Human Resources Committee on Feb. 8th, 2007

[The Chair, Conservative, Dean Allison]

Thank you very much, Mr. Silva.

Madam Lavallée.

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

Thank you very much, Mr. Chair.

First I'm going to speak to Mr. Finn, but also to all those around the table and who are watching via videoconference. I'm going to say again, for the nth time, that proposed subsection (2.2) is very clear in French. I know that Mr. Finn speaks very good French. You need only look at the French version, which states:

(2.2) Malgré le paragraphe (2.1), l’employeur peut utiliser les services des personnes suivantes pendant la durée d’une grève ou d’un lock-out :

It then states:

a) toute personne employée à titre de gérant, surintendant, contremaître ou représentant de l’employeur dans ses relations avec les employés;

He can also read paragraph (b). Subsections (2.3) and (2.4) must be read together. It's much clearer in French than in English. As for subsection (2.4), it states: “The measures”; with regard to conservation measures, for example, we know that that refers to subsection (2.3). Those measures are referred to nowhere else.

It's clear in French, but it should be clarified further, whereas, in English, it should be rewritten. I think the confusion is even greater in the latter case. I know that, like Mr. Finn, you are really very intelligent. So you will no doubt understand these things.

I'm a bit surprised, even disappointed, to see that the group of witnesses today consists solely of employer representatives. Until now, we were used to having the union and management parties equally represented. That kind of arrangement enables employer representatives to hear the opinions of the unions and persons representing people in favour of the bill, to see that there is indeed a problem and that it is human. When you meet people, you can see how genuine the problems are. I'll talk to you about that if I have the time. I hope that will be the case.

Mr. Zoe, I would like to know whether you are unionized.

[Maurice Zoe]

No, I'm not.

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

You're what's called a representative of the employer? You are a manager?

[Maurice Zoe]

I'm not a manager, I'm an employee. I help the employees on the site with personal problems and problems at home. I'm available for them on the site. When they need to talk to somebody, they come to me. I do translation and things like that for them.

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

But you nevertheless belong to what we call management?

[Maurice Zoe]

Indirectly, yes.

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

You aren't unionized?

[Maurice Zoe]

No.

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

In your brief, you write, and you repeated it out loud:

Many of our people were not looking for or expecting a strike, which they never voted for.

And yet there are 300 and some unionized workers at the Ekati mine, nearly 400 even, and there have been two strike votes.

You know how it works. Miners are brought in by plane and stay there for a period of two weeks. Then they go home for two weeks. There were two votes, one at the end of February 2006 — pardon me, but I don't know the exact dates — and one in early March, I believe, around March 10. The vote was 74 percent in favour of the strike. Two-thirds of the workers voted for this strike.

If there hadn't been a strike vote, Mr. Nicholls obviously would have been the first to mount the barricades or at least to complain. He would have filed a proper complaint with the Canadian Industrial Relations Board. So I'm quite surprised to hear your allegation on that subject.

I should also say that the end of your presentation is more anti-union than anti-Bill C-257. I understand that you have needs and that your community has needs and beliefs, but it's a delicate matter to say that they go against union activities.

Having said that, I believe that is a personal opinion of yours and that it belongs to you.

In a labour dispute, you have to consider balance. Everyone is right to say so, except that we don't have the same definition of balance. Balance is the union party and the union party working together and negotiating together over a long period of time, then coming to the conclusion that there must be a strike or a lockout. The employer deprives itself of a portion of its production because, under Bill C-257, and based on 30 years' experience in Quebec, there are indeed managers who work. Workers are also deprived of their work and income. So that's really balance.

When replacement workers come in, it's as though a third player were entering a match that's already underway and who starts playing for the employer.

[The Chair, Conservative, Dean Allison]

You have one minute.

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

So that's entirely unfair because there are two players on one team and only one on the other. It's that balance that is broken in the Canada Labour Code.

In Quebec, this act has been around for 30 years, and there have never been any disasters. But, in Quebec, every time a strike lasts a long time or there's vandalism and violence, we realize that it happens at Videotron, Cargill and Radio-Nord, all businesses that are under federal jurisdiction.

[The Chair, Conservative, Dean Allison]

Thank you, Madam Lavallée.

Just before we go to Ms. Davies, for the sake of our new members I want to point out that when Mr. Nadeau was before us and was asked to clarify between the French and the English versions, he was unable to do so at that time. That's why this issue still remains unclarified.

Mr. Finn, it's very clear that it's something we'll have to address as we do clause-by-clause study. It was something that the sponsor of the bill was unable to clarify at the time.

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

[Libby Davies, NDP, Vancouver East, BC]

Thank you very much, Mr. Chairman, and thank you to all of the witnesses for coming here today.

I do think it's important to note that the way these hearings have been conducted at the committee, there weren't any arrangements made to invite to the committee aboriginal workers who are members of the union at the Ekati Diamond Mine who actually supported the strike.

So, Mr. Zoe, while I certainly respect your viewpoint and the role you play there—I think it's an important role—we're hearing your viewpoint, but we're actually not hearing from members of the union who are aboriginal who did support the strike. I think we should note that.

Secondly, Mr. Nicholls, I'm interested in some of the comments you made. In your brief you said that Ekati, or BHP, did not use replacement workers. Yet I think it's pretty clear that Ekati directed its contractors to do the struck work. They're actually not BHP employees, so they were replacement workers.

Indeed, one of your updates to your own employees, number 4, makes this quite clear. To quote from it, it says, “Many of you are no doubt curious as to how we intend to keep operating in a strike situation.” Then you go on to give the answer, “...we intend to operate in the normal fashion, with our own employees and the employees of our alliance partners”. So you talk about “employees of our alliance partners”. Then there's a later reference from your spokesperson to the CBC, making it very clear, “we've got construction workers, our contractors, and our alliance partners”.

So I'm very surprised to hear you say today that you didn't use replacement workers, because I think the information is somewhat different. I'd like you to respond to that.

I'm curious to know whether or not the services of AFI were used. I was reading some information about this organization on my way here. For the benefit of the committee, AFI International Group Inc. “strives to recruit the best personnel for clients requiring replacement workers to continue operations...includes performance monitoring and the administration of payroll and benefits, which removes clients from all direct responsibility for the temporary workforce”. That's from their website.

I'm curious to know whether or not BHP used AFI to do at least monitoring, and using I think tactics that a number of the strikers found quite intimidating, such as videotaping people, following people by vehicle and on foot. So I'm curious to know if BHP does use the services of AFI.

If you could answer those questions, that would be great.

[Graham Nicholls]

Thank you.

I'll just take the last question first. I'm not familiar with AFI or its use at Ekati. That's entirely new to me, so I simply can't say that I can confirm that at all.

In terms of things like videos, I remember being videoed by a picket line at our pickup point at the airport. So videos have been used, but I recall them being used by the picketers.

In terms of contractors, we actually, most of the time, have more contractors at site than we do employees. We make extensive use of contractors throughout the operation. Our contractors and our employees work side by side, doing the same work, using the same equipment. That activity continued, along with the use of employees who freely chose to return to work.

Yes, we did use contractors. We've always used contractors. We continued to use them during the strike.

In terms of whether they are replacement workers or not, I suppose under the new legislation they would become replacement workers, but in terms of the normal historical definition of the term and as it exists under the legislation as it stands right now, we don't think those are replacement workers and we did not use replacement workers.

[Libby Davies, NDP, Vancouver East, BC]

Your response is very interesting because I think it gives us some illumination as to why this amendment to the Canada Labour Code is actually necessary, to make it very clear what the ground rules are, because in your mind, you didn't use replacement workers. But I think the information is pretty clear that they were not actually employees of your organization, so they were replacement workers and it did create an imbalance.

I think that kind of nuance becomes very important, and that's why it's important to have something spelled out in the labour code.

Similarly, in your brief, you questioned the strike vote. You said it wasn't an independent strike vote, and yet it seems to me the question is, is a strike vote legal or not? Maybe you can answer that.

If Ekati didn't think it was legal, presumably they could have challenged it under the Canada Labour Code by filing a complaint under section 87.3. I don't think the company did that. So it sort of leaves us with the impression that somehow this strike vote was not legitimate, and yet it was something that was entirely legal and even the company itself didn't challenge it. Is that correct?

[Graham Nicholls]

Mr. Chairman, as indicated in my brief, under the Canada Labour Code, in the instance that a proposed agreement is voted on and rejected, it can be considered a strike vote. That's what occurred, and so be it. At the same time, there are other checks and balances in the system, as I also wanted to point out.

In terms of the strike vote, there is another point we're trying to put across here when we're dealing with our aboriginal employees, and I'd like to ask Mr. Zoe to respond to that a little bit. Was there a genuine understanding by the employees of what they were doing when they voted to reject that offer, and did they understand that it meant they were going to be going on strike? That level of understanding of what is actually at stake can be difficult for a group of people who have never had experience before in dealing with unions in these kinds of situations.

I would like to ask Mr. Zoe to respond to that.

[Libby Davies, NDP, Vancouver East, BC]

I'm happy for Mr. Zoe to respond to that, but I think we should recognize that he comes here with a certain point of view. I think there are clearly other members of the aboriginal community who are involved in the union and would have a different point of view.

Mr. Zoe is certainly welcome to do that. Before he does respond, I'm just curious: if your assertion is correct and you really believe that you didn't use replacement workers and you don't intend to in the future, then what's the worry about this amendment? If this is not a practice you believe you've engaged in, then what's the problem with actually putting it into the labour code to make it clear that replacement workers should not be used?

[The Chair, Conservative, Dean Allison]

Please give a quick response, because the time's up.

[Graham Nicholls]

Thank you.

It would mean that it would be extremely difficult for us to retain the operation at all, because the workers we were able to keep at site would be deemed to be replacement workers and couldn't legally work there. We'd be facing a very, very serious situation.

[Libby Davies, NDP, Vancouver East, BC]

So you couldn't use your contractors?

[A voice]

No.

[The Chair, Conservative, Dean Allison]

Thank you, Ms. Davies and Mr. Nicholls.

Ms. Davies mentioned aboriginals. I'll just point out that we tried to get the Cree grand council to be here. We contacted them many times. It just didn't work out for them to be here. We had hoped to have some aboriginal—

[Libby Davies, NDP, Vancouver East, BC]

On that point, Mr. Chairman, did you attempt to contact any aboriginal members from the union?

[The Chair, Conservative, Dean Allison]

These were actually people who contacted us, once again.

Ms. Yelich, do you have any questions for the gentlemen on videoconference? They need to go at some point soon.