Bill C-380 (Historical)

An Act to amend the Canada Labour Code (pregnant or nursing employees)

Bill C-243--Employment Insurance Act

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Mr. Speaker, I rise today to contribute arguments as to why my private member's bill, Bill C-243, would not infringe upon the financial initiative of the crown and therefore would not require a royal recommendation.

I appreciate the time of this House to present these arguments. As you know, Mr. Speaker, this is the only opportunity I have to do it, and I have to do it orally to get it on the record, so I apologize in advance for the time it will take to do that.

I want to begin by outlining exactly what my bill would do.

The first part would provide for the development of a national maternity assistance program, and the second part would amend section 22 of the Employment Insurance Act to expand the window of time in which existing maternity benefits could be taken if a woman worked in a hazardous job that posed a risk to her maternal health. Specifically, it would allow women to begin taking their 15 weeks of maternity benefits 15 weeks prior to the due date, rather than just eight weeks prior, as the current rules allow.

The argument I am putting forward today will focus on addressing the amendments to the Employment Insurance Act under part 2 of the bill. I will show that Bill C-243 would not increase or change the total benefits an individual is entitled to and therefore would not constitute a new and distinct expenditure.

My argument has two parts, and I will be citing both academic literature, in particular by Lukyniuk and Keyes in the Canadian Parliamentary Review, as well as relevant parliamentary precedent.

First, I will briefly show that Bill C-243 would not increase or change the total benefits an individual is entitled to and therefore would not constitute a new and distinct expenditure.

Second, I will show that these changes would not substantively alter the objects or purposes of maternity benefits. In other words, I will be arguing that it would not create or envision a new function.

The first thing to note is that there is a general authorization for EI expenditures that is sufficiently broad to encompass the provisions of the bill. To illustrate this, consider the comment on royal recommendations from Keyes, 1999, on page 19:

...an amending bill that merely re-enacts or consolidates existing expenditure provisions does not require the recommendation.

The provisions contained in Bill C-243 would simply reallocate or shift existing maternity benefits, which are already authorized under the Employment Insurance Act. As such, the changes would fall within the purview of a royal recommendation, which provides for the general authorization of EI expenditures.

Allow me to further explain, with reference to specific examples, why this modest shifting of benefits would not introduce new and distinct expenditures. There are four elements that must be considered to substantiate this claim.

The first obvious point is that the bill would not increase the amount of benefits paid to an individual. Since the amount an individual is entitled to per week would not change, there is no concern that it would affect estimates or payments from the consolidated revenue fund.

This differentiates Bill C-243 from other private members' bills that were deemed to require a royal recommendation, such as past bills C-278 and C-279.

Second, Bill C-243 would not increase the benefit period or the number of weeks an individual is entitled to claim. Eligible recipients would still only be entitled to 15 weeks of maternity benefits. The only difference would relate to the window of time in which these benefits could be taken. I want to be very clear that this would be the only change.

In this way, Bill C-243 could be differentiated from several other bills, such as Bill C-278, which sought to increase EI sickness benefits from 15 to 50 weeks.

Third, Bill C-243 would not change the eligibility requirements such that more individuals would become eligible for EI.

Whereas bills C-279, C-265, and C-280 would have changed the qualification requirements, and thus expanded how many people could access benefits, Bill C-243 would not do this.

For example, in the case of Bill C-279, the Speaker explained that:

...more individuals would be eligible to receive EI benefits and those currently eligible would receive increased benefits.

Fourth, since Bill C-243 would simply shift existing entitlements, the only costs associated with this legislation would be administrative, and it has been well established in previous rulings that these administrative costs would not require spending for a new function. Instead, they would be operational costs that are part of the department's ongoing mandate. As such, they have constantly been ruled as not requiring a new royal recommendation.

To summarize my argument that spending under this bill is not new and distinct, I want to quote Keyes, 1997, who argued on page 20 that royal recommendation is not for “Provisions authorizing charges that are already or were previously authorized by Parliament, for example, a bill consolidating or revising existing legislation or authorizing spending for a particular group of people already covered under general legislation”.

In fact, that is exactly what this bill does. It authorizes spending for a particular group of people, women working in hazardous jobs, who are already covered under general legislation, in this case, the Employment Insurance Act. While Bill C-243 does shift the window of time for when an individual can receive maternity benefits, it must be understood that these are benefits that many women are already entitled to. They are not new and distinct.

I will now concentrate on the second reason why my bill might require royal recommendation, which is whether or not it fundamentally changes the objects or purposes of the spending. In other words, does the bill envision a new function for maternity benefits? The central question on which you will have to rule, Mr. Speaker, is whether El maternity benefits are currently intended to protect the health of the mother and her unborn child. If this function exists under the current spending regime, my bill would not require royal recommendation, as it simply shifts existing benefits in a manner consistent with the existing purpose.

I will present several arguments to show that maternal health is one of the functions, if not the primary function, of maternity benefits. I will begin by noting that while we are tasked with determining the purpose of El maternity benefits, the actual enabling legislation, the Employment Insurance Act, says nothing explicitly on this issue. As such, to make this determination we will be required to make reasonable inferences based on other factors, including the eligibility criteria, their practical usage, and indeed a common sense understanding.

Let us consider the purpose and eligibility criteria of maternity benefits, according to the departmental website. It states, “A maximum of 15 weeks of El maternity benefits is available. The 15 weeks can start as early as eight weeks before the expected date of birth, and can end as late as 17 weeks after the actual date of birth.”

My central argument is that protecting maternal health is a function of maternity benefits under the existing legislation and usage. That is why my bill, which touches directly on this function through existing entitlements, cannot be considered to be creating a new function. The function already exists.

The fact that applicants are already permitted to take benefits during their pregnancy, up to eight weeks prior to their due date, is strong evidence that maternal health and maintaining a safe pregnancy are existing purposes of maternity benefits. The legislation may not explicitly recognize this, or any purposes of maternity benefits, but I believe the interpretation and the spirit of the law confirm this understanding.

Legal analysis of the existing provisions is valuable, but should be complemented by a practical understanding of the benefits. In other words, it is not just my opinion that maternity benefits can be interpreted as having a maternal health function, but this is exactly how the benefits are being used.

Melodie Ballard, a constituent from my riding, is one of the many Canadians who chose to access their maternity benefits early because their job posed a risk to their health and that of their unborn child. This is not only allowed under the current rules, but in fact, it is one of the main reasons why benefits can be taken eight weeks before the birth. All Bill C-243 does is emphasize one of the existing purposes and practical usages of maternity benefits. That is it.

To be clear, I do not mean to suggest that this is the only function of maternity benefits, or the only reason that the legislation permits pre-confinement access. Indeed, maternity benefits can be taken after the birth, and in that sense they are also intended to provide a recovery period for the mother after childbirth. The key point is that maternity benefits should not be so narrowly interpreted as to exclude the function of maternal health, given the structure of the benefits and how they are practically used.

I will now present statements as to why my argument that employment insurance, and in particular maternity benefits, do serve the purpose of supporting a healthy pregnancy. To begin, consider this statement from the director general of El who, when she appeared before the HUMA committee on May 8, 2014 said, “Maternity benefits provide income support for a 15-week period surrounding childbirth to allow recovery from physical or emotional effects of the pregnancy and childbirth.”

It is clear from this statement that maternity benefits are used to support maternal health during pregnancy. Perhaps more specifically, Mr. Speaker, you will have to answer whether maternity benefits serve the purpose of protecting the mother when her job poses a risk to her health, or to that of her unborn child.

In other words, do El maternity benefits serve a similar purpose to the preventative withdrawal program that exists in Quebec? This is a topic that has actually been discussed during debates in this House, in particular on past private members' bills, Bill C-380 and Bill C-307.

I would refer to a contribution from the member for Coast of Bays—Central—Notre Dame on May 3, 2012, “provinces outside of Quebec have been relying for numerous years on the Employment Insurance Act for compensation for pregnant and nursing women in the circumstances of a preventive withdrawal from work.”

That sort of statement makes my argument quite succinctly and coherently.

A similar explanation for how employment insurance benefits are used for the purpose of protecting the mother and unborn child were put forward in this House on October 17, 2005, by the parliamentary secretary to the Minister of Labour and Housing at the time, “women under federal jurisdiction, if they must take leave, have access to employment insurance”.

The understanding that maternity benefits are an income support during a period of preventative withdrawal was corroborated by multiple members during debate proceedings on both Bill C-307 and Bill C-380.

In addition to members of Parliament, this understanding of El has been affirmed by departmental officials as well. When asked during the HUMA committee on October 22, 2003, about whether Canada had a system of preventative withdrawal, the Director of Labour Standards and Workplace Equity responded:

Where the job has been determined to be dangerous, the employer has an obligation to attempt to reassign her to work that is not unsafe for either the unborn child or the nursing child. If it's not possible or not reasonably practicable for the employer to reassign that individual, then she is entitled to leave without pay. What would happen under those circumstances is that she would take advantage of the employment insurance program...

It is clear that the employment insurance system, in particular the eight weeks of pre-birth maternity benefits, are an integral part to supporting women who choose to leave their job due to hazardous conditions.

Even though some statements do not mention maternity benefits explicitly, it is clear that this is the main form of El that would apply in these cases.

The final point I will make is to clarify that this bill does not affect any other type of El benefits, in particular parental or sickness benefits. Parental benefits would still only be able to be taken after confinement, which is in keeping with their purpose.

One might also think that protection of the expectant mother better falls under the category of sickness benefits. In fact, this is a very common misconception of sickness benefits. The reality is that sickness benefits can only be accessed if the individual is sick, not if there is a risk to their maternal health. Unlike maternity benefits, they cannot be taken for the purpose of protecting the health of the mother and the unborn child from the risks of a hazardous work environment.

Let me be clear, eight of the 15 weeks of maternity benefits can and are frequently being used for that purpose. As this function and purpose is well-established, my bill cannot be said to be creating a new function.

To conclude, the intent of my bill is simply to emphasize an existing function of maternity benefits, maternal health, for those who need it most, women working in hazardous jobs.

There is a royal recommendation that exists for spending on maternity benefits. There is no doubt that this bill would affect the manner in which that spending is done.

The central question is, does my bill shift spending in a manner that departs from the original purpose of maternity benefits? Put another way, does protection of the women's maternal health fall outside of the purpose of maternity benefits? I submit to you that it does not.

In closing, I will draw your attention to Keyes 1997 who argued on page 20 that royal recommendation is not required for cases where the bill authorizes spending for similar functions where “Provisions imposing additional functions on publicly funded bodies if the functions are of the same nature as their existing functions or are conferred for similar purposes.”

Canada Labour Code

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, it is a privilege to stand in the House today to talk about this issue of great importance. I want to congratulate my hon. colleague, who is new to the House, for bringing this forward. It is always nice to see members bring their private members' bills into this particular place to argue and debate. One of the greatest acts we can do as parliamentarians is to bring our own legislation into the House. I congratulate him for doing that.

By way of background, Bill C-307 is an act to amend the Canada Labour Code, which would allow pregnant or nursing employees in the circumstances of a preventive withdrawal and working for a federally regulated business to opt out of the Employment Insurance Act and receive benefits under the provincial regime. At the present time, this would only create equity between pregnant and nursing employees in Quebec working for federally regulated businesses or not. Quebec would be the only province benefiting from the provisions of the bill since other provinces rely on the Employment Insurance Act to obtain compensation.

However, the bill contains a provision in the eventuality that other provinces would want to mirror Quebec's regime and create a compensation scheme in the case of preventive withdrawals. Indeed, pursuant to subsection 132.1(5) of the bill, the Minister of Labour can enter into an agreement with the government of a province or its agent to determine the administrative and financial implications of certain measures. A province could probably refuse to enter into such an agreement because of the costs related to implement such a regime and since the provinces outside of Quebec have been relying for numerous years on the Employment Insurance Act for compensation for pregnant and nursing women in the circumstances of a preventive withdrawal from work.

The bill entirely mirrors the provisions of Bill C-380, which was an act to amend the Canada Labour Code for pregnant or nursing employees, that was tabled in 2005, in the first session of the 38th Parliament, by a member of the Bloc Québécois, Robert Vincent. At the time, the NDP and Conservatives voted in favour of the bill and, of course, the Liberals voted against it.

Taking a look at the Canada Labour Code, under subsection 132 of the code, a pregnant or nursing employee who is subject to the code may apply to be reassigned to another position if her work constitutes a danger to herself or her child. If the worker cannot be reassigned by the employer to another job, the employee can obtain leave without pay under the code. Compensation will then be granted under the Employment Insurance Act or the collective agreement.

In Quebec, the program for maternity without risk of La Commission de la santé et de la sécurité du travail offers benefits to women who must leave their jobs for that particular reason. However, employees working for federally regulated employers in Quebec are not eligible for this program. It is noted that no other Canadian province offers compensation as Quebec through its health and safety at work measures. Consequently, in provinces outside of Quebec and in the circumstances of a preventive withdrawal, the employee will have to refer to her current collective agreement to receive compensation, the Employment Insurance Act or the employer's private insurance plan.

Therefore, the rationale behind this is one that is meant to be in good measure. I understand that, as anybody in the House would certainly agree, the bill as presented certainly does seem reasonable. The same benefits that are available provincially, in this case mainly referring to Quebec, would be applied to women who work in the federal area under the federal Canada Labour Code if those benefits are better. The problem is that no other province has the kind of benefits available to pregnant women that are available to workers in Quebec. If the bill were to be adopted, only women in Quebec who work under the federal labour code would benefit from this particular legislation, as well intentioned as it may be.

The bill, therefore, creates two categories of workers: workers in Quebec and workers in other provinces. It creates a precedent, where an employee subject to the Canada Labour Code could opt out for the provincial program if she deemed it more generous, essentially cherry-picking the jurisdiction and laws that would apply in her case. The bill would allow employees to choose their effective jurisdiction, which is no way to run a federal country or administer a federal code.

Therefore, as well intentioned as it may be, because of the problematic nature of that in one province and not the others, we vote against the bill in its present form.

In effect, through the Canada Labour Code, the bill forces the federal government to live by present and future labour laws of the provincial governments without having any say in exactly what one has to live up to, even though the federal government has jurisdiction in its own area. In this case, the provinces would be dictating what is happening to the Canada Labour Code with respect to federal undertakings. This would be costly for the federal government, which would compensate the provinces under the terms of an agreement provided under proposed section 132.15 of the bill, which would create two payment systems under the provincial legislation and the Employment Insurance Act.

Again, I would like to remind members that when we bring private members' bills to the House and the principle is to help affected people, we believe that this should be looked at. However, sometimes we take the principle of a particular bill and vote accordingly. However, if we look at the bill and the flaws within it, sometimes they become too overbearing and we therefore vote whichever way we must. In this case, the flaws contained within it would certainly be overbearing to the system.

The bill would create a regional inequality in the Canada Labour Code that does not currently exist, which is what we put forward in 2005 when the bill first came into the House under Bill C-380 under the Bloc Québécois. It would create a separate system for employees under federal jurisdiction. The practical effect of Bill C-380 would create a separate system for employees, those working in Quebec, and those under federal jurisdiction who are working in other regions or other provinces and territories across the country. We certainly do feel that these arguments stand, as well intentioned as the bill may be.

If the proponent of the bill was concerned with pregnant and nursing mothers, the bill would have been drafted with those concerns in mind. As much as we compliment the member on the particular intentions within the bill, we certainly have to look at it on a national basis. In 2005 these were the arguments that we brought forward. These are the arguments that we adhere to in this situation. Therefore, we vote against it as a party.

As I mentioned earlier, under section 132.15 of the code, a pregnant or nursing employee who is subject to the code may apply to be reassigned to another position if her work constitutes a danger to herself or the child. If the worker cannot be reassigned by the employer to another job, the employee can obtain leave without pay under the code. Compensation will then be granted under the Unemployment Insurance Act or the collective agreement itself.

In Quebec, the program for a maternity without risk of the CSST offers benefits to women who must leave their jobs for that reason. It is also called preventive withdrawal. However, employees working for federally regulated employers in Quebec are not eligible for this program. We agree with the principles that I outlined before. It is noted that no other Canadian province offers compensation as Quebec through its health and safety at work measures. Therein lies the reason why the party votes against it.

Again, I congratulate the hon. member for bringing this into the House as it is certainly a pertinent issue. Hopefully, we can rectify these problems and get back to looking after the people who need it the most.

[The Deputy Speaker]

The House will now proceed to the taking of the deferred recorded division on the motion at the second reading stage of Bill C-380 under private members' business.

(The House divided on the motion, which was agreed to on the following division:)

[Russ Powers, Liberal, Ancaster—Dundas—Flamborough—Westdale, ON]

Mr. Speaker, I am pleased to rise in debate on Bill C-380. I must, however, disagree with the provisions of the bill.

The member of Parliament for Shefford is suggesting an amendment to part II of the Canada Labour Code, related to pregnant or nursing mothers. The section being amended, section 132, relates to a pregnant or nursing mother who believes that continuing in her job poses a risk to her health and that of her fetus or child. In effect, the member for Shefford is suggesting that such an employee should be able to opt for coverage under the occupational health and safety legislation and related programs of the province where she works.

Certainly we know there are possible challenges facing pregnant women and nursing mothers in workplaces across Canada. There are existing protections under the current provisions of the Canada Labour Code. Part II and Part III of the Canada Labour Code already provide pregnant and nursing employees with generous benefits and strong safeguards.

For example, if a pregnant or nursing worker believes there is a risk to her health or the health of her fetus or child, she can stop work and take the necessary time, with full pay, to consult her doctor to determine if she is really at risk. If the risk is indeed of concern, the employer must modify the job or reassign the woman to another job. If the job cannot be changed or reassignment is not possible, the woman is entitled to unpaid leave with the right to return.

Let me remind the House that part III has very generous maternity provisions. An employee gets 17 weeks of maternity leave and is entitled to 37 weeks of parental leave, up to a maximum total of 52 weeks. Her benefits are fully protected and she has the right to return to the same job or a comparable one.

So it appears that Canadian women are well served by these benefits and safeguards in the workplace; however, the government is not standing pat in its evaluation of the current provisions of the Canada Labour Code. The government has agreed to study not only this issue but an entire raft of subjects that are commonly grouped together under labour standards legislation.

As members of the House know, this government is deeply committed to helping all Canadians succeed in the 21st century economy. Improving labour standards is an important part of that commitment. That is why our labour minister recently launched a full review of part III of the Canada Labour Code. This is our first sweeping review of Canada's labour standards in 40 years.

This review is a great opportunity to engage unions, employers and ordinary Canadians in addressing some of the most important issues of the day, including work-life balance, productivity, and employment relationships. With this review, we want to start a wide-ranging national conversation about what Canada's workplaces should look like in the 21st century. We want to reach out to all Canadians and hear about the workplace issues that matter most to them, their families and their communities.

Issues such as the protection of pregnant and nursing workers will certainly be carefully considered during this review. That is why I believe amending the Canada Labour Code now would be premature. It would be short-sighted to go ahead with this kind of amendment before we have a chance to review the commission's report and its recommendations.

One of my chief concerns is that this amendment seeks to short-circuit the whole policy-making process. When it comes to creating social policy in Canada, we need to take time to consider all the facts and all the views and we need to study our options before deciding on a course of action.

We need to consult broadly with all of our stakeholders, including Canadian employers and unions, labour experts, and the provinces and territories. That is how we can ensure that the deliberations in Parliament are effective in deciding the evolution of labour laws in our country.

The bill raises difficult constitutional questions and would introduce a dangerous precedent in the administration of labour law in this country. Federally regulated employees comprise 10% of the Canadian workforce in sectors of key importance to the Canadian economic infrastructure. They include, among others, workers in banks and in Canada's transportation and communications sectors. This means that 90% of Canadian workers are governed by provincial or territorial labour legislation.

In this complex world, the bill would introduce a precedent. An employee subject to the Canada Labour Code could opt for the provincial program in the province where she works if she deemed it to be more generous. Let us consider the type of world this would create, and the type of precedent this would create in the laws and regulations in federal, provincial and territorial jurisdictions.

Imagine a country where individuals or employers for that matter could cherry-pick and choose the jurisdiction and its laws that would apply in their particular case. One could imagine the scenario, “I pick this provincial law for this protection”. However, tomorrow the person could say, “In this case, I choose the federal jurisdiction because it is better for me”.

That is certainly no way to run a federal country. This bill would provide employees with the right to choose their effective jurisdiction. Would we then allow the same option in other areas? That is the question that must be considered. I think not. Let us think of the ramifications. Serious evaluation moves us to reject this course of action.

In short, I think all Canadians would benefit if we took more time to examine the issue as we are planning to do. Let the commission that is reviewing part III of the Canada Labour Code do its job and report back to Canadians.

Once we have listened to the views of all Canadians and have the facts in hand then we can move ahead and take action. Protecting pregnant women and nursing mothers in the workplace is a top priority for all Canadians. As parliamentarians it is our job to take the time to study this important issue. It is our job to do it right.

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

Thank you, Mr. Speaker, for the opportunity to speak on Bill C-380 concerning preventive withdrawal.

First, I would like to commend my colleague, the hon. member for Shefford, for introducing this excellent bill. As we know, he is an experienced unionist, a man sensitive to the interests of the workers, both men and women. He has taken it upon himself to introduce this bill to make the lives of pregnant or nursing employees easier.

In Quebec, we have a situation that does not make any sense. We have two categories of female employees. There are those covered by the Quebec labour code, who account for 90% of all female employees, while others work for enterprises under Quebec jurisdiction and are entitled to benefits from the CSST, Quebec's occupational health and safety commission, when they are pregnant and working in an inappropriate environment for them or their child to be. On presentation of a medical certificate, the organization takes steps to reassign the employee, which is the thing to do. When that is not possible, which unfortunately happens far too often, a complete mechanism is set in motion to ensure that this difficult, painful and unfortunate situation has as little impact as possible on the employee.

In Quebec, the government, in cooperation with the CSST, has put in place a mechanism to ensure that these employees start receiving immediately and with no waiting period 90% of their salary for as long as necessary. That does not prevent them from taking advantage of parental leave benefits for a total of 65 weeks.

Some 90% of workers in Quebec are in this situation. Furthermore, 8% of workers are subject to the Canada Labour Code. They work for banks, airline companies, in ports, airports and telecommunication companies. Unfortunately, they have no mechanism to avail themselves of should they end up pregnant in an inadequate work environment. They receive employment insurance benefits, go through the two-week waiting period, and receive only 55% of their salary up to a maximum of $413 a week.

To punish them further, every week of their preventative withdrawal is subtracted from their 65 weeks of maternity or parental leave. That is not much of a benefit. What do you suppose happens? There are women who, financially speaking, cannot afford such a pay cut or a two-week waiting period because they had the nerve to work in an environment that was not healthy for them, their baby or their fetus.

It was for those reasons that the Bloc Québécois, through the hon. member for Shefford, introduced Bill C-380. This is not the first time the Bloc has presented this: this is the fifth time it is introducing this bill in this House. We are doing so because we truly do not want there to be two types of workers in Quebec; we want all of them to have the exact same quality of work and the same quality of family life. This absolutely must be advantageous to all women. It is not right that this difference has existed for so long. It is easy to imagine how discouraging and frustrating it must be for these women who are exposed to situations that are unhealthy to them, their baby or their fetus.

I have most certainly noticed that our NDP colleagues will support this bill. I also see that our colleagues from the Conservative Party will vote in favour of it. I am quite disappointed, however, to see that the Liberal government is going to oppose this bill for the rather odd reasons it has provided.

If the trend continues, there is a strong possibility that we will not be sitting in this House next week. If we had all voted in favour of this bill today, it could have been passed quickly. This is what we should have done, this is what the Liberals should have done. However, they decided to oppose this legislation. The vote will take place tomorrow.

The Liberals could have done a good deed and extend a helping hand to pregnant workers. It would not be that complicated because, in its present form, the bill provides that pregnant workers in a province, such as Quebec, would simply have to avail themselves, after an agreement is reached between the federal and provincial governments, of the existing remedies, if applicable. So, the Liberals could have done a good deed and extend a helping hand to female workers.

It is difficult for the Liberal government to display something it does not have, but still it could have tried to show some sensitivity towards female workers and do a good deed. It could have stopped showing contempt towards them. It could have been sensitive to the difficult situations of people who are not rich and who have limited means. Unfortunately, the government prefers to vote against this bill, under the pretence that, some day, it will amend part III of the Canada Labour Code.

The government will try to win votes by saying that it is sensitive to families, and that it has programs to help them. But if the government had really wanted to do something to help them, it would have voted in support of this bill. Today, tomorrow and the day after, women who are only getting 55% of their salary could have received 90%, like women in Quebec, where this provision is already in effect, and where we do not have to reinvent the wheel. We are not asking for changes coast to coast. We are only asking that there be no differences in Quebec—or that these differences be eliminated—so that all female workers can enjoy the same benefits. That is not very complicated.

On the eve of an election campaign, one wonders how the Liberal government can continue to claim to help families, women and workers, when it will not even support this bill. This government could straighten out the situation of working women by quickly reaching an agreement with its Quebec counterpart.

[Diane Ablonczy, Conservative, Calgary Nose Hill, AB]

Mr. Speaker, it is amusing to listen to my colleague opposite, the party of asymmetrical federalism, arguing strenuously that we cannot have regional disparity. That is exactly what asymmetrical federalism is. Maybe the member should be consistent in the principles that she tries to enunciate.

This afternoon we are debating a private member's bill, Bill C-380, put forward by my colleague from the Bloc Québécois, the member for Shefford.

The purpose of the bill is to amend the Canada Labour Code to allow a pregnant or nursing employee to avail herself of provincial occupational health and safety legislation. The purpose of this bill is to make sure that working conditions for pregnant or nursing women are healthy and safe both for the woman and for her unborn child.

Of course, we support the intent of this bill. It is very important to Canada that the next generation has the best possible start in life. Also, we are a country that recognizes that our birth rate is not quite keeping up with replacing our population. We have a special need and a special appreciation of families and women who are bringing forward the next generation and we want to assist them all we can.

There are two difficulties with this bill. Others have pointed them out, but I want to also lay them before members of the House.

The first difficulty with this bill is that it would give benefits to pregnant women that are not available to everyone in this country. It has a built-in inequity just because of the way the legislation is different across the country. The second problem with the bill is that it would bind the federal government without the federal government having a say in the terms and conditions it has to pay for.

This bill, as I understand it, would only apply to 10% of women. That is something we should consider.

The intent of the bill is that if a pregnant woman's employment puts her into unsafe proximity, say, of chemicals or biological agents, or puts her in physical conditions that would be a danger or a health hazard to herself as a pregnant woman or to her unborn child, that woman could ask for reassignment. The intent is also that if the woman could not be reassigned by the company that she works for, she would have some kind of recourse to leave her employment for a period of time but still would have some benefits.

Under Quebec law, women have very generous benefits in this situation and I applaud Quebec for that. It is very far-sighted and very progressive of Quebec to look after women and unborn children in this way. But the Quebec benefits are only available to provincial workers. There are women in Quebec who work under the federal labour code and the Canada Labour Code is not nearly so generous to pregnant women in regard to both the choice to be reassigned or to leave employment that is deemed to be unsafe, or to other health and safety regulations.

My colleague would like to see the same benefits that are available provincially applied to women who work in the federal area under the federal Canada Labour Code. On the face of it, that would seem to be very reasonable. The problem is no other province has the kinds of benefits available to pregnant women, allowing them to be reassigned or allowing them to leave their employment or other health and safety benefits, that are available to workers in Quebec. If we adopted the bill, only women in Quebec who work under the federal Labour Code would benefit from it.

One might ask what is wrong with that, at least somebody would benefit. The difficulty is Parliament would be passing an act which would not address the need to ensure better safety and health conditions for pregnant women and their unborn children. As members of Parliament, we have a duty to all Canadian women, not just a certain segment of women who happen to have available to them a remedy that is only available in one province.

It would be much better if Parliament amended the Canada Labour Code so all women who work in the federal sector and are subject to the code would have more generous benefits and more inclusive protection. That is something we need to discuss. That is why we would like to see the bill go to committee so amendments could be made that perhaps would benefit all Canadian women.

The government's argument is that the Labour Code is being reviewed. In our judgment that review is not wide enough or complete enough to address the issue of pregnant women who may need to have some special consideration to preserve their health and safety and the health and safety of their unborn children.

We might say that the bill would at least help a few, and that is the case. If we could help everybody by amending it, then I am sure the mover of it bill would be even happier with moving in that direction. What I would recommend is that when it goes to committee, and I hope it will, this expansion of the ambit of the bill be considered.

The second problem with the bill is the federal government would have to match the benefits available, in this case, in the province of Quebec, but it would have no say in those benefits. It would still have to pony up the money. This would be subject to some negotiation, but clearly there would have to be a match or the whole point of the bill, to bring parity to all workers, would be lost.

This is a problem in principle. It forces one level of government to live by the decisions of another level of government, in this case the provincial government, without having any say in exactly what it has to live up to even though the federal government has jurisdiction in its own area. That has been a concern. Even though this only would affect 10% of workers, who happen to be in the province of Quebec, under the Labour Code, it still in principle is a concern and that needs to be addressed also by the committee

We definitely want to see better protection and enhanced measures to ensure the health and safety of pregnant women and unborn children in Canada. I would urge the committee to take the bill and address the two issues I have raised and the concerns others have raised. Perhaps when it comes back, it will be a bill that really assists all women across the country, which would be what this Parliament would want to see.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, thank you for calling the members of this House to order.

Under the recent amendments to part II, an employee under federal jurisdiction who is pregnant or nursing is entitled to remove herself from the workplace, even before she has obtained a medical certificate, if she believes that her employment constitutes a risk to herself, her fetus or to her child, if she is nursing.

Such women are entitled to all the benefits and compensation attached to their employment until they obtain a medical certificate in support of their application.

Part III of the Code, which deals with labour standards, provides additional protection. A pregnant or nursing employee is entitled to be reassigned to another job or have her duties modified from the moment she knows she is pregnant until 24 weeks after the birth of the baby. The worker’s employer cannot reduce her salary because of a reassignment or a change of employment.

Part III also provides that a pregnant or nursing worker is entitled to paid leave from the time she requests a change of employment until the time the change takes effect or until she is unable to accept it for health reasons. If no reassignment or change of job is possible, the employee may take leave. During this time, the employee is also entitled to employment insurance benefits, supplemented by private insurance.

The Canada Labour Code covers a full range of measures designed to ensure a healthy, safe work environment for all pregnant or nursing mothers. In addition, it provides for leave and financial assistance to any pregnant or nursing mother who believes she is at risk at work.

We firmly believe that parts II and III of the Canada Labour Code provide adequate protection to pregnant and nursing mothers in the work place.

I assume that the concern of the hon. member for Shefford arises from the difference between employment insurance payments and the benefits provided by the Quebec system, which differs from the federal system.

The practical effect of Bill C-380 would be to create a separate system for employees under federal jurisdiction, but who are working in Quebec, and those under federal jurisdiction who are working in other regions of the country.

It would have the effect of creating regional disparities. It would, in fact, give rise to an imbalance between the possibilities granted to women working under federal jurisdiction in all parts of the country.

The Constitution and the case law establish a precise demarcation between federal and provincial jurisdiction in the field of employment.

The 14 jurisdictions in Canada determine their respective statutes and regulations after having made an evaluation of the impact and the ramifications of the existing legislation and possible changes.

Imagine the confusion that would reign between these borders if, as this bill proposes, employees or employers could decide under which jurisdiction they could choose to be protected.

The labour laws and regulations do not lend themselves to such a choice. It is up to the government, after consulting the parties to whom the laws and regulations apply, to determine the conditions that prevail in their field of jurisdiction.

The federal government obviously participates in this process insofar as part III of the Canada Labour Code is concerned. This part of the code has a direct effect on the rights and obligations of employees and employers in regard to the issue at stake in this debate.

It is certainly reasonable to expect the commission to submit its report and recommendations before we proceed with an amendment like the one proposed by the member for Shefford in his Bill C-380.

For these reasons, I really cannot support Bill C-380.

I want this to be clear for the House. I have carried a pregnancy through to term in my life and had a daughter. I have had the privilege of benefiting from the Quebec system, thanks to the CSST, the Quebec workplace health and safety commission. In fact, I had an occupational accident during my pregnancy, and my doctor gave me preventive maternity leave. In the end, three weeks later, the doctors had to do an emergency caesarian. So I am familiar with the Quebec system and I think that it is outstanding.

However, we are talking about a federal jurisdiction because we are talking about employers and employees who work in an area under federal jurisdiction. We cannot create regional disparities, as this bill would do.

I cannot support this bill, therefore, because I want to wait for the report of the commission, which is conducting consultations. I want to know what this commission's recommendations are on the issues that we are debating now. I do not think that it is healthy for the members of this House to rush the commission's report and recommendations by supporting this bill.

I strongly encourage my colleagues on both sides of the House to study the issue seriously. If this amendment is passed, it would create regional disparity and the employees in some regions could be privileged to the detriment of those in other regions.

The worry and concern voiced by the member for Shefford are certainly praiseworthy. I believe, though, that parts II and III of the Canada Labour Code provide attractive and, most importantly, equitable protection for all pregnant or nursing women who are currently working. If changes are made to the current system on the federal level, there should be prior consultations with all the stakeholders. Who are they? They are the employees and employers who are subject to federal labour legislation.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, I am pleased to have this opportunity today to speak to the members of the House of Commons on Bill C-380.

The protection of Canadian working women, particularly pregnant and nursing employees, is a matter the government takes extremely seriously, as I do myself.

I wish to reassure the hon. member for Shefford, Quebec and to tell him that we share his concerns for the health and well-being of pregnant and nursing women in workplaces all over Canada.

While we do share the same interest in protecting pregnant and nursing employees, we believe that the changes proposed to the Canada Labour Code in Bill C-380 are somewhat premature. This is a complex aspect of social policy and one that addresses not only occupational health and safety legislation but also workplace standards, the judgment of health professionals and personal decisions by all the women involved. If one takes into account the way federal, provincial and territorial jurisdictions over labour matters are divided, along with broader national interest, the problem becomes even more complex.

Our commitment on this as a government is clearly set out in the Canada Labour Code. We need to look particularly at Parts II and III. As hon. members are already aware, Part II addresses workplace health and safety, while III addresses labour standards.

[Réal Lapierre, Bloc, Lévis—Bellechasse, QC]

Mr. Speaker, as I indicated in my previous remarks, working women are a source of skilled labour who deserve our respect and our full attention. Those who set out on the great adventure of procreation should enjoy a status appropriate to the valuable task they are undertaking.

Unfortunately, they often feel penalized because, upon returning to their careers, they do not always return to the same working conditions they had before they left when pregnant. In particular, when they have to leave early as a precaution, either because of the workplace or because of the mother's health or that of the fetus, the professional insecurity experienced by these mothers-to-be is understandable.

That is not how it should be. And it is incumbent upon us, in this House, to change things. If we come to an agreement, Bill C-380 should allow us to take a few steps forward.

I repeat that pregnant women whose wrok is under federal jurisdiction and who need to leave their jobs earlier than expected to prevent pregnancy-related problems could opt for their provincial or Quebec legislation, instead of the federal code, in order to maximize their benefits under the system best suited to them.

Quebec's workplace health and safety commission, the CSST, allows an employee to receive her regular salary during the first five working days after stopping work. Then, for the next 14 days that would normally be worked, she is entitled to 90% of her net salary, which is paid by her employer who, in turn, will be reimbursed by the CSST.

We would like all working women to benefit from these conditions. I am talking about workers subject to the Canada Labour Code and who are not, therefore, entitled to conditions set by the CSST.

Bill C-380 is an excellent opportunity for us to correct this situation. It is clearly better to get 90% of your salary instead of the 55% provided under the EI program. It is also fairer and provides greater security. Finally, these workers would not lose a single week of vacation or parental leave because they had to go on preventive withdrawal, as they do now under the Canada Labour Code.

So I am asking the House to support Bill C-380, so that these measures benefit rather than penalize pregnant women.

I ask too that the pilot project, under which the necessary adjustments between the CSST system and the Canada Labour Code system could be made, be extended, because it was an equitable solution with regard to preventive withdrawal due to a pregnancy.

Women regulated by the Quebec or provincial labour code could chose between getting partial EI payments while receiving preventive withdrawal benefits, or only receiving the latter in order to save their EI benefits and be entitled to a longer maternity or parental leave.

Without this program, these women will not have this option. I am asking not only that it be extended, but that it be made law without further delay.

[Réal Lapierre, Bloc, Lévis—Bellechasse, QC]

Mr. Speaker, I appreciate the opportunity to express my opinion on this most important issue. As we begin the 21st century, women are a qualified and efficient source of labour that we urgently need in all sectors of our economy. What makes them special—and this is nothing new—goes beyond their professional skills and resides in the fact that they ensure the future of the human race.

Given that, we can more clearly understand the need for legislation to make their lives easier, not only as professionals, but also as mothers. It is not easy to do both, particularly when a woman has a difficult pregnancy, and her health or that of her fetus is at risk, or when her working conditions may endanger their health or otherwise be harmful.

In a context where the low birth rate is a problem, our duty as parliamentarians is not only to make society think about this fundamental issue, but also to propose real measures to improve the lives of women at work. Therein lies the importance of the bill we have introduced.

Bill C-380 would be a clear improvement over the situation in Canada to date. Pregnant women who are regulated by the federal code and who need to leave their jobs earlier to prevent pregnancy-related problems could opt for their provincial or Quebec legislation, instead of the federal code, in order to maximize their benefits under the system best suited to them.

Under Quebec legislation, conditions for pregnant employees regulated by that code, are more generous. Quebec's health and occupational safety commission (CSST) allows an employee to receive her regular salary during the first five working days after stopping work. During the next 14 days normally worked, she is entitled to 90% of her net salary, paid by her employer who is then reimbursed by the CSST.

Unfortunately, this is not the case for federal public service employees or those working in areas regulated by the federal government, such as air transportation, banking and telecommunications. Employees in these industries are subject to the Canada Labour Code and, therefore, they are not entitled to conditions set by the CSST.

Bill C-380 would remedy this deplorable situation, which is a source of injustice for these Quebec workers. With the bill before us, there would no longer be two categories of workers. Pregnant or nursing employees under federal jurisdiction would receive 90% of their salary while on preventive withdrawal under the coverage provided by the CSST, just as those employees under Quebec jurisdiction, rather than the 55% provided by the EI program. I think it is safe to say that they would be pleased with that.

Should Bill C-380 become law, it would be easier for pregnant or nursing employees to have access to more equitable benefits since they would not have to meet EI eligibility requirements.

Finally, they would not lose any of their maternity or parental leave because they had to go on preventive withdrawal, as is the case now under the Canada Labour Code, which certainly penalizes those women who need protection the most.

I must add that I deplore the fact that the pilot project under which the necessary adjustments between the CSST system and the Canada Labour Code system could be made ended October 1.

This pilot project gave employees under Quebec or other provincial jurisdiction the opportunity to chose to receive partial EI benefits while receiving preventive withdrawal benefits, or to receive only preventive withdrawal benefits and then be entitled to a longer period of maternity or parental leave. This ensured a balance and made the system fairer for all women.

[David Christopherson, NDP, Hamilton Centre, ON]

Mr. Speaker, on behalf of the NDP caucus, I want to congratulate and compliment our colleague, the member for Shefford, on this bill. We will be supporting it. It is good for working people. It is good for moms. It is good for kids. It is hard to believe there is a need for a huge debate.

I understand some of the trepidations that have been expressed by the Parliamentary Secretary to the Minister of Labour and my counterpart in the Conservative Party about the legalities of dealing with two jurisdictions, overlapping jurisdictional responsibilities, et cetera, but quite frankly, once those things have been straightened out from a policy perspective by this place they can be stickhandled by the legal people. They can make these things happen. They sure seem to be able to do it when income tax time comes around. When people fill out their income tax forms, wherever there are two choices, they are given the opportunity to put down the figure that works best for the government, either the bottom line figure or the lesser of some other number. It is done all the time.

In a parliamentary system, in a confederation, it is not unusual that there would be jurisdictional clashes. Take all the major ministries. Certainly the Ministry of the Environment comes to mind. There are bound to be overlaps but that does not stop us from making changes that improve things for the people who sent us here.

I would like to take this back to its root issue as we in the NDP see it. It is about the children. It is about the unborn child and our nation doing the best it can to provide nurturing support to the mom, the mom to be and to the child. Where we have an opportunity to give better support, why would we not do it? I really have some difficulty understanding what the big deal is.

The situation was very well described by my colleague from Shefford. Two neighbours in exactly the same situation go out to work every day and work hard as honest law-abiding folk. They have two different sets of benefits, one better than the other, purely by the chance of where they work, either under federal jurisdiction or provincial jurisdiction. It really depends upon where they fall under a decision that was made back in 1867 in terms of how the powers within the new nation were divided. That is the only difference, yet there is the possibility that one family unit, one child, one mom would be given lesser benefits than the other.

What is wrong with saying that they have a choice when they are in this kind of situation? It does not affect that many people. It is a pretty small percentage of the working population that is actually covered by the federal labour code. I do know this very well. I was the provincial labour critic for a number of years at Queen's Park. I fully understand that the overwhelming number of labour issues and the people covered are at the provincial level, but because of constitutional issues and other matters, a small number of folks come under the federal level.

A female worker is pregnant and there are two opportunities in terms of which benefit package she might go to. It is great that we could give her that choice. What is important here is not the legal niceties of how we break out Confederation. It is not whether it is one jurisdiction or about leaving it to the other level of government to pay. None of those things matter. All that matters is the child.

The parliamentary secretary expressed some concerns and I understand that. I jotted down some of her words. She thought it was premature to pass Bill C-380. She thought that there needed to be more research and review in light of the fact that part III of the Canada Labour Code is currently under review. I understand her point, but it really sounded like more of a dodge.

I was very pleased to hear the comments of the Conservative labour critic, the member for Souris—Moose Mountain. We had a chance to chat very briefly before we entered the House. I must admit I was pleasantly surprised. The member said that he had many concerns and that he could see a lot of work being done at committee. This is fair enough. I understand that the member is a lawyer, so he understands and actually enjoys all the legalities. That is fine because that is what we do at committee.

There is nothing at all to preclude the House from sending a message that we want the best possible protection and support for unborn children and for moms and that therefore, we are going to pass this bill and between this bill and the review of part III we will make it better for working moms.

I do not understand what the huge problem is. I would think that the Liberals would have some difficulty explaining why they were not prepared to extend benefits to pregnant women because of some jurisdictional difficulty. Perhaps this will be another one of those times when they say, “Yes, we will do it” and then 12 years go by and nothing has happened. That is the real concern.

Given that this is a private member's bill, the government backbenchers are entirely free to vote any way they want. That is the way we run this place on private members' bills. I do not know about the other caucuses, but certainly our caucus reviews them. We attempt to reach a consensus. It is always best to come in united at any time. Given that it is private members' business it is fully understood and supported that members of the NDP caucus may vote any way their heart, conscience or riding needs dictate and there will be no recrimination whatsoever.

I caution the backbenchers in the government party that they may have to answer to this. The nice little pat answer of the parliamentary secretary and the procedural dance around the issue may not work so well in debates or on the doorsteps, particularly because this is about children. It is about working women who are going to have children and making sure that one of the richest states in the world provides the best supportive programs that it can.

My sense from the motivation of the hon. member for Shefford is to do just that. To his credit he has identified an inequity that exists under the current legislation. He is doing what every member was sent here to do and that is to fix things that are wrong and make things better for working people. That is what this is about. I, for the life of me, cannot understand why anyone would not want to stand in their place and say, “I support legislation that helps moms, that helps working people and most important, helps children”.

This House should pass this bill.

[Judi Longfield, Liberal, Parliamentary Secretary to the Minister of Labour and Housing]

Mr. Speaker, I welcome the opportunity to debate this important question of labour policy.

I must inform the House that I do not support the provisions of Bill C-380, and I will tell the House why.

Bill C-380 seeks to amend the Canada Labour Code to allow a pregnant and nursing employee who is subject to federal labour law to avail herself of the relevant legislation in the province in which she works. Under the proposed bill, a pregnant or nursing employee who is subject to federal labour laws will be able to opt out of the provisions of that law in favour of the provincial law.

We should review the subject matter of Bill C-380 in further detail before we can really pass judgment on it. We must ask ourselves a number of questions.

Do pregnant and nursing mothers currently receive adequate protection under the Canada Labour Code?

Members of the House will recall that the issue of protection for pregnant and nursing mothers under the Canada Labour Code already has been studied at the federal level. To ensure that their protection was adequate, the former minister of labour launched a survey of federally regulated workplaces to examine whether the current federal maternity related provisions were adequate and effective. The study found that the maternity related provisions of the Canada Labour Code adequately protected pregnant and nursing women in Canada. It recommended, however, that more efforts be made to inform Canadian employers and employees of their rights and obligations concerning maternity related leave and reassignment.

As members of the House will know, and as members opposite have alluded, there is currently a full review of part III of the Canada Labour Code. Among other things, the review is considering what can be done to help employees achieve a better work life balance, while also taking into account the needs of employers.

What arrangements do employees need to be able to respond to their family and other responsibilities?

What are the specific pressures facing female employees?

What good practices have employers and unions put into place to address these issues?

What legislation or other changes, if any, should be made to the federal labour standards to foster greater work life balance in federally regulated workplaces?

Are any current federal labour standards hindering efforts to provide flexible arrangements to benefit employees?

These are the broad questions that should be asked in a holistic review of the labour standards as they impact on employees' work and family responsibilities. We want to ensure that the federal labour standards remain relevant and reflect the revolving and evolving needs of Canadian workers and employees.

Currently, this review will examine such issues as the protection of pregnant and nursing mothers. However, the review will go much further. It will consider all aspects of the needs to balance work and family responsibilities. That is why it is premature to consider changes to labour standards legislation before the commission has had the opportunity to present its report and its recommendations. I would remind the House that the report will take into consideration the views of employers, the government and employees. It is a tripartite review.

Also the Labour Code already has been amended to provide substantial improvements to protect working pregnant and nursing women. Recently, amendments to part II of the Canada Labour Code gave stronger protection to a pregnant or nursing woman who believed her job may be potentially dangerous to herself, her fetus or her nursing child. If it is determined that a woman's job poses a health risk to herself, her fetus or her nursing child, she is entitled protection under part III of the code, which sets out the standards and employee obligations in the workplace. In these circumstances, part III requires the employer to modify the employee's working conditions or to reassign her to another job. If neither of these options is available, then the employee is entitled to leave.

Let me remind the House that women under federal jurisdiction, if they must take leave, have access to employment insurance which in many cases can be topped up by private insurance plans.

There are also federal-provincial issues to the bill before the House. To put these issues into perspective, it is important to remember that the Canada Labour Code, which the bill seeks to amend, applies only to employees working under federal jurisdiction. Federally regulated employees comprise 10% of the Canadian workforce in sectors of key importance to the Canadian economic infrastructure. They include, among others, workers in banks and in Canada's transportation and communications sectors. That means that 90% of Canadian workers are governed by provincial or territorial labour legislation.

This is a case where federal and provincial jurisdiction is clearly demarcated. This is not a case where federal and provincial governments have a joint role to play. They act independently within their own jurisdictions.

Amending the Canada Labour Code in a way that would allow individuals to choose between federal and provincial laws would only raise cross-jurisdictional issues and would create enormous confusion in the administration of labour laws. When it comes to the Canada Labour Code, we have a strong tradition in our country of consulting with major unions and employer stakeholders. These consultations are now underway regarding a comprehensive reform of federal labour standards.

Over the years we have accomplished a great deal in our approach. We need to keep working together to strengthen our social foundations and create a better way of life for all Canadians. That is why I fully support what the hon. member is doing by reaching out to Canadian women, children and families, but I think Canadians would be better served if we allowed the commission reviewing part III of the Labour Code to complete its work.

I cannot support the bill at this time. It is premature and the issues it raises need more research and study.

[Pierre Paquette, Bloc, Joliette, QC]

Mr. Speaker, I would like to congratulate my colleague from Shefford on his bill and his brilliant speech. In my opinion, it ought to have convinced everyone here to vote in favour of Bill C-380.

I would like to pick up on his closing remarks, in which he pointed out that the federal government has not done a thing for 15 years. What does he think caused that resistance on the part of the federal government, particularly since the Liberals took over? Is there some way of overcoming that resistance?