Human Resources Committee on Nov. 6th, 2012

[The Chair, Conservative, Ed Komarnicki]

Carry on.

[Charles Philippe Rochon]

All right.

Clause 223 looks at the new complaints mechanism. As was previously mentioned in the overview, this is something that did not exist previously in the code. That was set by policy.

The complaints mechanism in proposed subsection 251.01(1) simply specifies that an employee can make a complaint in writing to an inspector if there has been any contravention of the code. There is a qualifier that comes later, which I will explain.

Proposed subsection 251.01(2) specifies the timeline for making the complaint. As previously discussed, the timeline would be six months from the last day on which the employer was required to pay wages, if it's related to wages; otherwise, it would be six months from the day on which the subject matter of the complaint arose.

Proposed subsection 251.01(3) specifies exceptions to the time limit for making complaints. One is specified explicitly: that is, if an employee has in good faith made the complaint, but to the wrong government official. They may have made the complaint to a provincial department of labour or perhaps to the Canadian Human Rights Commission or the Canada Industrial Relations Board, so they've made it to the wrong place, but it was an honest mistake. Then we will count the time they filed the complaint with the other organization...again, it's just to make sure that employees are not penalized for not know knowing where to send it.

There's also a provision for regulation-making powers to further specify other exceptions that could be covered with respect to the six-month time limit.

Proposed subsection 251.01(4), which I will explain, specifies that employees may not, under this current complaints mechanism, make a complaint for unjust dismissal. The reason for this is that we already have a complaints mechanism for unjust dismissal under section 240 of the code, so this is just to ensure that we keep a clear separation between the two complaints mechanisms. They're not disentitled to make a complaint; it's just that they'll make it under the other provision.

Finally, proposed subsection 251.01(5) is a provision for greater certainty, just to clarify that, in some cases, employees...and this is in the case of employees who are covered by a collective agreement that provides equal or better standards with respect to certain provisions, such as annual vacations, statutory holidays, or bereavement leave.

Under the current rules, these employees would only be covered by their collective agreement and would have to use the grievance procedure under their collective agreement for any complaint. We are just clarifying that by adding this complaints mechanism we are not changing that rule. That rule still stands. If the collective agreement applies, then obviously the recourse is to go through that particular grievance procedure.

[The Chair, Conservative, Ed Komarnicki]

If you would like to pose a question now, go ahead.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

I am glad there is a formal complaint mechanism. It's good to put down in writing a practice that already seems to exist. As nothing had been provided, yet people would still complain, my question is more about how the process worked.

[Charles Philippe Rochon]

It's true that nothing is currently provided in the code. However, policies were established over the years to manage complaints. Those policies show how a complaint is to be administered. The complaint may be rejected if it is not within our purview, or if it does not come under part III of the code. It can also be rejected if there is no evidence of a problem. All that is provided for in various policies. Policies also stipulate that a payment order should normally not exceed 12 months, for instance.

The problem we are currently facing is that, since we are talking about a policy, anyone can challenge it. If someone was dissatisfied and wanted their complaint to be examined regardless of our policy, we would be in a somewhat difficult situation. Basically, the legislation sets out no parameters regarding that.

Another issue that affects employees is that a policy can be changed at any time. Honestly, it has not been changed often. However, no provisions really clarify what happens when a complaint is rejected.

We told ourselves that this approach worked fairly well in the past, but there is now a real problem involved. We have known for years that there was a problem, but it took a while to resolve it. Within the current context, resources for administering labour standards have to be managed more efficiently. We can no longer afford to move forward, year in, and year out, while relying on approximations. That's why we have decided it was time to really clarify those rules. There is really no reason not to do that.

Once again, does this mean that people could not submit complaints? No, there was a policy, and we are doing our best to administer it and to ensure that workers' rights are properly protected. However, once again, we feel it is preferable to be explicit and clear, and to have really clear rules for everyone that cannot be changed willy-nilly or reinterpreted constantly.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Yes, it's preferable to have the rules on the table—clear and in writing—so that people can know what to expect. That's a good idea.

I have two other questions about that. How many complaints do you received annually about wage issues under federal jurisdiction?

[Charles Philippe Rochon]

I can give you the total number. For the 2011-2012 fiscal year, we received 3,538 complaints. Of those, 65% had to do with pay issues, so that's a significant majority; almost 33% had to do with unjust dismissal; and 2% included all the other issues, such as vacation that was not granted, though it had nothing to do with pay, or those types of questions. Overall, the vast majority of complaints had to do with pay issues.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

The provisions on complaints that you are introducing include a six-month timeline, following the event, the offence, or the complaint.

In your view, what is the reason for the six-month timeline? Why six months instead of three or 12?

[Charles Philippe Rochon]

First, let me give some background. In the code, there is currently a 90-day timeline for unjust dismissal complaints. But we thought that the scope in this case was larger—at least the situations are different—and that there should be a longer timeline.

So why six months? A few years ago, an independent expert conducted an investigation on Part III of the code. He had examined those provisions and reached the conclusion that a timeline had to be established. His recommendation was a six-month timeframe. That is how the figure came about. We then looked at it and asked ourselves whether it was a reasonable timeline. As a result, we said that we would check what the provinces were doing.

We found that a number of provinces were using the six-month timeline. The best example we found—and it is not the only one—was Manitoba, which has had a provision like that for almost 15 years. In light of the changes of government, we wanted to see if this six-month timeline has been consistent. It has in fact been consistently applied for all that time. So we decided that the timeframe seemed reasonable for Manitoba. There are other provinces and territories, like British Columbia, Nova Scotia, and Yukon, that provide for a six-month timeline. So we figured that it seemed reasonable. We are going by the recommendation made initially. We are looking at what the practices are.

At the same time, there are variations in the provinces. In some cases, there is a 45-day timeline for certain types of complaints; in other cases, it will take longer. Once again, a six-month period seems to be a reasonable timeline that enables people to file a complaint in virtually all scenarios. It is impossible for someone not to realize that something has gone wrong within six months. If someone's leave was not approved, quite clearly, there is no problem there.

That being said, we see a major problem with the fact that there might be circumstances in which people will not know where to send their complaints. Under federal jurisdiction, that is a relatively major problem. Actually, people are not very familiar with the constitutional division of powers; they will think that they must be covered under provincial legislation and, as a result, they will lodge their complaints with provincial authorities. We wanted to make sure that we would not have that problem. That is why there is a provision specifying that, if a complaint was sent to the wrong place in good faith, we will be able to follow up on it.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

So there can be exceptions.

[Charles Philippe Rochon]

Yes.

[The Chair, Conservative, Ed Komarnicki]

Thank you, Mr. Boulerice.

I have Monsieur Lapointe and then Madam Boutin-Sweet.

[François Lapointe, NDP, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

I think the six-month timeline is very reasonable. Based on your previous experience, do you know whether a small percentage of people have taken a bit longer than six months, because of all sorts of series of events? Is it 1% or 2%? Could you give me an approximate number?

[Charles Philippe Rochon]

We do not tabulate statistics by timeframe. However, we have checked with the inspectors to see whether that has occurred often or not. They told us that it is very uncommon for people to take more than six months to file a complaint. Again, I cannot give you a specific percentage. It is rare.

It would be appropriate to say that the objective here is not to reduce the number of complaints. We are not trying to say that we will split the difference and eliminate people.

[François Lapointe, NDP, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

I didn’t think that that was the intention.

[Charles Philippe Rochon]

The objective of this measure is to get people to file their complaints as soon as possible. Actually, the longer they wait to file their complaints, the more difficult it is to process them, because evidence is no longer available or memories have faded. It becomes very difficult to manage. So that is why we still wanted to provide for a reasonable timeline and a manageable process.

So might some people go over the time limit? Yes, it is possible, but we do not think that a significant number of workers would do that.

[François Lapointe, NDP, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

I have never been employed by a federal agency. How do you make sure that people are informed of those rights and regulations?

[Charles Philippe Rochon]

I am sorry, I didn’t hear the end of your question.

[François Lapointe, NDP, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

How do you make sure that people know about the six-month timeline and other similar information?

[Charles Philippe Rochon]

The information is all available on the federal labour program website. For each type of standard, various documents have been prepared. Some have been distributed to trade unions, business associations, and so on.

Obviously, it is very important that people be kept informed of any amendments that are going to be made here. We are well aware of that. I can tell you that the amendment will not come into force right away, once the legislation is passed. One of the reasons is that we want to have the documents we need to let people know what is going on so that no one is taken by surprise.

[François Lapointe, NDP, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Okay.

[Charles Philippe Rochon]

Many organizations provide information on websites in particular. As a result, we will make sure that our information is clear and accurate so that it is properly conveyed.

[François Lapointe, NDP, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Thank you, Mr. Rochon.

[The Chair, Conservative, Ed Komarnicki]

Thank you, Monsieur Lapointe.

We will move to Madam Boutin-Sweet.

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Thank you, Mr. Chair.

When you mentioned the recommendation for the six-month timeline, you talked about an independent study. Could you tell me who conducted it?