Human Resources Committee on Feb. 15th, 2007

[The Chair, Conservative, Dean Allison]

I would like to hear the rest of the comments and then I'll talk to the clerk again about that.

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

Thank you.

[The Chair, Conservative, Dean Allison]

Mr. Silva is next, followed by Mr. Savage.

[Mario Silva, Liberal, Davenport, ON]

I think it's important that the board, made up of three individuals--the neutral chair, somebody from labour, and somebody from the business community--have that flexibility to deem what essential services are. If you narrow the scope, then some other issues might arise as well, issues that are important and are essential under health and safety for the public and that need to be addressed, so you'd need to have the board make those decisions on a case-by-case basis. The provisions are already laid out, but be very clear and specific. That is what we're talking about. The maintenance of activity is essential services. I think that is what is really referenced there.

If anything, it should give comfort, I would think, to a lot of the people in the business community who have some issues with this bill. It does address one component of their concerns.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Silva.

Next is Mr. Savage, and then Mr. Lessard.

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

Thank you, Mr. Chair.

I would echo some of what Mr. Silva said. It would seem to me that some flexibility in the definition of essential services, some openness to interpretation, is actually a good thing for business. When you list things, it's the things that are excluded that become problematic.

Ms. Yelich referred to the question I asked in QP today about productivity and competitiveness. I just want to be clear that I was referring to the gutting of literacy and the unconscionable cutting of student support in that case. It wasn't on this; it was a different issue.

To me, the essential services provision in this bill would allow things like telecommunications services to continue, because it's not just health and safety. Communicating, getting money from a bank machine--those are essential services in the modern day and age. I'm comfortable with Mr. Silva's enlightened amendment, and I hope that it's ruled in order.

Thank you, Mr. Chair.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Savage.

The last person I have on the list is Mr. Lessard.

[Yves Lessard, Bloc, Chambly—Borduas, QC]

Mr. Chair, I second this motion, of course.

Mr. Yelich asked the question as to what an essential service is. An essential service is a broad term and this calls on the judgment of the people who will be responsible for ensuring that it is enforced.

That's why I see a lot of wisdom in the Liberal amendment that has been introduced before us today. We're indeed restating the two elements on which essential services must be based, that is to say health and safety.

Considering that the Canada Labour Code already provides for protective measures for an employer's property during a dispute, we must not wind up either with a provision that makes the economic power relationship an essential service.

As an example, I cite the evidence that has been given here. One piece of testimony was very eloquent. It concerned a diamond mine in the High North the owners of which claim that, if they can't get their diamonds out, that will cause major economic difficulty at the mine. However, I would point out to you that that's not an essential service. If that's what we want to cover, know that this isn't an essential service. Let's be clear on that.

The mine argument means that, if there is a truckers' strike, it won't be able to get its diamonds out. However, if the truckers do strike, those same truckers who won't be able to get the diamonds out will still be able, in the High North, to bring in the foodstuffs needed to feed the population. That will be the same strikers. Why? Because the health and safety of the public will be at stake.

Let's remember the example that was cited to us: the winter ice bridges. We were told that, if a strike occurs when the ice bridges are up, people are unable to pass during that period. The whole time, people talked to us about diamonds, never about food, health services and so on.

In my opinion, health and safety services cover very well what is meant by essential services. On that point, we should pay tribute to the Liberals for tabling this amendment, which effectively addresses the concern expressed by the Conservatives and by a certain number of speakers at this table. It's also a reflection of what there is in the provinces, in, among others, Quebec and British Columbia, from where the notions of essential services based on these two pillars have just been communicated to us.

I'll stop there, Mr. Chair. Thank you.

[The Chair, Conservative, Dean Allison]

Thank you, Monsieur Lessard.

Could you just give me a second?

I have a question for our expert witnesses at the back here. We didn't use you at all in the first couple of days here; now you're getting lots of work.

There have been conflicting concerns on both sides of my question, and I think even Mr. Lessard said this is very broad in terms of its nature. We know essential service is not referenced in section 87.4; there's no definition there to give us an idea of what that would be. Would this possibly, then, expand the board's decision-making ability to consider other things, because there is no definition of “essential services” in section 87.4 at this point in time?

[Elizabeth MacPherson]

Mr. Chairman, with the greatest of respect, our analysis is that putting the word “essential” into this clause might in fact limit the scope of section 87.4. The reason, if I can follow through the logic, is that currently the analysis that's done by the board is of whether the service is “necessary to prevent an immediate and serious danger to the safety or health of the public”; introducing the concept of “essential” means that the board would have to find that a particular service was essential to prevent an immediate and serious danger to the safety or health of the public. It turns on your interpretation of whether there is a difference between something that's necessary and something that's essential.

[The Chair, Conservative, Dean Allison]

Thank you.

[Libby Davies, NDP, Vancouver East, BC]

I have a point of order.

[The Chair, Conservative, Dean Allison]

We have two at the same time. Go ahead, Ms. Davies. You will be followed by Ms. Dhalla.

[Libby Davies, NDP, Vancouver East, BC]

I really feel we're splitting hairs here, because the amendment does clearly say “to prevent an immediate and serious danger to the safety or health of the public”. As I have pointed out, numerous rulings from the board--and I would ask Ms. MacPherson if she disagrees--use the term “essential services”, sometimes 60 times in one ruling, or 15 times, and the interpretation they give will vary from case to case.

This amendment is not narrowing it, nor is it broadening it. It is simply further defining that maintenance of activities and essential services are things that are considered by the board, as we can see from their ruling. I really fail to see how you could interpret this to mean that somehow this will actually narrow what the board can do, because, by the jurisprudence that's built up, it's very clear that they already have this leeway to deal with essential services and maintenance of activities. This amendment will not change that in any way.

[The Chair, Conservative, Dean Allison]

Do you want to respond to that, Ms. MacPherson?

I have Ms. Dhalla after that, followed by Madame Lavallée.

[Elizabeth MacPherson]

Ms. Davies is right, and as recently as the most recent decision of the board, which is the case of Nav Canada, the board itself used the term “essential” or “non-essential” to determine what positions had to continue in the event of a strike or lockout.

It might be helpful to the committee members if I enunciated the principles that come out of the jurisprudence of the board. I know this was of concern to members earlier. These principles are drawn from a decision of the board made in October 2005 in the PSAC and 851791 Northwest Territories case, which I believe was the Fort Liard ferry case.

The board said that section 87.4 is directed specifically towards the prevention of an immediate and serious danger to the safety or health of the public, as opposed to other matters of public interest that might be impacted by a labour dispute, and that mere inconvenience should not cause the board to decide that services are necessary in the interest of public of safety or health. The danger to safety or health of the public must be both immediate and serious--in other words, there has to be a connection between a work stoppage and the immediate and serious danger to the safety or health of the public--and it must be foreseeable.

[Libby Davies, NDP, Vancouver East, BC]

How does proposed paragraph (b) change that, though? Isn't that what proposed paragraph (b) in the amendment says? It spells it out: “to supply essential services, operate facilities, or produce goods to the extent necessary to prevent an immediate and serious danger to the safety or health of the public”. That's what the amendment says.

[Elizabeth MacPherson]

Yes, but there are two ways that could be interpreted. It could be interpreted as you are doing, but it could also be interpreted as meaning that the services necessary to prevent an immediate and serious danger to the health or safety of the public can only be “essential” services, as opposed to whatever else the board might find is necessary to prevent an immediate and serious danger. I think it's capable of two interpretations.

[The Chair, Conservative, Dean Allison]

Let's follow the list here. I have Ms. Dhalla, followed by Madame Lavallée.

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

Ms. MacPherson, are you a lawyer with the department?

[Elizabeth MacPherson]

I'm the director general of the Federal Mediation and Conciliation Service. We're responsible for trying to prevent and resolve collective bargaining disputes. I do have legal training, however.

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

I think it would be beneficial in this case, as well, to get legal expertise before decisions are made, because having one person's perspective—

[Mario Silva, Liberal, Davenport, ON]

You can have five lawyers, and five lawyers will give you five different opinions, so it doesn't help very much.

[The Chair, Conservative, Dean Allison]

Go ahead, Madame Lavallée.

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

You're entirely right, Mr. Chair. A number of lawyers can give differing views on the same situation, and based on the same information.

I only wanted to go back to the information that Ms. MacPherson gave us, that including the expression “essential services” in paragraph 94(2.3)(b) would in a way reduce the scope of “certain activities” as described in section 87.4. I don't understand you at all. Common sense is first what John Vines, a representative of the Canadian Industrial Relations Board, offered here in response to a very clear question from me as to whether maintaining certain activities meant maintaining essential services.

Reread the “blues”. He answered that that was indeed the same thing and that, moreover, they often interpreted maintaining certain services as meaning essential services. Ms. Davies also gave a number of examples of this earlier.

There's a second point. Paragraphs 94(2.3)(a) and (b) proposed in the amendment are very interesting. I'm pleased that the Liberals have introduced them. This explains three cases in which the employer can hire staff: first, to prevent the destruction of his property; second, to maintain certain activities that are described in section 87.4; and, third, for essential services.

A summary and normal description is made in a bill because we know that the Canadian Industrial Relations Board can interpret. Let's leave it its mandate to interpret certain matters. To date, the Canadian Industrial Relations Board has never failed in its duty of interpretation, and no one has ever challenged its interpretations for serious and significant reasons.

Furthermore, I would point out to you that this cannot restrict section 87.4 because paragraph (b) refers to “maintaining certain activities and essential services”. It isn't just essential services, because the word “and” is used. In my view, even though I'm not a lawyer — fortunately, moreover — common sense dictates that the word “and” means an addition.