Bill C-4 (Historical)

An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act

This enactment amends the Canada Labour Code, the Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act to restore the procedures for the certification and the revocation of certification of bargaining agents that existed before June 16, 2015.
It also amends the Income Tax Act to remove from that Act the requirement that labour organizations and labour trusts provide annually to the Minister of National Revenue certain information returns containing specific information that would be made available to the public.

[Michael Mazzuca, Executive Member, National Pensions and Benefits Law Section, Canadian Bar Association]

Thank you.

Mr. Chair, vice-chairs, and honourable committee members, I'm pleased to be here today on behalf of the Canadian Bar Association.

The Canadian Bar Association is a national association representing approximately 36,000 members of the legal profession. Our primary objectives include improvements in the law and the administration of justice. It is through this lens that we have prepared our written submissions and appear here today.

Our written submission was prepared jointly by the privacy and access law section of the CBA, the constitutional and human rights law section, and the pension and benefits law section, which I am from.

Our written submissions and our comments today are focused solely on the clauses of Bill C-4 that repeal the former Bill C-377. Those are clauses 12 and 13 of Bill C-4.

The CBA has previously expressed a number of concerns with respect to Bill C-377, both in our written submissions and in appearances before the House of Commons finance committee, the Senate banking, trade, and commerce committee, and the Senate legal and constitutional affairs committee. I am a past chair of the pension and benefits law section, and I was the one who appeared on behalf of the Canadian Bar Association at each of those committee hearings.

As I've said, the CBA supports the provisions of Bill C-4 that repeal Bill C-377, which inserted into the Income Tax Act extensive reporting requirements for labour organizations and labour trusts. The CBA remains of the opinion that Bill C-377 was fundamentally flawed and it triggered serious concerns from a privacy, constitutional law, and pension law perspective.

I'll leave it to my colleagues to speak more at length about this, but from a privacy point of view, the disclosure of salaries and wages of employees and contractors of independently governed organizations went well beyond what previously existed, or what has previously existed, in Canadian law, and was inconsistent with the privacy protections embodied in numerous privacy policies and constitutional jurisprudence in Canada.

To the extent that Bill C-377 would have required particularized disclosure, it obliged disclosure of personal information that is normally considered amongst the most sensitive, such as financial information and information about political activities and political beliefs. In particular, from our legal profession's perspective, the CBA was concerned, as it was throughout the process with Bill C-377, that appropriate provisions were not made for information that's usually protected by solicitor-client privilege.

Solicitor-client privilege has been called a fundamental civil right, one which the Supreme Court of Canada has said must be protected by stringent norms in order that it remains as close to absolute as possible. There were minor exemptions for solicitor-client privilege in the final version of Bill C-377, but legal advice can be provided in a number of different transactions and contacts. The overriding concern the CBA had was that the bill in its entirety did not make provision for the protection of solicitor-client privilege.

The CBA believes Bill C-377 lacked an appropriate balance between any legitimate public goals and the respect for private interests protected by law.

From a constitutional law perspective, we believe that Bill C-377 was certainly open to challenge under both paragraph 2(b), freedom of expression, and paragraph 2(d), freedom of association, of the Charter of Rights and Freedoms. We know, in fact, that it already was subject to a legal challenge, I believe in Alberta.

In particular, the requirements that a labour organization file a statement detailing its disbursements for political activities, lobbying activities, organizing activities, and collective bargaining activities, we believe, could have been found to be unconstitutional, counter to the charter's protections of freedom of expression and freedom of association.

We also believe that section 149.01 of the Income Tax Act, which was inserted by Bill C-377, interfered with the internal administration and operations of a union, which the constitutionally protected freedom of association precludes unless the government interference qualifies as a reasonable limitation upon associational rights. In that regard, it was unclear to the Canadian Bar Association exactly what the justification was for these severe infringements.

In a recent case, the Supreme Court of Canada said that the charter protects a union's ability to communicate and persuade the public of its cause, and that impairing its ability to freely express itself as it sees appropriate would be an unjustified infringement on section 2(b) protected rights.

Just as the Supreme Court of Canada has affirmed that section 2(b) of the charter protects a union's freedom of expression, it must also protect its freedom not to express.

Let me conclude on the pension and benefits concerns. Our concerns stem from the fact that Bill C-377 was broadly drafted and applied to labour organizations and labour trusts. The definition of “labour trust” was so broad that it included any fund in which a union member was a beneficiary. As we know, a great variety of types of benefits may be offered to employees and union members, and the small list of exemptions contained in Bill C-377 was not sufficiently broad. The list of exempted plans in the bill failed to encompass things such as charities, non-profit organizations, RCAs or retirement compensation arrangements, education and training initiatives, and mixed-purpose benefit plans. A plan that provided death benefits, for example, would have to disclose information about individuals who receive such benefits.

As a result of these concerns, the CBA is fully in support of the provisions of Bill C-4 repealing those provisions of Bill C-377.

Thank you.

[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.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Mr. O'Toole mentioned that Bill C-4 is already being considered before the House. I agree with my colleague from the NDP that the RCMP shouldn't be treated any differently from anyone else. Bill C-4 will cover them, and it should cover everyone, including the RCMP. I won't be supporting the amendment.

[Erin O'Toole, Conservative, Durham, ON]

This was an amendment we raised at second reading debate in the House and certainly in this committee as well.

We feel that in any democratic organization, in the certification process for a bargaining agent or the vote for a bargaining agent, a secret ballot process should be in place to allow all members to express their own opinion on certification.

In the briefing that parliamentary secretaries were kind enough to have with departmental officials, we were informed that all previous certification votes of public sector bargaining agents had been done by secret ballot. We're aware that there's a concurrent bill, C-4 on the order paper, but for this particular certification, given that employee choice was one of the key considerations in the Mounted Police Association of Ontario Supreme Court decision, we feel that line 3 on page 18 should be replaced with a direct reference to a secret ballot representation so that all members of the force have their say.

Labour

[MaryAnn Mihychuk, Liberal, Minister of Employment]

Mr. Speaker, what I can tell the House is that this side respects both unions and businesses and their ability to come to a deal together. They both are going to be at the table working hard for their collective responsibilities. Overall, 95% of all agreements are settled at the table, if they are fair and balanced. This is exactly what we are doing with our Bill C-4.

Opposition Motion—Political Fundraising Activities

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Mr. Speaker, it is going to be hard to follow that, but I will do my best to make sure I say “lawyer” when it is appropriate and the other word when it is appropriate, but I cannot say that word in here.

This debate today provides us with a great opportunity to reflect and take stock as Canadians watch the debate. When Canadians elect people and send them to Ottawa they want them to behave in a way that shows our country both domestically and around the world in the brightest light and in the highest standard possible.

That brings me to what the motion is all about. The government party and members on the other side who are taking us to task for presenting the motion today are using words like “frivolous”. They are making comments like “this is a waste of time”. We are debating a rather substantive document, a document called “Open and Accountable Government”. It is written on the letterhead of the Prime Minister of Canada and it bears his signature. This is the standard to which this debate should be held. Members of the Liberal caucus who are rising are hiding behind a technical ruling from the Ethic Commissioner's office. I want to be very clear for people watching this debate at home how this works.

Currently, we have the Conflict of Interest Act and the code of conduct for ministers, parliamentary secretaries, and members of Parliament. This is administered by Mary Dawson, the Conflict of Interest and Ethics Commissioner. She has come before the ethics committee many times. I chair that committee and I have been on that committee in previous Parliaments. We are reviewing the legislation, which has not been updated since the 1980s when it was first introduced. That is how archaic the legislation actually is. Every previous government owns the responsibility for not updating the legislation. I am not here to debate that with the member for Lac-Saint-Louis. I would agree that the time has come.

I remain cautiously hopeful and optimistic that the new bar that will be set in law will actually meet the supposed tests that the Prime Minister expects his cabinet ministers to meet. Here is the reality.

The witnesses who come to committee recommended by the Liberal Party, the NDP, and the Library of Parliament, virtually all are unanimous in saying that the Conflict of Interest Code and the Conflict of Interest Act which creates the code do not stand up in today's society. That bar is here. The Conflict of Interest and Ethics Commissioner, the Information Commissioner, the access to information commissioner, and the Commissioner of Lobbying, have lobbied many times to raise the bar on all of these things. The bar to which they say that the legislation should be changed is here.

The document that the Prime Minister has penned, which has been quoted from several times today, and I will quote it again, says:

Ministerial Conduct

Ministers and Parliamentary Secretaries must act with honesty and must uphold the highest ethical standards so that public confidence and trust in the integrity and impartiality of government are maintained and enhanced.

It goes on:

Moreover, they have an obligation to perform their official duties and arrange their private affairs in a manner that will bear the closest public scrutiny. This obligation is not fully discharged merely by acting within the law.

The law has a standard that is down here according to almost anybody that comes before the committee. That is not a high bar to achieve, and it is not a bar that I would hide behind if I were on the other side of the House today trying to defend.

This document, “Open and Accountable Government”, holds a lot of hope and optimism, but we have to remember who penned this document. This document is supposedly penned by the Prime Minister. My guess is that it was penned by somebody else who might have worked at Queen's Park, where they currently have quotas for ministers to achieve, fundraising targets, and was simply signed by the Prime Minister. Nonetheless, even if the Prime Minister did not pen it, he signed the document, so he is responsible for it.

Let us take a look at that particular individual's conduct. After becoming an MP, we know that the current Prime Minister accepted numerous paid speaking engagements while he was a member of Parliament, and for that he was admonished, not necessarily technically by the Ethics Commissioner, but certainly anybody with any credibility in the media or in civil society would look at that and say, “You are a member of Parliament. You have been invited to a speaking engagement and you are charging a fee?”

In one particular case, the current Prime Minister, in his capacity as a member of Parliament, actually billed a school board $780 for a limousine service to take him from Ottawa to Kingston and return him to Montreal. That is when he appeared at the Algonquin and Lakeshore Catholic District School Board, in Kingston, where he was paid $15,000 to be a speaker. That was in 2010. He was a member of this House. He probably had designs on being the prime minister at some point in time. My guess would be that one would have to do that at some particular point in time.

George Takach said, “MPs shouldn't get paid extra for public speaking, it's part of their job description”.

I certainly would not even dream of accepting payment in my capacity as a member of Parliament, which I have had the privilege of being for the last 10 years in this House.

Others go on to say, “I certainly wouldn't be, as a member of Parliament, receiving money for speaking out on matters of public interest”. This is something that we already get paid quite well to do.

We have to ask ourselves whether the Prime Minister actually believes the document he has penned or whether it is “do as I say, not as I do”. This raises a lot of questions.

He has charged $20,000 to the Certified Management Accountants of Ontario. Would the certified management accountants have anything to lobby the government about at some particular point in time?

He has also taken speaking fees from the Ontario Public Service Employees' Union. We all know about Bill C-4. The ink was not even dry on the swearing in of the ministers, then there is pro-union legislation on the table in the House of Commons. We have to wonder just exactly where the Prime Minister is at on this.

Notwithstanding the credibility of the author of the document, I still have high hopes, as chair of the ethics committee, that we can actually elevate the legislation we have here.

Then we come to the justice minister and the conflict of interest that is abundantly clear to everybody in the world except the Liberal caucus.

The government House leader just stood in this House and tried to rationalize her appearance, because he is able to get $700-a-plate fundraisers in his own riding, 20 minutes from his house, where everybody knows him. He is happy with $750. That is enough to have access. Then he asks us to equate that with an MP from Vancouver, who is unknown to most people in the greater Toronto area, charging $500 a plate for an invitation-only, not even advertised, event. That just does not pass muster. It does not make any sense at all.

We can compare that with some of the decisions, and I was hopeful before Christmas. My birthday is at Christmas, so I was feeling good—

[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.

[Andrew C.L. Sims]

I think I can accommodate you in much less than 10 minutes, Mr. Chair.

Let me introduce myself in terms of why I'm here and the experience I'm prepared to expose to you, should you want to ask questions.

My career for 42 years has been in labour relations. In 1984 I left a legal practice to join the ranks of the neutrals and became, first, a vice-chair for a year and then then chair of the Alberta Labour Relations Board until 1995. I was there 10 years. I continued as a vice-chair of that board until 2015. I've also served as a vice-chair of the Canada board for three years and, probably of most significance to your deliberations, chaired the 1996 task force to review the Canada Labour Code that resulted in the report, “Seeking a Balance”, which I'm going to make some brief reference to.

That report resulted in fairly significant changes to the Canada Labour Code, enacted in 1998. Those provisions, other than essentially the provisions we are discussing today, have been the framework for Canadian federal labour relations ever since 1998, through to 2016.

I want to speak first about process. When my colleagues and I—my colleagues Rodrigue Blouin from Quebec and Paula Knopf from Toronto—were commissioned to do the task force, we consulted very early with the parties to federal labour relations and on our own experience. We had three board chairs, three experienced arbitrators.

Our view, and the view of virtually everybody we consulted with, was that this was a successful tripartite system. We encouraged the parties to meet together not only to put their briefs forward, but to discuss things at a series of round tables. In a room like this, we had a consensus process that met about 10 times.

Probably the proudest day of my professional career was sitting in a room like this with a federal minister. It had been initiated by Minister Robillard, but it was Minister Gagliano by the time we were done. There were two groups, the representatives of federal employers and the representatives of the Canadian labour movement. They both said to us, and more importantly, to the minister of the day, “We don't agree with everything that is in this report.”

One side disagreed with a couple of things, and the other side disagreed with a couple of things—significantly, one of which was the card system—but both said very clearly and ultimately enthusiastically that it was a package deal, something they could both live with, and a framework that they could buy into and use to administer their labour relations. I believe the bill that came out of that was a successful revision to the Canada code. I think it has worked.

We said in our preamble, if you can pardon me for reading just a bit:

We want legislation that is sound, enactable and lasting. We see the too frequent swinging of the political pendulum as being counter productive to sound labour relations. We looked for reforms that would allow labour and management to adjust and thrive in the increasingly global workplace.

We said further on, at page 40, in describing the criteria for reform, that:

stability is desirable and pendulum-like changes to the Code do not serve the best interests of the parties or the public; consensus between the parties is the best basis for advocating legislative change; recommendations should be enactable, long-lasting and premised upon the overriding concept of voluntarism.

I won't go on and read more, but we went on at some length, first, about what we thought was the reason we were successful in getting consensus, and second, the importance that consensus plays in a labour relations system. I have not changed my views on that.

I have now been involved in administering labour boards, arbitration, and mediation in the federal and provincial industries. I've done a number of legislative reviews. I still believe firmly, even passionately, that political interventions that are seen as deliberately tipping the pendulum are corrosive of labour relations. They prompt the other side to go away from the bargaining table and common interests, and to pursue political solutions to gain an advantage. That is disruptive of our labour relations system, which ultimately requires both sides to face economic realities head-on and not use legislative advantages to try to defeat the other.

It's a fairly strong expression of views, but it is not simply my personal experience. It is founded on the last 30-year—and I think the most significant 30 years—review of the Canada code, and the people whose laws will be affected.

In my view, the two bills that are repealed by Bill C-4 failed to meet that criteria. They both had the air of one side seeking political intervention for more ideological, economic, or relationship reasons, and they have corroded the view that legislative reform at the federal sector is based on the tripartite model.

I have some specific comments, but I'm not going to go through them. I think I'm going to leave them for questions.

I will say one thing, and I think this is very important given the discussion I heard earlier. I heard several comments about every other country in the world. With our American partners, although their system is unique in many ways—unique is perhaps a euphemism—some of their system trumps ours.

[Derrick Hynes, Executive Director, Federally Regulated Employers - Transportation and Communications (FETCO)]

Thank you, Mr. Chair.

Good afternoon to all honourable members seated around this table today. It is with pleasure that I present some thoughts to you today on Bill C-4 on behalf of FETCO.

For those of you who are not aware, FETCO stands for Federally Regulated Employers - Transportation and Communications. With that mouthful of words, I'm sure you can appreciate why we tend to shorten our name to just FETCO.

FETCO member organizations are all federally regulated firms in the transportation and communications sectors. The common area of interest that binds us together is labour relations under the Canada Labour Code. We have existed as an employers' association for over 30 years. We are essentially the who's who in the federal sector, encompassing over 400,000 employees and representing many well-known firms such as Air Canada, Bell, CN, CP Rail, and Telus, to name just a few. Most of our member companies are heavily unionized and have a long and successful track record of tripartite engagement in federal labour relations, and I'll speak more on this issue a little later.

As you are all aware, Bill C-4 will repeal two pieces of legislation passed during the last Parliament, Bill C-377 and Bill C-525. FETCO believes that both of these bills resulted from an inappropriate process, one that did not take advantage of a pre-existing and well-established tripartite approach to labour relations.

However, given its significant labour relations implications I will spend my short time with you today focused solely on Bill C-525, the union certification and decertification bill.

FETCO was heavily engaged in the process that brought C-525 through the parliamentary process and has spoken on the record on this bill on several occasions. If I can leave but two key messages with you today that sum up the FETCO position on Bill C-525, it would be the following. Please note that I do recognize these appear to be contradictory, and I hope to explain that throughout my presentation.

First, FETCO had and continues to have concerns regarding the manner in which Bill C-525 was enacted. Second, FETCO supports the basic principles proposed in Bill C-525.

I'm sure at this point some of you are scratching your heads wondering how we can simultaneously support Bill C-525, but at the same time have concerns regarding the process used to enact it in the first place. Please let me explain.

FETCO has consistently argued in concert with organized labour, I should add, that the process used to enact Bill C-525 was inappropriate. Bill C-525 brought in a revised certification and decertification process for all federally regulated organizations via the use of a private member's bill.

While we do not view the use of private members' bills as in any way undemocratic, we do feel they should not be used for changes to the Canada Labour Code. For decades, a meaningful, tripartite, consultative mechanism has existed for such changes, where the three key stakeholders—government, labour, and management—take a deliberate approach to changes under the code and its associated regulations by consulting extensively ahead of time.

Changes to the code should only be considered after a meaningful, upfront dialogue that contemplates all related implications and assesses any change within the greater context of the entire collective bargaining environment. By using this approach via a government bill, a greater degree of rigour is applied to the process. Committees tend to have access to research and analysis and can tap into key internal resources, such as the expertise that exists within the labour program at ESDC and across other government departments.

While a private member's bill does proceed through parliamentary committee and the related process, it does not receive the same level of scrutiny as can be achieved through a meaningful consultation with all stakeholder that is represented by a government-wide approach. We have a system that works. Our suggestion is that we use it.

This brings me to my second key takeaway, which may sound contradictory, but FETCO ultimately did support the basic principles presented in Bill C-525 and is supportive of these changes within the federal collective bargaining environment.

If you'll indulge me, I'd like to read into the record today some comments presented by FETCO to the Senate Standing Committee on Legal and Constitutional Affairs when Bill C-525 was being contemplated in December 2014:

Bill C-525 is a private member's bill. In its original form, it was unfairly constituted and prejudicial to unions and employees seeking [union] certification. In its original form, C-525 required that in order for a union to be certified, it would have to demonstrate in a secret ballot vote that the union had an absolute majority of employees in the appropriate bargaining unit as opposed to the majority of employees in the appropriate bargaining unit casting ballots in favour of the union. FETCO is [most] pleased that Bill C-525 was modified substantially...by the House of Commons Standing Committee on Human Resources...before passing third reading in the [House of Commons].

FETCO members prefer a secret ballot vote to a card check system for the purpose of determining if the union is to become the certified bargaining agent for employees. A secret ballot vote is the essence of true democratic choice and is entirely consistent with Canadian democratic principles. It allows each and every employee to express their true wishes without undue influence or disclosure of how they cast their ballot. This is the mechanism that is used for the electoral process in Canada. It is the fairest process. ...Furthermore, this certification process by means of a secret ballot vote based on the majority of votes cast is the standard that currently exists in the labour relations legislation in the provinces of Alberta, British Columbia, Nova Scotia, Ontario and Saskatchewan. It is a widely accepted method to determining certification in Canada. It is not new. The provisions in Bill C-525 regarding the threshold number of employees required before the Canada Industrial Relations Board will order a certification vote or a decertification vote is 40%. This is appropriate. These provisions are equally fair and are consistent with the rules for establishing certification and decertification vote thresholds in the various provincial jurisdictions. In sum, FETCO supports Bill C-525 as currently written.

Honourable members, I hope that you now better understand the genuine dilemma that Bill C-525 represents and represented for FETCO members. While we objected to the process used to enact it, we certainly supported the final language that was revealed following committee reviews in the House of Commons and the Senate.

Bill C-525 contains three key principles that FETCO continues to support.

First, it ensured that a secret vote would be required for all union certification and decertification efforts. The secret vote is fundamental in our democratic society. We cannot think of another approach that is more open and fair to employees when making these important choices.

Second, it ensured that unionization could not be achieved solely by the use of signed union cards. Employees were free to vote their conscience secretly, without fear of coercion. This approach is consistent with the majority of Canadian jurisdictions.

Third, it set the threshold for requiring a vote for certification or decertification at 40% of those that sign union cards. This is also consistent with the majority of Canadian jurisdictions. The 40% threshold is required in Alberta, Newfoundland and Labrador, Nova Scotia, and Ontario. In fact, 45% is required in British Columbia and Saskatchewan.

Bill C-525 brought the federal system in line with the majority of other jurisdictions in the Canadian labour relations system covering the majority of employees in the country, and it brought the democratic secret vote. This is why it was and still is, for that matter, supported by FETCO.

Thank you for your time and for the privilege of speaking with you today.

[Tony Fanelli]

Fair enough. Okay.

Who is the NCLRA? While people in our industry have a pretty good handle on the alphabet soup of organizations that we have, it's a bitter fact that beyond our immediate group, people know nothing about how we are organized and how we bargain. The NCLRA is the acronym for National Construction Labour Relations Alliance of Canada. It is the umbrella group for the various provincial and national contractor associations from across Canada.

We are the unionized contractors, and account for somewhere in the vicinity of 50% or more of the commercial and institutional sectors of construction. We employ roughly half a million workers. Some contractors employ one or two. The companies that I represent, including our own, go from employing hundreds to employing thousands, and back to hundreds again, in an unending cycle of build up and build down. This makes our business very complex and requires us to be able to deploy workers in a way that makes sense. Frequently the difference between success and failure on the job is how we are able to deploy that workforce.

Each provincial and national contractors group represents a significant number of contractor groups. For example, there are 60 contractor groups within Ontario, 32 in Alberta, 35 in British Columbia, and 28 in Saskatchewan. Each of these contractor groups represents from hundreds up to thousands of individual contractors. The contractor associations bargain on behalf of all the contractors with their labour counterparts.

Our various trade sectors have created a complex network of relationships with our union partners. We are almost inevitably one half of the board of trustees of pension funds, health and welfare plans, training trusts, education trusts, industry improvement funds, supplementary unemployment benefit funds, and a host of others. This is where one of the complicating factors of Bill C-377 would have arisen. The definitions that amend subsection 149.01(1) of the Income Tax Act are very broad. From the legal opinions our various contractor associations received from their legal counsel, these are broad enough to include both contractor groups and individual employers as labour organizations or labour trusts. Surely that is not what anyone would have envisioned.

Our business is highly competitive. Virtually every job is as a result of a tender process. The successful bidder is required to be the tenderer that offers the best price. I personally have never doubted that the rationale behind Bill C-377 was to give our non-unionized competition an advantage. In the bidding process, we are on the training trust funds, the education funds, the industry improvement funds. We make contributions into these funds, and we receive a considerable amount of training support from the training trusts. It is absolutely clear that when the value of our contributions on a trade-by-trade basis, or the support we have from a training fund, becomes a matter of public record, it is a very simple thing to reverse-engineer as to how we've been doing certain work, or how we develop a crew mix, or how we develop or deploy workers, or how we actually manage the work that impacts enormously on our commercial confidentiality. This alone ought to be a significant enough reason to repeal this legislation.

The cost to contractors is really one of the most important issues I want to dwell on. The costs to our contractors in and of itself are massive. In my company, as a general contractor, we hire all trades. We remit to the various trust funds for each of the unions in the construction industry. Each union has four or more such trust funds. There are 16 unions. In some cases, each union represents more than one bargaining group, so our company, which works in six jurisdictions as we speak, will have to file 500 reports annually, and in such detail that some of the reports will be the size of a city phone book. To what end?

If the Construction Labour Relations association of Alberta or the Industrial Contractors Association of Canada are held to be a labour trust and have to make the reports and returns required by Bill C-377, then both our confidentiality and our bargaining strategies are laid open.

This cannot be good for labour relations or good for either party in the labour relations continuum. I've been a labour relations practitioner in Canada for nearly 40 years. During that time there have never been any issues arising in respect of this subject. If this hasn't been an issue in the past, what is going to be gained by such significant public disclosure? That public disclosure will impact thousands of unionized contractors across Canada represented by NCLRA-affiliated organizations.

The view of the contractors is that this is just another competition strategy launched by our most vociferous competition, which hopes to use the power of the Government of Canada so they can come up with unique ways to undercut our bids.

We are also responsible for the privacy of our employees, and the legislation compels us to decide which law we breach: the Income Tax Act or the various provincial and federal privacy laws.

In closing, it might be different if there were some wrong or right in this area, but there simply isn't. The unionized contractors in Canada see no obvious value in any part of Bill C-377, and therefore support the repeal of that legislation under the bill being considered today, Bill C-4.

Thank you.

[The Chair, Liberal, Bryan May]

Good afternoon, everybody. The committee will come to order.

I have the pleasure of introducing a number of guests here today. From the Industrial Contractors Association of Canada, we have Tony Fanelli, vice-president and manager of labour relations. From Federally Regulated Employers - Transportation and Communications, otherwise known as FETCO, Derrick Hynes, the executive director, is here today. Thank you both for attending today.

From the Canadian Federation of Independent Business we have Daniel Kelly, president and chief executive officer. Thank you, sir, for again appearing. You're our first repeat customer in this Parliament. We didn't scare you too much the last time apparently, or you're a glutton for punishment; we're not sure which. No, I'm just teasing.

Welcome, MP Benson. Thank you for joining us today. I'll acknowledge John when he arrives as well.

We're going to get right into questions. We are back on Bill C-4. Let me ask the witnesses to introduce themselves and give a brief opening. We'll start with Tony Fanelli, please.

Canada Labour Code

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, we need to recognize that there are competing interests and that those competing interests are best dealt with in a tripartite fashion. It is not just the Liberals who are saying this. As has been quoted, union leaders and other stakeholders have said that we should not bring one-off, piecemeal legislation to try to change the Canada Labour Code. We believe that to be the case. If there are mechanisms through which we can move forward, then we are open to that.

If we look at Bill C-4, we see it is important to this Liberal government. It was one of the first pieces of legislation we introduced shortly after our tax break to the middle class, if I can give that an extra plug. That was our first piece and our first priority. We saw how important labour and unions are to our great nation and introduced Bill C-4 to rectify a wrong.

I passionately believe in the importance of our union movement through which great strides have been made not only in terms of better working conditions, better hours, and better rates of pay and benefits but also with respect to the many different social causes they have played a critical role in developing.

My door is always open, as are the doors of my colleagues. We are more than willing to meet with and do what we can to protect our workers. Over the years, I have had the opportunity to work with many individual members of the union movement. I have also worked with private business. I have had the opportunity to walk on picket lines in support of many workers who were constituents of mine and had to go on those picket lines.

I understand the importance of negotiations. People do not want a strike, whether they be employees or employers, because I would argue that we all lose. However, at times it is necessary. Until we can come up with a better way to deal with these issues, such as through a tripartite mechanism, we must continue to rely on the system that has done us so well over the years. Unlike the Conservatives or the NDP, if we take the politics out of the picture, I think we would have more harmony between labour and management, and that is good for Canada.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, it is with pleasure that I rise today to address this piece of legislation.

I am taking a different approach to this in the sense that I used to be the labour critic in the Province of Manitoba. I was first elected to the Manitoba legislature in 1988. At the time, controversial legislation called “final offer selection” was being proposed. Hansard will demonstrate that even back then I was afforded the opportunity to give my thoughts and views on labour legislation. I found out early in the game how important it was for government not to use political IOUs in order to please one group over another.

The Liberal government introduced Bill C-4 because we passionately believe that the previous Conservative government used the back door through private members' legislation, Bill C-377 and Bill C-525. Many interest groups and stakeholders from both sides acknowledged that. Our government, through Bill C-4, is rectifying a wrong made by the previous Conservative government.

The Parliamentary Secretary to the Minister of Employment, Workforce Development and Labour commented on the New Democratic Party using a private member's bill. I understand and appreciate the arguments put forward by the previous speaker, but I am suspicious of New Democrats when it comes to labour legislation. Like all Liberal members, I believe in the important role that unions play and we do what we can to support our union brothers and sisters as much as possible, but we believe in fair play.

Let me go back to the provincial election in 1988. It is important that we recognize that industries regulated for labour are primarily at the provincial level and the federal level deals with regulations. Howard Pawley hoped to become the premier of Manitoba at that time. He sat down with a number of union representatives and said that, if the NDP formed government, it would bring in anti-scab legislation. He and the NDP made that commitment. The NDP became government, but it did not bring in anti-scab legislation because the then NDP premier argued that it would not be fair after all. Instead, the government brought in final offer selection legislation in its place. That is when I was elected, in that 1988 provincial election, and when the Conservatives took office they repealed the legislation. We sat until two o'clock in the morning in committee debating this. Many union and non-union members made presentations about the benefits of final offer selection. We often heard about the NDP compromising itself by promising to bring in anti-scab legislation but not doing that and instead coming in with final offer selection. Final offer selection was disposed of because the numbers were not there for the Liberals and the NDP back then.

In 1999 the NDP regained power. One would have thought it would have brought back final offer selection or anti-scab legislation, but it did neither.

The reason I say this is that I believe we have to be more honest with our union brothers and sisters. We have to look at what is in the best interests of Canada as a whole and look at the worker and how we can enhance our workforce. We need to not only look at how we can protect workers but look at the different sides sitting at the table. That is what is being proposed by the Government of Canada today. The NDP and Conservatives have used labour relations as a wedge issue time and time again at the cost of union workers. I have witnessed it.

I did not tell the House about an amendment that was put forward by the Liberal Party in 1990, which would have improved final offer selection, but back then New Democrats voted with the Conservatives to get rid of it.

I am familiar with the games that are played between the Conservatives and the NDP with respect to labour. We in the Liberal Party are saying enough is enough. We need to do what is in the best interests of the worker and the—

[Erin Weir, NDP, Regina—Lewvan, SK]

Mr. Speaker, it is a great honour to rise as a seconder of this private member's bill, Bill C-234.

In the debate about a previous government bill, Bill C-4, government members often spoke about restoring balance to Canadian workplaces. We in the NDP were happy to support that legislation, because Bill C-4 did restore balance to certification and decertification. However, we need to be concerned not only about the right to join a union, but also about the right to bargain collectively.

An essential component of balance in collective bargaining is that in the rarer cases where this process breaks down, both sides bear a cost. Employers do without labour while employees must do without their wages. That puts pressure on both sides to keep negotiating to try to find a solution.

The use of replacement workers, or scabs, destroys that balance by allowing the employer to continue functioning as though there is no labour dispute. We have had far too many cases in Canada of employers demanding severe concessions, locking out workers or provoking a strike and then using scabs rather than negotiating in good faith. One problem with replacement workers is that they can be used to prolong labour disputes.

Another problem with replacement workers is that they increase the likelihood of violence. The process of moving scabs across a picket line into the workplace inevitably puts the employer's security forces in confrontation with the picketers. That is a recipe for bad things. However, even where replacement workers are not actually used, the implicit threat of scabs gives management an unfair advantage in bargaining.

There is a very simple solution to all of these problems: to prohibit replacement workers during legal strikes and lockouts. This is not a new or theoretical solution. Two provinces already have anti-scab legislation and the longevity of anti-scab legislation in those jurisdictions is a testament to its success and to its workability. Quebec has had anti-scab legislation for nearly 40 years. British Columbia has had anti-scab legislation for nearly a quarter century. In both of these provinces, anti-scab legislation was introduced by social democratic governments, but importantly, it has been continued by subsequent right-wing governments. At the provincial level, parties of both the left and the right have accepted anti-scab legislation.

What about at the federal level? What did we hear from the Liberal Party? The member for Cape Breton—Canso tried to tell us that the existing provisions in the Canada Labour Code, which do not actually prohibit replacement workers, constituted some kind of appropriate balance. However, I have already explained why the real balance involves pressure on both sides during a strike or lockout. The real way to achieve balance is not to have replacement workers in the equation at all.

The sense in which the member for Cape Breton—Canso considers this a balance is that we have two sides, unions and employers. Unions obviously would like to have anti-scab legislation and employers would not want to have it. He does not think we can make a change without consensus.

That is kind of a disingenuous argument, because the current situation confers a huge advantage to employers, so of course employers will never voluntarily agree to give that up. It is for parliamentarians to make a balanced assessment, and that is exactly what this private member's bill proposes.

We have also heard the argument from the member for Cape Breton—Canso that this is the wrong process, that we do not want to look at one little element of the Canada Labour Code, that we need to do a big tripartite review of the whole thing. Well I say, bring it on. There has not been a review of the Canada Labour Code since 2006.

The member for Cape Breton—Canso kept saying that we could not do this without a big review of the Canada Labour Code. Let us have that review of the Canada Labour Code. I think that would be very much welcomed on this side of the House. That is not really a good argument not to adopt this legislation. Let us go ahead with the review.

I think the main argument, though, from the member for Cape Breton—Canso is this notion that it is somehow inappropriate to put forward this proposal as a private member's bill. Leave it to the Liberal Party to turn a question of principle into a question of process.

The grain of truth in this argument is the idea that the previous Conservative government did abuse private members' bills to make changes to labour legislation without the same sort of scrutiny that would have been applied to government legislation. That is a criticism that one can make of a government; and if the present government wanted to put forward legislation to implement a ban on replacement workers, obviously, we in the NDP would support that legislation. The reason we are putting it forward as a private member's bill is that the Liberal government has not put it forward on the order paper. It missed the opportunity to do so in Bill C-4. The only way we have to put forward legislation is through private members' bills.

We heard the statement from the member for Cape Breton—Canso that this is introducing a change by the back door. It is not the back door. It is the only door to which the NDP has access. Therefore, yes, from a process point of view, one could criticize a government for sneaking things through with a private member's bill. One cannot criticize the third party for introducing legislation through a private member's bill, because that is the only way it can happen.

What did we hear from the Conservative Party in this debate?

The member for Louis-Saint-Laurent, first, suggested that anti-scab legislation was inappropriate in the federal sector because the federal sector includes these strategic industries, these kinds of essential services.

The way to protect essential services is not to allow replacement workers. If there are specialized people off the job in telecommunications and that is causing a national emergency, the solution is not to bring in scabs. The solution is, hopefully, to negotiate some sort of essential service protocol with the union. If that is not possible, there is the possibility of back-to-work legislation under the Canada Labour Code.

The member for Louis-Saint-Laurent said, well, we don't want to spend all our time in Parliament passing back-to-work legislation, which is kind of a funny statement because the Conservatives were content to spend all kinds of time doing that in the last Parliament when they were in power. Every major strike or lockout in the federal sector during the previous Conservative government attracted back-to-work legislation from that party. Therefore, I do believe that comment is a little out of context.

One of the concerns that the member for Louis-Saint-Laurent raised was that anti-scab legislation could force employers to settle labour disputes quickly.

I would suggest that is a feature, not a bug, of this private member's bill, that we actually want to bring these disputes to a quick resolution. One of the problems with replacement workers is that they drag things out, and one of the benefits of this legislation is that it would speed things up.

We also heard an argument from the member for Louis-Saint-Laurent that there were more labour disputes in Quebec versus Ontario and that this is all the fault of anti-scab legislation.

I would suggest there is a whole bunch of other differences between Quebec and Ontario, including the higher rate of unionization in Quebec. I think the better comparison is what happened within Quebec when anti-scab legislation was passed, because actually it was passed in response to an extremely high level of very disruptive labour disputes in that province, and the introduction of anti-scab legislation led to a great reduction in the number of strikes and the amount of picket-line violence in Quebec. Therefore, I actually see this as a good model for the federal sector.

In conclusion, I urge members to support this private member's bill, which they are free to do because it is a private member's bill. They do not have to vote on party lines. This legislation would strengthen the right to strike while, at the same time, producing fewer, shorter, and less violent labour disputes.

[Erin O'Toole, Conservative, Durham, ON]

Thank you very much, Mr. Chair.

Thank you, ministers, and your departmental officials for appearing here today, and particularly Minister Goodale for your reflections on Constable Beckett. I know that the thoughts of everyone in Parliament and in Canada are with her husband and children and their colleagues.

As you are right to say on Bill C-7, we certainly followed the Mounted Police Association case to the Supreme Court, and it's our intention to try to work with the government on Bill C-7. You'll note that we've said two things that we want to see, as critical to this bill and the discussion around it.

One is the right for front-line members of the RCMP to vote by secret ballot on their own union, which your officials have said to us in briefings is the normal course for public sector unionization. We expect to see that, despite Bill C-4.

The other critical piece, and I mentioned this in my speech in the House, is the wellness of RCMP members, particularly with respect to mental health and balancing off their needs. As you know, I was veterans minister for a time. Veterans Affairs Canada administered benefits for RCMP veterans post-release.

I think now is an appropriate time for us to have a complete discussion whenever benefit regimes are being changed, because we learned that in the move to the new Veterans Charter—and both the Liberals and the Conservative governments more or less owned that change—there wasn't enough discussion and understanding of the changes, and that led to a lot of stress.

My two questions will focus specifically on clauses 40 and 42 and some changes. Bill C-7 is now including the RCMP in the Government Employees Compensation Act rather than in the old occupational health regime of the RCMP.

Minister Goodale, you said that this is because it's lacking features such as appeal mechanisms and structural things like that. But for a federal police force, it looks as though this is the outsourcing of a single federal force to ten different provincial standards across the country, through workers' compensation.

Can you explain to us how that will ensure a high standard for members of our federal police force?