Mr. Speaker, the protection of wage earners when their employers go bankrupt is not a partisan issue, nor should it be. All of us in the House are concerned about this problem. We agree, I am sure, that wage earners, whose employers have gone bankrupt, leaving wages and other benefits unpaid, are vulnerable. Over the years, different governments have considered options for wage earner protection. Each option has both benefits and drawbacks. I am confident that members on all sides would like to see the most equitable solution possible and are prepared to work toward the solution.
I wish to congratulate the member from Winnipeg for having brought this to the attention of the House. As a starting point for this debate, let me note that the government agrees that wage protection is deserving of attention. I can also tell the House that the government is actively exploring options in order to deal with this important issue.
To better assess the bill, let me describe the features of the current act. To protect employees, the Bankruptcy and Insolvency Act makes employees preferred creditors when their employer goes bankrupt. That places them ahead of ordinary creditors but behind secured creditors. This preferred status is limited to $2,000 in wages earned in the six months before bankruptcy, including vacation pay. Amounts in excess of $2,000 remain as ordinary claims. It also protects up to $1,000 in disbursements for sales people.
The provision for wage liability also exists in the Canada Business Corporations Act. Right now directors of corporations are jointly and severally liable to employees for six months wages in the event of a bankruptcy. This is an absolute liability.
Bill C-281 would radically alter the situation. It fails in some ways to reflect the many other parties in a bankruptcy. Bill C-281 proposes to give unlimited super priority protection to all employment-related claims. In addition to wages and vacation pay, it would add termination and severance pay and other benefits. It would also add protection for pensions, including unfunded liability. In that respect, I personally have some sympathy for that aspect of the bill.
Upon bankruptcy, these claims would be moved ahead of all other creditors. For any shortfalls in recovery, directors of a company would have personal liability that would be determined, not in court but by an adjudicator, without right of appeal.
There are a great many drawbacks to this bill.
The amount of the termination and severance pay and unfunded pension plan liability could far exceed the total wages owing, potentially reaching several billions. As a result, this super priority will, without a doubt, have a negative impact on credit availability and commercial loan rates, which will make business start ups or expansions more difficult than ever, in a number of situations.
As for the clauses relating to directors' responsibilities, the bill does not add very much, except to set in place a parallel system without some of the usual recourses. Regardless of cost, the standard of rigour imposed by absolute liability would justify the existence of guidelines compatible with formal legal procedures.
Bill C-281 puts pension claims in the same basket as wage claims, despite the fact that pensions are covered by separate legislative regimes, and in a number of instances by provincial legislation. Mechanisms making it possible to address pension issues are already in place in these forums, and concerns relating to unfunded pension liabilities should be raised there to ensure employee protection.
Finally, even with this type of protection in place, payments would not be guaranteed, nor would they be made promptly. Many stakeholders maintain that the promptness and certainty of payment are essential to worker protection. Creation of a wage protection fund is one valid option, which merits a thorough study, along with super priority and other factors.
The significance of this bill is that while it does go a great deal further in protecting workers, the scope of what it includes shifts an unreasonable burden to other stakeholders. As a result, it could have a detrimental impact on the ability of businesses to access credit and increase employment opportunities for Canadians.
This is not what our insolvency system is about. Bankruptcy laws are a significant part of our marketplace framework. The bill would have a negative effect on commercial activity. Creditors grant credit based upon the assessment of risk. Bill C-281 would significantly increase that risk. While some of the creditors who may be adversely affected are those often thought of as being able to take care of themselves, such as large institutions, some are individual contractors and small businesses that are no better able to face the loss than employees.
In fact, small businesses and new start-ups are two of the most vulnerable groups when it comes to insolvency because they are hit twice. As creditors, they cannot afford the greater losses that the bill would cause. Greater costs of borrowing as debtors makes it less likely that they can get started and thus create jobs.
We must be mindful of these effects, as we all know the importance to the Canadian economy of small and mid-sized enterprises.
Our system must respect the risks taken by small businesses and independent contractors that also have claims in bankruptcies. It must respect the security interests of creditors. It must respect the efforts of directors who try to ensure the survival of the company. And yes, it certainly must respect employees. The fact is that bankruptcy is about not having enough money to go around. The issue is how best to allocate that shortfall when everyone deserves to be paid.
I am not saying that superpriority should be rejected as a way of handling wage and pension contribution claims in bankruptcy, but I am stressing that it is a complex issue, that it has a long history and that it involves certain trade-offs. The economic effect of any change needs to be thoroughly considered.
Last year, the Senate Standing Committee on Banking, Trade and Commerce conducted a comprehensive review of our insolvency system. The committee only went so far as to recommend that the existing protection be elevated to a limited superpriority over some assets. It further recommended that pensions not be included in this form of protection and in that aspect I think it did not go too far.
To conclude, I have sketched out these details to make a simple point clear to my hon. colleagues of various stripes.
My point is that this whole issue of wage earner protection in the event of a bankruptcy is of great interest and must be addressed. However, to find a fairer solution than what currently exists will require a great deal of work and thought. The process is already well underway but is not yet complete. The solution put forward in Bill C-281 is neither practical nor reasonable in certain circumstances, because of its impact on other stakeholders.
As I indicated at the beginning, this is not a partisan issue. Different governments have been confronted with this issue, which must be resolved. In 1991, a bill was introduced to establish a wage claim protection program to be financed through payroll, but it was not passed. There are various models for increasing protections, and these were discussed during the period before the amendment of the Bankruptcy and Insolvency Act in 1997. But once again, consensus could not be achieved.
Still, and I stress this point again, while Bill C-281 is certainly well intentioned, it is definitely not the best solution.
Industry Canada is currently working on developing a fair solution to ensure the protection of workers whose employer has declared bankruptcy. Until such time as this work is complete, the government cannot support a bill to amend existing safeguards.
However, I give my personal pledge to work with my hon. colleague to find a solution that is fair to all those involved.