Human Resources Committee on Feb. 13th, 2014

[The Chair, Conservative, Phil McColeman]

Good morning, everyone, and welcome.

This is meeting number 12 of the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities. Today is Thursday, February 13, 2014 and we're continuing our consideration of private member's bill C-525.

For our first hour today, we are once again joined by a robust panel of witnesses. From the Canada Industrial Relations Board we are joined by chairperson Ms. Elizabeth MacPherson and Ms. Ginette Brazeau, who is the executive director and general counsel.

We are also joined by Mr. Dick Heinen, executive director at the Christian Labour Association of Canada.

Joining us by video conference from Toronto is Mr. Satinder Chera, vice-president of communications for the Canadian Federation of Independent Business.

Also joining us by video conference from Paris, France, and appearing as an individual is Mr. Marcel Boyer, emeritus professor of Economics at the Université de Montréal and fellow at the Centre for Interuniversity Research and Analysis on Organizations.

I now turn the floor over to our witnesses for their opening presentations.

I ask that you please keep your remarks to seven minutes. I believe you've been advised of that by the clerk. We do have limited time. We will have limited for questions after that. We are still awaiting, I believe, the agenda for the day. I don't know whether you've received it, but we will proceed as per the introductions, beginning with Ms. Elizabeth MacPherson speaking on behalf of the Canada Industrial Relations Board.

[Elizabeth MacPherson, Chairperson, Canada Industrial Relations Board]

Thank you, Mr. Chairman. We thank the committee for the opportunity to make a presentation to you this morning in your study of Bill C-525.

I intend this morning to speak a little bit about the board's responsibilities and then to cut right to the specifics regarding the conduct of representation votes.

I'll be making reference to the paper entitled Certification / Revocation Votes under the Canada Labour Code, which I believe was distributed to the members earlier.

The board is responsible for the interpretation and application of part I of the Canada Labour Code, which regulates labour-management relations in the federal private sector. This jurisdiction includes the key infrastructure industries that are critical to Canada's economy, for example railways, airlines, interprovincial trucking, shipping, longshoring, banking, broadcasting, telecommunications, grain handling, and uranium mining. To provide service to this widespread community the board has regional offices across Canada staffed by industrial relations officers and case management officers.

As you may know, labour relations in the federally regulated private sector are mature and relatively stable. The unionization rate is approximately 40%, much higher than the national average of 17%. However, the rate does vary by industry. It's very high in the railways and airlines, but significantly lower in the banking sector.

In an average year the board receives between 70 and 100 applications for certification of newly organized bargaining units. In addition to this number the board also deals with applications from unions that have been voluntarily recognized by the employer but that wish to have confirmation of this status from the board. We also have applications from unions seeking to displace another union as the bargaining agent for an existing unit and applications from individuals seeking to revoke their bargaining agent's accreditation.

In the paper, figure 1 on page 2 provides an indication of the number of each type of application the board has received in each of the past four and three-quarter years.

When the board receives any of these types of applications, a notice is sent to the employer and is posted in the workplace to ensure everyone affected by the application is aware of it. The notice provides the affected employees with contact information for the board's industrial relations officer, or IRO.

An IRO is assigned to each of the files as it comes in. It is their responsibility to investigate the application, to gather submissions from the employer, the union, and any employees who wish to comment. The IRO also reviews and tests the membership evidence supplied by the applicant. This involves personally contacting a representative sample of the individuals who have signed a membership card in order to verify they did, indeed, sign the card, and they personally paid the mandatory sign-up fee of five dollars.

The IRO also investigates any allegations of impropriety that may have been raised. He or she then prepares a report summarizing the positions of the parties, which is sent to the parties for comment and correction if necessary. Through this process the IRO is often able to resolve differences regarding the scope of the proposed bargaining unit.

The IRO also prepares a confidential report to the board regarding the membership evidence. This report is not provided to the parties because section 35 of the Canada Industrial Relations Board Regulations requires that employees' wishes be kept confidential.

The file is then referred to headquarters for the assignment of a panel. The panel consists of a vice-chair of the board, an employer side representative, and an employee side representative. The panel reviews the application and the membership evidence provided, decides on the scope of the appropriate bargaining unit, and determines whether the applicant has majority support in that unit. Section 29 of the code provides the board with the authority to order a representation vote if it deems one is necessary.

Figure 3 on page 4 of the paper provides you with the summary of the number of representation votes the board has conducted over the period from April 1, 2009, until December 31, 2013.

If the board decides a representation vote should be conducted, the IRO is appointed to act as the returning officer. He or she meets with the applicant and the employer to make the necessary arrangements for the conduct of the vote. Any unresolved issues, for example whether a particular person is eligible to vote, or whether the vote should be conducted electronically, by mail ballot, or in person, are referred to the panel for decision.

On pages 4 and 5 of the paper we describe the three types of mechanisms we use for votes, the in-person, the mail ballot, and more recently the electronic voting via Internet and telephone.

We also outline the relative cost of each of these types of votes on pages 6 and 7.

I'll be happy to take any questions that members of the committee may have.

Thank you.

[The Chair, Conservative, Phil McColeman]

Thank you very much for being under time. That allows us more questioning time.

Now we'll move on to Mr. Heinen.

[Dick Heinen, Executive Director, Christian Labour Association of Canada]

Thank you, Mr. Chair and honourable members of the committee, for the opportunity to speak to you today about this bill.

The Christian Labour Association of Canada, CLAC, is one of the largest independent unions in Canada and one of Canada's fastest-growing unions. Founded in 1952, we represent more than 60,000 people across the country. We have a very strong presence in oil and gas development projects in Alberta, natural resource development in British Columbia, as well as construction, mining, health care, and other industries throughout Canada. But particular to these proceedings, CLAC has a strong construction and mining presence north of 60, which is the jurisdiction of the CIRB, and we are very much affected by the changes, as well as the transportation industry across the country, interprovincial.

Now fundamentally, CLAC believes in competition in the labour relations environment in Canada. We think that workers should have the right and be free to make their own choices when it comes to which union represents them or whether they want to be represented by a union at all. The Canadian economy benefits from a more competitive labour environment, and CLAC supports efforts to improve the Canadian economy and at the same time to strengthen the democratic rights of workers.

Fundamentally, competition offers a fairer deal for Canadian workers and helps to create a better workplace through freedom of choice. Now Bill C-525, on the surface, seems to support these objectives. Requiring a vote for both certification and decertification is, in many cases, a standard in provincial labour law, and moving federal law to a similar model makes sense. However, Bill C-525 makes significant errors that place it offside with labour standards across the country. Furthermore, because of the geographical reach of Bill C-525, there are some unique challenges in the application of the bill.

First, for a successful vote on either certification or decertification, Bill C-525 would require a majority of the entire bargaining unit. This standard of voting goes well beyond any other labour law in Canada and is beyond the requirements we see even in voting for federal and provincial general elections.

Requiring 50% plus one of the entire workforce is a standard that is unfair for a number of reasons. First, there may be many workers who simply prefer not to vote, and in some cases, be it sickness, injury, transportation, vacation, they are not able to vote. In such a case their decision or their situation not to cast a vote becomes a de facto vote against the union.

In effect, Bill C-525 would mandate that in a certification vote every worker would be counted as having voted no, unless they vote yes. Just let that sink in for a moment. If you choose not to vote or for some reason you're unable to vote, you're still counted as having voted. Now that's what the bill proposes to do. Can you imagine in your own ridings—

[A voice]

Oh, oh!

[Dick Heinen]

—if the number of voters who chose not to cast a ballot were automatically counted against you?

Second, no other labour law in Canada is based on this standard of voting. No other jurisdiction automatically counts non-voters as having voted against certification.

Bill C-525, as written, would disadvantage workers in workplaces under federal jurisdiction over workers anywhere else in the country. It seems to me the federal government shouldn't be trying to set double standards in the area of labour laws.

We propose that it be amended that all sections of the bill concerning voting for certification or decertification that state “the majority of employees in the bargaining unit” be replaced with “the majority of votes cast”. This simple amendment to the bill would address the first issue that I've raised.

I would strongly encourage the committee to put forward such an amendment to this bill.

I also want to draw the committee's attention to one other aspect of the bill that I believe should be given consideration. That is how votes would be handled in remote workplaces and among workers in the federally regulated transportation sector who are often dispersed around the country.

Remote work sites, such as those often found in development projects in Yukon, the Northwest Territories, and Nunavut pose their own sets of issues when it comes to fair voting practices. In most cases, workers at these remote sites are rotated in and out to work at the work site. It means that, should a vote for certification or decertification take place, it is likely that only a portion of the workers would ever be available at any one time to participate in a secret ballot vote.

Similar problems would be experienced by workers in the transportation industry who are rarely, if ever, in the same location together. The problems to fair voting in this case are obvious.

I understand that Elizabeth just mentioned that there are other ways of voting. There are mail-in ballots and now there is electronic balloting as well.

[The Chair, Conservative, Phil McColeman]

You have one more minute.

[Dick Heinen]

I'm almost finished.

I understand that these are options, but they have not been viable options for us in the north, and we have experienced all of them.

I encourage the committee to consider this as you deliberate this legislation. I suggest that the legislation should incorporate provisions to deal with remote locations and transportation workers.

I have a lot of personal experience with this and I would be happy to address it further in questions from the committee.

Thank you for allowing me to make a presentation and to speak on behalf of CLAC. I look forward to your questions.

[The Chair, Conservative, Phil McColeman]

Thank you for your presentation, sir.

Now we move on to Mr. Satinder Chera from the Canadian Federation of Independent Business by video conference.

[Satinder Chera, Vice-President, Communications, Canadian Federation of Independent Business]

Thank you, Mr. Chair.

On behalf of the Canadian Federation of Independent Business and our 109,000 small and mid-sized members across the country, we thank the committee for allowing us to speak to Bill C-525 this morning.

Just by way of background, we at CFIB are a membership that is 100% voluntary. We represent all sectors in all regions of the country. We are strictly a non-partisan, not-for-profit organization. We are 100% funded by our membership. We accept no government dollars and, in terms of our policy agenda, we work through a democratic survey process that is one member equals one vote.

In terms of the issue at hand, I thought it would be helpful to provide some background material. On slide 3 there was a survey that was recently conducted by Leger Marketing for the Canadian LabourWatch Association that asked Canadians about their preferences for being unionized. On slide 3 those results are for Canadians who have never been unionized and, as it makes it very clear, 71% have no interest at all in being unionized going forward.

On slide 4, of those who were formerly unionized, interestingly enough, 69% also prefer not to be unionized.

[Jinny Sims, NDP, Newton—North Delta, BC]

Mr. Chair, on a point of order, do we have those slides?

[The Chair, Conservative, Phil McColeman]

We do. They were distributed electronically. We do not have the paper copies in front of you because we are trying to do our best to go paperless, but they are distributed electronically.

[Jinny Sims, NDP, Newton—North Delta, BC]

Thank you.

[The Chair, Conservative, Phil McColeman]

Continue on, Mr. Chera. I'll add that to your time, sir.

[Satinder Chera]

Thank you, sir.

I want to set this up because I think this issue really shouldn't be too controversial in that when you ask Canadians for their preferences when it comes to unions in general, it seems they have pretty strong opinions about not being part of a union, and more importantly, those who have been formerly unionized also don't think too highly of being unionized.

On slide 5, secret ballot votes are very much a cornerstone of our democracy. Our members, as well as working Canadians, very much support secret ballot votes. In fact, recently, CFIB submitted a letter to all MPs outlining our encouragement for a more democratic voting system in federally regulated workplaces.

On slide 6, we ask our members whether secret ballot votes should be mandatory prior to any union certification, and 76% were in favour of that outcome. Again, I would provide this background. Our members in provinces where there are card-based certifications in place often talk about the fear factor that is involved in union drives. So we think providing for a secret ballot vote would be one way to take out that fear factor so that workers, who should be the ones making the decision, can be free of intimidation, whether it's the union or the employer. They can do it with the comfort and the peace of mind that no one's going to know how they particularly voted.

On slide 7, there was also the question that was asked about in the Leger Marketing poll. Canadians were asked whether a secret ballot vote should be required when forming or removing a union from a workplace. We've broken it out here in terms of the result: those who are currently unionized and those who were formerly unionized. Again, there are fairly high levels of support for having a secret ballot system in place, so really it's non-controversial, I think, in that respect.

On slide 8, and concluding, Mr. Chair, we do very much believe that this committee should adopt Bill C-525. We think it's really non-controversial in the sense that the principle of a secret ballot vote is supported by taxpayers and by a vast majority of Canadians. Even those who are unionized or formerly unionized agree strongly that this should be put in place. I would simply make the observation that if secret ballot votes are good enough to elect our representatives in government, they should very much be good enough to elect a union.

Thank you very much for your time, and I'd be happy to take any questions you may have.

[The Chair, Conservative, Phil McColeman]

Thank you for your presentation.

Now we're on to Mr. Boyer, as an individual, by teleconference.

Sir, proceed.

[Marcel Boyer, Emeritus Professor of Economics, Université de Montréal, Fellow, Centre for Interuniversity Research and Analysis on Organizations (CIRANO), As an Individual]

Thank you, Mr. Chairman and members of the committee.

I will be speaking mainly in English, although I could entertain questions in French. My notes are in French, so I may at times hesitate in finding the proper English words.

Let me start by saying that these are challenging times for unions, not only in Canada but across the world. Over the last 30 years, the unionization rate has dropped from something like 22% in the U.S. to less than 12%. In the United Kingdom it dropped from 51% to less than 30%. Similar drops have been observed in Germany, Australia, Austria, South Korea, France, Italy, Japan, New Zealand, the Netherlands, Portugal, and Switzerland. Only in Belgium, Finland, Norway, and Sweden have we observed a relatively constant level of unionization, of the percentage of the workforce being represented by a union.

In Canada the rate was around 34% in the early 1980s and has dropped to less than 30%. So the drop in Canada has been much smaller than it has been elsewhere, in particular in the U.S. and in the United Kingdom.

That's why I say that these are challenging times for unions as they try to find a way to adapt to a new economic environment characterized by globalization, information and communication technologies, cultural change, and new management practices. The world today is very different from what it was 25 or 30 years ago.

As you well know, in Canada we have two basic systems of union certification, one through compulsory secret ballot and another one through the signing of union cards. Each province has a slightly different system. Although the split is between those two regimes, the application of the regime is somewhat different from one province to the next.

It's fair to say that the most populous provinces, except Quebec, all have a secret ballot system. These include B.C., Alberta, Saskatchewan, Ontario, and also Nova Scotia. I'm not sure about Newfoundland. They were under a secret ballot system, but I remember that a couple of years ago, if not more recently than that, they were considering switching back to a card signing system.

It's clear that the arguments in favour of or against each of these systems are expressed in similar words, although they apply to different systems. For instance, if I take the access of the employer to the worker during the card registration or signing system, people who are favourable to the system of card signing argue that the employer may have privileged access to employees—much more than the unions or the union's organizers—when trying to get in touch with the employees and that therefore it is relatively unfair.

On the other hand, people who are in favour of a compulsory secret ballot argue that in the card signing system it is the union that has privileged access to workers, for workers hear only the point of view of the union, because the card signing procedure is relatively secret.

Maybe the major argument deals with intimidation.

People in favour of the secret ballot say that intimidation on the part of union organizers may be very important when workers are asked to sign cards, but union organizers or unions favourable to a card signing system argue that a secret ballot allows the employer to put pressure on its employees, to convince them to vote against the union, and that therefore this notion of intimidation is certainly one of the key aspects of the industrial relations board in terms of certification of unions.

Clearly intimidation has to be fought whether it comes from the union or from the employer. However, information provided by the union or by the employer is something that in a democratic system everyone should welcome.

In terms of timing, it is sometimes mentioned that the employer may pursue a strategy by which the industrial relations board or the organization responsible for conducting the vote would have a longer period of time between the accreditation demand and the formal vote. But in general, of course, the boards have been trying to hold those votes relatively close to the time at which the union can be certified.

[The Chair, Conservative, Phil McColeman]

Could I ask you to quickly wrap up, sir? We're approaching your seven minutes.

[Marcel Boyer]

Another point besides intimidation is the issue of coordination between the labourers and workers in the firms, the employees, and the employer, developing an absence of conflict in firms in favour of a better....

My last comment is that union representation is not the only way by which workers or employees can be represented within firms. New management methods in fact call for diverse forms of labour representation in firms, which may be much more efficient in terms of protecting the rights of workers than was the case in the traditional union-employer conflicts.

My last point would be that in 2009—and I think Mr. Chera may have made reference to this—the Leger Marketing poll showed that 71% of people in Quebec—this was a Quebec-based survey—supported a secret ballot system, and among those people who were members of unions, 80% supported a secret ballot requirement to certify or decertify a union, and therefore there seems to be an important aspect in terms of the democratic process.

Thank you very much.

[The Chair, Conservative, Phil McColeman]

Thank you very much for your comments, sir.

We move on to questioning now from members of the committee. From the NDP, the first questioner is Ms. Sims.

[Jinny Sims, NDP, Newton—North Delta, BC]

Thank you very much.

I want to thank all the presenters for making the time to come today and share their perspective or expertise with us.

My first question is for Ms. MacPherson.

Do you agree with the conclusion of the Sims report—and by the way it's no relative of mine, and I did not write that report even though the spelling is the same—and support the tripartite approach to amending the Canada Labour Code?

[Elizabeth MacPherson]

I've been chair of the board for six years and prior to that I was the director general of the Federal Mediation and Conciliation Service. I have my undergraduate degree in industrial relations from McGill University, which I obtained in 1971. So I've spent more than 40 years in the field of labour relations and my experience has been that the tripartite system of consultation is truly the best system for achieving balanced labour legislation.

[Jinny Sims, NDP, Newton—North Delta, BC]

Thank you.

Do you believe it was appropriate to exclude all parties in the crafting of such an important will?

[Elizabeth MacPherson]

I'm sorry but I have to ask the chair if it's appropriate for a public servant to answer a question of policy.

[Jinny Sims, NDP, Newton—North Delta, BC]

My apologies. I withdraw that.