Second reading of Bill C-525, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act (certification and revocation — bargaining agent)Published on 28 October 2014 Hansard and Statements by Senator Joan Fraser (retired)
Hon. Joan Fraser (Deputy Leader of the Opposition):
Colleagues, this is another supposedly private member’s bill, which is supported by the government, having to do with unions and with labour relations.
Some years ago, in 1995, the last time, as far as I know, that there was a serious reassessment of Part I of the Canada Labour Code, the body doing that assessment under Mr. Andrew Sims, a recognized expert in this field, reported, and the report was called Seeking a Balance. It said many wise things that are applicable not only to the Canada Labour Code but also to the other two pieces of legislation that this bill would amend.
The first thing I want to quote from the Sims report is this:
A labour code must be careful to maintain the natural balance of power. Any legislative scheme which tips that balance leads to uncertainty, instability and discontent.
In my view, this bill does upset that balance; and in my view, it does so, once again, in an anti-union direction. The thumb on the scale is always on one side.
Unions are not perfect; of course they’re not perfect. Unions are human institutions, and, like any human institution, they can have their imperfections. But, as Senator Ringuette pointed out in the case of Bill C-377, we have an array of laws to address abuses.
I have heard some colleagues say we need Bill C-525 because of what we’ve learned through the Charbonneau Commission in Quebec. With respect, I do not think that argument holds water. The worst things we’ve learned through the Charbonneau Commission in Quebec have to do with organized crime, very serious things indeed that we have learned. However, of the allegations that were made affecting labour unions, to the best of my knowledge, not one covered territory that was not already the subject of the law. We have laws. The question is: Are we going to make them be obeyed?
In general, however, imperfect though they may be, unions have been a tremendous force for good in our society. They have won, for all of us, not just for their members, extraordinary benefits, everything from equal pay for equal work to sometimes inadequate but precious legislation on workplace safety. We all have benefited from these things.
In general, they have come initially through the collective bargaining process. More important perhaps, unions and the collective bargaining process have brought a degree of stability, cooperation and confidence to our workplaces and, therefore, to society at large.
Over the years, labour relations have evolved to become a system of very considerable complexity, and for good reason. These are complex matters involving the striking of that balance that the Sims report referred to. A hallmark of good labour relations is consultation, cooperation, mutual understanding, and mutual ability to reach a compromise that will not be unfair to either side, to the workers or to the employers.
What will this bill do? It sounds good. It will call for mandatory secret ballots for certification or decertification of bargaining agents in workplaces within the federal jurisdiction. Secret ballot always sounds terrific, particularly to people who are engaged in politics. The secret ballot is the basis of the system upon which we as politicians have built our democracy; but, in fact, this bill is, as I suggested, fundamentally a piece of anti-union legislation, and it is a potentially dangerous tinkering with that complex system.
Let me describe to honourable senators the current system for certification of a bargaining agent in the federal jurisdiction. It’s what’s known as the “card-check model.” A union that wishes to unionize and gain recognition as representing a given workplace, a given collection of workers within a given workplace, tries to get them to sign cards, to sign union membership cards. That’s why it’s called a card check. If the union succeeds in getting 50 per cent plus one of the members of that particular workplace or unit within a workplace to sign, then certification is automatic — the majority rules.
If between 35 and 50 per cent of the workers involved sign a card check, then the Canada Industrial Relations Board must hold a vote, and that vote will be by secret ballot. If sufficient numbers vote “yes,” then the union will be certified as the bargaining agent for those workers.
Under this bill, a secret ballot administered by the board would be, as I said, mandatory for any certification or decertification, and the threshold for holding that secret ballot is raised from 35 per cent under the present system to 40 per cent.
Well, why are we doing this? What is the rationale? What is the motivation? The MP who presented this bill, Mr. Blaine Calkins, says essentially that it is designed to reduce the intimidation of workers by unions. Mr. Calkins, in his remarks to the House of Commons, used quite inflammatory language. He talked about things like big union bosses, strangleholds on workers, unions muzzling workers’ democratic voice, and unions being driven by the need for power. There’s a revolutionary concept. Politicians are never driven by the need for power, nor is anybody else — only unions, right?
Mr. Calkins also said that the Canada Industrial Relations Board has received a mountain of complaints about intimidation by unions of workers when the unions were trying to be certified. Well, not quite. The Chairperson of the Canada Industrial Relations Board is Ms. Elizabeth MacPherson, and she told the House of Commons committee that there have been only two — two — founded complaints of unfair labour practices by unions in the past 10 years. That is two out of 4,000 decisions rendered by the board.
Ms. MacPherson said, in what I consider a masterpiece of understatement, that “it’s not a huge problem.” The fact is nobody — nobody — none of the relevant parties asked for this bill or thinks it addresses a genuine pressing problem, not the unions, not the employers and not the board. In fact, they weren’t even consulted about whether this bill was desirable. In fact, everyone who actually understands labour relations is warning about the dangers of using a private member’s bill to tinker with one element of a complex and delicate system.
You don’t have to take my word for it. Listen to Mr. John Farrell, executive director of the largest federal employer group, FETCO. He told the house committee:
We believe that the use of private member’s bills sets the federal jurisdiction on a dangerous course, where, without adequate consultation or support, unnecessary or unworkable proposals come into law, and the balance, which is so important to the stability of labour relations, is upset. We strongly believe that it is not in the long-term best interests of Canadian employers and their employees, and it has the potential to needlessly impact the economy by destabilizing the basic foundation of union-management relations.
So what will the real effects of this bill be? I think it’s helpful to look at the record in jurisdictions that already have this mandatory secret ballot system. That includes several Canadian provinces, as well as various jurisdictions in the United States.
Study after study shows two effects. One is that there are fewer applications for certification; another is that the success rate of those applications that are made diminishes.
It depends on the specifics of the system in each jurisdiction how severe the impact is, but one particularly pernicious element of this bill is that it sets no deadline for the holding of these secret ballots. That is very dangerous, because it does allow time for intimidation to occur between the initial drive to have the cards signed and the time the ballot is actually held.
Here is a news flash, colleagues: Intimidation is at least as likely and often more likely on the part of the employer than on the part of the union. The basic reason for that is that it is the employer who has the power of the purse, and we know — I expect many in this room have seen; certainly I have seen — about very serious examples of employer intimidation and of people being fired because they dared to try to organize a union in their workplace. Employers have everybody watch a video about how dangerous it is to unionize and how it could lead to layoffs and maybe even to the closure of your plant or your office, and the removal of the work that you do today to some nice, safe, non-union jurisdiction overseas, or in the southern states, or wherever. These things happen. They actually happen.
That is probably one reason why, according to Professor Sara Slinn, Assistant Professor of Law at Queen’s University, delay is a well-known union avoidance tactic of employers. What is the effect of delay? Well, in Canada, we don’t have that much to go on because in the provincial jurisdictions there do tend to be deadlines. For example, in Ontario, the secret ballot must be held within five working days of the application for certification. In the United States, however, there are various jurisdictions that have no such deadline. I quote again from Professor Slinn:
Under the American vote-based system, there is ample empirical evidence that applications with longer processing times are significantly less likely to result in certification. Studies have found that the proportion of elections won by unions declines significantly with each month of delay and even with each additional day.
I have to assume that Mr. Calkins was aware of these facts, which lends some credence to the view that the purpose of this bill is not in fact to create balance but, rather, to upset balance because it leans consistently against the capacity of unions to gain the right to represent honest workers.
Then there’s a question of what these new demands will do to the Canada Industrial Relations Board. It’s not a very big outfit, you know. Already last year, the average processing time for certifications by the board was 157 days. What’s it going to be like if they find themselves having to hold a vote in every single application, even if 85 or 90 per cent of the workers affected have signed a card saying yes, I want to be represented by this union? My fearless prediction is that we’re going to see long delays because there is no provision in this bill for increased resources for the board, nor can there be such provision because this is a private member’s bill.
We say it’s a private member’s bill and technically it is. It has been made very plain that this bill has the support of the government. I find that very sad; truly sad.
Let me conclude with another quotation from Andrew Sims’ report in 1995. That report set out various criteria for any reform to the Canada Labour Code and, I would argue, for the other pieces of federal legislation affecting labour relations. Here are the first two of those criteria:
- Consensus has been achieved by the parties regarding the need for and the nature of the reform that is consistent with the public interest.
- There is a demonstrated area where the existing law is no longer working or no longer in line with public policy.
No such consensus has been achieved or even sought on this bill. As for demonstrated need, the only demonstrated need I can see is a perceived need on the part of government to minimize the role of unions in our society. I do not consider that to be the kind of noble goal that Parliament should be engaged in.
It will not surprise you, colleagues, to hear that I cannot possibly support this bill. I expect that it will receive second reading and I trust that it will be given thorough study in committee because its manifold flaws need to be studied by this Senate.
Hon. Jane Cordy: Senator Fraser, would you take a question?
Senator Fraser: Yes.
Senator Cordy: This afternoon we have had two government bills on the agenda to break unions that are both masquerading as private member’s bills. Both Senator Ringuette and Senator Fraser did an excellent job.
You hear all these people talking about their bedside reading and asking, “What’s the book on your night table?” Mine is the book called Miners and Steelworkers: Labour in Cape Breton, written by Paul MacEwan, a former MLA and Speaker in Nova Scotia. It talks about the importance of the unions to Cape Breton, the coal miners and the conditions that they had to go through, and how the unions were the ones that brought better working conditions and better salaries for the miners.
If you read about the history of Cape Breton, the army was actually brought in to put the workers back to work. When they were on strike, the miners were put out of their homes because they were company homes. Furthermore, they were not allowed to purchase things at the company store because their credit was taken away from them.
What I find interesting with both bills — and I know that you can answer only for your bill — is that Bill S-377 was brought in by Russ Hiebert and your bill was brought in by Blaine Calkins. In neither case was there a necessity for the bill — neither bill — because Mr. Hiebert didn’t have any complaints about what was happening in terms of expenditures of unions and union members were actually quite happy with the openness and accountability, but he felt he should do it.
In your case — and you spoke about it, so I wonder if you could go on — you said that Mr. Calkins said there were mountains of complaints. You said that according to the Canadian Industrial Relations Board, there were two founded complaints over the past 10 years out of 4,000 decisions in the last 10 years.
Why do you believe that, both in the case of Mr. Calkins and in the case of Mr. Hiebert, they have misled parliamentarians by bringing in this information?
Senator Fraser: I have some slight acquaintance with both of these gentlemen, and I believe it is probable that in both cases they are acting out of conviction. I would suggest, at least in the case of the bill I was addressing today, that conviction has not been backed up by very solid research. In the case of Bill C-377, it suggests to me that rather more research has been done but that the ideological lens through which the issue has been approached has really distorted, tremendously distorted, the resultant bill.
In this case, I do not know why Mr. Calkins referred to a mountain of complaints. Maybe he was carried away. He says he has personally received some complaints. I’m sure we’ve all received some complaints about all kinds of things. People do tend to turn to their parliamentarians when they believe they have a grievance. Sometimes we listen and think that this grievance is genuinely the tip of an iceberg. Sometimes we listen and say that the grievance is founded but that it’s an individual case; we don’t actually have to revise the whole legal system of the country to address it. Sometimes we say, in the words that a colleague of mine used to use, “I’m terribly sorry, but your problem is not one that I can solve.”
I don’t know who complained or how many complained to Mr. Calkins. I am absolutely persuaded, however, that, as I say, his research was inadequate and that his approach, in this bill, is just dead wrong.