Human Resources Committee on Feb. 22nd, 2018

[Rachael Thomas, Conservative, Lethbridge, AB]

Let's say new regulations are put in place for fishing boats in Nova Scotia, but those same regulations are not in place for fishing boats in New Brunswick. Would that not put Nova Scotia at a significant disadvantage because of the costs of meeting those regulations in that area?

[Derrick Hynes]

In that example, it would impose a burden in that particular place, yes.

[Rachael Thomas, Conservative, Lethbridge, AB]

Speaking on behalf of industry stakeholders, would you support that?

[Derrick Hynes]

I think the intention behind this clause is not to do as you've described but to ensure the department is doing its best to ensure compliance. They may look at the way specific industries are doing their work and review their work in that regard. I don't think it's necessarily to create standards that exist only in one region.

[Rachael Thomas, Conservative, Lethbridge, AB]

Ms. Johnson, would you care to comment?

[Sheryl Johnson]

If it's done in the industry as a whole, I think that's fair. Doing it by region, I think, could lead to those issues that you raised.

[The Chair, Liberal, Bryan May]

Thank you.

MP Trudel is next.

[Karine Trudel, NDP, Jonquière, QC]

My question is for Ms. Johnson and pertains to small, non-unionized workplaces.

Under Bill C-65, the employee must complain directly to the employer. How would the bill apply if the harasser is the employer?

[Sheryl Johnson]

That's difficult, because there are fewer resources and less anonymity. The employee is going to feel much more exposed. They're probably going to feel much more intimidated coming forward.

In my experience, the size of the organization shouldn't matter in their obligations in the workplace. However, perhaps some of the plants.... In Ontario, if there are six or more employees, every obligation applies. Under five employees, you don't have to post everything and you don't have to do some of the other things that are required as a bare minimum, because you're so small.

I think the general obligations as a duty of an employer to ensure the health and safety of their workplace should apply no matter the size of the organization. The difficulty is going to be having another person they can report to, but it doesn't necessarily have to be someone internal to the organization. In Ontario, you are allowed to have someone outside the organization as that safety valve, and that could be considered by the small workplaces.

[Karine Trudel, NDP, Jonquière, QC]

In the case of small employers, should we make calling upon on an outside resource one of the regulatory requirements?

[Sheryl Johnson]

I think the regulations would be helpful. I'm always conscious of over-micromanaging situations as well and making it difficult for employers to function. However, depending on how it's done, if they're not going to do it on their own and it becomes a problem or is demonstrated to be a problem, then a requirement should be built in that there be an external resource.

[The Chair, Liberal, Bryan May]

Thank you.

That ends the second round.

We have about half an hour remaining of our time. I think we have enough time to do a third round.

Up first, we have MP Genuis.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you, Mr. Chair.

How much time do I have?

[The Chair, Liberal, Bryan May]

You have six minutes. Use as much of it as you wish.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

All right.

Maybe one of my colleagues will jump in; we'll see.

Let me start with this question in terms of the general environment around this legislation.

It seems to me that having new rules—potentially stronger rules, arguably maybe weaker in some respects, but in any event new rules—doesn't change the fact that some of these questions will be discussed and partially adjudicated in the public and in the media.

What happens when somebody either doesn't use the designated process, even a new process, and instead allegations are made in public against a company that is maybe represented here or maybe is not, or let's say an investigation is undertaken and a determination is made that harassment did not occur, or maybe the complainant isn't satisfied by the remedies, and then there's further public comment around that? How should companies respond to these kinds of public discussions? How should we all respond to them?

It seems that there's a legitimate concern when people hear these kinds of stories and they don't necessarily see other aspects of the process that may or may not have occurred.

[Sheryl Johnson]

With regard to what we can regulate, we can regulate how people treat each other inside of the workplace. With regard to people going out and making public statements and dealing with them publicly, we can't regulate that, but I think we as a society and we as people reacting to it need to remember that we live in a democracy and that there's due process. We have to remember, as in any context, to always ask questions. Accept what's being said in good faith; however, ask the questions, follow up, look underneath, and make sure you're fully informed of what's happening before you make a comment or make a decision.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Does anybody else want to comment on that? Okay.

If not, then I wanted to further probe this issue of whether harassment should be defined in the legislation or in regulation. I think we've heard some perspectives from both sides.

Mr. Hynes, I know you suggested regulation. Maybe I'll just make a quick comment from my own perspective and then give you a chance to respond to that.

It seems to me that given some of these fine distinctions that we're talking about and the potential slipperiness in certain cases about what is covered by a term and what isn't, it is important that we have a clear definition, one that's well known and one that has broad buy-in. It would seem to me that the function of legislation is to establish the framework and also to deal with the most important aspects and leave the details to regulation, but to ask us as legislators to pass a bill that creates a specific process for dealing with something called “harassment” but that doesn't actually say what that something is is a little bit of an unusual way of legislating. It's like saying we're going to have a process for dealing with thing X and we'll leave it to the government in the future to define exactly what thing X is and revise that definition in the future. I suppose leaving it to regulation requires us to trust the good faith of government and to assume that they have the noblest of intentions in providing that definition, and very often I'm sure they do, but our function as a legislature is to hold the government accountable for establishing clear parameters when we legislate. It's not simply to say, “Okay, go ahead and define this thing that we think is very bad but have yet to define.”

Mr. Hynes, what do you think of those arguments? Do they hold water in your view?

[Derrick Hynes]

I think leaving the details to the regulations is the legitimate way of approaching an exercise like this. In the case of occupational health and safety in the workplace, we have the Canada occupational health and safety regulations, and that document is maybe 250 pages long. It has in it provisions that set the framework for the occupational health and safety requirements in the workplace. Employers are held to that standard, and compliance is enforced by the government.

For example, in the case of violence in the workplace, the definition of “violence”, as I understand it, is embedded in the regulations. The argument we've made is that the same should occur here. We don't necessarily negotiate, but we bring together the experts, those around the table with on-the-ground experience of what this looks like—the legal community, the business community, the labour movement, government officials, and others—and we work through the details of what that definition looks like. I think this bill, with the changes it will bring to the Canada Labour Code, does create a strengthened and strong umbrella framework for addressing harassment and violence in the workplace. It moves the chains along further from where they were previously, but in terms of those specific details around the definition, I fundamentally think that it just makes the most sense.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

I want to get Ms. Johnson in, but for me, honestly, that doesn't address my issue. Yes, there's obviously a working-out process that has to happen, but legislators are being asked to pronounce on a process for dealing with something before that working-out process has happened. Generally what you expect with legislation is that the working-out process happens, yes, and it happens in places such as here in the parliamentary committee, but then we ultimately have the ability in a third reading vote to pronounce on that, right?

Ms. Johnson, I'd like to hear your comments on this.

[Sheryl Johnson]

I believe that—and I could come up with one right now—what the definition of harassment or violence would be.... You need that general one that everybody understands built into the legislation. It's either common—like violence, for example—or conduct that could result in physical or psychological harm to an employee, whether it's threatened or actual, right? The employee has to believe that they're going to be harmed.

That is something that I think should be very broad and can be applied to many circumstances. Then you have the regulations to flesh it out. I do believe that a broad definition should be in the legislation itself, with the fleshing out done in the regulations.

[The Chair, Liberal, Bryan May]

Thank you very much.

Go ahead, MP Morrissey, please, for six minutes.

[Bobby Morrissey, Liberal, Egmont, PE]

Thank you, Chair. I want to briefly follow up on the last discussion.

Mr. Hynes, you have witnessed numerous pieces of legislation. Is it unique for a piece of legislation such as this to put an item that would require a lot of examination—such as when you're defining harassment—within regulation, versus legislation?

[Derrick Hynes]

No, it's not unique. Frankly, I think it's the way the process works.

On the regulatory side, when it comes to occupational health and safety in the workplace, we meet in a tripartite way regularly. There is a go-forward regulatory plan that the department publishes when it looks at regs that they feel need to be updated because circumstances have changed, our understanding of issues has changed, or technology has changed.

What we do, then, is open those regulations, go through them in a tripartite way, and discuss ways of revising them. We just finished one a number of months ago on the issue of confined spaces in the workplace. This is, I believe, just a fundamental part of the process. The legislation lays the overarching framework for the way forward, and then we work out the details through the regulatory process, which can be time-consuming but is fruitful, because I think we end up with the result that all the stakeholders around the table and society at large can agree is a logical way forward.

[Bobby Morrissey, Liberal, Egmont, PE]

Could you do both? Ms. Johnson made a reference to maybe a general definition and a more detailed definition. Would you think that it would be a conflicting process?

[Derrick Hynes]

I'm not sure it would be conflicting. I think what we would have to do at that stage is have a discussion around what the language was in that overarching definition. I believe that as parliamentarians you might want to hear from the stakeholder community around the specific language that's embedded. It could work. I don't know if it's normally the way we would do it federally, but it could work. I do think that there should be certainly a complete conversation at the front end around what the specific language would be.