Human Resources Committee on Dec. 7th, 2006

[The Chair, Conservative, Dean Allison]

Pursuant to the order of reference adopted by the House on October 25 and to the motion adopted by this committee on November 23, the committee will now resume its study on Bill C-257. The meeting will go for a maximum of 75 minutes.

Each group of witnesses we have before us will have seven minutes to make their presentations. There will be two rounds of questioning, one of seven minutes and a second round of five minutes. I will do my best to keep my eye on the clock.

I would like to remind everybody the questions should come through me, the chair, as I realize that all groups feel fairly passionate about this issue in one way or the other.

Deborah, perhaps you could start. We'll give you seven minutes. Thank you very much for being here today.

[Deborah Bourque, National President, Canadian Union of Postal Workers]

Thank you.

I'm Deborah Bourque. I'm the national president of the Canadian Union of Postal Workers. On behalf of our 54,000 members, I want to thank you for the opportunity to present our views on Bill C-257. For your information, the majority of our members work at Canada Post. We represent some private sector bargaining units, some under the federal legislation and some under provincial legislation, but the vast majority of our members work for Canada Post and they are federally regulated.

CUPW members have seen our major employer, Canada Post, use scabs during strikes in 1987 and 1991. So we know first-hand how the use of scabs can cause suffering, can divide communities, can make strikes longer, and can cause violence on picket lines. I know this committee has already heard example after example, from the Canadian Labour Congress and others, of similar experiences.

I want to say that the Canadian Union of Postal Workers wholeheartedly supports the submission made by the Canadian Labour Congress yesterday.

On the other hand, there are many clear examples of the benefits of anti-scab legislation, and I'm sure you've heard some of those as well. I will underscore some of those examples. Provincially, Quebec outlawed the use of scabs in 1977, and the average number of days of work lost to labour disputes dropped. British Columbia ended the use of scabs in 1993 and experienced a 50% drop in the amount of work time lost to strikes and lockouts the following year.

I think it is ironic that the major strikes in Quebec and British Columbia that most rankled workplaces were TELUS and Vidéotron, and both fell under the Canada Labour Code rather than the provincial code.

Internationally, we have examples of anti-scab legislation in Germany, France, and Italy, as well as in northern Europe. Research done by Labour Canada, Statistics Canada, and the Canada Industrial Relations Board shows that anti-scab regulation, where it exists in Canada, has not disrupted the workplace balance, led to increased work stoppages, or brought unrealistic pay demands from union negotiators.

I note that our own employer, Canada Post, was a signatory to the full-page spread in The Hill Times this Monday lobbying you to dismantle this bill. I shouldn't be surprised, given Canada Post's choice of confrontation over negotiation and their use of scabs during our 1987 and 1991 strikes. I am, however, shocked that Canada Post didn't learn from those bitter experiences, which included violence. Certainly, the mail was not delivered and processed during that time. It was simply a confrontation. It was simply an attempt to break the union and to undermine our collective bargaining. It resulted in mass firings of folks who were reinstated later at arbitration, and it also had a serious impact on the future of labour relations in the post office, not to mention the exploitation of unemployed and largely immigrant workers who were forced to work as scabs.

The executive vice-president of the Canadian Federation of Independent Business, Garth Whyte, says that this bill will make Canada less competitive and that it threatens the survival of small businesses that rely on federally regulated services like Canada Post.

I want to say that the CFIB has a history of exaggerating the impact of postal strikes on their members.

In 1981 the CFIB stated publicly that our strike caused 3,000 bankruptcies. Statistics provided by the Superintendent of Bankruptcy proved that statement to be completely false, and in fact, revealed that the strike had no significant impact on business bankruptcies. In 2002, Mr. Whyte told Direct Marketing News that they had a 15,000-member survey in which respondents claimed, with no back-up, that the postal strike directly or indirectly impacted their business, and concluded that the 1997 strike was costing small business $300 million a day. I note that in recent op-eds and open letters he's saying it cost them $200 million a day. In July 2003, even about a threatened strike that didn't happen, Mr. Whyte said, “This postal strike has the potential of being SARS and BSE combined to our membership.” This is an absolutely outrageous prediction.

This committee should seriously examine the record of the CFIB in terms of its statements concerning postal strikes.

I want to point out, as well, that Canada Post is not an essential service. I would argue that it's an incredibly important service to the population and communities and business all across Canada and Quebec, but it's not an essential service.

I just want to speak briefly about the notion of essential services. Unions negotiate essential services with their employers, because they understand the importance of the work they do. This legislation should not impact on that. There's a large difference between folks providing essential services and scabs. Members that provide essential services are not even close to scabs—so that can be rectified very easily. We support essential services.

CUPW also understands that postal strikes have an impact on postal users, and we've tried to minimize that impact on the most vulnerable groups, such as seniors and low-income people. Our members actually deliver cheques during our postal strikes. The union meets for months with Canada Post before potential strikes to ensure those cheques are processed and delivered by our members in spite of any labour dispute we have with our employer—and we've been doing that since 1981.

In closing, I'd like to say that CUPW members support this bill because we've had direct experience with replacement workers and because we know that the use of scabs seriously undermines free collective bargaining and any notion of balance of power within labour relations.

I also want to take the opportunity to thank the members of Parliament who have supported this legislation and fought for it for years, and the many activists, as well, who have worked so hard lobbying, gathering signatures, and mobilizing support for this legislation.

Thank you for the opportunity to make this brief statement. I'd be happy to answer any questions.

[The Chair, Conservative, Dean Allison]

Thank you, Ms. Bourque, and thank you for keeping on time. You're a great example for the rest of our witnesses who'll be coming along.

We'll now take seven minutes for Mr. Vaudreuil.

Mr. Vaudreuil, seven minutes, sir.

[François Vaudreuil, President, Centrale des syndicats démocratiques]

Thank you, Mr. Chairman.

I would like to begin by stating that the CSD supports the introduction of Bill C-257, which aims to prevent employers governed by the Canadian Labour Code from employing replacement workers during strikes or lock-outs.

We are delighted that it has been passed at second reading by the House of Commons, and believe that passing it at third reading will result in a fairer balance of power between employers and unions during strikes and lock-outs.

Bear in mind that the right to strike and the right to impose a lock-out are cornerstones of the Canadian collective bargaining system, a system that, furthermore, relies on both parties negotiating in good faith.

With the exception of a few circumstances set out in the law, we are of the belief that there should be no third party intervention during a strike or lock-out—any financial conflict ought to be strictly between the two parties involved, the employer and the union.

We believe that employing replacement workers violates the fundamental principle of our industrial relations system that governs the relationship between the two parties by collective agreement. Indeed, the use of replacement workers upsets the economic balance of power between the employer and his employees. Our system is based on the premise that if employees cannot earn a living and employers cannot run their business they will be motivated to reach a mutually acceptable resolution to the conflict as quickly as is possible. Both parties are trying to keep their heads above water.

That is the way in which our industrial relations system operates. There are other characteristics of the system that must also be taken into consideration when discussing this matter. I would like to take this opportunity to tell you how frustrated striking employees feel when replacement workers are hired; they feel that their jobs are being stolen from under their feet. Along with giving rise to frustration, this situation also breeds resentment that sometimes lasts for years. Nothing is more harmful to a working environment than widespread resentment.

Such a situation also creates tension in the local community, tension that can sometimes take years to dissipate. I experienced the asbestos strike myself—we can discuss it during the question and answer period if you so wish. Decades after the strike, I heard testimony proving that communities had been deeply scarred, primarily because of the use of replacement workers.

Obviously, when the conflict is resolved, in most cases where replacement workers had been hired, it is more difficult to turn the page and create the healthy workplace environment that is so necessary to the success of a business.

I would like to end by talking to you about Quebec's experience in this field. The Quebec Labour Code has outlawed the use of replacement workers since 1977—this has allowed us to strike the right balance in our industrial relations system.

We have also noted that these provisions have resulted in other important trends. They have led to a considerable reduction in workplace violence and have improved the workplace environment in the aftermath of a labour dispute. Furthermore, they have in no way had a negative impact on the frequency or duration of disputes, nor on the performance of the business.

In conclusion, we sincerely hope that this bill will be adopted by the House of Commons, as it will strengthen our industrial relations system by creating a fairer balance of power between employers and employees.

Thank you, Mr. Chairman.

[The Chair, Conservative, Dean Allison]

Thank you very much.

We're going to move on to our next witnesses, from the Chamber of Commerce. Ms. Hughes Anthony and Mr. McKinstry, you have seven minutes, please.

[Nancy Hughes Anthony, President and Chief Executive Officer, Canadian Chamber of Commerce]

Thank you very much, Chair.

I am accompanied here by Rob McKinstry, senior policy analyst with the Canadian Chamber, and I'm the president and CEO of the chamber. We represent more than 170,000 businesses from every industry, every region of Canada, every sector, and our members are deeply concerned about the impact of this bill.

You have a copy of our presentation, so I will not go into it in any detail. There are just a couple of comments I'd like to highlight.

First of all, I'll make a few comments about the impact of this proposed bill. I was listening to some of the earlier witnesses discuss the implications of this bill. Our reading, for example, of proposed subsection 94(2.4) of the bill is that it clearly states, in our view, that in the case of a strike there will be, as proposed by this bill, no measures allowed to continue the production of goods and services. That is our reading of that particular provision.

I would point out that federally regulated companies are federally regulated for a reason. They form the basis of a web of essential services for Canadians.

Canadians expect businesses and the government to deliver services that are essential to their health and wellbeing. Bill C-257 would undermine this expectation as companies would be forced to sit idle during a work stoppage. Federally-regulated companies are responsible for delivering the food that people eat, ensuring that 911 services are operable and accessible, and for executing financial transactions.

In the opinion of the Canadian Chamber of Commerce, it is unconscionable that a law would be enacted that would put services essential to Canadians in jeopardy without any demonstrated purpose.

Here are just a couple of facts. I believe this committee has been made aware of a study done in October 2006 by HRSDC that specifically states: “There is no evidence that replacement worker legislation reduces the number of work stoppages.” Further, it gives statistics that note that the number of work stoppages that fall under the Canada Labour Code is significantly lower than the number of work stoppages in Quebec.

In addition, there's no evidence that replacement workers legislation has reduced the average duration of work stoppages. Once again according to that HRSDC data, despite Quebec's legislation the average work stoppage in that province has risen from 37 days on average between 1975 and 1977 to approximately 47 days on average during 2003 to 2005.

Mr. Chair, I was going to refer to some of the history of policy-making around the Canada Labour Code. I understand the next witness will be going into that in some considerable detail. Here are just a couple of notes.

We are all aware of the task force that led to the amendments of part I of the Canada Labour Code, the Sims task force.

The primary objective of the Sims task force was to balance the interests of both employers and employees. The title of his report, dated January 31, 1996, was "Setting a Balance". Mr. Sims wanted to ensure that his report reflected the interest of all parties, not just those of one stakeholder group. Unfortunately, Bill C-257 would disrupt the balance.

I think there is some evidence, Mr. Chair, that in the twenty-year period before the establishment of the Sims task force, Parliament was forced to legislate an end to federal work stoppages on seventeen occasions. Since the 1999 amendments, there has been no need to pass emergency back-to-work legislation, so I would say the amendments related to replacement workers have done what they were expected to do.

The Canada Labour Code is a basic framework law that governs the Canadian marketplace, and Canadians depend on its balance. So do international investors when they are looking at Canada as a place to do business. It's part of our international competiveness framework.

To conclude, Mr. Chair,

we currently have a fair and balanced system, developed through consultation with both business and labour, which respects the interests of both employers and employees in dealing with work stoppage. In the opinion of the Canadian Chamber of Commerce, C-247 will disrupt the balance we currently have in place.

Mr. Chair, I was going to say that I was very concerned that there are many members of the Canadian Chamber of Commerce who would like to appear before this committee but who are not being given the opportunity to do so. However, I understand that the committee has passed a motion to allow additional witnesses. I congratulate the committee on that, because I know many Canadians want to express their views.

In a nutshell, we have a fair labour code. We don't need to change it just to benefit one party to the detriment of society as a whole.

I'd be happy to answer your questions. Thank you very much.

[The Chair, Conservative, Dean Allison]

Thank you again, Ms. Hughes Anthony.

We're now going to move to you, Mr. McDermott. You're going to have seven minutes to explain all those other things. I know seven minutes doesn't quite do the trick, but we appreciate your doing your best to try to fit it in during that period of time.

[Michael McDermott, Former Senior Deputy Minister, Labour Program, Department of Human Resources Development , As an Individual]

Thanks very much, Mr. Chairman.

Good morning, members of the committee. Thanks for allowing me to appear before you this morning.

I'm here as an individual, but in a previous life I had much to do with labour administration and the development of labour relations policy and legislation. I should make it clear at the outset that I do not intend to take a position on the inclusion of replacement worker provisions in the code, as proposed in Bill C-257.

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

Mr. Chairman, the witness is speaking so quickly that the interpreter cannot keep up.

[Michael McDermott]

Excusez-moi, Madame, mais je vais prendre mon temps.

I'm here as an individual, and I don't intend to take a position on the bill itself, but I want to address the process by which I believe labour laws are best amended.

During 33 years in the labour department, I saw two major reviews, one in the mid-1960s and the other, in which I was intimately involved as assistant deputy minister, was the Sims review and the legislative changes just mentioned.

Experience has confirmed to me that sound and durable labour relations laws must offer stability and balance to both labour and management in the rules established. Stability is not served by too frequent or piecemeal changes in the rules. The 25 years that elapsed between the two comprehensive revisions provided adequate time to determine what worked well and what, in the light of changing domestic and global circumstances, truly needed attention.

The durability of federal jurisdiction labour laws has been assured because careful study was undertaken, and unions and employers were afforded opportunities for substantive input to the review process, before the rules were established or adjusted.

I've included a long paragraph on the Ontario experience during the 1990s. I'll summarize it by saying that a tradition of carefully planned and consultive labour relations change was tossed aside, first by Premier Rae's government and then with a one-sided amendment bill with minimum consultation. The result was that when Premier Harris came in, he reversed the situation with no consultation, and you had a pendulum effect coming into play, which some people saw as very corrosive. Much of the labour unrest and division during the 1990s in Ontario can be attributed to this lack of process.

That process has been contrasted to what happened at the same time in the federal jurisdiction, and I refer to the review of part 1 of the Canada Labour Code, in which I was involved. The review stretched close to four years, commencing in late 1994 and terminating with the adoption of a revised statute in June 1998. The core of the review was a comprehensive examination undertaken by an expert task force, chaired by Andrew Sims from Alberta, as mentioned, who was accompanied by Paula Knopf from Ontario and Rodrigue Blouin from Quebec.

The task force held hearings across the country, and their report, Seeking a Balance, or Vers l'Équilibre, was the subject of round table consultations, also held across Canada and led by the Minister of Labour.

The task force and the responsible ministers adopted a highly consultative approach. In particular, Mr. Sims assured labour and management that any issues that they could agree on would be seriously considered for inclusion in the task force recommendations. I was privileged to be asked to facilitate a joint consensus committee for that very purpose, and had the pleasure of seeing agreement reached on a number of issues that were ultimately reflected not just in the task force recommendations, but also in the amended statute.

The resulting legislative package reflected a considerable compromise on the part of unions and employers. Like most compromises, it contained elements that one or the other party would have preferred not to include, and omitted things that one or the other party would have liked to include. However, it was a balanced and sufficiently attractive package for labour and management that it was found to be acceptable to the principal organizations representing their interests in the federal jurisdiction.

This joint support was based on the package being maintained in its entirety, and that it not be subject to cherry-picking subtractions or opportunistic additions. The replacement worker issue was a subject that the union movement would have preferred to have included. On the other hand, employer organizations would have preferred to see no treatment of the issue at all. However, it was an issue.

In the 1991 to 1994 period, leading up to the start of the legislative review, there were a total of 48 legal work stoppages in federal jurisdiction, 12 of which involved externally recruited replacements. These latter stoppages were on average five times the length of stoppages in which such replacements were not recruited. The length of stoppages was therefore a consideration, but it was also found that unfair labour practices were present in a number of the disputes. The disputes at the Royal Oak Mines' Giant Mine and Nationair were clear examples.

In addition to dividing labour and management, the replacement worker issue was the only one in which the Sims task force was not unanimous in its recommendations.

In his minority recommendation, Rodrigue Blouin opted for a full-fledged replacement worker ban. The majority recommendation, however, took specific aim at unfair labour practices. It provided for the use of replacement workers during a legal work stoppage, but included a specific remedy that the labour board could invoke if it found that replacement workers were being used to undermine a union's representational capacity rather than the pursuit of legitimate bargaining objectives--in plain language, when union busting was the name of the game. This majority recommendation was included and remains in the amended part I of the Canada Labour Code.

As I stated at the outset, I am not taking a position on what the nature of a replacement worker provision in the Canada Labour Code should be, although I remind you that part I already contains a provision that addresses the use of replacement workers. In my view, however, the process being followed with respect to Bill C-257 risks undermining the stability of the rules by which labour and management conduct their collective bargaining relationships.

In contrast to the intensive consultations held when labour laws have previously been amended, there appears to have been no attempt to reconcile differing views. The process invites retaliation and corrosive pendulum swings in the event of changes in the political conjuncture. It manifestly ignores the delicate balance achieved when part I was last comprehensively reviewed. It offers a one-sided and piecemeal addition to the statute that gives no compensating provision to those who disagree.

The 1998 amendments have worked well. I understand that dispute settlement statistics are positive, and with a few exceptions, work stoppages have been minimal. There has been no need for Parliament to pass emergency back-to-work legislation since the amendments were brought into force. In all, the members of the Sims task force would seem to have found what they were searching for as recorded in their report: “We seek a stable structure within which free collective bargaining will work. We want legislation that is sound, enactable and lasting. We looked for reforms that would allow labour and management to adjust and thrive in the increasingly global workplace.” They did that with the full cooperation of labour and management people working with them.

Thank you, Mr. Chairman, and thank you, members of the committee.

[The Chair, Conservative, Dean Allison]

I'd like to thank you, Mr. McDermott, for being here. That's one of the best overviews we've had of part I, and something we should have had before we started.

My question to you, and I haven't asked many questions during this time is this. If it took four years with experts to review part I, what type of timeframe--we haven't done this before--do you think we would need for such a piece of legislation, given the fact that there was no consensus the first time around?

[Michael McDermott]

I should qualify that the four years contributed to it by the fact that you had an election in between things. Bill C-66 was at third reading in the Senate when the election was called, so we had to do the same thing all over again with Bill C-19. It was really a two-year process.

The two years were divided between about six to seven months--first, a couple of months when I canvassed the parties to try to get some agreement without going through a full-fledged task force, and then canvassed the parties about the kind of process they would like to follow. I took about three or four months for that, and then we had a six- to seven-month task force, followed by a consultation period of another four months, and then the parliamentary process. We put that into two years. It was a comprehensive bill, however. With smaller issues you could cut that probably, but I would suggest 18 months is the minimum for a really serious legislative process.

[The Chair, Conservative, Dean Allison]

Thank you very much. That's what I figured.

We're going to move to Mr. Coderre, sir, seven minutes, please.

[Denis Coderre, Liberal, Bourassa, QC]

Dedicated as you are, you have undertaken a comprehensive review of Part I, but to my mind it is an unfinished job. You have already held lengthy discussions and implemented your consultation process on replacement workers. Indeed, minority recommendations were issued, but as I said the other day, you cannot reinvent the wheel.

In other words, we have already heard both sides of the argument and have been through it with a fine tooth comb. There is no need to strike another task force on replacement workers as the matter has already been addressed by Andrew Sims and Rodrigue Blouin.

The unions will always be in the yes camp and the employers in the no camp—they have specific interests to protect.

That being said, Ms. Hughes Anthony, you raised a very relevant question on proposed subsection (2.4). We are prepared to amend it to ensure that it is consistent with subsection 87.4. The wording of the clause, which I will read to you, is very clear, and I think it answers your question. I think I will be of assistance to you today.

87.4(1) During a strike or a lock-out not prohibited by this part, the employer, the trade union and the employees in the bargaining unit must continue the supply of services, operation of facilities or production of goods to the extent necessary...

And this is the important bit for you.

...to prevent an immediate and serious danger to the safety or health of the public.

The meaning is as it says. If during a strike or a lock-out a threat to public health and safety arises, the requisite goods and services must be provided. I think that answers your question. The problem is that it is a telecommunications issue. While we are on the subject, 911 calls are a matter of provincial, not federal jurisdiction. The provincial legislation on the matter is already very clear.

However, if you do perceive problems relating to telecommunications, we should redefine essential services—after all, society is evolving and there are new ways of doing things. That is why we should focus on expertise.

I have a couple of quick questions. I would ask Mr. Vaudreuil and Ms. Bourque to give us the union's viewpoint, and then Ms. Hughes Anthony could give us the employer's view.

What do you understand by balance? When you consider that an employer can enforce a lock-out and, thanks to strikebreakers, can make it last a long time, I wonder if we do have balance.

As for the unions, what assurances can you offer on the matter of balance regarding replacement workers and strike breakers? Could it not be argued that strike breakers give greater power to the unions?

I am playing the devil's advocate because, to my mind, hiring replacement workers makes no sense for all sorts of reasons. It is probably because of my cultural background—I come from Quebec where this debate has already been held. Our understanding of the matter is different, perhaps because, with the exception of British Columbia and Ontario, the rest of the country has not really debated the issue.

I would ask Mr. Vaudreuil, and perhaps also Ms. Bourque and Ms. Hughes Anthony, to briefly explain to us what they understand by balance. What actually does it mean?

[François Vaudreuil]

Thank you.

I can say this: there is not necessarily the same viewpoint of where the balance is between union and management representatives.

Having said that, the balance is met in the following context: historically, workers chose to come together to negotiate their working conditions with their employers collectively, in order to establish a more balanced power relationship. Alone, I do not have the same power as if we are together. Our labour relations regime is based on the same premise.

In this labour relations regime, there are two types of conflict resolution: resolution that is legal in nature and resolution that is economic in nature. For example, union recognition is legal in nature. Interpretation, application of collective agreements will be referred to quasi-legal tribunals. However, when the time comes to negotiate collective agreements, the means of confrontation is economic in nature.

So we must ensure that there is a true balance. For us, this balance means preventing recourse to replacement workers, given everything that we have been through in Quebec since 1977.

[Denis Coderre, Liberal, Bourassa, QC]

Ms. Hughes Anthony.

[Nancy Hughes Anthony]

I think that I see the question of balance from a different perspective. A strike or a lock-out is never good for employees or employers, and it is never desirable to have to hire replacement workers.

From what I can see, this bill aims at eliminating the possibility for a company under federal jurisdiction to continue to produce its goods and services.

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

Mr. Chairman, point of order. We are going back to what we discussed the other day. That is an incorrect interpretation of the act.

[Denis Coderre, Liberal, Bourassa, QC]

That is her point of view.

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

That is outrageous!

[Nancy Hughes Anthony]

That is how I see the situation.

So there is clearly a balance between employers and employees, but there is also a balance in society.

You want to be able to say that Canadians, in some way that is very respectful of the rights of both sides, will not be deprived of essential services or services that will continue to give them what they need. I note, and Mr. McDermott has confirmed, that in the existing Canada Labour Code there are limits on the use of replacement workers. There is also the ability of the Canada Industrial Relations Board to intervene in situations. That strikes me, right there, as the kind of balance that Canadian society would consider to be reasonable.

[Denis Coderre, Liberal, Bourassa, QC]

Mr. McDermott, I have a technical question for you.

This bill's Gordian knot is the issue of essential services, we agree on that. Do you think it is necessary to have an amending formula for the industry, in accordance with section 87.4, or do you think that occupational health and safety can cover it all.

Secondly, what is the impact, in terms of jurisprudence and other agreements already established in the code? For example, for grain handlers, there have already been agreements in the West. Do you see the need for amendments? If yes, what type?

[The Chair, Conservative, Dean Allison]

Let us have a quick response, Mr. McDermott, because we're almost out of time.

[Michael McDermott]

The essential service provisions in the code have been interpreted fairly broadly. They were not intended to include economic harm; it's clearly safety and security of the public. There's been, perhaps, a tendency to interpret more widely.

For example, I gather that in Marine Atlantic the whole of the service has been declared under that provision, even though the summer service only runs in the summer, so that in the winter we have a problem under essential services. In any event, I think the problem is that the code is a little too specific to cover some of the issues I've heard this morning.

[The Chair, Conservative, Dean Allison]

Thank you—