Mr. Speaker, severeal months after indicating its intent to introduce a bill to amend part I of the Canada Labour Code, the government has finally got around to introducing Bill C-19 in the House.
One might have thought that, after such a long wait, the government would have made some constructive changes. One might have thought that it would also have taken the time to amend its bill so as to respond to the legitimate concerns voiced on all sides during the last Parliament. But no.
In June 1995 the Minister of Labour appointed a task force of labour relations experts chaired by Andrew Sims to conduct an independent review and recommend changes to part I of the Canada Labour Code. Its report “Seeking a Balance”, also referred to as the Sims report, was released in February 1996.
After consultation with unions and business representatives, the former Minister of Labour introduced Bill C-66 in November 1996 during the last Parliament. Bill C-66 was rushed through the House of Commons. The Senate social affairs committee gave it careful consideration and PC senators outlined major flaws in the bill, especially with respect to replacement workers, off site workers and union certification without the majority vote.
On November 6, 1997 the Minister of Labour introduced Bill C-19, vastly similar to its predecessor Bill C-66. The minor amendments proposed to the bill do not go far enough to allay some of the concerns raised during the last Parliament.
Unfortunately, the government chose to make half-hearted changes. Instead of concerning itself with developing the best legislation possible, it chose the easy route.
This is a great pity, for the bill we are examining is intended to substantially modernize industrial relations. This is the first time in 25 years that part I of the Canada Labour Code has undergone a thorough revision.
That is one more reason to make sure the proposed changes stand up to the closest of scrutinies. If we have to wait another 25 years for any changes to this bill, let us make sure that the proposed amendments are properly tailored to the reality of today's and tomorrow's work place.
Our actions throughout this entire process will be prompted by that concern, to develop a bill that is fair and equitable for all. The Sims report is entitled “Seeking a Balance”, and that is what we too are seeking, a balance between interests and parties.
Like a number of the others who have spoken out, we too hope that the government will make an effort to resist the temptation to ram this bill through without allowing the lawmakers time to analyze the impact of these amendments.
Let us be perfectly clear, it is not our wish to delay passage of this bill unduly. What we do want is for all parties concerned to have the opportunity to bring out their points of view.
We know how important the proposed changes to the Canada Labour Code are. As I indicated earlier, we have legitimate concerns, which we hope to address in greater detail at subsequent stages of this bill.
For the moment, our reservations are such that we cannot vote in favour of this bill as this stage in the legislative process.
One of the concerns we have with the bill as it stands deals with replacement workers. Understandably this is one of the most contentious issues for all parties concerned. For the Sims task force this issue is one of the few on which the authors could not agree.
One of the authors argued in favour of a complete ban on the use of replacement workers, as is the case in labour legislation in Quebec and British Columbia.
The majority argued against a general ban on the use of replacement workers and said:
There should be no general prohibition on the use of replacement workers.
Where the use of replacement workers in a dispute is demonstrated to be for the purpose of undermining the union's representative capacity rather than the pursuit of legitimate bargaining objectives, this should be declared an unfair labour practice.
In the event of a finding of such an unfair labour practice, the Board should be given the specific remedial power to prohibit the future use of replacement workers in a dispute.
Bill C-66 did not stipulate clearly that there was no ban on the use of replacement workers. Instead it stated that no employer or person shall use the services of a replacement worker for the purpose of undermining a trade union's representational capacity.
During Senate hearings no one seemed to know how the terms of the bill would be interpreted. For instance, this is what Nancy Riche of the Canadian Labour Congress had to say:
“This is a very interesting clause but no one seems to know how it will be interpreted. We will know that only after the first case has been heard by the CIRB.”
What constitutes an unfair labour practice and what constitutes undermining a trade union's representational capacity were left in the air for the new Canada Industrial Relations Board to interpret.
In their report senators from all parties urged the new CIRB to respect the findings of the Sims task force in interpreting and applying the provisions concerning replacement workers.
As a result the government made changes to the replacement workers provisions in Bill C-19. The bill now stipulates that no employer or person shall use a replacement worker for the demonstrated purpose of undermining a trade union's representational capacity rather than the pursuit of legitimate bargaining objectives.
While this formulation comes closer to what the Sims task force had in mind, in our opinion it is still not made clear enough that it is an exceptional measure meant to address reprehensible behaviour on the part of an employer.
As senators argued in Bill C-66, there is a fundamental difference between using replacement workers to ensure that the employer may carry on its normal business during a strike and using them for the purpose of undermining a union's representational capacity. The mere use of replacement workers does not in and of itself raise the presumption of unfair bargaining practices. These arguments still ring true in Bill C-19.
The bill as it stands does not properly address the meaning of the wording used. As further evidence, here is what the Ottawa Citizen has said about these provisions in its November 21, 1997 editorial. It stated:
Technically, the ban (on replacement workers) would apply only to workers whose employment would undermine the “representational capacity” of the union.
But since strikes are a tool unions use in representing workers, and replacement workers make strikes less effective, it is hard to imagine any of them that would not fit that definition—
Furthermore, an article in the Financial Post expressed the following concerns:
—now that they've had time to read the fine print, the major industries affected aren't so pleased—The revised code will still allow federally regulated industries, some of which are key to keeping the economy running, to use replacement workers during a strike or lockout, but not if it is seen to undermine a union's representational capacity.
What this means exactly isn't entirely clear. Also, the wording of this provision may prevent management transferring people from other parts of the company to keep operations going.
Another big concern of ours has to do with unions having access to lists of off site workers.
The Sims work force recognized the need to balance the opportunity for off site workers to consider the benefits of collective bargaining or take advantage of these benefits against their right to privacy and personal security.
With Bill C-66, the government legislated that the new Canada industrial relations board may provide an authorized representative of a labour union a list of the names and addresses of employees who normally work at home for an employer and allow this representative to contact them.
Even though the minister stated he had consulted the Department of Justice to make sure the privacy of off site workers would not be jeopardized, the Senate committee heard the Privacy Commissioner of Canada, who had serious reservations about the provisions of the bill.
The minister at the time even suggested that the privacy commissioner's concerns were not legitimate. He tried to minimize them by intimating that they arose from management lobbying.
However, the offices of the privacy commissioner and the information commissioner are independent offices, accountable to Parliament and no one else, the same way that the auditor general is for instance. By minimizing these concerns, the minister could justify sweeping them under the carpet.
Granted, the current minister tried, albeit unsuccessfully, to correct the situation with Bill C-19. He added a statutory prohibition on the use of information provided under this clause.
In addition, he further defined the board's power to release information to off site workers or to instruct the employer to do so through its electronic communications system.
Unfortunately, these amendments do not appear to be enough. This time, the minister's officials consulted with the privacy commissioner, who said that he still had some reservations about the provisions of the bill, particularly the infamous clauses 50 and 54.
I am running out of time so I will only address one other issue of concern even though there are more. It is the case of the new board's ability to allow certification without a majority of employees having voted for unionization. The board can do this if it feels there has been an unfair labour practice on the part of the employer. In Bill C-19 the legislation remains unchanged on this point.
In the 1997 election we proposed to strengthen worker protection under federal labour laws giving workers more democratic powers by requiring secret ballots and votes on union representations and decisions.
Such reforms were enacted by former Conservative Prime Minister Margaret Thatcher in Britain. They have proven so popular with workers that they are now endorsed by the Labour Party under Tony Blair.
Instead of ensuring more democratic power to workers, the government has chosen the way of ill-conceived legislation that has proven to have bizarre interpretations in other jurisdictions, to say the least.
I would like to bring to the attention of the House a situation that occurred recently in Windsor where the Ontario Labour Relations Board, armed with provisions similar to those in Bill C-19, ruled that a minority of workers could impose their will on the majority because of an alleged unfair labour practice on the part of management.
What was the unfair labour practice? The managers of the store asked whether it would close if it were unionized, followed legal advice and refused to comment. What were they supposed to say? A yes almost certainly would have been judged to be intimidation, but a no would have led to lawsuits had higher labour cost in fact put the store out of business.
It would also have helped the union's case immeasurably, which an employer should not be obligated to do. In the OLRB's view, the managers' refusal to answer was such a grievous violation of workers' rights that it invalidated not only this but any future vote.
Since the managers could not avoid unfair labour practices by saying yes, saying no or saying nothing, it is reasonably clear that legislation of this sort has some peculiar implications.
Knowing the implications of such provisions, we should be wary of enacting the same ones here.
I will end by touching very briefly on a few other issues that concern us regarding the bill.
We support the provisions to the effect that the grain would continue to move in the event of a work stoppage at ports. However, we are prepared to look at the impact of extending this protection to other sectors.
We also feel that the repeal of part II of the Corporations and Labour Unions Returns Act is suspicious and could deprive Canadians of valuable information on unions.
These issues and many more will be reviewed when Bill C-19 is examined in committee. Again, I hope we can conduct a serious and thorough review of this bill. It will ensure the quality of the legislation passed by this House.