Human Resources Committee on May 2nd, 2024

[Ryan Cowling]

This may be a question for the legislative clerk.

My understanding of the amendment is that it would remove the words “whose services were used contrary to subsection 94(4).” Thus, it's now no longer saying that in order for an employee returning from a strike or lockout to replace someone, they have to be used illegally in the context of that strike.

Now it's saying that even if the employer relied on the exception and brought in someone to do the work that's outlined in the bill at proposed subsection 94(7) to address a threat to life, health or safety, or damage to property.... If an employer used that exception and brought in another employee under that condition, we believe that as it's currently written, the reinstatement provision wouldn't necessarily give a returning striking or locked-out employee the ability to replace that person.

This change, making it “any other person”, gets rid of that distinction. It doesn't have to be an illegal use of replacement workers; it's just any person who is used.

I hope that's helpful. I know I'm talking a lot.

[Kyle Seeback, Conservative, Dufferin—Caledon, ON]

It's deleting “whose services were used contrary to subsection 94(4)”, and replacing “any person” with “any other person”.

[The Chair, Liberal, Bobby Morrissey]

Mr. Seeback, I have Madam Chabot. I'll come back to you if you have a question.

Go ahead, Madame Chabot.

[Louise Chabot, Bloc, Thérèse-De Blainville, QC]

With respect, I do not see how that strengthens the section. The proposed motion seeks to remove “whose services were used contrary to subsection 94(4)”.

You are saying “to any other person”. What is your definition of the word “other”? It can be interpreted in various ways. Section 87.6 says, “in preference to any person whose services were used contrary to subsection 94(4)”.

Subsections 94(4) to 94(8) deal with the prohibition on replacement workers.

I do not see what this amendment would strengthen. I do not understand the spirit.

As well, you say it would resolve an NDP amendment. Which one is that?

[The Chair, Liberal, Bobby Morrissey]

Go ahead, Mr. Sheehan, on your amendment.

[Terry Sheehan, Liberal, Sault Ste. Marie, ON]

I just wanted to make sure that by providing this other statement, I explained it the way that it is intended. This amendment gives preference to the striking or locked-out employees. They must be reinstated in preference to any other person at the end of the strike or lockout.

As a hypothetical situation, some company somewhere has an emergency situation. They bring in some employees to do the work. They're there while the strike is happening. At the end of the strike, those people who are doing that work, for whatever emergency reason they're there, would not be replacing somebody in the bargaining unit who was on strike.

Am I correct, Mr. Cowling?

[Ryan Cowling]

Yes. I would say that's a fair characterization of it.

[Terry Sheehan, Liberal, Sault Ste. Marie, ON]

Thank you.

[The Chair, Liberal, Bobby Morrissey]

We're going to Mr. Seeback, Mr. Boulerice and then Ms. Gray. I would remind members to please direct your questions through me, the chair.

Go ahead, Mr. Seeback.

[Kyle Seeback, Conservative, Dufferin—Caledon, ON]

Mr. Chair, I'm just wondering what the effect is of taking out

whose services were used contrary to subsection 94(4).

That's the other part of this, right? We're putting “other persons” as opposed to “persons”, and then we're taking out “whose services were used contrary to subsection 94(4)”.

[The Chair, Liberal, Bobby Morrissey]

Who is responding to Mr. Seeback?

Go ahead.

[Ryan Cowling]

Yes, I will, unless anyone wants to take it.

Maybe the best way to explain in a clear way, which unfortunately I haven't done up to this point.... I'm sorry about that.

The words in the part that says “contrary to subsection 94(4)” are saying that the people who are returning—striking or locked-out employees—have the right to replace people who were used illegally. The issue is that subsection 94(7)—“Exception—threat, destruction or damage”—says at the top that an employer “does not contravene” that ban if they hire people to do work in these emergency situations during a strike or lockout.

Right now, if that were to happen—if the employer, during a strike or lockout, were to bring in someone to respond to a “threat to the life, health or safety of any person” or the “destruction” of property—as the bill is written currently, the returning striking or locked-out members wouldn't necessarily have a right to be reinstated above those people, because those people weren't hired illegally. They were hired within the four corners of the law.

This represents an expansion of the right to reinstatement. It also includes those people if they were brought in during the strike or lockout. It basically gives the union members the right to return in preference to anyone, whether illegal or not, who was doing their job while they were on strike.

[Kyle Seeback, Conservative, Dufferin—Caledon, ON]

Okay.

[The Chair, Liberal, Bobby Morrissey]

Next we have Mr. Boulerice and then Ms. Gray on the amendment.

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

Thank you, Mr. Chair.

As Mr. Cowling said, we must not forget that the bill provides exceptions that allow the use of replacement workers to prevent threats to public health and safety or threats of environmental disasters. In those cases, the use of replacement workers will be legal, which the section as it now stands does not provide.

Several unions, including the steelworkers, told us they were concerned about the possibility that the members of a bargaining unit on strike would not have priority when work resumed. This amendment eliminates the possibility so that the members of a bargaining unit on strike would have priority when work resumed, even over replacement workers used legally to protect public health and safety.

[The Chair, Liberal, Bobby Morrissey]

Thank you, Mr. Boulerice.

Ms. Gray is next.

[Tracy Gray, Conservative, Kelowna—Lake Country, BC]

Thank you, Mr. Chair.

Through you, obviously we have some questions, because the Liberals didn't meet the deadline to get amendments in and here we are now, trying to analyze this on the fly.

The question I have for the witnesses, through you, Mr. Chair, was touched on briefly, but I would like some further clarification on how this might affect workers who come in during an emergency. I think there was a little bit of a mention of it. I'm wondering if you can speak to that.

[Ryan Cowling]

This provision is specifically about the right of employees returning from a strike or lockout to be reinstated to their jobs. What the amendment does is broaden who they have a right to reinstatement over, essentially, if that helps.

The way it's written currently, if an employer were to bring in a new employee in an emergency situation, as enumerated in subsection 94(4) to the CLC, then the returning striking or locked-out workers wouldn't necessarily have a right to be reinstated over that person, because that person wasn't used illegally. What this amendment would do is say that regardless of whether it was illegal or not, if someone was brought in to do the work of a striking or locked-out worker during the course of the strike or lockout, then the returning workers have a right to be reinstated over that person.

[The Chair, Liberal, Bobby Morrissey]

Seeing no further discussion, I'm going to call a vote on Mr. Sheehan's amendment to clause 7.

Madam Clerk, please proceed.

(Amendment agreed to: yeas 11; nays 0 [See Minutes of Proceedings])

(Clause 7 as amended agreed to)

(Clause 8 agreed to)

(On clause 9)

On clause 9, we have amendment NDP-2.

If it's adopted, NDP-3 and BQ-2 cannot be moved due to a line conflict.

We have Mr. Boulerice on his amendment.

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

Thank you, Mr. Chair.

Clause 9 seems to have needed a lot of amendments. We will have to devote a lot of work to them.

Amendment NDP-2 reflects the concerns that several witnesses expressed regarding the use of subcontractors in the event of a labour dispute, because it is difficult to ascertain whether the use of subcontractors is improper or excessive or is intended to defeat the pressure brought by unions and members of the bargaining unit.

Obviously, hiring subcontractors before a notice to bargain is issued creates a somewhat long timeline, and this puts significant financial pressure on the employer, which has to pay those people for a period of time. However, some unions pointed out that an employer whose position and financial resources are strong enough could hire subcontractors in advance. They could then do the work of the members of the bargaining unit involved in the labour dispute, strike or lockout, if extensive checking is not done.

We are proposing this amendment to address the unions' concern, so that subcontractors could not continue to do their work and their activities during the labour dispute.

That is the spirit behind amendment NDP‑2.

[The Chair, Liberal, Bobby Morrissey]

We have Mr. Sheehan and then Madame Chabot on NDP-2.

[Terry Sheehan, Liberal, Sault Ste. Marie, ON]

Thank you, Chair.

In the Canada Labour Code, the definition of “employee” already captures a “dependent contractor”, who is a contractor who relies solely on one employer or contract. They occupy the same labour market space as employees, so they are eligible for unionization. Those folks are potentially part of the bargaining unit and paying dues. They're a member of local X and they pay the dues, so they occupy the same space.

I would turn to our officials, through you, Chair, to perhaps explain what I was saying about how the Canada Labour Code already captures dependent contractors and what dependent contractors are, as opposed to other folks.

[Zia Proulx]

Mr. Chair, I want to start by making a clarification before I turn it over to Ryan Cowling for an explanation.

There are dependent contractors and independent contractors, so there's a distinction in the code. I know we want to get into the amendments, but I just want to clarify,

Mr. Boulerice, I know that you are familiar with the distinction between these two terms, but I would like to explain it to all the people around the table.

At present, the bill makes this distinction. The purpose of the amendment to the Canada Labour Code is to specify that contractors may continue to do their work if they were hired before the notice to bargain, as they were previously doing it. For example, if they were working three days a week, they will be able to continue working three days a week, since that is not the work of the employees on strike or locked out. That is an important nuance.

I am now going to give the floor to Mr. Cowling, who will be able to explain the difference between independent contractors and dependent contractors. It is important to explain the difference between the terms used in the bill, because that is to some extent the reason why these amendments are being proposed.

[Ryan Cowling]

Thanks, Zia.

I'll try to state it as clearly as possible, but it can get a little esoteric within the industrial relations framework.

Essentially, a dependant contractor is a person who's not in a direct employment relationship with an employer. They don't have a contract with an employer. What they have is a dependence on the employer, both economically and in terms of their working conditions, that makes them so similar to employees that part 1 of the Canada Labour Code treats them as employees.

Under part 1, the definition of “employee” explicitly says that it “includes a dependent contractor”, so any time part 1 of the Canada Labour Code refers to employees, it's also referring to dependant contractors. Similarly, in Bill C-58, where you see the word “employee” appear—such as in the ban on replacement workers in proposed subsection 94(4) and in the ban on employees in the bargaining unit crossing the picket line and performing work during a full strike or lockout in proposed subsection 94(6)—that would also include dependent contractors that are in the bargaining unit.

I hope that clarifies this.

[The Chair, Liberal, Bobby Morrissey]

Thank you.

Go ahead, Madame Chabot.