Human Resources Committee on Feb. 22nd, 2018

[The Chair, Liberal, Bryan May]

Welcome.

Pursuant to the order of reference of Monday, January 29, 2018, the committee is resuming its consideration of Bill C-65, an act to amend the Canada Labour Code, harassment and violence, the Parliamentary Employment and Staff Relations Act, and the Budget Implementation Act, 2017, No. 1.

Today the committee will hear from federally regulated private sector unions. Given the size of the group today, we've broken it into two different panels. In the first panel, coming to us from the Canadian Labour Congress, we have Marie Clarke-Walker, secretary-treasurer, and Tara Peel, national representative. From the Canadian Union of Postal Workers, we have Carl Girouard, national union representative, grievances. From the Public Service Alliance of Canada, we have Patricia Harewood, legal officer, and Andrea Peart, health and safety officer.

Welcome, all of you, and thank you for being here today. We know that we've had quite the quick turnaround on this committee, so we really appreciate you making time to be here to help us make sure that this bill is as good as it possibly can be.

We're going to start with the Canadian Labour Congress.

The next seven minutes are yours.

[Marie Clarke-Walker, Secretary-Treasurer, Canadian Labour Congress]

Thank you very much, Chair.

On behalf of the over three million members of the Canadian Labour Congress, we thank you for affording us the opportunity to present our views on this bill.

The Canadian Labour Congress brings together Canada's national and international unions, along with provincial and territorial federations, as well as over 100 district labour councils, whose members work in virtually all sectors in the Canadian economy in all occupations and in all parts of Canada.

The CLC supports the intention of this bill. Recognizing sexual violence and sexual harassment as workplace hazards and applying a health and safety approach will make workplaces safer. Moving sexual harassment into part II of the code will provide protection for more workers than are currently covered by part III.

We applaud extending health and safety protections to workers on Parliament Hill through the proposed amendments to PESRA.

We do have concerns, however, with parts of this bill. We are concerned that the legislation does not include a definition of “sexual harassment” or “violence”. We're also concerned about the proposal to limit the role of workplace health and safety committees. We must ensure that there are enough health and safety officers in the federal sector, that they reflect the diversity of the country, and that they receive appropriate training.

With respect to definitions, we are concerned that this bill does not include a definition of “violence” or “harassment”, including “sexual harassment”. While the narrative of the bill has been about sexual harassment, the legislation does not make the distinction between sexual harassment and all other forms of harassment and violence. It does not reflect that harassment and violence can be a single incident or a pattern of behaviour, and that a one-size-fits-all approach does not work. We support a broad definition that captures the full scope of harassment and violence.

With respect to the role of the committees, violence at work is a health and safety issue. Applying a health and safety approach to sexual harassment and sexual violence can help make Canadian workplaces safer. The most proven tool in the health and safety tool box is an effective health and safety committee. Limiting the role of committees, the way this bill does, will also limit its benefits and will have a negative, unintended consequence.

In Canada health and safety law requires consultation and participation by health and safety committees. Prohibiting committees from receiving complaints and participating in investigations as appropriate undermines the foundation and will result in less safe workplaces in the federal sector. Section 127 of the code provides the process for resolving all health and safety complaints. After reporting an issue to a supervisor, the employee along with the supervisor shall try to resolve the complaint between themselves. After that, the employee or the supervisor may refer an unresolved complaint to a chairperson of the committee, to be investigated jointly. The word “may” is deliberate; a worker can choose not to refer their complaint to the committee.

The proposed changes will leave workers with limited options if they feel that their complaint is not being addressed. If the only recourse is to file a complaint with a federal inspector, workers may feel pressured to be loyal or to avoid embarrassing their employer, or they may feel uncertain about engaging in this external compliance process. Being able to refer an unresolved complaint to their workplace committee, if they choose to, is important to workers experiencing harassment or violence.

Violence and harassment are not experienced in the same way by all workers. Other forms of discriminatory harassment intersect with gender-based and sexual harassment and make some workers more vulnerable as well. Ensuring workers' confidence that their privacy will be protected is a very important factor to encourage reporting. We are recommending some amendments to build confidence in those privacy protections.

Another barrier to reporting is the fear of reprisals. We know that people fear that reporting will be a career killer. The changes in this bill will put some workers at risk of discipline from their employer for talking to their health and safety committee. Removing the option for a worker to refer their complaint to their workplace committee will leave vulnerable workers without a trusted source of help.

These concerns are amplified, because the bill is silent on a reporting process when the accused is the employer. We know that the intention is to address this through regulation, but it remains a gap.

The code also includes mechanisms for health and safety committees to participate in investigations as they deem appropriate. The code does not require health and safety committees to lead all investigations. It is common for investigations to be conducted by a competent person, as outlined in part XX of the regulations. Health and safety committees have a role to play in identifying the competent person and ensuring that they are qualified and impartial to the satisfaction of the complainant. They have a role to play in determining the essential component of an investigation. In some cases it is appropriate for the committee to conduct the investigation itself.

There has also been a persistent decline in the number of health and safety officers in the federal sector over the last decade. We must ensure that a sufficient number of officers is hired and that the officers receive appropriate training. The inspectorate must reflect a diversity of workers in Canada with respect to gender and gender identity, sexual orientation, indigenous and racialized communities, and persons with disabilities. The recruitment strategy should reflect this.

I want to thank you for listening, and I welcome any questions you may have.

[The Chair, Liberal, Bryan May]

Thank you very much.

We now have, from the Canadian Union of Postal Workers, Carl Girouard, national union representative, grievances.

The next seven minutes are all yours, sir.

[Carl Girouard, National Union Representative, Grievances, Canadian Union of Postal Workers]

Thank you very much.

I would like to thank the committee for giving us the opportunity to make this presentation today.

My name is Carl Girouard and I have been a Canada Post employee since 1991. I was a letter carrier from 1991 to 2006. I then started to work full-time for the Canadian Union of Postal Workers. I am a national union representative for grievances. I have been taking care of grievances for more than 10 years. Since 2011, I have also been a member of the National Health and Safety Committee, the steering committee, and I have been the union co-chair since 2015.

I must tell you that we have gone through various periods at Canada Post. There are many cases of harassment and violence in the workplace. In my experience, in the 1990s and early 2000s, it was possible to talk to supervisors, and common sense still had a place in those discussions. Right now, our members feel that they are no longer treated as human beings, but that they are seen more as numbers, figures, money.

At Canada Post, violence and harassment take different forms. In some cases, it is violence from the public, from disgruntled customers. There is also violence or harassment between employees. At any rate, I want to talk about the harassment that I call systemic, the harassment generated by Canada Post's system and procedures.

Take, for example, the management of absences and, above all, the management of overtime. At the outset, those two principles may seem laudable, but the way they are applied takes away from their legitimacy.

We strongly believe that Canada Post provides financial incentives to supervisors to reduce costs, absenteeism and overtime. This is what drives them to harass and intimidate our members in the workplace. That is why Mr. Trudeau was asked a question about it in Winnipeg; it is a real problem.

The collective agreement specifies that the measurement of work is based on averages. An average, by definition, implies that 50% of people can be faster and the other 50% can be slower. Yet everyone is required to get the same results, the same average, in terms of time. I will explain why this average itself is problematic.

The guide for supervisors managing overtime includes grids and tools to determine whether problems come from somewhere other than the workers, such as the measurement of work or the route. The disciplinary measures imposed on our members show that those tools are not always used. Canada Post does not take into account the experience, the particular problems that may occur on certain days or any exceptional circumstances. It asks our members to justify the time they claim minute by minute.

So evaluation is problematic. It is important to understand that the evaluation of a letter carrier's daily workload is based on what has happened in the last 12 months. Then there is an enforcement process that lasts six months. As a result, when new routes are implemented in a post office, some time has already passed.

In its own communications, Canada Post says that the volume of packages delivered in 2017 has increased by 22% over the previous year. We see that the curve is going up and we quickly understand why the data are no longer appropriate. According to our analysis, the quantity of packages delivered daily by letter carriers has increased by 70% since 2011; it's still not a long time.

Our members work overtime in good faith, in order to complete their work or to provide good service to the public. It has nothing to do with cases of fraud. I can tell you that, in terms of time worked, if there are cases of fraud, Canada Post takes action and fires the people involved. Our members deserve to be thanked, not bullied and harassed in their places of work.

Canada Post keeps a list of employees who work the most overtime in Canada. I can tell you that, when their name is on the list, they become a target.

In the last 10 years, since 2008, 2,875 grievances involving cases of harassment and bullying by Canada Post supervisors have been referred to adjudication.

We have an employee assistance program, which allows them to get support, to access psychologists, among other things, and to talk to people. In 2016 and 2017, two-thirds of the requests from the CUPW letter carrier group were related to work-related issues, stress situations or social isolation. Some people were even at risk of suicide.

So the situation at Canada Post is alarming. I wanted to take the time to explain it to you.

I will be pleased to answer your questions about Bill C-65 in the discussions that will follow.

Thank you.

[The Chair, Liberal, Bryan May]

Thank you very much.

Now we have, from the Public Service Alliance of Canada, Patricia Harewood, legal officer; and Andrea Peart, health and safety officer.

The next seven minutes are all yours.

[Andrea Peart, Health and Safety Officer, Public Service Alliance of Canada]

Thank you.

The Public Service Alliance of Canada appreciates the opportunity to express our views and provide input into Bill C-65. PSAC recognizes that employees who are women, racially visible, and/or living with disabilities face harassment, discrimination, and violence more frequently. Women in particular are almost four times more likely to face workplace sexual harassment in Canada than men. The statistics are even more troubling for indigenous, racialized, and disabled women. As a result, our recommendations to improve Bill C-65 have an intersectional and gender equity lens.

We applaud the government's intention to improve harassment procedures, protect complainant confidentiality, and—after 25 years— finally extend basic health and safety protections to the staff of the House of Commons, Senate, library, and Parliament as a whole.

While much of this bill is positive, we have recommendations for amendments.

First, the complainant must be provided with a copy of the competent person's report. Transparency is critical for complainants to have faith in the process. However, under the current process, following a part XX violence investigation by a competent person, the complainant does not receive a copy of the competent person's report. In fact, the complainant doesn't receive anything. The complainant must receive a copy of the competent person's report, including recommendations, in order to ensure transparency and procedural fairness.

Our next two recommendations pertain to the regulatory aspect, but are crucially important.

A role for human rights bodies must be included in the selection of a competent person to investigate harassment in the workplace. It is PSAC's experience that many competent persons lack the necessary human rights expertise required to properly investigate harassment on a prohibited ground such as sexual harassment or racial harassment. However, other bodies such as the Canadian Human Rights Commission, the Federal Public Sector Labour Relations and Employment Board, and certain labour board arbitrators already have significant expertise in dealing with human rights complaints and grievances, including sexual harassment and sexual violence. Therefore, it is critical that any regulations provide a role for expert bodies such as the commission to provide or recommend competent persons, and potentially assist in the resolution of complaints.

Next, the regulatory process under part XX must not bar or delay our members' quick and easy access to human rights complaints or grievances, which may offer greater expertise, procedural fairness guarantees, and remedies for complainants. These rights-based mechanisms include the Canadian Human Rights Act, the Federal Public Sector Labour Relations and Employment Board Act, and those in collective agreements to address harassment and violence.

More details on those two recommendations are included in our written submission.

Our next recommendation is to reinstate the health and safety committees' role in both receiving complaints and making informed recommendations by ensuring policy committees receive a copy of the competent person's report. Under the proposed changes, the health and safety committee, and therefore the union, would be excluded from the processes described in the Canada Occupational Health and Safety Regulations, part XX. Receiving complaints is an important function of the workplace health and safety committee. Section 127.1 of the Canada Labour Code provides a process for resolving health and safety related complaints. After reporting an issue to a supervisor, the code provides a mechanism for moving complaints through the internal responsibility system for all health and safety complaints, including violence. However, under the proposed change, workers would no longer be able to bring an issue related to violence or harassment to a health and safety committee for help.

PSAC recommends that the committee's function on receiving complaints relating to an occurrence of harassment and violence be reinstated. We believe this section can be strengthened by establishing that the employee or the supervisor may refer an unresolved complaint to a chairperson of a workplace health and safety committee or to the health and safety representative to be investigated jointly, where consent is provided by the complainant and privacy and human rights are respected.

In addition to receiving complaints, committees are required to investigate hazards. Under existing law, workplace health and safety committees are required to investigate any hazard in the workplace that may lead to injury, including mental injury. However, under the proposed legislation, the jointly administered health and safety committees are explicitly blocked from participating in any activity relating to an occurrence of violence or harassment. We believe this to be a grave error. Instead, we believe that health and safety representatives shall, where appropriate and when requested by the complainant, participate in an investigation relating to an occurrence of harassment or violence in the workplace.

Finally, committees make recommendations for improvement. Workplace health and safety policy committees are an important source of recommendations for improvements. In addition, committees participate in the selection of a competent person, as well as participate in the establishment of essential elements of the competent person's report.

At the very least, we recommend amending the bill to ensure the co-chairs of policy committees receive a copy of the competent person's report, with the complainant's consent, and provided that the privacy and human rights of the parties are respected.

Our final recommendation is to hire and retain a sufficient number of health and safety officers and establish a substantive training system that includes training on privacy rights, human rights, sexual harassment, and domestic violence against women.

Our submission documents the frankly massive decline in the number of health and safety officers since 2005. We also have major concerns regarding the minimal amount of training required for federal health and safety officers compared to provincial-territorial requirements. As an example, the current training for federal health and safety officers is one tenth of the training required in Ontario.

As this bill commits to establish new specialized health and safety officers, it is crucial that the training program be substantive and robust and that it include special training on equity, sexual harassment, and domestic violence against women. There must be a commitment to hiring not only a diverse group of special inspectors from equity groups but also those with expertise in investigating and analyzing harassment on the prohibited grounds of sex, race, disability, sexual orientation, religion, gender identity, etc. It's also important to hire some special inspectors who speak indigenous languages. Any legislation aiming to improve workplace safety must take into account the specific ways that members of equity-seeking groups, such as racialized and indigenous women, experience harassment and violence and how their particular needs might be addressed in a complaints-and-reporting process.

Thank you. We'll be pleased to answer any questions you may have.

[The Chair, Liberal, Bryan May]

Thank you very much.

Thanks to all of you for staying on time. That was excellent.

We're going to begin the questions with MP Harder.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you very much.

I'm going to start by coming back to you, Ms. Clarke Walker. You talked about how this piece of legislation might have a somewhat chilling effect, I suppose, in the workplace in terms of reports or concerns coming forward due to the process that has been put in place by Bill C-65. Can you comment on that further?

That's the direct opposite of what this bill is intending to do, so I think it's important for us to get to the bottom of this. Could you help us understand the concern workers might have with regard to coming forward with their concerns?

[Marie Clarke-Walker]

Workers trust their unions. They trust the people who they have elected or who have been appointed on their behalf to look at health and safety issues. If that whole committee is taken out and if the person they trust is taken out of that equation, then who do they turn to, particularly when the issue may be the employer or their supervisor?

The whole point of it being a joint committee is that either side has people there who they can trust and who they feel comfortable speaking to about the issues that may arise. Again, if you take that out, chances are, as we've heard from a number of people, that they won't complain, and the situation will fester and get worse, because they will feel intimidated to come forward and to say anything about what's happening in the workplace.

[Rachael Thomas, Conservative, Lethbridge, AB]

If Bill C-65 were to be changed to allow a person to not have to go directly to their employer, but rather to be able to seek out the union health and safety committee, let's say, is that the change you're looking for? Or is there a different change that you would be looking for?

[Marie Clarke-Walker]

First of all, it's a joint committee, so we just want the role of the joint committee as it is now to remain. To take them out of the process, we think, will be more hazardous to the complainant.

[Rachael Thomas, Conservative, Lethbridge, AB]

Okay, but do you see that this legislation will in fact strengthen the workplace? Or would you say that perhaps unions are best positioned to handle it?

[Marie Clarke-Walker]

I think joint committees are best situated to handle it. It is not a union versus employer situation. We have joint committees in place right now—

[Rachael Thomas, Conservative, Lethbridge, AB]

It needs to be both.

[Marie Clarke-Walker]

—and we need to have both there to be able to do it.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

Ms. Peart, you made similar comments in terms of the union and not wanting to be excluded from the process by having to go directly to the employer, and the fact that, again, it could have a chilling effect in terms of the reports that come forward. Is there anything you would add to that?

[Andrea Peart]

I think I was quite specific in my statement, but we really think that the removal of the participation of the committee, the removal of that oversight of even just receiving the part XX report at the end, is really problematic. I think that those are certainly areas that need to be improved in the bill.

I think it's also worthwhile to recognize that in the current process, the complainant doesn't receive a copy of the report and that's particularly problematic. If you're in a workplace and you file a part XX harassment complaint, it's investigated and there might even be substantive action that's taken, but you wouldn't find out about it. Then you might very well say to your friends and colleagues, “Whatever you do, don't file a complaint because they don't do anything”, and that might not have been the case.

That transparency is really important and that's another area where the bill really could improve one of the existing flaws, by ensuring there is that transparency and that the complainant receives a copy of the report so they have that resolution. Then you're again removing some of the barriers that already exist towards coming forward.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

Ms. Walker, I'm going to come back to you. Another comment that you made was with regard to the definition of harassment and the definition of violence, and the fact that this piece of legislation doesn't define those. It's been promised that it will be defined within the regulations.

You seem to be saying that we should be defining it within the legislation itself. Can you comment on that further and perhaps provide what you would consider a broad definition for violence and for harassment?

[Marie Clarke-Walker]

Sorry, I don't have the actual definition on me. It's in here somewhere but I can definitely get a definition to you. Can you repeat the first part of the question?

[Rachael Thomas, Conservative, Lethbridge, AB]

Sure. Maybe you can comment on why you feel it's so essential that it's a part of the legislation rather than just a part of the regulations.

[Marie Clarke-Walker]

If it's right there in the legislation, there is no mistaking what exactly is meant by sexual harassment, by harassment, or by discrimination. It's right there so nobody can have any other ideas as to what it actually means and what it entails.

[The Chair, Liberal, Bryan May]

Thank you.

Now over to MP Fraser, please.

[Sean Fraser, Liberal, Central Nova, NS]

Thanks, Chair, and thank you very much to each of our witnesses for being here.

Perhaps I'll start with Ms. Clarke Walker. You described some of the barriers to reporting and specifically you talked about privacy and the fear of reprisals, if my memory serves accurately. You raised the concern about the potential circumstance where complainants are forced to make a complaint directly to their employers.

Are there safeguards in the legislation now or that could be added without eroding the entire structure to prevent that specific scenario from happening?

[Marie Clarke-Walker]

There are safeguards in the existing legislation that allows them to go to their joint health and safety committees to be able to do that, so they don't have to go directly to their employer, particularly if the employer is the one who's been doing the harassing, discriminating, or violence.

[Sean Fraser, Liberal, Central Nova, NS]

On the regulation versus legislation piece, I think both CLC and PSAC had something to say about this, or potentially might have something to say about it. I don't personally have a problem with defining things or laying out the details in regulation. People may differ on that.

One of the things that came up, I think it was during PSAC's testimony, was the need to give the complainant a copy of the competent person's report to protect procedural fairness. I agree. It makes complete sense to me.

Is there a problem with ensuring that takes place by way of regulation after we consult the different stakeholders and put this in place, or is there a need for it to get into the actual legislation?