Bill C-525 (Historical)

Employees' Voting Rights Act

An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act (certification and revocation — bargaining agent)

This enactment amends the Canada Labour Code, the Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act to provide that the certification and decertification of a bargaining agent under these Acts must be achieved by a secret ballot vote-based majority.

[Hassan Yussuff, President, Canadian Labour Congress]

Thank you for the opportunity to appear before you today.

The Canadian Labour Congress, of course, is the single largest democratic and popular organization in this country. It speaks on national issues on behalf of 3.3 million workers. It represents more than 50 national and international unions in Canada. The Canadian Labour Congress strongly, of course, supports Bill C-4, restoring balance, fairness, and stability to federal labour relations.

From the beginning, the CLC opposed Bill C-377 and Bill C-525 as flawed, ideologically motivated legislation. These private members' bills represented a fundamental and a dangerous attack on the rights and freedoms of working people in Canada to organize unions free from outside interference. These bills were developed without consultation with the labour movement. They threatened to polarize federal labour relations and fundamentally tip the balance between employers and unions.

Historically, changes to the federal labour relations regime have been incremental, based on careful study and research, and developed through extensive consultation with unions and employers. Bills C-377 and C-525 were the complete opposite. Bill C-377 was drafted and introduced without consultation with unions. The bill lacked any credible labour relations or public policy rationale. Bill C-377's purpose was to single out, interfere with, and weaken the unions.

No public company, registered charity, or non-profit organization has to disclose confidential or extremely detailed information, only unions. None of the organizations whose members can deduct professional fees, such as bar associations, medical associations, engineers and, of course accountants, were targeted, only unions.

Seven provinces and numerous constitutional experts warned that Bill C-377 interfered with provincial jurisdiction over labour relations. Experts in constitutional law pointed out that the bill violated the rights of workers under the Charter of Rights. Conservative senators warned of the serious risk to personal privacy and to thousands of individuals unintentionally put at risk by the bill, and so on.

Unions routinely issuing financial reports to their members in nearly all jurisdictions in Canada have laws entitling members to financial statements.

Bill C-377 would have cost taxpayers millions of dollars to spy on and/or punish unions. This is purely for the benefit of union-busting employers and the anti-union crusaders.

Bill C-377 was flawed as an offensive attack on unions and the constitutional rights of working people. We commend the new government in Canada for repealing it.

Bill C-525 was also drafted without consultation and without convincing justification. FETCO, the association of large employers under federal jurisdiction, did not claim there were problems with automatic card check certification. FETCO did not identify any problems with card check certification before or even during the debate on Bill C-525. Blaine Calkins, the sponsor of Bill C-525, justified the bill by referring to union intimidation in organizing drives and the mountain of complaints that end up at the labour relations board. In fact, most cases of intimidation and unfair labour practice during the certification process across Canada involve employers. Eliminating automatic card certification and imposing mandatory voting have nothing to do—

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Thank you, Mr. Chair.

There's a point that I would like to make sure is also considered in this discussion, and it is that the clauses in the bill do not dictate whether it would be one way or another at certifying. In fact, it gives the opportunity to the Public Service Labour Relations and Employment Board to determine that, based on what is most appropriate at the time, so it doesn't restrict it to one or the other.

As well, the key issue here is that there is another bill before the House, Bill C-4, which has the intention of restoring the certification and decertification options and processes that were in place for employee groups before they were changed by the previous government through Bill C-525.

There is a Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities. It has the responsibility for reviewing Bill C-4, so these discussions about whether Bill C-4 is preferable to the previous government's Bill C-525 on these matters are going to have a full airing at that committee. That's where I think we should leave it.

[Wayne Long, Liberal, Saint John—Rothesay, NB]

Just for the record, CLAC, an Alberta union by and large, I think, gave testimony in earlier hearings. They are very much opposed to Bill C-525 and said the card-check system was a system that worked.

Again, Professor Slinn, you did such a good job on your presentation I guess I'm focused on yours, but I'd like you to elaborate on why you believe the card-check system is an unreliable measure of employees' wishes.

[Dr. Sara Slinn]

Again, between the period when the employer has in all cases been notified by the labour board that an application has been made and the time that the vote is held, in virtually all jurisdictions in Canada there is a time limit for that of between five and 10 working days.

The procedure Bill C-525 brought in has no time limit at all, so potentially it is a very long time period.

We also found in some of our research that this time limit was often not very well enforced by labour boards. Even though the statutory requirement was for five or 10 days, for example, it could often be significantly longer. We found that in that time period unfair labour practices did occur and they had a very strong effect on discouraging certification.

How this happens, is again, the employer has been notified that there's a certification vote and has a substantial period of time, a number of days, where they can communicate with employees. Unions do not have a reciprocal ability to contact and communicate with workers. For example, workplace organizing is illegal for unions to engage in; that is an illegal unfair labour practice. It provides a substantial period of time when the employer has unparalleled access to employees to have their views communicated.

[Wayne Long, Liberal, Saint John—Rothesay, NB]

Okay.

There's another thing just for the record. I know that Mr. Barlow was talking about how every union member he talks to is pro Bills C-377 and C-525. You know, the Saint John firefighters, IBEW, the pipefitters, operating engineers across the country—I haven't found anybody who does support it.

I have another question for you, Professor Slinn. Many opponents of the mandatory vote argue that if a secret ballot is good enough to elect our provincial representatives, it should be good enough for workers in deciding whether to unionize or not. Can you comment on that?

[John Barlow, Conservative, Foothills, AB]

Thank you very much. It's good to be here, Chair, and good to meet all of you as well. I haven't had a chance to say hi to everyone, but thanks for having me today.

Thank you very much to our witnesses for spending some time with us today.

Andrew, I want to ask you some questions first. I kind of want the Canadian input.

We've talked a lot today about employers and unions, but we haven't talked a lot about union or potential union members. I think what this really should be about is what is best for union members.

From what I've heard from residents of my constituency, whether they're in carpentry or mining, or pipefitters in the oil and gas sector, they liked what was in Bill C-525 and Bill C-377. It could certainly be different in other communities. We did some pretty substantial polling, and we saw that well over 80% of union members supported the changes that were in these two bills.

I'm wondering if anything has been done more recently. I think our poll was 2014. How do we come up with saying we don't want these things, when the word we're getting from union members is that this is something they do want?

[Dr. Sara Slinn]

Thanks very much.

I'll focus my comments on the representation procedures, reflecting my research experience in this area, and will address two aspects of these procedures: the nature of votes, and the academic research on the effect of choice of procedure on certifications.

In terms of the nature of representation votes, first of all, the confidential nature of votes shouldn't be overstated when assessing the reliability of mandatory vote representation procedures. Both employers and the union know which employees voted and which did not, in every vote, and know how many ballots were cast for and against unionization. This encourages employers and unions to draw conclusions about individual employee's choices and likely discourages some employees from voting, particularly in smaller units or where fewer ballots are cast.

Secondly, there is a faulty political election analogy at work here. Mandatory vote supporters commonly rely on a political election analogy founded on the view that certification votes are analogous to political campaigns and elections. The attraction of this argument is understandable, appealing as it does to ideas of free speech and informed choice and workplace democracy, but it's a false analogy.

The nature of union representation is not analogous to government power or political representation, and as a result, the nature of decision-making in a union vote is not analogous to that in a political election. First, the nature of the decision is different. Certification doesn't transform the employment relationship. It simply introduces the union as the employee's agent for the limited purpose of bargaining and administering any collective agreement that the union may be able to negotiate. The employer's overriding economic authority over employees continues in any event.

Secondly, there is no non-representation outcome possible in the political context. In political elections citizens vote between two or more possible representatives. There is no option to be unrepresented, so as Becker, for example, has pointed out, if union representation elections were to be analogous to political elections, then it would be a vote among different collective employer representatives with no option for non-representation. That's simply not the system that we have anywhere in Canada.

Finally, in terms of cards being a reliable measure of employee support, it's often contended that votes more accurately indicate employees' desire for union representation than cards, suggesting that card-based certification fosters union misconduct to compel employees to sign cards. Although this is possible, there is no evidence, either in academic studies or in the case law from jurisdictions that use this procedure, that it is a significant or a widespread problem. Anecdote isn't evidence, and certainly it shouldn't be a compelling basis for legislative change in the face of a lot of academic research finding that mandatory vote systems have negative effects on labour relations and that employer interference in certification is indeed a significant and widespread problem.

In terms of the academic research on the effect of the choice of procedure—vote versus card-based certification—you're likely already familiar with a lot of this so I'll be relatively brief and leave it largely to your questions if you want to go into more detail on these particular topics.

First of all, studies have consistently concluded that mandatory vote procedures in Canadian jurisdictions are associated with statistically significant reductions in certification application activity, including certification success rates. This is in the order of about 20 percentage points. Reduced organizing activity—that's applications as well as certifications—are found to be concentrated in typically more difficult to organize units where we're talking about weaker and more vulnerable groups of employees. The increased opportunity for delay and for greater opportunity for employer unfair labour practices are identified in the research as contributing to these effects.

Just on some earlier comments querying how it could be that employers could engage in unfair labour practices or anti-union activity in the vote procedure, it's clear how this can happen.

In every case, in a vote-based procedure, the employer is notified by the labour board that a certification application has been made. It then has the period between that notification and the date of the vote. In most jurisdictions in Canada, in all but two, there is a deadline for that vote. It's between five and 10 working days. Under the Canada Labour Code, there is no deadline for that vote.

This provides ample time for employers to engage in anti-union campaigns. Anecdotally I've heard of five-day plans where it's advertised what the employer must do on each of the days, for example in the five-day period in Ontario between the application and the vote, to defeat the certification. There's no evidence there isn't sufficient time for employers to respond between the application, the notification, and the vote.

Secondly, there's quite a bit of research on delay in the vote process. Representation votes, by requiring a vote in addition to submitting evidence, necessarily result in a longer certification procedure. It has been found that it significantly reduces the likelihood of certification where there's either no time limit—as is currently the case under the Canada Labour Code and other federal legislation—or the time limit's not well enforced. This is in the order of 10% to 32%.

These studies concluded that a combination of enforced statutory time limits and expedited hearings for unfair labour practices was necessary to satisfactorily offset these negative effects. Neither of these are currently available.

Delay should be a real concern under the current provisions, and it is something that Bill C-4 would in part address.

In terms of employer interference, the vote-based procedure gives employers a substantial opportunity to seek to defeat the organizing attempt. There are numerous studies showing this is not only widespread, but effective. A large percentage of managers surveyed in some of these studies admits to engaging in what they believe to be illegal unfair labour practices to avoid union representation.

Survey evidence by Lipset and Meltz has also found in Canada that non-union employees expect employer retaliation and expect anti-union conduct by employers. Research by Mark Thompson at UBC has found that Canadian employers are no less anti-union in their attitudes toward unions than U.S. managers. That is something also to keep in mind.

In terms of remedying employer interference, the dilemma with the mandatory vote procedure is that, on the one hand, quick votes are seen as necessary to protect employees from inappropriate employer interference, and on the other hand, holding a vote quickly might not allow labour boards an opportunity to effectively remedy employer unfair labour practices. The vote can be held before the unfair labour practice can be heard and a remedy awarded.

Employees require greater protection from employer interference under a vote system. These include access to expedited unfair labour practice procedures and more substantial interim remedies, but such necessary protections were not provided by Bill C-525.

I'll make a comment regarding the Bill C-377 changes. Disclosure is already required for unions for all bargaining unit employees. I'd also like to echo Mr. Sims' comments that in Europe there is a very different approach to labour relations. The difference in the approach to disclosure and to union finances is embedded in a very different labour relations system. The Canadian and U.S. system is, in the broader international perspective, an extremely unique labour relations system, and it's inappropriate to consider transplanting one specific element of an interwoven very different system.

In closing, the Bill C-4 proposed amendments reversing the Bill C-525 and Bill C-377 changes, particularly to representation procedures, are a change that better protects employees' decision-making about collective representation.

Thank you.

[Mark Warawa, Conservative, Langley—Aldergrove, BC]

I don't see that it's red tape. It's interesting that the minister was presented this same prop, and then she was asked, so what are you proposing, Minister? Are you proposing this? In the United States we know that unions are not burdened with this as a requirement down there. Unions are still able to function, so we said, are you looking for something more reasonable then, or are you absolutely eliminating all transparency, all accountability, and that's what the plan is? It's not that. It's not something less that's reasonable. It's nothing—zero transparency, zero accountability. It's not a good example of where Canada is.

Mr. Hynes, you said you supported the transparency of Bill C-525, and that was the secret ballot. I think that for Mr. Kelly it's the same thing. You didn't support the process, but you supported the outcome.

Given the lack of transparency that's being proposed and the lack of secret ballot, which is a fundamental tenet of democracy, then what is the motive? If this is good what we have for our country, what is pushing the Liberal government to go in this direction? Do you have any input on what might be the motivation? Whose back is getting scratched here?

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

I think here it's evident that it goes against the organization of unions.

With respect to this question both to FECTO and CFIB, were both of you aware that at the same time the former labour minister, Minister Leitch, was supporting Bill C-525, she had academic research from her own department that concluded mandatory vote would decrease unionization but chose not to make it public. Independent researchers, including Sara Slinn, who's appearing in our next panel, concluded through their research that mandatory vote systems facilitate more worker coercion by employers than coercion by unions of workers by card check.

How do you reconcile that with your support of Bill CC-525?

[Daniel Kelly]

Not at all. In our support of Bill C-525, we're certainly not suggesting that all people in the prospective bargaining unit be allowed to have a vote as to whether or not they wish to be union. Now, certainly we would ideally wish that this becomes voluntary for everybody there, but at the very least, even in the current construct in Canada, as happens in the majority of provinces, we believe there is no better democratic procedure than to have a secret ballot vote so that there can be no intimidation either way, from the employer to the employee or from the union to the employee, to sign a card.

We don't elect you by having a show of hands in your riding. We elect you through a secret ballot vote. We believe union certification is another important decision.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

Thank you, Mr. Chair.

Mr. Kelly, I've heard you say a number of times through this presentation that your concern is with respect to these mandatory dues. That's really where your concern lies.

If I'm following this right, you're supporting Bill C-525. You like that because in fact it makes it harder for unions to unionize. That's what I'm hearing you say. You're saying that you don't like the mandatory dues, so you support Bill C-525, because it makes it harder to unionize, so that members in the union do not have to pay the dues.

[Derrick Hynes]

That's a great question. That's really one of our fundamental points throughout this process when Bill C-525 was brought forward. We've been consistently making the same argument and that is that under the Canada Labour Code, for our employers in particular, we do have a rich and successful history of the tripartite model for doing business, whereby government, management, and labour talk about issues. Nobody is delusional, thinking that we're always going to get along, but you quickly find areas of principle where you do agree, and then you sort out the ones on which you don't agree.

I think both employers and unions recognize that at the end of the day government is going to have to make some decisions when it makes legislative regulatory policy changes, but when we do it within the context of that tripartite model, it's proven to have worked. There are lots of examples of it, and even today we have various committees that meet various stakeholder groups where those three parties are around the table. It generally results in better solutions.

With respect to private members' bills, and I've heard this point several times, we don't think there's anything undemocratic about them. We just think that when it comes to the Canada Labour Code we have a process that does seem to work. It's worked for a number of years. It leads to better solutions where, at the very front end, we have discussions about key issues. They're not one-off issues, but we look at them in the totality of the entire code and what the implications might be for employers, government, and unions. Our experience has been that this leads to better outcomes.

[Wayne Long, Liberal, Saint John—Rothesay, NB]

Just to follow up, your members indicated their support of Bill C-525 because it was promoted as a fair, democratic process by which employees can “express their true wishes”.

Critics believe this legislation was designed to complicate and thereby lower the rate of union certification. This seems to counter the fair, democratic process. Was FETCO doing a disservice to the workers it represents by supporting the legislation?

[Wayne Long, Liberal, Saint John—Rothesay, NB]

Thank you, Mr. Chair.

Thank you to our three guests for presenting this afternoon, it was very informative.

I will say that when I did my campaigning as a potential new MP—I'm from Saint John—Rothesay and it's a very union, industrial town—certainly one of the things I heard consistently at the doors, most certainly from union people, was that Bill C-525 and Bill C-377 were anti-union, mean-spirited, and designed with an agenda in mind.

I'll start with Mr. Hynes. Can you tell me whether your view of unions is closer to adversary or partner?

[Daniel Kelly, President and Chief Executive Officer, Canadian Federation of Independent Business]

Thank you, Mr. Chair. Thank you very much, members, for being here today.

I am keen to talk to you a little bit about why CFIB is concerned about the changes to the rules that are being contemplated and why we ultimately favoured the approaches that were taken in Bill C-377 and Bill C-525.

By way of background, we have 109,000 small-sized and medium-sized businesses as members of CFIB. All of them are independently owned and operated. None of them are publicly traded. These are true independents that are out there trying to make a living against incredible odds sometimes in your ridings across the country.

Union issues are tricky ones for many employers. Most of our members, the vast majority of our members, are non-union right now. Of course, that's true of most private-sector workplaces, as our data shows. Unionized firms in Canada are on the decline. But we did support the rules that were put in place in the two bills, and I want to give you a bit of background as to why we developed those positions.

It wasn't that we loved some of the provisions of Bill C-377. Typically, CFIB is calling on government to reduce regulations, not increase rules and regulations and red tape, so it was a bit unusual for us to support a bill that would add rules and regulations to a sector that currently has, I think, fairly few. The reason we did is to try to accommodate the gap that exists in Canada with respect to the fairness of our union rules relative to their international counterparts. It often surprises people to know that Canada is now the international outlier when it comes to union certification. In virtually every country in the world paying union dues, being part of a union, is a choice. It's not mandatory if there is a certified union in that location. In all of Europe, an employee can opt out of paying union dues. It's part of the European Union rules.

That often surprises people because we think somehow in Canada our union legislation is somewhere between Europe's, which is more restrictive, and the U.S., which might be a little more free. In fact, that's not true at all. Some states do require mandatory dues, as we do in Canada—a decreasing number of them—but Canada is now one of only a couple of countries that still require mandatory dues payment if there is a union in that workplace. That's the real issue that was behind our members' support for these two bills.

That a union can compel people to pay dues, through government law, we believe requires the highest levels of scrutiny, disclosure, and accountability. That's why we liked many of the provisions of Bill C-377. If that were taken off the table—and I'm not suggesting that the government is likely to go in that direction—I don't think Bill C-377, the provisions that are there today, would become necessary if employees were able to say, “I believe my union's doing a good job. I want to pay them dues” or they might say, “Hmm, I'm not sure. I'm going to withhold my dues or threaten to withhold my dues to ensure that I'm getting my questions answered properly from my union”. That is what's behind our support for these measures: the fact that Canada is now an international outlier, whereas perhaps in the past Canadian union laws were more in the mainstream.

Small firms, of course, strongly believe that union members should have the right to opt out of union dues. But I also want to share with you that employees, too, believe that additional disclosure is required. Some Leger marketing surveys suggest that 84% of the public agree that additional disclosure is required.

It wasn't a surprise that the new government has decided to turn back the clock on Bill C-377, but I have to admit it is very surprising that the new government is eliminating the right to a secret ballot vote in union certification. To me, that is the biggest issue that is on the table today.

One of the first things many provincial governments—for example, an NDP government at the provincial level that has been elected with the support of unions—do very early in their mandate is eliminate secret ballot votes in union certification. I cut my teeth on that issue back in Manitoba when a government changed there and Gary Doer was elected many years ago.

This is always a worry for small and medium-sized firms. The very principle of secret ballot votes, which we hold so near and dear in electing you, should be there for choosing whether or not to have a union, especially when that union has the power to compel absolutely everyone in the unit to pay dues whether they wish to or not.

That, I think, is the part I want to leave with you. Our biggest concern about this is the fact that this bill would end the right to a secret ballot vote in all circumstances before a union is certified. Even union members, when polled, believe that votes should be held prior to certifying a union. This isn't just the view of employers, among whom it might not be a terribly big surprise—small employers in particular—but is also, we believe, the view of the general public and of current and past union members.

My final thoughts for you are that as long as dues remain mandatory, requiring unions to provide additional detailed information is certain to bring more transparency and accountability—certainly more costs, certainly more red tape, I don't deny that one bit—and that because secret ballot votes are so fundamental to our democratic processes, we would urge you to maintain them on this very important and sensitive issue in the employer-employee relationship.

Thank you.