Human Resources Committee on Feb. 7th, 2007

[John Vines]

I will try to explain the procedure as best I can.

First of all, section 87.4 is constructed so there's an obligation on the part not only of the union and the employer but also of the employees to ensure that during any strike or lockout anything required to be done to ensure the safety and health of the public is continued. So the construction of section 87.4 is such that there is an opportunity for the employer and the union to negotiate. If they reach an agreement, then under subsection 87.4(3), they can file that agreement with the board, and then it becomes an order of the board.

If they fail to reach an agreement, then pursuant to section 87.4, any time prior to 15 days after a notice of dispute, either party can come to the board. Once they do that, the board will inquire into the matter and will make a decision as to what is required to ensure the safety and health of the public. The parties are not permitted to engage in a legal strike or lockout until the board issues its decision.

When the legislation was very new and people were not very familiar with it, there was another provision there—subsection 87.4(5)—which allowed the Minister of Labour to refer the issue to the board. When the provision was new, the parties would of course sometimes arrive at a notice of dispute and not have fulfilled the requirements of the initial parts of section 87.4. Once the Minister of Labour refers it to the board, the same thing is true: the parties do not have the legal right to strike or lock out until the board issues the decision.

That's basically how it's supposed to work.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Vines.

That's all the time we have for this round. We were just slightly over time.

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

[Libby Davies, NDP, Vancouver East, BC]

Thank you very much.

And thank you to the witnesses for coming today, and to our videoconference guest.

I have actually three questions to various witnesses, so I'll put them all out there, if you could respond to them.

First of all, Mr. Pennings, I know you're here listed as an individual, and I was certainly interested in your remarks. I just want to see if I'm correct that you actually head up an organization called the Work Research Foundation, that you've previously done work for the Canadian Alliance, and that you're a leading proponent on the right-to-work issue. I'd just be interested if you could illuminate us in terms of your background.

Secondly, to Mr. Bedard—and to the steelworkers who are here today—you raised the issue of the ILO and its importance and you raised Convention 87 concerning freedom of association, to which you felt this bill would be in opposition. I'm not sure if you're aware, but there's a lot of international jurisprudence on this issue and ILO legal experts have stated that the hiring of replacement workers to break a strike is a serious violation of freedom of association. I'm not sure if you're aware of that opinion. Maybe you could comment on that—and the steelworkers could comment as well.

In fact, while we're talking about the ILO, there's another convention, Convention 98, the right to organize and to bargain collectively. Canada has not yet signed on to it. I wonder, Mr. Bedard, if the Canadian Employers Council would actually support the Canadian government signing on to it, because I think you said you did support that.

My third question is to Mr. Vaydik, from the Northwest Territories. You've talked about the northern experience, but it seems to me there's an even stronger argument to ban the use of replacement workers when there's a labour dispute and strike in a remote location. In those situations, as I think we've already seen by experience, it's very hard to set up a picket line; you're talking about flying people in thousands of miles, which was certainly the case at the Ekati Diamond Mine. It's much easier for the employer to then bring in replacement workers. So I actually think that experience has shown us in those situations that not allowing replacement workers is a very important measure to ensure there isn't violence and a prolonged dispute as a result of replacement workers being brought in, because it's easier for the employer to do that there.

Those are my three questions, if the witnesses could respond.

[Ray Pennings]

Thank you.

I am the vice-president of research of the Work Research Foundation. On the form, it was business, labour, or individual, and I don't represent a labour organization or a business organization, which is why, I guess, I checked the individual box. I'm not here representing either side per se, at this time.

The Work Research Foundation is an independent think tank. We do some work in the area of labour relations. We've conducted a number of polls with Environics and Angus Reid, and we've publicized various things.

Our basic position has been that while we are very pro on collective bargaining, we think there are some fundamental changes that need to be made in the labour relations system. We've been consistently advocating for that.

From a philosophical perspective, it's where I'm at. Yes, I have been politically active at various times in my career.

In terms of your comments about the right to work, I actually have never supported the right to work. I have significantly opposed the right to work. I believe collective bargaining is a good thing. In the same way that employers hire lawyers, workers can hire unions to represent their interests.

In fact, democracy has to work. You need to have a collective voice. I have actually always been opposed to legislation on the right to work.

[Libby Davies, NDP, Vancouver East, BC]

Thank you.

[Steve Bedard]

In terms of the first question, the ILO has taken a position, of course, on the permanent replacement of strikers through temp agencies, etc. Under Canadian law and jurisprudence, of course, that's covered off as well. You cannot bring in people who were brought in after the strike commenced and fail to recall other people. It's not an issue under our current legislative environment in Canada federally.

As I said in my submission and in the brief we provided, the ILO convention talks about the permanent replacement, as opposed to the temporary replacement of workers, which is what we're talking about.

[Libby Davies, NDP, Vancouver East, BC]

I was actually quoting from an ILO legal opinion, where they talk about the hiring of replacement workers to break a strike. It's clear that it is a temporary thing. It's what their legal experts are saying.

[Steve Bedard]

Okay. I think it is somewhat covered in our brief.

[Libby Davies, NDP, Vancouver East, BC]

Okay.

[Steve Bedard]

In terms of Convention 98 and the right to collectively bargain, you're right that Canada has not ratified it. It's important to put it into context again.

In Canada, the right to engage in collective bargaining and the right to strike and walk out are subject to public policy considerations. Therefore, the right is not an absolute right, whereas the ILO will support it as being an absolute right.

The Canadian government has always taken the position that public policy considerations need to be taken into consideration. At times, they will deny the right or circumscribe the right of employers and unions to engage in collective bargaining that could possibly result in the right to strike or a walkout.

In fact, many of the complaints brought by the Canadian labour movement to the ILO are over back-to-work legislation.

[Libby Davies, NDP, Vancouver East, BC]

Does the CEC support Convention 98?

[Steve Bedard]

No, we don't.

[Libby Davies, NDP, Vancouver East, BC]

You don't support it.

[Steve Bedard]

No.

[The Chair, Conservative, Dean Allison]

Ms. Davies, you have about 30 seconds left.

[Libby Davies, NDP, Vancouver East, BC]

Could United Steelworkers respond?

[Cathy Braker, Counsel, United Steelworkers]

I actually wanted to respond to two of the questions.

The first one relates to Convention 87 and Convention 98. Part of the process of the Canada Labour Code and part of the purpose of the Canada Labour Code is to ensure that those broad freedoms, including the freedom of association, the right to organize, and the right to bargain collectively, are enshrined, balanced, and fair. Clearly, part of that freedom of association is the right to strike and to strike effectively.

It's always been our view, and it continues to be our view, that the only way we can strike effectively is with a ban on replacement workers. To bring a third party into the process upsets the balance and the purpose behind the code, which is to have the two parties resolve their bargaining differences, one on one, without the intervention of strangers or outsiders to the collective agreement and to the bargaining process.

[The Chair, Conservative, Dean Allison]

Thank you very much, Ms. Davies.

We're going to move now to the last questioner of this round. Mr. Lake, you have seven minutes, please.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Thank you, Mr. Chair.

That was interesting, actually; Ms. Braker's comments at the end lead nicely into the questions I have for Mr. Bedard specifically.

I'm looking for some clarification. People talking about replacement workers oftentimes imply that it simply means folks off the street; they've never been associated with the company. That's why some have said that a booming economy means companies can't find replacement workers, so it doesn't matter, at least at the provincial level.

But this bill also prevents workers from exercising their right to work at their own company, I believe. It would, frankly, force workers to stay off the job—and managers as well—even if they've chosen to work in their own job at a site that they may have worked at for decades. Can you comment on that, please?

[Steve Bedard]

Yes. I think that's absolutely problematic with this legislation.

The federal sector is not like any other labour jurisdiction in Canada. It houses the federal backbone: transportation, communications, banking—

The board favours national bargaining units, so the organizations that are unionized tend to be national in scope. So from coast to coast, you're covering their entire operations. So it's not simply a single plant in a single town that's under a bargaining unit, which would be typical under a provincial certification, where they have plant-by-plant certification. We tend to have large companies operating across the nation, operating very critical services across transportation, communications, or ports and those things.

The proposed bill, as I understand it, talks really about replacement workers being people brought in—“strangers”, I guess, is the term that's being used. But it goes beyond that. It covers employees already employed by the company in that bargaining unit who choose not to go on strike, which is a significant issue for us in terms of freedom of association. That's the issue that I had raised. It's a fundamental issue, which we have to come to grips with.

It also deals with contractors working in the establishment. The language of the proposed bill talks about the “establishment”. The establishment, under the code, is a defined term. An establishment is a geography of the employer's organization. It really limits the use of managers across establishments, which are defined in geographical terms. But in the national scope of a bargaining unit where the employees on strike could be across that bargaining unit, that sort of thinking severely compromises an employer's ability even to use its own managers. Of course, contractors are also prohibited, even though they seem to be contractors who were previously engaged, prior to the work stoppage, in that establishment.

So it's much broader than some of the discussion today that seems to suggest that it's just people coming in from the outside temporarily to work during the strike. I think it's much broader than that.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Okay, thank you for that.

I have another question for you. We've heard a lot about agreements to maintain services. The position of some witnesses has been that it's quite an easy thing to simply have unions and employers agree to maintain services in the case of a stoppage—we heard that yesterday, for example—even for critical federal infrastructure.

I guess it concerns me that, once again, we're creating a problem as we search for a solution to a problem that doesn't exist. In fact, it's arguable that we can protect essential services if we pass this bill at all. It also seems highly inappropriate to me that at the federal level we simply rely on the goodwill of either unions or employers to protect, for example, 9-1-1 services. Does this ad hoc process of protection seem wise to you?

[Steve Bedard]

No, it doesn't at all, and I have some experience with negotiations regarding maintenance-of-activities agreements.

I believe a witness last week from the TWU tabled a maintenance of activities agreement signed between that union and Telus. It's an interesting case. That agreement was signed two years after they started negotiating.

The union refused to meet with the employer to talk about the maintenance of activities requirement. The employer was eventually required to make application to the Canada board, which issued a decision ordering the union to engage in the discussions with the employer to reach a maintenance of activities agreement.

They did so, extremely reluctantly, and if you look at it—they submitted it to the TWU, and it was attached to the TWU submission—even in that letter of agreement, in paragraph 9, it says that the agreement is made without prejudice; that the TWU takes the position that a maintenance of activities agreement is not required in the telecommunications sector.

This is all around that issue. Section 87.4 talks very specifically about health and safety, whereas we would very strongly argue that in the federal sector, from an essential services perspective it's much broader than simply health and safety. It's provision of telecommunications to average householders; the entire banking industry depends heavily on telecommunications, as do many others. It would be a stretch to say there's a direct link between health and safety, but it may be, of course, the economic lifeblood of Canada.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

I have a final question in my short time.

We have also heard a lot of talk about the Sims task force in this committee. In a nutshell, the task force, as I understand it, basically came together to specifically address the fact that stoppages in the federal sector were requiring federal intervention, arbitration, or legislation over and over again, while continuing to cause economic and social disruptions, and that the task force's job was to balance the rights of the worker with the requirement of the Canadian economy to keep critical federal infrastructure running.

There's a reason that the federal code allows federal companies to keep a minimum level of services to the public running; isn't that right? For example, a strike of garbage workers or at the mine is very different from one that affects your phone lines, or your ability to get money or to receive direct deposit cheques from the government, to have your grain shipped, or to get food transported to remote communities.

Could we have your comments on that?

[Steve Bedard]

Concerning the Sims task force you are absolutely correct. They were balancing the competing interests, trying to give as much opportunity as possible to both parties to freely collective bargain, but at the same time to deal with public issues and concerns. They balanced that through section 87.4, through the replacement worker clauses in the code, and I think they achieved the balance quite well.

I'd be very surprised if anybody, looking back over bargaining that has taken place across the federal public sector since the Sims report recommendations were passed by Parliament in 1999, were not convinced that there has been vigorous and free collective bargaining in the federal public sector, leading to outcomes that are good for both workers and employers.

[The Chair, Conservative, Dean Allison]

Thank you.

Thank you, Mr. Lake. That's all the time we have.

We're going to move now to the second round. Mr. Savage, you have five minutes, sir.