Bill C-65 (Historical)

An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1

Part 1 of this enactment amends the Canada Labour Code to strengthen the existing framework for the prevention of harassment and violence, including sexual harassment and sexual violence, in the work place.
Part 2 amends Part III of the Parliamentary Employment and Staff Relations Act with respect to the application of Part II of the Canada Labour Code to parliamentary employers and employees, without limiting in any way the powers, privileges and immunities of the Senate and the House of Commons and their members.
Part 3 amends a transitional provision in the Budget Implementation Act, 2017, No. 1.

[Troy Winters, Senior Officer, Health and Safety, Airline Division, Canadian Union of Public Employees (CUPE)]

We've heard the words of all the parties and have spoken with the dedicated staff of the labour program. I truly believe that everyone here wants to reduce violence. However, Bill C-65 proposes changes to the internal complaint resolution process that ensure that incidents of harassment and violence will not be brought to the joint health and safety committees for investigation or resolution.

Additionally, by changing sections under 134, 135, and 136, the bill reduces the investigative duties of committees and representatives. This is a departure from the rest of Canada, where health and safety law is defined by a concept known as the “internal responsibility system”, under which employers lead with the participation and consultation of health and safety committees.

CUPE has always contended that when violence, regardless of the type, happens in the workplace, the health and safety committee should be involved at an appropriate level so that they are able to determine the systemic breakdowns that allowed the violence to occur. For all hazards, health and safety has practised in Canada jointly with employers and workers through the internal responsibility system; for violence it should be no different. If the changes to the ICRP and the duties of the committee under Bill C-65 take effect, workplace harassment and violence will be handled solely by the employer.

As Marie-Hélène has stated, our flight attendants frequently deal with harassment, but we know, and we also hear in the news, about flight attendants being attacked while working on the airplane. We also know the potential for violence to all of our border guards, postal workers, armoured truck drivers, and many in the federal service. Why would we change the law to stop the committee from investigating these incidents? Who is better positioned than the people on the committee who actually operate these flights to help make the skies safe? In the case of sexually based violence and harassment, why would we remove the one legal route that could provide a trusted non-managerial source to help victims and survivors?

The Minister of Labour has stated that the goal is to prevent violence, to respond when violence occurs, and to provide support to survivors. It is CUPE's position that one of the best vehicles to accomplish all these goals is the existing health and safety committee structure. We implore the committee to recommend amending Bill C-65 to allow health and safety committees to do their job around all forms of violence.

We look forward to your questions. Thank you very much.

[Marie-Hélène Major, Secretary-Treasurer, Airline Division, Canadian Union of Public Employees (CUPE)]

Thank you.

The Canadian Union of Public Employees welcomes this opportunity to comment on Bill C-65 and present our recommendations to this committee for consideration.

CUPE is Canada's largest union, representing 650,000 members across Canada. We have federally regulated workers in communications, energy and transportation such as airlines, light rail and ports.

I represent the Airline Division of CUPE with over 12,000 unionized flight attendants.

I know the work environments of CUPE members expose them to numerous work-related hazards, most of which are well regulated. However, in spite of the demands of their work environment, which we strive to handle, workers should never be exposed to violence in the workplace whether in the form of verbal threats, harassment, physical violence, or sexual aggression and violence.

The close working environment, the occupational power hierarchy, and the spectrum of violence create a complex multi-dimensional issue, which will require close attention to ensure a process is developed that will respect principles of justice, human rights, equality, and privacy in the application of our health and safety laws.

CUPE strongly supports the government's renewed efforts on violence prevention, especially the often overlooked sexually related violence, and would like to echo the positive aspects of this bill as have been expressed by our colleague.

However, as was hinted at earlier, different types of violence will require different solutions, and while aspects of Bill C-65 provide positive steps towards facilitating safe and accountable workplaces and the prevention of violence, CUPE strongly believes that some of the proposed changes will have the opposite effect in the workplace.

Limiting the role of health and safety committees will, in the view of CUPE, lead to a chilling effect on reporting and increase the opportunity for all workplace violence, including systemic harassment, sexual violence, and assaults, to remain unaddressed.

As a case in point, sexual harassment and assaults on women within the airline industry are common experiences for our members. Heavy-handed management tactics, flawed policies, and flight crew power dynamics cause our flight attendants to be very hesitant to report. Frequently, members will come to us for help but wish to remain anonymous. In our experience, it's not only the shame of being a victim that keeps them from coming forward; it's the fear of reprisals. Even after we explain how we can help protect them, they are reluctant to go through the process for fear of experiencing victim shaming and blaming, having to face their aggressor, and potentially losing their job as a result of a poorly conducted investigation. They have no faith in the system's ability to protect them from traumatization and further abuses. In fact CUPE members have, in the past, reported incidents to the union but have prevented the union from moving forward for fear that they will lose their job or that their eligibility for promotion would be reduced.

Ensuring that workers do not experience reprisals from their employer when they report violence, allowing them access to their health and safety committees if they want it, and building in support and transparency for complainants are crucial factors in reducing barriers to reporting.

The role of health and safety committees is therefore, in the view of CUPE, essential for incidents of sexually based harassment and violence.

Thank you.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

My concern is that yesterday we heard that 22% of people in the public service said in a survey that they've experienced harassment in the last two years, and yet, if I got the numbers right, one third, I think, have not taken any action.

I think we are all very concerned about the people who don't come forward. We can look at the people who are experiencing harassment. Many of them say they don't want to come forward to anybody who is within proximity in their workplace, such as friends of the boss, people who might be working in the same department, and people they're going to have to interact with. We heard yesterday about a tip line that is actually causing more people to come forward, because it's more anonymous. It may be even in another part of the country that the complaint is registered and the process is given.

One of the reasons for Bill C-65, because the current system isn't working, is to have that ability to go external if needed, for people to feel.... It's an irony, but maybe they have more confidence if it's somebody who is not in close proximity.

[Karine Trudel, NDP, Jonquière, QC]

Will the amendments to the Canada Labour Code proposed in Bill C-65 have immediate effects on the current collective agreements? You talked a little about it, but could you give me more details?

[Carl Girouard]

Thank you.

Of course, we are very concerned that Bill C-65 prohibits the participation of health and safety committees in the investigation process, and prevents them from receiving information. We fully understand the need for confidentiality in order to encourage workers to report problems, but we think it needs to be balanced with the need for unions to properly represent their members and receive at least some of the information, to enable them to contribute to the change of culture in the workplace.

We play an important role and we want to ensure that investigations are conducted fairly, equitably and, above all, impartially. I want to reiterate the importance of the competent investigator principle described in Part XX of the Canada Occupational Health and Safety Regulations, entitled “Violence Prevention in the Work Place”: this person has the experience and the skills required to do the job, but they must also be seen as being impartial by both parties, which is very important. It is important to ensure that employers do not conduct their own investigations. This can be problematic in many cases, especially when it comes to sexual harassment and things like that. It is imperative that the person conducting the investigation be impartial.

We have recently found that competent investigators had circulated their reports in health and safety, human resources and labour relations services before making their findings public; those reports had therefore been amended. That's not impartiality.

Confidentiality should exist to protect the victim, not to allow the abuser to hide or to circumvent the bargaining agent or the health and safety committees. This argument is used against us in the workplace, which is very problematic for us.

We are also concerned about the interaction of clauses in the collective agreement with the provisions of Bill C-65. We have an obligation to represent our members. This may include providing support to those who want to complain, or representing someone who is part of the investigative process, as Part XX of the regulations allows. We must also represent people who have been disciplined. There is ample case law on the obligation of unions to represent their members, as well as on the right of unions to have information. If there are no clarifications on this, we wonder what position we are going to be in and what kind of legal debate that will cause.

The bill should also provide more detail on the investigation process. In particular, will the results of the minister's investigation be made public? Can we access it during the grievance process, for example? This concerns us.

We are also concerned about the definitions. We think this is a fundamental aspect that should be reflected in the bill. I have heard arguments that it is easier to change the definitions in a regulation than in a law, and I agree. The important thing is to have clear and precise definitions. Would it be sufficient to include them in the regulations? Possibly. However, if that is really the intent, why not include clear and precise definitions in the bill so that we know exactly what is intended?

[Karine Trudel, NDP, Jonquière, QC]

Thank you, Mr. Chair.

My thanks to the witnesses for their presentations.

My first question is for Mr. Girouard.

Earlier, you mentioned that you could answer questions about Bill C-65, which you have seen. I would like to know your concerns about the limitations and the role of the union with respect to Bill C-65.

[Rachael Thomas, Conservative, Lethbridge, AB]

If Bill C-65 were to be changed to allow a person to not have to go directly to their employer, but rather to be able to seek out the union health and safety committee, let's say, is that the change you're looking for? Or is there a different change that you would be looking for?

[Andrea Peart, Health and Safety Officer, Public Service Alliance of Canada]

Thank you.

The Public Service Alliance of Canada appreciates the opportunity to express our views and provide input into Bill C-65. PSAC recognizes that employees who are women, racially visible, and/or living with disabilities face harassment, discrimination, and violence more frequently. Women in particular are almost four times more likely to face workplace sexual harassment in Canada than men. The statistics are even more troubling for indigenous, racialized, and disabled women. As a result, our recommendations to improve Bill C-65 have an intersectional and gender equity lens.

We applaud the government's intention to improve harassment procedures, protect complainant confidentiality, and—after 25 years— finally extend basic health and safety protections to the staff of the House of Commons, Senate, library, and Parliament as a whole.

While much of this bill is positive, we have recommendations for amendments.

First, the complainant must be provided with a copy of the competent person's report. Transparency is critical for complainants to have faith in the process. However, under the current process, following a part XX violence investigation by a competent person, the complainant does not receive a copy of the competent person's report. In fact, the complainant doesn't receive anything. The complainant must receive a copy of the competent person's report, including recommendations, in order to ensure transparency and procedural fairness.

Our next two recommendations pertain to the regulatory aspect, but are crucially important.

A role for human rights bodies must be included in the selection of a competent person to investigate harassment in the workplace. It is PSAC's experience that many competent persons lack the necessary human rights expertise required to properly investigate harassment on a prohibited ground such as sexual harassment or racial harassment. However, other bodies such as the Canadian Human Rights Commission, the Federal Public Sector Labour Relations and Employment Board, and certain labour board arbitrators already have significant expertise in dealing with human rights complaints and grievances, including sexual harassment and sexual violence. Therefore, it is critical that any regulations provide a role for expert bodies such as the commission to provide or recommend competent persons, and potentially assist in the resolution of complaints.

Next, the regulatory process under part XX must not bar or delay our members' quick and easy access to human rights complaints or grievances, which may offer greater expertise, procedural fairness guarantees, and remedies for complainants. These rights-based mechanisms include the Canadian Human Rights Act, the Federal Public Sector Labour Relations and Employment Board Act, and those in collective agreements to address harassment and violence.

More details on those two recommendations are included in our written submission.

Our next recommendation is to reinstate the health and safety committees' role in both receiving complaints and making informed recommendations by ensuring policy committees receive a copy of the competent person's report. Under the proposed changes, the health and safety committee, and therefore the union, would be excluded from the processes described in the Canada Occupational Health and Safety Regulations, part XX. Receiving complaints is an important function of the workplace health and safety committee. Section 127.1 of the Canada Labour Code provides a process for resolving health and safety related complaints. After reporting an issue to a supervisor, the code provides a mechanism for moving complaints through the internal responsibility system for all health and safety complaints, including violence. However, under the proposed change, workers would no longer be able to bring an issue related to violence or harassment to a health and safety committee for help.

PSAC recommends that the committee's function on receiving complaints relating to an occurrence of harassment and violence be reinstated. We believe this section can be strengthened by establishing that the employee or the supervisor may refer an unresolved complaint to a chairperson of a workplace health and safety committee or to the health and safety representative to be investigated jointly, where consent is provided by the complainant and privacy and human rights are respected.

In addition to receiving complaints, committees are required to investigate hazards. Under existing law, workplace health and safety committees are required to investigate any hazard in the workplace that may lead to injury, including mental injury. However, under the proposed legislation, the jointly administered health and safety committees are explicitly blocked from participating in any activity relating to an occurrence of violence or harassment. We believe this to be a grave error. Instead, we believe that health and safety representatives shall, where appropriate and when requested by the complainant, participate in an investigation relating to an occurrence of harassment or violence in the workplace.

Finally, committees make recommendations for improvement. Workplace health and safety policy committees are an important source of recommendations for improvements. In addition, committees participate in the selection of a competent person, as well as participate in the establishment of essential elements of the competent person's report.

At the very least, we recommend amending the bill to ensure the co-chairs of policy committees receive a copy of the competent person's report, with the complainant's consent, and provided that the privacy and human rights of the parties are respected.

Our final recommendation is to hire and retain a sufficient number of health and safety officers and establish a substantive training system that includes training on privacy rights, human rights, sexual harassment, and domestic violence against women.

Our submission documents the frankly massive decline in the number of health and safety officers since 2005. We also have major concerns regarding the minimal amount of training required for federal health and safety officers compared to provincial-territorial requirements. As an example, the current training for federal health and safety officers is one tenth of the training required in Ontario.

As this bill commits to establish new specialized health and safety officers, it is crucial that the training program be substantive and robust and that it include special training on equity, sexual harassment, and domestic violence against women. There must be a commitment to hiring not only a diverse group of special inspectors from equity groups but also those with expertise in investigating and analyzing harassment on the prohibited grounds of sex, race, disability, sexual orientation, religion, gender identity, etc. It's also important to hire some special inspectors who speak indigenous languages. Any legislation aiming to improve workplace safety must take into account the specific ways that members of equity-seeking groups, such as racialized and indigenous women, experience harassment and violence and how their particular needs might be addressed in a complaints-and-reporting process.

Thank you. We'll be pleased to answer any questions you may have.

[Carl Girouard, National Union Representative, Grievances, Canadian Union of Postal Workers]

Thank you very much.

I would like to thank the committee for giving us the opportunity to make this presentation today.

My name is Carl Girouard and I have been a Canada Post employee since 1991. I was a letter carrier from 1991 to 2006. I then started to work full-time for the Canadian Union of Postal Workers. I am a national union representative for grievances. I have been taking care of grievances for more than 10 years. Since 2011, I have also been a member of the National Health and Safety Committee, the steering committee, and I have been the union co-chair since 2015.

I must tell you that we have gone through various periods at Canada Post. There are many cases of harassment and violence in the workplace. In my experience, in the 1990s and early 2000s, it was possible to talk to supervisors, and common sense still had a place in those discussions. Right now, our members feel that they are no longer treated as human beings, but that they are seen more as numbers, figures, money.

At Canada Post, violence and harassment take different forms. In some cases, it is violence from the public, from disgruntled customers. There is also violence or harassment between employees. At any rate, I want to talk about the harassment that I call systemic, the harassment generated by Canada Post's system and procedures.

Take, for example, the management of absences and, above all, the management of overtime. At the outset, those two principles may seem laudable, but the way they are applied takes away from their legitimacy.

We strongly believe that Canada Post provides financial incentives to supervisors to reduce costs, absenteeism and overtime. This is what drives them to harass and intimidate our members in the workplace. That is why Mr. Trudeau was asked a question about it in Winnipeg; it is a real problem.

The collective agreement specifies that the measurement of work is based on averages. An average, by definition, implies that 50% of people can be faster and the other 50% can be slower. Yet everyone is required to get the same results, the same average, in terms of time. I will explain why this average itself is problematic.

The guide for supervisors managing overtime includes grids and tools to determine whether problems come from somewhere other than the workers, such as the measurement of work or the route. The disciplinary measures imposed on our members show that those tools are not always used. Canada Post does not take into account the experience, the particular problems that may occur on certain days or any exceptional circumstances. It asks our members to justify the time they claim minute by minute.

So evaluation is problematic. It is important to understand that the evaluation of a letter carrier's daily workload is based on what has happened in the last 12 months. Then there is an enforcement process that lasts six months. As a result, when new routes are implemented in a post office, some time has already passed.

In its own communications, Canada Post says that the volume of packages delivered in 2017 has increased by 22% over the previous year. We see that the curve is going up and we quickly understand why the data are no longer appropriate. According to our analysis, the quantity of packages delivered daily by letter carriers has increased by 70% since 2011; it's still not a long time.

Our members work overtime in good faith, in order to complete their work or to provide good service to the public. It has nothing to do with cases of fraud. I can tell you that, in terms of time worked, if there are cases of fraud, Canada Post takes action and fires the people involved. Our members deserve to be thanked, not bullied and harassed in their places of work.

Canada Post keeps a list of employees who work the most overtime in Canada. I can tell you that, when their name is on the list, they become a target.

In the last 10 years, since 2008, 2,875 grievances involving cases of harassment and bullying by Canada Post supervisors have been referred to adjudication.

We have an employee assistance program, which allows them to get support, to access psychologists, among other things, and to talk to people. In 2016 and 2017, two-thirds of the requests from the CUPW letter carrier group were related to work-related issues, stress situations or social isolation. Some people were even at risk of suicide.

So the situation at Canada Post is alarming. I wanted to take the time to explain it to you.

I will be pleased to answer your questions about Bill C-65 in the discussions that will follow.

Thank you.

[The Chair, Liberal, Bryan May]

Welcome.

Pursuant to the order of reference of Monday, January 29, 2018, the committee is resuming its consideration of Bill C-65, an act to amend the Canada Labour Code, harassment and violence, the Parliamentary Employment and Staff Relations Act, and the Budget Implementation Act, 2017, No. 1.

Today the committee will hear from federally regulated private sector unions. Given the size of the group today, we've broken it into two different panels. In the first panel, coming to us from the Canadian Labour Congress, we have Marie Clarke-Walker, secretary-treasurer, and Tara Peel, national representative. From the Canadian Union of Postal Workers, we have Carl Girouard, national union representative, grievances. From the Public Service Alliance of Canada, we have Patricia Harewood, legal officer, and Andrea Peart, health and safety officer.

Welcome, all of you, and thank you for being here today. We know that we've had quite the quick turnaround on this committee, so we really appreciate you making time to be here to help us make sure that this bill is as good as it possibly can be.

We're going to start with the Canadian Labour Congress.

The next seven minutes are yours.

[Karine Trudel, NDP, Jonquière, QC]

Thank you.

Ms. Dufresne-Meek, your organization's employees belong to unions. Will the amendments made by Bill C-65 to the Canadian Labour Code round out the collective agreements? Will they need to be reopened or adjusted? How do you think you'll be able to work this out with the union and with Bill C-65?

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

That is quite a clever answer.

Bill C-65 is unclear on this issue. Still, we must address this reality, because most workplaces in the public sector and federal government are unionized.

Ms. Dufresne-Meek, are you of the same opinion?

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Great.

Most of you work with unions. My question is on the current situation and our recommendations to unions, as referred to in Bill C-65.

I'll start with you, Mr. Thibodeau. Do unions currently support victims of harassment? If so, do you view Bill C-65 as a step in the right direction?

[Marc Thibodeau]

We have the option of both. We do most of our investigations internally, but we have an avenue whereby we can go outside and hire independent investigators.

I think the accountability to provide a workplace free of harassment rests with the deputy head, and I join that with the fact that the best resolution of any conflict in the workplace is the one reached closest to the workplace.

I welcome the opportunity to go to a third party when the internal mechanism is not working, but I think that having the possibility of going internally to your supervisors, generally speaking, is definitely a good thing. I can see some situations where that could be problematic or bring the impression that it will not be fairly addressed, so I think going outside is also desirable. Given that we're enshrining this into the code will Bill C-65 and that the ministry is the place that administers the code, it would make sense that it go there.

[Rachael Thomas, Conservative, Lethbridge, AB]

Okay. Thank you.

My next question is for the RCMP, CBSA, and Correctional Services. I'd like each of you to answer it separately.

The question is this. If I'm understanding correctly, each of you does your own internal investigations when a complaint comes forward. Bill C-65 will now allow people to report directly to the minister and then go from there. The first step, technically, is to report to your employer, and then, if that doesn't go so well, to the minister.

I'm wondering what your thoughts are on this. Is this the best reporting mechanism, or could we strengthen this further and make it better?