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Speech to Amend Bill C-4

Canada Labour Code

Bill to Amend—Third Reading—Debate Continued

Leave having been given to revert to Government Business, Bills, Third Reading, Order No. 1:

On the Order:

Resuming debate on the motion of the Honourable Senator Bellemare, seconded by the Honourable Senator Harder, P.C., for the 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 Act.

Hon. Scott Tannas: Honourable senators, I'm here to talk about Bill C-4, which accomplishes the repeal, effectively, of bills from previous Parliaments: Bill C-377, known as the Union Transparency Act, and Bill 525, which was an act to incorporate secret ballot voting into union certification.

I hope it would be useful for senators who were not here to get a history lesson on these bills, in particular Bill C-377, but a history on both bills because they were two separate bills and two entirely separate debates and circumstances. I'll start with Bill C-377, which is a private member's bill that was put forward by a member in the other place.

I can tell you that there were very passionate, strong feelings from the proponents of that bill in the other place, and there were stories that they provided of intimidation that they had received in their participation in union affairs in their previous careers. That formed the inspiration for those folks to draft this private member's bill on their own and to put it forward.

The bill was essentially designed to force very significant financial transparency by unions. The bill attempted to bring what I think everybody agrees is largely a provincial issue into the federal realm using the tax act.

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The timeline was that the bill actually passed in the First Session of the Forty-first Parliament, third reading on December 12, 2012. It came before the Senate, obviously, the next day, December 13, 2012. It then sat on the Order Paper here, in our place, for five months before second reading took place on May 7, 2013.

Then in the final days of the First Session of the Forty-First Parliament, in June — many of us remember it well — we undertook furious, passionate debate, and we ultimately passed it with an amendment on June 26, 2013. Conservative Senator Hugh Segal and others here spearheaded a last-minute amendment that allowed us to pass it on third reading and send it back to the other place. The truth is we knew that by sending it back to the other place, it would die on the Order Paper because prorogation was imminent, but we did it and sent it back to the other place rather than passing it.

After prorogation, there was a Speech from the Throne. Bill C-377 was reinstated in the House of Commons on October 16, 2013, and found its way back in our laps again, this time without the amendments that we had put forward in the previous June but back in its original state. It came to us for first reading on October 17, 2013.

Second reading occurred 13 months later — are you seeing a pattern here? — on November 25, 2014.

Senator Mercer: It was still bad legislation.

Senator Tannas: Then we waited until June 2015 for final reading, seven months later.

I want to make clear that Bill C-377 was something that many senators on both sides were never comfortable with, and that was evidenced continually by the fact that it languished for so long on the Order Paper here. Each time we waited until the last possible minute to pass it, as we did with an amendment in the first place, and when it turned up again after prorogation, we held onto it as long as we could before we finally passed it on the final sitting day before the 2015 general election.

I want to talk about what it was like for many of us, but in particular for me. I heard those pleas from colleagues talking about the need for something to be done around transparency, stories of union members who got up and asked a question about how much somebody got paid or how much of their dues were going to support political organizations or other organizations, and they were told to sit down, that that was not their business. Worse yet, some of them were approached in the parking lot and told that that was inappropriate.

It's clear to me that there is a need for transparency that does not exist in the unions today, but it was also made abundantly clear to many of us, I think, that this bill was not going to solve that problem or potentially went a little too far, some would say a lot too far.

Nonetheless, I felt pressure not to undo the work that my colleagues in the other place had put forward. Many of our colleagues who were passionate advocates of the bill were extremely frustrated with the intransigence of the Senate. There's no question about that.

Colleagues, I've often wondered whether or not Bill C-377 would have passed if we had had a secret ballot here. I think I know the answer. I think we all know the answer, and that brings me to Bill C-525.

This is a bill that was brought forward to bring secret ballot voting on union certification with respect to federally regulated industries. Bill C-525 came to the Senate on April 10, 2014, for first reading and I was the sponsor of it. There were speeches made by myself, Senator Baker, Senator Fraser, Senator Cowan, Senator Bellemare and others.

Senator Fraser and Senator Cowan said the bill was not needed, that it was a solution in search of a problem, and that union intimidation is not an issue. They pointed to the fact that there were virtually no complaints by anybody that they had been intimidated by their union. No single person had made a complaint against their large union that they had been intimidated — not surprising to many of us. But that was one of the pieces of the argument put forward on the other side, that there was no evidence of union intimidation.

Senator Fraser and Senator Bellemare's main arguments against Bill C-525 were on the delay in the timeline between the call for a vote and the vote actually taking place. That delay is where there was an opportunity for intimidation by the employer.

On the other hand, in her speech, Senator Bellemare actually stated a few points of support for a secret ballot. She did in fact abstain at third reading, but here are some of her words: Secret ballot can contribute to the increased credibility and legitimacy of unions; the membership card accreditation system has existed since the early days of unionization; it's proven useful in the past, but one can see how this system might have to be reviewed in the 21st century.

She quotes Mr. Larry Seiferling, a lawyer from Saskatchewan who worked with both unions and lawyers, who testified at the committee and said:

There are a number of problems I've seen in my practice associated with card-based certification that can only be corrected by employees having the right to vote by secret ballot before a union is certified.

He told the committee that the secret ballot is important to ascertain that democracy is pursued within the workplace. According to his testimony, a secret ballot is the closest thing we have to ascertaining that a majority of employees want to join a union.

Other than these major arguments, there were a few short points made against secret ballot: It makes it harder to unionize; it will require more resources from the board; and the bill needs safeguards to properly protect employees.

But another problem with the bill was discovered by Senator Bellemare and Senator Cowan, which was a drafting error in the bill. It didn't involve the concept of secret ballot voting, but it was a piece of the bill from which an amendment had taken out the substance and left this little piece that essentially took away some powers from the regulators that had to do with employee relations and certification and decertification.

We heard testimony, however, at committee that those powers were derived in a number of places and that there was a workaround for them that got the boards and other regulators to the same point that they were before the bill. Nonetheless, it was a drafting error, and knowing we had a drafting error caused difficulty for many of us to vote for it, even though intellectually we may have been in support of a secret ballot.

Nonetheless, we did pass the bill. We passed it with a promise, which many of us heard, that the drafting errors would be fixed in an upcoming budget implementation bill, and that promise was never fulfilled.

I'd like you to consider some points before I put my amendments forward. Number one, where we are going to go and where we were before is this: There will be no secret ballot for certification of a union, but there must be a secret ballot for decertification of a union, and there must be a secret ballot for switching from one union to another. How does that make sense? If there is not a calculation in there that is an imbalance, I can't explain it. I asked witnesses. Nobody could tell me why it is that a secret ballot is absolutely necessary when one union is going against another but not when a person is wanting to make a full and informed decision on whether or not to begin a union.

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It made no sense to me. I think it is an essential, logical inconsistency that is the elephant in the room every time we meet to talk about this with the unions.

The vast majority of Canadian workers today are under the auspices and the jurisdiction of the provinces, and the vast majority of those workers have mandatory secret ballots. Today, seven provinces use mandatory secret ballots: Alberta, British Columbia, Manitoba, Newfoundland and Labrador, Nova Scotia, Ontario and Saskatchewan. So we are going to go back to a time that has long passed when, in fact, seven out of 10 of our jurisdictions have gone in the other direction.

Here's another little fact: The majority of Canadian workers support secret ballot for unionization. Interestingly, unions have never publicly released an opinion poll of their members on whether or not they support secret ballot. I think we know the reason why; because there is one public opinion poll out there from Léger Marketing, a reputable, well-known firm across this country, that says 83 per cent of Canadian unionized workers support the idea of a secret ballot vote.

I think we have additional evidence. As you know, before Bill C-4 went into committee, we were all swamped with thousands of emails from people talking about this bill. If you read those emails, they all talked about the unfairness, the targeting and the nastiness of Bill C-377. Not a single one of those emails spoke about the secret ballot. They were not told about it. When they were told to fill in their form and send it off, they were not told, "Oh, by the way, we're getting rid of secret ballot. Aren't you happy about that?" Not one email in the thousands we got before this bill went to committee specifically said from those citizens that they wanted to get rid of secret ballot.

The Hon. the Speaker: Excuse me, senator, your time has expired. Are you asking for five more minutes?

Senator Tannas: Yes.

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Tannas: We've heard the argument that secret ballot causes fewer unions to be certified. That's not our problem. That's a decision for workers to make. Our job is to make sure that they have the proper atmosphere to make an informed choice without fear of intimidation, either from an employer who knows how they voted or their colleague who knows how they voted.

Unions need to focus on the fact that perhaps their value-for-money proposition has changed. Perhaps the employer and employee power balance has shifted; perhaps a lack of transparency of where dues go, what level of compensation the leadership enjoys and what outside non-workplace activities are being funded. Those are some things that unions need to consider, but I do not believe that it is credible to say that the secret ballot somehow is the enemy of free and informed choice.

Therefore, I'd like to put forward amendments that will do two things. They will retain the secret ballot vote and will fix the problems in the drafting errors that were made in Bill C-525 when it was passed two years ago.

I have it here, Your Honour. Shall I read it?

The Hon. the Speaker: Please.

Senator Tannas: These are lengthy. They have been developed by the clerk in consultation with both the Library of Parliament and the law clerk, and they are detailed.

The Hon. the Speaker: Senator Tannas, the amendment, even though it's lengthy, has to be read completely for the record.

Senator Tannas: Yes, I'm going to. Thank you.

Motion in Amendment

Hon. Scott Tannas: Therefore, honourable senators, I move:

That Bill C-4 be not now read a third time, but that it be amended,

(a) by deleting clause 1, on page 1;

(b) by deleting clause 2, on pages 1 and 2;

(c) by deleting clause 3, on page 2;

(d) in clause 4,

(i) on page 2, by replacing lines 30 to 36 with the following:

"4 Section 39 of the Canada Labour Code is replaced by the following:

39 (1)If, on receipt of an application for an order made under subsection 38(1) or (3) in respect of a bargaining agent for a bargaining unit, the Board is", and

(ii) on page 3, by replacing line 1 with the following:

"satisfied, on the basis of the results of a secret ballot representation vote, that a majority of the employees in the bargain-";

(e) by deleting clause 5, on page 3;

(f) by deleting clause 6, on page 4;

(g) by deleting clause 7, on pages 4 and 5;

(h) on page 5, by adding after the heading "Public Service Labour Relations Act" after clause 7, the following:

"7.1 Paragraph 39(d) of the Public Service Labour Relations Act is replaced by the following:

(d) the authority vested in a council of employee organizations that is to be considered the appropriate authority within the meaning of paragraph 64(1.1)(c);";

(i) by deleting clause 8, on pages 5 and 6;

(j) by deleting clauses 9 to 11, on page 6;

(k) on page 6, by adding after line 35 the following:

"11.1 Subsection 100(1) of the Act is replaced by the following:

100 (1) The Board must revoke the certification of a council of employee organizations that has been certified as a bargaining agent if the Board is satisfied, on application by the employer or an employee organization that forms or has formed part of the council, that the council no longer meets the condition for certification set out in paragraph 64(1.1) (c) for a council of employee organizations.";

(l) by deleting clauses 14 and 15, on page 7; and

(m) by deleting clause 16, on pages 7 and 8.