You heard before that I'd like to address the wage-fixing and the no-poach proposed amendments. The BIA would expand the current per se illegal criminal conspiracy offence under section 45 to such no-poach and wage-fixing agreements.
The CBA is of the view that the criminal offence for wage-fixing and no-poach agreements may not be the most efficient way to improve the act's operation. Currently, there's already a non-criminal enforcement track for wage-fixing and no-poach agreements under section 90.1 of the act, but this section has never been used. This provision can be improved to be more effective without resorting to criminal liability, which of course has a higher burden of proof and is thus more difficult to prosecute.
We have concerns that the proposed amendments as currently drafted are both over- and under-inclusive.
First, the proposed wage-fixing offence would basically apply to agreements regarding any term and condition of employment. “Terms and conditions of employment” is without a doubt very broad language and ambiguous, to say the least.
If we turn now to the proposed no-poach agreement offence, I want to echo earlier comments that this would only currently apply to “employees”, which is an undefined term. I share the view that under the current changing nature of employment relationships in the Canadian economy, we should further consider whether the provision is warranted to ensure that it actually captures the government's policy objectives.
We also want to bring to the committee's attention that an offence under section 45 basically triggers significant collateral consequences. First of all, we're talking about class action risks and also debarment risk, losing qualifications or being disqualified from public contracts. These issues have not been discussed. They should be fully debated before amendments that would bring no-poach and wage-fixing agreements under the criminal offence in section 45 are rushed through the BIA process.
That concludes our opening comments.
We would be pleased to answer your questions.
We thank you again for inviting us to come share our concerns with you today.