Final Offer Arbitration in Respect of West Coast Ports Operations Act

An Act to provide for the settlement of labour disputes affecting west coast ports by final offer arbitration

This bill was last introduced in the 37th Parliament, 3rd Session, which ended in May 2004.

This bill was previously introduced in the 37th Parliament, 2nd Session.

Sponsor

Chuck Strahl  Canadian Alliance

Introduced as a private member’s bill. (These don’t often become law.)

Status

Not active, as of Nov. 21, 2002
(This bill did not become law.)

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Final Offer Arbitration in Respect of West Coast Ports Operations ActPrivate Members' Business

February 17th, 2004 / 5:50 p.m.
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The Speaker

Pursuant to order made earlier today, the House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill C-312.

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

Final Offer Arbitration in Respect of West Coast Ports Operations ActPrivate Members' Business

February 16th, 2004 / 11:50 a.m.
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Beauharnois—Salaberry Québec

Liberal

Serge Marcil LiberalParliamentary Secretary to the Minister of the Environment

Madam Speaker, since I do not have much time, I will try to summarize my thoughts in order to make it clear that those of us on this side will be voting against this bill. It does, in fact, have no place whatsoever. It is as if the intention was to give the government the power to impose working conditions on one of the two parties.

This cannot be. In fact, I cannot even imagine a political party in this House proposing such a bill. I regret to say that I cannot see the progressives, the Progressive Conservatives, anywhere in this party.

What we see is the Alliance element, a party that is very much to the right, and now wants to impose working conditions on just about everything that moves in Canada.

What the hon. member across the way ought to know is that the Canada Labour Code contains a clause about going before an arbitrator at the request of both parties. Both parties must, however, accept conciliation after that mediation.

There are many tools to allow the two parties to reach agreement. The bottom line is that they can decide together, by mutual agreement, to call upon an arbitrator, who will then determine the working conditions.

Bill C-312 before us today would require amendment to the Canada Labour Code. The code would have to state that, after a certain number of days with no progress, the government would impose working conditions on one of the two parties. This is a totally unacceptable approach.

Arbitration does exist in certain areas. Take the National Hockey League for example. A system of arbitration has been agreed upon, negotiated by player representatives or the players' association, and representatives of the owners. It is part of their contracts.

There is a reason why this is in place, and why both parties have accepted it. It is because negotiations are taking place between one individual and a team. The individual is totally alone to defend his cause, so a clause has been included in the collective agreement to protect the individual. An average player, or a third string player, can therefore go before the arbitrator.

However, a big NHL star does not need arbitration because he draws crowds and the owners will give him what he wants. Look at Jagr, who is asking for $10 million a year. When his contract expires, he will have the upper hand in negotiations and the team's owner will give him what he wants.

Yet the average player or the third string player needs protection. That is why an agreement was signed between the player's association and the owner's association, which is part of the collective agreement.

In this case, nothing would be part of the collective agreement any more. If we accept it, this type of legislation would determine at which point negotiations would end or when the government would use legislation to impose working conditions on one of the parties.

It is hard to imagine that, in Canada—our country where we talk about freedom to negotiate, freedom to associate as workers in a union to defend workers' rights and working conditions, and where we have a Canadian Charter of Rights and Freedoms—legislation could be introduced which would give the government the power to determine the working conditions in a company for the employees.

It is hard to imagine a political party in this House proposing something like that, but it happens. The former Alliance Party members may be hiding behind the name Conservatives, but they are not Progressive Conservatives. They want to give the government all the power to intervene.

Earlier, I listened to the member who is putting this bill forward. He said that, if the union wants $5 an hour and the company offers $1, at some point, they will have to meet somewhere in the middle. I do not know of any union in Canada that sets out to put a company out of business. I simply do not know of any.

A union, by definition, is made up of workers who get together, who elect an executive and give it the mandate to negotiate working conditions. They do not give a mandate to shut down the business. Therefore, there is no union that would make exaggerated demands that would eventually lead to the business shutting down.

In Canada, we have responsible unions and they have become business unions. So, when unions say to management that the company is making millions and hundreds of millions of dollars in profits and that the workers in other equivalent companies are earning 20 to 25% more than they are, and that the other companies are also making profits, obviously, in the next collective bargaining session, the workers will seek to negotiate financial advantages, and better working conditions, whether in pension plans or hourly wages.

The Canadian way of negotiation involves some give and take. The workers tell the employer that if the employer is making money, they will also negotiate for salary increases and better working conditions. If the employer is not making money, they will not ask for the moon. This is the attitude and the culture that have developed in Canada with respect to labour negotiations.

I was listening to my hon. colleague from the Bloc Quebecois who said that, in Quebec, they have a way of negotiating. It is true; they have a fine way of negotiating. Earlier, it was said that in Quebec they used back to work legislation. Still, there are two things to understand. In the private sector, the government does not intervene. The government may intervene in the public sector when services are involved, when people have no choice and no longer have access to public services. When the public has no access to health services, for instance, the government will say that that is enough and that since the parties are not able to agree, it will bring in back to work legislation. However, there are stages before that.

In Quebec, when public service unions decide to strike in order to negotiate, legislation requires that they implement and respect essential public services. Hospitals, CLSCs and schools cannot be closed just like that. The public must have access to essential services. When these services are not provided, then the government has the statutory right to intervene and say that, under the agreement, the other party must provide these essential services to the public, and since the latter is not respecting the legislation, the former will take statutory action to force workers back to work before bargaining can continue.

However, in the private sector, this legislation does not apply. There is a power relationship that absolutely must be established between the workers and the employer. That is the beauty of our system. Common sense will prevail during negotiations. Workers do not necessarily want to lose their jobs and the employer is not necessarily interested in shutting down. A middle ground will be found. There will be a conciliation officer and a mediator and, ultimately, there is a section in the Canada Labour Code under which the services of an arbitrator can be hired if the workers, the union and the employers all want one, while here, it is a statutory requirement. This is totally inappropriate. This means giving the government the legal power to intervene in private business and labour relations where it is has no business doing so.

We will vote against this bill because, currently, the Canada Labour Code provides all the tools needed to enable both parties to negotiate fairly and equitably. If they so desire, and give their consent, they have the power to appoint an arbitrator. On behalf of the Minister of Labour, we will be opposing this bill.

Final Offer Arbitration in Respect of West Coast Ports Operations ActPrivate Members' Business

February 16th, 2004 / 11:35 a.m.
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NDP

Dick Proctor NDP Palliser, SK

Madam Speaker, I am pleased to rise and speak on private member's Bill C-312, an act to provide for the settlement of labour disputes affecting west coast ports by offering final offer arbitration. The bill has been put before the House this morning by the member for Wetaskiwin.

The legislation says that the Minister of Labour would have the authority, without coming back to the House of Commons for any debate, to suspend the right to strike or lockout in the west coast ports or, where a strike or lockout has occurred to direct the parties back to work. Then, any outstanding settlement differences would be settled by final offer arbitration. The findings of the arbitrator would be binding without recourse to appeal.

I thought the member for Whitby—Ajax explained the shortcomings of the legislation quite well. She pointed out quite clearly that with this kind of a process there is a winner and loser environment that is inevitably created.

I am pleased to speak against Bill C-312 on behalf of the NDP caucus and indeed on behalf of working people across the country.

If there were 100 things that farmers in Canada would be worried about today, final offer arbitration would be 101 on their list of priorities. They have drought, low commodity prices, grasshoppers, mad cow, the fear of genetically modified wheat affecting their ability to export and they have incredibly high input costs. Final offer arbitration is not even on the Richter scale.

The NDP caucus contacted the president of the International Longshoremen's Association when Bill C-312 was coming back for discussion to see if there was something that we had missed in the process, some activity at the west coast ports that would lead to a labour disruption. We found out that, not only is there no strike or lockout being contemplated at the port, but for the first time since 1967, almost 40 years, all agreements between the longshore workers on the west coast and the employers have been negotiated without either a strike or a lockout. This is truly a case of trying to fix something that is not broken.

We are opposed to the bill. We continue to strongly believe that the right to withhold services is a legitimate and peaceful means of protest and has been for centuries. It is one of the most important democratic rights and freedoms of all working people. We are firmly opposed to any legislation that would erode any of these fundamental rights, as the bill certainly would do.

Nowhere in the bill are the parties encouraged to continue meeting to resolve their differences after the final offer arbitration process has begun. It does, as other members have noted, set up a winner and loser situation.

I say to the member who moved Bill C-312 that final offer arbitration may work for hockey and baseball stars who are negotiating whether their contract should be $8 million or $10 million. However, it will not work for ordinary people who have a whole lot of other concerns besides the size of the pay packet that they will receive.

I want to remind the mover of the bill that negotiators already have the options, if they so choose jointly, to move to final offer arbitration in any round of bargaining that they see fit. It is another arrow in their quiver. By introducing something like that, the other arrows are being taken out and it is saying that this is the way that the negotiations will continue henceforth.

It has been pointed out many times in the House, including last spring by the Minister of Labour, that almost all negotiations under the jurisdiction of the Canada Labour Code are resolved with no time lost, no strike, no lockout, and no labour unrest whatsoever. About 95% of all collective bargaining agreements are settled peacefully and amicably with both parties getting what they need out of the collective bargaining process.

It is a myth that the country loses significant productivity due to strikes and lockouts. There have been confrontations in the past. Changes sought by producers to address the needs of farmers were made to the Canada Labour Code. Section 87.7 of the Canada Labour Code prohibits secondary picketing at west coast ports.

As members have heard from other members of our caucus in the past, we think that far more time is lost on the job due to workplace accidents, injuries, and illness, than as a result of work stoppages.

We in the NDP are opposed to Bill C-312 for all of the reasons that I outlined. We think it is an imposition on the parties. They need to have more opportunities at their disposal and more arrows in their quiver than this straightjacket of final offer arbitration.

For all of those reasons, the New Democratic Party caucus will oppose Bill C-312.

Final Offer Arbitration in Respect of West Coast Ports Operations ActPrivate Members' Business

February 16th, 2004 / 11:15 a.m.
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Liberal

Judi Longfield Liberal Whitby—Ajax, ON

Madam Speaker, I am pleased to join in this debate on Bill C-312. The bill proposes that the Minister of Labour be given the power to impose severe constraints on the use of the collective bargaining process in Canada's west coast ports. The impact of this bill's passage would be to take away the right to strike, as well as the employer's right to lock out employees, and then to impose a winner takes all settlement process from the outside.

I do not support this bill. Its provisions are contrary to the principles of the Canada Labour Code and it fails to provide the flexibility needed to deal with the kind of complex labour negotiations that are typical in Canada's west coast ports. For example, clause 4 of the bill states that:

Notwithstanding the provisions of the Canada Labour Code, where the Minister is of the opinion that a strike or lockout in a west coast port poses an immediate and substantial threat to the economy of Canada, or to the national interest, the Minister may, by order,

(a) suspend the right to strike or lockout in that port; and

(b) when a strike or lockout has occurred, direct the employer to resume operations and the employees to return to work, as the case may be.

Clause 5 of the bill provides that when such an order is issued, the minister shall also give notice that “the dispute is to be settled” by a process known as “final offer arbitration”, or what is also called final offer selection. These are strong powers and they are not consistent with the spirit of the Canada Labour Code or the tradition of labour negotiations that has evolved in Canada over the years.

The Minister of Labour has said on many occasions that the best way to settle workplace disputes is to encourage the parties to find the solution that best meets their particular needs. The minister can facilitate this approach by providing a conciliator or a mediator, for example, but the objective aims to help the parties toward a shared solution, not to impose one from the outside. Experience shows that this approach works. In recent years, 95% of workplace disputes under the Canada Labour Code have been resolved without a work stoppage. It is not always easy to keep operations going while working toward a negotiated settlement, but clearly it is possible.

Our position maintains that the role of the Minister of Labour should not be to impose solutions in cases of labour disputes, and especially not to impose a process that would pick one side or the other in a dispute such as this bill proposes to do.

Instead, the minister's role should be to provide the kind of support that will move the parties toward a negotiated solution, such as the Minister of Labour provided in a recent case in west coast ports.

In the case of the Waterfront Foremen Employers Association of British Columbia and the International Longshore and Warehouse Union, Local 514, for example, a mediator appointed by the Minister of Labour was able to help the two sides come to a settlement in a long-standing dispute late last year.

Earlier in 2003, the B.C. Maritime Employers Association and the International Longshore and Warehouse Union resolved the renewal of their collective agreement in direct negotiations.

Complex negotiations like these call for flexibility in arriving at solutions that meet the needs of both employers and employees.

The final offer selection approach proposed in Bill C-312 would remove that flexibility and instead impose an arbitrary solution that would favour one side over the other. We do not believe the final offer selection approach is the right one for complex labour negotiations such as those involving the west coast ports.

Now let us examine more closely the final offer selection process. Typically, final offer selection requires one party to prepare a final offer for resolution of all outstanding issues in a dispute. The two sides then submit their final offer to an arbitrator or selector. The selector is then required to choose the complete package from one side or the other, either the union's final offer or the employer's.

There could be variations in the process, but the model is based on the selector being obliged to choose the final proposed solution of one party or another. This approach might have some merit in cases where there is only a single economic issue, such as wages, for example.

However, most labour negotiations involve more than a single issue. The issues involved usually go well beyond wages and can include a broad range of matters such as work rules, vacation entitlements, pensions and so on. Negotiating a settlement in situations like this can be tricky. There is usually a lot of back and forth negotiation involved. Flexibility remains a very important aspect of the process.

In the recent cases involving west coast ports, for example, agreements were achieved because a federal employment mediator was able to go in and work with the parties to find common ground and then build from there to find an eventual solution. In cases like this wages may be only one of the issues that come up, but wages are not the most important in some cases.

Final offer selection by definition must pick one side over the other, and it does not allow for negotiations and compromise between parties. In other words, it sets up a process that prevents the trade-off between parties that can be key to achieving overall agreement. In addition, by setting up a process whereby one side in a dispute puts forth its final bargaining position and an arbitrator picks one over the other, the final offer selection approach creates a scenario where there is a clear winner and a clear loser. That is not usually a good recipe for harmonious workplace relations in a post-settlement period.

I understand the frustration that comes when workplace disputes threaten the economic lives of others, but I do not believe that final offer selection is the way to resolve these situations. In recent workplace experience, Canada's west coast ports achieved a mediation by working together, by one party working with the other to resolve their disputes. Adopting the final offer selection approach would divert us from this tried and true method to dispute labour resolution. This is at the very heart of the Canada Labour Code.

Does it mean that we would deny employers and employees the right to choose final offer selection if they believe it is right for them? No. In fact that option is available to them now. However, as a matter of practical experience, it is rarely used. The fact that parties themselves choose to settle the terms and conditions of work through some process other than final offer selection, when it is an option available to them to choose freely, suggests to us that there is something wrong about the final offer selection that does not meet the needs in terms of an acceptable bargaining process.

The House has considered the issue of mandatory final offer selection before. It seems that these ideas are often brought forward with regard to a particular workplace dispute, but these ideas do not usually develop any momentum in the long run, especially if a negotiated settlement is achieved through using our existing bargaining system.

On the issue of final offer selection, the government's position has been consistent. We do not deny any employer or employee group the right to choose final offer selection if it feels it meets its needs, but I do not see an approach that should be mandated under the Canada Labour Code as desirable. Therefore, I do not support the bill.

Final Offer Arbitration in Respect of West Coast Ports Operations ActPrivate Members' Business

February 16th, 2004 / 11:05 a.m.
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Canadian Alliance

Dale Johnston Canadian Alliance Wetaskiwin, AB

moved that Bill C-312, an act to provide for the settlement of labour disputes affecting west coast ports by final offer arbitration, be read the second time and referred to a committee.

Madam Speaker, first let me congratulate you on your appointment as Acting Speaker and Chair of Committees of the Whole. I believe you will do a great job.

Work disruptions at west coast ports have become economically devastating to Canada's economy over the last 30 years. I would like to point out that agriculture has just come through two years of drought and seven months of BSE. Agriculture is absolutely devastated. If agriculture continues to suffer losses unnecessarily and people cannot get their goods to market, there will be a tremendous impact on the entire Canadian economy through a virtual collapse of the western Canadian agricultural economy.

From time to time we have disruptions at west coast ports. The way Parliament deals with this inevitably is through back to work legislation. Of course, back to work legislation does nothing to improve labour management relations or to resolve the outstanding issues. This is a tool that I think can be used equally by both parties, management and labour unions, to settle disagreements.

Some of the critics of the bill have said that it unduly harms labour in that it takes away their right to strike. I would like to point out to them that it takes away the need to strike. There is no need to strike if people can arrive at a negotiated settlement. It also takes away the ability of management to lockouts. It is a fair tool to be used in both situations.

It is something that agriculture needs. It is like a right of spring. Every year we can count on some kind of labour disruption happening at the west coast ports that tie up farmers' grain and other things that are especially significant to Canada's economy.

Part I of the Canada Labour Code does allow for the continuation of grain shipments from the port during a strike or lockout but that only applies to grain that is actually in the port. It has no effect on grain that is arriving at the port or even just a couple of miles away from the port on the train. That is really what the bill would resolve. It would empty the terminal. That is all it would do. There might be enough grain to load part of a ship but there will certainly not be enough grain to have an impact on farmers' livelihoods.

What we are trying to do is come up with a resolution, something that will resolve the dispute that will encourage both sides to bargain in earnest. If final offer selection is used to its ultimate conclusion, the result will be that there will be no need for a strike, that work can continue on and that both sides can continue to negotiate. If they come to an impasse, then they list all the things they agree on, all the things they do not agree on and they agree on an arbiter who takes the final offer and the things that are not agreed upon.

This looks to me like a fairly reasonable compromise. It seems in Canada one of the things we do is compromise. The whole idea behind this is to force a settlement to prevent being locked out or having to strike. I cannot for the life of me believe that anyone would enjoy going on strike or being locked out, or being an employer in a position where it feels that its only alternative is to lock out its employees. I do not think that is anybody's first choice.

Final offer selection puts the onus on both parties to bargain earnestly and honestly and to arrive at a solution.

I think it is interesting to point out that the Canadian government has imposed final offer selection arbitration while it has settled a dispute. It settles a dispute and says we will come back to Parliament. Parliament has even been recalled in order to pass back to work legislation. Part of the back to work legislation, from time to time, has been final offer selection. Workers are ordered back to work and have no choice but to go back to work and put the final offer on the table; matters were settled that way. I would not think that anyone in the government would have any problem supporting this measure today, because it is something it has used in the past.

We are certainly not trying to take anything away from the unions' right to negotiate or to arrive at a good deal, a deal that will satisfy everybody. We are not trying to short-circuit the method here. What we are encouraging is sincere negotiations and negotiations that come to a conclusion. If they do not come to a conclusion, there will be a mechanism put in place to make sure that an agreement is eventually reached.

A big beneficiary of this is the economy of the country, and certainly agriculture, in that the west coast port continues to operate while negotiations go on.

The last time we had a work disruption at the west coast port, it cost us in the neighbourhood of $90 million a day. It is always hard to nail down exactly what these sorts of things cost us in the long run as far as future sales are concerned or customer confidence or any of that. Just in direct costs it was estimated that it cost the Canadian economy $90 million a day. At a time when western farmers have gone through two serious years of drought and have had to sell off their herds at bargain basement prices because of BSE problems, I would suggest that this is a timely piece of legislation which we should consider and pass so that farmers have one less thing to worry about.

I have presented the bill in the House before. I am pleased to see that under the new rules the bill will now be votable. I have not been successful in the past in making my case to have the bill votable. Now it is going to be, so I encourage all members of the House to support this initiative to make sure that the grain movement at the west coast ports has an opportunity to flow and that the people who produce that grain have an opportunity to sell their goods.

Western Canadian grain farmers have been hit time and time again with strikes. Usually it is at a time of the year when they are trying to empty their bins to get ready for seeding that there is some kind of work disruption. Either the employer locks out the employees or the workers decide to, as they say, wobble the job. The result is that workers have to go on strike pay, the employer has to try to get by using managerial staff to load the ships, and the person who really gets hit in the neck over all of this is the producer.

This is a bill that is fair. It gives everyone an opportunity to negotiate. They can even negotiate while the work is carrying on. There would be no work disruption, no loss of revenue to those people who are employed there, no loss of revenue to the port authority, no demurrage charged unnecessarily against the producers, and the producers would have an opportunity to get their grain to market, get it onto the ship and onto the high seas.

In a hungry world, I think it is important that we consider this bill. Also, I point out that the farmers in western Canada are getting a bit hungry these days as well in the way that things have shaped up against them from December until now. Cattle prices in Alberta have declined by almost 50%. There are many people who are hurting very badly over this. We do not need to compound the problem as a result of not taking some responsible action in the west coast ports.

I look forward to hearing what my colleagues have to say in this regard. Again, I encourage them to support western Canadian agriculture and to support the bill to resolve west coast ports disputes.

Final Offer Arbitration in Respect of West Coast Ports Operations ActRoutine Proceedings

November 21st, 2002 / 10:05 a.m.
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Canadian Alliance

Dale Johnston Canadian Alliance Wetaskiwin, AB

moved for leave to introduce Bill C-312, an act to provide for the settlement of labour disputes affecting west coast ports by final offer arbitration.

Mr. Speaker, for quite some time now, since August 25 to be exact, 650 grain workers have been locked out of the port of Vancouver. Grain handlers have been working without a contract since January 1, 2001, nearly two years. Therefore, the bill would do something to alleviate that situation.

At a time when western Canadian farmers have suffered through one of the worst droughts in Canadian history and one of the poorest harvesting seasons when what they have managed to grow they have not been able to harvest, now they are trying to market some of their tough and damp grain through the Port of Vancouver but are unable to get it there and it is rotting in their bins. It is time something was done about this and my bill seeks to rectify that problem.

(Motions deemed adopted, bill read the first time and printed)