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.