Mr. Speaker, the contents of Bill C-19 are largely based on the recommendations of the Sims task force in its report entitled “Seeking a Balance”.
While management and labour representatives may have wanted to see more in some areas and less in others depending on their perspective, the Sims recommendations were deemed acceptable as an overall balanced package. This truly has been a bill of give and take and has been successful in achieving a balanced package.
The official opposition has put forward motions that would radically alter the balance of the package. The amendment it is proposing to section 29 of the code would change current certification procedures and require the board to hold representation votes in all cases.
The Sims task force did not recommend such a change and major federally regulated employers have not asked for such a change. Majority support is the basis for union certification under part I of the code. This would not change under Bill C-19.
Under current code provisions where an applicant union shows proof of membership, signed membership cards and payment of $5 fees, of between 35% and 50% of the employees in the bargaining unit, the board must hold a certification vote. Where the application is supported by a majority of employees, the board may hold a representation vote or may certify the applicant based on the membership evidence which is verified by board officers.
The task force found no evidence that the current system is not working or that it has been abused. In fact the task force noted two advantages to the current system. First, it requires the applicant trade union to be supported by the majority of employees in the bargaining unit and not only the majority of those who vote. Second, it reduces opportunities for inappropriate employer interference with the employees' choice.
As recommended by the Sims task force, under Bill C-19 the board's authority to verify union support by holding a representation vote in any case is retained.
The official opposition is also seeking to remove the remedial certification provision. This provision would allow the board to certify a trade union which has not presented evidence of majority support where the board is of the opinion that the union would have obtained such support if not for unfair labour practices committed by the employer.
Employers are uniquely positioned to have significant influence over employees given their ability to profoundly affect an employee's continuing job security and his or her economic destiny. Where employees fear reprisals from their employer, they may not freely express their true wishes even in a secret ballot vote.
The remedial certification provision is designed to discourage employers who might consider engaging in unfair labour practices in order to avoid a unionized workplace. It is neither a new nor a radical provision. Five provincial labour boards have similar authority. They use it infrequently in order to remedy the worst cases of employer interference or intimidation which makes it impossible to determine the true wishes of employees through a representation vote.
I would also like to remind members that the provision will be interpreted by the new Canada Industrial Relations Board which will have equal labour and management representation.
In commenting on this provision, a University of Toronto professor of law told the standing committee “The ultimate purpose of the provision reflects a very fundamental legal principle and that is that one should not profit from one's own wrong”. That is, the employer should not get the result it seeks as a consequence of violating the code. I agree with the professor and urge members to support this provision.
I would also like to briefly address the motion to delete the provision in Bill C-19 which authorizes the board to determine applications without holding an oral hearing.
As a quasi-judicial tribunal, the board is required in all cases to respect the rules of natural justice. While affected parties have the right to make representations to a tribunal, there is no absolute right to an oral hearing. In fact the board and many other tribunals regularly determine applications without holding an oral hearing.
Board decisions are reviewable by the federal court of appeal. One of the reasons the court can overturn a board decision is if it finds that the board has failed to respect the rules of natural justice.
Under Bill C-19 the board would continue to decide whether or not an oral hearing is necessary based on the circumstances of each case.
As is currently its policy, the board will hold an oral hearing when one is required in order to establish facts through witness testimony. This provision simply clarifies the board's authority to make determinations based on the written evidence and representations of the parties where the facts of the case are not in dispute.
If the board were required to hold a hearing in every case, administration of the code would become even slower and more costly. This would not serve the interests of the parties or contribute to positive labour management relations. I do not support such an approach. I strongly urge members to oppose this motion.
Finally, with respect to the other motion in this group, which modifies the process for the revocation of an employer representative in the longshoring industry, I fail to see the rationale for the proposed change. The choice of an employer representative belongs to the employees concerned. They should be able to apply to the board to change representatives and the board should authorize such a change if the representative no longer has majority support or is otherwise no longer qualified to act.