

There is no sure outcome for that bakery owner. The striking employee is legally guaranteed his job when the strike is over, a principle that the coalition supports. The union is guaranteed the right to bring in replacement pickets to keep the pressure on for as long as it takes, but the employer has no ability to take action to keep that business afloat. His entire investment is at risk.

Meanwhile, loyal customers are taking their business elsewhere to avoid the strike. Fewer bakery goods are sold, and sales will drop. It will be an uphill and costly battle for the baker to win back lost business after the employees return to work—that is, if there is still a viable business to come back to.

Small businesses in British Columbia know they have little choice about whether or not to endure a strike. They simply cannot do so. The options a small-business owner faces in this so-called level playing field are essentially three: to shut down; to give in to union demands to avoid a strike that it knows it cannot withstand; or thirdly, in the event of a strike, to seek a quick settlement rather than a settlement that serves the long-term viability of the enterprise and the jobs it supports.

In British Columbia, it is no wonder that owners of many small and medium-sized businesses likened the ban on replacement workers to a gun pointed at the heads of employers.

In the coalition's view, the ban on replacement workers tilts bargaining power excessively toward unions and undercuts the effectiveness of the negotiation process. It is that fundamental imbalance that explains why opposition of B.C.'s employer community to the replacement-worker ban remains undiminished 13 years after it was introduced.

As my colleagues from the B.C. Business Council have noted, this bill is more damaging than the B.C. legislation in several respects. Instead of restricting itself to banning replacement workers, Bill C-257 even prevents employers from attempting to operate their own business during a strike. For example, the owner of a small interprovincial trucking operation cannot even drive the truck himself during a strike. Bill C-257 prohibits him from engaging in any productive work to try to keep that business running.

The second point is that employees of the business are not permitted to disagree with their union and to cross the picket line to do the job during the strike. This is permitted in British Columbia, but would be outlawed under Bill C-257.

On December 7, the president of Teamsters Canada stated before this committee that Bill C-257 is about dignity and respect for workers. How does depriving Canadian employees of their fundamental right to dissent from their unions' decisions and choose to work further dignity and respect for workers? This is imposition of union solidarity through legislation.

The coalition wonders whether these provisions of Bill C-257 would be consistent with the freedom of association and the freedom of expression protected by the Canadian Charter of Rights and Freedoms.

There can be no question that Bill C-257 is wholly inconsistent with another principal tenet of labour law; that is, the spillover effect of labour disputes between a particular employee and its union. Any spillover should be limited as much as possible to avoid harming third parties who are not involved in the labour dispute.

This bill applies to federally regulated companies that are vital to the national economy, such as transportation, telecommunications, and financial services. Granting organized labour the ability to shut these businesses entirely, through Bill C-257, would have a catastrophic domino effect extending far beyond the direct impact to federally regulated businesses.

Small and medium-sized enterprises are third parties to a labour dispute and have much to lose. How, you ask? Here are four examples: the manufacturer who depends on the railways to ensure just-in-time delivery of components to the factory; retailers and their customers who rely on the financial services sector to process millions of payments, transactions, every day; the small business that depends on Canada Post to deliver its goods to customers in a cost-effective manner and the customers who are depending upon the timely receipt of these goods; and the millions of businesses, including home offices, that depend on the services of telecommunications companies for their telephone, fax, and e-mail communications.

In the event of a federal labour strike the average Canadian small or medium-sized business does not have the ability to quickly adapt and find new suppliers, distribution networks, or communications service providers. The burden of Bill C-257 on these enterprises and the families and employees who run them is simply staggering.

The Coalition of B.C. Businesses supports the basic tenet that this committee has heard in previous testimony that laws should only be changed to address real and pressing problems. The onus is on the advocates of Bill C-257 to demonstrate that Canada has a problem to resolve with the use of replacement workers. They have failed to do so.

In the 20 years prior to the adoption of the Sims task force recommendations and the 1999 amendments to the code, the federal government had to enact emergency back-to-work legislation 17 times. Since then, there's not been a single instance when the federal government has had to impose a settlement through emergency legislation.

The Coalition of B.C. Businesses respectfully urges this committee to recommend to the House that this legislation be rejected, as Parliament has had the wisdom to do nine times previously.

Thank you for the opportunity to be heard.