Human Resources Committee on Feb. 13th, 2007

[Luc Leduc]

I would be pleased to.

Subsection 87.4(1) provides the principle whereby employers, employees, and bargaining agents have a duty to essentially continue to provide services and production of goods to “prevent an immediate and serious danger to the safety or health of the public”. The words “immediate and serious” are in there and have been interpreted by the board.

When notice to bargain has been given, the employer and the trade union must get together and basically come to an agreement on the level of services, what they are and what number of employees will provide them. If there is an agreement, then we continue.

When no agreement is entered into, one of the parties can go to the CIRB to ask for a determination to be made. The minister himself, even if there is an agreement, can look through the agreement and ask the board also to re-examine the question. Then the CIRB can examine the whole situation. It has a number of powers and can basically determine what those services are and the manner in which those services will be provided and imposed, always within the constraint or the definition of imminent and serious danger to the safety of the public. They have to stay within that bound. Once they have done those orders, basically they can review the orders afterwards if there is a reason.

Finally, there is a particular provision with respect to the maintenance of services. If it requires so many employees that it would make the strike or the lockout almost moot, there is a provision to force mediation in such cases.

[Libby Davies, NDP, Vancouver East, BC]

Is it correct that these steps you have just gone through are done on a case-by-case basis? It's not like there's some formula that's applied. It's done on a case-by-case basis, depending on the nature of the work.

The most important thing is that the two parties themselves try to come to their own agreement to establish the level of these maintenance or essential services. It's only afterwards, if they can't do this, that other interventions can be made.

In your opinion, has this provision generally worked even where the board has had to make decisions about what the scope is? Has it generally been an adequate provision? I'm not aware that it's been....

There's a change being sought. Is it a provision that has been working?

[Luc Leduc]

I'm not familiar with all the practices. Someone else may be. The provision has been a subject of case law and CIRB decisions, but I wouldn't know how it's been used in practice overall.

[Libby Davies, NDP, Vancouver East, BC]

Okay, but case law does build up. I just quoted one of them, which was the Montreal airport. In each decision that the board makes, either an employer or a union may argue a certain point based on....

So jurisprudence begins to build up, just like in any other labour law situation.

[Luc Leduc]

You are correct, there is jurisprudence.

[The Chair, Conservative, Dean Allison]

Thank you, Ms. Davies. That's all the time we have.

We're now going to move to the last questioner of the second round, and that's Mr. Hiebert.

Five minutes, please.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Thank you, Mr. Chair.

I'd like to follow up on that line of questioning. Is it not the case that the CIRB ruled, in Aliant Telecom Inc. in 2003, that telecommunications services were not considered an essential service? Is that not the case?

[Luc Leduc]

Yes.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

I'm going to read a statement, and I want to get your opinion on its validity. Please bear with me--it's somewhat lengthy:

Having regard to the foregoing, if Bill C-257 is enacted, we see three discrete opportunities for a situation to arise where critical services could be jeopardized during a strike. First, given the narrow scope of services that fall under section 87.4's maintenance of activities provision and the interpretation given to this language by the CIRB, it is entirely possible that services that are considered to be “essential services” in British Columbia and Quebec would not be found to be essential services in the federal jurisdiction. Secondly, if the union or the bargaining unit members did not perform services covered by a maintenance of activities agreement or ordered by the CIRB, there is no provision that allows an employer to make other arrangements to have these services performed. Thirdly, the federal Minister of Labour has no power to declare or recommend that services are essential. This power lies exclusively with the CIRB. The CIRB has adopted an approach of refusing to require that services be continued at the onset of a strike and directing the parties to came back to the CIRB during the strike if the interruption of services raises serious health or safety issues. Given the slow pace at which such applications are dealt with, combined with the fact that the Canada Labour Code provides that the strike is not suspended during the proceedings, critical services would in fact be suspended while the application is being determined and thereafter until personnel could be returned to work.

In conclusion,...if Bill C-257 were to be enacted, there is a risk that essential services could be discontinued during a strike or lockout.

I read that from a legal opinion from, I believe, Heenan Blaikie, a well-respected firm in our country, specifically on the points that have been raised by the member from the NDP. I think it's fairly clear here, and I would like your comment on this. During the Aliant Telecom strike, in which we had an example of what would normally have been considered essential services--we're talking telephone calls to 911 and emergency services--these were not considered by the CIRB to be essential services. In light of what I just read, is it not very much the case that essential services could actually be shut down if a strike were to occur?

[Luc Leduc]

It depends on how you define essential services. Obviously in your first question you referred to the legislation in British Columbia and the legislation in Quebec, and you said maybe different results could occur if this legislation were enacted under the Canada Labour Code. That's correct. The definition is different. It has words like “imminent” and “serious”.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

So to summarize your point, services that would be considered essential in B.C. and Quebec might not be considered essential under the CIRB, and those services would be stopped in the event of a national strike?

[Luc Leduc]

That's correct.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Mr. Sheikh, do you have any comments?

[Munir Sheikh]

The only thing I would like to add, which I said before, is that the nature of services being provided by the federally regulated sectors would be quite different from that of services provided by provincially regulated businesses. That leads to this issue that even your quote suggested the relationship between essential and critical. I think the question arises as to whether some people would define some of the critical services as not being essential at the moment. If there is indeed a provision for essential services in light of this legislation, we're expected to pick up some of the critical services that your quotation had mentioned.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

The point I'm trying to make in brief is that we've had numerous discussions around this committee table as to whether or not essential services are protected, and I think this legal opinion and your comments make it clear that they are not necessarily protected. In the one instance in which the CIRB ruled against Aliant Telecom, there were people who had cellphone service with this company and who could not call 911 and could not call the fire department or the police department while this strike was going on. In fact the CIRB upheld the fact that they wouldn't be allowed to. So there's a prime example of essential services being prevented from occurring, and I hope that it addresses the concerns that have been raised around this table.

[The Chair, Conservative, Dean Allison]

That's all your time.

We're now going to move to Mr. Savage, for five minutes.

[Michael Savage, Liberal, Dartmouth—Cole Harbour, NS]

I'll ask a question, and then Ms. Dhalla has something else.

The frustration here is that we're not getting any definition of essential services. In the last few weeks since I've been on this committee, we've been asked to wait until we get the technical witnesses and then we'll understand this better. We're not getting a definition, and it's of concern to me.

I want to put a bill in place banning replacement workers, but I'm concerned about it. I'm concerned this bill has loopholes that have the potential to have a severe impact. I don't think any labour union in the country wants to shut down an essential service.

What an essential service is depends on who you are. We've heard from the trucking industry that food in some northern communities is dependent upon trucking, and it is therefore an essential service. 911 is an essential service.

In the absence of having someone able to define for us what an essential service is and not being able to get that definition, I want to go back to the history of the CIRB. Assuming it's correct, section 87.4 of the Canada Labour Code does not empower the CIRB, the Minster of Labour, or the government to order the suspension of a strike or a lockout pending the determination of an issue on the maintenance of activities that arise during a strike or lockout. In fact, the Canada Labour Code specifically states in subsection 87.5(3) that the strike is not suspended. If the strike is not suspended, there is the question of what an essential service is.

Can you tell me again, based on history, how long it takes to get a determination from the CIRB?

[Munir Sheikh]

I'll give a quick answer to the very last question. Based on the list I have in front of me, ignoring issues that are really of an urgent nature, such as the CN strike right now, it takes between three and a half months to two and a half years.

[Michael Savage, Liberal, Dartmouth—Cole Harbour, NS]

Is that in the case of a strike that's under way?

[Munir Sheikh]

No. These are issues where the board has been asked to come up with a decision on a variety of issues. The board obviously has to find all the facts in order to give an opinion. It's not a question of the board not taking it seriously and taking a long time. Sometimes the issues are fairly complex.

If I can come back to the main issue you raised, I can understand your frustration. I am trying to say, and my colleagues say the same thing, that essential service is what the law defines the essential service to be. We have federal essential services that are defined in the Canada Labour Code. It's what an essential service is. I think the difficulty arises when someone thinks there's a service that should be essential and the code doesn't make it essential.

The example given here is about a call to 911. According to the Canada Labour Code, in the way it is described right now, if the board came to a decision that it is not an essential service, it is not an essential service. The issue is really on what an essential service should be. Once you've decided that, you can put it into law.

My answer to the question of what an essential service should be is that it's not for the officials to come to a decision on what is or is not essential. It is for the Government of Canada and Parliament to come to a view as to what essential is.

[Ruby Dhalla, Liberal, Brampton—Springdale, ON]

I want to build on the last question and on what my colleague Mr. Savage said. Like him, I'm very much in favour of banning replacement workers. But as a health care provider as well, I have a very serious concern in regard to essential services.

I know Mr. Hiebert read out a legal opinion that was done by Heenan Blaikie.

Like Mr.Savage, who I think said it best, I think don't think every labour union, as much as they are in favour of this legislation, wants to shut down the very foundations on which our country has been built for those important services for Canadians.

I would appreciate it if Mr. Leduc, as the legal counsel, could provide this committee with a legal opinion within a quick duration. If you could get us some documents over the next week or as soon as possible, as we have a sensitivity for time, we as parliamentarians can determine where we're at right now and what else needs to be done to ensure essential services that are important to Canadians are taken into account. I think a legal opinion from the department on legislation that's going to have a tremendous impact across this country is very important.

[Luc Leduc]

Mr. Chairman, Ms. Dhalla, you'll understand I'm with the Department of Justice and I do not provide opinions per se to the committee. We do collaborate.... The committee has a legislative counsel who can provide just as good research and will go into the details and provide that opinion or expertise.

[Ruby Dhalla, Liberal, Brampton—Springdale, ON]

[Inaudible--Editor]...not necessary if you don't want to give your opinion.

[Luc Leduc]

The opinions we provide are for the minister, and we haven't provided one to the minister. So I would defer to your legislative clerk, who has all the expertise required to provide the committee with excellent advice.

[The Chair, Conservative, Dean Allison]

I'm sure he appreciates that.

Mr. Silva had a quick question before we move back to the Conservatives.