Third reading of Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax ActPublished on 2 March 2017 by Senator
Hon. Joseph A. Day (Leader of the Senate Liberals):
Honourable colleagues, let me start by congratulating the open- mindedness of Senator Plett with respect to Bill C-16 and agreeing that the bill is deserving of further and thorough debate at committee.
Honourable senators, I’m going to be speaking today with respect to Bill C-4.Bill C-4 is not a very extensive bill, but it has profound implications in a particular area, namely, the labour movement in Canada.
To set the stage, let me read the summary that appears in Bill C- 4:
This enactment amends the Canada Labour Code, the Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act to restore the procedures for the certification and the revocation of certification of bargaining agents that existed before June 16, 2015.
It goes on to say:
It also amends the Income Tax Act to remove from that Act the requirement that labour organizations and labour trusts provide annually to the Minister of National Revenue certain information returns containing specific information that would be made available to the public.
Those two groups of provisions appear in this bill. With a check of the provisions, one will see that the first part of the summary was Bill C-525, which was passed and then came into force on June 16, 2015. Bill C-377 was also a separate bill but dealt with the same general subject matter, so it was deemed expedient by the current government to put the subject matter of both of those bills into Bill C-4.
Like other honourable senators have done, I will refer to Bill C- 377 and Bill C-525, because that is the convenient way to refer to the debate that had taken place previously. Those two older bills are reflected in Bill C-4, which is in fact proposing to revoke those two previous bills.
Honourable senators, I would like to add my voice in support of Bill C-4. Bill C-377 and Bill C-525 were passed in the last Parliament. I will address each of these bills separately and will undoubtedly emphasize some of the points that have been made previously by honourable colleagues. But hopefully I will also touch on why I believe it appropriate to revoke Bill C-377 and Bill C-525.
I’ll start with the provisions that were in Bill C-377. This bill is very familiar to those senators who were in this chamber in the previous Parliament. It was a private member’s bill from the other place. That bill purported to amend the Income Tax Act but was considered by many in this chamber and elsewhere to be actually a thinly disguised attack on the labour unions and the labour union movement in this country.
The current Minister of Labour, Patricia Hajdu, described it well when she appeared before the Legal and Constitutional Affairs Committee just last month to speak on Bill C-4. She said:
The perspective of this government is first that Bill C-377 is unconstitutional, that it was not a fair and balanced approach, and that it in fact undermined the integrity of the unions and put them at a disadvantage that could weaken the labour movement in Canada.
Carrying on with the quote:
[Bill C-377] was designed to actually diminish the strength of unions. We believe —
—as an aside, she’s talking about the current government —
—that a strong union movement in Canada is essential to maintaining the middle class that we have, growing it to include others, and reducing income inequality in Canada.
I agree with the minister in relation to that earlier legislation, Bill C-377. I spoke on that and expressed that view when the bill was before us three or four years ago.
Many of us on both sides of this chamber at that time were deeply troubled by Bill C-377, going back to when it was first tabled in this place in 2012. It called for an unprecedented invasion of Canadians’ privacy and wreaked havoc with a balance that is so critical in healthy labour relations.
Meanwhile, it was unnecessary — a solution in search of a problem. Union members already can already obtain the financial disclosure they need from their unions. So it wasn’t for the union members to be informed; it was for the broader public to be informed about what was going on in unions.
Last but most definitely not least, it became clear that the bill was unconstitutional, dealing with a matter within provincial, and not federal, jurisdiction. Indeed, seven provinces representing over 80 per cent of the Canadian population came forward to oppose Bill C-377 and urged us not to pass it.
One could spend several hours detailing the many problems with the bill. My time is limited, but I would commend to our newer colleagues in the chamber that they read the Debates of the Senate with respect to Bill C-377 to get a sense of the many frankly shocking problems with that legislation when it was passed. For now, I will highlight just a few examples that may provide you with some insight as to why many of us found the bill so egregious.
The bill singled out a number of people who work for labour unions. And the bill was not limited to national offices of labour unions but included every union local, however small, and imposed on them unprecedented obligations of public disclosure of their highly personal financial information. These requirements applied to officers, directors and employees earning over $100,000 per year and — here’s the important part — also to “. . . persons in positions of authority who would reasonably be expected to have, in the ordinary course, access to material information about the business, operations, assets or revenue of the labour organization or labour trust . . . .”
Colleagues, under this definition, we could be describing a union steward in your small town or in your area, earning something less than $30,000 a year. We could be describing a part- time assistant who has access to a filing cabinet and a key.
Going on, the bill then required all of these people to publicly disclose a long list of highly personal financial information, including their individual salaries, their benefits, and any bonuses they might have received.
And all this, with their name attached, was to be posted on the Internet for their neighbours, relatives, office colleagues and, in fact, the whole world to see.
This isn’t transparency; it is voyeurism, and we felt that at the time. You can understand why many suspected that these new requirements were really all about discouraging anyone from being part of, or working for, a union.
That was not all, honourable colleagues. These same individuals were required to post a statement of the amount of time that each spent on “political activities, lobbying activities and other non- labour relations activities,” and to post all that information on the Internet for the world to see, including maybe another union that wished to raid that particular union, or maybe their employers with whom they had to bargain in the next while.
Colleagues, a person’s right to engage in political activities is the foundation of a healthy democracy. That is a right that is, and must remain, sacrosanct to all Canadians, whether they are the CEO of a multi-billion dollar corporation or the union steward in a small local in a rural community.
And what does it mean to require individuals to report and to post on the Internet details — and this is in the legislation — of their time on “other non-labour relations activities”?
I repeat, that information was required by the legislation to be posted for all to see. The bill didn’t limit its application to the employee’s working hours, so from a plain reading, the bill required all these people to monitor and then disclose the details of their private lives and their private activities, just because, during the day, they worked for a labour union, or they were part of a labour union.
Successive privacy commissioners came forward to voice their concerns with respect to the bill at the time. The then-Privacy Commissioner, Jennifer Stoddart, referred to the “significant invasion” of privacy that was effected under the bill.
The present Privacy Commissioner, Daniel Therrien, was equally blunt. He recently told the other place, during its consideration of Bill C-4, which is now before us, that Bill C- 377 was “disproportionately intrusive from a privacy perspective.” Privacy Commissioner Therrien was very clear that he supports Bill C-4 because it will remove these provisions from our law.
As I said, seven provinces, representing over 80 per cent of Canada’s population and every region of our country came forward to oppose passage of the bill.
Let me read to you from some of the provincial submissions we received during consideration of Bill C-377.
The Government of Nova Scotia wrote:
This bill has the potential to disrupt collective bargaining at a time when we need greater cooperation between governments, organized labour and business to resolve our economic challenges.
Indeed, the Minister of Labour for the then-government of Nova Scotia took the time to come to Ottawa to testify in opposition to the bill. That was on June 6, 2013. He told our Banking Committee that Bill C-377 was so disruptive to collective bargaining that it was like ” . . . a grenade in the room of collective bargaining.”
The Ontario government was equally clear, writing:
This bill has the potential to drastically derail collective bargaining in Ontario. In these tough economic times we need governments, organized labour, and management to work together, and this bill would needlessly intervene in that process.
Continuing with the quote:
Balance is essential. Putting a thumb on the scale in either direction damages this delicate balance. By imposing unnecessary and draconian costs on one side, and not the other, this bill might unbalance that scale.
We heard from the Government of Manitoba who sounded the same caution.
[T]he Bill’s requirement to publicly disclose confidential financial information will likely unbalance and seriously disrupt labour relations between employers and unions, and adversely affect the collective bargaining process in Manitoba. It is not clear what benefit, if any, this Bill offers that would counter the harm it will do to our labour relations climate, our economy, and our communities.
Honourable colleagues, we heard from provincial governments of all political stripes — Liberal, NDP and Conservative — and all sounded the same warnings and urged us not to pass that legislation.
These were messages many of us took to heart. We were further troubled when leading constitutional experts came to testify, questioning whether the Parliament of Canada had the constitutional power to pass Bill C-377.
Bruce Ryder, a constitutional law professor from Osgoode Hall Law School, testified very powerfully. He said:
I am here to share the bad news that Bill C-377 is beyond the legislative jurisdiction of the Parliament of Canada. Its dominant characteristic is the regulation of the activities of labour organizations, a matter that falls predominantly within provincial jurisdiction to pass laws in relation to property and civil rights pursuant to section 92.13 of the Constitution Act, 1867. If Bill C-377 is passed by Parliament, it will be declared unconstitutional and of no force and effect by the courts.
Professor Ryder recently appeared before our Legal and Constitutional Affairs Committee with respect to Bill C-4, and he repeated his conclusion that the provisions of Bill C-377 were, and continue to be, unconstitutional.
He told our committee that the Income Tax Act, under which this legislation purported to fall, was being used as a Trojan Horse for legislation that was really about labour organizations. A Trojan Horse, honourable colleagues. Surely that is not how any one of us would wish our laws to be described.
Michael Mazzuca testified in the other place on behalf of the Canadian Bar Association, the association that represents virtually all of the practicing lawyers in Canada. He said:
The CBA remains of the opinion that Bill C-377 was fundamentally flawed and it triggered serious concerns from a privacy, constitutional law, and pension law perspective.
He went on to say:
The CBA believes Bill C-377 lacked an appropriate balance between any legitimate public goals and the respect for private interests protected by law.
When he spoke at second reading on Bill C-4 on November 3, 2016, Senator Cowan described the machinations that were employed to finally have Bill C-377 passed by this chamber.
Honourable senators are probably wondering, having heard the comments I have made, why we ever passed the bill at that time. I would commend you to read either the speech by Senator Cowan on November 3 of last year or the debates that took place when we were dealing with Bill C-377. It was not a proud moment in our history.
Happily, with Bill C-4, we have the opportunity to rectify what happened. Bill C-377 should never have become law and we can and we should repeal it. And that is precisely what we can do with Bill C-4.
The other unfortunate private member’s bill that Bill C-4 repeals is Bill C-525. I mentioned to you at the beginning that they were grouped together because they were both private members’ bills, and they both dealt with the labour movement in what the current government believes to be an undesirable way. I support the current government on this particular initiative.
Bill C-525 amended the federal labour laws, that is the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, and the Public Service Labour Relations Act. It changed the procedures under which a union can be certified and conversely decertified, moving from a card-check system, which had been working well over a good number of years, to a mandatory secret ballot, a mandatory vote.
Colleagues, no one was clamouring for this change. FETCO, which stands for Federally Regulated Employers – Transportation and Communication, is an employers’ group, an association representing all federally regulated firms in the transportation and communication sectors. In their words, they are “the who’s who in the federal sector,” representing companies such as Air Canada, Bell, CN, CP Rail and TELUS, to name but a few. In other words, they are the major representatives of the management side in federal labour relations.
FETCO was very clear in their testimony. They did not ask for private member’s Bill C-525. In fact, they believed that Bill C-525, and Bill C-377 by the way, resulted from, in their words, “an inappropriate process.” Now, to be clear, as the representatives of management, they liked the result of Bill C-525, but that could not overcome their deep concerns about the manner in which the bill was enacted.
Colleagues, all of us know that healthy labour relations depend on a critical balance between labour and management. In federal labour relations, this has been achieved and maintained for decades through a carefully structured tripartite consultative mechanism that brings together the three key stakeholders — government, which also passes the laws, labour and management. To consult ahead of time about changes to federal labour laws that will impact this essential balance.
This process was broken with respect to Bill C-525. There was no consultation, no attempt to discuss and build agreement on the proposed changes beforehand. Instead, they were simply imposed upon the parties by a private member’s bill. That alone would have been reason to reject the bill and return the process to the one that had been achieved under the tripartite system. But there is more, honourable senators.
The sponsor of the bill in the other place argued that the bill was needed because there was, in his words, a “mountain of complaints that end up at the labour relations board.” That is a very disturbing statement and a serious charge, but, honourable senators, it’s not true.
The chairperson of the Canada Industrial Relations Board testified before our Legal and Constitutional Affairs Committee on Bill C-4. She told our committee that in the 10 years from 2004 to 2014, the board dealt with 23 cases involving allegations of intimidation or coercion during an organizing campaign, and of these only six were upheld as being well-founded.
Six cases over 10 years, honourable senators, is a pretty small mountain — more like an uneven patch of grass on a well-tended field. And, by the way, of those six cases, four were intimidation that was proved involving intimidation and coercion by the employer and not the unions to which all the legislation was directed.
To make matters worse, since June 2015, when the bill became law, the number of unfair labour practice complaints that are directly related to applications for certification or decertification have exploded. The legislation was intended to deal with a fictitious pile of complaints that didn’t exist and now they do exist. Twenty-six unfair labour practice complaints have been received since Bill C-525 came into force. So one can see how the nice equilibrium and balance has been lost as a result of this legislation. While we had 23 complaints in 10 years under the previous system, we had 26 complaints in less than 2 years under the new regime. This is not progress, by any definition.
But, colleagues, there is one other matter that we learned about recently that should and I believe does concern us. After the 2015 election, the new Minister of Labour discovered that officials in her department had produced a report back in November of 2013 examining the link between the adoption of a mandatory voting certification system and unionization, or, as the report expressed it, the “decline in business sector union density.”
The report found a clear link. It found that the use of the mandatory voting regime —the secret ballot process imposed with the new legislation — had been an important factor in the decline in the level of union membership in the Canadian business sector.
This Government of Canada study concluded that introduction of mandatory voting, the change proposed in Bill C-525, would reduce unionization. That was in November of 2013.
Bill C-525 passed the other place on April 9, 2014. The report was in existence. That information was available but never made available to those who had to vote on this initiative.
The bill came to the Senate the next day, where it was debated and studied for several months before finally being passed on December 16, 2014. But we never saw that report. The department study was never made public. We only learned about it now because the new minister found it in her department and was made aware of it by her department officials after the change of government.
Colleagues, there are many problems with the substance and the process of both Bill C-377 and Bill C-525, and the provisions that are now law that we are seeking to change with Bill C-4.
This is not the kind of labour relations we need in Canada, and this is not how labour legislation should be passed in the first place. Colleagues, I strongly support Bill C-4. I undertook, at the time that Bill C-377 and Bill C-525 were passed, to be there to challenge them at the first opportunity. This is our opportunity.