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Bill C-4 (Labour Relations) - Third Reading

Honourable senators, I rise today to speak about Bill C-4, which in my view would restore a fair and balanced approach to labour relations in Canada by repealing the provisions enacted by two private members' bills during the last session of Parliament. We know the numbers well by this point: Bill C-525 and Bill C-377.

I was concerned about these bills when they were introduced and passed, so I'm delighted to have the opportunity to revisit them now.

As you know, Bill C-525 removed the ability of workers to approve trade union representation where more than 50 per cent of employees sign a union membership card, requiring instead a mandatory vote in every case, thus making it more difficult to certify unions.

Bill C-377 imposed excessive public reporting rules on unions with respect to salaries, expenses over $5,000 — including public release of the names and addresses of anyone whose goods unions purchase — and reporting on union spending and political activities.

I want to raise a number of points about the impact of these two bills, both from the process point of view and the substance of the amendments. It was interesting, Senator Bellemare's background. A little bit about my background:

My perspective here is informed by 33 years of involvement in labour and employment relations and labour and employment policy on every side and in the middle, as a labour representative, a senior manager, a manager responsible for public-sector labour policy, as a Deputy Minister of Labour and, more recently, as a mediator in major public sector labour disputes. My first point is this: That we have labour and employment laws in Canada to address the inequality in power between employers and employees in workplaces. That has been recognized by the Supreme Court in this country.

This is the case regardless of labour policy field. It's not just about labour relations. It's the case in employment standards law and in workplace health and safety legislation.

This is why we have labour laws. It addresses inequality in workplaces.

This sort of regulation of relationships between employers and workers has been finely tuned over decades and has always been aided through consultation and consensus building. With respect to the federal statutes we're talking about today, this was the case in Andrew Sims' 1995 review of federal labour legislation and the 2010 expert panel review of workplace health and safety in Ontario, which I had the privilege to chair.

In that expert panel review, consensus was reached by employers, unions and academic experts, and it was followed by all-party support for that legislation in Ontario's legislature.

There's commonality of view on this on the part of those with lengthy experience in public-sector labour relations. George Smith spent 37 years on the employer side of bargaining in the federal public sector and is now adjunct professor at the school of industrial relations and business at Queen's University. Mr. Smith told MPs at the committee stage that Bill C-525 flies in the face of decades of consultative and consensus-based reform recognized by Liberal and Conservative governments which recognize the complex world of labour relations.

The point here is that neither of the Conservative private members' bills were informed by any effort to consult the major workplace parties or to find any degree of consensus between obviously competing interests.

My second point emerges from the primary imbalance of power in workplaces, which is between employers and workers. In labour-relations regimes, especially the processes involving union certification, this power imbalance is very much in evidence.

This is particularly the case where mandatory certification votes are required, as these are often held on the employer's premises and can involve active employer involvement, in which intimidation is often disguised as just providing information.

Simply put, workplaces do not offer neutral ground for discussion and decision-making on workplace rights. That is not a reality.

Make no mistake, when employers choose to intervene in these processes, they do so in a highly sophisticated and sometimes brutal way, backed by highly specialized law firms and well-funded lobbying groups, including some U.S. organizations who advocate for so-called right-to-work laws.

Some employers opposed to union representation will go to considerable lengths to influence a certification campaign, including threatening and intimidating their employees and threatening job losses and plant closures.

The more vulnerable workers are, the fewer choices that they have, the less mobility they have, the greater the impact of employer intervention will be, and that intervention will affect the very workers who would probably benefit the most from collective representation.

In my experience, employers who act in this fashion are also likely to operate at the boundaries of employment standards and workplace health and safety laws. It doesn't stop at labour relations law.

But examples of inappropriate actions by even large Canadian employers were cited by witnesses at Bill C-525 committee hearings.

The more complex mandatory voting systems are, the longer they take, and the more opportunity is provided for employer environment and challenges at each point in the process. This, in fact, seems to have been consciously designed into Bill C-525, which also requires a majority of employees in the bargaining unit to vote in favour of certification as opposed to a simple majority of those choosing to vote. A recent failed certification process at a major Canadian airline, in which the employer was actively involved in challenging evidence of employee support, has been cited as a potential casualty of Bill C-525.

It will strike many observers that, while these private members' bills were justified by their proponents as being necessary to protect workers from trade unions, they were more likely designed to tip the balance in certification drives toward employers.

In fact, it's kind of notable that, if you hear those who were the major proponents talking in favour of employee rights with respect to these bills, it is very much the unique exception.

I'll point out the obvious. Proponents of these bills may have supported Bill C-525 and Bill C-377, but you will not hear them standing up in support of an increase in the minimum wage. You will not hear them stand up in support of improving employment standards law. You will not see them stand up in reviews of workplace health and safety legislation and say, "This is the right thing to do for workers." This is quite unique.

Testimony by the Canadian Labour Congress tends to support this. As opposed to the impression created by proponents of Bill C-525 concerning union intimidation of workers during certification applications, Canada Labour Board reports demonstrate that most cases of intimidation against workers in certification drives involve employers.

In any event, this is not to say that there are not cases of inappropriate union behaviour. But, in any event, under the pre-existing legislation, where the labour board found evidence of any undue union coercion, it had the power to order a formal certification vote, and this would be restored under Bill C-4.

I now turn briefly to Bill C-377, the companion piece to Bill C-525. This legislation too was shrouded in the discourse of workplace democracy and the protection of workers. The bill, too, was uninformed by research or consultations, and there was certainly no effort to reach any degree of consensus.

Unlike Bill C-525, there might actually have been a question to answer here about the degree and nature of financial disclosure that union members should receive as a matter of course, and that was raised here a few minutes ago, although I anticipate that some unions are much more proactive than others in this regard.

The problem is that this sort of inquiry clearly didn't occur. In fact, it was questionable as to whether this effort was truly designed with workers in mind as much as it was an ideological assault on the so-called "union bosses" that we heard about so frequently during and prior to 2015.

Bill C-377 sets out extremely rigid requirements and prescribed formats of financial reporting to the degree that suggestions have been made that it placed a cost burden of tens of millions of dollars on the government and unions in order to comply with and regulate an unnecessarily burdensome process. Some have argued that Bill C-377 has paradoxically resulted in a waste of tax dollars and union dues, and that it adds excessive amounts of unnecessary red tape.

It would lead us to wonder why this bill required considerably more financial disclosure from unions than is required from corporations or the charitable organizations they were compared to by proponents of the legislation.

Bills C-525 and C-377 were not informed by broader policy considerations, consultations or any effort to find consensus in an area of law and regulation that has been the subject of careful balancing of rights and responsibilities over several decades.

The binding thread between these bills — and make no mistake, these bills go hand in hand — was an effort to reduce the viability of legally functioning trade unions in Canada's federal public sector.

Colleagues, we'd all accept that crafting and passing these bills was at the time a legitimate political choice made by the government of the day and that must certainly be respected. But at the same time it's often the fate of ideologically driven policies, fashioned without the active involvement of those affected by them, to be continually contested by those whose voices were excluded. This is one of those cases.

For all of these reasons I support the objective of Bill C-4 to repeal the changes brought about by Bills C-525 and C-377 and in doing so to restore a greater degree of balance in Canada's federal labour codes.

From a public policy perspective and in the interests of harmonious labour relations, I think this is the right thing to do. And, honourable senators, if Bill C-4 had not emerged from the other place, I have little doubt the issues would have been raised here in this chamber, likely by me and by others, and justifiably so. Thank you.