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Canada Labour Code Review Task Force Regarding Reform of the Canada Labour Code (Nov. 1995) The Alberta Federation of Labour welcomes this opportunity to present its views on the Canada Labour Code. As a Federation, the views expressed will, of necessity, mirror and support the positions of our affiliated locals that fall within the jurisdiction of the federal Code. Although the direct interest of that portion of our membership (approximately one-sixth) in the outcome of these hearings is obvious, all of our 112,000 members have a legitimate interest in this review. Federal labour legislation has always established a standard by which provincial legislation can be measured and judged. A strengthening of workers and union rights at the federal level would send an important signal to provinces like Alberta where restrictive labour legislation is already in place and further erosions like ":right-to-work": legislation are being considered. Part 1 The Composition and Powers of the Board The Alberta Federation of Labour strongly recommends that the Canada Labour Relations Board be truly representative of the parties involved. Labour appointments should be drawn from candidates nominated by the labour movement and management appointments should be nominated by the business community. The Canadian Labour Congress and Canadian Federation of Labour could be given the responsibility of putting forward labour's nominees for the Board. The AFL recommends a Board composed of:
The Board should strive for regional and gender balance. Terms for appointment should not exceed five years. Regional part-time Board members should be selected from labour/management nominees as required. The major criticism of Board operations appears to be timeliness. There are several amendments that could be made that would streamline Board operations. We suggest that the powers of the Board be expanded to permit it to:
We also recommend that Section 14 be amended to permit a single person panel to hear and determine contested applications before the CLRB. Ministerial consent is currently required before a complaint of bad faith bargaining can be made. This is an awkward intrusion on administrative efficiency and ought to be removed as time consuming and unnecessary. Finally, the Code should be amended to permit binding first contract arbitration upon request of either party. First contract negotiations are extremely difficult, and are often the final stumbling block in the way of workers attempting to exercise their right to a union. Part 2 The Use of Strikebreakers ":During the strike, the employees are without a regular paycheque coming in. That is what is supposed to place economic pressure on them and their union to compromise. So also should the employer face the corresponding economic pressure that its operation has shut down and its revenues have stopped flowing in. In fact that is the typical situation in almost all strikes. But if this particular employer is able to use replacements to keep operating, then the absence of serious pressures on the employer to settle can produce a long and bitter strike, violence on the picket line, and a confrontation with the police, often ending with the union being broken (too often that being the employer's intent all along).": Paul Weiler, Reconcilable Differences, p. 77 Paul Weiler's observation (above) lays bare the basic argument over the use of strikebreakers. Currently the Mackenzie King Professor of Canadian Studies of Harvard Law School, Weiler based his observation upon his experience as Chair of the B.C. Labour Relations Board. Canadian industrial relations policy has always striven for peaceful, cooperative relations between employers and employees. That has generally meant trying to find ways to limit the conflict that it an inevitable consequence of the employers' drive to maximize profits and employees desire to maximize wages, benefits and leisure time. Since World War II, Canadian policy has generally favoured resolving this underlying conflict through economic sanction, or more generally, through the threat of economic sanction. Most negotiations are settled without strikes or lockouts, but never when replacement workers enter the picture. The use of strikebreakers disarms workers. It transforms the conflict from a dispute over distribution of income to a fight for survival of the union and retention of employment. Such conflicts breed physical confrontation and injury on picket lines, long-term alienation of workers and the intrusion of the courts and policy in employment relations. The Alberta Federation of Labour strongly urges a total ban on strikebreakers (scabs) in the Canada Labour Code. It will promote more cooperative industrial relations, reduce strikes and strike violence and establish a national norm of civilized labour relations. The AFL recognizes that any amendment banning strikebreakers would likely be accompanied by legislation providing for continuation of essential services. Such requirements should not allow any employer operations to continue save those which prevent a demonstrated danger to life, health or safety; the destruction or serious deterioration of physical plant; or serious environmental damage. The legislation should encourage a negotiated agreement between the two disputing parties on what constitutes 'essential services', and only force settlement when the two parties cannot agree. Part 3 Other Issues (A) Continuity of Bargaining Rights The current mania for privatization and contracting out has serious implications for unionized workers. The only aim of such initiatives too often appears to be the reduction of labour costs. The AFL believes the Code should be amended to ensure that successor rights are applicable to all transfers of workers under federal jurisdiction. (B) Certification The immediate certification of bargaining units in those cases where the Board decides an employer has engaged in unfair labour practices is the only effective way to overcome the ":chilling effect": of such employer actions on organizing drives. The Code should provide this power to the Board. Just as importantly, the Code should not be amended to require mandatory certification votes. The provision of a mandatory ":electioneering": period for employers that such votes provide has a demonstrated negative impact on certifications. It encourages employers to extent their immense worksite influence to counteract workers democratic rights to have a union. (C) Vote on Employers Offer This (Clause 108.1) is a completely unwarranted intrusion on a union's right to plan and implement their own bargaining strategies. It should be repealed. (D) Conciliation and Mediation Services The integration of Conciliation and Mediation Services within the personnel administration structure of Human Resources Development Canada damages the credibility of these services as an independent third party in the bargaining process. The AFL recommends that Conciliation and Mediation Services be placed under the jurisdiction of the Canada Labour Relations Board. (E) Non-Traditional Work This Task Force has been asked to examine alternative procedures for ":non-traditional": work relationships such as telework, contract work and casual employment. The AFL notes that homework through computer modem and other communications innovations is creating a new class of isolated workers that face real barriers to organizing collectively. Some provisions of secure employee access to co-workers using the employer equipment may be necessary to overcome these barriers. Recent studies have seriously called into question whether contract workers are not simply employees being denied basic employment rights by calling them independent contractors. This is a recurring employer tactic, and could be dealt with through strengthening the definition of 'employee' in the Code to include the broadest possible extension of rights to workers regardless of employer terminology. (F) The Canada Labour Code vs. the Public Service Staff Relations Act The Canada Labour Code is a complete and comprehensive piece of legislation. It should apply to all employees within federal jurisdiction, including direct employees of the Crown currently governed by the more restrictive Public Service Staff Relations Act. It is indefensible that one category of workers be arbitrarily provided inferior rights and entitlements based simply upon who the employer is. (G) Preamble The Preamble of the Canada Labour Code has long been held up by Alberta trade unions as something the provincial government should adopt. It strongly support free collective bargaining and freedom of association as desirable and as the basis of good industrial relations and as the best way to ensure our common prosperity. This broad endorsement of free collective bargaining and of unions should not be diluted by reference to the competitive world economy (as in the Alberta Code) or joint labour management initiatives or responsibilities. The purpose of the Code is, ultimately, to create good industrial relations by providing workers with enough protection and authority to balance the overwhelming economic and political power of employers. This alone will provide industrial relations without the massive industrial conflicts of the pre World War II era. Conclusion The Alberta Federation of Labour has other concerns regarding federal labour policy which fall outside the purview of this task force, most notably the increasing use of 'back-to-work' legislation. However, should this review process result in some fundamental improvements to the Canada Labour Code and the efficient operation of the Canada Labour Relations Board, it will send an important message to employers and set an important example for provincial jurisdictions. Most importantly, we recommend:
Respectfully submitted,
ALBERTA FEDERATION OF LABOUR
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