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.

[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?

[Don Graham]

I think one thing that has been done in Bill C-65 is its whole confidentiality aspect. It should encourage people to come forward as long as they have the confidence that it will be kept confidential.

That in itself, though, may pose a bit of a difficulty if there is action that possibly needs to take place, and I'm thinking in the form of discipline or something like that. It will be confidential to the investigation, relative to a harassment that's taking place, and with the competent person, so it's not necessarily information that can be used by the employer.

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

Thank you.

Thank you very much, all of you, for being here to answer our questions.

Mr. Graham, I'd like to go back to that statistic of the 22% who are experiencing harassment. You indicated that a large percentage within that have taken no action, the reasons being a fear of reprisal and a concern about the process. One of the things that can create that, of course, is that if you see others go through a process, it's re-traumatizing, it takes a long time, and then there's no outcome, it can actually deter others from going through the process.

What things could we do within Bill C-65 that would turn that around? I think we all agree that it's unacceptable that so many people are not taking action even though they are facing harassment.

[Sean Fraser, Liberal, Central Nova, NS]

Okay. I apologize for cutting you off, but I have a few things I'd like to get through.

Mr. Graham, you described the need to exhaust all intra-departmental remedies before you can approach the remedy under the Canadian Human Rights Act. In regard to some of the fears I have about this requirement, one is that it revictimizes the person who has already been harassed or potentially treated in a violent way by their employer and is having to go back to that same employer who is telling them that it wasn't actually a big deal.

Do you think there's an opportunity in Bill C-65 to potentially move away from this model? Or do you think there is an important reason to keep the need to report things first through internal remedies before you take that next step?

[Sean Fraser, Liberal, Central Nova, NS]

Thank you very much. I'll pick up where my colleague Ms. Trudel left off with Mr. Thibodeau.

You mentioned during your testimony the “no wrong door” approach when there's a complainant. My initial reaction was that it sounds appetizing in some ways, but I also have some concerns about a lack of clarity of process. Is there an opportunity in Bill C-65 to enshrine some clarity for a complainant so they're not worried that “no wrong door” becomes no door at all?