Debates of Feb. 8th, 1994

West Coast Ports Operations Act, 1994

[Paul Crête, Bloc, Kamouraska—Rivière-Du-Loup, QC]

Mr. Speaker, I want to point out to the members of committee of the whole that we must make a decision based on the best resolution of conflict formula, so as to enable these professionals to deal with such a situation in the future. Indeed past experience in this sector is not a very good guarantee for the future. Therefore, what is needed is a solution which will provide a guarantee for the future.

Finally, selecting the best offer means that there is a winner and a loser. Someone will be able to say afterwards: "It is your collective agreement. You are the one who got it from the government, so you have to live with it". By experience, after having gone through decrees on collective agreements in the public sector in 1982-83, I know that this is no fun, neither for the employer, nor for the union concerned. It is important that everyone be a winner in this exercise and, for that to happen, both sides must have the impression that they suffered and had to give something during the negotiation process. At the point where we are now, the only solution is to convince the two sides to submit proposals to the referee, and this referee must be able to decide what is best for both sides.

An important technical aspect is that in a single offer, there are always areas regarding which the party making the offer would have been willing to give more and to bargain with the other party, but did not do so because it tabled what was a global and comprehensive offer no individual aspects of which could be amended.

From this point of view, I do not think that the proposal will provide a solution that will make people as happy as possible afterwards and ensure them an adequate work environment. The worst thing which could happen, and which would prove that we are inefficient would be to find ourselves in the same committee of the whole in two or three years, following another breakdown in labour relations.

I believe it is important for us to find a solution which will lead to an improvement in labour relations in that sector, because right now both sides seem to think that "in the end, the government will decide". We must put the two sides in a situation where they have to take their responsibilities, and the best final offer formula is not the solution, because then the whole process becomes a gambling exercise.

[Lloyd Axworthy, Liberal, Minister of Human Resources Development and Minister of Western Economic Diversification]

Mr. Chairman, on the contrary, I tabled proposals using the final offer selection. Under the circumstances this is the best way to define the responsibilities of the two sides.

The hon. member and some others seem to assume that going back to the traditional operation, which in effect is what the hon. member for Mercier is proposing, is a perfect solution. There are winners and losers under arbitration as well.

The hon. member from Burnaby was just saying that if I appoint the arbitrator he is going to be biased and therefore he is automatically going to lose. I am trying to say I want to be fair. I want to say to both parties that they must decide what they think is the best solution, make the best offer and that becomes the basis for a decision; not cherry picking, not taking little bits and pieces, little fragments here and there. That is arbitration.

We are saying we are trying to develop a different process. I say this with great reservations to my friends in the Reform Party because so far they have been very supportive, but we have had two NDP governments bring forward proposals on final offer selection in those provinces. They felt it was a way of giving a fairer resolution and retaining-and this is what I do not understand, in particular members of the Bloc who have been involved in the union movement-principles of collective bargaining, the full right of the parties to the dispute to become involved in making the solution themselves, not having it imposed by government.

That is what this legislation does. Bring them back to work, set up a process in which both parties will still have to make a decision as to what is in their best interests and in the collective interest of the community. That is what this particular idea of fair offer selection will do. It will send out a message in other disputes down the way that we will expect them to recognize and act in their collective responsibility, not simply to look to government as a crutch or solution.

[Elsie Wayne, Progressive Conservative, Saint John, NB]

Mr. Chairman, as one who was involved with collective bargaining for over 12 years, I have to say that I tip my hat to the minister for the final offer selection. I want to say something to him.

I have been in this position many times. In final offer arbitration I have to say that management was always the loser, particularly in my municipality. Final offer selection we tried once and I also was the loser. The chairman we had nearly always came out in favour of the union. Nevertheless, we had to accept that. In this case I am not sure because I have a major concern from what I have heard from my colleague from out west.

Is it true that the chairman who is going to make this decision has made the comment that he is in favour of 65 cents?

[Lloyd Axworthy, Liberal, Winnipeg South Centre, MB]

He is no longer in the process.

[Elsie Wayne, Progressive Conservative, Saint John, NB]

There has been absolutely no indication as to how the chairman feels about the final offer selection. I think it is most important. I have to say in the end that what we were looking at was appointing five people and saying that in our district, if there is a final offer selection coming forth, one of those five people would be appointed. Their period of time would only be for three years. They are totally independent. They know their length of time is three years and they are appointed for that period of time to enter into this sort of negotiation.

It is very important and it is very key because I have to say that not only will it not be right, but we will know that it is not right if the chairman is leaning one way or the other. The key to this is an independent chairman. I have to say to my friends from out west who are members of the NDP not to worry, it does not always come out in favour of management. In most cases it comes out in favour of union.

[Lloyd Axworthy, Liberal, Winnipeg South Centre, MB]

Mr. Chairman, I thank the hon. member for an instructive lesson in labour relations in her part of the world, which I know she was very much involved in. It only makes my point. Some are arguing that the final offer selection has a bias to it, that it all depends on which end of the decision they are. There is no inherent bias one way or the other.

However, I do think it is important to make a distinction because members here have tried to indicate that somehow the mediator was imposing a settlement of 65 cents. The mediator has no power to impose anything. All the mediator does is facilitate the process and make suggestions as to what he or she may think is the best way of resolving the dispute.

Parties are quite in their right to disregard the mediator's proposals. He or she is simply there to try to find a solution. If it is rejected, that is when the mediation no longer applies and the parties can do it themselves. In this case they were incapable of doing it themselves and that is why we are in the House debating it today.

An arbitrator, on the other hand, does have authority to prescribe a solution. In this case, the bill says very explicitly that both parties can come together and recommend an arbitrator. It is up to whomever they choose. I would think it would be in their interest to get somebody who is mutually acceptable. I am not sure of the procedure used in the hon. member's case when she was mayor but I do know that in this case we have set out in the bill that the arbitrator can be a decision of both parties.

If they fail to come to a decision even on that because of the various chemistries at work then we will appoint an arbitrator, and I can guarantee that it would be someone who is totally and completely objective in the matter, whose only interest would be to find a proper settlement based upon what the final best offers of the two parties would be. My hope would be that the mediator would be somebody chosen by both management and labour.

[Jack Ramsay, Reform, Crowfoot, AB]

Mr. Chairman, I would like to point out that there are already losers in this situation and those are the hundreds of thousands of farmers, many of whom are going to lose drastically as a result of what has happened over the last eight or ten days.

It seems strange to me and to them that the government of the country will grant groups the power to destroy their economic viability and not allow them a seat at the table. That is the situation. Inasmuch as that is what is happening, where the hundreds of thousands of people in agriculture are suffering as a result of this and do not have a seat at the table, their representative is the hon. minister who has brought forward this document. Inasmuch as this document represents the interests of the people in agriculture, I support the minister because we must move this forward.

If the minister and the government of the country will pass a resolution or the necessary legislation that will allow grain to move through the Seattle port when it is having its strike, the agricultural community will not be injured at all and everyone will allow this strike and negotiate until the cows come home.

I support the minister because he is representing the injured third party in this whole process. I am prepared to vote in favour of this bill.

[Francine Lalonde, Bloc, Mercier, QC]

Mr. Chairman, I would like to say to the hon. member that the fact we are sitting here shows we recognize the third party that is not here is very important. We do not like to agree on such a bill that will become a law, but it does not mean we do not have to take great care in how we resolve the conflict on the shores. We agree on the basis of the bill, but what will happen after that?

I would like the minister to understand that the mediator who was named by him, which is within his power, was representing the law and he agreed. I read it in the newspaper. His proposition was 65 cents. The minister tells me that we do not have to talk about that, but concretely it is a very good way of seeing what we are doing.

The real fact is that for everybody there this agreement between the mediator and the employees has all the chances in the world of being an agreement that will be kept by the employer and be agreed to by the arbitrator who will be named. Understanding what is going on makes me think that it will be

very hard for the parties to agree on an arbitrator. It is crystal clear when we know a little about labour relations.

With the best offers for resolving the conflict, the union will be sure that its proposition has the same weight as that of the employer. That is why in that particular case I urge an amendment to let the arbitrator choose and if he chooses the employer's offer we will at least have the possibility to choose a mix between the two. This is why the labour minister should preserve the faith in a process which is not biased. I am not saying that the labour minister is biased, but I am saying that he should preserve the process.

I am sure that in conflicts to come he will see that the mediation will not intervene in the process. The final offer process is not normally used even in places where it is now part of the law.

Those of us who are in labour relations have to know how to proceed with it. So the process itself must not be discredited. This is my main point and this is what I want to defend in the amendment I have brought forward. Otherwise the generous speech that was made is not in touch with the law being presented.

[Lloyd Axworthy, Liberal, Winnipeg South Centre, MB]

Mr. Chairman, I will not go back on old arguments because as the hon. member said the clock is ticking and time is whiling away. Let me see if I can deal with the hon. member's concerns.

I looked carefully at the amendment the hon. member presented. The difficulty I have with the amendment is that it is arbitration by another name. It is not final offer selection. In effect it changes the act. It would therefore not be a way of testing whether final offer selection is a useful technique. We would simply be putting it off to another time, another circumstance and who knows what charges of bias would then erupt.

I suppose what would happen is we would never have final offer selection because any party that did not want to have it would say there was a bias in that and therefore they do not agree with it. We would therefore be continuing to put off the day when we could try at the federal level to use it as an effective means of resolving some of our more difficult labour-management disputes.

If the problem is the feeling that the mediator by recommending a 65 cent level which is perfectly within his right to do if in the best interests is the way they saw a solution which could be rejected by the parties that somehow that indicates some sort of a favour on one side or the other, let me make an offer to the hon. member.

Under the legislation we say both parties can appoint an arbitrator on final offer selection if they can agree. The hon. member says that is not possible, they will not agree. I am glad the hon. member said this because it makes my point very well. We were not going to get agreement with these two parties. They were going to rely upon government intervention whatever happened because both parties, not just management but labour as well, were too used to that solution.

It then comes that it is my responsibility to choose, and the hon. member is suggesting that we want to have perceptions of fairness. How about if the first thing does not work and it comes to me to make a selection, we will put together a list of names. I will consult with members opposite to determine who they would most like to see as a fair person to put in the arbitrating procedure to show that in fact it is a fair offer. I will make that offer today so we can get on with the business of this legislation and the business of moving the grain.

[René Laurin, Bloc, Joliette, QC]

Mr. Chairman, it seems to me that this would have been a fine opportunity to settle a dispute without causing further dissension. I do not think that those involved would go along with the proposed solution, namely the appointment of an adjudicator to choose between the final offers submitted by each side. Neither side, be it the employers or the workers, has chosen to be governed by this forced arbitration process. The hon. minister will correct me if I am wrong, but thus far I do not think that either side has agreed to such a system to reach a final settlement.

To impose this kind of dispute resolution system is to add an irritant. It will cause further frustration while a final settlement has to be reached in the matter of hours.

Since the minister has no other choice but to impose an unwanted system to settle the dispute, at least could the arbitrator be granted more leeway somehow in selecting the contract proposals from either side? Considering that the adjudicator himself as well as the unions and the employers have no say in selecting the resolution system which is imposed upon them, the arbitrator should at the very least be allowed to settle the dispute by deciding what the best course of action is with regard to those unresolved issues.

I think that the hon. minister should minimize friction points and irritants if we want this dispute to be settled. I have been involved in labour relations for 20 years and that is how to find the best solution.

This is my recommendation to the minister in support of my colleague's proposed amendment.

[Lloyd Axworthy, Liberal, Minister of Human Resources Development and Minister of Western Economic Diversification]

Mr. Chairman, I have simply said no to the amendment. I have agreed with the Bloc Quebecois to share the choice of an arbitrator if need be. That is the proposal. But I not prepared to accept the amendment because it rejects the final offer selection process. That is what this legislation is about: final offer selection. If we had decided on an arbitrator we would have

proposed arbitration, but we decided on final offer selection instead, that is all.

[Bill Blaikie, NDP, Winnipeg—Transcona, MB]

Could I have clarification on the process, Mr. Chairman. I understand we are still on clause 8 and we have not proceeded from there.

[The Assistant Deputy Chairman]

That is correct.

[Bill Blaikie, NDP, Winnipeg—Transcona, MB]

We need to move to the clause where the amendment can properly be made and the House can properly divide on it and we can proceed from there.

[The Assistant Deputy Chairman]

I take the occasion to thank the hon. member for his intervention. I was waiting before getting to the next clause to bring to the attention of the House, this being the first occasion in the 35th Parliament that we have sat in committee of the whole, that according to the standing orders on the question of relevancy speeches in committee of the whole must be strictly relevant to the item or clause under consideration. We should be more specific in our deliberations on the clause in question.

I am sure that is something all members will keep in mind. Under the circumstances, this being the first occasion that we are in committee of the whole, I probably extended too much latitude.

(Clause agreed to.)

(Clause 9 agreed to.)

On clause 10:

[Francine Lalonde, Bloc, Mercier, QC]

Mr. Chairman, I have an amendment. Let me move an amendment and say at the same time that I did hear the minister's answer, but I would still like to have this amendment. I find his proposal interesting, if there were no amendment.

It reads as follows:

That clause 10(c) be amended by adding at the end: "or concludes with the combination that appears most equitable based on the respective final positions of the parties".

If I may add a few words on the exact wording of the amendment, it preserves the final offer and requires the arbitrator to choose between the union's offer or the employer's or to determine a position in between the two which seems more equitable to him. But he does not have the mandate to go beyond that. This is very different from arbitration where the arbitrator has complete freedom.

In arbitration, the arbitrator could decide on 85 cents or 59 cents. He is free. Of course pressure is put on him, but in this case, it is between the two elements of the final offer. This means that pressure on the two parties would continue in a way that either of them could hope to be the winner.

That is why we are presenting this amendment and we think that it preserves the labour minister's ability to act later and allows for use of the best conditions in the final offer. Under these conditions we cannot say that the final offer was tried, because everyone in all universities will say that the previous conditions were not such that the final offer could be judged.

[The Assistant Deputy Chairman]

The amendment is in order.

The debate is now on the amendment.

Shall the amendment carry?

[Some hon. members]

No.

[Some hon. members]

On division.

(Amendment negatived.)

(Clause agreed to.)

(Clauses 11 and 12 agreed to.)

On Clause 13:

[Francine Lalonde, Bloc, Mercier, QC]

Mr. Chairman, this is the first time in a bill that all the costs of arbitration by the government, not arbitration in a collective agreement, are borne by the parties.

I know that these are tough times, but I wonder if it would not have been better to propose an amendment to the code itself, rather than use a special law, which for the first time in such a case will make the two parties pay the costs.

[Lloyd Axworthy, Liberal, Minister of Human Resources Development and Minister of Western Economic Diversification]

Mr. Chairman, just as a matter of information, under the Canada Labour Code when grievance arbitrators establish such a procedure the parties to the dispute are asked to carry the costs on it.

As the hon. member said, these are frugal times. As part of the discipline that we want to apply to parties in this dispute we expect that if there is a certain cost factor there that we should not ask the public, which has already paid an enormous cost over the past 10 weeks. The parties to the dispute should pay it.

[Vic Althouse, NDP, Mackenzie, SK]

Mr. Chairman, I wonder if the minister could clarify for us what the points of the dispute are, what the financial differences are between the two parties. Reports in the press say that it is 10 cents the first year, 10 cents the second and a nickel for other benefits. Is that in fact the only thing that is at issue between the two parties at this time?

[Lloyd Axworthy, Liberal, Winnipeg South Centre, MB]

Mr. Chairman, as I said earlier, I do not think the floor of the House of Commons is the place to do the negotiations or to determine which side is right or wrong or who had which offer or which offer was fair or more realistic. I think what we are trying to establish in the House of Commons is a way of settling the dispute under a fair, honest, open, objective procedure.

Let us let the arbitrator under this procedure make a determination after he gets the final offer proposals from both parties to determine what is proper and right in terms of a settlement.

(Clause agreed to.)

(Clause 14 agreed to.)

On clause 15:

[Bill Blaikie, NDP, Winnipeg—Transcona, MB]

Mr. Chairman, I have just a brief comment. The question of fines was mentioned earlier by the hon. member for Burnaby-Kingsway and I would like to reiterate the point on the clause in which we find this particular issue.

I think the fines which are impossible by virtue of this particular clause, clause 15, may well be in keeping with the tradition of back to work legislation-I remember other legislation on which we had occasion to protest the stiffness of the fines-but I would just like to say that we find these fines particularly onerous.

I find it somewhat passing strange that we can have legislation which comes down at least potentially very hard on people who may choose to disobey this particular legislation or may be seen to be counselling others to do it. I just wish we could come down this hard on a lot of other people who are doing a whole lot more damage to the environment, to society and everything else. Whenever it comes to labour relations and somebody might go out a day more than the strike called for or counselled somebody for a wildcat or to stay out one more day, the power of society is brought to bear with great force.

I just wish we had the will to be as tough on polluters, criminals and all kinds of other people, tax evaders and everyone else as we do on strikers when they sometimes do out of anger things that are contrary to the law.

(Clause agreed to.)

(Clauses 16 to 19 inclusive agreed to.)

On Clause 20:

[Svend Robinson, NDP, Burnaby—Kingsway, BC]

Mr. Chairman, with respect to the coming into force of the act, I have just spoken with the representatives of the longshoremen's union, including Mr. Westrand, the president, and they have indicated that it certainly would be their desire that the effective coming into force of the act not be before 8.30 tomorrow morning their time in order that they might have an opportunity to meet with their members. Their members start their shift around 5 to 5.30 in the morning.

There has been good co-operation on this legislation. I would ask the minister if he would be prepared to accommodate the union in their return to work and in order to give them an opportunity to meet with their membership and, through you, Mr. Chairman, whether we might agree that the act come into force on the expiration perhaps of the sixteenth hour after the time at which it is assented to.

That would facilitate the back to work arrangements of the members and the executive of the union.