Human Resources Committee on Dec. 5th, 2006

[Geoff Regan, Liberal, Halifax West, NS]

Perhaps I could ask the minister to have those tabled or provided to us in a few days.

Let me turn to the question of the present bill and what difficulty unions may have in proving and establishing that the use of replacement workers is undermining their capacity to engage in bargaining. It seems to me that is one of the key concerns of unions, that it creates an onus against them, which is sometimes very difficult for them to overcome. What can you tell us about that?

[Jean-Pierre Blackburn, Conservative, Jonquière—Alma, QC]

Let me come back to the use of replacement workers and the importance of the balance of power. If the current legislation, which was enacted in 1999, permitted the use of replacement workers and yet, conversely, a striking employee had no guarantee he would get his or her job back, then of course, there would be a lack of balance. It would not make sense.

Employers, however, may call on replacement workers when there is a strike. The purpose is not to undermine the union's representational capacity. And the employee, who is on the picket line, returns to his or her position at the end of the dispute.

I'd also like to talk about another aspect of the balance of power. It isn't always easy finding an employee to replace the employee who normally fills that position in a business. This places pressure on the employer. The employer faces the pressure of having to find a competent person to carry out the tasks the striking employee would normally be responsible for.

There is therefore pressure on the employer to settle the dispute and also pressure on union representatives and on the employees who are on strike. During a dispute, business suffers. That is a form of pressure. Workers have to bargain their return to work and, of course, maintain their livelihood and go on with their family lives and their activities in society. That's why the legislation was so carefully considered; a lot of thought went into it.

Your committee will be hearing from about 20 groups, some of which asked to appear before you. I found out that labour and management representatives, and other such witnesses, will have 20 minutes to make their representations. Just 20 minutes! Imagine travelling from Vancouver to appear for a mere 20 minutes before a committee; the witness would have seven minutes to present his or her brief and 13 minutes to answer questions. They are being squeezed in. This shows, in my opinion, a lack of respect towards these representatives who have taken the time to appear before you and explain the pros and cons of this bill.

[Geoff Regan, Liberal, Halifax West, NS]

I appreciate your comments, minister. However, I would like you to stick to the questions, please.

I'd like to continue our discussion on balance and the use of replacement workers. Should employers decide to stop the workers from entering the workplace, don't you think a balance would better served by having a ban in such a situation?

Why would you not support that type of measure, for instance?

[Jean-Pierre Blackburn, Conservative, Jonquière—Alma, QC]

Could you please repeat your question? I missed part of it.

[Geoff Regan, Liberal, Halifax West, NS]

That's my fault for trying to use both languages and using my second language badly. Je m'excuse.

Let me try again. Would you think there'd be a better balance between employers and unions under the act, if the section included a ban on replacement workers in cases where employers lock out workers? And if not, why not?

[Jean-Pierre Blackburn, Conservative, Jonquière—Alma, QC]

If there is a lock-out—

[The Chair, Conservative, Dean Allison]

You have one minute to respond.

[Jean-Pierre Blackburn, Conservative, Jonquière—Alma, QC]

If there is a lock-out, as a rule, the business stops operating. That's simply what happens. If there's a strike, things are different. But during a lock-out, work is put on hold.

[Geoff Regan, Liberal, Halifax West, NS]

I'm not certain. Obviously, the point is that there's no ban on the employer using replacement workers in the case of a lockout. Should there be one? That's the question.

You're telling me that it's not really an issue.

[Jean-Pierre Blackburn, Conservative, Jonquière—Alma, QC]

I'd remind you again of the importance of maintaining balance. If you put a ban on the use of replacement workers you are giving power to the union movement. In this sense, the balance is disrupted because you're giving one group an incredible amount of power to pressure the other. And such pressure is all the more far-reaching when the conflict is nation-wide.

If Canada's banks stopped operating, if the stock market or the airline industry ground to a halt, what sort of impact do you think this would have on Canada's economy? The whole country would be paralyzed. That's why using replacement workers is important, with the proviso, of course, that unions' representational capacity isn't undermined. The proof is in the pudding: 19 complaints have been filed with the Canada Industrial Relations Board. Of these 19 complaints, 13 were deemed unsubstantiated, two were withdrawn and two remain under consideration.

So, the system works. That's why you need to be careful. Be extremely careful.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Regan.

We're going to move to Madam Lavallée for seven minutes.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Welcome minister. Thank you very much for coming this morning to talk to us about your vision of the anti-strike breaker bill.

On November 5, 1990 you were a Conservative member of Parliament for the same riding you represent now, and you voted in the House in favour of a bill tabled by one of your colleagues at that time, the member for Bas-Richelieu—Nicolet—Bécancour, Mr. Louis Plamondon.

Your decision to support the bill was certainly not based on statistics, because Quebec's statistics show that in 1989, 6.9% of the person-days lost were by employees under federal jurisdiction. For statistics on the duration of disputes in terms of the number of days lost, you cannot put employees under federal jurisdiction being put in the same basket as those under provincial jurisdiction. Distinctions must be made.

Nor can we calculate the frequency, because labour disputes may last a day, a half a day, or perhaps three shifts. The real statistic is the number of person-days lost. Comparisons must be made within the same province between employees under federal jurisdiction and employees under provincial jurisdiction.

The Quebec government's statistics show that for certain years they are not very impressive. I will give 2002 as an example. In Quebec, workers under federal jurisdiction represented approximately 6% to 8% of the workforce. In 2002, 47.8% of the person-days lost were by employees under federal jurisdiction. That figure is a far cry from their 6% or 7%.

There have been better years, it is true: 14.2%, 8% and even 1.6% in a given year. However, the averages of the two charts that can be found on the Quebec government website are 12.2% and 18% respectively, from 1995 to 2004; but there are also years showing averages of 47%.

Minister, these are real statistics that must be taken into consideration.

I will make two comments and let you react to them.

The balance you are talking about is the employers' balance. The Sims report that you quoted did indeed result in an amendment to the Canada Labour Code aiming at authorizing the use of replacement workers. However, Mr. Rodrigue Blouin wrote a dissenting report on replacement workers. We are not talking about just anyone here: he is a great intellectual from Quebec and a professor at Laval University. His whole study is based on the fact that replacement workers upset the balance of power between the employer and the employee.

Replacement workers are intruders in a dispute that concerns two parties: the employer and the employees. These intruders always shift the balance of power in favour of the employer, and never, absolutely never, in favour of the employee.

And yet, the anti-strike breaker legislation that has been in effect in Quebec for 30 years, since 1977, forcefully demonstrates to what degree union peace can be achieved and this balance respected. In fact, in Quebec over the last few years, the long, painful and difficult strikes always involve businesses under federal jurisdiction. There was the Videotron employees strike; the Radio Nord Communications strike that lasted 22 months; the Cargill strike that lasted 36 months. There was even a strike, at CHNC, a radio station in Bonaventure, that lasted three years. And what did the 12 replacement workers do, after two years? They asked for their union certification.

This clearly shows that not only are replacement workers intruders as far as the balance of employer-employee negotiations is concerned, but also that they are workers unlike the others, since they were refused their union certification.

[Jean-Pierre Blackburn, Conservative, Jonquière—Alma, QC]

Ms. Lavallée, I will make a few comments on these studies.

We can all quote from studies, but I don't think it is in any of our interests to mislead parliamentarians by quoting studies for partisan purposes only. What is at stake is too important. We are talking about the success of the economy, about employees who can experience a strike, who are without a salary—

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

We are talking about workers' quality of life.

[Jean-Pierre Blackburn, Conservative, Jonquière—Alma, QC]

That is right, but businesses must also be able to function. I want to come back to the importance of balance. Here are a few studies.

The Landeo, Nikitin study from 2005 said that the availability of replacement workers reduced the probability of a strike.

The 2005 Singh, Zinni Jain study stated that the effect of replacement workers depended, amongst other things, on the kind of industry the employer was operating in, but that they could cause antagonistic labour relations.

Another study, the 1999 Cramton, Gunderson and Tracy study, said that the average duration of a strike was 32 days longer in jurisdictions where there was anti-strike breaker legislation, and that the probability of a strike was 12% higher.

It seems that strikes last longer where there is anti-strike breaker legislation than where there is not, according to this study published in 1999, at the very time that Parliament passed the legislation. There are other similar studies. You can see that that contradicts certain perceptions.

Moreover, as far as the average length of work stoppages is concerned, from 1975 to 1977, before the legislation was enacted in Quebec and British Columbia, it was 28 days in Ontario and 37 days in Quebec.

Between 2003—

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

I'm interrupting you, minister. Earlier, I said that it made no sense to compare Ontario to Quebec. We should compare Ontario to Ontario and Quebec to Quebec.

In Quebec, we must compare the person-days lost by employees under federal jurisdiction to person-days lost by employees under provincial jurisdiction. That is the proper way to do statistics. Those are the statistics that makes sense; the others do not.

For example, in Quebec, in 2002, 48% of the person-days lost were lost by employees under federal jurisdiction. And yet, you want to include Ontario's statistics. That is what does not make any sense.

[Jean-Pierre Blackburn, Conservative, Jonquière—Alma, QC]

How is it that you do not want to compare ourselves to Ontario, whereas that is our neighbouring province? Our economies are often intertwined. On the contrary...

What is more, at one point in time the province of Ontario had also passed anti-strike breaker legislation. A few years later, the province changed its mind and rescinded it. If it had been good, after having been passed, it would not have been abolished. How is it that it was passed, and then abolished?

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Minister, you have put forward that argument several times, and it is rather bizarre.

[The Chair, Conservative, Dean Allison]

That's all. We're over time now, over seven minutes.

I want to thank Madame Lavallée.

I do have “Seeking a Balance”, and we're talking about Mr. Blouin. He quotes in here: “To this extent, the objective of prohibiting the use of replacement workers cannot be to prevent the business from carrying on its activities...”. He then goes on to say: “...the employer cannot be prevented from subcontracting work....This option that contracting-out gives the employer thus becomes crucial, just as the ability to find work elsewhere during the dispute becomes crucial to the employee.”

That was a quote from Mr. Blouin in terms of what he did say in his minority report.

We're going to move to Ms. Davies, please, for seven minutes.

[Libby Davies, NDP, Vancouver East, BC]

Thank you very much, Chairperson.

Thank you to the minister for appearing today on this very important bill.

You made a comment about the length of time that the witnesses have. I would say that I'm not aware that it's different from panels or lengths of time that witnesses have on other subjects or bills. I think we're using the normal procedures to deal with this bill and to hear from witnesses.

However, based on your comments and hearing what you had to say today, your central point seems to me to be that you want to maintain the current balance. You talked a lot about “maintaining the balance”. I think this is a very central question to this bill, because the way I see it is that as it stands now, the lack of anti-strike-breaker legislation means that there isn't an adequate balance. When workers legally take strike action and then they see that replacement workers can be brought in, it seems to me that's what creates a lack of balance. It's something that then provides a major tool in favour of an employer to break the strike that has been legally constructed and legally taken. I think many of us see the anti-strike-breaker legislation as something that actually does maintain the balance. It does create a level playing field.

I'm quite surprised that the federal government, your department as the minister, would play into this climate of fear that I think is being created by some employers that this legislation is going to create chaos. That's what's underlying the messages that we see in the advertisements and that I'm sure we're going to hear about from some people today. It seems that you are adding to the message that it will be a climate of confusion and chaos. People will obviously be fearful of that.

What you haven't said is that where we have anti-strike-breaker legislation there is a process. For example, in B.C., where I'm from, there is a process for looking at what is regarded as essential services. On your example of looking at airport services, for example, in a federal jurisdiction, if this bill came into effect--we obviously have to look at amendments and so on--from what we know from other legislation, there obviously would be a mechanism to deal with essential components. I mean, we have that now in other jurisdictions. Again, that is something that's part of a level playing field and a balanced approach. I'm really surprised at the line you are taking here in terms of saying that you are maintaining a balance but actually being against a bill that would actually create a level playing field.

Secondly, I take it from your comments that you do support the principle of replacement workers. You do believe that they should be able to come in and in effect disrupt a legal strike. In hearing your words today, that's really what you're saying by speaking against this legislation. Are we to assume that you do support replacement workers, and that the employer should have the right to do that?

[Jean-Pierre Blackburn, Conservative, Jonquière—Alma, QC]

Ms. Davis, you believe that when replacement workers are used, the balance is upset. That is not true, particularly when the labour dispute is on a national scale.

First of all, Bill C-257 does not cover essential services. How are we to maintain essential services on a national scale? Must we establish them in every subgroup of workers? How would that work? Any small group of employees has the power to paralyze the economy. A small subgroup goes on strike in an airport, which then must shut down, and air transportation is suspended across the country. That would be a good example for another small group that provides service to passengers on board trains. It applies to the tiniest component of any service that we would find in this country. Internet service is suspended, and the economy of the entire country is paralyzed.

This is not an issue of minor importance, it is major. We must be able to maintain this balance by allowing the use of replacement workers. I repeat, striking employees, once the strike is over, return to their jobs. They are not fired; they are obliged to resume their duties. An employee who refuses to work during a strike cannot be penalized by the employer. The employee is protected by the current legislation.

I remind you of the importance of viewing things from a national perspective. What will we do if the baggage handlers are on strike and there is no more air transportation in the country at some point? How long can we allow that to last? How long can the country run that way? How long can we function if we cannot go to the bank? A day, two days, three days, three months, three years? How long?

That is what you, the members of Parliament, will be facing if you pass this legislation. That is what will happen. That is why it is important to maintain this balance. The current legislation is balanced. There was consensus between the parties, and at the time, the Liberal government and the Conservatives agreed. Everyone felt that, indeed, it made sense. All of a sudden, the Liberals were able... I do not know what the current leader's position is, but I appeal to him to bring people back to order. Recess is over; this is a serious debate.

[Libby Davies, NDP, Vancouver East, BC]

I hope the new leader of the Liberal Party will support this bill, because it is a very fair and equitable bill.

It seems to me the answer you provided begs the question that when a dispute happens there are provisions and mechanisms that exist in all jurisdictions to deal with essential services. That's something you do on a case-by-case basis. I don't see that this situation here would be any different.

So again, I really feel you are creating a climate of fear when that doesn't need to exist. In terms of a determination, usually with a third party, there are provisions to deal with essential services that both the employer and the union can be involved in. That exists now. Do you not agree? That is a mechanism that exists across the country and could be used in a federal jurisdiction.

[The Chair, Conservative, Dean Allison]

Minister, you have about 10 or 15 seconds left. Just a quick response, please.

[Jean-Pierre Blackburn, Conservative, Jonquière—Alma, QC]

Thank you.

Before telling us that we want to create a climate of fear, you have to face reality. I repeat: all of this is of national importance. You must see that. The economy must continue to function, and the legislation that is in place...

Do you believe that when the previous government analyzed this legislation in 1999, that it was done quickly and haphazardly? It was studied and reviewed at length. That is why we decided to allow for the use of replacement workers. On the other hand, after a strike, employees return to their positions, and the union representational capacity cannot undermine that. There is a kind of balance.

Had we said to employers that they could use replacement workers and that, once these people came to work, the ones left outside could stay there, then one could say that there was no balance and that we had favoured the employer to the detriment of the union and the employees.

However, that is not what parliamentarians decided: they had the good idea to go for a balance so that things would work, and they have worked since 1999. I will repeat again, there has been 19 complaints: 14 were withdrawn, 2 were rejected and 2 are still being studied by the Canada Industrial Relations Board.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Blackburn.

We're going to move now to the last round of seven minutes.

Mr. Lake, please.