Transport Committee on Sept. 12th, 2017

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you very much.

Mr. Northey, I do want to ask you a question. Yesterday morning, the associate deputy minister stated that extended interswitching was allowed to lapse because it wasn't heavily used, but was having unintended consequences in terms of the competitiveness of our railways vis-à-vis the U.S. railways. I guess there has been some confusion in some of the testimony we've been given when witnesses have said it was a remedy that wasn't used very much, but then they go on to talk about the implications and consequences it's had in the marketplace. Could you comment on that?

[Greg Northey]

It's been well addressed that there's the usage of it, where people would actually use the provision, and then the ability to negotiate better. In our case, we have specific cases where traffic has moved. We would ship a lot of product in the U.S. What we've found is that CN and CP don't necessarily want to move our traffic to the U.S. because they'll often lose those cars for 30 days potentially. Generally, they price very high for those moves to discourage shippers from being able to access those markets. They have to structure their network however they think, and optimize and utilize their assets the way they feel.

What extended interswitching did was it to actually allow those shippers to access BNSF, which wants to move that traffic. When we really look at this and think about the whole network, having that competition is actually helping the entire network. Those who want to use those assets for another move or to go to the west coast or to Thunder Bay won't necessarily feel the pressure from the shippers who are complaining about a lack of service and the lack of adherence to common carrier obligations because another railway can pick it up. In fact, we're optimizing, in general, that provision. It optimizes the entire network, and it optimizes things as far as making economic decisions is concerned, both for the railways and shippers.

That's what competition does, and that's what we saw. When it was used, it had a huge impact. We have a small shipper, and it's able to save $1,500 per car. It's only moving 15 cars, and it has maybe five employees, so that has a huge impact for that shipper. It can invest that money in its business, and it can invest in the economy and grow its business.

As much as it may seem like small numbers for small or medium shippers, it has a huge impact.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you.

[The Chair, Liberal, Judy Sgro]

Mr. Sikand.

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

Thank you, Madam Chair.

My question is for Mr. Hackl. I know that the issue of LVVRs is quite contentious, and I'm hoping that this dialogue will be productive and fruitful.

I was listening to your opening remarks without any prejudice or bias, but for this exercise, I'd like take some positions. The first is that there is no absolute right to privacy in the workplace. You shouldn't be discussing anything that is inappropriate or that you wouldn't mind hearing afterwards. For example, I don't mind shooting the breeze with my staff, and it's something I don't mind being recorded. The second position is that, in the interest of public safety and moving the safety yardstick further, LVVR is perhaps a component that's missing in all of the devices that you mentioned. Lastly, I guess, is that the legislation doesn't state that data from LVVRs can be used for punitive or disciplinary measures. Anybody who does that would be acting outside the legislation.

Could I have your comments, please.

[Roland Hackl]

Thank you for your question.

An absolute right is an oddity. I believe there is a reasonable expectation of privacy in the workplace. I'm not sure an employer would really want to hear the conversation that goes on in a locomotive after a crew that was contractually or legally required to be relieved from that train in 12 hours was still there 14 or 15 hours later. While entertaining, that may not be the most helpful, so I don't know why we'd want to record that.

I disagree, though, that the technology is not available. The technology is in place and active today. It is there for the TSB to use. Where our concerns lie is in who should be the custodians of this information, of this protected, private, privileged information? Should it be the TSB, which has a mandate and a responsibility to impartially investigate incidents and accidents, or should it be employers that have on many occasions been demonstrated to be.... I don't know if it was a finding of fact that they were malicious, but there was certainly "malintent" in some of the actions employers have used with respect to discipline and punitive actions against employees. That's the concern.

I'm not sure I read the legislation the same way when we say it's not punitive or disciplinary. The way our legal folks have looked at it might be a bit different, but we'll have to look into it and get back to you on that.

[Phil Benson]

Actually, to clarify that, if you read the transportation department's actual facts and questions and answers, they state quite specifically that yes, it can be used for discipline. This morning, you heard CPR state quite specifically that, yes, it will be used for discipline.

From Transport Canada itself, it has been answered, which is contrary to what madam Fox from the TSB said the other day that privacy rights had to be privileged and protected. Privilege belongs to the person whose privacy it is, so with all respect to you, I don't really care what you think about privacy rights. What I care about is what our members say about privacy rights, and what the Supreme Court arbitrators and the law of this country has said about privacy rights. It's easy for somebody else to give away another's privacy rights. The privilege stays with the person, not with the company or the government.

The second point madam Fox made was that it must be non-disciplinary and non-punitive. Based on the statement from Transport Canada, it's not going to be.

We have a third point if you want it, but go ahead.

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

No, please go on.

[Phil Benson]

Third, madam Fox specifically said that they need a just culture. As I've said repeatedly before this, and brother Hackl has just stated, there isn't a just culture. We have a fantasy being developed about what an LVVR could or should be, but not what it will be.

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

Quickly, because I want you to respond to my follow up. In regard to the just culture or what was said earlier, what I'm saying is that if those actions were outside the legislation, if you used it for a punitive or disciplinary measures, you would be doing it wrongly. You wouldn't be acting within the legislation. Does that change your viewpoint?

[Phil Benson]

That would address this somewhat, but to be clear, that is not what Transport Canada has told you in their response and facts, and it's not what the companies have stated to you. With all respect, we can't comment on what could be in a piece of legislation; all we can deal with is what is in that legislation at this moment.

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

In your opinion, if that were to be in the legislation—that those actions would be outside of it—would your position be different?

[Phil Benson]

You're asking a hypothetical question, which is difficult to answer because the privilege of the person to have their privacy protected is an individual privilege. It's not something on which I, as a Teamsters Canada representative, or brother Hackl, as the vice-president, can say, “Oh, gosh darn, according to our legal opinion, it is a violation of section 8 of the charter and a violation of the Privacy Act.”

Quite bluntly, you're saying that if we change a piece of legislation that, in all likelihood, is unconstitutional and a violation of the Privacy Act, then it will make this okay in our opinion. As you understand, Mr. Sikand, that puts us in a very difficult situation. It's a hypothetical question that we will not answer.

[The Chair, Liberal, Judy Sgro]

Thank you very much. We are over time.

Monsieur Aubin.

[Robert Aubin, NDP, Trois-Rivières, QC]

Thank you, Madam Chair.

Good afternoon, gentlemen. Thank you for being here.

A lot has been said about those voice and video recorders. I don't want to prolong the debate excessively, since I think you did a very good job of expressing your view, and we have heard it.

I just have one question: if Bill C-49 were to clearly and explicitly state that voice and video recorders can be used solely by the TSB and only after an accident, would your position change in any way whatsoever?

[Roland Hackl]

That is our position, that it should be Transportation Safety Board access only. It should not be shared with employers or third parties. That's been our position since the initial introduction of this equipment, and that would satisfy us.

[Robert Aubin, NDP, Trois-Rivières, QC]

This brings me to the topic of safety measures that, in my opinion, are even more important, and many witnesses have spoken about this. You can probably corroborate that. Most rail incidents tied to a human factor can be attributed to fatigue, yet Bill C-49 does nothing to address train operator fatigue.

Representatives of the railways tell us that they are in continuous discussions with the unions about this and that it is important, a priority even. However, it seems to me that the slowness with which the government and the railways are implementing measures to combat fatigue is a much more important safety aspect than installing a recorder or not, which will only help with the post-accident investigation.

Do you think there has been any progress and that measures can soon be in place for fatigue?

[Roland Hackl]

Happily, yes. First of all, LVVR would do nothing for fatigue.

As far back as 2010, CN Rail and our union started negotiating methods within the collective agreement for how to address fatigue. It didn't get a lot of steam and didn't get a lot of headway. The last collective agreement, which I believe was ratified with CN on August 4, contained a lot more on fatigue. As well, CN and the Teamsters have entered into a co-operative plan with the help of a fatigue specialist, a former TSB officer who specializes in sleep science, to work with us accumulating and tracking scientific information to ensure that the methods we're taking with respect to crew scheduling, rest, and work-life balance are having a positive and factual impact. It's one thing to say that we think this is going to help; it's another thing to measure how it's going to help.

I believe you heard a little bit from CN today about the Fitbit study, in which we actually.... I've worn them. We wouldn't put anything on our members that I wouldn't do myself. It tracks your waking and sleep habits. There were a few bugs at first. For instance, it recorded that during a two-hour period when I was at a pension meeting, I was asleep, so there is a little debate on that, but we worked out some of the bugs in that and our members are wearing them. The plan, and what we've done, is to put them in the non-scheduled environment without the enhancements that we've negotiated, track their information, transform their environment to a more scheduled, structured environment, and let them adjust to that. We're just now getting the data back with the follow-up information, and it's been very positive so far.

We are getting letters from members saying, “My goodness, I finally have a life and things are working well”.

Interestingly, last week—I'm not sure what CP said to you about this—we reached a tentative agreement with CP Rail, a one-year extension to the existing collective agreements for locomotive engineers and conductors at CP. That agreement expires this December. There is a tentative extension out for ratification now. The cornerstone of that agreement is provisions with respect to scheduling to try to address fatigue in a similar manner using the same sleep specialists we are using at CN to try to make improvements there as well.

We are seeing a lot of things, from better work-life balance and better retention to the employers benefiting from better attendance at work, and people aren't booking off unexpectedly.

We're working through the collective agreement process to get there, so there has been some good news. You may or not be aware of the agreement reached last week, but that's positive for everybody to try to get something done there.

[The Chair, Liberal, Judy Sgro]

You have one minute.

[Robert Aubin, NDP, Trois-Rivières, QC]

My next question is for you, Mr. Graham. I have to say that I cannot explain the exclusion you're subject to any more than you can.

Should Bill C-49 contain specific conditions for transporting dangerous goods? Currently, the transportation of oil and the transportation of canola oil seem to be handled exactly the same way, which seems a little strange to me. I'm not saying that there is a connection between that and your exclusion, but do you acknowledge that dangerous goods should be handled differently? This isn't in Bill C-49.

[Clyde Graham]

Thank you for your question.

What we're talking about here, in this bill, is the exclusion for toxic inhalation goods, which includes ammonia. There's no safety reason for this. We're not sure what that exclusion was done for. Other dangerous goods are not excluded, so there can't be a safety reason for this. Obviously, our goods, when they're dangerous, we have to look after. We have to steward them. We work very closely with the railways and everyone else, including first responders, in doing that. But these provisions that we're talking about, interswitching, are economic provisions. They're not safety provisions.

I don't know if that gets to your question.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Mr. Graham.

Mr. Hardie.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Thank you, Madam Chair.

Let's talk about the LVVR, because I can see that this is.... I'm torn on this one. I'll follow my colleague's thinking and give a little bit of a personal reflection on this. Traditionally, there have been some challenging labour relations issues between the companies and their workers. I understand that. You've just talked about a couple of agreements that have come across. It sounds like things are improving, but still, this could plunge the whole system back into a kind of toxic soup. You just don't want to go there.

I guess the question then, and I'll expect just a short answer, is that if LVVRs come in, who should own the data?

[Roland Hackl]

The short answer, as I said before, is that the custodians of the data should be the TSB in the event of an incident or accident. It should not go to an employer for whatever reason they want to use it, especially a vindictive employer, as we've seen over so long.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Okay. What would happen, though, if the TSB found, in reviewing the record that was captured, that one or both of the crew were on a cellphone? We all know that cellphone use in that operating environment is against the rules and should be against the law, just as it is for driving. Certainly, in my ex-life with the transportation authority in metro Vancouver, where we do have LVVRs, by the way, on the buses, we don't need that because passengers would be taking pictures of that operator on the cellphone.

But okay, so the TSB discovers that the crew was using cellphones. The right-thinking, average, reasonable person would expect there to be punitive action on that, would you not agree?