Human Resources Committee on Feb. 15th, 2007

[The Chair, Conservative, Dean Allison]

Okay, we're going to suspend for five minutes while we have a look at proposed subsection 94(2.3). People will have a chance to have a look at it and discuss it.

[The Chair, Conservative, Dean Allison]

Mr. Silva, now that you've introduced the motion, I would ask you to read the motion into the record and maybe talk to it a bit in terms of your thoughts on it.

[Mario Silva, Liberal, Davenport, ON]

Thank you very much, Mr. Chair.

Presently, as you know, proposed subsection 94(2.3) speaks about protection of property. I am asking that lines 2 to 5 on page 3 be changed to the following:

does not have the effect of

(a) preventing the employer from taking any necessary measures to avoid the destruction of the employer's property or serious damage to that property; or

That's already in the language of proposed subsection 94(2.3) anyway, but this adds a further paragraph (b), which says:

(b) exempting the employer, the trade union and the employees in the bargaining unit from continuing to supply

--the new phrase--

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.

[The Chair, Conservative, Dean Allison]

You've read the motion. Do you want to talk to it a bit?

[Mario Silva, Liberal, Davenport, ON]

No. I'd like to move the motion.

[The Chair, Conservative, Dean Allison]

Well, there'll be some discussion. He's moving the motion.

Mr. Harvey.

[Luc Harvey, Conservative, Louis-Hébert, QC]

I have always owned a business and I've always worked in the private sector. This is the first time I've worked for the public sector.

I read this amendment, and I find it hard to understand how you can introduce that, particularly if you consider paragraph (a). It reads as follows:

(a) preventing the employer from taking any necessary measures to avoid the destruction of the employer's property or serious damage to that property;

What is meant by the word “serious”? Does it mean setting fire to the building? Are we talking about vandalism? Any intrusion into a place belonging to the business is utterly prohibited. It's impossible, it's against the law.

At a minimum, it should be said that any destruction of or damage to that property is prohibited, not only in serious cases. Otherwise you're authorizing minor offences. I don't believe the Canadian government is in a position to authorize the commission of minor offences within the facilities of a business, even if there is a strike. That's prohibited, regardless of the situation.

The second point appears in paragraph (b). Once again, I can't believe it. We're talking about maintaining certain essential activities and services. When it states “essential”, what does that mean? Breathing is essential. We can't allow anyone to touch certain essential aspects of a business. Furthermore, it's not necessary that that be related to public safety or the public. If you go into an aluminum plant and you cut off the electricity, it will take about a year and a half for the plant to recover as a result of the damage caused.

I believe that everyone here should work to advance the country's economy, should work to improve the working environment. I believe we are headed in the opposite direction from where we want to go. That's unacceptable, and I can't get over it.

Thank you, Mr. Chair.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Harvey.

Ms. Davies, Mr. Lake, and then Mr. Savage.

[Libby Davies, NDP, Vancouver East, BC]

Thank you very much.

I do support the amendment and I'd like to point out why. I really believe this amendment that has been put forward by the Liberals is a helpful clarification to reinforce what is already in the Labour Code.

If you read proposed subsection 94(2.3), that's already in the bill before us. It's basically adding one word, which is “or”. The clause is already there. Then there's a new clarification under proposed paragraph 94(2.3)(b). This makes it clear that the employer, the trade union, and the employees in the bargaining unit are able to continue with essential services.

In the Labour Code under section 87.4, there is already a provision for essential services. It's called “Maintenance of activities”, and it spells out that there can be continuing operations to prevent an immediate and serious danger to the safety or health of the public. Mr. Silva's amendment is really intended to clarify that this bill is reinforcing what is already in the Labour Code, by spelling out essential services.

Some of the Liberal and other members expressed concern that there was not an adequate provision or process to deal with essential services. Unfortunately, Monsieur Harvey was not here when we had the technical briefing, but there was very careful questioning of the officials.

The existing Labour Code does spell out a process for essential services and the maintenance of services. It's done on a case-by-case basis, and the Canadian Industrial Relations Board builds up a jurisprudence of what they understand to be essential services. That's well established, and no one is trying to change that. This amendment is simply trying to reinforce that the process exists in the current Labour Code and will continue to exist. This amendment is a helpful clarification to satisfy some of the concerns put forward that we are dealing with essential services and allowing them to happen, as spelled out in the code.

[The Chair, Conservative, Dean Allison]

Thank you, Ms. Davies.

Mr. Lake.

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

Yesterday I made a comment that I thought the opposition was taking ad hoc to a new level in this committee. Today I believe we're adding a second essential services clause to a bill that already has an essential services clause--I'm not sure.

Can we have some comment from the department officials here or the legislative clerk? Is there not a clause in the current Labour Code that already deals with this?

[The Chair, Conservative, Dean Allison]

Ms. MacPherson.

[Elizabeth MacPherson, Director General, Labour Program, Federal Mediation and Conciliation Service, Department of Human Resources and Social Development]

As one of the members has pointed out, section 87.4 is a provision of the current statute that deals with maintenance of activities. Some of the language in the proposed amendment mirrors the language in section 87.4, although it does add an additional qualifier word that does not exist in the current section. The proposed amendment introduces the concept of essential services, and the word “essential” is not used in the current section 87.4.

[The Chair, Conservative, Dean Allison]

Mr. Lake.

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

Is it a normal process in changing or amending legislation to have repeat clauses like this? To the legislative clerk, is this a sort of end run? Does this contravene the rules of private member's business, or is this in line with the rules?

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

Mr. Chair, on a point of order, I know that the legislative clerk is providing you with advice for you to be able to come back to the committee. If you wouldn't mind, if it's okay with you, could the legislative clerk also allow us to know the answer to the question that was posed, just so that it doesn't get lost in translation, with all of his expertise.

Thank you.

[The Chair, Conservative, Dean Allison]

Sure.

[Marc Toupin, Procedural Clerk]

Well, essentially I have to concur with Ms. MacPherson. I have before me a copy of section 87.4 of the Canada Labour Code, and I do not see the words “essential services” referenced in the Canada Labour Code.

I think it becomes a question perhaps for the committee to decide as to whether or not that is a scope issue--whether or not this is really going beyond the scope of Bill C-257 by introducing the notion of an essential service.

Certainly the words that are used following the expression “essential services”, when it talks about “operating facilities or produce goods to the extent necessary to prevent an immediate and serious danger to the safety or health of the public”, are referenced essentially word for word in section 87.4. I think in subsection 87.4(1), which I have before me, they use the word “and”, “immediate and serious danger to the safety or health of the public”, and I think that's what we have in the amendment being put forward by Mr. Silva.

I don't know if that helps, Mr. Chairman.

[The Chair, Conservative, Dean Allison]

Here's who I have on the list: Mr. Lake, Mr. Savage, Mr. Silva, Ms. Yelich, Mr. Harvey, Ms. Dhalla, Ms. Davies.

Mr. Lake.

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

Back to my question about normal practice, is this normal practice? Are there other places in the Labour Code where we have the same clause in two different places? Is this a normal way of amending legislation? You can maybe answer that.

Secondly, the question we've had, with specific examples, throughout our committee meetings—and I'm wondering if this addresses that—is does this change the fact that telecommunications, for example, in the past has been ruled not to be covered under the current section 87.4? Does this change that? In the case of a telecommunications strike or lockout, or work stoppage of some sort, would 911 services be protected under this legislation? What's the history?

[Elizabeth MacPherson]

To answer your first question, which is whether this is standard practice, it's not uncommon to see one section of the code referenced elsewhere in the code, but it's usually done so by making reference to the specific section, rather than by repeating the section. We see examples of that throughout the code.

With respect to your second question as to whether this would change anything for the board or the interpretation or definition of section 87.4, which is the section that authorizes the board, if the parties cannot agree, to make determinations as to what services must be maintained in the event of a strike or lockout, it's difficult to say how the board would interpret this new word that would appear in this clause vis-à-vis what it's told to interpret in section 87.4.

We do know that, based on the current section 87.4, in the cases that were put in front of it, notably Aliant and TELUS, which dealt with telecommunications, the board felt it had no evidence that those 911 services were essential and therefore did not make a declaration. But I'm unable to predict whether the addition of this word in a different section of the code would give the board different scope, and I defer to the legislative clerk on that.

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

Mr. Chair, I don't have any more questions.

I'll just comment that obviously I can't support the amendment. This just takes us deeper into the bizarre world that we've been dealing with for the last month on this legislation. I have no further comment.

[The Chair, Conservative, Dean Allison]

Thank you.

I have Mr. Savage, followed by Mr. Silva, Ms. Yelich, Mr. Harvey, Ms. Dhalla, and Ms. Davies.

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

Thank you, Mr. Chair.

I do support this amendment, on the principle that I've stated before: that I do want to see a law that bans the use of replacement workers but does not put Canadian citizens in jeopardy or leave them without essential services.

I feel that section 87.4 does not sufficiently protect Canadians from potential harm by that, so to me the inclusion of the words “essential services”, though vague, does provide a whole new element to the bill we're looking at. It means there is a potential that things like telecommunication services would be covered, as--in my view--they should be.

I do have a question for the drafter of the bill, who is my colleague: “exempting the employer, the trade union, and the employees in the bargaining unit from continuing to supply essential services,”--is that a comma? That's a comma, right, and not a period?

[Mario Silva, Liberal, Davenport, ON]

It's a comma, yes.