Human Resources Committee on Feb. 22nd, 2018

[Sean Fraser, Liberal, Central Nova, NS]

I would like to thank Mr. Woodcock and Mr. Benson for their advocacy for mental health in the workplace. Obviously, this is a major priority for just about everybody in Canada, and the uptake we have seen has been very positive over the past decade, really. Of course, there's more work left to do.

Under your proposed amendment, I want to get an understanding of how this would actually work. Who would bear the responsibility to make sure that the mental health supports are there? My mind usually goes to government programming, that this belongs in a budget not legislation, but here you're suggesting that the employer should have a mandatory obligation to provide the support.

Is that accurate?

[Phil Benson]

Yes. You have our document. If you look at subsection 19.1(1) of Occupational Health and Safety Regulations, we would add “and mental health” in the workplace, so that it becomes part of the workplace committees. It's a matter of getting it into the hopper, where it isn't just something that has been implied, that it's just kind of there, but is actually defined, so that this is what you have to have and it has to be in the workplace committees. That would mean that it would have to start being addressed under the law.

[Sean Fraser, Liberal, Central Nova, NS]

Why is the employer in the best position to provide that suite of support services?

[Phil Benson]

The workplace committee is made up of two parties. Clearly, we have good and bad employers, and those who are in-between. This is a workplace issue. In work there are two parties—three parties, I guess. There is the employer, the union, and, of course, the worker. Being in the workplace is something that governments just aren't in. That's our job. That's what we're in. It's the best place to have it. It's the best place to deal with it. It's a workplace issue, the Canada Labour Code, part II. It's an ideal fit.

[Sean Fraser, Liberal, Central Nova, NS]

If I could shift my focus to Mr. Winters and Ms. Major, one of the items we've been dancing around, but it doesn't speak specifically to a provision in the legislation and I can't let go of, is that if you don't have faith in the process that's going to deal with complaints, it's going to make it awfully difficult to do your job effectively.

Can you perhaps comment on the need to have faith in the complaints process for your members to be comfortable with it and to be able to go to work and be as productive as they can be.

[Troy Winters]

You're absolutely correct. At one particular airline, I have one very active health and safety person. She's fantastic. She has been around forever. People know that if they go to her, they will get an answer or a result, or that the process will be started. In that particular workplace, it works much better. They have the faith because they know they can go to a place where they will get a positive result.

That goes directly to our concern about removing the health and safety committee members. There will be one less resource.

[Sean Fraser, Liberal, Central Nova, NS]

Before I go back to Mr. Benson, who I think has a comment, you described the need to essentially maintain the ability of somebody to go to the health and safety committees. We heard previous testimony that since 2005 there has been an incredible reduction in the number of health and safety officers. It strikes me that without making sure that we're well resourced with the people to do the job, maintaining the health and safety committee would be a paper tiger. This is something that wouldn't restore faith if there's not the people to actually do the job.

Is that fair to say?

[Troy Winters]

Fewer HSOs will lead to less enforcement. At that point they're going to be prioritizing the most egregious flaws, the worst of the worst. I think they'd have to start marshalling their resources to those most egregious, so, yes, there should be more HSOs. As we've seen in Ontario, when they hired a lot more inspectors—they call them inspectors in Ontario—all of health and safety was improved. More health and safety officers within the federal public sphere would improve all health and safety, including issues with violence.

[Sean Fraser, Liberal, Central Nova, NS]

Mr. Benson, you had a comment on the previous line of questioning?

[Phil Benson]

What do unions do? We're sort of creating an artificial line here on a workplace committee. When a worker has a grievance, there are different routes they can take, but one of course is to go to the health and safety committee, if not to a job steward for a different process. At the end of the day, when you're cutting off the workplace committee from the worker,...the worker is already feeling sexual harassment, mental illness or whatever, as well as isolated and alone. Nobody is speaking for them. Nobody has their voice.

When we're involved as a union, it's not just that we're there; it's what we do: everything from ensuring that the person receives all the benefits, support, and help professionals that they have to having them feel that somebody's on their side; somebody's working for them. Throughout the entire process, whether it's unemployment insurance, Canada Pension Plan, or early retirement, you're going to get a pit bull like me coming to see you, knocking on your door, saying “We're serving you”, all of those are services that unions provide to members. When you say “artificially”...because I agree that if for privacy reasons a person chooses not to, that's fine. But to say in law that we're going to cut what a union does to protect membership, to me is just wrong.

[Sean Fraser, Liberal, Central Nova, NS]

I have 30 seconds left, so perhaps instead of asking a question, I'll give an invitation. There's one issue I raised with the last panel, about making sure the legislation doesn't interfere with the collective bargaining complaints process. If you have suggestions on how we can ensure that doesn't occur, I'd welcome you to submit suggestions through the clerk.

I believe I'm out of time.

[The Chair, Liberal, Bryan May]

Thank you.

MP Dabrusin, you have six minutes.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Thank you to all of you. It's interesting to hear this conversation as it develops.

One of the things that have come through, across all of the hearings we've been having, is the concern about reprisals in harassment and the need to protect privacy being something that makes it a bit different perhaps from other types of occupational health and safety situations. With your suggestions about going to committee, I'm wondering if you have any suggestions about how we can ensure privacy within that situation. There are more people within the workplace, so how do we make sure that people's privacy is being protected in that situation?

I put that to Mr. Winters and Ms. Major.

[Troy Winters]

I would argue that the committees are doing this work now. Committees get sensitive information all the time, and they don't immediately run around the workplace telling everyone about it. The information may be more salacious because it's sexually driven in nature, or it's about harassment, but it's no different from what the committees are already doing. I think for the most part they're doing it quite well. We have a very good understanding within our committees. Unless there's a particular hazard that they have to let us know about, what happens in the committee, where they develop their recommendations and their resolutions, is committee work. It stays within the committee. I would argue that that is the system as it is. Having one or two more people knowing, when that will get you to a better resolution, we would argue isn't necessarily something to be too concerned about, because we are doing that now.

[Marie-Hélène Major]

Just to add to this, as you said, it's already happening. If they come to us, the union, we have more specific details maybe, but when it goes to health and safety, they don't necessarily need to have...we just share what needs to be shared so they can work on the case. If the employee doesn't want his or her name revealed, it won't be if we don't need it to be. It's just more of a general “what happened and what needs to be fixed and what needs to be worked on?” We don't necessarily share the details if the employee or employer doesn't want us to. It's more about what happened.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

All right.

When you were speaking earlier, you said that sometimes when it's between employees, it's easier. Something that kind of twigged me when you were mentioning that was that in that situation, the union is representing potentially both the aggressor and the complainant. Does that pose any complications when you're going to committee? How do you make sure that privacy is properly protected and how do you deal with fear of reprisals and the like?

[Marie-Hélène Major]

In my experience in our department, if it's two of our members, it's easier, because on our union side we can split and it doesn't get out. Usually, the bigger problem in those cases is when it's taken away from you. If it's two of our members, it's not taken away from us. We address it and we deal with it. We have the information.

It's when it involves a different department—pilots, mainly—and then it goes there and it goes away. It's gone. It's out of our hands. All we get is, “We're taking care of it.”

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Phil, very briefly, because I do want to follow up on that.

[Phil Benson]

It's a matter that's already being dealt with. Privacy law is applied to us as a fiduciary duty, the internal working of unions. If somebody wants to talk out of school, they're not going to be an officer too long.

These are things that we deal with today. These are conflicts that occur. How do we deal with it? We deal with it now. It's not anything new, at all.

I think the aspect of the person having the right to choose is probably positive, but, if they choose to come to us, then all the tools of a trade union must be available to be used. We don't know if we don't know. We have a duty under law. We have a legal duty to make sure that we represent the person fully, and not arbitrarily by a law saying “You can't do this.”

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Okay, thank you.

One of the things that struck me yesterday when we were hearing from witnesses—I believe it was Corrections Canada—was that there was a tip line that had been put in place and suddenly the number of cases being reported went up considerably.

When we're looking at this we're doing a bit of a retrospective about what hasn't worked and what can be better. We know that a lot of cases aren't being reported right now. How can we improve that to make sure people are feeling safe enough to report it? Are there any issues with the way things are currently structured, say with committees, that would be making people feel less likely to come forward?

[Troy Winters]

I guess this could go back to another answer from before on what we could improve.

Within the legislation itself, under section 126 of the act, we all have a duty to report hazards in the workplace, but these reports aren't often treated through the internal complaint resolution process.

If a member comes to me and says we're having this.... Well there was one hotel that this one company flew to quite a bit, and it was this one hotel that was causing the problems. We had five or six reports from this one hotel, but we didn't make them individually file. We went to the company and said, “Look, we have five reports in hand. We have to do something about this. We have to get out of this hotel. This is a problem place.”

Changing the law so that somebody else—someone within the union or another worker—can bring forward that complaint, so the person who has been assaulted or harassed or who has been the victim doesn't have to be the person to come forward, would be tremendously helpful and make sure it gets captured under the ICRP.

[The Chair, Liberal, Bryan May]

Thank you very much.

Now for six minutes, MP Kmiec.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Thank you, Mr. Chair. I'm very pleased to be joining you at committee today.

I'm going to start with Mr. Benson and the Teamsters. I did meet with the youth group. You should be very proud of the work that they do. They presented very professionally. It was very, very good.

You mentioned a couple of things about having the definitions in the law and how important it is, because none of the conversations we have here, nothing we say in the debates in the House of Commons, will be material when there are lawyers interpreting what the law actually says. To my understanding, at least one definition is being removed from the Labour Code.

Can you explain how important it is to have definitions written directly into the law, the benefits to doing so, and then maybe your thoughts on that if they're not put into this law through an amendment in the future, the value of the bill going forward without the definitions expressly written out?

I'll make a side note on this. The Quebec HR association has a “psychological harassment” definition that they use. I make the statement that you trust accountants with your money, so why wouldn't you trust your HR or OHS—occupational health and safety—to qualified personnel in an employer/employee environment? You have people on both sides who are qualified to do the job, who understand what the law says, understand what regulations say, and they have a code of conduct that they personally have to adhere to.

I'd like to hear your thoughts on that.

[Phil Benson]

Thank you for mentioning you met with the youth group. We are immensely proud of them, and a lot of people on the committee are moving up in the teamster ranks. I'm sure in a few years they will be serving our teamster members well: they're great leaders. Thank you for taking the time and meeting them.

When you draft legislation, people talk about their intention to fix it in regulation. If it is not within the four corners of the act it doesn't exist, and the regulatory process itself is influenced by all sorts of stuff, as I talked about earlier. The reason you need definitions is anything you want to deal with you have to not leave it to that catch-all clause that says the minister can do whatever he or she wishes. It doesn't catch it because if it's not in the act the minister can't do it.

From my experience with other bills, transport and all sorts of them where clearly the intention of Parliament was X, Y, and Z, I thought that's what the legislation said, but it's proven wrong in the regulatory world. Clearly that's not what the regulators thought. It certainly wasn't why some of the people came to the table. It is critical if you intend to do something that you have it in the law. Do not say it will be fixed in regulations, and do not say it will be dealt with in regulations. For example, one of the amendments we're talking about on suggestions in regulations is to just add three words “and mental health” to the occupational, health, and safety of the workplace committee's work. You can't add it if it's not in the act.

This is the last chance we're going to have to do this because opening up an act like part II of the code doesn't happen every day. Other than in the private member's bill, which will probably never see the light of day, this is the last chance you have to fix it, not just the mental health issue, but all issues.

As to the question about whether or not you should not agree with the bill, I think that's a choice you have to make as an individual. I agree with other people that there's a lot of really good stuff in the bill. In general, we support the principle. We'd rather see you make it better. I would urge you to bring amendments to the bill, my friends on any side. If you intend to do it, make sure the bill says it specifically. I urge that, and I haven't done it for so long on the other side. You'll be very surprised that what you thought you put on a piece of paper because you intended to, doesn't end up in regulation.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Mr. Winters, you had mentioned—because this segues very nicely—sections 134, 135, and 136, and my colleague asked you the question. In principle we agree with the contents of the bill, but some mechanics inside it that you have right now will potentially harm some of your members in the conduct of harassment investigations in the workplace. On one hand you see good things in the bill, but there are some bad things for your members. Can you describe to me what will happen if the bill passes in its current form? What would a harassment investigation look like in your workplace with these rules in place with no amendments whatsoever?