Bill C-415 (Historical)

An Act to amend the Canada Labour Code (replacement workers)

The purpose of this enactment is to prohibit employers under the Canada Labour Code from hiring replacement workers to perform the duties of employees who are on strike or locked out. It extends the obligation to maintain essential services.
The enactment also provides for the imposition of a fine for an offence.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I want to reiterate some of the procedural arguments I raised originally, and I want to speak to Mr. Owen's point.

Yes, I totally agree there's at least an apparent contradiction in what we're doing here, because of the Speaker's ruling that Bill C-415 contained elements of the bill that are beyond the scope of Bill C-257. One could then argue--as have Mr. Owen, Madam Robillard, and Ms. Davis--that this clearly means they are two different bills. I think that type of situation perhaps has to be addressed, but at some time in the future. I don't think it's incumbent upon this committee to try to address that situation right now. I agree there seems to be a bit of a problem there, and somehow Parliament has to work out a system in which there can be consistency rather than inconsistency in a ruling of a Speaker, as opposed to a ruling of a subcommittee. However, I don't think this committee is charged with that responsibility right now.

What we have is a situation where the subcommittee, charged with the responsibility of determining votability or non-votability, came back with its decision that Bill C-415 was non-votable. I would like to have been part of the discussion, or at least had knowledge of the decision and how the subcommittee came to it. Obviously Mr. Silva would like to know that as well. If we had been able to understand the decision-making process, it might have made this discussion at little easier and perhaps influenced some of the members a little more appropriately.

But we don't have that luxury, and we always need to remember that a decision made by a subcommittee really should not be overruled unless there is overwhelming and compelling new evidence and new information, and it can be demonstrated that the subcommittee was perhaps unaware of it at the time of their decision. I don't think it's sufficient to just say we disagree with the decision of the subcommittee, for whatever reasons. It is incumbent upon this committee, if they wish to overrule the subcommittee's decision, to come up with some very substantive reasons why--not just “I disagree”, but that they erred in terms of substance or lack of information, or they had some piece of information denied them that might have changed their decision-making process.

I am convinced, without the benefit of knowing what happened in that committee, that the subcommittee took its work seriously, examined all aspects of the two bills in question, and came up with a majority ruling that should be upheld by this committee.

I would also point out the obvious: that the subcommittee is comprised of members from all four political parties. So there really isn't an argument to be made that they were unduly influenced by one political party, one political view. Some members of that subcommittee represent parties that like replacement worker legislation, some don't like it, and some are divided. But representatives from each of the four political parties carefully considered the question and came up with a ruling.

Before anything else, we should take the view that we will respect the subcommittee's decision unless there is overwhelming evidence to suggest they did not have possession of information that could have changed their decision. I've yet to see any discussion at this table that suggests to me they did not have all of the information at their disposal. I believe they did. I believe they carefully considered both Bill C-257 and Bill C-415 and came to a decision that they thought was the correct one.

I also want to point out that from a procedural standpoint there is a reason why private members' bills are only allowed to be brought forward once in a session. I don't know how many years this replacement worker legislation has been brought forward, but I think similar bills have come forward before Parliament about eleven times. They have been voted against every time.

Several times, I'm sure, when the Liberal Party was in government, they would have considered replacement worker legislation that came before them, even in private members' legislation. I'm sure if we went back to the voting record of some of the members on this committee, we would find that they voted against replacement worker legislation. Everything being equal, they certainly have a perfect right to change their minds and vote in favour of a piece of legislation that they previously voted against.

The point is that private members' bills should only be brought forward once every session, and this is substantively the same bill, even though there are elements of it that are quite clearly different. The essential services portion of this private member's bill is different, but I believe it is substantively a similar bill, and only one bill of its kind can be discussed in one session.

However, Mr. Silva's recourse, as correctly pointed out by the chair, is that there is yet another option. That is to bring this for appeal to the entire Parliament, where that bill can be voted upon by secret ballot. I think we need to respect the procedures we currently have in place and the decision of the subcommittee, because they do not deny Mr. Silva the right to further pursue his quest to get this bill deemed votable. He can still take it.

Frankly, if the general will at that time is completely out of the hands of this committee and in the hands of all parliamentarians, it will almost be like having a vote on the original bill. I'm quite sure that if a majority of the House deems this bill to be votable, when the bill comes to an actual vote you will see the same results.

So I think Mr. Silva does have options before him, and therefore I do not think this committee needs to overrule a carefully considered decision by a subcommittee.

Thank you, Chair.

[Pauline Picard, Bloc, Drummond, QC]

Mr. Chair, I would like to re-establish some facts. The subcommittee was divided on the question of whether it was votable or not. In my view, it was votable because it was different from Bill C-257. Bill C-415 deals with essential services while Bill C-257 does not.

We wanted to make amendments, as Ms. Robillard explained. The Speaker said that that exceeded the scope of the bill. We came back with a bill that dealt with replacement workers, and that in addition dealt with essential services, which was not the case for the other bill. At the subcommittee, we were not in agreement because the chair had to make the decision. That is what happened. I am still in favour of Bill C-415.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you, Mr. Chair.

I want to advance a procedural argument. It is to say that the subcommittee had already ruled on this. Obviously the discussion the subcommittee had was in camera, so we're not privy to what their discussions were and why they came up with the decision they did; suffice it to say that they determined this bill was non-votable. Even though Mr. Silva has a perfect right to appeal to this committee, the larger committee, I think we should advance with a great deal of caution, because clearly there are political agendas at work here. It's no secret that the NDP would like to see this bill enacted in any form, because they don't want to see replacement workers during a strike under any circumstances.

For a standing committee to overrule a decision by a subcommittee is something we should take very seriously. Unless there is an entirely compelling reason for us to overrule it, I think we are bound to uphold the ruling of the original subcommittee. That's why they were put in place--to decide these matters, to begin with. Unless arguments can be advanced to demonstrate clearly that the subcommittee did not consider a certain aspect or a certain argument, I don't believe this committee should be in a position to arbitrarily overrule the subcommittee decision just because they have a political agenda at work.

Again, we are at a bit of a disadvantage because we don't know the discussion that took place--it was in camera--but I do feel comfortable that the subcommittee carefully considered both Bill C-257 and Bill C-415, spent a great deal of time examining the criteria established as to votability and non-votability, and came up with a decision based on those criteria. For this committee to arbitrarily say we want to overturn that because we like the bill in whatever form it may take is something we should avoid.

I believe the subcommittee did its work. I have not yet heard an argument around this table that demonstrates to me that there was an aspect of the bill that was not considered by the subcommittee; therefore, if they did their work with all due diligence, I think we should respect their opinion and their decision.

Thank you, Mr. Chair.

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

I'd like to start off by thanking Mr. Silva for coming to make his presentation today and for trying to shed some light on this.

I know my colleague Mr. Reid is talking about the two different sets of standing orders that are driving this.

It's my thought, and I think it's accurate, that Bill C-415 is substantially similar to Bill C-257 in the sense that they both have the same stated purpose. They're both acts to amend the Canada Labour Code for the use of replacement workers in a strike. If on the surface that doesn't make them substantially similar, and we only have to meet a criterion of substantially similar, they both attempt to accomplish the same thing, which is the use of replacement workers in the case of a strike. Full stop.

That starts me off by saying we've already met the criteria. They are substantially similar because they're trying to accomplish the same thing. But let's take it a little further.

In this case, I'll take the example of two beautiful, candy-apple red Mustangs sitting in a parking lot. I know that I love them both, and I'll even take the red colour. One has a CD player, and of course, the other has a satellite radio. They have some different options, but I think anybody looking at them would say the two cars are substantially similar, even though they have a couple of different options.

I look at these two bills in a similar way. They accomplish the same thing. They look to accomplish the same thing. They are substantially the same thing. There are a couple of different options built into one.

To address the other piece, I know Mr. Reid has the standing orders that talk about this. But talking about the Speaker ruling it out of order in the case of Bill C-257 or ruling it in order in the case of Bill C-415, it's exactly that. It's ruling it in order or out of order; it's not ruling it votable or non-votable.

Many bills that come forward in this House are ruled in order and out of order. They're still discussed during private members' business to the point of talking about which way they were voted on. It can certainly be in order in the sense that it's in order and it can be discussed in the House.

But the criterion of the subcommittee on private members' business and the work of this committee today is on whether it is votable or not. It's not whether it's in order or not. The Speaker rules on whether or not it's in order. This committee is only ruling on the fact of whether or not it's votable at the end of the day because it is substantially similar to another bill that we've already voted on in this House.

I give to you the point that it is, and I'll stop at that point.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you, Chair.

Through you, thanks to Mr. Silva for being here and putting forward such a cogent brief for us to be able to crystallize exactly what we're talking about and to understand what's occurred.

Yes, there may be slightly different criteria that the Speaker would use and the subcommittee on votability would use. Although there seems to be a stunning contradiction if we say the amendments to Bill C-257 were out of order and went beyond the original scope of the bill, yet we also say Bill C-415 is non-votable because it's substantially the same. There seems to be a logical gap there for amendments being beyond the scope of the bill, and the new bill that actually seeks to put forward those amendments is not substantially different.

Perhaps Mr. Silva can comment on it. If I understand his presentation correctly, we seem to have two contradictory results. If it's within the power of this committee to correct what would be an illogical situation, I think we should discuss if it is possible to do that.

[Mario Silva, Liberal, Davenport, ON]

That's quite all right, Mr. Chair.

I'm here basically to appeal to the wisdom of this committee to in fact have my bill proceed in the House.

As I was mentioning to you, Mr. Chair, I had quoted the government House leader. The Speaker now has, also in relation to my amendments to Bill C-257, basically said that the amendments deal with three sections in the Canada Labour Code: section 87.6, section 94, and section 100. The section dealing with essential services was basically dealing with section 87.4, which is the provision on essential services.

Basically, the Speaker concluded that, “Therefore, on strictly procedural grounds, the Chair must conclude that the ruling of the chair of the committee was correct: these last two amendments do go beyond the scope of the bill as adopted at second reading and are therefore inadmissible.”

In other words, the Speaker declared that by “importing the new concept of essential services” and by seeking to “reach back to the parent act and import into Bill C-257, the terms of reviews of orders made by the board under subsection 87.4(7), concepts not found within the bill as adopted at second reading”, the amendment went beyond the scope of the original bill. Therefore, in order to address these issues, an entirely new bill would need to be drafted to incorporate these concepts.

As noted, Bill C-257 and Bill C-415 both address the issue of banning replacement workers, but they do so by using different means. And Bill C-415 is larger in scope than Bill C-257.

According to the ruling in 1989 by the Speaker of the House, a bill that addresses the same subject but achieves its goals by different means is sufficiently distinct to remain votable.

In a 1989 ruling, Speaker Fraser clarified that for two or more items to be substantially the same, they must have the same purpose and they have to achieve their same purpose by the same means. Thus, there could be several bills addressing the same subject, but if their approaches of the issues are different, the Chair could deem that to be sufficiently distinct.

This is from page 898 of Marleau and Montpetit, lines 23 to 27.

Bill C-415 meets the requirement of uniqueness and should remain votable. Given all the evidence, it is clear that Bill C-415's inclusion of the two essential service amendments makes it distinct from Bill C-257, by the Speaker's own ruling. The rules of the House clearly dictate that bills dealing with similar issues but addressing them using different means are votable.

The Speaker of the House, upon examination of the amendments, ruled them to be out of order, as were the amendments that I put forward. But dealing with section 87.4, which is a new section, in fact, makes this bill, in my mind, votable.

Given all these facts, I appeal to this committee to agree that Bill C-415 proceed and is in fact votable.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Mr. Chairman, I'm having trouble finding this. Is this being reported separately from the one on Bill C-415? Is that correct?

Bill C-415--Canada Labour Code--Speaker's Ruling

[The Speaker, Liberal, Peter Milliken]

The Chair is now prepared to rule on the point of order raised by the hon. Leader of the Government in the House of Commons on May 1, 2007, concerning Bill C-415 standing in the name of the hon. member for Davenport and Bill C-257 which, until recently, stood on the order paper in the name of the hon. member for Gatineau. Both bills amend the Canada Labour Code in relation to replacement workers.

I would like to thank the hon. Government House Leader for raising this matter, as well as the hon. member for Scarborough—Rouge River for his intervention.

The hon. government House leader began by reminding the Chair that it has already been obliged to rule on the issue of the similarity of another bill, Bill C-295, to Bill C-257. He commented that Bill C-415 is thus the third bill banning the use of replacement workers introduced in this Parliament alone.

The hon. government House leader expressed the view that Bill C-415 and Bill C-257 share the same purpose, namely, the banning of replacement workers; that they both accomplish this purpose by amendments to the Canada Labour Code; and that they differ only in one clause and one subsection. He reminded the Chair that Standing Order 86(4) prohibits the consideration of two items of private members' business “so similar as to be substantially the same” and cited House of Commons Procedure and Practice, at pages 476 and 477, to the effect that, “two bills similar in substance will be allowed to stand on the Order Paper but only one may be moved and disposed of”.

The hon. government House leader referred again to the ruling delivered on November 7, 2006 with respect to the alleged similarity between Bill C-257 and Bill C-295. He argued that the principle underlying the Chair's decision not to allow further consideration of Bill C-295, that the two bills “have exactly the same objective”, is equally applicable to Bill C-257 and Bill C-415. He dismissed provisions of the latter bill safeguarding essential services during a strike as ancillary to its purpose and cautioned the Chair that a decision to permit further consideration of Bill C-415 would amount to a revisiting of its ruling on Bill C-257.

In his brief submission, the hon. member for Scarborough—Rouge River pointed out that a determination, pursuant to Standing Order 91.1(1), by the Subcommittee on Private Members’ Business of the Standing Committee on Procedure and House Affairs with respect to the votability of Bill C-415 is imminent and may be material to the disposition of this point of order.

Having reviewed these submissions with care, the Chair takes the view that the fundamental question before it may be phrased this way: Would any motion or decision of the House in connection with Bill C-415 be out of order because of the bill's similarity in substance to Bill C-257?

Of considerable relevance in this regard is the ruling delivered on February 27, 2007 with respect to the admissibility of several amendments to Bill C-257 adopted by the Standing Committee on Human Resources, Social Development and the Status of Persons with Disabilities. It was the hon. government House leader who presented so persuasive a case against the admissibility of those amendments that the Chair accepted his arguments. Ironically, his very persuasiveness on that occasion presents considerable difficulty to the case he is making today.

Two of these amendments to Bill C-257 provided for the maintenance of essential services in terms similar to specific provisions found in Bill C-415 and, of course, not originally included in Bill C-257. My ruling determined that these amendments exceeded the scope of Bill C-257 and I declined to accept arguments that they served only to clarify the bill's provisions with respect to replacement workers.

On April 28, 1992, at page 9801 of the Debates, Mr. Speaker Fraser warned that a committee:

—cannot go beyond the scope of the bill as passed at second reading, and it cannot reach back to the parent act to make further amendments not contemplated in the bill no matter how tempting that may be.

In his point of order, the hon. government House leader claimed that the two bills “have exactly the same objective”, relying in part on the fact that both bills accomplish their objectives by means of amendments to the Canada Labour Code. While this is certainly the case, only Bill C-415 amends section 87.4 of the Code which deals with the concept of essential services. It thus incorporates provisions not originally contemplated in Bill C-257 whose scope, as confirmed by my earlier ruling, was judged to be limited to measures regulating the use of replacement workers during a strike. In the view of the Chair, the amendments to section 87.4 of the Code included in Bill C-415 also invalidate any claim that the two bills, in Mr. Speaker Fraser's words, “obtain their purpose by the same means”.

A bill regulating the use of replacement workers need not deal with essential services. Providing for essential services in the event of the strike could quite legitimately have been the objective of a separate bill. Because of the inclusion of essential services in it, Bill C-415 has a broader scope than Bill C-257, despite similarity in addressing the issue of replacement workers.

Consequently, in fulfilling its duty pursuant to Standing Order 86, the Chair does not find that Bill C-415 is substantially the same as Bill C-257 and accordingly, the consideration of Bill C-415 may proceed.

I would like once again to thank the hon. government House leader for bringing this matter to the attention of the Chair.

Bill C-415—Canada Labour Code

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, I have two very short points that may be helpful or not helpful, depending on the outcome.

First, Bill C-257 is not now on the order paper. Bill C-415 is. Therefore, there is not, on the face of the order paper, a conflict between these bills.

Second, you will probably be aware that the private members' business bundle of which Bill C-415 forms a part is still yet to go through a private members' business subcommittee, a procedure that would look at all private members' business for votability. It might be that your decision could await the outcome of that procedure, which I believe is imminent. I do not believe that any of these new bills in the private members' business envelope will be coming before the House in the imminent future. They will come at a later date.

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, this is a point of order regarding Bill C-415, An Act to amend the Canada Labour Code (replacement workers).

I would first like to point out that bills to ban the use of replacement workers have been introduced six previous times since 2004, and defeated twice. In this Parliament alone, it is the third attempt at similar legislation, and the House has already voted against this idea.

Given that this bill is virtually identical to Bill C-257, with only one new clause and one new subsection, I would ask that you, Mr. Speaker, clarify two points.

First, I would ask for you to clarify whether it is in order for Bill C-415 to have been introduced. Standing Order 86(4) provides that the Speaker is responsible for determining whether two or more items that are similar can be placed on notice.

Mr. Speaker Fraser stated, on November 2, 1989, that a bill would not be placed on notice if it had the same purpose as another private member's bill before the House and if it met this purpose by the same means as that other bill.

Bill C-257 and Bill C-415 clearly have the same purpose, namely to ban the use of replacement workers. They also seek to meet this purpose by virtually the same means. They both amend the Canada Labour Code and are identical apart from one clause and one subsection. They contain the identical paragraph in their summaries, stating that their purpose:

—is to prohibit employers under the Canada Labour Code from hiring replacement workers to perform the duties of employees who are on strike or locked out.

Since Standing Order 86(4) does not specify that bills must be identical but they must “so similar as to be substantially the same”, I submit that Bill C-415 is so similar as to be substantially the same as Bill C-257, and I would ask that you, Mr. Speaker, clarify this issue for the House.

The second issue on which I request your ruling is whether this bill can be called for debate and vote. Marleau and Montpetit indicate at page 495:

A decision once made cannot be questioned again but must stand as the judgement of the House. Thus, for example, if a bill or motion is rejected, it cannot be revived in the same session.

Allowing Bill C-415 to proceed to a vote would be inconsistent with this rule and with the rule of anticipation. As Marleau and Montpetit note, at page 476:

—two bills similar in substance will be allowed to stand on the Order Paper but only one may be moved and disposed of. If the first bill is withdrawn, the second may be proceeded with. If a decision is taken on the first bill, the other may not be proceeded with.

On November 7, 2006, respecting Bill C-257 and Bill C-295, you ruled that the second bill could not proceed because:

—a careful examination of both bills reveals that they have exactly the same objective, that is, to prohibit employers under the Canada Labour Code from hiring replacement workers to perform the duties of employees who are on strike or locked out.

There we were dealing with a question of similar legislation. Bill C-295, Bill C-257 and Bill C-415 are aimed at the same objective on replacement workers.

I would argue to you, Mr. Speaker, and suggest to you with respect, that your ruling on November 7, 2006, applies equally in this case to Bill C-415. You indicated that you were at the time ruling on the issue bearing in mind Mr. Speaker Fraser's ruling of November 2, 1989.

I reiterate that Bill C-415 has exactly the same objective as Bill C-257, which the House rejected at report stage on March 21. As a result, allowing Bill C-415 to proceed would mean that the House would reconsider its decision with respect to Bill C-257.

The purpose of Bill C-415 is exactly the same as that of Bill C-257, namely to prohibit employers under the Canada Labour Code from hiring replacement workers to perform the duties of employees during a strike or lockout.

Bill C-415 seeks to do so by the same means as Bill C-257, namely by amending subsection 94(2.1) of the Canada Labour Code.

Members opposite may suggest that the bills are not similar and that Bill C-415 differs because it refers to the preservation of essential services during a strike. However, I submit to you, Mr. Speaker, that is not the purpose of the bill. The purpose of the bill is to ban replacement workers.

The apparent difference from Bill C-257 is not in fact a material one. Bill C-415 would not create a new category of essential services. Nor would it designate a group of workers to perform this work. Rather, it simply recasts as “essential services” existing provisions in the Canada Labour Code, which obliges services to be maintained during a strike or lockout in order to “prevent an immediate and serious danger to the safety or health of the public”.

Since Bill C-257 would not have affected these existing protections in the code, simply adding a provision about essential services to Bill C-415 does make it substantively any different than Bill C-257.

Therefore, the purpose of both these bills is simply to ban the use of replacement workers. As I have already indicated, Bill C-415 does not alter the means to use to achieve this purpose which is primarily by amending section 94(2.1) of the Canada Labour Code.

By allowing Bill C-415 to proceed, Mr. Speaker, you will be asking the House to revisit its decision on Bill C-257, which is not permitted. I submit that it should not be called for debate or for a vote and would ask that you rule on that question.

Canada Labour Code

[Mario Silva, Liberal, Davenport, ON]

moved for leave to introduce Bill C-415, An Act to amend the Canada Labour Code (replacement workers).

Mr. Speaker, after months of consultation with labour groups, I am pleased to stand today to introduce my private member's bill, an act to amend the Canada Labour Code. The purpose of my bill is to ban replacement workers.

My bill would prevent federally regulated employers from employing replacement workers during strikes and lockouts.

Furthermore, my bill would ensure clarity and protect essential services for Canadians during labour disruptions because, in many instances, the nature of the services provided by federally regulated workers are essential to protect the health and safety of Canadians.

It is our responsibility to protect the interests of all Canadians and it is important to have the words “essential services” in any bill banning replacement workers.

I have been, and will continue to be, a strong advocate for Canadian workers and their rights. I encourage all members to support the bill.

As members of the House and my constituency know, from my time as a Toronto city councillor I have worked tirelessly for a fair wage policy. During my time in Ottawa, I have demonstrated my belief that elected officials have an--

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