Debates of March 3rd, 1997

Canada Labour Code

[The Deputy Speaker]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Deputy Speaker]

In my opinion the nays have it.

And more than five members having risen:

[The Deputy Speaker]

The division on the motion stands deferred.

We will now proceed to debate on motions in Group No. 9.

[Réal Ménard, Bloc, Hochelaga—Maisonneuve, QC]

moved:

Motion No. 27

That Bill C-66, in Clause 37, be amended by adding after line 9 on page 29 the following:

"(9) Nothing in this section authorizes an employer to use the services of a person who was not an employee in the bargaining unit at the commencement of the strike or lock- out to perform all or part of the duties of an employee in the bargaining unit on strike or locked out."

[Dale Johnston, Reform, Wetaskiwin, AB]

moved:

Motion No. 37

That Bill C-66, in Clause 42, be amended by deleting lines 35 to 46 on page 32.

[Len Taylor, NDP, The Battlefords—Meadow Lake, SK]

moved:

Motion No. 38

That Bill C-66, in Clause 42, be amended by replacing lines 38 to 40 on page 32 with the following:

"behalf of an employer shall use the services of a person"

[Réal Ménard, Bloc, Hochelaga—Maisonneuve, QC]

moved:

Motion No. 40

That Bill C-66 be amended by adding after line 22 on page 33 the following:

"42.1 The Act is amended by adding the following after section 94:

94.1(1) No employer or person acting on behalf of an employer shall use, thereby undermining a trade union's representational capacity, the services of a person who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given and who was hired or assigned after that date to perform all or part of the duties of an employee in the bargaining unit on strike or locked out.

(2) The use by an employer of the services of a person described in subsection (1) is deemed to undermine the trade union's representational capacity.

(3) Where a trade union alleges that an employer has contravened subsection (1), the burden of proof that the use by the employer of the services of a person described in subsection (1) does not undermine the trade union's representational capacity is on the employer.

(4) In any case arising under section 87.4, no employer or person acting on behalf of an employer shall use the services of a person who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given and who was hired or assigned after that date to perform all or part of the duties of an employee in the bargaining unit on strike or locked out."

[Dale Johnston, Reform, Wetaskiwin, AB]

moved:

Motion No. 43

That Bill C-66, in Clause 45, be amended by deleting lines 24 to 33 on page 35.

[Francine Lalonde, Bloc, Mercier, QC]

Mr. Speaker, this group contains an essential motion by the Bloc, one which ought to have come from the government itself. I refer to the proposal to prohibit replacement workers, or "scabs", the anti-scab or anti-replacement worker clause.

This clause is sorely lacking in a bill which has pretensions of being modern, which is supposed to establish new working conditions for businesses which require worker participation if they are to be productive. If one reads current management manuals, that is what they all say, but the revamped labour code will not have that effect, but indeed the opposite.

The fact that there is no clause, no section to prevent the use of replacement workers-their use is legalized to some extent instead-accentuates the temptation to resort to violence to solve problems. This is found throughout the code, which is decidedly far from modern.

As I have said several times already, and I repeat, in 1977 the Parti Quebecois of the time, and its Minister of Labour, Pierre-Marc Johnson, adopted anti-strikebreaker legislation despite the loud objections of a number of employers. These clauses brought about the social peace for which everyone today takes the credit.

When Premier Bourassa was re-elected in 1985, he was pressured by employers to drop the clause, which had been adopted by the Parti Quebecois, but he took care not to do so.

He told employers in no uncertain terms that labour peace was now a fact, that it was worth a lot and that government was not about to backtrack and reinstate conditions that had led to violent strikes that went on forever.

I used the word violent, and we should realize that when workers have a union, often after a hard time getting certification, and the bargaining process is unsuccessful, they must go on strike. For instance, when there is a strike and workers see that other workers are being hired-I have nothing against people who take that kind of job because we know jobs are scarce-to replace those who are

on strike because they want to improve their circumstances and get the respect and the recognition their union deserves.

When other workers are hired to replace these strikers, to remove any leverage they have, to ensure that goods produced before the strike are shipped or whatever else has to be done, inevitably some workers are going to get very angry. When these strikes go on for any length of time, circumstances may cause them to do things they should not.

For society as a whole, using replacement workers is bad, it sets a poor example and adversely effects labour relations. If there is a settlement, there may be deep wounds that leave lasting scars. This has nothing to do with what we call new labour relations. This is more like the law of the jungle.

So a labour code does what? It tries to make the bargaining process as civilized as possible. At this point I can inform hon. members who think they can solve everything with their final offer that they have not the remotest idea what labour relations are all about. We must recognize the fact that in a company, especially in big companies and increasingly in small businesses, workers want to bargain collectively with their employer, and for this purpose they want to be recognized as a unit. The unit can then negotiate in good faith with the employer and, if need be, avail itself of the right to strike.

However, they want to negotiate on the basis of their own needs, and not play heads or tails with the employer's proposals and some union plan. It would take too long to explain that this can never be a solution and can never replace the bargaining process.

To get back to replacement workers, there is a huge gap in this bill, and in committee we again begged the government to do something and we made our own proposals to ensure that at the very least, when essential services are at stake, the use of replacement workers is prohibited.

Here, however, the bill is so twisted that an employer, and I have read the text over and over, could both force strikers to work in order to provide essential services and use replacement workers.

This would be one of those moments of conflict I mentioned that nobody should have to face.

Unfortunately, this bill recognizes replacement workers and does not prohibit their use, even in this totally untenable situation where strikers in essential services would have to work together with replacement workers. The only provision we can view positively to any extent, and I hesitate to say so, because the other omissions are so serious that the fact of saying that the workers in the bargaining unit before the replacement workers must be rehired will not soothe many wounds.

It is sad, more than sad, it is shocking to see that, when the minister promised-and it is a promise that affected the promise to modernize the Canada Labour Code-rather than modernize the Canada Labour Code, instead of adapting it to new labour relations, to permit new labour relations, instead of considering unions for what they are-ever more reasonable partners in the management of businesses-the Canadian code establishes rules that will quickly bring back the law of the jungle, repeatedly throughout the bill.

It is sad and shocking, but worse than that, it will produce effects the government will regret. However, it is not the government that will regret it, but rather the people who will have to deal with it. That is the really annoying part.

In closing, I would simply like to say that, as far as employment insurance is concerned, we predicted there would be a mountain of problems. Now we have them, and the minister, in a panic, is forced to announce improvements here and there, because, quite simply, it did not make sense. The government does not listen. It is arrogant; it thinks it knows everything and produces bill after bill that even it knows will not achieve the aims set for them.

[Dale Johnston, Reform, Wetaskiwin, AB]

Mr. Speaker, we are talking about replacement workers and how the CIRB will be the sole determiner of whether or not replacement workers can be utilized.

This is one of those situations that I would say is neither fish nor fowl. It is not a replacement worker ban and it is not a wide open market either. It is rather putting the responsibility on to the CIRB which I am sure will be very heavily lobbied by union representatives to see any sort of action taken by the employer as being detrimental to the union.

This is a serious infringement of employers' rights. It is sort of de facto anti-replacement worker legislation and yet it is not.

On November 5, 1996 the Globe and Mail quoted Nancy Riche as saying:

I would go so far as to suggest that anybody who does work for a member union understands the representative capacity of a union.

She went on to say:

None of the bureaucrats are going to agree with me but we will have to wait and see. The new board will rule.

They will do everything they can to say that the employer has taken action that will somehow undermine the union. They will pressure the board to find in their favour.

I understand the Bloc has put a lot of pressure on the government to come up with this idea. While the Bloc would have us believe that nothing but a total replacement worker ban would be sufficient, in true level fashion it has found some way to do it in a half-hearted manner and turn it over to the CIRB which very likely does not particularly want this aspect of the bill. I should not speculate but it is very tempting to do so.

There are ultimate tools, the strike being one and the lockout being another. Then there are lesser tools that both management and labour have. One of the tools that management has is the right to continue to operate when labour services have been withdrawn.

We will hear people trying to rationalize that anti-replacement worker legislation leads to far more harmonious labour negotiations than no anti-replacement worker legislation. That does not always bear out. As a matter of fact they would be hard pressed to prove that point to me.

I refer back to the Sims task force entitled "Seeking a Balance". This is not part of the balance. This is a lopsided balance. Replacement worker legislation does not level the playing field. Anti-replacement worker legislation tips the scale on the side of labour.

If Bloc members use the model they are used to at home in the province of Quebec, they would say there must be a total, outright ban on replacement workers. That is the difference between a totally labour oriented party and one that is not totally labour oriented. Certainly labour should have rights, the right to strike, the right to withdraw services, the right to organize peacefully and so forth. The Reform Party admits that and agrees.

We must never get into a situation where labour can hold management hostage or where management can hold labour hostage. If we are truly seeking a balance we would accept the amendment the Reform has put forth today requesting that the provisions for anti-replacement worker legislation be withdrawn from the bill.

As I mentioned before, the CIRB will be charged with making a decision and will be pretty busy. It will receive a lot of representation from the labour unions that any use of management or anybody who tries to run the shop because labour has been withdrawn undermines the representational capacity of the union.

Here again, I do not want to prejudge what the board is likely to do. We saw an example in Ontario not very long ago where a similar board decided in favour of labour. A union was certified. The latest vote was 151 against certification and 43 in favour.

If that is any indication of how the CIRB would operate, it is incumbent on us to accept Reform's amendment and withdraw that section of the code.

[Réal Ménard, Bloc, Hochelaga—Maisonneuve, QC]

Mr. Speaker, I am in agreement with my Reform colleague's speech on one point, the fact that our amendment concerning replacement workers says a lot about the kind of party we are.

We must admit that there is a lack of courage on the government side, since this does take courage. When government members were in the opposition, they were vociferous, they spared no energy, no word was strong enough to demand provisions prohibiting replacement workers.

Of the Reform Party we must say that it is not courage it lacks, but sensitivity. If it had not been for the Bloc Quebecois, this issue would not have been raised during today's debate.

The issue of replacement workers is not a recent concern for the Bloc Quebecois. The member for Richelieu introduced a private member's bill dealing with this very thing. The member for Bourassa and the member for Saint-Laurent followed suit.

It is incredible that we still have to justify, to explain why antiscab legislation, which prohibits the use of replacement workers, is an element of paramount importance to the balance we must always strive for in labour relations.

Why is a piece of legislation banning the use of replacement workers so important? Because it has to do with the violence and the length of labour disputes. Recently I looked at some statistics compiled by a professor of industrial relations regarding the bill passed in 1977 in Quebec. I had to laugh when the minister told us in committee that since there was no consensus we could not proceed. Do you think for one moment that there was a consensus in Quebec in 1977 when the government of René Lévesque, a most courageous man, decided to go ahead? Of course not.

Contrary to some of my colleagues, I was not very old in those days. If you recall, in 1977, when the Lévesque government went ahead with this, the Conseil du patronat threatened to go to court, the Liberal Party believed that it would be the first shot in a civil war. There was an atmosphere of fear that was nurtured by some very specific, clear-cut groups, whose immediate interest it served.

But once the Liberals were in office, do you think they challenged the antiscab legislation? Of course not. They realized it could not only make disputes more civilized, but also allow some kind of balance to be struck.

It takes some doing to come and tell us today that they could not go ahead because there was no consensus, because the necessary conditions were not met.

If this government had had the courage of its convictions and had stood by the positions taken when it sat on this side of the House, it would have endorsed the amendment proposed by the Bloc Quebecois. But it is not going to happen now because, on this issue as on many others, the members opposite lack the political courage required to take a position of their own.

A study conducted by a number of industrial relations experts shows that, Quebec in particular, but three other provinces as well, still have, for the most part, antiscab provisions. There was Quebec, British Columbia, Ontario. This meant that 50 per cent of Canada's labour force was protected by antiscab legislation.

When there are laws such as the ones I am describing, conflicts are resolved more quickly. This goes without saying, because the legislation forces the parties to negotiate. It also results in less violence. In those provinces where there are antiscab laws, the duration of conflicts was, on average, 35 per cent shorter than elsewhere. This means something after all. Yet, this Parliament still refuses to accept Quebec's position, which could have been beneficial to all workers.

What is worse is the hybrid, half-baked formula being proposed by the government, which thinks that the Canada Labour Relations Board will have to develop regulations and guidelines that woul allow it, when the union's representation duty will be undermined, to issue an order providing that replacement workers cannot be used.

We cannot imagine a more weird and crazy scenario than the one proposed by the government. At what point will it be determined that a union's ability to represent its members has been undermined? Is the objective to prohibit the use of replacement workers? This is absolutely crazy. It does not make any sense. No witness said anything of the sort. Could the minister tell us who, among university professors, unions, militants and workers, supported such a solution? Of course not, because it is a hybrid solution where one tries to play both ends against the middle, as is too often the case with the legislation put forward by the government.

It is rather disappointing and we would have liked for the government to take into consideration what is being done in the Province of Quebec, where section 109 of the Quebec Labour Code recognizes as an unfair practice the use of replacement workers by an employer. The Canada Labour Code clearly defines what is an unfair practice. An unfair practice, as defined, is an allegation that an employer, a trade union or an individual has taken part in an activity that is prohibited pursuant to the Canada Labour Code. And then a number of examples are given. At least six of them are traditionally linked to unfair practices.

Section 24 stipulates that no employer shall, after notification that the application for certification has been made, alter the conditions of employment, since this is considered an unfair practice. To negotiate in bad faith is clearly an unfair practice. We saw, closer to home, that such a recourse can be used. In the dispute opposing them to Air Canada and national airlines, regional carriers Air BC, Air Nova, Air Ontario and Air Alliance invoked section 50 in referring to the last negotiations.

A third example is employer interference in union business. It is also prohibited as an unfair practice.

For the union, failure to provide fair representation can be cause for legal action, as can failure to provide members with financial statements, although a bit unusual, and a certain number of prohibitions set out in section 95.

Since our historic entry into the House of Commons-and you will not often see an official opposition as dynamic as the one before you-we have made representations to successive labour ministers in order to ensure that our message is heard. One day, we will leave this Parliament and we will speak as equals within a true partnership. We would have liked, as a team of parliamentarians, to be able to say with pride that one of the contributions we made to this debate, a milestone in our time as the Bloc Quebecois team in the House of Commons, has been to convince English Canada and the government of the need to make labour relations more civilized and to adopt anti-scab legislation.

We are not admitting defeat. There are still a few weeks left before we are, perhaps, able to ask Quebecers once again for their vote. There will be another referendum, that is certain. I see the member from British Columbia, who has very definite ideas on a number of topics I would prefer not to get into. I can and I wish to tell her personally not to force me to go door to door in her riding. She knows very well that I am particularly fond of Vancouver.

I do not know if this is a human being in front of me. I heard loud shouts coming awfully close-

[The Deputy Chairman]

Unfortunately, the member's time is up.

[Leon Benoit, Reform, Vegreville, AB]

Mr. Speaker, I will speak to the Group No. 9 amendments. Many people over the last four years since I became involved in politics, and even before, have told me that unions are a bad thing and if they had their way they would outlaw unions completely. I have had many people tell me

that unions are so powerful they do extreme harm to the economy. I respond to them by saying that I do not agree at all.

I believe that unions play a very useful role. I believe that collective bargaining must be allowed to take place wherever it possibly can. I believe that under certain circumstances we have to find a more efficient and more useful mechanism for solving a problem. Those are cases when innocent victims are involved who are neither labour or management. Of course several different groups fall into this category, grain farmers among them.

When members of the Bloc say that in all cases labour and management have to work it out no matter how long the strike might last, are they really thinking about the other people who are involved in certain situations? In particular, people who in many cases in the past have lost their businesses, their farms, have suffered severe economic hardship as a result of both sides, labour and management, causing stoppages.

This is the case with grain farmers and any other captive shippers. We have to take a look at solutions to the problem of one disruption after another which are usually settled by back to work legislation. Such legislation without a doubt does not involve labour-management negotiations.

In the grain handling industry 19 times in the last 20 years the House has brought in back to work legislation to end a dispute. Labour and management have given up on the process. We have proposed the use of final offer selection arbitration so that there will be no work stoppage and so that labour and management do negotiate to the final agreement, hopefully never using the final offer selection arbitration. However, knowing it is there is important.

This group of amendments deals with replacement workers. Of course members of the Block feel, and I think I am being fair, that there should be no case where replacement workers can be used. I believe in Quebec it is the law that replacement workers cannot be used.

The legislation does not say that replacement workers will not be used. Instead in a roundabout way it states that the Canada Industrial Relations Board will decide whether replacement workers will be allowed or not. It is very unclear to labour and management what situations would warrant the Canada Industrial Relations Board's deciding whether replacement workers would be used. This kind of uncertainty cannot possibly be good for labour or management. Therefore we cannot support any of these amendments that would outlaw the use of replacement workers entirely.

While we do want the collective bargaining process to take place, I have defended it to many people who say that it should be outlawed, that the unions are just too powerful and harm the economy. I have defended the absolute necessity for collective bargaining to be available to labour and management and I will continue to defend it. However, there are situations where we must be able to get round it.

Certainly this solution of using the Canada Industrial Relations Board to determine when replacement workers should be allowed is totally unacceptable.

It should be obvious to members of the government and of the Bloc that the way to solve the problem is to never have these work stoppages in the first place, especially in industries where innocent victims are the ones who pay the dearest price. Of course, grain farmers are one group that has paid the price 19 times in the last 20 years. It has cost many of them their businesses and their livelihood of choice as a result of these continual work stoppages in which they have no say. They are left out. They truly are innocent victims.

In cases where there is a captive shipper or a group of victims the obvious solution is to never let the stoppage take place. We have suggested using final offer selection arbitration as a way of providing that outcome.

This group of amendments is one that would not be supported by farmers. I do not think we would find one farmer in western Canada who would support this amendment that would outlaw replacement workers.

I have some letters from constituents who said things like this. One is from Myron Zajic from Edgerton, Alberta in my constituency: "I am writing to you in support of the amendments to the labour code which prohibit the longshoremen from striking in Vancouver and Prince Rupert. I am an Alberta grain farmer and I have been appalled by the number of times we have been held hostage over grain handling disputes at the west coast. To maintain our foreign markets and to keep the flow of grain moving and keep our agriculture economy going we must stop these interruptions. Please support this amendment".

The next one is from Dale Hallett from my constituency who made this comment about labour disputes on the west coast: "Labour disputes on the west coast, one, disrupt the flow of grain; two, increase direct cost to grain producers; three, damage Canada's reputation in world markets;" a very important point that he has brought up, "and four, impair the economy of Canada and western Canada in particular". He said support that amendment.

I have a stack of letters of people who have said to support that amendment. They certainly would not be telling us to support Bill C-66 if they knew that part of this bill gave that kind of power, the kind of power to outlaw the use of replacement workers, put into the hands of the Canada Industrial Relations Board. They would not support any piece of legislation that would do that. They will not support this piece of legislation for that reason and others.

If we can get our amendment supported which would put in place final offer selection arbitration, it changes the game. That would prevent many of these stoppages and would help to solve the problem for the long term, not just tinkering. This legislation does provide a bit of useful tinkering in that it would at least ensure that grain which reached the coast would be loaded but it has no impact whatsoever on getting that grain from the local elevator to the coast in the first place.

It does not solve the problem and on balance when we look at this group of amendments and the other group of amendments it is going to take that final offer selection amendment to be supported for this legislation to really provide any positive change at all.

[Osvaldo Nunez, Bloc, Bourassa, QC]

Mr. Speaker, the subject under discussion is one very close to my heart. The replacement worker question is one that has been long debated in our society and one that has been solved in Quebec and in British Columbia. Unfortunately, in Ontario the legislation was repealed.

My major criticism of Bill C-66 is its lack of real anti-strikebreaker clauses. The minister tells us that the Sims commission was unable to reach a consensus, but there has never been a consensus anywhere on anti-scab legislation. The government must have the courage to table a bill on replacement workers. I shall come back to this later. Professor Rodrigue Blouin tabled a minority report in which he comes out clearly against replacement workers and in favour of anti-scab legislation.

The minister tells us that there was no consensus, and that is true-there never will be. He must get moving and have the courage to table a true anti-scab bill. I believe that a consensus is developing in this House. Last year, we voted on an anti-scab bill and it was very narrowly defeated. Some Liberal members even voted in favour of this bill, which had been introduced by a member of the Bloc Quebecois.

The absence of anti-scab provisions proves that the Liberal Party of Canada, that this government has moved to the right. This government listens more and more to employers and less and less to the labour movement, the unions and the workers.

The Bloc Quebecois is the only party that truly defends the interests of the workers. It is the only party that voted against back- to-work legislation for railway workers. Of course the Reform Party is against anti-scab provisions. This party represents the right, the extreme right of Canada.

The bill prohibits the employer from introducing practices aimed at undermining the ability of a union that is on strike or locked out to represent its members. In what cases will these provisions apply? We do not know. We can give an example. If an employer refuses to bargain while using scabs, the Canada Industrial Relations Board may prohibit the use of scabs.

Proving a case is very difficult. It must be done before the Canada Industrial Relations Board. It must be proven that it is an unfair practice. The notion of unfair practices will vary depending on the case and the circumstances. Furthermore, this practice must aim to undermine the ability of the union to represent its members. In what cases, in what circumstances? We do not know this either.

Anti-scab provisions, and this has been proven in Quebec and British Columbia, and in Ontario when it still had such provisions, contribute to labour peace and make for better labour relations. Their absence contributes to violence on the picket line. We have seen that wherever there are strikes and employers use strike breakers there is violence on the picket lines.

I saw it at the Ogilvie flour mills in Montreal, a few months ago, at Pratt and Whitney in Longueuil, at Westinghouse. There was confrontation between the company's permanent employees and the strike breakers from outside replacing them, confrontation that was brutal at times.

I am sensitive to this. I felt it important to introduce a bill, Bill C-338, to prevent the use of strike breakers. It is also meant to protect the employer in certain circumstances, and provides for maintaining essential services in a company.

A balance must be maintained between the parties, when negotiations are going on. Generally, the employer is in the better position, with its management rights, and workers and unions are not so well off. Anti strike breaking legislation restores the power relationships between the parties in negotiation.

In 1976, the Government of Quebec had the courage to introduce a bill, which came into force in 1977. As the member for Hochelaga-Maisonneuve has just pointed out, management opposition was fierce. Everywhere, everyone was expecting the worst. Nothing happened.

Quite the contrary, antiscab provisions in Quebec have contributed to shorten work disputes. There is less violence on picket lines and we have unprecedented labour peace. I believe it is also the case in British Columbia.

There were also such antiscab provisions in Ontario, but the new Conservative government, which represents the interests of employers and the right wing, has unfortunately repealed those provisions. I think this decision will be proven wrong in the future and there will be more conflict, more violence. Disputes will be harsher in the absence of antiscab provisions.

I said earlier that members of the Sims task force could not agree on antiscab provisions. Naturally, two members, Sims first, decided that it was not a good idea to introduce antiscab provisions. There was also Professor Rodrigue Blouin, from Laval University, who incidentally is one of the key experts in industrial relations in Quebec, in Canada and in North America.

He is one of the most well-known arbitrators in Quebec and says in his minority report: "I submit that the general principles underlying our system of collective labour relations are such that the presence of replacement workers during a legal strike or lockout is illegitimate". This is taken from page 138 of the report "Seeking a Balance", the review of part I of the Canada Labour Code.

He continues on page 154, saying: "The possibility of a strike or a lockout still remains the cornerstone of the collective bargaining system today. However, this economic confrontation is only possible between two clearly identified parties that are under the obligation to bargain in good faith. Therefore, as soon as a bargaining agent is certified, the employer of the workers that are being represented can no longer refuse to negotiate a collective agreement, but this does not necessarily mean that he has to reach one. After a certain period of formal negotiations, there may be, in the absence of a settlement, a break up in the collective dialogue and a setting off of an economic conflict. At no time during this process a third party may intervene, except in the cases specifically provided for by the legislation".

I submit to you that Professor Blouin is very well acquainted with the situation in Quebec, which has been a very positive experience. The results have been exceptional and no one in Quebec is thinking about repealing the legislation, not even the employers who had campaigned against it. We have some statistics showing that the industrial relations situation has greatly improved in Quebec.

[Len Taylor, NDP, The Battlefords—Meadow Lake, SK]

Mr. Speaker, I am pleased to be able to say a few words on group No. 9 of the report stage amendments to the Canada Labour Code.

I very much support the comments made by the hon. member for Mercier, the hon. member for Hochelaga-Maisonneuve and the hon. member for Bourassa regarding replacement workers. I support their Motions Nos. 27 and 40 in this group. I hope they will support my Motion No. 38 which is also in this group.

The issue of replacement workers, that is anti-scab legislation, is important in the context of Canada Labour Code amendments. The minister has received a great deal of information regarding the prohibition of replacement workers. To me and my colleagues in the New Democratic Party, the minister should have taken steps to outright prohibit the use of replacement workers.

Like our friends in the labour movement, New Democrats are deeply disappointed that Bill C-66 does not contain a general prohibition on the use of replacement workers.

The object for us must be to end a practice that subjects trade union members to insult and unfairness and stacks the labour relations deck in favour of management.

During testimony before the standing committee which studied Bill C-66 the CLC said it held strongly the view that strikes and lockouts accompanied by the employer's use of replacement workers give rise to several negative and unnecessary strains on the labour-management relationship.

These include prolonged and more bitter conflicts, more strikes and lockouts, increased picket line confrontations and violence, less free and meaningful collective bargaining, problems that render resolution of the dispute more difficult.

In addition to a specific amendment such as the one I have put before the House today, New Democratic Party MPs and the CLC have long advocated a prohibition on the use of replacement workers during a strike or lockout that would contain a very few specific elements.

These elements include the prohibition of the use of both bargaining unit and non-bargaining unit employees or any person including those persons who exercise managerial functions; the prohibition of the use of persons engaged, transferred or hired after the earlier of the date on which the notice of desire to bargain is given and the date on which bargaining begins; the prohibition of contracting work in or out of the establishment; the providing of protection from discipline for any person who honours the picket line; and the development of an enforcement mechanism that would include permission for the union to enter and inspect the employer's premises in the company of a government labour relations officer and representative of the employer.

Opponents of a replacement worker prohibition frequently raise the spectre of increased unemployment, incidents of strikes and imbalance of bargaining power.

The province with the longest experience with an anti-scab provision is the province of Quebec where the evidence does not support bargaining power imbalance as reflected in wage settlement.

In the 17 years, that is 1978 to 1994 inclusive following the introduction of anti-scab provisions, increases in basic wage rates and collective agreements in Quebec were higher than the Canadian average in only six years.

It is perhaps not surprising the task force member from Quebec, Mr. Rodrigue Blouin, having witnessed first hand the province's experience with anti-scab legislation, was the one who issued an

eloquent minority report advocating a prohibition. His opening comments in that minority report are quite strong.

As quoted earlier, Mr. Rodrigue Blouin indicated:

I submit that the general principles underlying our system of collective labour relations dictate that the presence of replacement workers during a legal strike or lockout is illegitimate. Their use must hence be declared illegal.

Let me continue that quote for just a moment:

The use of replacement workers undermines the structural elements that ensure the internal cohesion of the collective bargaining system by introducing a foreign body into a dispute between two clearly identified parties. It upsets the economic balance of power, compromises the freedom of expression of workers engaging in a strike or lockout, shifts the original neutral ground of the dispute and leads eventually to a perception of exploitation of the individual.

I continue the quote:

The conclusion to be drawn from my analysis is that there is on the whole a situation of illegitimacy that Parliament must condemn in no uncertain terms.

I have read very carefully the minority report of Mr. Blouin. I am quite taken by his analysis and his conclusion which reads:

Parliament has a duty to restore the delicate balance necessary to ensure that the collective bargaining system achieves its purpose. The presence of replacement workers is an intrusion into an economic dispute that takes place in the workplace in accordance with a public policy designed to promote industrial democracy. This policy is negated by replacement workers.

I am reminded of the minister's own testimony before the standing committee in this regard. In responding to questions from committee members, the minister said that an important priority of the government was to let the collective bargaining process function. I argued, just as did Mr. Blouin, that the one element of the legislation which prevented collective bargaining from functioning well was the provision about replacement workers.

That is why I support an outright prohibition on the use of replacement workers. That is why I have proposed and am supporting the amendments in front of us today in this grouping which, if passed, would for all intents and purposes prohibit the use of the services of a person who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given.

The Sims report highlights several high profile disputes in the federal sector, including the dispute at Giant Mines in Yellowknife with its tragic circumstances and Canada Post's use of replacement workers in 1991 which resulted in several confrontations.

Sims, however, does not recommend the prohibition of replacement workers because he believes measures to mitigate the threat to job loss that replacement workers pose will be sufficient to prevent potential violence on the picket line. There is very little evidence to support that contention despite the compromise Sims proposes is acceptable in the absence of an outright prohibition.

In conclusion, I was greatly disappointed the government in the initial drafting of Bill C-66 or in the amendment process of the standing committee did not provide for a general ban on scabs in the amendments to the federal labour code. The government had the opportunity to end the confrontations in strikes and lockouts but failed to grasp this opportunity.

Obviously 20 years of history of such legislation in the province of Quebec provides the necessary information we need to assess its worthiness. It is time the federal government took the necessary steps to ban replacement workers from disputes within its own jurisdiction. The amendments before us provide the opportunity to do just that. I urge their support.

[George Proud, Liberal, Parliamentary Secretary to Minister of Labour]

Mr. Speaker, you listened over the last while to the speeches of members from all sides. You will understand that one of the most sensitive issues we had to look at as we drafted amendments to the code was without a doubt the issue of replacement workers. As has been said by almost everyone, not only did it divide labour and management but the members of the task force were unable to reach a consensus on it.

Bill C-66 will not impose a general ban on the use of replacement workers as requested by the Bloc in its Motion No. 40 and by the NDP in its Motion No. 38. Nevertheless, the code will not be silent on this matter as the Reform Party proposes in its MotionNo. 37.

It is important to mention that the unions and employers subject to the Canada Labour Code, although deeply divided on the regulation of the use of replacement workers, recognized in their submissions to the task force that the use of replacement workers was not a legitimate practice if its purpose was to get rid of union representation or undermine the role of the union rather than to achieve an acceptable collective agreement.

When asked to comment on the task force's recommendations, management and labour while maintaining their opposing positions on the issue of replacement workers recognized nonetheless that the majority recommendation of the task force was an acceptable compromise.

Therefore, under the proposed subsection 94(2.1) of the Canada Labour Code, if it is demonstrated that the employer is using replacement workers to undermine the union's representational capacity, the employer's conduct will constitute an unfair labour practice. The Canada Industrial Relations Board will be given a discretionary power to require the employer to stop using replacement workers for the duration of the dispute.

Some claim that the use of replacement workers could in itself constitute proof of the employer's intention to undermine the union's representational capacity. If this was the result the government had sought, the bill would have been worded to prohibit the use of replacement workers without making reference to the employer's purpose in doing so.

A number of parties that appeared before the standing committee claimed that the terminology used to describe this new, unfair labour practice did not reflect the spirit of the task force majority recommendation. Specifically, some employers claimed that the phrase "undermining a trade union's representational capacity" was too broad and could be interpreted as prohibiting the use of replacement workers under any circumstances, regardless of the employer's purpose in doing so.

They therefore asked that the wording of the bill reflect the task force majority recommendation and stipulate that employers can legitimately use replacement workers in pursuit of legitimate bargaining objectives. The committee did not act on these requests for good reason. This new prohibition is worded in the same way as the other prohibitions in the code referring to improper motivation. However, the union will have the burden of proving that the employer's intention in using replacement workers is to undermine the union's representational capacity and it will not benefit from the reversal of the burden of proof.

We are confident that the new Canada Industrial Relations Board, which will draw its membership from management and labour, will have the necessary expertise to develop criteria for providing and applying this new provision.

Finally, Motion No. 27 which was put forward by the Bloc prohibiting the use of replacement workers with bargaining unit employees has to maintain services necessary to protect the safety and health of the public. We believe that such prohibition would only generate unnecessary litigation.

What the proposed amendment envisages is a somewhat bizarre situation in which an employer not only seeks to have services maintained by bargaining unit employees, but also to recruit replacements to work alongside them. Add to this unusual circumstance a trade union ready to negotiate the maintenance of services by its members and to accept that they will be working with replacements doing bargaining unit work. In all an eventuality which is to say the least unlikely.

If the parties do not agree on the maintenance of services issue, it will be up to the board to resolve the matters and to decide on a case by case basis just what services should be maintained, who should perform them and finally to devise and an order which makes industrial relation sense.

We therefore ask the members of the House as a fourth replacement workers provision of Bill C-66 as drafted-as it represents a fair balance between the parties opposing but legitimate interests-

the employees right to be represented by a union and negotiate their working conditions collectively and the employer's right to keep their business viable during a work stoppage.

[The Deputy Speaker]

Pursuant to the agreement reached earlier today, all motions in Group No. 9 are deemed to have been put to the House, and any divisions are deemed to have been requested and deferred.

The question is on Motion No. 27. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[Some hon. members]

No.

[The Deputy Speaker]

All those in favour will please say yea.

[Some hon. members]

Yea.

[The Deputy Speaker]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Deputy Speaker]

In my opinion the nays have it.

And more than five members having risen: