UNITED STEELWORKERS OF AMERICA, DISTRICT 6
NATIONAL ACTION COMMITTEE ON THE STATUS OF WOMEN
WMI WASTE MANAGEMENT OF CANADA INC
ONTARIO RESTAURANT ASSOCIATION
INDEPENDENT CONTRACTORS' GROUP
KELSEY'S RESTAURANTS LTD
CARA OPERATIONS
ASSOCIATION OF MUNICIPALITIES OF ONTARIO
CANADIAN UNION OF PUBLIC EMPLOYEES, NIAGARA DISTRICT COUNCIL
CONTENTS
Wednesday 12 August 1992
Labour Relations and Employment Statute Law Amendment Act, 1992, Bill 40
United Steelworkers of America, District 6
Henry Hynd, director, Ontario district
Westroc Industries Ltd
Marc Farrell, corporate manager, human resources
National Action Committee on the Status of Women
Judy Fudge, co-chair, employment and economy committee
Janet Maher, Ontario Women's Action Coalition
John Crispo
WMI Waste Management of Canada Inc.
Jack Cassari, employee relations counsel
Nancy Porteous-Koehle, director of public affairs
Ontario Restaurant Association
Paul Oliver, director, government affairs
William Dover, director
Victoria Zipeto, member
Tourism Ontario Inc
Roland Michener, president and chief executive officer
Gerald Macies, chair, labour committee
Independent Contractors' Group
Harry Pelissero, executive vice-president
Phil Besseling, president
Kelsey's Restaurants Ltd; Cara Operations
Mike Cataldi, director, human resources, Kelsey's Restaurants Ltd
Paul Bachand, vice-president, human resources, Cara Operations
Mississauga Board of Trade
Sid Valo, president
Norman White, director, human resources policy
Ken Bryden
Association of Municipalities of Ontario
Helen Cooper, president
Grant Hopcroft, past-president
Hepworth and Associates
Gael Hepworth, executive director
Whitby Chamber of Commerce
Marc Kealey, member, government relations committee
Fran Maurier, member, government relations committee
Lynn Woods, chairman, government relations committee
Canadian Union of Public Employees, Niagara District Council
Brian McCormack, president
Brian Blakeley, national representative
Dylex Ltd
Lionel Robins, president and chief operating officer
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
*Chair / Président: Kormos, Peter (Welland-Thorold ND)
*Vice-Chair / Vice-Président: Huget, Bob (Sarnia ND)
Conway, Sean G. (Renfrew North/-Nord L)
Dadamo, George (Windsor-Sandwich ND)
Jordan, Leo (Lanark-Renfrew PC)
*Klopp, Paul (Huron ND)
McGuinty, Dalton (Ottawa South/-Sud L)
*Murdock, Sharon (Sudbury ND)
*Offer, Steven (Mississauga North/-Nord L)
Turnbull, David (York Mills PC)
Waters, Daniel (Muskoka-Georgian Bay/Muskoka-Baie-Georgianne ND)
Wood, Len (Cochrane North/-Nord ND)
Substitutions / Membres remplaçants:
*Carr, Gary (Oakville South/-Sud PC) for Mr Turnbull
*Cleary, John C. (Cornwall L) for Mr Conway
*Eddy, Ron (Brant-Haldimand L) for Mr McGuinty
*Fawcett, Joan M. (Northumberland L) for Mr Conway
*Ferguson, Will, (Kitchener ND) for Mr Wood
*Fletcher, Derek (Guelph ND) for Mr Dadamo
*Ward, Brad (Brantford ND) for Mr Waters
*Witmer, Elizabeth (Waterloo North/-Nord PC) for Mr Jordan
*In attendance / présents
Also taking part / Autres participants et participantes:
Prial, Richard, labour relations policy adviser, Ministry of Labour
Clerk pro tem / Greffier par intérim: Decker, Todd
Staff / Personnel:
Anderson, Anne, research officer, Legislative Research Service
Fenson, Avrum, research officer, Legislative Research Service
The committee met at 0959 in room 151.
LABOUR RELATIONS AND EMPLOYMENT STATUTE LAW AMENDMENT ACT, 1992 / LOI DE 1992 MODIFIANT DES LOIS EN CE QUI A TRAIT AUX RELATIONS DE TRAVAIL ET À L'EMPLOI
Consideration of Bill 40, An Act to amend certain Acts concerning Collective Bargaining and Employment / Loi modifiant certaines lois en ce qui a trait à la négociation collective et à l'emploi.
The Chair (Mr Peter Kormos): We're resuming our public hearings into Bill 40, amendments to the Ontario Labour Relations Act, at Queen's Park, to which the public is invited. They are entitled and indeed encouraged to attend at Queen's Park today as we sit until 6 o'clock, and tomorrow we're sitting from 10 am till 6 o'clock here at Queen's Park.
UNITED STEELWORKERS OF AMERICA, DISTRICT 6
The Chair: The first participant is the United Steelworkers of America, District 6. Gentlemen, please tell us your names and your titles and start with telling us what you want to tell us. We've got half an hour. Please try to save at least the last 15 minutes for exchanges.
Mr Henry Hynd: Will do. Mr Chair and members of the committee, my name is Henry Hynd and I am the director of the Ontario district of the United Steelworkers of America.
Our members in Ontario work in every industry and in every corner of the province. They are more conscious than ever before of the need for effective legislation in the area of labour relations, employment standards, pay equity, employment equity and human rights.
During these times of massive workplace restructuring and reorganization, workers suffer the most. Checking the powerful forces responsible for economic change through collective bargaining is the only way workers can protect themselves from the devastating impact of those forces. Bill 40 is needed to make this possible. That is why we believe that Bill 40 sets the stage for the economic recovery which is awaited by workers across this province.
I believe that labour law reform is an important cornerstone for this recovery, and that harnessing the power of collective bargaining for the least powerful sectors of our society is a major step in the right direction.
As my colleague, Director Leo Gerard, said to you last week, the United Steelworkers of America is capable of cooperating with employers who want to resolve workplace problems in creative and honest ways, but our union is also capable of confrontation. We acknowledge that this is not a constructive way to resolve workplace problems, but very often we do not select the approach that we must take vis-à-vis employers. Our direction is often dictated by those on the other side of the table.
I am confident that when these reforms are passed and we review this period in the history of Ontario, even the harshest critics of Bill 40 will acknowledge that it was a watershed piece of legislation for positive developments in Ontario's labour relations climate.
This union is also capable of consultation. We have consulted with the minister and with the government on a number of issues. We participate in government consultation processes in a variety of ministries. We have done this for many decades because we think that it is important for our members' voices to be heard so that the government can test public policy ideas with representatives of workers.
We are weary, though, of a process that is not designed to achieve the best kind of legislation and that is being used by some groups as an opportunity to attack the very core of the union movement. I am alarmed at the short-sighted and hysterical reaction of many organized business groups to these reforms and to Bill 40. I'm alarmed because the criticism lacks content. I am alarmed because those who criticize blindly do play an important role in the labour relations climate in Ontario. I am suspicious of the motive of the groups who attack Bill 40, because their criticism lacks substance and they make no creative suggestions or positive contributions to the process.
My message to this committee is that my union supports Bill 40. We do not think it answers every problem; we wanted it to go much further. There are a number of areas where we believe the bill is deficient, where it appears that the government has compromised to satisfy some of its harshest critics. But we know that sometimes a compromise makes the best public policy and that it is important for a degree of consensus to emerge so that a new legislative departure is workable.
I do not propose to review with you all of the bill's deficiencies, nor do I propose to take you through the bill clause-by-clause and analyse every problem the bill seeks to resolve and how and why the bill is likely to succeed. In the remaining time I have before your questions, I want to talk about two important features of Bill 40. The first is the amendment with respect to security guards, and the second involves amendments impacting on joining unions.
The United Steelworkers of America has been in the forefront of seeking amendments to the security guard provisions of the Labour Relations Act for more than a decade. We have never understood why Ontario should have legislation that restricts the ability of a security guard to join the union of his or her choice. These limitations do not exist in other Canadian provinces. Their absence has not created any difficulties in Quebec, where more than 10,000 security guards are organized, or in any other jurisdiction, including the federal jurisdiction. Why then, we have asked ourselves, does the law require security guards to be represented by unions that accept into membership only security guards? Why can't general workers' unions, like the United Steelworkers of America, represent security guards along with other employees in the same bargaining unit or, where there is a conflict, in a separate bargaining unit?
We have never heard a convincing response to this question. Some employers say that security guards should not be in the same union because they are asked to monitor other workers and a common union would put these guards in an unenviable conflict of interest. Surely the same argument would apply in the context of supervisors, but in a number of jurisdictions, notably the federal jurisdiction, supervisors can be represented by the same union that represents plant and/or office workers as long as the supervisors are in their own bargaining unit. The policy rationale for this is that where there is a clear conflict, as between front-line employees and supervisors, for example, it is important that collective bargaining take place at separate tables and that separate collective agreements govern. Isn't that the degree of separateness required for security guards?
Our union did not just sit back and criticize the security guard provisions in the Labour Relations Act. With the advent of the Canadian Charter of Rights and Freedoms, we were hopeful that the freedom of association provisions would cause section 12 of the Ontario Labour Relations Act to be declared inconsistent with the charter. In an effort to expose the limitations in section 12, we organized thousands of security guards in Ontario. We told them about the limitations in section 12. We told them there was a chance that section 12 would prevent us from being certified as their bargaining agent even though they had selected us. We organized guards in Toronto, Ottawa, Windsor, Hamilton, London, Cambridge, Thunder Bay, Kingston and elsewhere. We told these brave security guards that they would have to be patient, because the process of having a law declared unconstitutional, including the lengthy appellate process that was possible, could take several years, and we were right.
Following a lengthy one-year battle at the Ontario Labour Relations Board, that board determined that section 12 did not violate the charter. The board reasoned that the Canadian charter does not protect the right to be certified; the charter only protects the right to associate with others in an organization. According to the board, nothing in the Labour Relations Act prohibited guards from joining the United Steelworkers of America; all the statute did was prohibit the Ontario Labour Relations Board from certifying the trade union as the bargaining agent for such employees. This was cold comfort to the thousands of security guards who had waited. Any doubt about the correctness of this decision was put to bed by the subsequent decision of the Supreme Court of Canada in the Public Institute case.
So where were we left? We could abandon security guards to other unions, unions that did not have the scope, resources, presence in regional communities and other benefits afforded to members of the United Steelworkers of America, or we could continue to seek to have section 12 amended. You will not be surprised that we chose the latter.
The amendments set forth in Bill 40 do nothing more than bring the security guard provisions in the Labour Relations Act into line with other jurisdictions in Canada. They will permit security guards to be represented by a union chosen by security guards. They will permit employers to argue that security guards should be in a separate bargaining unit. The legislation is careful and well-thought-out. It will not undermine the ability of security guards to function either as guards assigned to protect property or as guards assigned to monitor other employees.
I applaud the government for introducing the amendments to section 12. We are hopeful that the long delays have not shaken the resolve of security guards to make the decision to join the union of their choice as their certified bargaining agent.
I want to announce to security guards, their employers and security guard agencies that the United Steelworkers of America will be organizing security guards throughout Ontario as soon as this bill is given royal assent. We do not intend to stop. We do not intend to hesitate. We intend to bring the rights of trade unionism to security guards across the province. We will offer security guards the benefits of union representation and the benefits which collective bargaining can bring to their work lives and to their home lives.
I want to make three points about organizing, because I think so much has been said that there is little I can add to constructively assist you in your considerations of the many sections of Bill 40 that touch upon the ability of employees to join unions.
First, unions bring democracy to the workplace because they permit workers to be actively involved and present in decisions which impact on their lives. But our view of democracy goes beyond the question of how unions come to represent workers. In the context of the amendments to the Labour Relations Act, it is important for this committee to understand that the workplace is very different from any other place. In the workplace, employees are subject to special perils and special controls that do not impact on democracy elsewhere; for example, in the context of local, provincial or federal elections.
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This unique environment has been recognized for at least 30 years as presenting a basis for the development of a certification process which does not necessarily require a vote of employees. Indeed, in each of the past three decades, the Ontario Labour Relations Board has made it clear that the workplace has to be regarded with suspicion and that the free expression of employees' wishes cannot be ascertained by adhering to our commonplace practice of taking a vote.
I have cited here three examples and I hope the committee takes the time to read them; they're very important. Many members of the committee may be already aware of them.
Finally, in 1980, in the leading case of Fuller's Restaurant, the Ontario Labour Relations Board, 1289, reiterates the concern it must have in the context of union certification campaigns which culminate in a vote as follows:
"Again having regard to the responsive nature of the employer/employee relationship, this board has held that a `captive audience' meeting held by management during the course of a union organizing campaign may serve to thwart free expression. This is so where the employer, relying upon his position of economic dominance, uses the employee meeting to threaten, coerce, or create unjustified concerns in the minds of his employees with respect to job security."
The fact is that the employer functions in a position of economic dominance in the workplace. This role of economic domination is unique to the workplace. It impacts on democracy in the workplace. It cannot be denied that this impacts on the reliability of workplace votes. In our view, the most effective way of ascertaining whether workers wish to be in a union is to examine whether or not they have freely signed cards to join the union.
Some would say, and I've read, that some members of this committee have suggested that unions should not be certified where intimidation, coercion or other improper measures are brought to bear during the collection of cards; I agree. There are protections set forth in the unfair labour practice provisions of the Ontario Labour Relations Act to make sure that where there are such tactics, they will be exposed. Unions that have engaged in such tactics will suffer the consequences, including a refusal to receive an automatic certificate.
I am sure that members of the committee have examined the board reports carefully and will agree with me that there are very few cases where unions have engaged in improper strategies and intimidating tactics. The fact is that employer unfair labour practices during organizing campaigns are rampant and widespread. The reported monthly decisions of the Ontario Labour Relations Board stand as a permanent reminder that engaging in unfair labour practices is basically the rule in Ontario, not the exception.
Bill 40 makes certain fundamental changes that should deter employers from engaging in unfair labour practices. It assures that unfair labour practice discharge cases will be dealt with quickly and that the chill of firing the union organizer will no longer successfully terminate the organizing campaign. No longer will unscrupulous employers be able to rely on quick firings of pro-union employees to defeat union certification. Speedy unlawful conduct can no longer be victorious in defeating the union, a result never intended by the Legislature.
Bill 40 provides that employees covered by a certificate will benefit from just cause immediately after their union is certified. There will no longer be a need to wait the many months and sometimes years it takes for the first agreement to be achieved. This removes one of the primary obstacles -- or benefits, if you're an employer so inclined -- to speedy resolution of first agreements. Until this amendment, employers could continue to unilaterally exercise their authority within the workplace without being subject to the just cause review of an arbitrator. Bill 40 closes that loophole.
Important, Bill 40 gets rid of the expensive and wasteful litigation that has been taking place at the Ontario Labour Relations Board since the first-agreement arbitration access provisions were enacted by the previous government.
Finally, it will be possible for parties who are unable to resolve issues in the context of collective bargaining for a first agreement to have matters resolved at interest arbitration. No longer will it be essential for them to prove wrongdoing before being granted access to first-agreement arbitration.
Some say that this will impose a chill on first-agreement bargaining. All I can say in response is that first-agreement collective bargaining is precarious and fragile and that often parties need the presence, or at least the threat of the presence, of a third-party arbitrator to come to terms with the reality that they're engaged in a new way of determining workplace practices, rules and terms of employment.
I want to say just one more thing in connection with the first-agreement arbitration, and that's about anti-union petitions. No single development in Ontario labour law has been more harmful to the process of collective bargaining, and has undermined the ability of trade unions and their employees to develop creative and workable solutions during the first couple of collective agreements, than the institutionalization of anti-union petitions filed after the application date.
These petitions emerge, miraculously, right after a union applies for certification. Usually armed with support from well over 55% of employees in the bargaining unit, the trade union applicant finds itself confronted with a group of bargaining unit employees who have decided to file statements of desire with the board, revoking their support for the union.
The overwhelming number of these anti-union petitions are found by the board to be either not voluntary or poisoned by employer involvement. All of these are disregarded when the board determines the level of membership support. However, the effect of this process has been disastrous from a labour relations and productivity point of view. I am not only referring to the lengthy and expensive litigation. That is bad enough.
Even after the union is certified, this anti-union group remains active. It seeks to destabilize and undermine the advocacy of the trade union in the workplace, serving as a kind of institutionalized opposition doing the employer's bidding from within the bargaining unit.
The presence of this group undermines confidence, defeats the ability of the union to confer with its own members and serves as a permanent employer vehicle to seek to control and influence the bargaining unit employees. The whole process is accomplished by deliberately setting employees against one another.
Eliminating petitions is a good development. It will streamline the certification process by defeating the opportunity for employers to involve themselves in unlawful anti-union activity by making use of bargaining unit employees as its pawns during organizing campaigns. It will generally promote a greater degree of unity within the workplace following certification so the business of collective bargaining can take place without the baggage of an anti-union fight.
Most important, the elimination of petitions means that it will be possible for the board to determine, finally, whether the union had more than 55% support of employees in the bargaining unit on the application date.
You should bear in mind that the test under Bill 40 is not at all like the test of victory for each one of you who ran for provincial election. All you needed was more votes than your opponent. To be certified, a union has to have more than 55% support from the entire bargaining unit. To those who claim that the automatic certification is somehow not democratic, they should take a careful look at the method by which they have been elected.
Mr Chair and members of the committee, there is so much more that can be said about Bill 40. There are so many details and so many small changes that will benefit working people in Ontario. There is also so much left to be done for the working poor, the marginalized, the exploited service sectors, immigrant women -- in short, for those who are not likely to enjoy the benefits of collective bargaining, even under bill 40.
Let's not kid ourselves. The amendments which open the act to certain groups and the changes with respect to part-time employees will have some impact, but the fact is that in many sectors of the Ontario economy where largely women and visible minorities are employed, the benefits of collective bargaining will not come quickly.
The Wagner Act system of union certification and representation was not designed for them, even with the Bill 40 improvements. We must develop an alternative system which harnesses collective bargaining for the greater good, which brings the benefits of our society to the most vulnerable and least privileged. That is why I think we have got to examine broader-based bargaining structures. We have to look carefully at what is possible and measure our capabilities and abilities with what others have tried to achieve in their societies. We have been calling for a task force on broader-based bargaining for a long time. It would appear that our calls have fallen on deaf ears.
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But we will not be silenced even by our friends in government. There can be no doubt that we must examine structures beyond the single workplace for representation of workers and employers for the purpose of developing sectoral employment standards using a collective bargaining model.
We cannot tinker with a mini-study. The task force must undertake a serious and extensive examination that could result in fundamental changes in our employment standards system and harness collective bargaining as a labour market strategy for the hundreds of thousands who fall outside the traditional sectors where trade union density is not significant. I ask you, Mr Chair and the members of this committee, to call for a task force on broader-based bargaining and to urge the minister to set up such a task force without delay.
I could go on and on, but I think it is important to try to respond to some of your questions, so I will stop here, leaving a great deal still unsaid.
Mrs Elizabeth Witmer (Waterloo North): Thank you very much, Mr Hynd. We appreciate the perspective you've presented this morning.
You mention here on page 9 that "unions are going to bring democracy to the workplace because they permit workers to be actively involved and present in decisions which impact on their lives." Are you saying that workers do not have that opportunity if they're not unionized, Mr Hynd?
Mr Hynd: I don't know many non-union employers who solicit the view of their employees about decisions they're going to make in the workplace.
Mrs Witmer: I guess I would tell you that in reviewing my mail today -- I've been away for several days on personal family business -- I received a letter from the employees of the hardware store in St Jacobs, indicating that they do feel very much a part of the workplace and are able to communicate with their employer. They are not looking for union involvement. I think we have to be careful, because I think there are many employers in this province who do have a very good workplace environment where there is communication that takes place. We need to make sure that we allow all workers to make that decision very freely.
You mentioned here as well --
Mr Hynd: Before you leave that, I didn't suggest anywhere in my brief that workers wouldn't make that decision. The workers in that hardware store would make a decision whether or not to belong to a union. If they're quite satisfied with their employment relationship and they do have a good relationship with that employer, they probably won't want to belong to a union.
Mrs Witmer: No, that's certainly what they indicated.
Mr Hynd: So we haven't indicated anything different in our submission now.
Mrs Witmer: Right. I think we need to be --
Mr Hynd: For those employers who are considered good employers by their employees, I doubt that union is going to be successful in organizing.
Mrs Witmer: I think we need to be careful and understand that there are employers today who do have a very strong organization and are very supportive of their employees.
You mention here that you're looking for a task force on broader-based bargaining. What type of task force would you be looking for?
Mr Hynd: We want a task force to look at those who are disenfranchised from our society.
Mrs Witmer: Who would be part of that task force then, Mr Hynd?
Mr Hynd: I wasn't finished. I understand that yesterday or the day before you had some testimony here about workers in Ontario who are paid way below the minimum wage. They are working in their homes, as an example. I think the first thing we have to discover is in fact to what extent people are disenfranchised, so we can look at the non-union sector of our economy.
Mrs Witmer: But who would sit on the task force?
Mr Hynd: I would suggest who should sit on the task force would be the government's decision. I would think that a legitimate task force would contain people from all segments of the community: the labour movement, the good employer, people from government and civil servants. The task force would have to be one that looked extensively at our community.
The Chair: Thank you. We have to move on to Ms Murdock.
Mrs Witmer: I have one point, Mr Kormos --
The Chair: I know you do, Ms Witmer, but --
Mrs Witmer: Just in response to the question.
The Chair: -- you've already used some of the government caucus's time. If they want to relinquish that time to you -- Mr Ferguson? Fine. Ms Witmer, go ahead; you still have Mr Ferguson's time.
Mrs Witmer: I was just going to say if you support the task force with labour and business and government, I guess you would have supported the tripartite process for arriving at Bill 40, which we unfortunately didn't have.
Mr Will Ferguson (Kitchener): I thought it was my time.
Mr Hynd: No. The difficulty that you're having is that we already have a Labour Relations Act in place. The Labour Relations Act amendments only bring the Ontario Labour Relations Act up to speed and only partially. There's much more that we would like to see in the Ontario Labour Relations Act that isn't there, so the tripartite thing, I didn't suggest that. The task force would be one that the government would decide, I suggested, but a task force that contained elements of the community would be the best task force we could have.
This legislation, as far as I'm concerned, has had the most extensive discussion in the province than any piece of legislation has ever had -- more discussion, more news coverage, more hearings, and I've attended a lot.
The Chair: Go ahead, Mr Ferguson.
Mr Ferguson: Thank you very much. Welcome, gentlemen. I appreciate your appearing before the committee this morning.
I want to ask you about the suggestion that some unions coerce or intimidate people into signing cards. Yesterday, you may know, we had a few groups that appeared and that seemed to be a general theme for some of the representatives of the business community; although I can tell you that when we asked for specific examples where this might have happened, nobody could give us one.
In your brief you suggested there is provision within the Ontario Labour Relations Act to make sure those sorts of tactics will be exposed and will be dealt with. I'm just wondering if you could expand on that. I think it would be helpful for the committee to not only understand, but also appreciate that there is provision in the act to deal with that.
Mr Hynd: I can only say I would be naïve to suggest that some organizers don't try to intimidate people. Some people feel intimidated when you knock on their door to vote for Will Ferguson in the next election.
Mr Ferguson: Not very many. Can we strike that example from the record?
Mr Hynd: The fact is that the labour relations board clearly identifies the number of times it's found any guilty party. Intimidation by employers is rampant in this province; intimidation by unions is very seldom. I know we're portrayed in the media and by a lot of people in government that we're hoods, that we're overpaid, that we're union bosses, that we're not really representatives of workers and that we don't have workers' best interests at heart. But the fact is that there's no real proof. That's all hogwash as far as I'm concerned.
Mr Ferguson: Unfortunately, I think you rank somewhere around politicians when it comes to the general public.
My second question is essentially this: As you may be well aware, in February of this year Statistics Canada reported that there would be $45-billion worth of new investment in Canada. Ontario received about $20 billion of that new investment, which works out to somewhere between 40% and 45% of the new investment. We've also heard on a continual basis -- again, not from all but from some in the business community -- that investment in the province of Ontario may come to a grinding halt because we decide to change a couple of labour laws.
I want to ask you gentlemen -- obviously you represent a host of employees across this province in various sectors -- are you at all aware of any of the companies you deal with that are planning to either close their doors or move if we decide to proceed with these labour law changes?
Mr Hynd: I think that any of the impact on closure of plants has certainly had very little to do with the discussion behind Bill 40. The fact is that if there was any substance to that, the provinces that would really have a large manufacturing base would have been all the other provinces in Canada except Ontario.
Ontario had the highest level of manufacturing of any province in Canada. It was the most highly organized province in Canada. So unionization doesn't chase employers away. We've got a highly skilled workforce in Ontario. Unfortunately, thousands and thousands of them are unemployed. That's what draws employers to Ontario: a highly skilled workforce, good access, good transportation and good infrastructure.
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Mr Steven Offer (Mississauga North): Thank you for your presentation. I want to ask questions around the issue of security guards. I raise this point because it's the first point you've spoken to. On page 8, you've used this opportunity to make the announcement:
"The United Steelworkers of America will be organizing security guards throughout Ontario as soon as this bill is given royal assent. We do not intend to stop. We do not intend to hesitate. We intend to bring the rights of trade unionism to security guards across the province."
That's from your presentation.
On this one issue we have heard from security guard unions that they have a different type of function. As far as trade unionism and security guards are concerned, it's not a matter of whether security guards can or cannot join, because they can join, but right now they can only join a union that represents just security guards. So in your presentation, when you say you're bringing trade unionism to security guards, I would take some issue with that, based on what I've heard from trade unions for security guards. It's there now, but the trade union of security guards is exclusive.
We have heard from these security guards that their job is unique in that their function is to monitor employees, sometimes to search employees. Their job is to monitor and protect property. They have a concern that to allow this -- in other words, as per your announcement, being unionized by your organization -- does put them in a very difficult position. It does affect the way in which they will be able to do their job: in essence, monitoring employees and protecting and preserving property.
My question to you is: How do you respond to those security guards who have come before this committee with that concern on this bill, and to their unions which have echoed the same concern?
Mr Hynd: Do you know the name of the people who have appeared before you? If you know the name, it would be helpful. Do you know the name of the association? The American guards' association?
Mr Offer: I think that's a valid question. I don't want to interrupt, but you have asked the question. I'm responding to the International Union, United Plant Guard Workers of America.
The Chair: Who appeared here with their lawyer, David Wright.
Mr Hynd: That union represents roughly 2,000 employees in Ontario. During the campaign we engaged in when we were trying to organize security guards, prior to the decision made by the labour relations board and the Supreme Court, we organized over 5,000 guards in one shot.
Guards want to belong to a good union. The difference is, guards have a choice. They can join that association if they wish or they can join the United Steelworkers. We're confident they're going to join the United Steelworkers of America.
The other point you make with respect to the special status of guards, nobody spies on workers more than front-line supervisors. Supervisors have the right to search employees in a non-union plant. They have the right to do anything they can to employees. So security guards don't perform a function that isn't performed by supervisors. Supervisors are allowed to be organized. If supervisors can belong to the United Steelworkers of America, as they did in Elliot Lake, why can't security guards belong to the United Steelworkers of America if that's the union of the security guards' choice?
Mr Offer: Time is short, but I'm going to have to restate my question, because it's clear now from your response that it's not a question of bringing unions to security guards. They're already there. The matter which you've brought forward is their choice. But what do you say to those security guards who are saying: "Don't do this to us. This is putting us in a bad position"?
Mr Hynd: If a security guard says to me, "Don't do this," he won't sign a card, then I'll have to go away.
The Chair: Thank you. I've got to thank the United Steelworkers of America, District 6, and you, gentlemen, for appearing here this morning and presenting the views of steelworkers, a significant constituency here in the province. We appreciate your taking the time, we appreciate your interest, and we trust that you'll be keeping in touch. Take care.
WESTROC INDUSTRIES LTD
The Chair: The next participant is Westroc Industries Ltd. Please come and have a seat in front of a microphone. Tell us who you are and what your status is with Westroc. Try to save the last 15 minutes of the half-hour for questions and exchange.
Mr Marc Farrell: Good morning. My name is Marc Farrell. I'm with Westroc Industries and I'm the corporate manager of human resources.
First, I'd like to thank you for the opportunity of addressing you today in relation to Bill 40. While I'm here as a representative of Westroc Industries, I'm also here as a concerned citizen of this province.
For your information, Westroc Industries is an integrated manufacturer and supplier of gypsum-related products such as wallboard, finishing products and wall systems. The company employs over 500 people across Canada in six plants in British Columbia, Alberta, Manitoba, Ontario and Quebec. It also owns and operates two mines. Approximately 350 of our employees are hourly paid, and over 95% are unionized.
Our concern over Bill 40 centres around two areas. First, the bill will have a negative impact on business investment in Ontario. In addition, there are certain clauses which will detract from Westroc's ability to compete effectively within the North American marketplace.
Westroc, and indeed the entire industry, have been extremely hard hit during this recession. Our difficulties have been compounded by an oversupply situation in North America. As a result, prices have declined to 1979 levels, and US companies are more aggressively selling product in the Canadian marketplace. Even once the recession ends, competing within North America will be more difficult than in the past.
At Westroc, we are making significant new investments in upgrading our workforce, in quality service initiatives and in establishing closer partnerships with our employees. All of these, we believe, are essential to ensuring long-term competitiveness.
For example, at our mine location near Drumbo, Ontario, our employees have been working actively with us to improve our competitiveness. Over the last six months, both groups have been cooperating closely together, and this has resulted in a 25% reduction in our mining costs. This has improved our ability to compete and made this mining operation more viable, increasing job security for everyone.
This is an example to us of labour-management cooperation. It arose from a need to be competitive, but also from the realization that these gains could not be achieved separately. It was in everyone's interest to improve competitiveness. This initiative was not legislated, and we believe these kinds of initiatives will increase as employees and business realize that it is in their mutual interest to work more closely together.
However, Bill 40 in its present form will not improve investor confidence or preserve jobs in Ontario. This bill has polarized the various interested groups and unfortunately is being portrayed in the media as a bill which would have a negative impact on investor confidence and make competition in Ontario more difficult. Even if these are only perceptions, the reality is that investment decisions are often affected by perceptions.
If choices need to be made between investing in Ontario and elsewhere, we will lose investment possibilities if we are seen as an area where the risks are greater or as a province with more onerous rules and regulations. We must be concerned in this province with not only our own public policies, but also how our policies compare with other parts of the country and indeed North America.
Further changes are required in Bill 40, changes which need to be supported by business, labour and government so that we can send a signal to the investment community that all groups are committed to making Ontario a worthwhile place to invest business dollars.
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We believe Bill 40 will also have a negative impact on the collective bargaining process, which is the basis of our industrial relations system. The collective bargaining process is a time-tested process which enables both parties to reach an agreement. In Ontario, over 95% of disputes are solved through the collective bargaining process, even though this number still needs to be improved significantly. However, even with 95% of disputes being resolved, the World Competitiveness Report states:
"Canada ranks 16th [of 23 industrial countries] in workdays per 1,000 people lost to industrial disputes, 16th in the extent to which industrial relations are conducive to labour peace and 19th in the extent to which unions and management work together to their mutual benefit."
We are concerned that certain provisions of Bill 40 will not foster greater labour-management cooperation, and I'd like to focus on several clauses.
First, the bill would not only restrict replacement employees from the outside, but goes so far as to prohibit the use of existing employees from other locations, including management and supervisory employees. This provision has a major impact on the whole concept of collective bargaining. Collective bargaining is a dynamic exercise between the employer and the union in which both groups use the appropriate leverage to reach the best possible agreement in the circumstances. Eliminating this leverage and the possibility that a company may continue to operate during a strike may cause employees to not reassess their position and may result in not engaging in serious collective bargaining.
From Westroc's perspective, if a strike occurred at our plant in Ontario, we would have very few options. We could attempt to partially service our market by production from other plants. However, this would be very costly and we could not meet all of the requirements, which would result in lost market share. More likely, without this leverage we would probably settle with higher wage settlements than would be appropriate for the economic climate. In the long run, this would hurt our competitive position and jeopardize jobs in the future. It's very important in collective bargaining that there be equal leverage for both sides and that both the company and the union have sufficient pressure to reach an agreement through collective bargaining.
Second, Bill 40 mandates certain collective agreement provisions in spite of whether they were negotiated by the parties. In the case of a plant closure or a group layoff of more than 50, Bill 40 could direct the parties to negotiate an adjustment plan in spite of the fact that notice requirements are covered adequately within the Employment Standards Act.
Another area of concern is that Bill 40 tips the balance of power so that the rights of individuals and employers are abridged. A specific issue is the removal of the cooling-off provision, where employees who have signed a membership card can sign a petition opting out of membership. The bill would deny petitions or other evidence that an employee has changed his or her mind after the union has filed for certification. The new provisions on replacement workers that I mentioned earlier not only limit the company's ability to operate but remove the individual freedom to choose to work, thus disadvantaging two of the three parties to the agreement.
In summary, I agree that a cohesive, positive relationship between management and labour is not only desirable but critical to the success of our province's industries and people. Unfortunately, there are flaws within Bill 40 that threaten that relationship, which has been improving over time. We cannot afford to take a step backwards to bygone days of confrontation and distrust. We must look to craft a partnership that creates successful industries so that all employees, whether management or labour, can also succeed.
I am pleased that all sides are providing input and hope that a balanced bill will be the result. There are high expectations that the work of the Premier's Labour-Management Advisory Committee will have a significant impact on this legislation. It is an important forum for the stakeholders of business, labour and government to review these proposals and to reach agreement on balanced reforms to Ontario's labour legislation.
Thank you again for the opportunity to address you today.
The Vice-Chair (Mr Bob Huget): Thank you very much. Questions? Mr Ward, you have about seven minutes.
Mr Brad Ward (Brantford): I'd like to thank you for taking the time to come down and make us aware of Westroc Industries Ltd's views concerning Bill 40. I'm pleased to see that you recognize the need to update the labour laws as they are in existence today, as I think the vast majority of presenters have also recognized.
You add greater evidence by stating, "Canada ranks 16th [of 23 industrial countries] in workdays per 1,000 people lost to industrial disputes, 16th in the extent to which industrial relations are conducive to labour peace and 19th in the extent to which unions and management work together to their mutual benefit."
Obviously, what we have in existence today isn't working and we have to look at new ways to do things to meet the economic challenges we're facing today.
You made a statement that investment will be hurt in Ontario if Bill 40 proceeds. When I look at my community of Brantford, we've had tough times. We never really recovered from the last recession, but we've had investment since labour law reform has been discussed in the province. I can refer to a German company, BASF, which recently announced a $6-million upgrading of its plant in Brantford. The fact that we have lost plants I think can be shown to be due to mismanagement, receivership, bankruptcies or rationalization of the corporation -- Maple Leaf is one; Koehring Waterous is another -- but nothing to do with labour reform.
Critics of Bill 40 constantly mention the fact that we are losing investment. I hope you don't refer to that Ernst and Young report. That hasn't much credibility in the minds of this committee, I think, because it was based on opinion. I hope you're not referring to that when you make the statement that investment is going to be hurt.
You do support the need for replacement workers. The question I have is, the last time Westroc Industries used replacement workers during a labour dispute, did you not find that it soured the working relationship between your hard-working employees and your company?
Mr Farrell: Are you referring to the strike in the early 1980s?
Mr Ward: You support the need for replacement workers, so I'm assuming you have used them. Is that true?
Mr Farrell: We used them once in the early 1980s.
Mr Ward: Did you not find the relationship between your hard-working, loyal employees and the company to be soured because of that experience?
Mr Farrell: There's no question that it caused some complications, but the choice for us basically was that we were in the middle of a nine-month strike and we had two options: either to continue the business, to make sure we had a business at the end of the strike --
Mr Ward: Which location was this?
Mr Farrell: This was located in Mississauga.
Mr Ward: The other question I have is that we've had mounting evidence concerning abuse by employers when it comes to petitions; mounting evidence from proponents of Bill 40 who come out in support of the petition restrictions, which are in existence in every other jurisdiction in Canada in some form or another. Yet you feel there is a need to be critical of the direction we're heading in -- what we suggest is the proper direction in Ontario -- even though there is mounting evidence that there is employer abuse of that particular law as it exists today as it pertains to petitions. Do you dispute the evidence that has been presented to this committee by other presenters?
Mr Farrell: I wouldn't dispute it, but I do think it's important that employees have an opportunity to make sure they've made a proper and reasoned decision. I can only speak from my own experience with a previous employer, where membership cards were being signed. In some cases, when the employees were signing the membership cards, they were under the impression that they were asking for more information. So I think putting the provisions in this bill would limit the opportunities for employees to perhaps re-evaluate their position.
Mr Ward: Even though they're in existence everywhere else in Canada? You feel Ontario should stand alone on that particular issue?
Mr Farrell: I think employees should basically have a full opportunity to make an educated decision.
Mr Ron Eddy (Brant-Haldimand): Thank you for expressing your concerns to us. They're very helpful. I'm pleased you're here, especially in view of your experience with this company and the previous company.
On page 3, the second paragraph, I note with interest what you say: "Further changes are required in Bill 40, changes which need to be supported by business, labour and government." Indeed, realizing that bargaining and negotiation are the bases of good labour relations in Ontario and have been to a great extent, perhaps the present changes should be dealt with in the same way.
I doubt if we'd have as dramatic and as many changes, but perhaps there are many things, and indeed additional items, that could be included in amendments to Bill 40 that would be helpful to the three parties you named. Would you express an opinion on that?
Mr Farrell: I would agree with that. I think if all three sides were actively involved in helping to design the legislation and they could reach agreement and consensus on it, there would much more of a vested interest to have all sides supporting the legislation. Right now what we basically have is various groups opposing various segments of it. I think everybody is losing out because of it.
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Mr Gary Carr (Oakville South): I was interested regarding the strike. I believe that facility was the one down on Lakeshore in Mississauga, which I remember because it borders on my riding. It was a few years ago, if memory serves me.
If Bill 40 had been in place, there would be two sides to the argument. One could say the strike never would have happened because whatever the concerns were, they would have said, "Going out on strike, we wouldn't be able to operate. We'd totally have to shut down, so we're not going to go on strike, and give in to the demands." Another argument would be that had you gone on strike, there would have been even more serious consequences for the company.
Looking at this bill and looking at that strike, what do you think would have happened had this bill been in place going back to the time of the strike?
Mr Farrell: The strike probably would have lasted longer and probably our entire business would have been jeopardized. My concern with the use of replacement workers is that in the kind of industry we're in at Westroc, the decision to use replacement workers would be a last resort, because it takes a great deal of time to train our employees. There's always the concern that with a new, inexperienced workforce, you're going to produce inferior product.
The concern I have, though, with not having the option of using replacement workers is that it limits the leverage involved in the negotiation process. With the use of replacement workers, the union really has to think very carefully about its position, as we do, to make sure that the strike is basically the last resort.
For example, we had a strike last year in Montreal, a strike which lasted four months. To date, and it's been over a year since that strike, we still haven't really recovered our market share; we have lost a lot. In that strike in Montreal, the employees lost four months of wages. I'm not so sure that strike would have occurred if there had been the possibility of using replacement workers, bebause at the time of the bargaining last year, there was a feeling by the union that probably we would not go on strike because we couldn't use replacement work©£ä¥
It's the leverage aspect in the bargaining process that concerns me the most at Westroc about not being able to use replacement workers, because it limits our options and the unions are aware of that.
Mrs Witmer: Mr Farrell, thank you very much for your very positive presentation. I appreciate your willingness to sit down at the table and acknowledge that there are problems, and then together work them out.
You mentioned here that Bill 40 does abridge the rights of the individuals and the employers. You refer to the cooling-off provision that employees will no longer have after they sign a membership card. Do you have any suggestions as to how the rights of individuals can be re-established, improved upon, that are now being taken away?
Mr Farrell: I guess my feeling is that under the current provision we have in the act right now, I don't really believe the employees' rights are being jeopardized. Again, I can only refer to my own experience where I have been involved in non-union operations and where there were union drives, and there was no intimidation by management. Employees did have the free choice to sign the membership cards, but the experience I had was that often employees were signing the membership cards and weren't really fully aware of the consequences. By not allowing employees to re-evaluate their position, in some cases they may be signing the membership card and inadvertently believe that there will be another opportunity for them to make their final decision when in fact there wouldn't be.
The Chair: Thank you, Mr Farrell. We want to thank you and Westroc Industries for being here this morning presenting your views with respect to Bill 40; trusting that you'll keep in touch with members of this committee and other members of the Legislative Assembly.
Mr Farrell: Great. Thank you very much.
NATIONAL ACTION COMMITTEE ON THE STATUS OF WOMEN
The Chair: The next participant is the National Action Committee on the Status of Women. Please seat yourselves at a microphone, tell us your names, your titles, if any, and try to save the last 15 minutes of the half-hour for exchanges and dialogue, please. Go ahead.
Ms Janet Maher: My name is Janet Maher. I'm with the Ontario Women's Action Coalition, which is the Ontario affiliate of the national action committee.
Ms Judy Fudge: My name's Judy Fudge. I teach labour relations law at Osgoode Hall law school and I'm co-chair of the employment and economy committee for the National Action Committee on the Status of Women.
We're pleased to be able to appear before the legislative committee considering Bill 40, the amendments to the Labour Relations Act, in order to present the view of our 500 member groups, of which 250 are located in Ontario. As Canada's largest feminist organization, NAC believes that it has an important voice which has not been heard or listened to, yet we see ourselves as representing the women who aren't in unions, who aren't part of the table. Unionization and labour relations law reform is absolutely essential for women workers and is a women's issue.
Ms Maher: I want to start by giving a bit of an overview to the presentation today, and I hope you have copies of our brief in hand.
Collective bargaining legislation is crucial for improving the economic situation and working conditions of women workers. Unionization and collective bargaining are important means for improving the terms and conditions of employment for women workers. Unions improve wages and working conditions for their members.
As well, in general, unions tend to compress the wage structure by making it more equal and they bargain for fringe benefits, many of which involve the same cost per worker to the employer and hence benefit lower-wage workers disproportionately. Unions also provide a degree of due process through mechanisms such as grievance procedures, as well as monitoring and communication functions; these are likely to help workers who have little individual bargaining power.
In addition, trade union representation is essential for the effective
enforcement of statutory rights under the human rights, employment standards,
pay equity, employment equity and occupational health and safety legislation.
The problem is, though, that women benefit less from unionization than men do
because women are less likely to be unionized. In( ?0_pq2#>%3YXgYTB
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workers who work on third-party property such as shopping malls or industrial
plazas; delays and roadblocks in the certification procedure -- and I can
speak from personal experience on this; the labour relations board's narrow
definitions of appropriate bargaining units, which exacerbates the
sex-segregated labour market; the isolation of part-time workers into their
own units; delays in first-contract arbitration and employers' unfettered
right to hire replacement workers work against the successful unionization of
women workers.
These biases against the unionization of women workers are systemic and endemic to Ontario's collective bargaining law. The struggles of workers, many of whom are women, at Dylex, Fleck, Eaton's, Miniskools, McGregor Hosiery, just to name a few of the most notorious examples, illustrate the failures of existing labour relations legislation to provide effective collective bargaining for the majority of women workers in Ontario.
I want also to talk a bit about the role of the mainstream media in the current debate over labour law reform. In the mainstream media in general, and the daily newspapers in particular, the debate over labour law reform has been framed as big unions attempting to persuade their friends in government to tip the existing balance in labour law against employers. Not only are the biases in labour law which benefit employers ignored in that caricature, the concerted pressure of the business lobby, represented before you by groups like the All Business Coalition, More Jobs Coalition and Project Economic Growth, has not received any critical evaluation.
Instead of directly answering why it is that modest reform of labour relations legislation, which is designed to result in a slight-to-moderate increase in unionization, is so bad for the Ontario economy, business interests have resorted to both tacit and explicit threats that companies will be forced to relocate or to divest if legislation is enacted which helps workers to unionize. Indeed the very people whom the legislative amendments are designed to protect, unorganized women workers of all colours and visible minority workers of both genders, have been noticeably absent from the public debate as reported in popular media.
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We think it is time for this government to listen to these workers and the organizations which represent them. Business interests have dominated the debate for too long. The fact that the Ministry of Labour's own highlights of Bill 40 announces that 10 of the changes in Bill 40 which depart from the Ministry of Labour's November 1991 discussion paper are directly attributable to business pressure demonstrates the extent to which the business lobby has drowned out the legitimate demands of Ontario workers.
The government's decision to water down labour reforms in response to this pressure we think is profoundly distressing, both to NAC and to the women we represent and to the women in the Ontario Women's Action Coalition. Any further capitulation to these bullying tactics will undermine the government's commitment to improving equity in the workplace for women and for visible minority workers.
In our submission in response to the Ministry of Labour's discussion paper, we strongly supported the government's commitment to revising the Labour Relations Act to facilitate the right to organize for women of all colours and visible minority workers of both genders who are employed in small establishments in the services sector.
However, even then we were concerned that the government's proposal simply did not go far enough to ensure effective access to organizing and collective bargaining for working people, particularly working women, in Ontario. Our reasons for that evaluation were presented when we spoke at that time. We think the evaluation still stands, doubly so in light of the government's decision to further compromise the ability of women workers to join trade unions, to enter and engage in effective collective bargaining. We believe that stronger legislation than is provided for in Bill 40 is needed to protect what have become paper rights for the majority of women workers in this province. Rather than going over the old ground covered in our previous submission, though, I'll ask Judy to talk about our five main concerns. Then we'll go directly to the recommendations in order to give some time for your questions.
Ms Fudge: We've identified five major areas that directly impact on the unionization of women workers. The first is organizing rights; second, bargaining unit structures; third, first-contract arbitration; fourth, replacement worker restrictions; and fifth, the preservation of bargaining rights on successors, on the sale of a business.
Organizing rights are absolutely key for the unionization of women workers. For too long, too many unscrupulous employers have fired, disciplined and intimidated workers from joining trade unions. We know this is the case. All you have to do is to read the Ontario Labour Relations Board reports. When I teach labour relations law to my students at the law school, they are surprised that any workers can unionize. What we see is in fact that the workers who have been able to unionize in this province are old-scale manufacturing, resource and transportation sectors and the public service. If you look at the proportion of unorganized women in the private sector, it's the vast majority. Only about 12%, at the very most, of women in the private sector are unionized, and it's not because they don't want to join unions; it's because they are faced by a bunch of hurdles.
Petitions have to be abolished after certification application has been launched with the Ontario Labour Relations Board. In the vast majority of cases, the petitions are organized by employers and they're thrown out, and they don't influence the actual certification of the bargaining unit. However, they create huge delays which cost thousands of dollars, which go into lawyers' hands, not workers' hands, and not into the productive capacity of the province. This should be stopped now.
Access to third-party property is absolutely essential for organizing women workers. We know that from the Eaton's strike in the mid-1980s here in Ontario. We could have avoided thousands of dollars of litigation if it had been clear right from the beginning that the union was legally entitled to go into public areas to hand out information. This should be provided and we're very pleased that the government has introduced that.
We're saddened to see that the government has compromised from some of the proposals that it had introduced in the 1991 discussion paper. We cannot understand why employers could possibly object to the requirement to post a notice of legal rights in their workplaces. All the government had proposed was that employers have to post that employees are entitled to join unions. But somehow the business community thought this was too much of an infringement on their freedom to use their wall space as they saw fit. This is a legal right. The way to give access to legal rights is through education. There should be no reason that anyone would be upset by this, and the business community's adamant opposition to this just seems to me to suggest an anti-union perspective rather than any commitment to partnership.
Bargaining unit structures are absolutely key for the unionization of women workers. The vast majority of bargaining units certified here in Ontario are fewer than 20 members. Twenty people cannot fight against the National Trust Co. That's why it's been unsuccessful to maintain the collective agreements and the unions they've had; you can't do that. We've seen it in the banks federally. We'll see in the trust companies. We've seen it with Eaton's. We've seen it with various other service sectors.
We need larger units. We need a full-scale revision of bargaining unit structure here in Ontario, because the analysis we've done of bargaining unit structure shows that bargaining unit determination is based on sex-biased criteria, which results in the fact that women are segregated into small units, female-dominated, with little power. The government should move immediately to establish a task force on broader-based bargaining to look into this matter.
We are, however, happy with three of the reforms the government has come forward with in the bargaining unit determination process. For too long the Ontario Labour Relations Board has segregated part-time workers into separate units from full-time workers on the strange assumption, which is completely ill-founded, that these two groups of workers have separate interests. They have separate interests typically because part-time workers are paid less and get few fringe benefits and are women. Their interests are the same as other workers: to get better wages, to get better benefits and to work in solidarity to improve their conditions of work. We think this is an important step that the government has done to say that part-time units and full-time units should be the same unit.
We're also pleased to see that the government will allow for the consolidation of different bargaining units of the same employer, represented by the same unit at different locations. This is an important step forward, because it allows workers to consolidate and it will stop employers from contracting out services to other locations during strikes to prolong strikes. This is an absolutely essential amendment.
However, we are sad that the government has seen fit only to make this a consideration in the labour relations board's bargaining unit determination policy. Consolidation should be mandatory. Workers should decide with whom they have a community of interest, not the labour relations board.
Third, we are pleased to see that domestic workers are now permitted to join a union. This is an important step forward, and we are very pleased. There have been several charter challenges around these kinds of things in the past, so it's good to see that we finally recognize that women who work providing essential services around child care are now entitled to join unions.
The problem is that this is simply a symbolic right. We have not amended the bargaining unit's requirement that there be two members to a bargaining unit. Most people don't hire an army of domestic workers. So we think this is an important step forward but only a symbolic step forward, and we think we need a task force on broader-based bargaining to look at unionization for domestic workers.
First-contract arbitration we think is a really important amendment. The automatic right to first-contract arbitration within 30 days from a right-to-strike or right-to-lockout position is important. We've seen that first-contract arbitration, as it now is in the legislation, results in incredibly long delays to get the right to first contract. The hearings take several months just to find out if you're going to get a first contract and then it can take from nine months to three years to get a first contract imposed.
These should be real rights, and employers who have engaged in practices and who have shown an anti-union history in the past should be forced to live up to the legal obligations and bargain with these people. If they can't bargain with these people, they should have the contract imposed.
Replacement worker restrictions are absolutely essential for workers in the retail sector and in the service sector. We've seen long strikes involving women workers because employers have hired replacement workers. We only have to think of Fleck in the late 1970s and Eaton's in the mid-1980s, where employers have hired many replacement workers during a lawful strike and then those employees continue to be hired, as at Eaton's, are rolled into the bargaining unit, and lo and behold we have a decertification application. What a surprise. We've got to stop that.
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Employers, under this proposed legislation, can use supervisory employees, managerial employees, and they can contract out work. I cannot see how they could possibly not be able to live with this. It may be cases like Westroc, where they locked out and then hired replacement workers, rather than having a strike and then hiring replacement workers. We see that some employers actually use replacement workers with lockouts to defeat unionization. We have to stop this. It is a basic democratic right to be able to join a union, to be able to engage in collective bargaining. The law has placed an advantage in the hands of employers, which should be righted now.
Preservation of bargaining units is absolutely key for workers in the service sector. We're pleased to see that this government has finally introduced legislation which will implement the demands of the coalition that was formed in the 1970s for cleaners' rights.
In the service contracting and recontracting business, cafeteria workers and cleaners have fought long and hard to get unionized and sign a collective agreement. Then the Canadian Imperial Bank of Commerce or any other large organization retenders the contract and those workers lose their collective agreement. What we've got in this legislation is something that says that if you retender and the retenderer hires those employees, then the collective agreement follows. This is an important step.
We'd like to see improvements as well in successor right provisions, because we know right now that some employers sell their business by selling only their assets and arranging their legal relationships so that they avoid successor right provisions. We think that should be strengthened now.
We'd also like to see some changes to the related employer provision. The National Action Committee on the Status of Women is a member of the home workers' coalition for fair wages and just working conditions. What we've seen in the city of Toronto is a movement away from factory work into home workers, particularly in the Chinese garment workers' community.
We know that at the top of the pyramid sits Dylex, the largest Canadian clothes retailer in the country. We know they have a chain of jobbers and manufacturers and contractors, and ultimately the work is being done by home workers who are working extraordinarily long hours, getting less than minimum wage and no benefits. A related employer provision, by showing who's the economic dominator at the top and tracing through the chain of contracts, would impose legal obligations on employers like Dylex that are trying to treat Canadian women workers now like workers in Bangladesh and Honduras are being treated. This must be stopped.
In all, in our brief we provide an analysis of what we consider to be both the shortcomings and the benefits of the proposed legislation. NAC believes the legislation is a step in the right direction and we would encourage the government to walk more boldly down this path.
NAC endorses the government's social equity objective of improving access to organization and collective bargaining for workers at the bottom of the labour market. The current process of economic restructuring and continental integration has resulted in an increasingly polarized labour market.
The Economic Council of Canada, before it was disbanded by the Tories, characterized this trend as good jobs-bad jobs. Most of these bad jobs are done by women and young workers. The proliferation of non-standard work, or bad jobs, is making things worse for the majority of workers in Ontario.
NAC believes that it is crucial for the government to develop a labour market strategy which is designed for workers at the bottom. While some of the government's proposals will facilitate organizing and collective bargaining, we believe they simply do not go far enough. In effect, the government is introducing amendments designed for a 1970s labour market, which is radically different from the polarized labour market of the late 1980s and the 1990s.
It is extremely unlikely that even if all the proposals are implemented, women and visible minority workers will benefit to any really significant extent. Trickle-down strategies will not prevent the growth of precarious employment or stop the spread of cheap labour. The implementation of a social equity agenda should begin by addressing the precarious situation of workers at the bottom.
Business is opposed to any reforms which will improve the equitable regulation of the labour market. In the past, business has opposed legislation imposing minimum wages, maximum hours of work, maternity leaves, pay and employment equity and the right of workers to join unions and engage in collective bargaining. Each of these legislative victories has been won after a prolonged struggle with business opponents, often from recalcitrant governments.
Despite legislative initiatives such as collective bargaining and employment standards law -- and many of us would argue that it is precisely because of these forms of regulation -- the people of Ontario have enjoyed an enviable standard of living when compared with the situation of people around the globe.
Business is using the shibboleth of global competition in an attempt to lower the living standards of Ontario working people and working women. Business has always called for laissez-faire in the labour market because without regulation it will always attempt to lower the cost of labour. That's the way the system works. This government should not allow this to continue to happen. Thus, it must remain firm in its commitment to a social equity agenda for Ontario. Enacting labour law reform is just one step in this agenda; pay and employment equity legislation which has been introduced should also be enacted.
NAC urges the government immediately to act upon the following recommendations:
1. Establish a task force on broader-based bargaining to examine and develop various models for achieving broader-based bargaining in specific sectors across Ontario. Broader-based bargaining is absolutely essential if the most vulnerable workers are to enjoy the benefits of effective collective bargaining.
2. The government should immediately undertake a review of the Employment Standards Act. This legislation no longer addresses the needs of unorganized workers. In the interim, the government should ensure the effective enforcement of existing minimum standards. Not only are the existing standards low; the present legislation is riddled with exemptions. To make matters worse, the abysmal enforcement record of the Ministry of Labour is well documented.
The effective enforcement of existing labour standards would be of immediate benefit for workers at the bottom of the labour market and it would also create a disincentive for employers to continue to fight unionization because they can exploit poorly protected workers at the bottom. It is simply unacceptable that many employers continue to flout basic legal rights.
3. The government should adhere to its timetable regarding the introduction of legislation to revise the Labour Relations Act. Bill 40 should be introduced and it should be introduced soon. However, in doing so, the government must stand firm in the face of the orchestrated business opposition to these reforms. In fact, if the government is truly committed to its social equity objectives, it should substantially strengthen many of the proposals contained in Bill 40.
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Mr Offer: Thank you for your presentation. I was listening to your presentation carefully, and it seems what you are saying in the area of home workers is that because there isn't this broader-based sectoral type of bargaining, this bill doesn't really help in any marked way. The second point is with respect to domestics, notwithstanding the fact they're now included, that because the minimum unit has not been reduced from what it is now, from two to one, the bill will not in any real way help domestics.
I'm wondering if that's the position on those two areas, because I have a question I would like to ask. If the bill doesn't do it, do you think that maybe we should be looking at the Employment Standards Act?
Ms Fudge: I think it's always a mistake to attempt to revise labour relations legislation to improve the conditions of workers in a particular sector by only looking at individual pieces of legislation. So I would say that you're right. If you want to improve the conditions of the growing numbers of home workers in Ontario and the conditions of domestic workers, you would have to revise the Employment Standards Act and you would also have to introduce broader-based bargaining.
But as well, you would have to ensure that employers don't misuse petitions, that there are expedited hearings for unfair labour practices instead of the incredible delays that there are now, that there are no replacement workers, that there is access to first-contract arbitration. I guess because, having presented briefs before, I've become a bit of a political realist. I'd be happy to see the expedited hearings for unfair labour practices and no petitions as a down payment and first step in that way. It would be wonderful to see all the parties coming out in support of unorganized women workers in that way.
Mr Offer: Do I have time for one last question?
The Chair: One last brief question.
Mr Offer: I'd certainly love to discuss with you the issue of replacement workers on the basis of things we have heard, but I want to talk about the full-time and part-time issue, because in the legislation there is an assumption. The assumption is, first, that the part-time workers have been unionized. There's an assumption that the full-time workers have been unionized. After making that assumption, there is the possibility of combining those two units. But because of the way in which it's worded, I believe the rights and the wishes of the part-time workers can easily be overlooked.
I've used the example of if there is a unit of 75 full-time workers and a unit of 25 part-time workers, under this legislation, if 55 full-time workers say, "Yes, we want to be combined," and no part-time worker in that unit wished to be combined, then under the legislation they are combined. Is there a concern you have when there's legislation that really does and can absent itself from the wishes of part-time workers in one unit?
Ms Fudge: The way the present legislation operates under board policy is that if either the employer or the union doesn't want the part-timers in, the part-timers aren't brought in, regardless of the wish of 100% of the part-time workers. So I certainly think going back to maintaining the status quo would be the worst possible thing.
Most of the evidence suggests that part-time work is increasingly an involuntary experience. The studies that were done by Weekes, Davis, White and the large study done by the federal government suggest that part-timers would prefer to be in full-time units. So if there were the occasional anomaly, discrepancies such as you suggested -- I guess it's also like the 40% of workers who may not want to join a trade union. That's the problem; it's democracy. I don't know how many Liberals didn't vote for the NDP. It's something you have to live with, and in that case, I think the workers should live with it.
Mrs Witmer: Ms Fudge, thank you for your presentation. Certainly, I would agree with you that this legislation does not meet the needs of women, especially minority immigrant women and visible minorities.
You've indicated here that joining a union should be recognized as a right and should not require workers to participate in clandestine activities. I would agree with you.
One of the things I have been concerned about is that we should no longer continue to exploit women and immigrants who do not always have very good language skills and don't understand English. I would agree that workers need the right to organize. In order to carry through on that, I think they also need to be fully informed as to what it means to be unionized, what are the consequences, what are the dues, what it means to go on strike.
I have been encouraging the government to look at a process where all workers, during the certification process, would be fully informed by both the union organizer and the employer as to what's involved. I think it should be a very open process. Then at the end of the process, I have been suggesting there be a secret ballot vote so that all workers have the opportunity to exercise that democratic right of a free vote after being fully informed.
I would hope in the case of immigrant women we would make interpreters available to them as well so they would fully understand what is involved, what is going on, because these people, as you have indicated, certainly can be exploited by many different sources.
Ms Fudge: That's the model they have in the United States under the Wagner Act, where they have representation votes on each case. Employers abuse them even though there's all sorts of access and things like that. It's notorious that employers abuse them.
Even Paul Weiler, who is a professor at Harvard University and not known as an extreme supporter of feminist causes, has argued that the very mechanism you're proposing creates such a power advantage for employers, who have the ability to hire, fire and discipline during this process and the ability to intimidate workers, that it results in a lack of success in union representation votes when these people had initially supported unions.
I would be extremely worried about moving in that direction. Maybe I could foresee that direction being okay if, as a quid pro quo, employers were not allowed to discharge or discipline or change terms and conditions of employment once the union put up a petition to certify. That might be an interesting tradeoff, but I don't think you'd get many employers' organizations buying that one.
Mrs Witmer: Obviously, the government could establish safeguards. I guess if we talk about the need to make sure that workers are not exploited, I don't know why you would object to fully informing all people in a workplace as to what unionization involves, because this is a decision that's going to have an impact on their jobs for many years to come.
Ms Maher: I fully agree with you that it is a decision. I've been involved in three different organizing drives. As a member of a workplace over the last 12 years, I've been involved in organizing. I don't even recognize some of the conditions you're talking about. Normally, the will to unionize, particularly in small workplaces where you have a lot of women and visible minorities -- the workers recognize there's a situation of unfairness going on. Particularly in a small workplace, you can't afford to have dissension within the work unit.
I can't imagine a situation where everybody isn't quite fully apprised of the needs, the rights, the objectives of a unionizing drive and so on and so forth. Other than some of the notice provisions and so on that we've talked about, I'm trying to figure out how there's going to be the kind of situation you talk about.
Mrs Witmer: You can have a situation where you would only need 55% of the membership to sign cards, so the rest of them might not even be aware of the fact that there's a drive going on and would be forced into a union. What I'm saying is that we need to inform the entire workplace that there's a unionizing drive. We need to fully discuss what's involved in joining a union and then allow individuals to make a free choice. Obviously we can put in some safeguards and made sure people are not dismissed, but I think we need to open up the process. You yourself have indicated it should not be a clandestine activity.
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Ms Maher: And it hardly ever is.
Mrs Witmer: That's right.
Ms Fudge: But one of the first questions I ask my students when we're doing unfair labour practice during organizing is, why are all these workers meeting in the Holiday Inn? It's because they can't speak union in the workplace and not get disciplined. That is an unfair labour practice now, to dismiss or to discipline workers during organizing drives, but it happens all the time. Employers are flouting the law repeatedly. Workers have tried to organize.
I think it's a mischaracterization to see unions, which have historically arisen out of the needs and feelings and longings of people for self-determination, as the evil bad guys when they're defensive organizations historically organized by people who want protection from the power employers have exercised against them. We have to accept in Ontario that many employers continue to break the law repeatedly, and it's cost-effective for them to do so.
So I think I would disagree with your assumption right from the beginning. I think it's not based on an accurate assessment of the facts or an accurate assessment of the historical situation that's led to the demand for unionization by women and men workers in this province.
Mrs Witmer: So you would disagree that workers have the right to be fully informed and to cast a secret ballot and make that choice as an individual.
Ms Fudge: I would say that the democratic protections available to workers now are closely drawn, and they protect this, and that the intimidation people experience in their work is not from their unions but from their employers. That's precisely why, as the largest representative of women's groups, we would like to see stronger legislation introduced now to stop employers from behaving unscrupulously and making workers behave in a clandestine manner so that they avoid being discharged and disciplined.
Mr Bob Huget (Sarnia): Thank you very much for your presentation. You raise the issue of the garment industry. I should tell you that Dylex has been here and presented quite a different picture of the garment industry than we were afforded last night by people who work in the home working industry. In fact Dylex will tell you that it has a very progressive, modern operation and none of these injustices occur. Home workers reminded us last evening of situations where there are people working in basements, and in this particular case with a hearing disability, for approximately $1 an hour as a home worker and a piece worker and then provide those finished goods, I suppose, to family-type operations like Dylex.
In your brief, on pages 13 and 14 you refer to the Labour Relations Act and the definition of a "related employer" and say that it should be patterned after the Employment Standards Act. You also relate to a structure I think it is important that people understand, this pyramid structure, how that structure would allow a company like Dylex to tell me on the one hand, I suppose, that it's the best place on this earth to work, and still have those kinds of conditions in suppliers to its operation. I would like to know how that system works and what inherently is its impact on women workers and on immigrant women workers, and if there is time, I would like to know your views on the expansion of home work, not garment work essentially, but other types of home work, through technology, for example by the use of computer modems and the ability to do a lot of computer work at home. Is this an issue of the future that's going to become bigger and not smaller?
Ms Maher: I want to start with your last question first, because I think this is something that's increasingly coming to our information. We have all the fast-food chains and so on doing data processing away from the fast-food operations, the delivery operations and so on. I think that is an increasing trend, and it's part of the bad-job stuff Judy talked about before. How we can address any of those kinds of issues without the broader-based bargaining strategy I think is a really major kind of piece, and you were going to talk to the other piece.
Ms Fudge: No one knows how many home workers there are, and home workers cover a spectrum from someone like me, who takes my Toshiba home and works on that as a professional, to the woman in the sweatshop conditions as a garment worker. But it's increasingly covering white-collar workers, we've seen. So there's a continuum, and we know that employers are engaging home workers because it shifts the costs of production away from themselves on to the workers. We also know they're impossible to unionize and it's impossible to enforce minimum standards.
Globally, there is an increase in home working of all the various different types. In Ontario we've seen an increase in the garment industry. In the United States they estimate that there's been a 300% increase in home working since the mid-1970s.
Home working would be a form of employment that the economic council called own account self-employment, and the average income of these people is under $10,000 in 1989 dollars, so they're the worst-off people, but at law, employers try to characterize them as small-time entrepreneurs.
In the garment industry I think what we're seeing is the beginning of a way that lots of corporations are going to try and restructure. The garment industry is on the one hand extraordinarily labour-intensive, but it is in fact investing in many new technologies. The new textile productions are capital-intensive and extremely efficient, and there's now electronic data interchange, which allows retailers at the top -- Dylex, the Bay and Eaton's; just three notorious examples here -- to set up this electronic data interchange with manufacturers and jobbers. They tell the manufacturers and jobbers, "We need white women's blouses at this retail price; you provide them to us," and they interlock electronically. They then have the manufacturers and the jobbers, who contract out that work down to subcontractors, and then at the bottom to a chain of home workers.
The manufacturers and jobbers no longer now sell large inventories to the retailers. What they do is sell piece, and they play in competition with each other.
So they're completely controlled economically, and as we move each step down the pyramid we have increasing competition, and at the very bottom of the pyramid we have home workers, visible minority workers, who have no union protection and very few legal protections.
This form of production in the garment industry was introduced in Mexico in the 1960s and is used by large multinational producers like Liz Claiborne, where they have some production in Bangladesh, some production in the Philippines and some production in Honduras, and they use this.
If you're going to ensure that employers are using new forms of flexible production to increase the value added part of their business efficiently, then what we have to do is create a disincentive where they're just using these new production forms to exploit labour, because I think we'd all agree that cheap labour -- poor jobs -- will not generate enough wealth for Ontario to continue into prosperity. To ensure that they use these new production forms efficiently, we have to ensure that there are very good minimum standards protections at the bottom so it's just not a way of avoiding regulation.
It seems to me that's a good test. If you want to do it efficiently, productively and in partnership, we're really happy to see that. We need wealth generation here. But please don't use "flexible" as a euphemism for exploitation, because it is getting a bit tiresome.
The Chair: Mr Klopp, quickly, please.
Mr Paul Klopp (Huron): Yes. You mention on page 6 access to employer property and you expanded on that during your conversation. The other area was employee lists. That has been brought up before. There has been discussion from a different point of view that you don't want to have women's names on a list, and their addresses, because it will be out there and women will be -- I don't know what could happen -- abused or something. What is your opinion on that? Can you expand on that point, or do you have a different view?
Ms Fudge: I think there is a general problem around access to names. In the society we live in, women have a legitimate fear of being intimidated. I do not see why employers are now attempting to defend women from nasty, harassing unions when they fought sexual harassment policies and sexual harassment legislation. I just don't quite understand this about-face, this feminist revival in employers' groups.
I think one thing about giving unions access to lists is that it acknowledges the legitimacy of the right to join a union. I can't quite understand why we make unions engage in this huge, awful process of going through phone books and phoning up all the J. Smiths in a particular area, hoping to get that particular employee, to call them out to a union organizing drive.
It seems to me the ability to join a trade union should be the same as the ability to join almost any other thing. I'm quite sure some employers send employee lists off to various forms of organizations all the time. If we're going to prohibit employers from giving unions access to lists, maybe we should treat this as a confidential piece of information, and employers shouldn't use it for a whole range of other things like they do.
The Chair: Thank you. We've got to end this, because we've gone a little bit beyond our time slot. We'll have to go into our lunch break. In any event, I want to thank the National Action Committee on the Status of Women. Professor Fudge and Ms Maher, we thank you for coming here and sharing your views with us and for entertaining and responding to our questions. We appreciate your interest and your involvement. Thank you kindly.
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JOHN CRISPO
The Chair: Professor Crispo is the next participant. Please be seated. You'll have half an hour, sir.
Dr John Crispo: Thank you for the opportunity to appear. I'll be on very short notice, and that leads to one point I'd like to make at the outset about my formal brief. It's hardly a formal brief. I just wasn't in a position to write a formal brief overnight, especially with the North American free trade agreement being announced. What I've given you is something I intended to submit as a newspaper article, especially if I didn't get an opportunity to appear before this committee. I'll speak to it if you want. It captures the essence of what I want to say, but I had some other notes, which I'll refer to in a moment, that I think would be more appropriate for my actual presentation.
Perhaps if you'll forgive me, I could start with my credentials. It may be a little arrogant and egotistical to do so, but I've spent 30 years of my life teaching industrial relations. I spent much of my early life doing a lot of arbitration, conciliation and mediation. I was on several royal commissions and task forces. I was a consultant at various times to the Ontario Ministry of Labour and the Ontario Labour Relations Board. I was chairman of the first Ontario labour-management council. Unfortunately it didn't survive. I was a member of the Prime Minister's task force on industrial relations, which was a two-year effort that led to what I think is the most comprehensive report ever written on industrial relations in this country and which is still my Bible to this day.
Perhaps most of all, I had Bob Rae as my research and teaching assistant for two years, so I learned a lot at the seat of the Premier. I hesitate to take on Bob on anything, though. Forgive this little note of humour; I hope you'll find it humorous. Bob and I debated for years. I'll never forget one of our first debates. We were on the Pierre Berton show and Pierre started by saying, "I think I should tell this audience that Bob Rae was John's research and teaching assistant for two years." I said: "Hold it, Pierre. Let's make it clear to you and the audience that Bob may have been my research and teaching assistant for two years, but he didn't learn a thing." Bob just looked across -- Pierre was here and Bob was there -- and said, "There was nothing to learn." Since then, I've been a little careful in anything I say about Bob.
Let's get down to cases. I think this would be intriguing for you. I was due to debate the changes in the Labour Relations Act before the provincial youth council of the NDP last January or February, and due to a misunderstanding I arrived late, the meeting was over and we never had the debate. So I would like to use the notes I prepared at that time, because I always say the same thing before every group I address. I'll skip the introduction, which you might have enjoyed, because I was congratulating the NDP for allowing a character like myself to appear before one of its gatherings to debate a controversial public issue. But after that, my first substantive point was going to be to tell the provincial youth of the NDP why I thought their government was in so much trouble on this legislation, and I'll be very brief.
The points I was going to make were, first of all, you're NDP and you're perceived to be pro-labour. You are pro-labour. Second, the minister is a former Steelworker representative, and I might say a very honest man. He wears his heart and his soul and his mind and everything else on his sleeve and he couldn't help but say what he thought and say it very publicly. During this process, there were the leaked memorandums that gave rise to all sorts of criticism, and perhaps more important than all that is the fact that the economy's in such a mess.
It's in a crisis. Anybody who isn't frightened by what's happening to this country isn't aware of what's going on, and it isn't just because of a recession; it's because of the restructuring we have to go through. Many of you will probably blame it on the free trade agreement. It has precious little to do with the FTA; it has to do with the globalization of everything that's going on.
Meanwhile, we're stuck with unbelievably high deficits and debts, which in turn are giving rise to unbelievably high interest rates and dollar. Some people think interest rates are down in Canada. They're not. In real terms our interest rates still are much higher than the United States because our rate of inflation is much lower.
So we're in real difficulty, and that scares people, and change during tough times scares people.
Finally -- perhaps not finally, but let's say finally -- it isn't just the changes to the Labour Relations Act that have got employers, and I think more than employers, upset. It's the other changes you're proposing: substantial raises in the minimum wage, further strictures under the heading of equal pay for work of equal value, further strictures under the heading of employment equity, and perhaps workers' compensation for stress. If that comes in, Peter, you and I are going to go and jointly apply. Oh, Peter's gone. Sorry. He never stays when I'm around, so I should be used to that. But we'll go and apply for stress and get workers' compensation for it.
None the less, I have some sympathy with the government, because I think some of the reaction has been a little hysterical, but I find it ironic. I couldn't believe the figure of 500,000 jobs that were going to be lost just because of this law. That might happen if you do all the things you're proposing to do, the list I just gave you. The reason I find it ironic is that's the same figure the NDP and the labour movement threw up as the jobs that would be lost because of free trade. There's about as much substance to the one as there is to the other.
Having said that, let's look at the proposed changes. I won't deal with them all.
The preamble: Perhaps a lot of people don't talk about the preamble. I agree in principle in putting in a much better preamble. But when we were on the task force we said, "Look, all the preamble of the Labour Relations Act should say is that there are three purposes to the act: to encourage and facilitate trade unions among groups of workers that want them; to establish the rules of the game, if you want to call it that, the dos and the don'ts for labour, management and everybody else involved; and to protect the public interest," in several senses, which I need not go into.
If you're going to go beyond that and talk about improved terms and conditions of employment, that's fine, but why don't you couple that with something more fulsome than you've got about efficiency, innovation, productivity and competitiveness? Put the two things in there, because there's no way you're going to have improved terms and conditions of employment unless we're more efficient, innovative, productive and more competitive. So put that whole thing in there if you're going to put anything in. I wouldn't put either of the latter two things in, frankly.
Turning to coverage, I agree in principle. Everybody who wants to engage in collective bargaining or collective bludgeoning -- that's what the professionals engage in -- should be under the same legislation. I agree with covering agricultural workers, domestics and professionals.
But why do you still have separate provisions for civil servants and teachers, other than the fact that the NDP owes them a special debt of gratitude? Why are police and firemen and hospital workers under different laws?
No province in this country has a more fragmented approach to the administration of labour relations legislation than this one. If you were going to put everybody under, then put everybody under and don't leave anybody with any special acts of their own.
Certification: I'm pretty strong on certification in the written document you've got. I feel very strongly about mandatory votes. I just think it's an absolute must. And I heard what Judy was saying before. My article says this: I know the legal and not-so-legal things employers engage in. I also know the legal and not-so-legal coercive pressures that unions engage in in trying to persuade individuals to sign cards.
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The only fair and honest way to determine what the collective wishes of a group of workers are is to conduct a board-supervised secret ballot. Now, that should be on a pre-hearing basis every time so you minimize the possibility of employers engaging in the kind of tactics they do.
Why do I feel so strongly about a vote? Not just because I believe that's the only way to discover the true wishes of a collective group of people, but because certification represents a major change in the workplace. I'm not talking about whether it's good or bad, but it does lead to exclusive bargaining rights, to monopoly bargaining rights, which I happen to agree with, to taking away the individual's right to bargain.
It also leads under our law, and I agree with it as well, to the agency shop, to the compulsory levy of union dues and the even higher forms of union security where unions can negotiate them. This is a major change in the constitution of the workplace. By and large, I argue that most workers should probably think very seriously about it, because I don't think they're treated that fairly when they're on their own. But it does amount to a major change, and it should never occur, in my judgement, without a vote.
You'll find some pretty strong language in that article about an NDP that's supposed to believe in the collective judgement of the working men and the working women of this province being so unwilling to give them a vote, not only on this, but on ratification and strike votes, which I may never get back to, but it's just as important that those votes be conducted on a secret ballot basis with maximum access supervised by the labour board.
As for the anti-scab provisions, I just disagree in principle. It won't mean the end of the world; I'm not going to exaggerate this thing. It's going to be very serious for small employers and for a few large ones. Even the poor little Toronto Star says it would die without the right to replace workers. But it's the principle involved. You're just wrong. The quid pro quo for the right to strike is not the right to lock out. A lockout is hardly every used.
As I said in that article, it is a strategic and tactical measure that employers use sometimes when they're faced with a strike and they want to get a jump on the union, so they lock the workers out. The quid pro quo for the right to strike is the right to try to operate, and if one is precious in a free society, the other is precious in a free society. So I say you're dead wrong on this; again, I say this in the article.
Not to say you shouldn't regulate the right to strike, which we do, and you shouldn't regulate the right to try to operate. I feel very strongly that employers should never, in the face of a strike, be allowed to pay employees or replacements anything more, directly or indirectly, than they've offered the union. If you put that in the law, you would eliminate professional strikebreaking activities, which in my judgement should be eliminated. I've said enough on that.
I want to leave a lot of time for questions. Here, forgive me. I didn't have time. I don't even know whether everything that I was going to talk about in terms of redefining obsolete bargaining units -- I agree with that as long as it's along the lines of the BC and the federal legislation.
Good faith? Let me be brief: Drop it. Who can define good faith? All the law should say is that there's an obligation to meet and exchange positions. We already have compulsory conciliation. That's enough. How do you figure out what good faith is, for heaven's sake?
I think the proposed changes evidence too much faith in arbitration and adjudication, but I don't want to spend a lot of time on that. I could say something on first-agreement arbitration. I'm not that big a fan, but it's worked better in Quebec than I thought it would.
Adjustment assistance: I agree in principle. I'm a little worried about the detail. I would want to see some more clarification of secondary action. For example, I've always supported full primary allied picketing. In other words, if one plant's on strike and it subcontracts the work to another plant, that plant's allied and the union should be entitled to strike there.
I've always upheld the right of token -- and I'll use the word so you can criticize me -- secondary consumer picketing. I'll give you an example: Bata. Tom will kill me, but if Bata Industries got a legal strike in its plant, I don't see why one token picket shouldn't be allowed outside a Bata shoe store in Yorkdale. As long as it's one and they're making it clear they have a dispute with Bata. I don't know why that isn't allowed.
Missing -- and this really bothers me. Why is there no bill of rights for union members? I know why. You're so beholden to the unions you can't put one in, and that's dead wrong. When the United States is ahead of us in anything, we should hold our heads in shame. They have a comprehensive bill of rights for union members that goes a little too far. Why don't we have one?
Now that we have agency shops, compulsory memberships and a devil of a lot of other things, there should be a bill of rights for union members upholding the right to oppose and depose leaders if they want to, upholding the right to go in and just fight their leaders when they don't like the terms of the collective agreement.
I heard all this talk from the previous witness about the coercive pressures of employers. I've been around this business long enough to know there are some pretty coercive pressures on the other side. I don't trust either one of them. "If it's organized, it's suspect" is my motto, which makes all of you suspect, I guess.
The Chair: I'm not all that well organized.
Dr Crispo: I would make an exception of you.
The Chair: Bless you. Thank you.
Dr Crispo: I think Bob might too.
The Chair: He has.
Dr Crispo: Yes, I know. I kind of like you for that reason alone and I don't know you that well. But he's making an exception of me too.
By the way, there are appeal boards in the CAW and the UAW. You could just put in the law that if the labour movement itself does not put in a public review board, à la what the UAW started in the United States and the CAW continued in Canada, then the appeal will be to the labour relations board if you think your rights as a union member have been infringed. Why couldn't you as social democrats put that elementary right in there? It's just staggering.
I've already mentioned in passing -- I'll just say it again -- why isn't there a secret ballot with maximum access on ratification and strike votes?
Anyway, just to conclude, I'm --
Mr Ferguson: It raises my comfort level.
Dr Crispo: When I'm concluding?
I think you're going too far too fast. I said some pretty strong things at the end of that article and I guess I believe them. I don't think politics is a very principled business -- I might as well say what I said in the article -- and I don't like what governments do for those they're so beholden to. You're just demonstrating you're no different than the old-line parties. You'll do anything to toe the line for those who put you in power. It's wrong. You're not doing this because it's right. I don't believe you're doing it because it's right. I quite frankly don't believe Bob Rae believes all this is right. You're doing it because you owe a big debt of gratitude. That is no way to legislate if you're truly operating in the public interest.
Mrs Witmer: Thank you very much, Professor Crispo.
Dr Crispo: You can call me John; I don't like titles.
Mrs Witmer: John, great. I did enjoy your presentation. I was interested. You talked about a bill of rights in the United States. Could you give us a little bit more information about the bill of rights?
Dr Crispo: Yes, the background is that Kennedy wanted to be president and he had to prove that he was evenhanded. He had to dump on labour, so they had the McClellan hearings and the Kennedys really went a long way beating up labour. They did discover relatively little corruption. If business were subjected to that degree of scrutiny, I think it'd be in real trouble.
But for crass political reasons, they introduced the Landrum-Griffin legislation, which included a bill of rights for union members. It goes into this kind of detail: Before a union campaign in the United States, the union newspaper has to be equally available in terms of space for both sides. It says that union staff cannot be used to politic for the incumbent officers. It goes on and on. I wouldn't go as far as they've gone, but I would go probably 75% of the way to ensure that unions are as democratic and as fair as they should be, given the powers we give them in our society.
Mrs Witmer: We recognize that there is a need for change. How would you have changed the process that's been used by the government to achieve change?
Dr Crispo: I don't know what you do. I really don't. They had a committee; it deadlocked. Looking back, we ended up named by Pearson and reported to God, but when Pearson named the Prime Minister's Task Force on Labour Relations, I was the second one named.
Harry Woods and I went to him, and he said, "Do you think we should put labour and management on the committee?" We said, "Well, do you want an honest report that is in no way small-p political?" "Yes." "Well, then don't put them on, because they're bound to dissent. We're going to be strong in what we say and we're going to say what we think is right. We may dissent among ourselves." I compromised. I should have dissented on one issue, but we were unanimous.
It happened we were all academics who really knew the field. What they did to keep us in bounds is that we had a labour-management committee we had to meet with monthly. We had to review all of our report before we put it together and we had terrible rows. We also had a committee of all the deputy ministers from across Canada with which we had to meet at least every six months. That was an interesting approach, but you'll say, "You're just trying to sell academics." I'm not; I'm trying to get away from something that's bound to deadlock.
This is a very contentious and controversial area. If you put labour and management in the same room and say "Agree," they're not going to. We found out what happens. It just blew up. I think there might have been some more sensible ways to approach this.
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Mr Carr: On pages 4 and 5 you were fairly critical of the government over the issue of the secret ballot with some of the language you put in there. I've asked some of the unions that have come in why they're opposed to it and they've given a lot of operational reasons why it can't be worked out. You put in here some of the certification processes and that the secret ballot is fundamental. Why do you believe this government and the unions are opposed to secret ballot provisions?
Dr Crispo: I have it in the article. The record is clear. Unions get enough cards to get a vote, and then they get fewer votes than they have signed cards. It happens frequently -- I don't know the percentage of cases -- because they put pressure on individuals so they sign. That's one of the reasons we have petitions. I'd throw out petitions if we had votes. If there were automatic votes, I wouldn't have any of that junk around. I'd say: "25% signed cards, you get a vote, period. Have your vote."
But the record is very clear. They'll say, "We got them to sign and the employer heard and twisted the screw and the guy or gal changed his or her mind." It's both ways. They're both up to hanky-panky and skulduggery. I know why unions don't want votes. They can't win them. They can get 50% to sign cards but they can't win votes. They're unalterably opposed because they know they can't win votes. They're not democratic. They're not willing to give them a vote because they can't win.
Mr Carr: Isn't that why the public opinion polls that have been conducted where there's no pressure on either side historically were right about where we should be in terms of unionization?
Dr Crispo: I'm very dubious about public opinion polls. I don't think the public understands anything about anything. But if you say it's more democratic, they're obviously going to say, "Oh, I'm supposed to be a democrat so I'm for it." I don't have any faith in pollsters because they ask simple questions and they confuse people and people don't understand. The world is so complex.
I do a lot of public speaking, I do a lot of seminars. We have to have democracy, but I hate to think of some of the people who are voting. Most of them are not well informed. They don't understand the Constitution, they don't understand the free trade agreement, the North American free trade agreement. How are they going to understand this stuff?
Mr Carr: As an economist, somebody who has looked as this, you've heard some of the job loss figures. You said they aren't there. What do you see if this bill comes in? Will we see a dramatic change in Ontario's competitiveness?
Dr Crispo: I don't want to use the word "dramatic." I said and I meant I think it's the whole collection of labour legislation. If it's all enacted, this province is going to be the most liberal, progressive, radical -- whatever word you want to use -- in North America. There will be nothing like it.
Capital does shop around. I just met with an American who's doing a major study on the breakup of Canada. I said, "It hasn't happened yet." He was saying, "Do you know that Wall Street is more worried about the NDP's labour legislation than Quebec separatism?" I said: "That's a crock, unless you think of all the legislation. If you want to take all the legislation they're proposing, maybe it's serious in terms of the effect on certainty and stability." That's what you have to worry about.
Capital is the most mobile thing in the world. It shops around for where it gets the best deal. One of the things it looks at is the general socioeconomic political climate, and that includes your labour laws. If you take all the things this government proposes to do, I think you can say it will have a dramatic effect. To say that this law by itself would have that effect I think goes a little far.
Mr Derek Fletcher (Guelph): Thank you for your presentation. I've heard you speak many times and sometimes I nod when I agree and I have to look around to make sure no one's watching me do that.
You made some comments about some of the proposals that are in here, that some of them should be thrown out. You're not saying to throw out the whole piece of legislation; you didn't come out and actually say that.
Dr Crispo: There are not many things I'd keep in their present form. I was ready for a preamble; I think they went the wrong way on it, the principle. On certification, I fully agree with covering everybody, but why didn't you cover everybody? I did talk about restructuring bargaining units. I'm on the board of the CBC and we're before the Canada Labour Relations Board to get 23 unions reduced -- I've forgotten; it's some ridiculous figure. I heard we're still going to have 10. That's hardly a great restructuring, and we're there for months and months.
I've discovered the Canada Labour Relations Board is a bigger boondoggle than the CRTC, and I didn't think there could be a bigger boondoggle on the face of the earth. I think your labour relations board competes with both. They take months, weeks, years to sort these things out.
You know the Hydro case. It's still going on, I think. This really frightens me. I believe in the principle of restructuring. When bargaining units are obsolete and the parties won't do anything about it, I think the board should move in, in the public interest, when it sees a shambles, as in construction or CBC. I agree with a lot of things, but --
Mr Fletcher: Too fast, too soon?
Dr Crispo: Yes. You're going to say: "How can you say it hasn't been thought through? So much thought has been given." "The hell with thought. Just do this, guys. We got you in power. You can back off on all the other foolish things you committed yourselves to, like compulsory public auto insurance, but you're not backing off on this one, you hear?"
Mr Fletcher: I looked at the first sentence of your presentation. You could change the names, you know: "Brian Mulroney is so beholden to his big business friends that he has lost all sense of balance and fairness in bringing forward his North American free trade agreement."
Dr Crispo: No.
Mr Fletcher: I could say that. That's my opinion.
Dr Crispo: You can say that and I said at the end that I'm worried, in the last paragraph. I'm trying to be fair. I don't like what any political parties do when they get in power. I get along with opposition parties.
Mr Fletcher: You get along with everyone. I've noticed that.
Dr Crispo: But as soon as they're in power, they never talk to me again. I used to get along with Bob. He hasn't talked to me in years.
Mr Fletcher: I'm trying to get a word in; you won't let me get my words in.
The Chair: You and I have a lot in common.
Dr Crispo: There may be a club we could form. We may be wiser than we realize.
Mr Fletcher: You may have to sign up and then there'd be a secret ballot vote between the two of you.
I'm just wondering, have you ever been on an organizing drive or gone out on a union organizing drive at any time?
Dr Crispo: When I was very young I went out on a few, but that was when I was a student. I also went out on certification votes to see how they were conducted, but I would not claim -- actually I had more students going on organizing drives in the old days. I used to have my students adopted by the unions for a term.
Mr Fletcher: What do you mean by the old days? How long ago was that? Is that 1950s, 1960s, 1970s?
Dr Crispo: In terms of having the students adopted by the unions for a term, these were MBA students. They had to go out and do a sympathetic analysis of a trade union's problems for their term project. It was a great thing to do and I had a small enough number of students. That would be in the 1960s and 1970s.
Mr Fletcher: Looking at the 55% automatic certification, we didn't do that. I mean, that was brought in by the Conservatives.
Dr Crispo: I didn't agree with it. We dealt with this. Let's go back. When we were on the Prime Minister's Task Force on Labour Relations, I wanted them to go to a 25% vote. I lost. We compromised at 35-65 instead of 45-55. Ontario went to 35-65 for a while. The unions cried blue murder because they couldn't get to 65 and they couldn't win votes, the same point you were asking. I never favoured 45-55. Don't hang me with that. I told the government long ago: 25 automatic vote. Then I sold my soul, compromised with my colleagues and went 35-65, but I backed off it.
Mr Fletcher: I just wondered because I keep hearing from the opposition. They're the ones who put it in in the first place. That's why it keeps getting me.
Mrs Witmer: You can change it.
Mr Fletcher: We tried to, but everyone in the white paper said they didn't want it.
Dr Crispo: I could say something about a wonderful old man. How can I call Bill Davis an old man? I think he's about my age.
Mr Eddy: He's getting there.
Dr Crispo: He's getting there. So am I. Willie Davis was a fox, and before every election he used to throw a bone to labour. He'd call in the Ontario Federation of Labour and say, "I've got a deal for you." God, they were so crazy. He gave them the agency shop after Quebec had done it and he gave them 35-65 back after taking away the 45-55. Again, it wasn't on the merits. It's playing politics. I get so sick of watching you all play politics. Do what's right.
Mr Fletcher: Do I still have some time? If you look at what you were saying about Wall Street and capital being mobile and if you look at some of the investments that have been made in Ontario recently, even with this legislation coming through, the auto industry and what it's been putting into the province -- in fact I think there's a big thing going on today with Ford that's putting money in -- do you not also look at, if it's good enough for them and they're not worried about it, why should we be? Or is it that simple?
Dr Crispo: No. Look, take the anti-scab issue, which is not the central issue for me; it's the issue of votes and democracy. Ford doesn't care. They're not going to try to operate. Stelco isn't going to try to operate. For the big boys it doesn't mean a tinker's dam. They may have appeared before you in solidarity with the smaller employers and the other groups, but it's the smaller employers where the right to operate really means something.
I'm hardly a supporter of the Toronto Star, but when the Toronto Star said, "If we hadn't had the right to operate, we just would have had to capitulate to whatever they were demanding, because we couldn't take a long strike if we couldn't try to operate," I think you should listen to that. It's part of the checks and balances. It's the quid pro quo for the right to strike.
Don't tell me about Ford. Ford doesn't care about this legislation, I don't think. They may say they do but I really don't think -- if you're big, you're going to try to operate anyway.
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Mr Fletcher: So the big investors aren't going to be scared away?
Dr Crispo: No, but that isn't the future. The future is small firms. There's no new employment coming from large employers in the aggregate; it's small business that's the future.
Now, Johnny Bulloch goes hysterical. He's my good friend. I don't get quite as worked up as he does, but I understand where he's coming from.
Mr Eddy: John, thank you for coming. It was an excellent presentation. I'd like your opinion about the use of arbitrators. Several of the presenters who have appeared have said that with the amendments there's going to be much greater use of arbitrators, we're going to have to have thousands of arbitrators named, resulting in the fact that the parties who should be making the decisions will be abdicating responsibility to arbitrators, with of course the unknown consequences. What is your view on that?
Dr Crispo: First of all, I'm very biased. I used to do arbitration, conciliation and mediation. The first thing I quit was arbitration. I never was disgusted with any procedure more in my life. I used to sit there with these two dumb lawyers. All they wanted was more days of hearings. One day we were finishing some hearings and these two lawyers came to me at recess and said, "We're going to finish today." I said, "Yes, I'm delighted." They said, "Well, we've booked tomorrow; we can raise some more issues." I said: "We're not raising any more issues. This is not a make-work project." That drove me crazy.
Also, do arbitrators always rule on the merits? I never thought so. I did, and that's why I wasn't a very successful arbitrator. They're worried about their batting average and their credibility and their per diems. I hate arbitration. Don't rely on these guys. I don't even like courts. The general point should be, knock heads together with every device you can and avoid arbitration like the plague. We're paying them a ruddy fortune.
I'm tempted to go back. When I'm senile, I'm going back to arbitration because I'll be most useful. I won't have a mind. I will just say, "I just did the last five cases in favour of labour; I'd better do one in favour of management or I'm not going to be here much longer." You're going to say, "That isn't true." Be naïve. I don't believe in arbitration. You've got to use the darned thing the odd time, but use it as sparingly as possible and don't encourage the disease. It's very expensive for labour and for management, and they don't get a compromise, they get a decree. So anything you want to say about arbitration you could say, but arbitrators hate me with a passion because I know what they're like.
Mr Offer: I want, if I can, to address the issue which I think you said was most important to you: the right to vote and the secret ballot type of situation. As I heard you make your presentation, I think you spoke about it taking the same form as a pre-hearing type of ballot?
Dr Crispo: Yes.
Mr Offer: I'm just trying to get an understanding as to what it is that you're asking for.
Dr Crispo: Unless the union asked for something to the contrary, I would make the pre-hearing vote almost automatic so you get a quick vote. I don't want any more time than is absolutely necessary for the employer to play games. I believe they both play games, and you can argue which side plays the most games. I want a vote as fast as possible. That's a pre-hearing vote, it's an interim vote.
Mr Offer: Okay. When you say there's an immediate or very quick pre-hearing vote and that might address a number of issues and problems that we have heard earlier, what happens at the end of the pre-hearing vote? I'm wondering if you can take me through it.
Dr Crispo: The problem with the pre-hearing votes -- I've been out on them years ago and I don't think anything's changed -- is that you get the contested voter. Management says, "That's management," and the union says -- you know, it's based on whether they're pro- or anti-union. So you put it in a ballot and you put it in an envelope and you put the name on it and it goes in a separate pile, and they're all dealt with by the labour board when it decides who's eligible to be in the bargaining unit and who votes. So I understand all of that.
The way it works, you have the pre-hearing vote, then until they get to the hearing, which may be months later, knowing the way boards operate, the ballot box just sits there. If eventually it's decided they had enough support to get a vote, that this is the appropriate bargaining unit, these are the eligible voters, and these contested characters are dealt with one by one -- are they eligible to vote or not? If so, you put the ballot in -- then you open up the box and count it.
Mr Offer: Let me get this straight. You're saying that there's a pre-hearing vote. At the end of the pre-hearing vote, however it's decided --
Dr Crispo: You don't count the vote; it's sealed.
Mr Offer: You don't count the vote.
Dr Crispo: No.
Mr Offer: At the end of the day you eventually count the vote.
Dr Crispo: Yes.
Mr Offer: And if there is a certain percentage, then you go into a further vote?
Dr Crispo: No, no. If they get 50% in the pre-hearing vote after the contested ballots are in or out, wherever they go, they've won.
Mr Offer: Okay, then my question is, what is it that triggers the pre-hearing vote?
Dr Crispo: I would say 25% card-showing should get you a vote. Because I agree with the unions that employers do a lot of nefarious things. Now, if you have a vote, you get peace for a year. You can't have a vote every week. But you get a vote. That's what triggers the vote. I said the pre-hearing part, to me, should be automatic unless the union doesn't want it.
Mr Offer: This issue has been brought forward by a number of concerned individuals. Your suggestion could be addressed with just a small tinkering with what we have right now in the legislation. It wouldn't take very much to do to --
Dr Crispo: Oh, no, but you're going down to 25% to get the vote, okay? And you're making the pre-hearing vote automatic, unless the union declines. I think that's the distinction.
Mr Offer: Thank you very much. I appreciate that.
Do I have some time left? I have time for one question. I have a number of issues; I have to now pick.
You spoke about the preamble. What's being suggested is not a preamble, it's a purpose clause. You spoke about some of your concerns about what's not in it. I'm wondering if you can give us your thoughts as to whether there should in fact be a purpose clause as opposed to a preamble. Tell us what you think.
Dr Crispo: I think I was making a somewhat similar distinction myself, without using the same words. All I would have the preamble say is to encourage and facilitate, to establish the rules of the game and to protect the public interest, which I won't elaborate on. I'm not sure I'd put anything else in there.
When I read what is proposed about improving terms and conditions of employment -- which the latest draft may have changed; I don't know what their last words are -- I got so upset, I said, "Why aren't you putting in the other half of that: the efficiency, the innovation, the productivity and the competitiveness?" Now, they use some words but they won't use the word "competitive." That's a "no" word, you understand that. Philip is using the word "competitive" somewhat more than the other ministers, but it was a no-no for a while. But put it in there. No, no, don't put it in there: Stick with just the three things I said and forget the rest.
The Chair: Thank you, John Crispo, professor of industrial relations, University of Toronto. We thank you very much for coming here this morning.
Dr Crispo: Thank you for hearing me.
The Chair: You came on short notice. We appreciate that, and you've obviously provided some valuable insights for all of the members of the committee, I'm sure. Thank you sir. Take care.
We're recessed until 1:30.
The committee recessed at 1218.
AFTERNOON SITTING
The committee resumed at 1330.
The Chair: We'll be discussing Bill 40, an act amending the Ontario Labour Relations Act. We're carrying on until 9 o'clock tonight. The public is certainly invited, entitled and encouraged to come here to Queen's Park to view these proceedings in person.
WMI WASTE MANAGEMENT OF CANADA INC
The Chair: The first group this afternoon is WMI Waste Management of Canada Inc. Would the presenters of that submission please come and seat yourselves at a microphone and tell us who you are. The clerk has distributed your written material. Everybody's going to read that; that's going to form part of the exhibit. The most valuable part of these attendances is the exchanges between committee members and persons making the presentations, so please try to save enough time for that to happen.
Ms Nancy Porteous-Koehle: That's been a big debate between the two of us: Do we read the presentation or do we ad lib so we can have a lot of exchange?
The Chair: Some people highlight the presentation, knowing and trusting that committee members will read it, so as to save time for exchanges.
Ms Porteous-Koehle: I would like to thank committee members for allowing us the opportunity to speak to you this afternoon. We know you've been inundated with delegations and you've got another three and a half weeks to go.
My name is Nancy Porteous-Koehle. I'm the director of public affairs for WMI Waste Management of Canada. Mr Jack Cassari is our employee relations counsel, who will be doing the major presentation on behalf of WMI. Jack is the employee relations counsel and he handles Ontario, Quebec and the eastern United States, so he's well versed on quite a few labour legislations.
I have packages here containing information on the company, but as I look around the room, I'm sure all of you either received one at the reception in May or one was sent to your office if you were unable to attend, so you know what WMI is and what we do in the Ontario market.
As an environmental service company, we believe the committee should be cognizant of how this bill affects our industry, and very importantly, how it could affect the environment.
For instance, environmental waste management services are provided by union members employed by municipalities as well as private companies. During a strike, if replacement workers are not allowed, garbage does not get picked up, transported and disposed of, landfills are not operated, recycling does not get picked up or processed and the transportation of products to end markets will not happen, to mention nothing about what will happen at a compost facility during a strike; all to the benefit of the unions, all to the detriment of the environment. The health issues must also be looked at when it comes to strike and non-replacement workers.
Jack Cassari will elaborate more so on further amendments that we would look at.
Mr Jack Cassari: It's a pleasure to be here this afternoon to speak to you for a few minutes. Certainly, my intentions are not to bore you; you've probably heard about everything there is to hear on this legislation.
I will give you one, sort of, preamble; I hope you will indulge me. I live and reside in the United States and I will make some comments regarding the US. I understand and appreciate the fact that where we all live, we're very proud of those respective countries, as well we should be, and it's not going to be my intent in any way, shape or form to say to you that what we're doing in the United States is the model plan that the province of Ontario should be engaged in. Sometimes we reach a comfort level as to where we work, where we live and what we know best, and so I do use that role to a certain extent.
That's not to take away from the fact that I've been coming to Canada and negotiating labour contracts for 15 or 20 years, so I'm very familiar with Alberta, British Columbia, Quebec and Ontario. But as you read the draft, and when I speak to the US in terms of it being used as a model, I think it is something that needs to be discussed, and hopefully in our question-and-answer forum it will come up. I will go through the draft that you have. I'll highlight it and leave plenty of time for some questions and answers; hopefully, there will be some.
For you who don't know, I will tell you a little bit about ourselves. We are the world's largest refuse hauler, not only in Canada and the United States but worldwide. In Ontario, we employ 600 men and women, operate about 12 hauling companies or divisions and have a payroll in excess of $26 million. As you're probably all familiar with, in 1991 we opened a recycling facility at $25 million to process 500 tons per day of dry industrial, commercial, institutional material.
Many of our employees have close to a quarter of a century of experience in the waste industry and approximately 54% of those employed employees are union.
This being the case, Bill 40 is of crucial and paramount interest to WMI Waste Management and its continued growth in the province. At times, I will indulge in and hope you'll appreciate that what I talk about is from a practical experience standpoint. I think that's the effort and direction we would go in today.
First, in the collective bargaining process, it goes without question that collective bargaining is simply a matter of economics. The relative economic strengths of the parties are going to determine the outcome of any collective bargaining process. I don't understand and I'm sure there'll be some input how you can put any artificial barriers or any third parties in that process and make it an effective process.
From a business concern, we are desiring to grow in an ever-increasingly competitive marketplace. I don't know how many are familiar with the waste industry. In Ontario, there are probably three major haulers and there are a multitude of independent, small, family owned and operated, independent haulers that are not unionized at all. So if you say to an employer that in a strike it cannot replace its employees, I don't know what you're left with. I know you've heard that from probably every employer who has presented before you. But in terms of the local unions in the province, they're all branches of US unions; you have to take that fact into consideration.
It's my understanding that a lot of the legislation that has gone on, a lot of the discussions that have taken place, have primarily used Quebec and even Europe, to a great extent, as examples. That is very shortsighted. I come to this country quite frequently and I'd be willing to venture that at the airport in Toronto you run into many more American businessmen than Quebec businessmen. So when you start to look at things, you have to make a comparison, a little bit, of what is transpiring in the States and what is going on. In the States, it's far from a perfect world -- do not get me wrong -- but in the States, in most situations you have to be able to run your business.
I will ask a question regarding the garbage industry, for example: Peter, what happens if we cannot pick up the garbage? You're saying, "You cannot use replacement workers." In the States, we talk about permanent replacements; legislation in Ontario is not even going that far. All we as employers are asking for is that we be able to perform our business, to service our customers. We have to service those customers.
If you, as a government body, tell us we cannot pick up that waste, you in effect have dictated economics. We're not going to grow when the strikes are over with. We're going to lose business to the small independent haulers that are non-union, that do not provide the benefits. That is going to happen, and/or we're going to close the door. The last thing that should come out of this is that we certainly are not going to look at growth in Ontario. How can you? It would be ludicrous; it would be absolutely ludicrous.
I'm very interested to hear some of the rationale that's gone behind the formulation of this bill. I understand this has basically been done. I'm not here to really bore you at all. I understand this legislation is moving forward; it's about a done deal. So I feel like I'm beating my gums, to a great extent. I appreciate the opportunity to be able to beat them for another few more minutes to indicate that we feel this is important legislation. Again, please take into consideration my biases.
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In a sense, it appears to me that the government of Ontario has replaced labour unions; you might as well outlaw labour unions. If I were a dues-paying member in the province, I'd send my dues to the government, because what is the union doing for me, if 55% of a workforce can sign cards and be automatically recognized without any information, without any communication, without any discussion as to the pitfalls, the positives, the pros and cons of unionization?
Folks, you're dealing out there primarily with a lot of employees who are not PhDs, and you are telling employers and corporations: "If 55% of your employees sign cards, we won't even have a vote. You will bargain." Then on the other side of the bill it says, "You don't even have to bargain, Mr Union."
This first-contract arbitration makes absolutely no sense whatsoever. You're saying, "Okay, you automatically organize the workforce, automatically recognized at 55%; you've got yourself a union," and then you tell the union, "You don't even have to bargain with the company, don't bargain, get a "no" board, no discussions, go to a strike and give this all to an arbitrator."
We have a recycle facility that we spent $25 million on. We employ 80 of your constituents. We provide them with excellent benefits and excellent salaries. Now you tell us, after this capital investment went in, that if 55% of these 80 employees sign cards, we have a union; it is automatically recognized, Then you tell us, "Hey, let's not even engage in the process of negotiation, the process of collective bargaining, to educate one another as to our needs, but we'll have a strike, and during that strike, while the refuse is piling up, you won't be able to work."
I've been in there for 15 years. I don't know, I must be naïve, but I've dealt with about every union in Ontario and I think they've had the better part of the deal for 15 years. We've had one strike in Ontario in the past 10 years. It lasted three days. Obviously, we have relatively good employee relations and we as parties are doing a relatively good job at the collective bargaining table.
Some of this makes absolutely no sense at all to me and I hope somebody, before the afternoon is over, can educate me as to what is going to be gained. What you're going to do is increase the non-union workforce; is that the purpose of the bill? If the non-union, little independent haulers pick up all this work during strikes, who's gaining by this legislation?
Then you turn around and say, "If you get a new facility, it has to be merged under the old collective bargaining agreement." There's got to be some reality in life here, folks. Do you understand and appreciate what's going on in society? For example, we have Port-O-Let drivers. Port-O-Let drivers, because of the nature of the business, because of the industry, are paid less than our commercial haulers. We acquired a Port-O-Let company. We have a unionized company on Fenmar Drive. That is merged in; the rates are the same; no negotiations take place. What are the benefits? Why would somebody go out and make an acquisition under those circumstances?
It seems to me that a lot of this legislation just doesn't seem to fit into the practical world that I live in and deal with on a daily basis; that's the reality of the situation. Certainly, I'm not naïve enough to not understand why we're here.
I know many of you people have backgrounds in labour unions. Let's talk up front and honestly for a second. As a labour leader, as a business agent, you're bargaining a contract. You are going to get the last, best and final offer from the company and you're going to take that back to your members and you're going to attempt to sell it. When the members now know they have a right to strike and not fear being replaced, what do they have to lose? As a labour leader, I would never go back without calling a strike, because that membership is going to send you back, saying: "Hey, we're not going to ratify this contract. Let's strike. Let's make sure we get every pound of flesh out of them."
You people who have been involved in the labour movement know that the union is a political animal. You must adhere to your membership to get re-elected, and to get re-elected, what do you do? You've got to deliver the goods. I would never go back to a membership when that membership is going to say: "Hey, we haven't struck them. Let's spend a day or two on vacation. Let's get some sunshine, and by doing this we'll extract a little bit more."
Where is honour and credibility in negotiation any more? Negotiation is a process of education of that membership, of that union understanding that industry. It's absolutely critical. It takes years and years of work, and then we say through some purpose clause that we have in here -- I'm not quite sure I understand it -- that we're going to get more productive and more efficient and we're going to have this wonderful world, and this wonderful world is going to be shoved down the corporation's throat.
If you come to me and you say, "You're going to take the agreement; we're going to arbitrate it" -- arbitrators have little idea of what the business is all about. Arbitrations can last for weeks, and when you get into these types of arbitration cases you're going to present a lot of information. They're going to be spending a lot of time, a lot of witnesses. What's the membership doing during the meantime, while you're waiting for this guy, who knows nothing about your particular industry? He's going to decide the future of the corporation, the employees and the stockholders, a guy who we're going to get, who we're going to select to arbitrate this first contract. Then we're going to have a purpose clause in there. It's going to say, "We'll have this beautiful world; we'll have this wonderful, beautiful world. We're going to be more efficient. We're going to get together a lot better," based on a concept -- which sounds like a contradiction to me -- where an agreement has been forced down an employer's throat.
Now you're going to ask the employer, "Jeez, be efficient, be productive, be nice, be cooperative". He's going to say: "How in the heck can I? I've got a contract that's been interpreted and provided to me by the labour arbitrator, who's given me the terms and conditions of my employment. He's dictated my policy to me, and I'm the one who is putting out the investment in this."
I'll give you this: I don't know every nuance of your labour legislation, so I could certainly be missing a lot of the things, and maybe there are answers to the questions I have. But from a practical, everyday standpoint, I do not see how it works. I really do not see how it works and how it's going to be made to work.
To make a couple of closing comments, I think what you need to consider, as I've said before -- maybe I'm being a little redundant -- in terms of organizing efforts that at 55% we have automatic recognition, I don't understand that philosophy. I've always been troubled by that somewhat. I think in the States our campaigns are too long and too lengthy, organizational union campaigns as well as our political campaigns, which we're in the middle of right now.
It is very important, and I need to stress this even to you who were involved in the labour movement to a great extent, that this is not an easy decision for an employee. An employee should have the right, as we all should have in this society, of a free and unencumbered decision, and that decision should be made with as much information as one can possibly have at one's disposal. People change from day to day, as you all know in your constituency, as do the people who sign cards and realize that, "I may be signing, and I have to adhere to bylaws and I have to adhere to a constitution." In terms of the union movement, there are certain things that go on.
You cannot fully inform, nor should an employer be expected to deal in a situation where its employees are not fully informed and appraised of the good, the bad and the ugly. And certainly within the parameters of the law, whether it be the province of Ontario or the state of Alabama, those employees worldwide have a right to their own dignity and to their own social welfare for believing in their own philosophical concept of what is best for them to make a decision fully, fully informed.
I think what you have before you -- and it appears we're all rushing to judgement on what we are going to be facing as employers -- is dealing with a very unique concept. I'll be honest with you, ladies and gentlemen. I don't know what purpose I would serve by coming up here to represent a corporation in collective bargaining; I have no idea. I don't see the good-faith concept. There is no good-faith concept in negotiations. I have been born and bred that that is the concept: good faith, an attempt to compromise, an attempt to move, an attempt to understand, an attempt at education.
If that employee doesn't understand fully the nature of the business, how can he be a valuable asset? Collective bargaining is an educational experience. It has to be, and we are saying: "Let's forget it all. Let's not worry about it."
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I guess what we'll do is educate them on a picket line. But I don't see how you can, because we cannot run our business by being closed. We absolutely cannot, unless you're going to carve out some essential-services concept or definition for the waste industry in these bills.
I've generally skimmed over the document I had; I tried to touch the high points. I'm sure I've missed a few. When I leave the room, as usual I'll wish there were a couple of comments I could have made or remembered to make.
I sincerely appreciate this opportunity. Like I said initially, I appreciate your indulgence, because I, like everybody else, am proud of the country I live in and I don't like anybody coming in and indicating to me that what we're doing is different or somehow a unique concept.
I've dealt in this country for a number of years. Canada is a wonderful place. We've had great relationships with the Teamsters, with the Operating Engineers, with a whole host of unions in this province. As I indicated before, we've had one situation back in 1984 of a three-day duration, and any time you have a strike of three-day duration, somebody made a terrible mistake. It could have been us as easily as the local. And we've grown the business. Only 600 men and women, I guess, but we service a vital need in this society. As you know, the environment in Ontario, like elsewhere in the world, is becoming very crucial: It's vitally important that we protect our environmental resources and the health and safety of our public as well as ourselves.
With that, I'll conclude. I'd be happy to take any questions or comments.
The Chair: Mr Huget, two minutes.
Mr Huget: Thank you very much for your presentation. First of all, I refer to your comments about the strike situation and labour disputes and the willingness -- or at least the perception on your part that perhaps workers would have nothing to lose and that it becomes sort of an automatic incentive to want to go on strike.
I have to tell you, I was a member and indeed held several executive positions with a Canadian union that has no United States affiliation, and during my term of office and to this day we have never had a grievance, since 1978, proceed to arbitration. There has never been a labour dispute. In my view, the cooperative approach with the particular union and the company involved is somewhat of a trendsetter in a pattern companies are following in other locations.
I am particularly disturbed by your comment that the worker has nothing to lose. Indeed, strikes and the threat of strikes are taken very seriously and indeed the worker does have something to lose: It's called his salary. That is quite a hardship for many workers and, I would dare say, a decision they wouldn't take lightly.
I'm not criticizing your presentation, sir, other than I think there is inherent in the presentation and in the situation a level of confrontation and adversarialness in the system that I don't particularly like, and I know there are unions and companies moving away from that process.
My specific question is, do you have organized workers and unorganized workers in Ontario and Quebec?
Mr Cassari: Yes, we do.
Mr Huget: What are your relationships with those workers now in Ontario and in Quebec, and in what specific way would this legislation harm those current relations?
Mr Cassari: Our relationships are excellent in both our union and non-union situations in both of those provinces. I guess it goes back to how it would harm those situations. Obviously we choose to disagree on a fundamental aspect of the situation. I'm not so sure not having a grievance since 1978 is a great thing. I think sometimes grievances are good and necessary and they do tell management a great number of things. The fact that grievances aren't filed doesn't indicate in my mind that a peace-loving situation exists.
Mr Huget: A grievance to arbitration, sir. There have been many grievances, but none has proceeded to arbitration.
Mr Cassari: As I said before, sometimes arbitration cases are needed and necessary, I guess.
The fact that an employee gives up a day's pay is a great hardship. I think the problem you have with that concept in dealing with employees on a nationwide basis is that most employees are willing to give up a few days' pay when they see that the outcome may result in a tremendous economic benefit to them. I don't think most employees look at it that sophisticatedly: "Being off work a day or two, I'm going to lose a paycheque." I think they look at it, and in light of this legislation they're certainly going to look at it, as, "That's all I risk, and I'm certainly going to get more." And what advantages does an employer have to hold out? It doesn't. An employer has no advantage at all.
Mr Eddy: Thank you for your presentation. We've had other presenters concerned about the matter. The Municipal Electric Association and the Ontario Good Roads Association were before us with a view that there are services that should be declared essential. My own view is that if you're going to provide for carrying on essential services during a strike, it's awfully important to have all the details outlined prior to the legislation being passed. Would you expand on the point of essential services? Because it's collecting garbage, which many people would consider a very essential service. I would.
Mr Cassari: Let me start and then I'll defer to Nancy real quick as a follow-up. Absolutely. Garbage is an essential service. Hospital waste is certainly an essential service. I can't understand how it would not be considered. We have the solid waste. We have waste that needs to be picked up, hospital waste, doctors' offices, clinics. That stuff has to be picked up, obviously, and I would think for the health of a community it certainly falls well within the definition of what I would consider to be an essential service. You certainly cannot have garbage piling up, and rats, and children who are on their way to school who are walking through mounds of garbage and the things that obviously attracts. That must be picked up and it must be picked up immediately.
Ms Porteous-Koehle: With the essential-service designation, I think we also have to look at what we're trying to do now, the government as well as private enterprise, in getting the recycling, the 3Rs, in place. The concern is that we're just going to get those markets in place when -- because we become a feedstock; our recycling facilities become a feedstock for other manufacturing plants. It's very important that that feedstock be gotten to, and we're in such an infancy stage right now with recycling that if we jeopardize any relationship between the market and the supplier, we could jeopardize Ontario's market worldwide. I think we have to look at that as well as the health aspects of the environment.
Mrs Witmer: Although you've recommended here that Bill 40 be passed on to impartial individuals or a commission, the government's indicated that that won't be the case and that this really is the committee of final consultation. What recommendations could you make, what amendments would you suggest, to make Bill 40 more fair and equitable, and also to help restore harmony in the workplace and create a better working environment?
Mr Cassari: The replacement issue obviously has to be readdressed. From a practical consideration we'd all be naïve to think that is really a workable solution, so that's an element that definitely has to be rearranged, rediscussed and readdressed.
Also, the 55% criterion is obviously naïve. In the States we have 30% in terms of going to an election. You're proposing 40%. Certainly that causes me no great concern. Going from 45% to 40% seems like a workable solution, so I don't have any great heartburn with that. When you're talking about something that's automatic, the 55% is another concern to employers. I think it has to be re-reviewed in terms of the realistic environment we all deal in.
I'm not so sure I truly understand some of the elements, as I tried to point out, such as the dual purpose concept. The property situation we don't necessarily have a real problem with like the retail chains would, in terms of people coming out and causing the public concerns in terms of handbilling or picketing or what have you.
As I tried to mention before, I think it is a little contradictory when you say you're going to try to get an employer to work in conjunction and cooperation with a union while at the same time you've really forced this employer to eat crow to a great extent, at least in my mind.
I just don't understand how the first-contract arbitration would work at all. It makes very little sense, and we would be very reluctant to turn over our capital investments to -- arbitrators are generally attorneys who do other things, engineers who do other things, professors who do other things, and you're going to call these individuals in? If you took a look at our Etobicoke recycling situation, you're talking about an investment of $25 million, 80 employees -- by the way, I'm not knocking attorneys, professors or engineers. I've just blown the whole thing, haven't I? I'm just saying when you turn it over to those folks, I don't know what you're going to get. How much education can you give a college professor in terms of him making this monumental decision and all the facts you're going to present to him?
I think the tendency is going to have to be to come down on the side of labour. I think that has to be seriously reviewed. I don't see the practical aspects of that working at all in day-to-day labour relations. You're going to get an arbitrator who's relatively sophisticated within the confines of the collective bargaining agreement. If you look at something like the public education system in the United States, I suppose, you're going to go into a fact-finding conference and then you're going to have people who are simply dedicated to a particular industry. From a practical standpoint, I don't see how that comes together at all.
The Vice-Chair: Thank you both for your presentation. You've played an important part in the process. I appreciate your views and recommendations and trust you'll stay in touch with the committee as the process unfolds. Thank you very much for taking the time this afternoon.
Ms Porteous-Koehle: Thank you for your time.
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ONTARIO RESTAURANT ASSOCIATION
The Vice-Chair: The next group is the Ontario Restaurant Association. Could you please come forward. I would ask you to identify yourselves for purposes of Hansard and then proceed with your presentation. If you could leave about 15 of the 30 minutes allocated to you for dialogue with the committee, it would be appreciated. You can proceed at your leisure.
Mr Paul Oliver: Good afternoon, ladies and gentlemen. On behalf of the Ontario Restaurant Association and the hospitality employment task force, I would like to say that we're very pleased to be here today to talk about some of the specific issues that are confronting us relative to Bill 40.
My name is Paul Oliver. I'm director of government affairs for the association. With me is Bill Dover, who is a director, and Victoria Zipeto, who is an owner-operator of a Pizza Pizza franchise and also a member of the association.
As Bill 40 is a quite detailed and extensive piece of legislation, we can't possibly address all of our issues today in about 20 minutes. For that reason, we'll try to focus our comments only on a few specific issues.
I think our formal response, going through the technical aspects of the act, has been handed around, as well as a copy of our presentation. As you'll see from our response, we outline a number of constructive proposals which we've put forward, as well as the areas of the bill we do support and the ones we have concerns about.
The Ontario Restaurant Association is very concerned that Bill 40 will undermine investor confidence and add additional job losses to the staggering job losses of more than 60,000 that have been lost in the last 24 months.
Members of the hospitality industry are very concerned that the proposed changes contained in Bill 40 are designed for large, traditional industrial and manufacturing operations and fail to recognize the needs of small, independent operators who comprise about 80% of the industry.
In the hospitality industry, most operators do not have a separate human resources department, cannot afford labour relations experts, rely on labour from family members and manage their operations in a very hands-on fashion.
The government has often indicated that it is undertaking this review of the Labour Relations Act to ensure that fairness and balance are put into the system. Unfortunately, Bill 40 fails to adequately address fairness within the labour relations system. For a small owner-operator facing a large, well-financed union before the board, there is simply no fairness.
One of the most concerning elements contained in Bill 40 is that which places restrictions on the use of replacement workers during a work stoppage, especially restrictions which ban the use of family members. This proposal would have a devastating impact on the hospitality industry, just as it had in Quebec.
This proposal would also severely impact our suppliers and, in particular, create thousands of job losses in the agricultural community. Members of the Legislature who represent rural ridings or ridings with food-processing jobs should be particularly concerned about the impact of Bill 40.
Currently, the foodservices industry purchases billions of dollars worth of agricultural products in Ontario. Approximately 40% of all food dollars spent in Ontario are spent by consumers away from the home at foodservice establishments.
Because Bill 40 is designed to shut down employers such as food distributors, food processors and packaging operations, foodservice operators cannot afford to risk an interruption in the flow of food to their establishments. This will force many foodservice establishments to source agricultural supplies from outside Ontario. The risk in buying Ontario agricultural products, if Bill 40 is passed in its current form, will simply be too great for foodservice operators.
Already many foodservice chains and foodservice distributors have lined up tier 2 suppliers to replace Ontario products in the event Bill 40 is passed. This will undoubtedly mean job losses in Ontario. This is not something that foodservice operators like to do or want to do, but their survival dictates they must.
In the hospitality industry, any disruption in business, even an interruption in supplies or a closure for any reason, threatens the long-term viability of the establishment. Because profit margins are so slim and our reliance on cash flow for survival is so great, even a short-term interruption could force a small establishment to close permanently. During a work stoppage our industry cannot draw upon inventory or cash reserves to survive, because they simply don't exist. Any interruption in business for a hospitality establishment threatens the continuation of the employer, as well as threatening our suppliers and related businesses.
Mr William Dover: Good afternoon. My name is Bill Dover and this afternoon I would like to take the opportunity to talk about an entrepreneur who has approached our association with a bit of a dilemma.
This individual has been offered the rights to bring a full-service restaurant franchise to Canada. He has also been invited to have his pick of provinces because of the person's reputation. The proviso, though, is that he has to open two stores in the first 18 months and another eight in the next four and a half years. This is a fairly common timetable if you want to protect the rights to own a franchise for a given territory. Each restaurant will cost approximately $1 million, excluding the cost of building the shell, and each will employ between 80 and 100 people.
The viability of this project and of most operations in the foodservices industry rests on continuous cash flow. It has to be uninterrupted cash flow. If the changes in Bill 40 are adopted, the possibility of a work stoppage in the restaurant or within a major supplier becomes critical. Especially during the first three to four years of bringing a new concept in, cash flow is imperative to keep the business running.
If you get a five- to ten-day shutdown, especially a shutdown which covers two weekends, the cash flow could be critical enough that one would default on the loans and the rent. I think it is important to note that most operators that are presently operating, let alone a new venture, cannot last ten days without cash flow.
When you bring in a new concept, it is quite common now that you bring in a lot of pre-processed foods. This has to be custom-done by a food processor. Generally when you're small, like up to 10 restaurants, you can only have one supplier that will prepare these products for you custom-made, and you have a pre-printed menu. So if there's an interruption in the supply of the pre-prepared products, you are going to have blank spots on your menu that you can't operate with.
Once again, this brings up the concern that Paul mentioned earlier, that if a supplier goes down and there's an interruption to the supply of the products, this is pretty severe. It would be prudent then for the restaurateur to have the products prepared outside of Ontario, where he could always get the product and bring it in. Now, this is contrary to the policy of the Ontario Ministry of Agriculture and Food, which is making great advances in working with the whole agrifood industry to integrate and perform partnerships to build both ends: the service end, the growers, as well as the processors in between. I think it's really sad that we have to look outside the province to ensure source of supply.
The investors I'm talking about are faced with a simple choice: Do they invest in Ontario or do they pick one of the other provinces that have been offered? The 1,000 jobs will go with it, plus the millions of dollars in construction. It just might be too big a risk. If Bill 40 is passed, the risk associated with investing in Ontario may simply be too great and this person will take his investment elsewhere.
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Ms Victoria Zipeto: I'm Victoria Zipeto. Since I have only a few employees besides my husband and my daughter, who also work in our store, the chances of the store becoming unionized are very slim. This does not relieve my fears about Bill 40 and the devastating impact it could have on my restaurant and my family's livelihood.
As you probably are aware, Pizza Pizza has a central phone number; that is, customers call a central order line and it is processed through a computer and sent to the nearest store. If the central nervous system is shut down because of a strike, we will be out of business within two to three days. Some 90%, or 80% at the least, of our business comes through our phone service. The walk-ins will not make up our difference. If it happens that way, we would be gone in two days.
Also, without cash flow, we can't operate our store at all. Unfortunately, this is not an isolated situation. My store could also close because of a work stoppage at a food preparation centre. A trucking strike would also cause us to stop, or one at other suppliers as well. As well, I could have my business severely curtailed as a result of picketing by adjoining employers. It would also be impossible for me to go through a protection board hearing so I could have the picketers removed from my front door. As a small operator, I simply do not have the resources to do it.
Mr Oliver: It's important to note that this is a problem that impacts major foodservice companies, with over 80% of the head offices of food companies located in Ontario. The central operation systems, including purchasing, reservation desks and payroll departments, are also located predominantly in Ontario. Due to the impact of Bill 40, many of these operations and their accompanying jobs may have to be moved out of Ontario. Recently, several major hotel chains have already moved their central reservations desks out of Ontario.
The hospitality industry recognizes the replacement worker ban is a very contentious and polarized issue. As you will see in our formal response, the task force and the restaurant association have developed an alternative which we believe will accomplish many of the government's goals while preserving the long-term viability of the hospitality industry.
Since the goal of the replacement worker ban has been proposed so as to limit the impact and the length of long-term strikes, the Ontario Restaurant Association has proposed a phase-in of the replacement worker ban only if the strike drags on and only if the parties are not bargaining in good faith. If they're bargaining in bad faith -- we see it moving forwards and moving backwards -- we propose that the replacement worker ban would not go into effect until after the first 30 days of the work stoppage.
If either party is bargaining in bad faith, then the 30-day implementation period could be moved forwards or backwards, as the board determines. This would ensure that an operator in our industry would not be forced to close as a result of a short-term strike.
We believe that since most strikes are resolved in the short term, and in fact in a shorter time frame than in Quebec, there is no need to threaten an operator's ability to provide employment with a complete shutdown or to force operators to source agricultural products out of Ontario. The replacement worker ban in Quebec has had a devastating impact on our industry and it will have an equally devastating impact in Ontario. To protect jobs in the hospitality industry and in Ontario's agricultural sector, we strongly encourage you to adopt this 30-day proposal.
The certification process is also a major concern to foodservice operators. We recognize the government believes that petitions and an individual employee's right to revoke union membership are often used by managers to delay a certification process. But in fact they are mechanisms which protect individual employees. This government should not eliminate individual employees' rights in a quest to increase the power of unions. The Ontario Restaurant Association believes that employees should never be denied the right to change their minds.
To ensure that the rights of individual employees are not reduced, while achieving the government's objectives of eliminating petitions, the task force proposes that the government simplify the process and adopt a certification process that would require a secret ballot supervised by the Ontario Labour Relations Board. If the union is supported by more than 50% of the employees in a board-supervised secret vote, union certification would be granted.
We believe a free, secret and democratic vote for union certification would be supported by the vast majority of people in Ontario. In a quest for fairness, the Ontario Restaurant Association strongly encourages you to streamline and simplify the process with the adoption of this vote.
As part of the certification vote process, the association encourages the adoption of a mechanism which would provide for free and open meetings between unions and employees, and employers and employees, before the certification vote takes place. The meeting would take place under the supervision of a board representative. The board representative would also be available during those meetings to answer questions and ensure that employees have as much information as possible. We believe this would dramatically reduce workplace conflict.
The Ontario Restaurant Association recognizes that the government feels it is under pressure to move quickly to pass Bill 40 so as to fulfil certain promises. But because of the profound impact of this legislation on the long-term health of the Ontario economy and the potential job losses in the hospitality industry and the agricultural sector, the association calls upon the government to undertake a sectorial employment/economic impact study of Bill 40 that will evaluate the impact on the hospitality and tourism sectors.
Because of the paramount importance of undertaking this research so as to ensure that major policy decisions are not made in the dark, the Ontario Restaurant Association is willing to pay for the entire cost of this impact study, provided that representatives from various ministries, including Agriculture and Food, Tourism, Labour and Treasury participate in the study and that the government defers Bill 40 until the results of the study are made available to everyone.
The Ontario Restaurant Association has already discussed the possibility of a hospitality employment/economic impact study with several consulting firms and has been assured that it can be reliably undertaken by on a sectorial basis.
With thousands of jobs at risk, we believe it is imperative that the proper evaluation is done before this legislation is passed.
We thank you for the opportunity to appear here today, and we hope that you will adopt some of our amendments.
There is one comment I'd just like to make. One of the issues we didn't touch on and that's in our submission is contract catering, which impacts many of our members. In our submission, we support the principle of contract catering, the rollover effect. We have identified several technical problems with the current wording of that, and one of our member companies, Beaver Foods, has made a request to appear in London at your hearings. I hope you will allow them to appear, because it wants to specifically address the technical aspects of that.
The Vice-Chair: Thank you very much. Questions? Mr Offer, you have about three and a half minutes.
Mr Offer: Thank you very much for your presentation. As you were reading the shortened presentation, I was taking a look through the longer presentation. I can certainly see a great deal of work, with the proposed amendments or suggestions for change that have been put forward. Certainly, the issue that you brought forward on the contracting is one I am looking forward to reading in some detail.
I basically have two short questions. We all know that there are now service restaurants where you dial one number and you don't even know exactly where that goes, but all of a sudden, within a certain amount of time, something comes to your door. I'm not going to say any names, but it does, and it's magic, however it happens.
The question I have is with respect to replacement workers. In the event that there would be a ban, as is proposed, those people who are dialling that one number are not going to get anybody on the other end, and I certainly think we could see what will happen to all the outlets throughout the province. But my question is, why wouldn't that company, whatever it is, just move that place out of the jurisdiction so that this could not happen?
Mr Oliver: Well, there are several companies that have this. I'll use one example.
In the United States, Domino's Pizza has regional telephone numbers throughout the United States. They have the technology available, and it's available to all companies, to centralize those numbers in one jurisdiction in North America. You can phone from Los Angeles or New York or Washington, and it may be in Illinois or maybe in Kentucky or wherever. The customer doesn't know and he doesn't care where the thing is going.
That's the situation that a lot of operators in Ontario have to face. They cannot afford to have the risk in Ontario, where they can be shut down, so they'll be looking at centralizing those facilities and it won't be in Ontario.
It also will mean that we won't be getting those potential jobs as other companies centralize in North America. They can't afford to put into Ontario either. We've already seen the central reservations desks from major hotel chains leave Ontario. You'll notice that none are in Quebec, and that is directly as a result of the replacement worker ban in Quebec.
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Mr Dover: I would like to add to that, if I could. Canadian Pacific Hotels and Resorts, Canada's largest hotel chain, has just moved its central reservation office to the United States, and that really upsets me as a Canadian. But as a shareholder, they couldn't afford to put a stranglehold on their hotel system.
Mr Offer: Could I ask a very short question, Mr Chair?
The Vice-Chair: One minute, Mr Offer.
Mr Offer: Can you please share with us your thoughts on the basis of picketing and organizing on private property, third-party property?
Mr Dover: For our operators it has a tremendous impact. A lot of food service establishments are located in shopping malls, where this type of picketing would go on. Even if it isn't picketing that restaurant or that food service establishment, it creates a serious problem because you can't define where picketing happens. In a food court, for example, where is the entrance and exit to a restaurant there that won't impact eight or 10 other restaurants? As well, there's the potential that a department store could be picketed and they block off an entire mall.
The proposal we've put into the package there would require that if you want third-party picketing -- we are not opposed to that principle -- you would have to go to the labour board first to get an advance ruling. The board can make a site-specific ruling and say: "This 20-square-foot area is where you can picket. You can't cross here, and you can't block off other employers." That would protect the jobs of the other merchants and their employees in a shopping mall.
Mrs Witmer: I would like to thank you, Mr Oliver and Mr Dover and Ms Zipeto, for an excellent presentation. I think it's one of the most honest and sincere presentations that we've heard, and it's also one which, I think the government members would agree, gives some very positive, constructive recommendations for amendments, which I hope the government will give very serious consideration. You have certainly acknowledged the fact that although Bill 40 perhaps responds to the union operation within a Stelco or Ford plant, it is not very sensitive in dealing with the needs of the hospitality sector.
As well, you've been able to demonstrate very effectively today that because of Bill 40 we've already lost jobs in this province, with people moving their 800 numbers and what have you south of the border, and certainly there is a possibility that more jobs will be lost. Do you have any idea at all as to how many jobs have already been lost in the hospitality sector because of moves that have been made simply because of the uncertainty regarding this legislation?
Mr Oliver: It's very hard to quantify a specific number, because not only are we losing existing jobs but investment decisions are being made not to develop facilities and operations in Ontario. I know of several large chains that have done that. I know that some of the major food service companies which cannot afford to be shut down have also made contingency plans in the event that this legislation is passed. Of what we've seen so far, I think the numbers that we have are only the tip of the iceberg.
Mrs Witmer: And certainly many more will follow. You made reference here to the fact that many people in your industry are small, family-based type businesses and simply don't have the financial resources and the access to labour lawyers and what have you. What would you suggest that the government could put in place to help employers deal with this labour legislation when you don't have the resources yourself to access this? You're barely making a profit from day to day.
Mr Oliver: In our response to the discussion paper we have recommended that a whole series of board facilitators be implemented as well as an information line that would be available to small employers and employees to call up and simply get legal advice over the telephone.
A precedent for that is what they have for the pay equity legislation now. They also have this on the labour side, sponsored by the University of Windsor, where if a union organizer walks in a small employer's front door, all they have to do is pick up the phone and find out whether they have to let him in the front door, so that they don't start chasing him off the front patio, things like that. It's going to reduce a tremendous amount of conflict if all the employer has to do is pick up a phone, call and ask for advice. That isn't available now under the current labour board assistance.
The other major concern we have relative to small employers is that the labour board is open five days a week. The third-party property thing, the legislation would take away the right to go to the court system to get an injunction if they're blocking your front door, even if Eaton's or another department store was being picketed but they were blocking your restaurant. That would be taken away. We think there have to be more resources put into the labour board to go out and facilitate that. If it's a minor problem, they can go in, sit down with the employee, the union, the employer and resolve it. Then we don't have to go through the whole process of long, protracted board hearings. The goal should be to simplify the system, not put a whole bunch of administrative burdens on top of employers.
Mrs Witmer: It was an excellent presentation. I hope the government will be very sensitive to your very special needs in the industry.
Mr Ward: I'd like to thank you for your presentation as well. It's my understanding that in your association there are some restaurants that have unionization in existence. The employees that are unionized: How would you classify their relationship with the restaurant owners? Are they good relationships? I don't recall reading about very many strikes occurring. It seems to me there's good cooperation.
Mr Oliver: In our industry the level of unionization is very low.
Mr Ward: I realize that, but the ones that are unionized.
Mr Oliver: What I was going to say is that the statistics that appear for the food services industry directly represent the unionization in the contract-catering side, which has 60% to 70%. There's a handful and I'm sure maybe 25 restaurants throughout Ontario outside of one major chain that have unions. I can point out to you that employers that are unionized have looked at ways to eliminate jobs in the industry.
Mr Ward: But I'm talking about the employees. It seems to me that there's been cooperation.
Mr Oliver: I agree. It's in the best interests of the employee to enhance the workplace, but with the strike vote mechanism that you have in place.
Mr Ward: No, I'm talking about in today's environment. They act responsibly, right?
Mr Oliver: Depending on which union you're dealing with, in particular. If it's a union that understands our industry, it is much better at accommodating the needs of its members and employers because it recognizes the needs. We've seen a lot of unions that are trying to get into the sector bringing in smokestack industry contracts and trying to impose them on a service sector that's, for example, seven days a week.
Mr Ward: Who would that be?
Mr Oliver: There are many unions out there; any union that's not in the industry.
Mr Ward: No, but of the employees that are unionized today; I'm talking about today, not in the future.
Mr Oliver: The Steelworkers are in the industry; the Teamsters are in the industry.
Mr Ward: They don't behave in responsible fashion, the employees?
Mr Oliver: One of the concerns that we've heard from a lot of employers that are unionized is that the restaurant sector represents a very small percentage of their overall total membership, that they are concerned more about the industry sectors where the majority of their members are. This is almost as an aside.
Mr Ward: So the employees that are unionized in today's environment act in a responsible fashion, right?
Mr Oliver: I've never said the employees don't; I said the unions have in some cases.
Mr Ward: Okay, but the representatives --
Mr Oliver: The representatives of the union, the union bosses in particular.
Mr Ward: In today's environment?
Mr Oliver: Yes.
Mr Ward: Which ones?
Mr Oliver: I've said the ones who don't understand the industry.
Mr Ward: You also in your brief, and I appreciate this, purposely tried to avoid the polarization which has emerged regarding this issue. There have been accusations by some presenters here that there's been fear-mongering, scare tactics etc. That's something that the restaurant association, by making a statement, doesn't think is right.
Mr Oliver: No, I don't think it's right, but I think it's right also for an association and an industry to put on the table exactly what the proposals are.
Mr Ward: I agree.
The Vice-Chair: Mr Ward, if he can finish his presentation.
Mr Ward: If I can just wrap up, the problem I have is that you're here making a statement that you're trying to avoid polarization, and yet I have two letters that were sent to restaurant owners in Brantford, April 20 and April 27, and it starts: "Is your business a ticking bomb because of Premier Bob Rae's NDP government? You may not even be aware of all his plans for your establishment which will threaten your livelihood."
That was sent by your president, and that's about the best part of that letter. That's fear-mongering, in my mind.
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Mr Oliver: The letter also goes on to list some of the --
Mr Ward: When you're here making a statement that you're trying to avoid polarization --
The Vice-Chair: Mr Ward, would you place your question?
Mr Ward: -- and then your actions say otherwise, in my mind, it places a question of credibility.
Mr Oliver: The letter also goes on to list the things the government has promised and what the party policies are, and I think if you go through them, you'll find that they are ones that have appeared in party policy statements in the past.
Interjection.
Mr Oliver: Yes. That was one that was outlined in the Treasurer's discussion paper that was put out in advance of the budget.
Mr Ferguson: It was an option.
Mr Oliver: Yes.
The Vice-Chair: Order, please. It is very difficult for Hansard to transcribe five and six people talking at once. Please retain some kind of order.
Your time has expired, Mr Ward. Thank you very much for your presentation. I would like to thank the Ontario Restaurant Association for a couple of things; first of all, the quality of the documents that you've left here in terms of their comprehensiveness. There are some very interesting recommendations, and it's obvious to me, and I'm sure to other members of the committee, that you've taken quite a bit of time to look deeply into this issue. We appreciate that, and we appreciate the time that each of you has taken to come here this afternoon on behalf of the association.
TOURISM ONTARIO INC
The Vice-Chair: The next group is Tourism Ontario Inc. First of all, welcome, and if you could identify yourselves for the purposes of Hansard and then proceed with your presentation. It would be helpful if you could leave some time for questions and answers from the committee members. Proceed at your leisure.
Mr Roland Michener: My name is Roland Michener, and I am the president and chief executive officer of Tourism Ontario. Gerald Macies is chair of the Tourism Ontario labour committee. Just for your reference and edification, Tourism Ontario is a private, non-profit federation of tourism and hospitality associations whose more than 7,000 member businesses account for a sizeable portion of the commercial lodging, food service, hospitality, recreation, travel and transportation services available in the province of Ontario.
We are most grateful for the opportunity to speak directly to committee members today about the implications of Bill 40 for our battered and beleaguered industry. We implore you to listen carefully to the plight of our industry and to the consequences which we believe this bill will impose on our vital sector of the provincial economy.
To place the size and scope of our industry into perspective, we would invite you to read about the social and economic importance of the Ontario tourism and hospitality industry as outlined on pages 1 and 2 of our written submission.
We believe that it is very important for you to understand the current state of trade in our industry in the context of Bill 40. Nowhere in our provincial economy has the devastation of the current recession been more pronounced and of greater impact and duration than in the Ontario tourism and hospitality industry. Most of the more than 30,000 Ontario businesses which are wholly or largely dependent on the economic fortunes of our industry have been hard hit by a precipitous decline in business and pleasure travel, spending and patronage during the past 40 months, and the prospects for even modest recovery in our vital economic sector are marginal for at least the next 12 months or perhaps much longer.
Hundreds of tourism and hospitality businesses, both large and small, have been brought to their knees by this economic malaise, wiping out countless millions of dollars in personal and family investments and savings while crippling the entrepreneurship which has sustained development and growth in our industry.
Whereas our industry has traditionally provided meaningful and productive employment and steady incomes for hundreds of thousands of Ontarians -- particularly, I might add, for women, youth, aboriginal peoples, new Canadians and visible minorities -- in greater numbers than in any other other sector or industry in our province, more than 100,000 of these people and their dependents are now suffering the hardship of permanent or indefinite layoffs and reduced available work opportunities in our industry.
Our industry desperately wants to engage, train and employ numerous Ontarians from all backgrounds and to enhance our industry's allure and appeal to our citizens and those from many foreign lands as one which offers unparalleled quality, service and value and a broad range of facilities, amenities and recreational and cultural activities to suit every business and leisure patron's preference and budget.
However, we can only do so if our competitive position is enhanced by direct, targeted, responsible and responsive public sector, social, economic and fiscal policies. We urge and encourage the Ontario government to demonstrate leadership in this regard.
Regrettably, Bill 40, on our analysis, will do nothing to enhance and strengthen our sector of the provincial economy. Rather, this bill poses an open, blatant and targeted threat to the very future of our industry through its unfair and undemocratic rebalancing of labour-management relations in favour of organized labour, and its overt encouragement of trade union incursion into the service sector in which our industry is the largest group.
The thousands of men and women who provide employment in the Ontario tourism and hospitality industry are most unhappy with the obvious collusion between the Ontario government and organized labour in the development of Bill 40 at the expense of business confidence, investment and potentially, ladies and gentlemen, thousands of jobs.
In our opinion, this one-sided piece of legislation, if enacted, will provide a clear signal to investors, entrepreneurs and the business community generally that Ontario is an unfriendly, polarized province in which to invest and conduct business.
From the time of the release of the Burkett Report, our federation has been very concerned about the implications of proposed amendments to the Ontario Labour Relations Act on business confidence, investment and employment in our industry. Yet since then, through the leaked cabinet document on OLRA reform, the Ministry of Labour's OLRA reform discussion paper and now Bill 40, the Ontario government has failed to produce a single shred of economic impact research data or empirical evidence to allay these concerns.
Rather, the Ontario government, through its political arm, has launched a full-frontal assault on the Ontario business community through its "Back off, eh?" campaign. This is hardly a recipe for responsible, harmonious relations between government, labour and management.
Business organizations have been openly and continuously chided by the Ontario government for conducting an unprecedented campaign of fearmongering and misinformation against the province's OLRA proposals. However, the government has done absolutely nothing to calm these fears, nor to impartially, objectively and factually refute them. Therefore, we would once again call upon the Ontario Government to subject Bill 40 to the following evaluation criteria prior to implementation:
-- Demonstrate how the proposed OLRA reforms will be of direct, constructive, productive and lasting benefit to the Ontario business community, including the Ontario tourism and hospitality industry;
-- Subject the proposed Ontario Labour Relations Act reforms to a comprehensive needs analysis and extensive economic impact studies prior to implementation;
-- The government of Ontario should encourage a meaningful and balanced partnership between the business community, organized and non-organized labour representatives and provincial government ministers, both social and economic portfolios, by establishing a tripartite committee and process to review the Ontario Labour Relations Act and to recommend constructive changes to it which are acceptable to all parties;
-- Provide infallible proof that the proposed OLRA reforms will encourage capital investment, the creation of new jobs and wealth and economic growth and renewal in Ontario;
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-- Demonstrate how the proposed OLRA reforms will lower the cost of doing business in Ontario and enhance the efficiency, productivity and competitiveness of businesses in Ontario;
-- Qualify how the proposed OLRA reforms will enhance labour-management relations and maintain existing employment levels;
-- Explain how Bill 40 will result in less government bureaucracy and government-imposed regulations in the workplace;
-- The Ontario government should quantify and qualify the extent to which a positive environment will be created by the proposed OLRA reforms that will stimulate a healthy and growing tax base to provide the extent of services required to enhance the quality of life for all Ontarians;
-- Demonstrate how Bill 40 will result in the production and delivery of competitively priced Ontario products and services which Ontarians, other Canadians and foreigners will buy;
-- Quantify how the proposed OLRA reforms will create a highly motivated, skilled, trained, productive and reliable workforce in Ontario;
-- Subject Bill 40 to close scrutiny in order to ensure that it respects freedom of choice, civil liberties and democratic principles in the workplace;
-- Prove that Bill 40 will enhance the ability of management and labour to respond to change and competitive pressures and that it will improve workplace harmony by increasing the ability of management and labour to resolve workplace issues themselves;
-- Prove that the proposed OLRA amendments will enhance labour peace, both for unionized and non-union employees.
The Ontario tourism and hospitality industry represented by our federation respectfully submits that none of the legislative amendments contained in Bill 40 would meet all or most of these objectives, which we consider to be objective, fair and reasonable evaluation criteria. In our view, the Ontario government has fallen catastrophically short in this bill in its stated objective of increasing cooperation between labour and management to create wealth and new jobs, to promote innovation and enhance Ontario's competitive advantage and to compete successfully in an international trading environment.
Rather, we believe that Bill 40, if enacted, will convey a strong message that the Ontario government is undemocratic in its respect of freedom of choice and fundamental civil liberties and democratic principles in the workplace; that Ontario is not open for business and business investment; that there is an Ontario government and organized labour conspiracy of mistrust of entrepreneurs and business people generally; that the redistribution of wealth is more important than wealth creation in Ontario; that organized labour entitlement supersedes worker-management respect, responsibility, accountability and productivity.
Regrettably, most of the proposed OLRA reforms are nothing short, ladies and gentlemen, of an agenda for organized labour at the expense of business confidence, investment, job creation and stability, a competitive and growing economy and the opinions of the majority, I might add, of working men and women in Ontario.
We strongly recommend, therefore, that the Ontario government set aside Bill 40 in favour of stepped-up, collaborative efforts between business, labour and government to encourage consumer and investor confidence and to focus on constructive and productive ways and means of stimulating economic growth and new employment opportunities across the province.
A comprehensive review of the Ontario Labour Relations Act should be undertaken by a green-ribbon commission, perhaps more appropriately named the Premier's Council on Labour Issues, which is chaired by Premier Rae and includes human resource professionals from throughout the business community, organized and non-organized labour representatives and senior Ontario cabinet ministers from both social and economic portfolios. Commission members would be expected to dialogue in good faith and to reach unanimous consensus on any recommendations. Said recommendations should be subject to extensive economic impact studies.
In the end analysis, this consultative process would provide proof positive that collective bargaining and tripartite cooperation can and do work in Ontario.
Much though the aforementioned approach to OLRA reform is our preferred option, we have specific comments which we would like to make about Bill 40 and I would now call upon Gerald Macies to articulate them for you.
Mr Gerald Macies: Good afternoon.
Purpose clause: We respectfully submit that the addition of the proposed purpose clause to the Ontario Labour Relations Act simply promotes the ability of unions to organize and does nothing to promote competitiveness of business operations.
We believe that the act should be focused on the process of collective bargaining and not the scope of the collective bargaining process. The fundamental premise upon which the Ontario Labour Relations Act is currently based is a sound one; namely, that the parties themselves are best able to define their specific duties and responsibilities through the freedom of choice facilitated by free collective bargaining.
The right of employers to sustain operations and enhance their long-term economic viability should be included and clearly enunciated in any purpose clause.
In regard to the right to organize as security guards, security of guests and guest property at all times is absolutely essential in the tourism and hospitality industry. Security staff are generally plainclothed in our industry and are charged with the responsibility of protecting guest property from internal theft by staff, securing guests and their chattels from intrusion, disruption and theft by non-patrons and ensuring that guests do not steal other guests' property, nor disturb or disrupt other patrons.
Security guards who are members of the same union, even a different local, could no longer be relied upon to give evidence in disciplinary hearings of fellow staff persons or to perform effective investigations of illegal or fraudulent staff activities. In the event of a strike or other type of labour dispute, said security guards could not be used, putting the security of the business, its guests and guest property in serious jeopardy.
Access to third-party property: We are solidly opposed to granting rights to any trade union organizers or employees to engage in union-organizing activities and picketing on public or third-party-owned property. Any activity which can disrupt and interfere with the normal and safe operation of a business and threaten the rights and security of consumers and other legitimate users of said property cannot and should not be sanctioned or tolerated.
With regard to certification procedures: Bill 40 prohibits workers from the right of pre- and post-application petitions, as well as revocations of union membership. This is a denial of basic and fundamental civil liberties. The right to change one's mind or to present a case against a party applying for a statutory right must be protected. In an organizing drive there should be a 72-hour cooling-off period to permit those persons who have signed union cards to change their minds. Further, the right to decertify a union should be the same as the right to certify a union in every way.
We would propose that Bill 40 include an amendment that clearly states that full, equal and open communication will be permitted between employers, unions and employees during a union-organizing drive in any business.
With regard to initiation fees, employees, when they pay a fee to a trade union in order to be counted as supporting a certification application, are alerted to the fact that they are making a personal commitment which will have long-term consequences for themselves and are not just signing a petition which they can ignore. People are more prone to read, learn and understand exactly what they are sanctioning in a certification application and to ignore possible peer group pressure and outside coercion if they have to pay a membership fee.
Historically, and for good reason, a nominal membership fee has been recognized as a necessary safeguard to ensure that membership cards submitted represent the true wishes of employees. We would strongly recommend that a code of organizational conduct be included in Bill 40 which would regulate processes and procedures which must be followed in an organizing drive by a trade union, including the provision of standardized membership cards which clearly enunciate union dues, employee rights and empowerment and the union's involvement in the collective bargaining process.
Unfair labour practice certification: The proposed removal of the current threshold requirement of adequate membership support to obtain automatic union certification removes respect for employee freedom of choice in the certification process. It would be undemocratic to punish the majority of employees in a potential bargaining unit by taking away their right to choose because of violations of the OLRA over which they exercise no control.
Support required for certification: We believe that the only way to guarantee absolute employee empowerment and freedom of choice in the union certification process is to require that the Ontario Labour Relations Board supervise mandatory secret ballot votes in all instances where a trade union can demonstrate a certain minimum level of support. In order to become certified as bargaining agents, trade union certification votes should be required to prove that a simple majority of all employees in the proposed bargaining unit support certification.
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Structure and configuration of bargaining units: With Ontario Labour Relations Board determination of appropriate bargaining units, we do not share the view of the Ontario government that only unions contribute to enhanced productivity and competitiveness. High productivity and harmonious labour-management relations exist in a great many business in Ontario that are non-unionized enterprises.
In Bill 40, the OLRB should be required to determine whether the composition of a bargaining unit will maintain the ability of a business to remain viable, competitive and operational. Trade unions should be free to propose the structure and composition of bargaining units, and a tripartite agreement between employees, management and a trade union as to this composition should take place prior to an application for union certification or in any subsequent move to reconfigure bargaining units.
With full- and part-time bargaining units, by and large, full- and part-time employees work for different reasons. More and more, they are also competing with one another for employment opportunities. Therefore, it is to the mutual benefit of both parties and best interests of full- and part-time employees to be permitted to organize and be certified into separate and distinct bargaining units by different unions, if they so desire. No union should be granted the right to unilaterally combine full- and part-time bargaining units, as is provided for in Bill 40.
With consolidation of bargaining units, we do not believe that granting the OLRB the unilateral power to consolidate two or more existing bargaining units of the same employer, or deemed employer, whether or not the trade unions holding the bargaining rights are the same, will improve and rationalize the process of collective bargaining from the perspective of both management and labour.
We reiterate the fact that employees must be granted the unequivocal right to choose and be represented by the bargaining agent of their choice. The Ministry of Labour has historically recognized the fact that there are unique geographic, operational, competitive and economic differences inherent in the nature and scope of an employer's diverse, multi-unit operations. These realities should and must be respected by permitting the parties directly affected by collective bargaining to negotiate themselves agreements which best suit these realities.
With first-contract arbitration, under Bill 40 unions are discouraged from making a serious effort to reach a negotiated settlement with employers during the first-contract negotiations. First-contract arbitration should be used only as a specific remedy and should be carefully confined in use and application to the exceptional cases for which it was intended and defined. Open-ended access to first-contract arbitration discourages negotiated compromise by the parties to a collective agreement when they are faced with difficult choices and realities.
Therefore, we see no good reason why the existing system of first-contract arbitration should be altered or amended. Furthermore, appointed arbitration boards have no stake in the viability of any business operation.
The Employment Standards Act provides ample and just cause for protection for employees and there is no need to impose third-party, just-cause protection for said persons following certification and prior to first-contract agreement. Likewise, probationary employees should not be accorded any special rights in any such circumstances. It should be noted, however, that some collective agreements provide for probationary periods of up to two years. Is it the Ontario government's intention to limit such arrangements where they have been negotiated in good faith by the parties themselves?
With regard to collective bargaining and the use of replacement workers, the law should not prohibit employers from protecting the viability of their businesses. Employers must be permitted to hire replacement workers who are willing to work at wage rates and under employment conditions which they consider acceptable and which the employer believes are economically feasible.
Data from Quebec do not demonstrate that its anti-replacement-worker relationship has had any positive impact on limiting the number of work days lost due to strikes. In fact, the opposite has been true in almost every year since the legislation was proclaimed. Clearly, the Quebec legislation has not contributed to economic progress or labour-management harmony.
As stated earlier in our submission, businesses in the Ontario tourism and hospitality industry cannot inventory their product, nor can we move patrons to another location in the event of a labour strife. Lost patronage is lost business for ever.
Owners, managers and staff work side by side in our industry, and often in interchangeable roles, particularly in family-owned businesses. A direct conflict of interest could be created if family members and relatives were denied the right to work together during a strike. Further, a very significant percentage of our industry is seasonal in nature and could not survive during a labour dispute without recourse to substitute workers.
The obvious intent of Bill 40 is to force businesses to accept organized labour's demands in a strike situation regardless of the effect of these demands on the viability of said businesses. This is totally unacceptable.
We would point out to the Ontario government that the provision in Bill 40 that makes it an offence for an employer to use services of employees in a strike situation to cross a picket line is a serious abrogation of the rights and freedoms of said employees. We also shudder to think of the implications that the proposed replacement worker provision will have on suppliers to our industry. Some businesses in our industry are already contracting for supplies and services outside of Ontario in order to protect themselves.
Much has been made about the strike vote requirement in Bill 40 in order for the replacement worker provisions to apply. Yet the strike vote requirement can and is fulfilled by many trade unions prior to the commencement of bargaining. In the vast majority of collective agreement negotiations in Ontario, trade unions receive an overwhelming mandate from their membership well before any real threat of a strike is evident to an employer. Therefore, the strike vote requirement is absolutely no impediment for trade unions and affords no protection whatsoever to employers.
Just-cause protection: Disciplinary issues arising out of the conduct of employees during a strike and the conditions under which employees return to work have traditionally been addressed by the parties to the collective bargaining. We fail to see any reason why this process should not be permitted to continue.
With regard to the right to return to work, given that we strongly disagree with the OLRA amendment in Bill 40 concerning replacement workers, we believe that section 73 of the OLRA should remain in place. It should be left to the negotiating parties themselves to establish a protocol for the return to work of striking employees because they are best able to comprehend all mitigating circumstances.
Contract tendering restrictions: Under the current provisions of the Ontario Labour Relations Act the OLRB has determined that true contract tendering for the performance of work on an employer's premises does not attract the application of the successor employer provisions in the act. Similarly, the Employment Standards Act imposes no obligation on a successor employer to hire the employees of the preceding contractor in a contract-tendering situation.
Bill 40 proposes amendments that would radically alter the approach historically taken by the OLRB in contract-tendering situations. Under the bill, a contract tendering or retendering will be treated as a sale of the business. As a consequence, where a collective agreement is in force, it will not be displaced by the tendering of the contract and will be binding upon the successful bidder.
These amendments to the OLRA will all but eliminate the competitive value inherent in the tendering process and seriously devalue the collective bargaining process. Secure in the knowledge that any wage rate negotiated will bind a competitor, the parties to a collective agreement performing tendered work will have little incentive to negotiate responsibly and will be insulated from many of the normal wage pressures inherent in a free market economy.
Bill 40 also proposes narrow but extremely devastating amendments to the Employment Standards Act. These proposed amendments are a direct attack on businesses involved in the supply of building cleaning services, contracted-in food services and building security services. We believe that the net effect of these amendments will be sufficiently devastating to devalue and destroy said businesses as they currently exist.
Successor bargaining rights: If successor rights protection of bargaining rights and collective agreements under section 63 of the act are to be extended to business sales or transfers from federal to provincial jurisdiction, we believe the said protection should only be extended via a comprehensive union certification process wherein all employees in the bargaining unit, not just union members, can vote by supervised secret ballot to ascertain their union or non-union preference by majority vote.
In grievance arbitration, where existing legislation covers a subject and provides an effective enforcement mechanism, there is absolutely no need for duplicate enforcement or adjudication mechanisms. Therefore, we cannot condone the mandatory incorporation of employment-related prohibitions set out in the Human Rights Code into all or any collective agreements unless the parties thereto agree to do so.
We are very concerned with the proposal to permit arbitrators to interpret and apply other employment-related legislation regardless of whether the terms of the collective agreement are consistent with said legislation. As the Ministry of Labour openly admits, "Arbitration boards...do not have the authority to determine all questions of fact and law." Nor, we might add, are they necessarily skilled or qualified to interpret or apply legislation which is not included in a collective agreement.
We fail to see the purpose of granting an arbitrator or an arbitration board the authority to ignore specific provisions of a collective agreement in the arbitration process. Surely all the provisions in a collective agreement must be respected, acknowledged and protected in the free and democratic collective bargaining process.
Adjudication by the Ontario Labour Relations Board: The Ontario Labour Relations Board must be careful not to overstep its authority in its efforts to improve the administration and enforcement of the Ontario Labour Relations Act, while respecting the collective bargaining process.
The role of the OLRB should be as a neutral referee which interprets a simple set of evenhanded rules, ensuring that the processes of certification and collective bargaining are administered fairly. The board should not be viewed as the proactive arm of government, going beyond the process into the content and substance of both certification and bargaining to further the interests of organized labour. Yet that is what Bill 40 envisions.
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We know that changing the neutrality of the OLRB is a primary objective of the union movement. The Ontario Federation of Labour, in its publication It's Time, tells its members that Bill 40 will "strengthen the Ontario Labour Relations Board to act on behalf of working people." This statement shows a fundamental flaw in what the government is trying to do.
The Ontario Labour Relations Board should not be working on behalf of anyone or anything. They should be neutral, evenhanded and fair. All members appointed to the OLRB should be qualified for the job and possess proper and balanced credentials. OLRB appointments should be subject to the scrutiny of public confirmation hearings.
Tourism Ontario proposes that several amendments be made to the Ontario Labour Relations Act which would enhance labour-management relations and protect the democratic interests of all employees in collective bargaining. These are:
-- That trade unions be required to conduct a supervised secret ballot vote on the employer's last offer before a strike commences. All employees in the bargaining unit, not just union members, would be eligible to vote on this offer;
-- That trade unions be required to hold a supervised secret ballot vote by all employees in a bargaining unit on the ratification of any proposed collective agreement;
-- That secret ballot representation votes by all employees in a proposed bargaining unit, supervised by the Ontario Labour Relations Board, be held on every application for certification, upon documented proof of a prescribed minimum level of membership support.
In conclusion, government, industry and labour must refocus their joint efforts to stimulate investor confidence, economic growth and renewal and the creation of jobs and wealth. We must do so very quickly to ensure that our businesses and workforces are efficient, motivated, productive and competitive.
If we stand still, or become mired in non-productive and endless legislation and regulation, we will be overtaken by a global economy whose trade and commerce in goods, services and technology is much more advanced, competitive and efficient than our own. We should ask not what entitlements one group in society deserves at the expense of another, but rather concentrate on our entrepreneurial and productive strengths and our collective will to contribute to the development of a thriving economy.
The Vice-Chair: Thank you very much for your presentation. You have exhausted and indeed exceeded the time allowed for your presentation, so I'd like to take the opportunity to thank you on behalf of the committee for presenting. We will study the documents you've provided. Again, thank you for an interesting presentation.
INDEPENDENT CONTRACTORS' GROUP
The Vice-Chair: The next group is the Independent Contractors' Group. First of all, welcome and please identify yourselves for the purposes of Hansard. You have half an hour. It's convenient if you could leave some of that time for questions and answers and 15 minutes would be great if you could see your way clear to do that. Proceed at your leisure.
Mr Harry Pelissero: We'll attempt to do that, Mr Chairman. My name is Harry Pelissero and I'm executive vice-president with the Independent Contractors' Group. With me today is Phil Besseling, who's the president of our association.
As you can see, our poster reads:
"Freedom of choice? Governments dictate joining specific organizations to work on taxpayer-funded projects! Sound fair or democratic? We think it's a question of freedom and the right to fair and equal opportunity. Could this happen in Ontario? It already has."
We're here today representing the Independent Contractors' Group. Our members represent firms that employ approximately 1,700 people who are responsible for about $550 million worth of construction activity in Ontario. The types of employee organization in those firms cover the entire labour field. We have employees who choose to belong to international unions, we have employees who choose to belong to the Christian Labour Association of Canada and we have employees who choose to work in an open-shop environment.
The Independent Contractors' Group would like to identify an issue and a principle which we feel the committee should consider in its deliberations on Bill 40. The issue is freedom of choice and the principle is fairness. I would now like to turn over the remainder of the presentation to Mr Besseling.
Mr Phil Besseling: Besides being president of the Independent Contractors' Group, I am also president of a unionized mechanical contracting firm in the Hamilton-Niagara area and am involved in the commercial, institutional and industrial sector of the construction industry.
The issue is freedom of choice. Construction employees may freely chose whether or not to join a union. If they choose to be unionized, they also are free to choose which union. Other employees choose not to belong to any union and decide their interests are best met by working in an open-shop environment. We refer to this as freedom of choice. This freedom is severely handicapped and construction employees are discriminated against when restrictive clauses are part of the public sector bid documents.
What is a restrictive clause? Some provincial agencies, municipalities and boards of education have clauses which state that employees must belong to an international union for their firm to bid and perform construction work. These clauses are restrictive and unfair. We have attached to our brief several examples of restrictive clauses in publicly funded projects. The examples cover the entire spectrum of public agencies. We submit the following for your consideration.
Appendix A, Provincial Agency: Ministry of Housing project supplementary general conditions, June 1992, read, "The contractor shall ensure that it and all subcontractors, sub-subcontractors, and other employing persons in the performance of any part of the work are in good standing under a contractual relationship with Toronto-Central Building and Construction Trades Council and its affiliated trade unions and employ only their trade union members in the performance of any part of the work."
Appendix B-1, Boards of Education: Board of Education for the City of Windsor general conditions, June 1990, read, "All electrical installation work so specified and described with the specifications and on the working drawings for this project will be performed only by electrical contractors who are current members of the International Brotherhood of Electrical Workers."
Appendix B-2, Boards of Education: Toronto Board of Education call for tenders, February 12 and November 21, 1991, reads, "Contractors, in order to qualify for the above work must be in contractual relationship with the Toronto-Central Building and Construction Trades Council and/or its affiliated unions."
Appendix C-1, Municipalities: Metro Toronto amendment to section 39 of general conditions reads, "The Metropolitan corporation being bound by the collective agreement between the Carpenters' Employer Bargaining Agency and the Ontario Provincial Council, Union Brotherhood of Carpenters and Joiners of America, any that is the work of the Carpenters District Council of Toronto and Vicinity under the provisions of the aforesaid collective agreement shall only be performed by an employee bound by such agreement."
Appendix C-2, Municipalities: Daily Commercial News article, March 24, 1992, in part reads, "For what appears to be the first time in Ontario, a municipality will be restricted to using only union subcontractors for its non-institutional construction work."
Appendix D, Publicly Funded Agency: Toronto Exhibition Place, general manager memorandum, September 30, 1991, reads, "It is the general policy of the board of governors of Exhibition Place that we operate as a unionized Labourers union trade show site. Please therefore ensure that our trade show leases provide that any work performed by or on behalf of the lessee coming within the jurisdiction of the Labourers union shall be performed by companies bound to a collective bargaining agreement with Labourers, Local 506."
Think of the message these provincial agencies, municipalities and boards of education that have restrictive clauses are sending to those employees who are free to chose not to belong to a union and to other taxpayers. The messages are: "We have set up an arbitrary barrier which gives a monopoly to international unions. We are prepared to take your tax dollars, but we are not prepared to allow you to work on publicly funded projects." Imagine the unions crying foul or unfair if those same public sector agencies had a clause which allowed only open-shop contractors to bid and work. They would want, and rightly so, to demand fairness. This is all we are asking for: fairness.
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The principle is fairness. Fairness in the public sector bid process is fundamental to our democracy. The type of system where governments dictate that you must belong to specific organizations to work on taxpayer-funded projects was tried, and has failed, in the former Soviet Union. The Independent Contractors' Group believes the type of employee organization should not be an issue in bidding on and/or obtaining a job, particularly in public sector contracts where taxpayer funds are spent.
The solution? Amend the Ontario Labour Relations Act. The Independent Contractors' Group requests that the standing committee on resources development propose the necessary amendment to the Ontario Labour Relations Act to ban the use of restrictive clauses in public sector agencies. This principle of fairness is supported by other organizations. Attached to our brief are copies of letters and resolutions from the following associations: the Ontario Chamber of Commerce, the Ontario Public School Boards' Association, the Ontario Separate School Trustees' Association and the Association of Municipalities of Ontario.
In closing, we restate the issue and the principle. The issue is freedom of choice, freedom for Ontario construction workers to chose who and how they wish to be represented. The principle is fairness, fairness to all employees, union and open-shop, and to the taxpayer. We ask the committee to retain freedom of choice and support fairness in our public sector bid process. Thank you for allowing the opportunity to share our concerns. We are prepared to answer any questions at this time.
Mr Carr: I had a similar situation in my riding with a company that won the contract for the expansion of the hospital. They didn't get it because it was the same thing with the Electrical Workers. They think right now that the bureaucrats at the labour board have too much power. Is that your feeling with the legislation as it is now?
Mr Pelissero: In terms of the existing legislation, public sector agencies come into a contractual relationship in one of two ways, either on a voluntary basis or on an involuntary basis as a result of an Ontario Labour Relations Board hearing and/or decision. We think a solution would be found if the labour relations board had in fact ruled that in order to bid the only way you could bid was to be an open-shop contractor. As we said in our brief, the unions would be crying foul and unfair and would want an equal opportunity in the bid process. Not everyone involved in the construction field is allowed to bid, because they happen to belong either to the wrong union or they don't belong to any union at all. We think that type of process is wrong and that the act should be amended to reflect complete fairness and openness in public sector bidding.
Mr Carr: The company was the Naylor Group. They're concerned because their bid was about $400,000 under the competing bid. They won it in a secret bid, but through a labour board decision, the competing bid was lowered to reflect the Naylor price but had to be done using the Electrical Workers. They're saying that's fine this time because the price got lowered so the taxpayers didn't pay any more, but in the future we may pay $400,000 more because he'll be out of business if he doesn't get these contracts. Is that what you're saying as well?
Mr Pelissero: I think it comes back to the principle of fairness and allowing the tendering process to determine who should be performing the work. It should be based on previous experience; it should be based, to a degree, on price, but it should be primarily based on the principle of fairness. The type of organization that your employees chose within your firm shouldn't be a factor in winning or losing any bids in the public sector.
Mr Carr: The people on the hospital board don't want to get involved, because they see it as being controversial if they come out and say anything towards any group. In fact, legal advice will tell them, "You shouldn't get involved with a labour board decision. They're final. Don't come out on either side; just stay neutral."
The problem is that I don't think a lot of people were aware of the circumstances; I wasn't until the people on the board of the hospital came to me and said, "This is crazy; do you realize what's happening?" thinking that what was happening in Oakville was one isolated incident. Of course it's not; it's happening right across. I thought I'd been fairly involved. How come this hasn't come out before, this whole issue of fairness? I'm thinking now in terms of the public. Obviously, you're actively involved. Why don't you think this has come out as a bigger issue until just now, as a result of the Bill 40 hearings?
Mr Pelissero: I think for two reasons. The recession has had an impact on the number of jobs that are available. It's been an issue, in my guesstimate, probably for the last 10 or 15 years, maybe even longer, within the construction industry in the province of Ontario. People have been satisfied to not make any waves. But coming back to the impact on Mr Besseling's business and his employees being able to perform their work, it's a question of certain rights and freedoms. We wonder how silent the unions would be had a labour relations board decision gone the other way. Would they not be approaching whatever government, whatever party was in power, and requesting the fairness of being able to bid on public sector jobs?
So we take this opportunity, while you're amending the Labour Relations Act, to do a couple things. We hope to highlight the issue to the public so they become concerned about it from a competition point of view, and also to the committee so it would see the merits in supporting the principle of fairness in the bid process.
Mr Carr: With regard to this issue, one of the problems has been being able to take a look at it and say that basically what happened in the case with our hospital has happened across the province. It's ironic that on September 15, or whenever, the Premier is coming out to open that facility. Maybe we'll will get a chance to ask him then.
But the fact is that they're saying right now that the labour board basically said: "You're not going to get the contract. These people are." It gets very detailed, because the contractor, Ellis-Don, took it to the labour board and now it's being appealed and we've got lawyers and more. Yet we've had unions come in here and say, "We want to simplify the process." I take a look at this as one of fairness. If you have the lowest price, it doesn't matter who you have; you should get the bid.
Their big concern is that later on down the road we're going to pay a severe price in terms of building a hospital, because the Naylor Group may be out of business. He's been pushed out for no other reason than the fact that he didn't have the right union in there. I think it is one of fairness.
Do you think you're going to see this government move on making the changes?
Mr Pelissero: Mr Mackenzie, at the conclusion of his presentation to the committee, in the press scrum at the end, said they would be willing to consider any reasonable amendments. We certainly consider this to be a reasonable amendment and hope the committee will see the merits of the issue and the principle and support the necessary amendments to the Labour Relations Act to end this discrimination. Putting partisan politics aside, it started during the Progressive Conservatives, it was carried on during the Liberals and now the NDP may have an opportunity to rectify what we think is an injustice.
Mr Carr: Just so you know, I wrote the Minister of Labour about this very specifically and sent copies. His reply was: "I can't do anything because it's before the labour board. They make the decisions and I have to keep hands off." There was no talk about what would happen, or if a policy decision would be able to change it. I wrote on behalf of my constituent, who was very upset, and the members of the board of the hospital were very upset. I got a form letter back saying: "The labour board has ruled. I can't interfere." So I don't think there'll be any changes on the horizon.
Mr Pelissero: That's why we think it's important that the act be amended, and some of the associations that support our position have suggested amendments to the construction section of the Labour Relations Act to exempt municipalities and public sector agencies from being deemed contractors for the benefit of that section. That might be one way, and if there's an additional way or another way to end that discrimination, then we'd certainly support it.
As I said, the flip side of the equation is, had the labour relations board said the only way you could bid and perform work on public sector jobs was to be non-union or open shop, how quiet do you think the unions would be in this exercise? In our membership we have firms that are AFL-CIO-affiliated, we have firms that are Christian Labour Association of Canada and we have firms that operate as an open shop. We feel it's a question of freedom of choice for the employees to determine how and who should represent them. The issue is fairness to all employees and the taxpayers.
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Ms Sharon Murdock (Sudbury): It's certainly a different perspective, because we haven't had this yet. In the two months of consultations I don't think I heard any proposals in regard to this.
It is interesting that Mr Carr has mentioned his hospital. I have three hospitals in my riding, one of which just got a tender that was non-union. That raised a big furore among some of the people who wrote to my office on that one, and hit the papers. It depends on the board. It's not a legislated thing. I have the sense that people who are watching or listening to this will believe the government of the day, be it Conservative, Liberal or New Democrat, legislates that, and that's not the case. In the case of the hospital in my riding, its board of directors -- the property committee, I guess -- made a determination that it wasn't going to put a restriction in. So it's very dependent on the individual boards of the particular committee, agency or municipality which make those kinds of determinations.
I'm wondering, on that basis, how the Ontario Labour Relations Act, which is an act geared to those institutions that choose to work in a collective agreement arrangement, would work. Where would you see it and what section would you see it going into? I know you mentioned the construction section, but nowhere in the construction section, at least in my memory, is there anything that relates to the bidding aspect of jobs. I'm wondering how you can see it working under the Ontario Labour Relations Act.
Mr Pelissero: As you identified, I'm not prepared to let each public sector agency make a determination whether on this particular job it should be union or non-union, and do a chart at the end of the year and say, "We've let three union contracts and we've let three non-union contracts for an equal amount of dollars." We think when you're dealing with taxpayers' funds, it's a question of even being able to bid. We have members within our association who don't go through the time and expense of preparing documents to bid because they know they're simply going to be rejected, yet it's hard to establish a case of being rejected without going through the expense of preparing the tender documents.
We think it's a question of amending the act. Again, the labour relations board has been deeming school boards in some cases, municipalities in other cases, to be contractors as opposed to employers. There's a difference in terms of what that means, what your responsibilities are and if you are in a contractual relationship with a building trade council. What happens is that the labour relations board deems a board of education to be a contractor and, as such, because that board of education has a contractual relationship, either voluntary or involuntary, with the International Brotherhood of Electrical Workers or the labourers' union or the bricklayers etc, it deems that any work on an expansion or renovation basis has to be let only to those individuals who have a contractual relationship with the building trade council.
I think there would be a way to resolve the problem and the issue if the labour relations board was saying the only way you could bid was to be non-union. We wouldn't support that position either, because right now they're saying to municipalities and school boards, "The only groups you can accept bids from are those that have a contractual relationship with the local building trade council."
Ms Murdock: I know Mr Klopp wanted to ask you a question.
Mr Klopp: Maybe just a little longer on that. All these are boards, I gather. In one example a board decided to hire people who had to belong to unions. Up in her area, the board decided it didn't care one way or the other.
Really, I don't see where it comes under the OLRA. It seems the local boards of education or the boards of whatever, they deem -- and they're elected people by their communities, I would imagine, at least my board of education is, or my board of municipality. I know in our township when I was on council we put out tenders. We said it had to be a half-ton truck or it had to be whatever. Some people would write and complain. Now, maybe if they would go to some arbitration board -- I could see if they went to the OLRA in this case -- they would argue the point that that board of education, for example, or that municipality shouldn't have done it that way, and then I can see somewhat of your point, but it really is the elected officials who decide in local areas what or what they do not do.
Mr Besseling: Not really. It's the Ontario Labour Relations Board that has deemed these municipalities or school boards as contractors.
Mr Klopp: So I guess my question then: Is the labour relations board going to phone up that hospital up there and pull it in front of the board because it didn't hire union people?
Mr Besseling: That's correct.
Mr Klopp: They're going to do that?
Mr Besseling: Yes.
Mr Pelissero: There's a potential for that to happen. That's what happened with the Board of Education for the City of Windsor, where originally it went out and hired an electrician to perform some work. It turns out that electrician was a member of the IBEW. The business agent for the IBEW moved in and said, "From here on in, any work that has to be done on a renovation or an expansion basis has to be done by IBEW electricians only." The Board of Education for the City of Windsor took it to a labour relations board hearing. They lost. It's my information that they also took it one step further and were subsequently rejected by Divisional Court in Ontario. So the process may start out innocently, and we're saying it's snowballed to this particular case where unless you happen to belong to either the right union or be unionized at all you're being prevented from bidding on jobs.
Mr Klopp: Fifteen years ago, whenever this was put in the act somewhere, if it was put in, although there is a question as to whether it was put in or not, why was it put in that --
Mr Pelissero: It's not in the act. It's an interpretation by the Ontario Labour Relations Board. The way to, I guess, end the interpretation is to amend the act to exclude municipalities from being deemed contractors under the construction section of the Labour Relations Act.
The Chair: That having been said, we've got to move on to Mr Offer.
Mr Offer: Thank you for your presentation on this very important issue. The way I understand the issue is you're saying that where a board is building a school or something of this nature and it's receiving the dollars, either from the province or through local assessment, it should attempt to get the very best people at the very best price, and the way the board has made some rulings and because the act doesn't contain some safeguards, that just might not be the case.
Mr Besseling: That's correct.
Mr Offer: You've asked for a change to the Labour Relations Act; I forget the exact wording. I read the resolutions of AMO and of the boards and it appears that first they agree with you but second they are saying that what they want is an exemption from being certified, I think in one area as an employer and in another as a contractor. Would that do it? If I can read through their resolutions, it seems that they're saying because they were deemed an employer and/or a contractor, they then had to follow a certain path.
Mr Besseling: That's right.
Mr Offer: If they are exempt from being deemed an employer, then they don't have to follow that path and are free to do what they think is in the best interests of their particular area of responsibility.
Mr Besseling: They're free to have an open bid process, as opposed to a restrictive one which many of them have to follow now because of the ruling of the Ontario Labour Relations Board, or the interpretations of the Ontario Labour Relations Board, as it was put.
There are no safeguards, as Mr Klopp suggested earlier. There are no safeguards to prevent that from happening. That has evolved over the last 15, 10 years, whatever, into this situation, and there's no way for these public agencies to remedy the situation. They have no recourse, as the city of Windsor has attempted.
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Mr Offer: So which is the better route: to go by way of getting rid of the certification of employer and/or contractor, or banning the use of restrictive clauses? Will either work? Will one work better than the other?
Mr Pelissero: I think the preference from organizations' perspective would be to ban the use of restrictive clauses. That would stop or prevent any further use of restrictive clauses in public sector agencies. How you deal with the existing agreements between public sector agencies and those unions that they're bound to is another issue, and we can talk about that at another time. But again, we mention that it crosses the whole spectrum of public sector agencies: Ministry of Housing, boards of education, municipalities.
We give the example of the Canadian National Exhibition. As you're probably aware, it's contemplating literally a $1-billion construction project to turn it into a trade show and exhibition place bar none. It's our understanding that this construction, even though up to 75% of the funding will be coming from the public, will be a closed site; in other words, unless you are unionized and unless you're internationally unionized -- and I say "internationally" because, as you're probably aware, Bill 80 deals with the whole concept of allowing some of the construction international unions to break away from their international affiliations -- you can't bid on the project.
The Chair: Thank you, Mr Phil Besseling, president of the Independent Contractors' Group, and Mr Harry Pelissero, executive vice-president of the Independent Contractors' Group and former member of this Legislative Assembly for the riding of Lincoln.
Mr Pelissero: Thank you, Mr Chairman, for your patience and indulgence.
The Chair: Always patient and always indulgent of you, Mr Pelissero. Good to have you here this afternoon, and we appreciate your involvement in the process.
Mr Pelissero: Nice to have been had.
The Chair: I can't top that.
KELSEY'S RESTAURANTS LTD
CARA OPERATIONS
The Chair: The next participant had better be Kelsey's Restaurants. Please seat yourselves. Tell us your names and your titles and proceed with your submissions. We're going to go till the hour. Please try to save the second half of your time frame for questions and answers and exchanges.
Mr Mike Cataldi: We welcome the opportunity to appear before you today. My name is Mike Cataldi and I am the director of human resources for Kelsey's Restaurants Ltd. With me today is Paul Bachand, vice-president of human resources at Cara Operations. I've asked Paul to appear with me today because Cara Operations, like other major foodservice companies, shares the same concerns about Bill 40 and the impact it will have on our industry and our employees.
Because of the limited time available I will not go over the issues already discussed in the submission presented by the Ontario Restaurant Association. I would like to say, however, that we do support those views and share the concerns put forward by the Ontario Restaurant Association. Instead I will try to focus my comments specifically on how Bill 40 will impact multi-unit operations and undermine the franchising culture which is common in the foodservice industry.
As a multi-unit operator and a major employer in the hospitality industry I am very concerned about the impact some of the proposed changes will have on our establishments and our franchisees, as well as the impact Bill 40 will have on the entire economic health of Ontario. I'm particularly concerned that Bill 40 fails to recognize the unique nature of our service sector. Instead of updating the labour relations system, Bill 40 attempts only to transfer the traditional smokestack industry labour relations approach, with a few moderations, to the service sector. This simply will not work and will not make Ontario more competitive.
As you are well aware, the hospitality industry has already been very severely hurt by the current recession, and the recovery in our industry will be much slower than in most other sectors. The cost and barriers of doing business in Ontario are growing at an alarming rate. In the last two years the restaurant sector in Ontario has lost a staggering 60,000 jobs or more than 30% of the industry's entire workforce. Unfortunately Bill 40 will not create new jobs in the hospitality industry. Instead of encouraging hospitality employers to hire new employees and create new jobs, Bill 40 will result in additional job losses. I believe that job creation and economic renewal should, at this time, be the government's main priorities.
I am particularly concerned that the proposed changes contained in Bill 40 will discourage future investment in Ontario, especially in the foodservices and hospitality sector. Proposed changes will make it more difficult for small hospitality industry operators, including franchisees, to borrow the capital required to upgrade and grow. Already, major financial institutions have cut lines of credit to restaurants as a result of minimum wage increases. Indications are that further lending constraints will be placed on the hospitality industry as a result of Bill 40.
Mr Paul Bachand: I appreciate that some of the proposed changes contained in Bill 40 are in practice in other provinces in some form or another. Other provinces, however, do not have to endure the collective impact of all these proposed changes together. The piecemeal approach of selecting different pieces of legislation from several different provinces will burden Ontario business with cost and administrative problems which would make the hospitality and tourism industry unable to compete or continue to provide employment.
Multi-unit operators within the hospitality industry are particularly concerned about the impact of consolidation mechanisms contained in Bill 40.
Under the current act, the board is given discretion to "determine the unit of employees that is appropriate for collective bargaining." Once the bargaining unit is determined and a community of common interest is established, the board cannot later amend the bargaining unit description so as to consolidate two or more bargaining units or amend the collective agreement mutually negotiated and supported by both the union and the employer.
Bill 40, however, would repeal those provisions and confer upon the board a general consolidation power. This consolidation power would permit the board to consolidate two or more bargaining units represented by the same union into one unit, including bargaining units in geographically separate locations. It is this last component that is of the utmost concern to multi-unit operators and franchise operators.
The power to consolidate bargaining units is not common in Canada. Where it does exist, federally and in Manitoba, it has been used sparingly, primarily to reduce the possibility of multiple work stoppages caused by a fractious bargaining structure. It has not been used simply to strengthen a union's bargaining power.
In the foodservices industry, restaurants run as independent, stand-alone operations. Restaurants that lose money are closed so as not to weaken the chain or threaten the jobs of other locations. Because the ranges of profitability differ dramatically between operations, even within a few-block radius, individual store contracts reflect this reality through higher and lower wage and benefit settlements. Unfortunately, this flexibility would be abandoned if consolidation and contract amendments are permitted. The end result would be that the weaker of the two operations would have to be closed because it could not afford the cost of the higher benefits.
This consolidation mechanism will also seriously undermine the ability of foodservice companies to continue to franchise restaurant establishments. Currently, franchising is a mechanism which allows independent business people to buy and operate a successful establishment and draw upon the support and expertise of a proven concept. The franchiser is also often called upon to provide a ready market when a franchisee wishes to sell his establishment.
The consolidation of bargaining units, however, represents a major threat to the way franchising operates. Often the franchiser is required to own and operate several different locations: during the startup phase; when a store is experiencing management problems; while a new franchisee is being trained, or when the franchiser has repurchased the store to help a franchisee go on to other endeavours. The critical point here is that at certain times a franchiser may own several different locations which he is holding for resale.
Under the current consolidation proposal the union could make an application to merge the bargaining units in all the stores being held for resale. This would make the sale of these to a franchisee virtually impossible, because several different owners would be required to jointly negotiate contracts. This would create tremendous labour conflict and tension, especially if merged units need to be pulled apart. Allowing consolidation of autonomous bargaining units severely undermines the operation of franchising in Ontario.
Another component of Bill 40 of concern to restaurant operators is the provisions that would permit access to premises which the public normally has access to for the purpose of both organizing and picketing. The proximity of this activity to the employer's place of business is restricted only to the extent that it may take place "at or near but outside the entrances and exits to the employee's workplace." Employers or third parties disrupted by organizing or picketing activity can obtain relief from this board upon application, but only in the event of "undue disruption."
Foodservice operators are very concerned about this proposal because it represents a major shift away from the protection of private property as well as a major economic threat to third-party restaurant employees who could be negatively impacted. The restrictions on union organizers and picketers outlined in Bill 40 are sufficiently vague as to encourage the disruption of third-party businesses, such as restaurants.
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This raises a number of concerns, including: Where are the entrances and exits of a foodservice establishment in a shopping mall food court? How can the government guarantee third-party employers are not detrimentally impacted when one employer in the food court is struck? What protection do third-party employers have when picketing from an adjoining employer's location disrupts their business?
If the business of a foodservice operator is impacted by picketing at an adjoining employer's location on a Friday night at dinner time or over the weekend, the viability of the foodservice operation is severely undermined. Because the cash flow of restaurants is critical and their viability so fragile, a restaurant operator could be forced to close after only a few days of disruption as a result of third-party picketing. The potential for disruption becomes even more acute in a retail shopping mall because of the limited, confined spaces.
Currently, employers and third-party employers have the opportunity to seek immediate recourse through the courts when picketing gets out of control. This option, however, would also be taken away under Bill 40. I might add that this proposal was not explored in the discussion paper and was added to Bill 40 without public consultation. Under Bill 40, third-party employers would need to seek recourse through the labour board. Unfortunately the board is not available on Friday evenings or on weekends, which are the most critical times for restaurant operators.
This is simply a clear example of how Bill 40 fails to update the OLRA to reflect the viability of seven-day-a-week operations in the service sector.
To help address this very serious problem, I would like to propose a new mechanism, which would still allow picketing in shopping malls but not threaten the viability of third-party employers. If the union wishes to enter third-party property for the purposes of picketing, before the work stoppage begins they would apply to the board for an advance ruling, which would set the parameters as to where they can picket. This would allow for site-specific board rulings, which would reflect the individual design of the shopping mall and the location of the struck employer.
I understand that the government feels it is under pressure to move quickly and pass Bill 40, but because of the profound impact of this legislation on the long-term health of the Ontario economy and the potential direct impact on employment levels I strongly encourage you to take your time and proceed with caution.
The government, by proceeding with Bill 40, is sending a strong message to small employers and the international investment community that Ontario is anti-business. The perception and reality of this legislation will cost jobs in Ontario.
I thank you for the opportunity to appear here today, and I hope you give some of the concerns we have raised serious thought.
Mr Ferguson: Thank you very much for attending. I appreciate your brief. Not only was it brief but it was also very concise and to the point. It certainly wasn't rambling, nor was it full of rhetoric that we're growing very accustomed to hearing on occasion.
Can I ask you about Kelsey's Restaurants. Is that a wholly-owned company or is it an umbrella company, something like Pepsico?
Mr Cataldi: Wholly owned, privately.
Mr Ferguson: Kelsey's, and that's it; is that correct?
Mr Cataldi: Yes.
Mr Ferguson: Can you tell me how many restaurants you have throughout the province of Ontario?
Mr Cataldi: In Ontario, approximately 35.
Mr Ferguson: Thirty-five restaurants, and out of those 35 restaurants, the approximate number of employees?
Mr Cataldi: Probably about close to 2,000 employees.
Mr Ferguson: Two thousand employees. And out of the 35 restaurants, could you tell me how many are currently unionized?
Mr Cataldi: None.
Mr Ferguson: None. I would understand, then, that you'd probably prefer to keep it that way.
Mr Cataldi: That's correct.
Mr Ferguson: Now, in the event that one of the trade unions here in the province of Ontario decided that restaurants ought to be organized -- let's take for example the service employees' union -- don't you think it would be somewhat unfair if they decided to target Kelsey's Restaurants and they went through Ontario and organized all your restaurants and left everybody else alone? Don't you think there'd be a little bit of unfairness there that has a possibility of occurring?
Mr Cataldi: Yes.
Mr Ferguson: It certainly wouldn't be good. What I'm trying to get at is that some people have called for province-wide bargaining in that they felt it would be unfair to gear either one chain or one establishment and we should really look at the entire sector across the province when it comes down to bargaining. I was just wondering what your thoughts would be on that.
Mr Bachand: Basically, one bargaining unit would not address the concerns, for example, in a franchise organization which Cara operates. We are unionized in our Swiss Chalet units. I'd literally sit down and negotiate contracts based on the financial stability of each location. One-unit bargaining would not allow for that. For example, there are cases whereby we do not pay the same rates of pay in Toronto as we do in Windsor or as we do in Sudbury, based on the financial stability of the operation. For the board to rule that Swiss Chalet would be one collective agreement common to each other would ignore that possibility completely.
Mr Ferguson: Are all the Swiss Chalet restaurants throughout Ontario organized?
Mr Bachand: I would say a good 60% of Ontario is, yes.
Mr Ferguson: Out of how many? How many restaurants are there?
Mr Bachand: I believe there are approximately 180 restaurants in Ontario.
Ms Murdock: Is that going to be the same case for the Swiss Chalet-Harvey's combo that's opening up in Val Caron in the very near future? I just point that out because I found out; I rode your bicycle this weekend, the 32-seater, for cystic fibrosis. Swiss Chalet has been the sponsor throughout Canada. They were telling me that there's a new company opening up just near us.
I have a question on page 4 of your proposal, because I'm not sure exactly which proposal was not explored in the discussion paper. I don't know whether it's the aspect of picketers and where they're allowed to be, or third-party employees seeking immediate recourse. I'm not exactly certain of what you're saying in that paragraph.
Mr Bachand: Which is that?
Ms Murdock: Sorry, it's the third to last paragraph on the page.
Mr Bachand: What was not explored in the discussion paper was the fact that it would be exclusively to the labour relations board and not the courts. That is what we're saying there. In other words, right now you can go through the courts to get reprieve for third-party --
Ms Murdock: Injunctions.
Mr Bachand: Yes, and in the discussion paper it was only remised back to the labour board and it was missed in our discussion paper.
Ms Murdock: Under an expedited process.
Mr Bachand: Yes. But right now the legislation is such that it would only be to the labour board and the courts would not --
Ms Murdock: Okay.
Mr Bachand: And that's only to third-party, yes.
Ms Murdock: Just for clarification purposes, though, so that you'll know, albeit it wasn't part of the discussion paper, specifically it came up time and time again in the proposals that were made before the minister and myself during the consultation process. Some things were added from what we heard presented to us, other things were amended and other things were deleted. That was one of them. It wasn't very clear there.
I want to thank you for your presentation.
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Mr Offer: I have some questions over the issue of the impact on franchising and consolidation. I thank you for your presentation on that one very particular point, because although it's been alluded to earlier, I think not with the specificity you've indicated.
I'm a little concerned with the comments made by the government member, Mr Ferguson, characterizing individuals who've come before the committee with concerns about the bill as somewhat being involved in some rambling rhetoric. I certainly disagree with that to the nth degree.
However, with a franchise operation, I am looking at the changes proposed in the legislation, and it speaks to the fact that there is a single employer. It doesn't speak to that, but it certainly is that. In a franchise operation there would of course be the single franchisor and there would be the owners of each of the locations.
I'm trying to get in my mind a picture of, let's say, ABC, some product, whatever, and there may be three of those organizations in a city. The franchisor is always the same, but the actual owner, the franchisee, of course is different. It's my understanding that if the workers in each of those franchised operations were unionized, they could not be consolidated in that event, that there was one franchise operation with different franchisees as owners.
Mr Bachand: There are several examples whereby the franchisee owns several locations. For example, we have in our organization one group that franchises an awful lot of stores.
Mr Offer: That I understand.
Mr Bachand: That's where your concern would be.
Mr Offer: That's where your concern is. I'm wondering, because we have ministry officials here, if we can get an absolute clarification that the consolidation would not apply in the event that there were different franchisees but it's of one franchise operation. I hope we can get what I would think would be a very straightforward characterization of that.
The Chair: One moment. Do you want that responded to now?
Mr Offer: If that's possible, yes, but I'm afraid to get in the way.
The Chair: One moment. If one of the ministry people wants to come up to the mike and feels capable of responding to that, please do so now. Come on up to a mike so we can record what you've got to say. You'd better tell us who you are.
Mr Richard Prial: I'm Richard Prial, adviser with the Ministry of Labour. Essentially, as Mr Offer has stated, reference here is to a single employer. I could provide a tentative answer at this point and I'm prepared to provide further details in the event that the tentative answer doesn't meet your requirements.
The tentative answer is that individual franchisees, so long as they own no other franchises, would be regarded as separate employers for purposes of the act. That conclusion is subject of course to findings of the board in particular circumstances.
The Chair: Are you a lawyer?
Mr Prial: Yes.
The Chair: Is that a legal opinion?
Mr Prial: I wouldn't tender it as such. I'm an adviser with the ministry.
The Chair: Right you are. Okay, thank you. Go ahead, Mr Offer.
Mr Offer: Thank you very much for that. It actually heightens my concern, because the indication is that though there might be different franchise owners, under this legislation the board could find that notwithstanding that, there could still be consolidation of the units. I think that's going to cause some extremely heightened concern for franchise operations, whether they own one or 10 operations, based on that response.
Mr Bachand: The other concern you have is that in the restaurant business, turnover of franchisees from one to another happens quite frequently. As we said in the brief, for example, a franchisee could end up sitting at the table negotiating a collective agreement for his unit with three or four other owners, just because of turnover. There's another area there.
Mr Offer: Quickly, if the franchisor, for a number of reasons, either takes back an operation or still holds on to it and may eventually have three or four locations within a city -- I'm using the geographical location in my mind -- consolidation could then take place clearly, even without a board's decision. But then what happens is that the franchisor is always looking to sell the operation. Under these changes, he or she sells the operation subject to that collective agreement for ever.
Mr Bachand: Or until negotiated again, yes.
Mrs Witmer: Thank you very much for your presentation. We've heard from a number of people today and last week who are involved in the hospitality and service sectors and I think it's becoming increasingly apparent that you certainly are in a very unique position. Unfortunately, this Bill 40 is responding perhaps to the needs of the smokestack industry, as you've indicated here, but it has not taken into consideration some of the concerns you've expressed today.
I appreciate the questions Mr Offer asked concerning the impact on franchising. I think some things have been demonstrated today that we were not aware of before.
Would you suggest that if the government proceeds with Bill 40, as it has indicated it wishes to do, and has it passed before the end of this year, it set aside the service sector and spend more time taking a look at the unique needs of that sector, as it has with the agricultural sector? Would you be recommending that type of move?
Mr Bachand: Yes, I would strongly recommend that, because there is a lot for the smokestack industry and the manufacturing industry that would not apply to our industry and could cause severe damage to our industry.
Mrs Witmer: I guess that's what we're hearing over and over again. I was interested to see you indicate here that financial institutions have already cut lines of credit to restaurants because of the minimum wage increase and you say this is going to occur as well as a result of Bill 40. What indications have you had that it's going to be much more difficult?
Mr Bachand: Just in terms of replacement workers within the industry, one of our divisions has a customer who represents, I would say, a good 70% to 75% of that business. We experienced a strike in that location about two or three years ago, and if it had not been for replacement workers, we would have lost that entire customer. That's how important it is in our industry. We could not service that customer without replacement workers if there were to be another strike. Touch wood there won't be, but that's how key it is.
In the restaurant business, we don't carry inventories in our back rooms like manufacturers carry cars and parts. If we have a one-day strike, at the end of the second day there is no more food left. There is no more business if we can't bring people in to at least service our customers. In our industry also, if a customer wants Kelsey's steak, as an example, can't get it and goes down the street for something else, the chances of her coming back for that steak are very limited. Our business is that volatile and there are many things in the act that could hurt our business. So I think it should be kept separate if they're going to go ahead with the legislation.
Mrs Witmer: I would certainly suggest that the government give very serious consideration to giving much more thorough examination to the hospitality sector, because I think we're all becoming increasingly aware of the fact that you are unique. We're hearing as well that over a weekend, for many small business family operations, they would be forced to close down if there was a strike of any kind at all. So we thank you for sharing those concerns with us.
The Chair: On behalf of the committee, I want to thank Kelsey's Restaurants and both of you for appearing here this afternoon and making your views known as articulately as you have made them known. We trust you'll be keeping in touch as the bill progresses through the committee.
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MISSISSAUGA BOARD OF TRADE
The Chair: The next participant is the Mississauga Board of Trade. The people here on behalf of the Mississauga Board of Trade will please come forward, seat themselves in front of a microphone, tell us their names and positions, if any, and then tell us what they will, leaving the second half of the half-hour for questions.
Mr Sid Valo: My name is Sid Valo. I'm president of the Mississauga Board of Trade. Karen Hartley is chair of our human resources committee and has been responsible for the work we've done on the Labour Relations Act. Mr Norman White is one of our directors with responsibility for human resources.
The Mississauga Board of Trade has a membership of approximately 2,300 businessmen and business women from approximately 1,600 companies. These people represent 50,000 workers in Mississauga and our membership covers all elements of industry and commerce in Mississauga.
In response to the Ontario government's proposed amendments to the Labour Relations Act, originally published in October 1991, the board of trade has encouraged its members to write directly to the Premier of Ontario, voicing their individual concerns about the proposals. To date, over 239 business women and men have indicated their clear objection to the proposals.
As well, the board of trade filed a written submission in February 1992 to the Minister of Labour, outlining our objections to the proposed amendments both generally and with reference to specific objections to certain amendments themselves.
From a general business perspective, the proposed amendments do nothing to enhance the objectives of the collective bargaining process, facilitate the free choice of employees to organize, promote industrial stability or enhance Ontario's competitive advantage. Instead, Bill 40 tips the balance clearly in favour of unions in both the organizing and bargaining areas.
Firstly, the amendments do nothing to enhance Ontario's economic environment or promote the creation of new jobs, which should be this government's priority, given the present economic circumstances.
Secondly, increasing the economic power of unions at the expense of business clearly jeopardizes the formation of new business in Ontario. The province of Ontario must remain attractive to businesses and potential businesses in order to maintain a healthy economy and an employed workforce. Labour legislation clearly designed to favour unions will inevitably result in a loss of business and investor confidence in Ontario.
Thirdly, the priority of any labour legislation in Ontario should stress the freedom of choice of individual employees as to how they wish to negotiate their terms of employment with employers. Bill 40 restricts the free choice of employees both at the organizing stage and during a strike situation.
From a general business perspective, the Mississauga Board of Trade urges this government to withdraw Bill 40 since the bill clearly favours unions at the expense of business, potential business and individual employees. Such legislation will only impede the growth of business and employment in Ontario, especially in the present economic condition and increased competition from other jurisdictions for business investment dollars.
Although it is the submission of the board of trade that Bill 40 be withdrawn in its entirety, certain specific amendments within the bill must be addressed to highlight their objectionable character.
Firstly, section 32 of the bill essentially provides for a ban on the use of replacement workers during a strike or lockout. A ban on replacement workers effectively makes the lockout option of an employer virtually useless and significantly enhances the effectiveness of a strike by a union.
In order to maintain effective collective bargaining and enhance industrial stability, the parties to the bargaining process must be assured that the economic power they each have is evenly balanced. A ban on replacement workers significantly increases the economic balance of power in favour of the union, since the strike becomes an exceptional bargaining weapon whereas the lockout has been rendered useless. Such a legislated imbalance of economic power can only lead to further industrial conflict, disharmonious labour relations and the eventual loss of further business in Ontario.
The Mississauga Board of Trade therefore submits that Bill 40 be amended to delete section 32 of the bill so that there is no ban on the use of replacement workers.
As well, the exceptions to the general rule of a ban on replacement workers are very restrictive. Admittedly, employers can employ management personnel or non-union employees at a location to do the work of a striking employee, but both management and non-union employees have a right to refuse to do such work without fear of reprisal.
If the ban on replacement workers is not deleted from the bill, then the board submits that the bill be amended so that management and non-union employees do not have a right to refuse to do bargaining work in a strike situation.
The use of replacement workers can also be permitted in situations where there is danger to life, health, safety or property or where serious environmental damage may occur. The interpretation as to whether any such situation existed rests with the labour relations board. This does not permit employers to act with any certainty of result.
To further illustrate how this ban could give rise to serious consequences, consider this example. The amendments provide that domestic workers such as nannies may organize. If household parents employ domestics such as nannies to take care of children in a home and the domestics engage in a strike, then the parents are barred from using any other person to take care of the children unless the children are in need of protection as defined in the Child and Family Services Act.
Since parents normally do not have other employees in the household, family members or friends could not take care of the children during such a strike, since the ban on replacement workers includes a ban on persons whether they are hired for pay or not. This same example in the context of a small, family-owned manufacturing business which might call on family to assist, without pay, during a strike only serves to underscore the need for amendment to Bill 40.
Further, a ban on replacement workers totally prevents individual employees from exercising their freedom to cross the picket line and work during a strike situation. At a time when the economic conditions in Ontario are poor and the need for employment income is great, restrictions on an employee's choice to earn income is contrary to the general purpose of labour legislation, which should be to enhance the freedom of employees to make choices regarding their employment situations.
If the ban on replacement workers is not deleted, then it is submitted that Bill 40 be amended so that the relationship between employer and manager or non-union worker remain unaffected in the event of a strike or lockout, unpaid persons be permitted to do bargaining unit work and striking employees have the option of continuing work during a strike.
Second, section 4 and subsection 7(2) of Bill 40 provide that certain groups previously excluded from the operation of the Labour Relations Act are now included. Domestics, certain professional groups such as lawyers, architects and dentists and certain agricultural workers will now be able to organize.
The exclusion of domestics must be maintained, as the relationship between domestics and their employers is one that is uniquely personal. Such domestic employment does not call for grievance procedures, arbitration hearings, hiring halls for nannies or child care workers, picketing or, worst of all, strikes. My previous example, where the inclusion of domestics coupled with the ban on replacement workers would prohibit relatives of a child from engaging in child care work, demonstrates the difficulties created by the language of the bill.
Professional groups such as lawyers and dentists are governed by their own regulatory bodies and engage in a type of work that does not logically fit into a collective bargaining process. Non-managerial professions often begin as apprentices or associates who may be invited to become partners in their firm. The type of work engaged in by such apprentices or associates may not be drastically different than that of the partners in the firm. Therefore, it may be virtually impossible to adequately define the type of work that would constitute bargaining unit work in the circumstances. It is not difficult to contemplate situations where striking professionals such as lawyers, coupled with the ban on replacement workers, would seriously inhibit the administration of justice. Judicial delays and postponements would inevitably be caused, affecting innocent third parties.
As you are aware, professionals such as lawyers have a professional obligation not to withdraw their services at critical times in representing their clients. The board of trade submits that groups such as domestics and professionals be excluded from the operation of the Labour Relations Act.
Third, section 12 of Bill 40 essentially provides that organizing and picketing activities of unions can be undertaken on certain premises where the public normally has access, although the property is privately owned. In this situation, organizing and picketing activities could be undertaken in places such as shopping malls. Such an amendment is objectionable, since union activity would likely detrimentally affect surrounding retail business in these malls even though such businesses have no involvement in the labour dispute in question.
As well, any strike in a shopping mall would inevitably result in increased security requirements and other costs for the landlord and tenants, again even though these parties are not involved in the dispute in question. The board of trade specifically submits that section 12 of the bill be deleted entirely.
Fourth, certain amendments in Bill 40 have provided unions with greater ability to organize workers at the expense of the employees' freedom to express their true wishes concerning representation. Section 8 of Bill 40 provides certain amendments, including a provision that the labour relations board shall not consider any membership evidence if such evidence is filed or presented after the certification application date. As a result, petitions by employees who have second thoughts concerning union representation or their choice of union representation are barred from the certification process.
The purpose of labour relations legislation is to ensure that workers freely exercise their right to choose or reject union representation. To absolutely bar any evidence that represents the true wishes of the employee is contrary to this principle. The labour relations board has very strict jurisprudence in testing whether such petitions are genuine. Where employees have a true change of heart concerning representation, such evidence should not be absolutely barred in the circumstances.
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As well, section 10 of the bill contains a provision that permits automatic certification where the employer has engaged in an unfair labour practice, regardless of whether or not there is adequate support for a particular union. At present, the Labour Relations Act provides that a union must demonstrate adequate membership support in addition to establishing an unfair labour practice. This requirement of demonstrating adequate support must be maintained. To automatically certify a union due to improper employer conduct where the vast majority of employees choose not to be represented by that union is absolutely contrary to the employee's right to choose how his employment terms are negotiated.
Therefore, the Mississauga Board of Trade submits that section 8 of Bill 40 be amended to permit the submission of any evidence that indicates the true wishes of the employees with respect to union representation and that section 10 of the bill be amended to require unions to demonstrate adequate membership support even in a situation where an employer might be considered to have violated the act.
Fifth, subsection 7(1) of Bill 40 essentially mandates that full-time employees and part-time employees be included in the same bargaining unit. Normally, the labour relations board determines the appropriateness of the bargaining unit and investigates whether or not part-time employees and full-time employees would have a similar community of interest so as to justify inclusion within the same bargaining unit. To mandate such inclusion usurps the authority of the labour relations board to conduct such investigations.
The Mississauga Board of Trade therefore submits that Bill 40 be amended so that full-time employees and part-time employees are not automatically deemed to be one bargaining unit but that the authority of the labour relations board to determine the appropriate bargaining unit be maintained.
There are many other sections in the bill which are objectionable, including the elimination of the $1 union application fee. Such a fee should in fact be increased so that employees know that union representation is a significant change in their employment relationship.
Alternatively, unions should satisfy the labour board that signed-up members have been fully informed as to their rights upon joining a union, including anticipated union dues and their loss of a right to sue in Ontario courts for wrongful dismissal damages upon termination.
As well, Bill 40 provides for easier access to first contract arbitration, which will inevitably lead to arbitrators deciding more collective agreements. This is contrary to the overall principle that the parties should bargain towards a negotiated contract.
In conclusion, Bill 40 as a whole is objectionable in that it drastically favours unions at the expense of individual employee rights and at the expense of business in Ontario. Legislation such as Bill 40, which alters the economic balance of bargaining power in favour of unions, makes Ontario less attractive to new business. Such a result is unacceptable, given the poor economic conditions of the day.
In these submissions, the Mississauga Board of Trade has, contrary to Minister Mackenzie's view, gone beyond the headlines and specifically examined the bill for what it really is, and has concluded that the government proposals are in fact not reasonable. The ban on replacement workers unnecessarily upsets the economic balance between unions and employers in the collective bargaining process. The ban on replacement workers coupled with the inclusion of groups such as domestics and professionals leads to the prospect of totally unacceptable situations where innocent third parties are affected.
It is the hope of the Mississauga Board of Trade that everything is on the table, as Minister Mackenzie has suggested, and that this government is not just going through these consultations without a sincere intention of considering these alternative suggestions.
Mr Chairman, that is our submission. Mr White and Ms Hartley are prepared to response to your questions.
The Chair: Thank you. Mr Offer, five minutes.
Mr Offer: Thank you for your presentation. I can't go without commenting, and rightly so, about the very important contribution made by the Mississauga Board of Trade to the city, not only on this issue but on a variety of other issues, and not only today but in days past. I'd like to congratulate you on your presentation on another issue of some real importance, certainly as to how it will affect not only the business community but I think a great many people within the city of Mississauga.
My question deals with that part of your presentation on pages 7 and 8 speaking to the ability of workers to organize. I was taken by this, because we have heard presentations on this very same point, and the word that's used always is "petitions." Though you have used the word "petition" in here, I think you've really characterized it as an employee's freedom to express true wishes.
As you were going through this, I went back to the proposed changes as to what it says. In the hearings, sometimes we start to get a tad casual about our questions, and we have to remind ourselves that the bill says that the board will not consider evidence filed or presented by an employee that he or she -- and I'm just paraphrasing -- cancelled, revoked or resigned his or her membership or has otherwise expressed a desire not to be represented by a trade union. That's what this bill actually says.
There have been suggestions made that the way in which we can give to workers a true freedom as to whether they wish or do not wish to organize, as is their right, is through the use of a secret ballot where they are made aware of an organizing drive, what it means and are able to cast their vote for or against in an unfettered and free manner. I'm wondering if you could comment on that particular issue.
Mr Norman White: Perhaps I can respond on behalf of the board. Certainly the thrust of the board's mission on this point is that the principle of the employee's right to choose, whether (a) to organize or not, or (b) which particular union he wishes to be represented by, is the primary concern. Certainly, the board would be prepared to agree that the best way of ensuring that an employee has a free choice is by a secret ballot vote. Primarily, that would be for the reason that the employee would have full information up to the time of that vote concerning the union; and potentially the employer also, although the employer has strict requirements as to what it may discuss concerning a union drive. Both sides of the story, to a certain extent, can be told, and in that sense the employee could have full information, or at least the best information, before the employee makes a decision. So it would certainly be the position of the board that the best-case scenario would be a secret ballot vote. That way, the employee's free choice is ensured.
Mr Offer: We've heard that notwithstanding the freedom to make that choice, there are those who are opposed to that particular position, but the reason sometimes escapes logic. I apologize that this is not a fair question, but it's something that's not in the brief, and if it affects the case then I'll just go on to another area. Right now there is a preamble to the legislation, and that has been changed to a purpose clause. There are those who feel that the purpose clause now really does mandate the board and really shifts and tilts a balance. I'm wondering if you have any thoughts on the purpose clause in the legislation.
Mr White: For the most part, in reviewing the proposed purpose clause, which is section 5 of the bill, it tends to be sort of motherhood and apple-pie language. But interestingly, the first purpose of the clause is to ensure that the workers freely exercise their right to organize by facilitating the right of the employees to choose. That should be the primary purpose of the legislation.
Mrs Witmer: My first question concerns individual rights, and you've indicated here that certainly Bill 40 does infringe on the rights of individuals and also on the rights of employers. You indicated that there was a need to fully inform all employees about the consequences of joining a union, and on page 9 you indicate that they also be made aware of the fact that they lose their right to sue in Ontario courts for wrongful dismissal damages upon termination. How significant do you feel this loss is for employees in this province?
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Mr White: That's a very difficult question. To summarize the common law of wrongful dismissal in Ontario may take more than a handful of minutes. As someone who practises law, particularly in the wrongful dismissal area, generally it would be safe to say that the awards for wrongful dismissal damages are based upon what a court's interpretation of "reasonable notice" is. Certainly in a union environment, the employee is barred from bringing an action for wrongful dismissal damages in the Ontario court and seeking damages as a result. Those damages would, of course, be reasonable notice.
Mrs Witmer: Going back to a point you made regarding domestics and nannies, I'd like some clarification. Are we to interpret that if you were to organize nannies and there was a strike, then you would not be allowed to bring in a grandmother or an aunt from outside of the household to look after the children?
Mr White: That's our reading of the bill.
Mrs Witmer: I'd appreciate some clarification there.
Mr White: Perhaps I can explain. Right now, the ban on replacement workers stipulates that you cannot use any person except a non-union employee or management. If you have a situation where domestics are organized in a household and the domestics are on strike, the way the bill is written, you cannot use a person whether paid or not. So if you did have a grandparent who wanted to take care of the child, which of course is what nannies do, they would be viewed as a replacement worker and they would be banned, whether they be a grandparent, an uncle, an aunt or a friend.
Mrs Witmer: Is this indeed what the legislation is intended to do, Mr Kormos?
The Chair: Darned if I know. I'm only the Chair, Mrs Witmer. You direct your questions to whoever you think can help you.
Mrs Witmer: Are advisers able to clarify that particular point for us?
Mr Prial: I don't think we're in a position to say at present that the legislation was intended to do anything of that nature at all. The replacement worker provision would be applicable in such situations where you've got sufficient numbers of workers who in fact can be organized.
My understanding of your typical domestic household is that you've generally got one domestic. Presumably, the only situation in which the replacement worker ban might come into effect would be in the sort of situation where you've got an employer who functions in what we'll call the domestics industry, without using any names, and that type of an employer could conceivably enter into collective bargaining relationships with the domestics whom that employer employs.
Under those circumstances it's conceivable that if the domestics went on strike, the result would be that the employer could not then employ replacement workers as such. However, with respect to the individual parent who is in a contractual relationship with the domestic service agency, that parent is not the employer as such in that scenario. Consequently, that parent could easily employ a grandparent, or indeed any other person, to come in and take care of the children.
Mrs Witmer: So you're saying that if I do have a nanny and there is a strike, then I, not being the employer, would be able to bring in my grandparent or my aunt.
Mr Prial: In that scenario, you're not the employer and as such you're not caught by the section. The situation may be otherwise if you have the luxury of employing six nannies or some such thing. I'm not prepared to say, because that would be speculative.
Mrs Witmer: Well, I don't have one.
The Chair: Mr Klopp, did you have a short question or comment?
Mr Klopp: Along those lines, we've drawn in the professional lawyers and dentists, and you use an example about how they might go on strike. Some may say that's an improvement and that we wouldn't notice any difference in some of the court cases. Seriously, though, under the amendments there is nothing -- it seems to come across in here that you're putting it in the context that they have to join an organization. Where in the bill does it say they have to join an organization? I don't know where that is.
Mr White: Are you referring to professionals or to employees at large?
Mr Klopp: Anything. You have professionals in addition, employees, anything. You seem to be saying that you're going to have to join an organization now that you've been given an opportunity to. I don't read that in the act anywhere, the old act or the proposed act. Can you tell me where it is?
Mr White: Certainly unions have to meet certain requirements in order to organize a bargaining unit. My reading of the act is that if they have support greater than 55%, then even though 44% may choose not to be represented by the union, they are forced, to use your language, to be represented by the union.
Mr Klopp: No, no. I said -- I'm not a lawyer, but let's say I were. Well, I'll use another example. Somebody passes a rule -- maybe it's there in the bowels of government -- that says I'm allowed to jump in Lake Huron. That's where I live. That doesn't mean I have to go jump in Lake Huron; it just says I'm entitled, as a Canadian citizen, to jump in the lake. Where in the act does it say I have to join an organization just because you're allowing me to? That's all I'm asking.
Mr White: If we are addressing just the lawyer issue, if there were a bargaining unit of associates in a law firm and they were organized, yes, if you were one particular lawyer and that was organized, you aren't forced to join the union. You could quit your job. I'm not so sure that is the intent of this legislation or the intent of the Labour Relations Act. I'm not so sure I know what you're asking, Mr Klopp.
Mr Ward: Do I just have time for one quick question?
The Chair: Two quick ones or one not-so-long.
Mr Ward: One preamble, then. General consensus has been that there's a need to update the existing labour act. It hasn't been significantly changed since 1975. The workforce and the workplace have changed, I think no one can argue, in that time frame.
Just so I understand, there are some amendments we're proposing in the bill that are in every other jurisdiction or in every other province. Referring specifically to the right for security guards to join the trade union of their choice, the full- and part-time workers' rights to single-unit representation, and the petition restrictions, they are in place everywhere else in the country. Yet you're opposed to those three as well -- just for my own understanding -- while recognizing that we do need to update the labour act.
Mr White: In our submissions today we did not mention the issue of security guards. We were certainly opposed to security guards joining unions where they were monitoring those unions, but there is protection in this bill saying that so long as a conflict of interest does not arise, they might have that right.
Mr Ward: So you support that?
Mr White: With the requirement that the conflict of interest issue is addressed, we don't have any objections to that.
We have objections to what you have called "petitions" and what Mr Offer has called "evidence of free employee choice." We believe the principle of free employee choice is the primary principle here.
Mr Ward: So the Mississauga Board of Trade's position is that Ontario should stand alone even though those two specific areas are covered in every other provincial jurisdiction in Canada? Ontario should stand alone; that's your recommendation to this committee.
Mr White: We have always viewed Ontario as the leader in employee rights and not necessarily one that just follows other provinces.
Mr Ward: Good. Thank you.
The Chair: Thank you, people, appearing here on behalf of the Mississauga Board of Trade. We appreciate your interest and appreciate your participation and thank you for coming this afternoon.
Mrs Witmer: Mr Chair, could I have a legal interpretation of the nanny section?
The Chair: When we get to your round in the questions and comments, you can do your best.
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KEN BRYDEN
The Chair: The next participant is Professor Bryden. Sir, please seat yourself in front of a microphone. Good afternoon. We've all got your written submissions. Please address us. Try to save at least 15 minutes for comments and exchanges.
Mr Ken Bryden: I believe that what I have to say will not take more than 15 minutes. I'm sure, however, that the logic will be so compelling that there probably will be no questions at all.
Let me say first of all that I used to be a member of this assembly quite a long time ago, in the latter years of the Frost period and the larger part of the Robarts period.
Let me say further that in those days it was a very different situation from now. I really envy you people the wonderful facilities you have. I don't begrudge them to you -- I think you need them -- but when I was there we didn't have an office and we had no staff support of any kind. The government had all the resources of the public service behind it. We, as a very small group -- the government really dominated the House -- were entirely on our own resources.
As long as Frost was in charge, oral questions were out -- not permitted, period. Robarts relaxed that a little bit. We could ask just a very few oral questions -- three or four in a day -- provided we submitted them in writing in advance to the Speaker so that he could give them to the minister concerned so that he could get his staff to prepare a great, long-winded reply. We were not permitted any preamble. We had to read the question precisely as it was written, and no supplementary questions were permitted.
As far as getting a bill before a committee like this, well, that was completely unheard of. Indeed, in the very rare situations where we were able to get a standing committee to meet at all, the normal procedure would be for a lineup of officials to make long statements which would take up an entire session. The session would then be adjourned and the committee would never resume.
What of course changed all these rules completely was the period of minority government between 1975 and 1980. The rules were really blown wide open, and I think in a beneficial way. The opposition began to get opportunities that we certainly didn't have. We certainly had to make our own opportunities, and that was mainly using shouting against catcalls and so on from a very large group who were not only opposite us but were all around us, too. We were surrounded by them. As a matter of fact, I notice that the House still goes in for catcalls, although the relative strength is more equalized now. Anyway, as I say, the rules were greatly improved and the opposition was given the sort of opportunity it should have in a parliamentary assembly.
The only other thing I would say is that since the rules were dictated by the opposition -- after all, the two opposition parties could outvote the government, and did, on these matters of rules during that period -- certain requirements of the government were overlooked. I'm not saying that the government was severely penalized -- it still runs the show -- but the opposition members more and more began to see the opportunities for exploiting these rules. I'm not pointing the finger at anybody; they all do it. I would have done it if I had been there. But, of course, there comes a time when a decision has to be made. I think the opposition should have a full opportunity to make its views known to the public on a government measure, but then you have to come to a decision.
With that little preamble, I'll get on to my written text, which you have before you. I am, as you can see, professor emeritus of political science at the University of Toronto, which means I've been promoted out through the top, and that was quite a few years ago. But anyway, here is my brief.
In view of the widespread misconceptions apparent in contemporary discussions of labour relations generally and Bill 40 specifically, some elementary definitions are necessary.
A trade union is a voluntary association of wage earners formed to advance their common interests, especially but not exclusively in their relations with their employer. The formal structure of a trade union is democratic, with power flowing from the bottom up.
In practice, this ideal is only partially achieved in trade unions, as in all other democratic organizations and indeed in democratic polities themselves. That, however, does not detract from the fact that, notwithstanding defects that seem inevitable in this imperfect world, unions are essentially democratic organizations of working people within a larger, essentially democratic society.
An employment unit is an autocratic structure, with power concentrated at the top and radiating down through various levels of supervision, depending on the size of the organization. In recent times there have been some steps in North America away from this dictatorial model to a more consociational one, but these cases have been few and far between. The norm in North America is still a master-servant relationship. The arbitrariness, even brutality, of the relationship manifest in the old master and servant acts is not as widespread as it once was, but there continues to be a sharp demarcation between those in whom power is concentrated and those who are subject to that power.
In contemporary democratic theory, with its emphasis on pluralism as the foundation of freedom, the first of these models is the essential ingredient of a democratic society, while the latter is an anachronism inherited from a less democratic past. Ever since trade unions appeared on the scene, however, there has been a never-ending effort to stand this fundamental democratic truth on its head. Unions have been branded first as criminal conspiracies, then as conspiracies in restraint of trade, and now as interlopers to be tolerated at best where they cannot be resisted and even destroyed.
Propaganda from business organizations and their apologists persistently represents these democratic organizations as somehow alien to the workers who comprise them, and their elected leaders are regularly smeared with the pejorative term "union bosses." Employers, on the other hand, are represented as overflowing with benevolence and with no concern other than to protect the workers from their own organizations and leaders. There is, of course, no mention of the fact that the real concern is that employers will have to meet their employees as equals, and that could mean reallocation of the benefits of the enterprise.
The only useful information emanating from the so-called economic impact studies produced by Ernst and Young demonstrates how appallingly widespread these antediluvian attitudes are. As long as such attitudes prevail, there is no hope that confrontation will be replaced by cooperation in the workplace. And without cooperation, there is no hope that our industries will be able to compete in the modern world economy.
For four and a half years in the late 1940s I chaired the Saskatchewan Labour Relations Board, charged with implementing the province's Trade Union Act, 1944. That was pioneering legislation at the time, and the shrieks that the sky was falling were even louder than they are in Ontario today. Every time an order of the labour relations board was taken to the Saskatchewan courts the order was quashed, but every time an appeal was taken beyond the province the Saskatchewan courts were overruled and the board was upheld.
The case of John East Company v Saskatchewan Labour Relations Board is instructive. The Saskatchewan Court of Appeal held that the board had failed to hew an even line without fear or favour, letting the chips fall where they may. By contrast, the Judicial Committee of the Privy Council, Canada's final court of appeal at the time, noted that the purpose of the Trade Union Act was to facilitate the formation of trade unions so as to equalize bargaining power, and interpreted favourably the board's decision in that light.
Plus ça change, plus c'est la même chose. Once again we hear the claim that labour relations legislation must draw an even line between employer and employees. But formal equality in the treatment of parties with unequal power weights the balance in favour of the more powerful party. This is the actual situation in most workplaces in Ontario, especially in the large number where the employees are unorganized. Employers face few restrictions on their ability to hire and fire, determine conditions of work and hand out promotions and demotions. An employee who defies the will of the employer in such a situation cannot have much interest in his future as an employee.
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The present labour relations legislation in Ontario and most other jurisdictions is based on the principle that, though employees cannot be prevented outright from forming trade unions, their efforts should be restricted. Thus roadblocks are placed in their way, both in organizing and in achieving the purposes of organization.
Bill 40 is a beginning in righting the balance. It proposes that the procedures governing certification will be improved in a number of ways, and there are three improvements to which I would like to call specific attention. First, there are several changes in the operations of the labour relations board which could help to expedite decisions and prevent organizational efforts being frustrated by delay. Second, a mall or industrial park whose owner wants all the benefits of being a public place cannot suddenly be converted into a private place for the specific purpose of assisting a tenant in frustrating the right of his employees to organize or bargain. Third, counterpetitions are not to be entertained if filed after a formal application has been submitted.
Let me elaborate on this third provision. I would go further and say that counterpetitions should not be entertained even before the application is made. Almost invariably they emanate from the employer acting through one or more of the apple polishers to be found in any organizations. The employees are not so naïve that they do not know this, and also that the employer will know who has signed and who has not. Under the circumstances it takes undue courage and determination not to sign.
A fundamental principle long overdue for recognition is that it is none of the employer's business whom the employees choose to represent them, any more than it is any of my business which lawyer, if any, a person with whom I am negotiating chooses to advise him. A trade union is by and for the employees, and the employer should be prevented from interfering in their choice, either directly by propaganda or indirectly by sponsoring petitions.
The provision against strikebreakers is also an important step forward. Nothing is better calculated to create trouble than for employees on strike to see their jobs stolen by people brought in from the outside. Yet the coercive powers of the state are mobilized to prevent them from stopping this theft. How can this blatant intervention on one side against the other be interpreted as evenhanded justice? My only criticism of the present proposal on replacement workers is that it is unduly cautious. In particular, the ability to spirit struck work away to another plant has the potential for violent confrontation.
As long as so many employers in Ontario continue in their traditional mindset that organizations of their employees are, at best, tribulations to be endured and, at worst, enemies to be destroyed, we will never develop the cooperation needed for full productive efficiency. Admittedly, legislation cannot change attitudes, but as a statement of public policy it can serve to point in the direction of a new stage in the evolution of labour relations. The proposed new statement of purpose in the bill outlines the nature of this new stage. The bill itself is a step forward in achieving it.
I have added a little note. In view of a good many of the statements I have seen both in the Legislature and elsewhere that in this situation the government is paying off its friends, the union bosses, I thought it would be useful to put before you some facts.
It is perhaps not unexpected that both opposition parties have faithfully reproduced a business position on Bill 40, since both, especially the Liberals, are substantially dependent on business contributions for their financial help. The evidence is available in the statistics on the financing of the 1990 provincial election campaign published in the 16th annual report of the Commission on Election Finances, and I'll give you the page references. I may say there's nothing unique about this. You go through the reports on financing back through the years, and the overall picture is much the same.
Totalling the contributions to all segments of the party -- central party organization, candidates and constituency associations -- we find that the Liberal Party received 51.5% of its money from corporations, and I give you the raw figures. The Progressive Conservative Party received 38.4% from the same source. On the other hand, 83.8% of the money contributed to the New Democratic Party came from individuals.
Just in conclusion, let me say that obviously I haven't gone through the bill with a fine-toothed comb. There are a great many provisions that I haven't commented on. I've watched these proceedings as much I could on the parliamentary channel and also the debate that preceded it, and I haven't seen anything very much new being said.
To try to avoid just threshing over old straw -- you may say that's what I've done -- I tried to put this in the framework of democratic theory and then draw conclusions that seem to me to follow logically from that theory.
With that, I'll turn myself over to the lions.
The Chair: I think you've been somewhat unduly humble in listing some of your background, because not only were you, of course, a member of this assembly and the chair of the Saskatchewan labour relations board; you were also Deputy Minister of Labour in Saskatchewan and had worked, prior to that, with the federal government, among other things.
Mrs Joan M. Fawcett (Northumberland): Let's not forget his good wife.
Mr Bryden: I didn't hear that. It's probably just as well.
The Chair: The first caucus to question is the Conservative caucus.
Mr Carr: I was interested in your addendum there. Did you, by any chance, take a look at what percentage of contributions came from unions to Mr Mackenzie?
Mr Bryden: I took what was the largest contribution in each case, and you can figure it out for yourself: 83.8% came from individuals; a very small amount, and certainly not more than 1% came from corporations, so the balance came from unions. It would be somewhere between 15% and 16%.
Mr Carr: I was thinking specifically of Mr Mackenzie.
Mr Bryden: No. I didn't go through all the individual accounts. I just took the totals as shown in the report. I don't know what Mr Mackenzie got. He's one of a large number of members.
Mr Carr: It would be very interesting to see what percentage the man who has driven this --
Mr Bryden: Maybe we should go through all your statements and see where your money came from.
I once had a battle about that. I challenged a member in the House to put his accounts before a committee of the House and I'd put mine. He never took up my challenge.
Mr Carr: On page 2 you are condemning the study. One of the big concerns that the public would have is saying, "Okay, if you aren't happy with the studies that are being done, why don't you do your own?" To date, the government hasn't chosen to do that. What do you think the government is afraid of?
Mr Bryden: Such a study is impossible. There's no way of setting it up. Of course, what Ernst and Young did was to interview a lot of employers and say, "What do you think of this bill?" We said, "We think it's terrible." What do you expect them to say, for heaven's sake? The government could go and ask a bunch of unions, "Now, what do you guys think of this bill?" "Oh, we think it's wonderful."
There is no scientific way of assessing economic impact in a matter of this kind. There are just too many variables to put into any sort of a model.
Mr Carr: Let me give you a quote from this morning. The Ontario Restaurant Association says it has discussed the possibility of a hospitality employment economic impact study with several consulting firms, and has been assured that a reliable economic model can be developed. They say further, "With thousands of jobs at risk, we believe that a proper evaluation should be done" -- they even agreed they would pay for it; it wouldn't cost the taxpayers a cent -- including the Agriculture, Tourism and Labour ministries. They said they have spoken to consultants who say it can be done, and I'll take them at their word.
We all know economic studies sometimes are difficult to do, but with it being as important as this, don't you think the government should put together a study before it makes a decision on this bill so the public will know what the job losses will be?
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Mr Bryden: I don't put much stock in somebody's secondhand statement that somebody told him something or other. I don't know of any way of making a meaningful study. If they know of a way, let them show what the way is; let them get their consultants and produce the study and let the rest of us examine it. My experience with consultants is that, by and large, they find what they are paid to find.
Mr Carr: A friend of yours from the University of Toronto, Mr Crispo, was in today.
Mr Bryden: I wouldn't wonder. Well, let's say we're not enemies.
Mr Carr: We questioned him on the issue of a secret ballot for certification. He said there's hanky-panky, and: "I know why unions don't want votes. They can't win them. They can get 50% to sign cards but they can't win the votes." There have been accusations during this process. The clearest, most definite way to do it -- I was elected this way -- is through the democratic secret ballot process. For certification, are you in favour of having a secret ballot so that the true wishes of the individuals will be heard?
Mr Bryden: Perhaps I could first of all suggest that you may have a clue to the answer to that question yourself, because this provision was there when your party was in power and it was there when the Liberals were in power; they never saw fit to change it. I don't see any need to change it. The problem is that the more delay there is in a fluid, even volatile, situation such as the organization of a union, where usually the employer is doing everything he can to scare the workers out of the union, the more dicey the situation becomes.
So if there is evidence of a significant majority -- now, it's an arbitrary decision as to what's significant: 55%, 60%, 54%. I don't know. Legislators in their wisdom -- after my day incidentally; no, I guess in my day it was there -- said 55% was reasonable. I see absolutely no reason for simply delaying the determination of the matter, and I judge that the governments that preceded the present one didn't see any reason either.
Mr Carr: Let's say it could be done. Do you agree with the principle?
Mr Bryden: I thought I answered your question.
Mr Ferguson: I'm glad the member for Oakville raised the presentation by the Ontario Restaurant Association because I have before me a letter it sent out to its membership. I want to quote from it: "Planned radical changes are likely the political payoff for the huge bankrolling that the big unions give to the NDP. In the 1990 election year, the NDP received 60% of its funding from unions."
Obviously, given the figures you have tabled with this committee this afternoon from the Commission on Election Finances, which clearly indicate that a maximum 16.2% of funds could have been raised --
Mr Bryden: It was less than that, maybe 15.2%.
Mr Ferguson: So when I said earlier today one gets very tired of some of the rhetoric, and I see lies like this by associations being presented to their membership to mislead people into believing something that is not true --
Interjections.
Mr Ferguson: They are trying to mislead people into believing something that simply is not true. The facts are here; the letter's here. Surely to goodness you're not going to suggest that the Ontario Restaurant Association is telling the truth. These are some of the things we've had to put up with and endure time and time again.
Professor Bryden, could you tell me, given your experience with Saskatchewan, given your experience as a member here, given your knowledge on the issue and perhaps referring to the Quebec situation and what has taken place in that province, would it be your opinion that this is history repeating itself?
Mr Bryden: I tried to suggest that. As a matter of fact, I was watching the Ontario Restaurant Association's presentation on the parliamentary channel and I would say most of it was in about the same category as that item you brought there. It brought to my mind our experience in Saskatchewan. Saskatchewan was not an industrial province, indeed even less so then than now. Most of what you would call industrial units were already organized when the Trade Union Act came into effect, so most of the organization took place in the hospitality industry, in hospitals and in the government itself; the government was 20 years ahead of every other government in recognizing the rights of its employees to organize. So that's where it occurred. We heard exactly the same stories: "It'll put us out of business. We just can't survive."
Well, they all survived. As a matter of fact, I had one man, a prominent hotel owner in Regina, who broke down and cried in my office, because he simply couldn't afford one more cent; he was going to be driven out of business. About six months later, the Department of National Revenue nailed him for $240,000 in unpaid income tax. That was in a day when the minimum wage was 35 cents an hour so $240,000 was a hell of a lot of money.
Mr Eddy: I'm in a rather unique position, being the newest, if not the youngest, member of the Legislature. I'm sorry you added the addendum because it's rather taking the emphasis from some of the other views I'd like to discuss. I am a Liberal, by the way, a member of the Liberal caucus.
I think you're somewhat incorrect in your view that we've still got only the perspective of the businessmen of Ontario on this matter. Certainly in our caucus we've discussed what's good about the bill and what we disagree with. I must say we have some disagreements, simply because during a recent by-election campaign it was one of the things that people from all walks of life -- business, agriculture and members of unions themselves -- mentioned to me as being one of their concerns. A lot of it may be the fact that our economy is so bad at the present time; maybe that's a large part of the fear.
You're at the stage of life where I am; you get to talk to a great many people daily or weekly. Have you not had any concerns expressed to you by any individuals about the proposed changes? Most of the members are striving to find the correct changes to the correct degree that will make improvements, because there need to be improvements, and yet not go past a line that may cause additional problems to our economy; it's quite a thing
Mr Bryden: In view of the persistent propaganda campaign that has gone on over the years to discredit trade unions, it doesn't surprise me that some people think of them as real ogres. As a matter of fact, the thing that surprises me is that there are not more. There was a public opinion poll where they summarized the legislation by saying, "This legislation will give more power" -- not to working people, not that it will equalize bargaining power between workers and employers -- "to trade unions." So you get that kind of propaganda.
But if you just went on the basis of that, most of our progressive legislation would never be there in the early days of most of these things. Governments have to give leadership. If you took public opinion polls on most of our legislation we now take for granted, health care, for example, medical insurance, good heavens, it would have been turned down flat in Saskatchewan before. Afterwards, of course, it became very popular. So that is not the problem.
I've had people speak to me about various issues. Some people say, "Oh, we can't have anything to do with those unions." Okay, that's their opinion. As far as I am concerned, unions are absolutely essential to rational and fair labour relations. As I said in my brief, to start saying we're going to draw an absolute fair line between two people of unequal power of course favours the person with power. That's been the problem with the legislation, and this equalizes it. But when people are told in a public opinion poll, for example, that it's going to do the opposite, naturally they're going to turn against it. Very few of them are in any position to understand what the legislation actually does.
Mr Eddy: I think we all believe in the right of the individual worker to join a union. Do you believe in the right of an individual not to join a union?
Mr Bryden: Of course, but the point is that this legislation which is now being amended does not recognize the right of a worker. It allows an employer to move in with all the coercive authority he has -- coercive not in the physical sense but in the sense of having the right to hire and fire -- and bully the worker out of it, when a union gets organized. It allows him to stall and frustrate until the whole thing collapses. That has been the sort of situation that exists.
I don't agree with the government when it says there have been no improvements made in the last 15 years; there have been some. But they've only gone so far, and this is carrying it to the next stage. This is carrying it to what the judicial committee of the Privy Council said is to facilitate the organization of trade unions so as to equalize bargaining power.
Mr Eddy: I feel your views are quite slanted, and I try not to have slanted views, but I'm working at it.
Mr Bryden: I always used to tell my students that anybody who tells you he is unbiased is either a fool or a liar. I always used to start out by telling them where I came from, and I tell you the same thing.
The Chair: Professor Bryden, we thank you very kindly for coming here and sharing your views and insights with us. You've made a valuable contribution to the process. We trust you'll be keeping on top of this and in touch with us.
We're recessing until 6:30 this evening, at which time Helen Cooper, mayor of Kingston, will be here with the Association of Municipalities of Ontario.
The committee recessed at 1703.
EVENING SITTING
The committee resumed at 1830.
ASSOCIATION OF MUNICIPALITIES OF ONTARIO
The Chair: It's 6:30 and we're ready to resume the public hearings into Bill 40, An Act to amend certain Acts concerning Collective Bargaining and Employment. It's basically amendments to the Ontario Labour Relations Act. The first participant this evening is the Association of Municipalities of Ontario. People, please tell us your names and titles and then commence with your submissions. We want to keep at least the second half of the half-hour available for questions, dialogue and exchange. Go ahead.
Ms Helen Cooper: My name is Helen Cooper. I'm the president of the Association of Municipalities of Ontario and I'm also the mayor of the city of Kingston. With me tonight is Grant Hopcroft, controller from the city of London. Grant is a past-president of the association and also currently chairs the fiscal and labour relations committee for the association. Also with us this evening is Charlotte MacFarlane, who is a policy analyst for the organization and specializes in the field of the work of the fiscal and labour relations policy committee.
We have a brief prepared for you. I hope it's reasonably easy to read and so therefore I trust we'll take certainly less than the 15 minutes you've suggested we be allotted. I will cover the recommendations and then certainly would be more than happy to take any questions or comments, although in certain instances I'll defer to my colleagues who have more immediate expertise in the area than do I.
I also have to apologize. I've got absolutely whopping hay fever. This happens to me every now and then, and I have to watch.
First of all, we have been concerned since the very beginning, in terms of the writing of the original bill and now the proposed legislation, with the issue of location. Municipalities are perhaps not unique, but they do share the fact that most municipal work sites are scattered throughout the entire municipality. A public work site, for instance, will be in a vastly different location from city hall itself, and that's just one example. Another is municipal recreational facilities. Of course, the purpose for these is that they serve the community and therefore will be in very disparate locations in that community.
Therefore, when the legislation refers to location we seek clarification. It's certainly our position that the municipality should be deemed to be one location. In the interest of fairness, should the municipality be in the unfortunate position of having to face a labour dispute, I think it should be able to function as if it were one location.
The second recommendation has to do with the request for exemption for municipal services required by statute. Again, because of the nature of municipalities and the work they perform in the public interest, there are many jobs which must be done, and failure to perform these tasks could result in danger to the very populations we are attempting to serve. We can cite issues such as building inspection. Again, London recently is an excellent example of very serious legal implications, as well as implications to human health, were these functions not to be performed.
Third, we're very concerned about issues around deadlines for such things as grant programs and transfer payment programs. Most of the deadlines of course are in relation to cost-sharing programs with the provincial government. If we are in a position that we're not able to meet those deadlines, then we're not able to serve the public interest. Therefore, we request that the act exclude those services which are required by statute.
We have some philosophical problems with the bill as well in terms of the issue of balance of power. We suggest, in terms of the issue of certification and decertification, that the proposed legislation does weigh in favour of certification as opposed to decertification and suggest that the balance should be more evenly applied.
Recommendation 4: We are concerned about first-bargain settlements. Of course, the larger municipalities across Ontario are all largely unionized and have been for many years, and in terms of many aspects of the bill there is little to concern us, as we are already well established in relations with well-established unions. However, there are smaller municipalities across the province. Although their populations may not be very large, their numbers are large. They are currently not unionized. The situation may arise wherein they are, and therefore we do have concerns about the board's ability to determine non-monetary issues in the instance of first contracts and would suggest that that ability be far better defined and also be limited. There isn't significant recognition of the right to negotiate.
Recommendation 5 has to do with successor rights. There are a number of instances in which we contract out services for quite legitimate and valid reasons. Most of those are in the area of waste management, although there may be other examples as well depending especially on the size of the municipality. The best examples I could think of at the moment have to do with garbage collection and blue box systems, which have been largely private-sector-contracted in the last three to four years. Certainly this government and the previous government have more than encouraged the expansion of that program.
We have a great deal of concern particularly in the area of waste management where -- I'm trying to think of how to say this diplomatically and I'm probably not going to succeed -- there is very limited participation in that market to begin with. One could perhaps use the words "emergence of cartels." We would suggest that the government, in applying this requirement in the legislation, may well be very much playing into the hands of very large corporations in a very selective area of the economy. I doubt that was the intent in the writing of the legislation.
We therefore suggest, for reasons of sensitivity or privacy in terms of the tendering process -- and of course we have an extremely public tendering process at the municipal level, probably the most public process anywhere -- a requirement for businesses not only to bid competitively but to be seen to be bidding competitively. The requirements under the Employment Standards Act currently may be largely defeating those efforts and may be encouraging some extremely unfortunate business practices as a result.
Our final recommendation is recommendation 6. We suggest the wording of the bill is still less than clear. I had talked about the issue of location at the beginning. In relation to that I'll give you an example. The word "premises" is used at various points in the proposed legislation. What are premises? That's particularly relevant for the municipal sector where we could probably successfully argue that "premises" is the municipality. I would suggest that the current legislation is indeed flawed in the fact that this use of language is not sufficiently clear. That's one example.
Those are our recommendations, which I think are all very specifically applying to the municipal public sector as an employer and relate to what we see as major problems with what is currently proposed, looking at us as employers as opposed to any of the other political interests we might have as municipal politicians.
The Chair: Thank you for a brief that sets out the recommendations and arguments clearly, succinctly and directly without a lot of bombastic stuff.
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Mr Klopp: Thank you very much for your brief this evening. We met a little bit earlier. As a past member of Hay township council in good old Huron county and a member of AMO, I was privileged to attend a number of annual meetings. I indeed see some faces here this evening.
Your remarks, I think, are well documented and need to be taken very seriously. I know we're going to. On recommendation 2, exemptions, it's my understanding that under section 32 of the bill, sections 73.1 and 73.2 of the act, if there was a vote -- and heaven forbid if there's a place where there's a union in one of our municipalities -- there's a provision here to look at things such as essential services. My interpretation would be that this is the area we'll be looking at with groups like yourself to clarify, to walk through and work together. Are you familiar with that section at all?
Ms Cooper: I'll defer to Mr Hopcroft. We're very fortunate that Mr Hopcroft's other virtue is that he is a practising solicitor. It helps when you read legislation.
Mr Grant Hopcroft: Once in a while.
Ms Cooper: Once in a while. Also, you did give me one opener, and that is that the AMO annual convention is starting two weekends from now.
Mr Klopp: I'll be there.
Ms Cooper: I know you've gone in the past. Everybody here is certainly more than welcome to attend on that occasion as well.
Mr Hopcroft: If I can respond with respect to the permitted use of specified replacement workers as it's defined in the legislation, it doesn't, in our view, specifically cover the situations where we are bound by statute to deliver a service. It's a far different situation from one where you're dealing with private business. While certainly they appreciate and would like to keep market share, it's not an issue of market share with municipalities; it's a statutory duty to provide that service. In our view, I think if that section were amended to include reference, in the municipal sector in particular and the broader government sector, to provision for services that are required to be provided by statute --
Mr Klopp: As a lawyer, you think that this needs to be just a little more clarified, that you can then work with the ideas of environmental emergencies and essential services but that you need to hear the word "statute" in there versus just the way it's written.
Mr Hopcroft: Yes, we would very much like to have some certainty on that point. Obviously, no one likes to be in a strike or lockout situation, but when they do occur the last thing you need to be worrying about is whether the particular exemptions apply in your particular instance.
Mr Klopp: I think that's fair. Our county has a union with a lot of the guys I work and play hockey and ball with. They don't need to have bad feelings if the road isn't getting plowed. I'm sure they want to have it cleared up themselves. "Do I have to work if there is an unfortunate situation?" I can appreciate that. That was my only question.
Mr Huget: Thank you for your presentation. I would like to get you to elaborate a little bit more on the workplace and the lack of definition as it currently is. If you could give some explanations of how that is at least perceived to cause you some problems, I'd like to hear more about that. You raised a couple of examples here, but I'm sure there are others. I'm thinking about transit, for example, where you may have a clerical staff in one building, a garage in another and buses in between. I'd like you to elaborate on that and provide a little bit more of your counsel, because I think it's more important.
Ms Cooper: I can speak, but I'll certainly let Mr Hopcroft give a more detailed explanation. In many instances -- my own city is included; it's one of many -- we've outgrown our current municipal premises, especially at the moment. We don't have the money to build new buildings, so we are renting in the private sector. That poses an interesting question: Does city hall then become two locations? That's one example. We seek clarification. We would of course argue, I think very strongly, that it should still be considered to be one location.
I can speak from personal experience in having dealt with the strong possibility of a strike in my own community last summer. There had been a strike vote taken and we were at the mediation stage. Fortunately it was resolved. It was certainly an interesting introduction for me to the whole negotiation process. We had to do a certain amount of planning. No matter how little we wanted the strike to occur, we had to plan for the inevitable. The municipality issues welfare cheques, operates sewage treatment plants, maintains roads. In our case we have lots of potholes -- some may be described as minor craters -- and therefore we do require certain maintenance services or we could have very serious accidents or legal problems. Therefore we were trying to determine how we would allocate our non-union staff to be able to cope with those things.
For instance, if the social service department is now in an external location, is it legitimate to have a senior planner acting as backup staff for the issuance of welfare cheques? That's the kind of thing we had planned. We certainly had not planned to bring in an outside workforce, which I trust you'd be entirely sympathetic to. We were going to manage with what we could legally manage, but we would not have been able to cope had those municipal locations been called different locations.
The Chair: Thank you. We've got to move on to Mr Eddy.
Mr Eddy: Mentioning further about the city of Kingston, it also has as a service the distribution of natural gas for heating etc in the city. That's the question I wanted to follow up on, the matter of municipal services required by statute and, on the other hand, essential services. I don't think they're one and the same.
Mr Hopcroft: Not necessarily.
Mr Eddy: They're quite different. The importance, I think, is that we need to have detail on what essential services are and how they can be carried out in the case of a strike. What essential services are does of course vary in people's opinions. Traffic signals might be considered very essential by some people, and perhaps are, but I think there has to be a great deal of detailed description of what essential services are -- water supply, sewage etc. They're not one and the same. You haven't really zeroed in on essential services. How do you see that?
Mr Hopcroft: You're quite right. The issue of "essential" is quite apart from what we may be required to do by statute, because in many cases some of the statutory responsibilities might not be seen as essential in the eyes of the public. Certainly from the point of view of an elected council, which has a statutory duty to ensure that those things are done, it's a much different matter.
But dealing with the "essential" issue, clearly I think to come up with an all-encompassing definition would be extremely difficult. I think that to the extent that the legislation can, by example, point out a range of services and a type of function in terms of the provisions of those services, it would certainly be helpful to us and to our unions in terms of arriving at something that's satisfactory if we are in a strike or lockout situation.
Mr Eddy: I think that needs to be set out long before the bill becomes law.
Mr Offer: Thank you for your presentation. It's nice to see you again. I want to deal with your recommendation 2 with respect to municipal services required by statute. This may come as a bit of a surprise, but I think when the Ontario Association of Children's Aid Societies came forward and expressed its concerns with the section, I think a lot of the things it was saying were much what you are saying. They too are responsible by statute to provide certain services. They basically came with very much the same concern that you have, so I'm very appreciative that you've come with this particular matter. I think this is an extremely important issue.
I'm always thinking of city hall and all the people who work there. I would imagine that if they were unionized there would probably be just one union with different groups within that particular locale. Is that basically how the structure would work?
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Mr Hopcroft: Not always. In fact, in a number of municipalities you will have different bargaining units for different factors. Using my own municipality, the city of London, as an example, we have a service workers' union for our home for the aged. We have one local for our inside workers, one for our outside workers. At some time after January 1 --
Mr Ferguson: CUPE?
Mr Hopcroft: Yes, both Local 107 and Local 101 of CUPE. Assuming some legislation gets passed this fall, we'll have one and possibly two additional locals in terms of water and parks workers as well. So there can be a very complex labour relations situation with a myriad of different bargaining units.
Mr Offer: So there will be within the municipality employees who may be involved in the provision of service in a home care facility of some kind. Certainly there are individuals in each municipality who deal with a social service -- in fact, writing of cheques; I can't think of any other way to put it. People come in, they are in need, assessments take place and as a result under the social service area there may be some assistance given in the form of a cheque. Would this bill affect those individuals if there was a service disruption?
Ms Cooper: In my opinion, yes. First of all, at the expense of repeating myself endlessly, it is very dependent on the definition of "location" whether service would be totally disrupted or just diminished. It would certainly be diminished.
If you take that example, which is a particularly good one to take, probably servicing of existing clients could function reasonably well, although there would undoubtedly be delays. The problem would lie in the assessment of potential new recipients. I think we would all concur that the people who perform that function are extremely skilled and perform an extremely important function, particularly to the people who require that service. There's no doubt that would be disrupted.
Mrs Witmer: Thank you very much for your presentation, and I appreciate your recommendations here. I'd like to take a look at recommendation 3, where you speak about the need to maintain the balance of power and to improve relations between labour and management. Certainly that is an area that everyone in this room would agree is absolutely critical.
Then in the second paragraph you indicate that although the government professes fairness as one of the aims, there are certain provisions in the bill which indicate a definite preference for the interests of labour, and you go on to talk about the requirements of certification. Then you say that if you are going to demonstrate fairness, obviously the decertification process should be made equally accessible. I wonder if you would expand on that recommendation for me. What do you see to be the ideal as far as certification and decertification? What would improve the relationship?
Mr Hopcroft: I think the ideal would be a process where it's essentially the same process for certification or decertification. The proposed legislation has a 40% threshold for a representation vote, and in our view it would be fair to have the same standard if employees wished to decertify. Otherwise, it does quite clearly tip the balance and can cause, I think, some consternation among employees in certain instances whether a particular local or a particular union is representing what they see as their best interests at the time.
Mrs Witmer: In the certification process, there have been amendments suggested that would include the responsibility for unions and employers to fully inform all employees as to what is involved in unionizing and what are their obligations as union members, what are the implications of strikes etc, and then the opportunity for them to freely choose by secret ballot vote. Were you indicating that this should happen here for certification and decertification as well?
Mr Hopcroft: To put it in its simplest sense, there should be the same opportunity for process, whether it's to certify or decertify, so that there's a balance and not a tipping of the scales one way or the other.
Mr Carr: Thank you very much for your presentation. I had the pleasure of sitting through a couple of yours, Helen, and I appreciate it. I'm sorry to hear you'll be moving on after August, but I'm sure you'll be around on many occasions.
Specifically, this government has said that one of the reasons for the introduction of Bill 40 is to improve labour-management relations. I wondered, Helen, if you could speak from your own perspective, and then maybe Grant could look at some of the relations. How would you characterize your relationship now with your employees?
Ms Cooper: It's a difficult question to answer. I'm here as the president of AMO; as such, it would be extremely difficult for me to speak for all municipalities in terms of their relations with their employees. I could, however, comment that with relatively recent -- may I call them crises? -- financial crises that municipalities have been forced to face since the late 1980s, I think we are becoming rapidly more skilled in terms of our interest in labour relations issues and our ability to deal with them. I think AMO, if I may use this opportunity for a bit of a commercial, has adopted very progressive and constructive responses to initiatives such as pay equity, and now employment equity. I think that helps to reflect the fact that we have an extremely important concern for labour relations.
I am currently participating, as is Grant, in a broader public sector workforce study group with several public sector union representatives in the province, and we are defining our own terms of reference, to a certain extent. But one of the things we want to do is look at labour relations success stories in the municipal sector and find out which municipalities seem to be doing well and why. There's such a diversity of municipalities in terms of size, location, geography and all the rest of it that I'm sure there's no one right answer, but I would suggest that this is an area where municipal governments are gaining rapidly increasing sophistication.
The Chair: I want to say thank you to you, appearing on behalf of the Association of Municipalities of Ontario. Your association has a history of valid input into legislative endeavours, and that tradition has obviously been maintained and sustained once more today. Thank you for taking the time to be here, to you individually for your presence, and to your association for the interest it's shown in this legislation.
Ms Cooper, we're going to be in Kingston on August 26 and 27. We're looking forward to that. Perhaps we'll be seeing you again when we're in Kingston.
Ms Cooper: At that point, I will be recovering from the AMO convention.
The Chair: As a person who was in municipal politics as well, that has many, many meanings. Thank you, Ms Cooper. Take care. Have a good trip home.
Ms Cooper: Thank you very much.
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HEPWORTH AND ASSOCIATES
The Chair: The next participant is Hepworth and Associates. Present on behalf of Hepworth and Associates is Gael Hepworth, and I understand that at least one of her associates, Gavin, is with us this evening as an observer, so we appreciate his interest.
Ms Gael Hepworth: I thank you all very much for the opportunity to meet with you this evening. I do wish to impart to you that the notice for this appointment was very short. I am a parent. Obviously, I have a four-year-old son. After coming home from work tonight I managed to scramble and get 25 copies of my presentation available, pick my son up from day care, locate my friend who agreed to come this evening just in case someone decided to have a hard time during my presentation, and rushed down here to make this presentation to you this evening.
One of the things about this type of public hearing is, how accessible is it to women and how accessible is it to those of us who have child care commitments? I asked if there was child care and I was told, of course, that there is none available. I find that to be a problem, and I want you to know that.
I will proceed with my discussion at this point.
My name is Gael Hepworth. For the past 12 years I've worked in the retail sector of our economy. I understand that later this evening you will be hearing from Dylex, which is one of the major employers in the retail sector. One of the things that prompted me to write this brief and come to you and discuss the concerns of retail sector employees was the type of thing that was coming from various retail organizations including organizations like Dylex. I felt I had some things that should be clarified, I had a position that should be stated, and that's why I took the time this evening to come and share those concerns with you.
As a manager of planning and systems development, I was responsible for the formation of a corporate business plan, the evaluation of results related to the business environment.
I have come before you today to redress the balance of submissions you will be hearing on behalf of retail workers made by retail employers. I have come to tell you that they don't speak for me. In fact, I don't believe they speak for more than 200 of my former coworkers who lost their jobs, with no notice, no money and no explanation, two weeks before Christmas last year. In fact, their final pay, severance and everything else is tied up in a long and protracted bankruptcy proceeding. They will never see any of that money.
You will be hearing from the Retail Council of Canada, I'm sure, major employers in the retail sector, the landlords of regional shopping malls, that these reforms will result in serious hardship in the retail sector in Ontario. There is no doubt that the retail climate in Ontario has been significantly depressed since the introduction of the GST. The overexpansion of retail developments, high value of the Canadian dollar, propaganda by the federal government on free trade, reduced consumer confidence and high cost of housing have created immense pressures on retail profit margins.
I have come forward to make this statement on behalf of the 12% of workers who are employed by retailers in Ontario. What the Retail Council of Canada and other retail organizations will decline to tell you is that the major casualties of this economic environment are retail workers. The majority of retail workers are not unionized and have only the basic minimum level of job security and protection extended to them under the Employment Standards Act.
The majority of those workers are loyal and committed to the companies that employ them. In return, the retail employers choose to intimidate their workforce. Employers in the retail sector do little to upgrade employee job skills, regularly replace full-time workers with part-time and seasonal staff and intimidate staff members to work extended hours during peak business periods. The potential impact of the proposed changes has not been lost on the members of the Retail Council of Canada.
The retail business groups are committed to denying retail employees the right to organize and negotiate the terms of their employment within a collective agreement. They are committed to the preservation of management rights. It is one of the few principles on which they, as a group of employers, can agree. Any attempt to facilitate the process of forming a union is a clear violation of their interests, yet they come before you on behalf of employees in the retail sector.
In your position, I would be most insulted to think you would believe that the retail council and major employers are really interested in the rights of retail employees. They would have you believe that the same employees selected by them to deliver corporate profits can become subversive when empowered with a union to represent their rights as workers.
Employees have no rights in the retail environment. They are simply considered to be a variable overhead expense. They are a necessary evil required to conduct business activity. Evidence of this attitude of distrust can be found in the loss-prevention policies of most retailers. Employees are expected to steal and significant resources are committed to stop them from doing this kind of practice.
The rights of retail workers: We will talk about how we have the right to seasonal employment. In the retail sector we get the ability to sort of drop in and drop out of the workforce.
The reality of that is that a lot of retail workers work for more than one employer in an attempt to try to get access to a decent living wage. Regularly, full-time workers are replaced by part-time workers. There is an entire process of doing that kind of thing. It destabilizes the workforce. There is a lack of employee upgrading and training. There are a lot of intimidation practices put in place to make sure that it's an unstable, insecure environment and that people don't achieve real excellence in their job. They don't become fundamentally essential to the business.
Unions are about the only way we as workers have the ability to come together and say that we have some rights to job security, employment security, training, pensions, benefits; those types of things.
Each and every day in Ontario, people organize and negotiate for themselves. I regularly organize and negotiate for my child's child care. I organize and negotiate for housekeeping with my partner in our residence. That is what normal people do. This is not some kind of activity that somehow is subversive; this is a fact of life. When we give professional organizations legislation that guarantees them limits on the number of practitioners in their field, such as lawyers, are we doing any less for the rest of us who are not so endowed?
The need to organize in the retail sector is clear to all who work there. We need the protection extended to us in the proposed changes. Low-wage employees in the retail sector are well aware that organized workers earn more money with better working conditions.
But we are afraid that by choosing to organize we will be subjected to losing our jobs, having scabs take our places, with refusal of the company to negotiate any agreement, ending up earning less with fewer benefits as a result. These employers excel in the use of intimidation and exploitation of employees. They are not interested in participatory management.
Retail workers require the right to organize by sector in order to reduce intimidation by the employer. If employees were able to organize in the same manner as construction workers, the opportunities and benefits of organization could be extended to all. Due to the marginal nature of employment commitments in this sector, it is possible for people to work in the trade for years and never gain any level of seniority or security.
Workers could choose to have their own training centre supported with employer contributions to maintain job skills and plan for career opportunities. Employment equity could be monitored to reduce the systemic and overt violation of human rights legislation now present in many locations. The workforce must have some measure of job security to reduce intimidation.
Staff must be able to communicate with each other. That's one of the reasons we think the list has to be available. We have to have access to the list of who in fact works in the locations. You're working in a lot of different locations. You don't necessarily know all the staff who are working in all of the different areas. It's very difficult to organize in that kind of situation.
1910
In terms of economic competitiveness arguments, I find these truly insulting. In the retail sector, customer satisfaction and service are essential elements of a viable business, but retailers in Ontario have failed to remain competitive. For example, how many times have you shopped in a store where the staff membership was stable, knew the products well and were friendly, informative and effective in product presentation, care and maintenance? Because staff are not trained and treated as a valued part of the retail business, we have lost the value added component of retail service, and then self-service, deep discount shopping becomes a viable alternative. Pay less for the same service. Why not?
Retail wages would likely increase due to unionization of the retail sector. In exchange for marginally higher costs, retailers would have to provide stable, knowledgeable staff primarily concerned with customer service.
In terms of getting up and leaving town, I've got news for you. The retail industry means you must be here and you must serve that public. You don't have the ability to get up and leave the country. If you do, you're no longer in retail. Yet time and time again I see that kind of thing about: "Oh, you guys can't do this. We'll just close up shop and leave town." Someone is going to be here, and they're going to be involved in the business called retail and it's going to take place in your corner store and they're going to be selling one on one to you.
In terms of the economic indicators, there are a few things the retail sector could do if it pulled together in order to improve its environment. Business activity is most viable in clusters of stores that serve different market needs or where like-product stores congregate to provide a targeted shopping area. That's one thing they could constructively do. This type of marketing strategy is most consistently executed in regional shopping centres where landlords can set terms and conditions for the tenancy.
Retail owners perceive all other business activity as a threat to their own interests and will only work collectively as a last resort, even though as a consumer you want to go somewhere where you can get all your needs met in one place and you want to be able to access all these things. People could pull together to give you that kind of retail shopping experience.
The decline of retail profitability has been increased by the failure of retail owners to cooperate in terms of their own interests. From 1985 to 1990, the regional shopping owners drove up the rents in major malls, primarily Yorkdale and the Eaton Centre, to such a level that it was very difficult to make any profit. They cut deals with people in lease agreements where they said, "We'll give you a store in Yorkdale, which is an A-1 shopping location, but you then have to take stores in the other 14 locations where we have mall space available, and those are not profitable."
At a certain point the bubble burst and the retailer for which I worked at the time went bankrupt as a result of those kinds of agreements. The workers had nothing to do with that and somebody else walked home with all the money.
There were also other things, the Canadian dollar rising, our shopping against the US, although the quantities in the US are somewhat different and I don't know whether or not you're actually seeing comparative results. Now that there's some kind of Canadian-US shopping thing going on, talking about what's comparative, you might be seeing some of that information here.
I think the only real initiative that helped retail shopping here in Ontario was the commitment by the NDP government to try and provide some more income support for those people who were at the bottom of the barrel. By increasing some of the welfare payments and the family allowance benefits, there was more money going into that sector, and believe me, those people don't have any choice. Whatever they get, they spend. It's a matter of survival. Getting more money into better-off sectors of the economy does not necessarily increase retail spending. It increasees some of the investment spending.
Those are initiatives I think we could be looking at here. I think this is an industry that's going to be here. It's a viable part of this economy and it needs to be here going forward. There will always be people here consuming retail service, but workers deserve to be treated with respect. They deserve to be treated as an integral part of that business management process, and only by legislation like Bill 40 -- believe me, there are some things I would like to see strengthened in that as well, particularly in terms of the collective bargaining and the sectoral bargaining provisions. That's where we're going to get growth here. We're not going to get growth by handing over to people the right to intimidate workers and marginalize the workforce and take away the right to full real employment wages.
Has anybody got any questions?
Mr Offer: Thank you for your presentation. There are many areas you spoke to that I have absolutely no disagreement with whatsoever, speaking about the need for increased cooperation, the need for respect. I can't imagine anyone having any disagreement with that.
You say that the retail workers require the right to organize by sector. I know that what you mean is just taking an area and all retail workers being able to be organized, outside of whomever their employer might be. Obviously, that's not in the bill. Apart from that, my question is, what are the provisions in the bill you believe will be of assistance to the retail workers?
Ms Hepworth: The right to know who works there. I don't know how you organize a place without knowing who works there. I worked in a company for seven years. I was the senior member of the management committee. I travelled from store to store. I was never going to know all the employees who were working out of any one of those locations. It was my job to know the management members in that store, and they turned over quite frequently. We had 80 stores across Canada and at any one point in time I may have known upwards of 350 store workers, but that wasn't anywhere near the number of actual workers who were involved in any of those locations.
Mr Offer: When you say the need to know, I noted in your presentation you spoke about the need for lists. Is this where that comes from, that the lists would provide --
Ms Hepworth: I think the lists are absolutely essential. I find it really interesting to hear about how difficult it is to produce lists. It's not difficult to produce lists. If we produce payroll, we can produce lists. We produce lists of shareholders and we know where the shareholders are and we know how much they've got, so I don't understand how it's so difficult to find out where the employees are.
I've heard the argument that as a woman I should feel absolutely threatened by the fact that my name would be on a list somewhere and somebody, God knows who, might have access to my name. I'll tell you, I feel absolutely threatened by the inability to get together with my coworkers and talk about improving an employment situation which is such a fundamental portion of my working life. I only have so many hours in a week and a very large portion of them go into my work.
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Mr Offer: So on this point you would be asking for an amendment to the bill that lists must be provided, because that's not allowed in the bill right now.
Ms Hepworth: I'm saying that for me to organize, I need to know who's there so I can come up with the numbers to say, "I now have met the conditions to be certified." That's what I need. The reason I talk about sectoral bargaining is that I find it really problematic that the predominantly male construction industry has absolutely no difficulty organizing through all sorts of small and independent contractors, holding their pensions and their training and their job security and everything else vested within their union, yet somehow the predominantly female retail clerk sector is not entitled to the same kind of security.
Retail clerks, as a group of people working together, can make sure we know about these machines that are going in. We could make sure that by organizing our company, the next-door company is not considered to be uncompetitive for some reason; that they couldn't divide and conquer us. If Yorkdale became a unionized place, that would be it; it would be a non-issue. The whole place would be organized, thank you very much. That's the way it is, so that's it.
Mrs Witmer: Thank you very much for your presentation, Ms Hepworth. I'm not quite sure who it is that you represent.
Ms Hepworth: I'm speaking on behalf of myself. It was a very difficult decision for me to come forward in these hearings in this very public manner. Obviously, I've invested a lot of my life working in retail, but as a manager, I have been forced to do things that I don't believe are entirely correct. My staff was always very good; they were always very capable people; they were always very committed to work. They were very loyal, and to watch my business go bankrupt and watch my former coworkers be called into an office at 10 in the morning two weeks before Christmas and told that was it, prompted me to come down. That experience prompted me to come forward.
Mrs Witmer: What business was it that went under two weeks before Christmas?
Ms Hepworth: It was a women's clothing retailer with 80 store locations across Canada, and they had an office located in Toronto with in excess of 250 staff people, some of whom had no savings whatsoever, had no entitlement to their wages and ended up on welfare for Christmas.
Mrs Witmer: What was the name of the chain?
Ms Hepworth: They were owned by a company in Newfoundland called Ayers. They operated three or four different chains; two of them somehow in the restructuring managed to pick up some of the locations, and some of those locations are in fact still operating with that name. However, the majority of the staff was let go, and that was it.
Mrs Witmer: You said the head office was in Newfoundland?
Ms Hepworth: No, the head office was here. Corporately, for tax purposes, it was held in Newfoundland.
Mrs Witmer: How do you believe that Bill 40 could have prevented that particular job loss?
Ms Hepworth: I believe Bill 40 allows people to talk about the right to organize in a very real way. I have the right to get together with people in my community and open a day care centre, and I have the right to start a softball game with my children, but I don't have the right as a worker to get together with my fellow employees and talk about negotiating any kind of employment understanding.
At various points in my life, I have given my $1, I have signed my card, and it has never come about. What I have seen in retail are things like the Eaton's workers' strike, and that was horrific. As a retail employee, it was like being beaten over the head night in, night out, going: "Don't you dare do this, because look what you're going to get. You're going to get shut out; you're going to get locked out; you're going to get blacklisted; you're never going to work in this business again." I think this will help.
Mrs Witmer: Ms Hepworth, when did you apply to appear before the committee? You indicated that you found out at the last minute that you were going to be here today.
Ms Hepworth: Oh, I applied some time ago.
Mrs Witmer: You had real concerns at that time?
Ms Hepworth: I applied some time ago. It was just a question of the scheduling. I heard there were all sorts of people, and they couldn't give me a commitment because there were so many people and I was just an individual, and maybe I was going to get on and maybe I wasn't. I don't know what the luck of the draw was. I don't know how it happened; my number came up. What can I say? I had some friends who worked very hard phoning and following up so that I could continue my full-time employment while somebody made sure I could come to these hearings, that I could say yes, I would come tonight.
Mr Fletcher: Thank you for your presentation. To bring you up to date a bit, we've had presentations from boards of trade, chambers of commerce, restaurant associations and tourism associations. All the way along, the underlying perception is that if Bill 40 passes, the big bad union is going to be out there in the street ready to pounce on unsuspecting working people and turn them into mindless robots or something; that if they sign a union card and say, "Boy, maybe I made a mistake; I'd better go back and rethink this," that they did it because of coercion, that they did it because of arm twisting -- when it comes to the organization of a union, what they're saying is the union is going to make you do this.
They forget the fact that the local executive is made up of people who actually work onsite, who, before they became union members, were ordinary people. They think that as soon as people get involved with the union executive or become the president of the local union, they lose their minds and get swayed by the union. The underlying theme I've been getting from a lot of the presentations from the people opposed to this bill is that this is the kind of person they're going to be dealing with if this legislation passes as is, that they're going to be dealing with mindless people. As far as being elected to an office in a local union is concerned, people are nominated, they go through election campaigns and there's a secret ballot vote. That isn't coercion.
You tell me that these people in the retail sector who lost their jobs cared about their jobs, would have liked to organize.
Ms Hepworth: We cared about each other. It's not just a question of caring about our jobs; we were very committed to each other as employees. We worked together as employees, making sure that if someone needed to know something, you passed on valuable information that was essential for that person. That kind of collective action goes on in the majority of workplaces whether or not you have a union. All the ability to unionize will do is empower the employees to actually do that more.
A lot of the stuff about the big bad bogeyman of unions -- it kills me. I sit here and listen to this and I think, if you directed that kind of harassment to organized religion in this country, there would be such a hullabaloo. What difference is there? It's still a group of people who come together, they have regular meetings, they put in money regularly to pay for things. God knows, they buy buildings, they do all sorts of social action things; sometimes they build social housing projects. That's what organized religion does, yet we turn this around and say the same kind of people can do all sorts of horrendous things when they're involved as a union, particularly when you're selected to come into that company to add something to that company. So how is it that when you work with your fellow workers to do something for the benefit of yourself and the company somehow you're subversive? I don't understand it.
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The Chair: Mr Huget, if you can be brief.
Mr Huget: Yes, I can. Thank you for coming this evening. I think your type of presentation is the most important.
I want to determine something in my own mind. I want to refer to a retailer's brief. It says: "Canadian retailers recognize and are responding to the needs of a changed workplace. By offering flexible working hours, women who work in the home and students are able to work while meeting other demands." It also says, "Retailers are committed to empowering employees through enhanced training and increased responsibilities." Has that been your experience?
Ms Hepworth: In my experience, the opportunity to flexible work hours is only extended to where the employer needs a flexible schedule, and those employees who are involved are then forced to accept that flexible schedule. In terms of training opportunities, if that employer decides that a certain piece of equipment is going to be installed there, it will basically burn out its staff in order to get them somehow organized around it. The preconditions to learning those things are not necessarily put in place.
You may take a worker who has not been taught anything for 25 years and all of a sudden it's, plunk: "Welcome to your computer terminal. Get up to speed right now." I've seen that type of situation go on over and over again. For the employees it's very much an intimidation process; it's not a support process. It's not the kind of situation where, "Yes, we recognize you're 50 years old and your entire reading has revolved around Family Circle magazine and now we have given you this computer manual and by next Monday at 9 am you will be entering this stack of invoices correctly or else Friday at 4 o'clock you can pick up your pay and your pink slip." That's the kind of process I've seen in place in terms of training.
For us who work there, training meant coming in, working with workers and helping them out. I have seen staff go through these piles of stuff that people had to deliver and divvy it up to try to give somebody a break so that he or she could figure out how the thing worked, not feel totally intimidated by it, and eventually get him or herself up to speed. That was very much an underground sort of process. It was not, "How can we help you get here, because we as a business need to get here." It was more like, "We want you to be like this by next week Friday, thank you very much, or else you're history."
The Chair: Gael Hepworth, we thank you very much for being with us this evening. You are quite right: You were called upon on very short notice to fill in for a vacancy that was created by a last-minute cancellation. We appreciate you taking the time and accommodating us. In the course of doing that, you've made a valuable contribution. We appreciate very much your interest and your attendance here. Your initial points about the manner in which this traditional committee process accommodates some people were well made and not inappropriate.
Ms Hepworth: On behalf of my son, who I'm sure is one of the few 4-year-olds in Ontario who has had to sit through this process, I thank you very much.
The Chair: We thank you and we thank Gavin for his patience. I tell you and other persons making presentations that not only are Hansard transcripts available of your or any other person's presentation, but through your MPP's office you can obtain a videotape of the legislative broadcast of this or any of the presentations. If your MPP doesn't know how to do that or doesn't want to do that, have him or her call my office.
WHITBY CHAMBER OF COMMERCE
The Chair: The next participant is the Whitby Chamber of Commerce. Please be seated. Tell us your names and your titles, if any. Try to save the second half of the half-hour for questions and dialogue.
Mr Lynn Woods: Thank you very much for the opportunity to present to this committee. My name is Lynn Woods. I am chairman of the government relations committee of the Whitby Chamber of Commerce. I'd like to introduce members of our delegation today. Miss Fran Maurier is a member of the government relations committee, Mr Marc Kealey is a member of the government relations committee, and we have some other committee members with us: Ray Gilchrist and Ian Bergin, president of our chamber Trevor Bardens, and town councillor John Dolstra.
We have been anxiously awaiting our opportunity to address this committee with a few concerns we have with respect to the proposed changes to the Ontario Labour Relations Act. At the outset, we want to thank the committee and ultimately the government for listening to those of us who may not know all the ins and outs about this particular piece of legislation but who have some significant fears that perhaps the intent, albeit honourable, may have serious economic consequences for our province.
The Whitby Chamber of Commerce government relations committee has been monitoring this bill since the release of the government's discussion paper in November 1991. We are thankful that public participation in the process has been given such importance. We feel it is important to point out in this presentation some of the steps we have taken to educate ourselves about Bill 40 and demonstrate that this legislation could bring about improved cooperation between business and labour if in fact some parts of the bill are amended, which could then encourage stronger partnerships and cooperation between workplace parties.
We are here as representatives of 800 businesses in Whitby consisting of approximately 8,000 employees, some unionized, some not, and we are here with a concern about this act, an act that has been very difficult for Ontarians to understand, too complex and with too short a period of consultation. It is our opinion that public and business decisions should be made in a evolutionary manner, not the hasty, revolutionary manner that we see in this Bill 40.
Nevertheless, concern about Bill 40 and its impact on the province has reached Whitby's business community. We must have a stake in this process, and we must be given sufficient information on how the legislation will impact Ontarians. Concerns we have heard from the outset were not from educated employers or employer groups; they were from the small business sector in our community, which questioned the effects of, in its view, unbalanced legislation impacting negatively on investment, employment and economic growth in Ontario.
Our first call to action was to ask our members to write their MPPs, the minister and the Premier. The response from our members was great; the reply from the government, however, was minuscule. We received little more than thank you notes for our efforts in bringing the concerns of our constituency to the government, and still no idea of how this bill was going to affect the way we do business.
We did, however, come up with an approach to gauge public reaction to this legislation. The "We Need Your Help" bulletin, a copy of which is attached to this report, was returned to our chamber office in large numbers, from small retail outfits to large department stores, from small service groups to large contractors and manufacturing. We now have a responsibility to everyone who has responded. Their concerns are as legitimate as those of someone who suggests that workers need the protection that unions and collective bargaining provide.
With the help of the Ontario Chamber of Commerce, we sent out a questionnaire, a copy of which is also attached to this report, asking our constituent members if the introduction of this legislation would cause a postponement of any investment plans and what kind of impact would be felt on their business as a result of the imminent passage of Bill 40. Overwhelmingly, the response was one of fear and uncertainty about future investment in their businesses. More important, a large percentage of respondents expressed concern that they did not know what impact the bill might have on their business.
To us, this lack of knowledge of the impact of legislation on Ontario is of critical concern. If Whitby were a microcosm of the province -- which it very well could be, with its mix of professional businesses, retail and manufacturing, with its healthy mix of senior citizens, middle-aged and youth population and its respect for a multicultural heritage -- one might be made to believe that a major contributor to the economic future of our province, namely business and entrepreneurs, has become fearful of its economic future as a result of a government's desire to bring current status to an outdated piece of legislation.
It is with this in mind that we ask you to listen to our concerns with an open mind, a mind that is capable of making changes to the existing Bill 40 in favour of a less adverse approach to dealing with business and labour. We trust that our presentation will create a sense of balance and truly represent the interests of both sides, which seem caught in the middle of the intent of Bill 40.
Miss Fran Maurier: While we acknowledge the need to amend and update legislation from time to time, our chamber of commerce believes that the principles of equality, fairness and balance must be upheld in this particular piece of legislation. In our view, Bill 40 and the amendments to the Ontario Labour Relations Act give the perception that balance, fairness and equality shift to the employee in such a way that might jeopardize an employer's ability to expand, invest and create new employment opportunities.
There are a few areas of concern we wish to bring to the attention of the committee. The three main ones are union certification process, expanded union rights during strikes, and employees eligible for union representation.
Our members have sensed a certain amount of defeat with the inclusion of the 40% union eligibility requirement. Our members do not know what has necessitated the need to reduce the existing 45% support for a union certification vote to 40%. Therefore we ask you, what is the reason for making this change?
1940
Another point that has been discussed among our membership is the elimination of the $1 fee for an employee who signs a membership card. When an individual has to dig into his or her pocket to finalize a commitment, a thought process is involved. The government's intention to eliminate this small covenant leaves the impression that abuse could become an issue.
Under the proposed legislation, employees who sign a membership card and then change their minds cannot withdraw their support. Combined with the prohibition against employees who do not want a union and the reduced level of support required for certification, the proposed amendments represent a reduction in our employees' ability to influence the future of their workplace. Shouldn't employees who do not want a union have the right to make their views known?
Many businesses in Whitby are unionized and from time to time labour disputes do arise. Our chamber members have experienced concerns about the extension of these rights for a number of reasons. In our view, legislation of this magnitude will make it easier for those involved in a dispute to disrupt the ability of those to work, shop or enjoy unrelated businesses.
The act gives access to third-party property. We interpret this to mean that if a grocery store's employees at a Whitby mall were to enter into a strike position against their employer, Bill 40 gives them the right to picket at all entrances of the business. The consequences of this right conferred on striking workers will prove very costly for unrelated businesses.
At this time there are a number of manufacturing facilities in Whitby that have units in an industrial mall. A strike in one place would disrupt others, and in the view of one employer "shut down my business" due to the proximity of the picketers allowed to picket on third-party property.
We concur with others who have presented on this point that this amendment to the act represents a shift from the protection of property rights that are inherent in our laws. The restrictions that have been represented in this bill towards strikers are curiously vague so as to encourage disruption to the public and other unrelated businesses.
Employees eligible for union representation: In this particular section of the bill, our chamber of commerce strongly encourages the Minister of Labour and this committee to examine the job classifications of those who are eligible to join unions. For example, we feel there is an inherent conflict of interest by allowing security guards to join a bargaining unit of their choice. We feel that the existing legislation should remain unchanged, where security guards may be represented in a separate bargaining unit by a union which only represents security guards.
Mr Marc Kealey: I don't want to take up too much time. I just have a short comment to make. The only thing I want to touch on is the purpose clause and why it's even included in the body of the legislation. It's a little curious and I just want to talk briefly on why that would have been included in the body.
The problem we're having is not a problem of nitpicking or maybe coming to this committee with another business problem that this government would just likely ignore because it's business. For us, the fundamental problem here is that there's a perception out there. Right now the OLRB mandate is balanced, with labour on one side and business on the other, and decisions are made with a balance in mind.
In our view, the perception is that by including this clause in the act -- it states that it's encouraging the process of collective bargaining so as to enhance "the ability of the employees to negotiate with their employer for the purpose of improving their terms and conditions of employment." In some instances that is relevant in terms of an employer-employee relation, but in the perception of the Whitby Chamber of Commerce, it seriously shifts the balance to the employee. We have a serious concern about that.
It also raises an economic question, in our minds. These are tough times -- we recognize that -- and a collective bargaining situation is a costly experience to go through. The OLRB decision would be weighed in favour of an employee -- again in our perception -- and if we're interpreting this clause correctly, it would be difficult for the OLRB to permit a hard-line bargaining stance on the part of an employer and even more difficult for the board to allow for other concessions in a collective bargaining situation for the employer.
To us the purpose clause is just a little curious. I'm just wondering in terms of how it's going to impact on an employer's decision to do business. It just adds another perception that something is weighed against the status quo, against business and labour being on a level playing field. That's all I have to say.
Mr Woods: The Whitby Chamber of Commerce wants and needs to work with our elected officials on matters that affect the economic wellbeing of our province. It is our goal and it is our mandate to bring the concerns of business to those who make the laws in our province; namely you, the legislators.
The Whitby Chamber of Commerce's presentation outlines concerns to Bill 40 in four areas:
The union certification process: The change to the process of certifying unions in the province has dropped from a requirement of 45% to 40%.
Expanded union rights during strikes: This item deals with changes to the act that now permit those involved in a labour dispute to strike on public property and private property, hence interrupting unrelated businesses.
Employees eligible for union representation: We are encouraging the committee to examine the classification of those who are eligible to join unions to avoid apparent conflicts of interest.
The purpose clause: The act now includes a purpose for the act in the body of the act, giving a mandate to the Ontario Labour Relations Board which appears to shift the balance of the mandate of the board towards the employee, thus making it difficult for concession bargaining by the employer.
We recommend to you, the legislators, that Bill 40 include the right of confidentiality of workers to vote by secret ballot.
We appreciate your efforts of openness and consultation. We believe it is the responsibility of our elected officials to help us to understand the changes that have an effect on the way we live and work in this province. In our opinion, Bill 40 will have an impact on the way we do business in this recession-scarred province. Change is necessary, and adapting to change is just as necessary, but at the very least we are owed an opportunity to have our views heard and a clear understanding of the impact of this change. Businesses and investors are likely to pass us by in Ontario if we choose to ignore excellence and competitiveness at the price of perceived fairness.
We trust that our humble effort will help you in your deliberations.
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Mr Carr: I was interested in the part where you said that a lot of the companies aren't aware of this legislation and the government thinks all business is lined up to take a shot at them. In speaking to a lot of chambers, they don't want to have to deal with any government at any level, of any political stripe. They just want to worry about their day-to-day operations and not have to get involved in any political battles.
I was interested in your survey and the feedback you got -- I guess it probably isn't too scientific -- because you put down investment plans and so on. What was the feedback you got from the members, of those that sent it back in? What were they saying?
Mr Woods: Basically, the underlying theme is that as a chamber, we have a mandate to identify to our representatives what this bill is all about. The underlying problem we have -- and that's what we got back from them -- is that people just don't know the economic impact this bill will have on Ontario and their businesses.
We have a problem explaining that as well, because we feel this government has not produced an economic study that would provide that information to us. We don't know how many jobs are going to be created by this particular legislation or how many people are going to come off the unemployment line because of Bill 40, or conversely, how many businesses are going to leave Ontario because of this particular bill or how much investment won't come into the province because they don't want to invest in this province.
Our real problem was that we couldn't identify to our representatives the problems or the economic impact, and they are very scared because they don't know as well. I don't think the discussion paper and the memoranda that have come out were adequate enough for us to do our job and our mandate.
Mr Carr: The government has said it has looked at some of the impact studies that have been done and has not thought they were worthwhile. As we've said to Mr Mackenzie many times, "The reason you haven't tabled your own is because you're afraid of the results."
The fact of the matter is that for this piece of legislation they should be doing impact studies but they haven't done them because they're afraid of what they will show. Whether the job losses will be 100,000, 50,000, 200,000 or whatever, there will be significant job losses. What is your feeling with regard to the government proceeding with this legislation without doing any impact studies? What would your membership like to see?
Mr Kealey: Mr Carr, if I could answer that, basically we'd like to see Ontario's response to an impact study. It's simple. There is a constituency out there that is concerned about this. Again, it's the perception that just because business is all up in arms about this, a particular government that just doesn't happen to think business would cooperate with it would turn a blind ear, if I can be so bold, to answering the question of an impact study.
There are numbers out there. As Lynn said in our presentation, we have 800 businesses in our town and we were inundated, literally, with information from people who are saying, "I don't know, with my small business or my manufacturing facility, if this Bill 40 is going to impact on me in a negative or positive way." Again, I go back to the perception. The perception is that because it seems to weigh in favour of the employee, there may not be a positive impact to this, and we want to know what the actual numbers are.
Mr Ward: Thank you for coming from the fine town of Whitby to give us your good presentation.
You had a concern about security guards. I think you're aware that security guards have the right to join any union of their choice everywhere else in Canada and conflicts don't seem to arise. Why do you feel that won't work in Ontario?
Miss Maurier: I have worked with unions all of my working life pretty well. My concern is a conflict of interest in that case.
Mr Ward: But it's everywhere in Canada and that conflict of interest doesn't occur.
Miss Maurier: Are these security guards in the same unions as the companies they're representing?
Mr Ward: Yes. They have the choice everywhere else in Canada to select the union of their choice or not to be unionized at all. That's another option. But everywhere in Canada.
Miss Maurier: My concern with that is that you can use the national security guards that are around. I prefer not to use the names, but you can hire security guard services or you can hire a security guard and he would get the full benefit of the wages that a company pays and not have to take off the hourly deductions or whatever the salaries are that go to the service. If you're running a manufacturing or other type of business and you hire a security guard and he can join the union that is in your facility or the one next door, I feel that then there is a conflict of interest.
Mr Ward: Part of the need to update the labour act is, we think, to overcome some obstacles that are in place for employees who make the choice to become unionized. We think there are some obstacles in place, and we're hearing evidence that there are.
I sense from the critics of the bill that there's a fear from employers to have their employees organized. It's just a sense I'm getting. Perhaps you can clarify this for me, because they're the same employees before they make the decision to join a trade union and afterwards. Is that an unfounded fear on my part?
Miss Maurier: I would think it's an unfounded fear on your part.
Speaking for myself, from my experience in the business world, which has been longer than I like to admit, I have basically always worked with organized, and worked in companies where the unions or the organization came in while I was there. No, it didn't change the people, but it did change the demands and the financial structure that companies had to go through. I feel some companies today are just not in a financial position to meet the demands of the increased dollars, and this type of thing.
In my years in the business, I've also gone through three facilities that have closed: one because of the fact that it couldn't meet the demands, and one because there was no talking with the committee. We negotiated at very long lengths with the committee. They still wanted more. It just wasn't there to give them. The plant closed down -- a very nasty strike. It was in an area where most of those people now are unemployed and unable to get jobs. One of the sad things in that situation was that the final information never got to the membership.
Mr Woods: Just to answer your question, one of the things that we have found -- and your statement was not untrue that there definitely is fear out there about forming unions. But the largest fear is, what is the impact it will have on them? They don't know. They really don't know. If this bill comes into legislation and they're allowed to form unions, many of the businesses don't know what impact that will have on them. There is fear. There's no doubt about it.
Mr Offer: Thank you for your presentation. I was going ask a question about your thoughts on the impact of the legislation, but I see that's been asked a couple of times already.
I somewhat disagree with the last question of Mr Ward about the fear of organization. I understand that, but what I'm hearing is that there is a concern about employees, men and women in the workplace, being able to freely make their choice. They have the right to organize, the right to associate and the right to strike. No one disagrees with that. What I'm hearing is that we have to make certain that the legislation is designed and framed so that those men and women in the workplace are able to voice their concerns or their preferences freely.
One of the ways which has been contemplated is by giving a free vote, a free and secret ballot, to those employees. I'm wondering if you can share with the committee what your feeling is on that.
Mr Kealey: Again, Mr Offer, I think it's important that when we talk to legislators -- maybe we're a business group, fair enough, but we're also people who may not understand things the same way politicians do. I don't know if that's good or if that's bad. But there is a bill here that, for all intents and purposes, we have come to this committee to express some concerns about. I'd rather be doing something else on a Wednesday night.
I just want to point this out. If this bill comes into effect as it is, on paper and in writing, it jeopardizes the relationship, at least in our view. The reason it jeopardizes the relationship is because it pits the employer against the employee in writing, and we have a concern about that.
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When you say to an employee, "Right now you're working in a non-unionized facility or workplace," there's a relationship between an employee and employer and it's fair; all of a sudden something comes into writing that says: "Now you have the ability to organize and we've lowered the certification process so that it makes it easier for you to unionize. Not only that, we're doing away with the commitment on your part as an employee to actually dig in your pocket and put out a dollar." So we're saying to you now that this act, if it comes into effect as it is, would in our view weigh the balance of power, if that's what you can call it, or create an imbalance in favour of an employee.
As I said earlier on, and as Fran was suggesting, these are really tough economic times and in our view decisions have to be made at the employer's level that might not benefit an employee. It's the goal and desire of labour and of unions -- I respect that and I think everybody does; as I said, I think it's important -- to achieve something at the workplace, to achieve a part in it. But if that's the case, why pit it so that labour and employers on paper are fighting each other? That's our concern.
Mr Chairman, with the greatest respect, we don't want to come here and fight. We want to be constructive. I take exception to the fact that every time a business group steps up to this microphone it's criticized for coming against what this government is doing. You know, people suggest and the woman who made a presentation before us suggests that we have to work together, and we want to do that.
The Chair: Thank you. I want to thank Mr Lynn Woods, Ms Fran Maurier and Mr Marc Kealey for coming here on behalf of the Whitby Chamber of Commerce. You've made a very strong and forceful argument on behalf of the position you hold and on behalf of your membership. We thank you for your interest and your participation. Please keep in touch.
CANADIAN UNION OF PUBLIC EMPLOYEES, NIAGARA DISTRICT COUNCIL
The Chair: The next participant is the Canadian Union of Public Employees. Would you please come forward and seat yourselves in front of a microphone. Please tell us your names and titles. Start with what you're going to tell us. Try to save the last 15 minutes for exchanges.
I want to remind other people that there are coffee and soft drinks at the side of the room.
Mr Brian McCormack: My name is Brian McCormack. I'm the president of the Niagara district council for the Canadian Union of Public Employees, and with me is one of our area staff reps, Mr Brian Blakeley.
On behalf of the members of the Canadian Union of Public Employees in the Niagara region, we are pleased to have this opportunity to present our views on Bill 40, the government's proposed amendments to the Ontario Labour Relations Act, before the members of the Ontario Legislature's standing committee on resources development.
The CUPE Niagara district council is comprised of affiliate CUPE locals representing some 6,000 members, who are engaged in many varied occupations and who live in the regional municipality of Niagara.
We believe that the central issue of Bill 40 is one of workers' rights. In the simplest of terms, the proposed legislation in our view outlines the manner in which workers should be treated within a modern democratic society and the economy that serves the needs of such a society.
We hope the members of the committee will keep in mind that business opposition to the advancement of workers' rights is not new, although the level of the current volume is somewhat surprising. Employers have, as a matter of historical record, opposed, among other public policy measures, the Factory Act of 1884, prohibiting the use of child labour and establishing minimum workplace rules; suffrage and the extension of the right to vote to women; reductions in the workweek of 60, 54 and 48 hours to the present 40 hours; the removal from criminal law of the provision of engaging in a conspiracy if a worker joined a trade union; the Workers' Compensation Act of 1915; the health and safety acts, Bills 78 and 208; public education; Canada pension plan and, of late, pay equity and Bill 40, to name a few.
Not wanting to appear unfair, we should point out that employers have supported public policy measures such as wage controls, the Canada-US free trade agreement, unemployment insurance cutbacks, pension clawbacks and reduced social expenditures. Either through support or opposition to public policy initiatives, the pattern has been consistent. Any measure designed to help workers has been opposed by business spokespersons.
The remainder of our presentation is contained within the following pages of this brief. We have focused on areas of Bill 40 that are of particular concern to the CUPE members in the Niagara region. We stand ready to respond to any questions the members of the committee may wish to submit to us on the content of our submission.
Under organizing and certification --
The Chair: If I may interrupt you briefly, you may just want to highlight, and I trust that's what you are going to do, each of these areas.
Mr McCormack: Yes. Under organizing and certification: The proposed amendment in section 92.2 will allow unions to request an expedited hearing when they file an unfair labour practice complaint under section 91 of the act, alleging that an employee was disciplined, terminated or otherwise penalized during organizing activities.
The $1 membership fee will no longer have to be paid by an employee in order to become a member for the purpose of certification. We support this proposal, as it eliminates one of the objections an employer might use to delay and frustrate the certification application.
In earlier presentations and written briefs, the trade union movement recommended that automatic certification be reduced to a simple majority and a representation vote to 35%. Such a proposal is not out of line with other jurisdictions, such as that of the federal government and such provinces as Newfoundland and Quebec. In Saskatchewan, the board can hold a vote where as few as 25% of the employees are shown to be members.
The main effect of this proposal will be to prevent the board from considering petitions from employees who claim they do not want to be represented by a union where such petitions are filed after the union's application for certification date. Restricting the role of anti-union petitions in certification applications is a welcome and major step forward.
It is our view that if a worker wants to decertify, he or she can do so currently under the act by applying to the board in the months just prior to the termination of his or her collective agreement. We therefore ask the government to take the necessary further step and completely eliminate petitions and revocations.
Under unfair labour practice certification: The purpose of this change is to deter an employer who acts early enough in the process to avoid the current unfair labour practice provisions. This will go a long way in restricting blatant anti-union acts by an employer during an organizing campaign.
Mr Brian Blakeley: Under part-time employees and appropriate bargaining units: The CUPE Niagara district council welcomes the amendments to section 6 of the act, which direct the board to find that a single union of full-time and part-time employees "shall be deemed by the board to be a unit of employees appropriate for collective bargaining." These amendments help unions address the low rate of unionization among part-time employees, a considerable portion of which are women and visible minorities.
Under consolidation of bargaining units: In short, we can envision many circumstances wherein bargaining unit consolidation would be positive. The effect of this amendment largely depends on how the board interprets it. The amendments allow the board to consolidate bargaining units and give it some direction as to the factors to be considered, but the board is not required to combine bargaining units.
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Under the amendments to improve collective bargaining and reduce industrial conflict, the use of scabs: Surely this is the most controversial section of the proposed amendments. The use of scabs and possible prohibitions against this practice has been the subject of considerable debate since the introduction of anti-scab legislation in Quebec. Now the government's proposals move significantly in the direction of the Quebec legislation. Sections 73.1 and 73.2 constitute far-reaching restrictions on an employer's ability to have bargaining unit work done during a strike.
The passing of these amendments should eliminate the emotionally charged and hostile picket line confrontations of the past. This being said, Bill 40 also contains significant limitations; notably, the restrictions on performing bargaining unit work would only apply to the workplace where a strike is occurring. This means that an employer can still legally shift bargaining unit work to another geographic location. Employers are also allowed under the amendments to contract out bargaining unit work.
The government has provided several justifications for these amendments. In a fact sheet released with the proposals, one of the rationales held that strikes will be shortened, thus helping Ontario succeed in a new global economy. The CUPE Niagara district council is convinced that this will not be the case as long as such gaping loopholes exist in the amendments. As long as employers can relocate, contract out or use non-bargaining unit employees, along with supervisors, to do bargaining unit work, the duration of strikes will not be appreciably shortened. We remain absolutely opposed to these serious omissions in the amendments.
We also deal with the issue of the exceptions. The impact of these exceptions for CUPE bargaining units will be significant. The majority of CUPE health care workers are currently denied the right to strike under the Hospital Labour Disputes Arbitration Act. The inclusion of essential service exceptions in the anti-scab provisions of Bill 40 will effectively expand this ban on strikes for vast numbers of CUPE members.
Several changes could be made to these amendments. The first concerns the potential for delay in receiving a decision from the board where the employer is not complying with the proposed amendments. The board is not required to expedite its hearings on such issues. The government should move to ensure that the board has strict time limits within which to make these rulings. The potential for delay would be greatly reduced if the amendment required the board to rule in an expedited manner.
Mr McCormack: In conclusion, the government of Ontario is to be commended both for initiating a full consultation process enabling all views to be heard and for proposing significant amendments on labour law reform. Bill 40 represents a far-reaching and progressive package of provisions which will help working people in Ontario maintain and advance their standard of living and quality of life.
The CUPE Niagara district council urges the government to pass this very important legislation at the earliest possible date this fall.
In conclusion, we would like to take this opportunity to thank the standing committee on resources development for taking the time to hear our views. We trust that our concerns will receive serious consideration in the final writing of this legislation, which is very important to our members and the people of Ontario as a whole.
Mr Ferguson: Welcome to the committee. We certainly appreciate your comments, as with all the other comments we've heard over the past number of days.
I have a couple of questions. Earlier today, Waste Management Inc appeared before the committee with its American lawyer and expressed some concerns about garbage pickup. Earlier this evening the ever-capable mayor of Kingston, Helen Cooper, on behalf of the Association of Municipalities of Ontario, made a presentation and also expressed some concern about what it would call essential services.
I understand that at this point in time the specified replacement worker within the act isn't as closely defined as some people would like. What I'm wondering from both of you is whether you would consider garbage accumulating on the streets of either Toronto or any other municipality as -- whether garbage pickup is an essential service, and whether you would categorize that as you have on page 13, item iii, as "serious environmental damage."
Mr McCormack: No, I don't see it as being an essential service. Maybe there is an immediate reaction effect in the municipality, but as soon as an agreement is reached, then people get out and the garbage is disposed of as per the normal situation.
Mr Blakeley: One of the other things to bear in mind is that we don't bargain within a vacuum. Part of the process is the union and the management negotiating. The other part of the process is the customers -- taxpayers -- influencing those negotiations. In the past, we've had strikes in municipalities and garbage has piled up. If you will, the weight of that pile rests on the parties negotiating. The heavier the pile, the quicker the parties are forced to deal with the issues before them. That's the way we've operated in the past in that area, and I think we will likely continue in the future with this legislation because, as Brian said, that's not what we would consider an essential service.
Mr Ferguson: I recall that reference has been made on a number of occasions, not so much in this committee but in the Legislature itself, to the "union bosses" of Ontario. These two gentlemen obviously are here representing the Canadian Union of Public Employees, Niagara District Council. I would like to ask, just for the record, whether these two individuals who represent their membership in a leadership capacity have jobs in addition to representing the membership and, as a representative sample of the union bosses of Ontario, exactly what they actually do. Do you have what I think the general public might categorize as real jobs?
Mr McCormack: Sometimes you get a phone call and you get a question. The first thing when you say that you are president of the union is, "Oh, that's a full-time job." Yes, it is, but it's not my full-time job. I'm an employee with the corporation of the city of Thorold, a truck driver, and not that long ago was one of the men involved in the operation of garbage pickup for the city of Thorold.
Mr Blakeley: I'm a full-time staff employee of the union and have worked all of my working career since graduating from university in various capacities for CUPE. I consider it a real job, and anybody who disputes that is welcome to tag along for a couple of days.
Mr Ferguson: Would your position be an appointed position as a staff member or would it be an elected position?
Mr Blakeley: It's a hired position. I apply for the job and hopefully at some point I'm selected for a position.
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Mr Eddy: I wanted to follow up on Mr Ferguson's question. It has to do with essential services. As has been mentioned, we've had groups before us stressing the importance of what are considered to be essential services and defining them at some time, hopefully before the legislation is passed. There was the Ontario Good Roads Association, the Municipal Electric Association and the Association of Municipalities of Ontario, somewhat similar.
AMO mentioned services required by statute in addition to essential services mentioned by the others. In view of what you said on page 12 about the gaping loopholes -- you said garbage isn't considered an essential service; I expect that kind of depends on the length of time of the strike -- what do you feel about essential services? Are there some services that are essential? Would you consider them to be essential and should they be carried on, or do you see it as a closedown, that if there's a strike things close down? Could you comment on that, either of you?
Mr Blakeley: I think in Ontario the essential services are covered by legislation as of this date. The police act, the firemen's act and the Hospital Labour Disputes Arbitration Act have in the past defined what the essential services in Ontario are. It's my opinion that those are the essential services in Ontario. The legislation, as it's proposed, will allow employers to continue to provide services that they can satisfy the Ontario Labour Relations Board are essential. It will also allow them to continue to provide services that they can provide with non-bargaining unit employees.
Our position is that those loopholes are so big they're going to handicap our ability to bargain for our members. I think the legislation sets out what will be considered and puts into law a process for the employers on behalf of whomever to expand that definition for their particular circumstances.
Mr Eddy: You've mentioned three very important ones, and I acknowledge that, but I'm thinking of other things that are for the most part municipal services, such as water treatment plants for water supply, sewage treatment plants and some of those things. They couldn't always be managed perhaps entirely by supervisory staff.
Mr Blakeley: My understanding of the legislation is that the employers have the obligation, where they deem it necessary, to submit requirements for essential services.
Mr Eddy: But essential services, do you agree, should be defined very specifically.
Mr Blakeley: I think that's impossible. To do that in legislation is a ridiculous sort of job. The federal government does it through the employer. How can the Legislature of Ontario sit down and decide what an essential service for every municipality and every employer in Ontario is?
Mr Eddy: I think it would be in general terms for those that have certain things. I think it could be done and it's important that it be done.
Mr Blakeley: I think it is done in the legislation.
Mr Offer: Thank you for your presentation. I think on page 14 of your presentation -- I'm not going to ask a question on it -- whatever one's position is on the replacement worker and on the prohibition of replacement workers and the exceptions to the prohibition of replacement workers, you've clearly pointed out a major omission in this legislation; that is, there is no process in anyone being able to deal with decisions as to who is exempt from those provisions and the time period required for decision. I think it's clear that the legislation is severely defective, as you've indicated, because of that glaring omission.
My question to you is right on your first point on page 3. I'm sort of treading in some dangerous area but I think it's important, and it's the protection of employees from unfair labour practices during organizing campaigns. I ask this question because I have a concern that the wording may not protect employees. I'll ask the question; it is extremely specific. The legislation says that if the union requests an expedited hearing -- and I think there are a lot of people who would find that right -- the board shall begin its inquiry within 15 days and it must hear the complaint on the consecutive days and then render a decision.
I think it all sounds very nice. What happens if during the hearing somebody, either the employee, the employee's solicitor, the union or a union representative, for a variety of reasons that only life brings out, can't be there? My concern is there is absolutely no discretion in the board in stopping the hearing. My concern is that, as a result, the employee's rights are far from protected; they are put at incredible jeopardy.
I know it sounds right: There's an expedited hearing and it's going to commence and it's never going to stop until it's ended. What happens if the employee, if the union, for -- you know all these things that happen in life -- illness or a variety of matters, can't be there? There's no restriction on the board.
The Chair: Okay, let these people respond to that, because Ms Witmer wants to ask some questions too.
Mr Blakeley: I think, Mr Offer, that if you've ever been involved in a situation where somebody's been fired for organizing, you will recall that (a) the employee is available because he is no longer an employee and is interested in being there because he's unemployed and (b) the trade unions have incredible commitment to those persons and will be there. Our preference with this would have been that it be quite as expedited as a case where, say, an employer has a concern about an illegal strike, where he can wake up the labour board and get action at 2 in the morning. That's the sort of expedited service we would expect for this situation.
Mrs Witmer: Thank you for your presentation. On the final page you congratulate the government of Ontario "for initiating a full consultation process enabling all views to be heard" and for the amendments. Now, I guess if we're going to talk about a full consultation process, and that's hopefully the process we are participating in as we sit here in Toronto and travel the province for five weeks, it would mean that as a result of these hearings the views of all the participants would be taken into consideration as well. You obviously know that we have heard many conflicting points of view. Some of the concern has been focused on the fact that the agenda, up until now, has been union-leader-driven. There is not a proposal there from any other sector or any other individual.
I guess I would ask you, because obviously you've been following this process very closely, if the government were going to make some amendments, if it were going to move forward in attempting to reach a compromise, consensus, promoting harmony between labour and management, what amendment could you see occurring that would certainly indicate that there was a willingness to move towards some compromise and taking all the views being presented into consideration?
Mr Blakeley: With as much respect as we can manage on that issue, this document is as amended and as watered down as I can imagine its being. The document that was leaked, I believe, a while back, in September, in some nice area in Georgian Bay was a lot closer to what we were looking for if you speak of union leaders. I can't speak on behalf of union leaders, because I know some of the people to whom you probably refer, but through this process the needs of working people for adequate labour relations legislation have been as amended through consultation as I think they can be.
This document represents the barebones necessary improvements to allow us as working people to address our concerns. I think this document goes a long way away from where if the union bosses, if there were any as you described them, were writing legislation. We wouldn't be tabling this; we would be tabling something a lot more progressive in our view.
Mrs Witmer: But we're still dealing with the original agenda, and I guess if we're going to sit here we need to be open to making some changes that are going to accommodate some of the conflicting views we've heard. One of the areas that has been proposed by individuals and groups is the need to open up the process. Unions have been given more rights, but they also need to be given some responsibilities. People are suggesting that all employees have the right to be informed as to what is involved in joining a union, what is the implication of a strike, what's the union fee, what's the union history and that the employer also have an opportunity to speak, and then after that there would be a secret ballot vote. What objection do you have to a free and democratic secret ballot vote for all individuals?
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Mr McCormack: When we get into discussion of a secret ballot, immediately, as an involved trade unionist, the hair on the back of my neck stands up, because where we are looking at legislation that's going to hopefully defuse some of the anti-union activity that is out there, that secret ballot idea would come right back to reinforce it. The intimidation by bosses over somebody would be evident. All the people I work with are intelligent enough that they understood what it means to sign a union card. When they made that commitment, they turned the rest of it over to the people we have who help and understand and explain.
Mrs Witmer: I appreciate that.
The Chair: Thank you to CUPE and to both of you, Brian Blakeley, national rep, and Brian McCormack, Niagara District Council president. Thank you for making the trip to Toronto. Thank you for your interest in this legislation and for your submissions this evening. We trust you'll be keeping in touch with members of the committee and other MPPs to make sure that your ongoing concerns are expressed and known to members of the Legislature. Have a safe trip back.
DYLEX LTD
The Chair: The next participant is Dylex. Will whoever or however many are speaking on behalf of Dylex come forward, seat themselves in front of a microphone, tell us who they are and their titles, if any, and proceed to say what they will. We've got half an hour. We want to save at least the last 15 minutes for exchanges, questions and dialogue. Go ahead, sir.
Mr Lionel Robins: My name is Lionel Robins and I am president of Dylex Ltd. I'm speaking here today on behalf of Dylex. Thank you for the opportunity of speaking to you this evening. I understand 1,200 individuals and groups have sought to participate. Clearly this is an important issue for all Ontarians to consider. I recognize that you have had a long day, so I will try to keep my comments brief.
Dylex Ltd is a Canadian success story. We are an Ontario-based leader in the specialty retail field, with 1,380 stores in Canada and the United States. Our 14 chains provide merchandise of top quality and value in congenial and convenient shopping environments. Familiar names include Bi-Way, Tip Top, Suzy Shier and Thriftys. In Ontario, Dylex has approximately 700 locations throughout the province. It's fair to say that Dylex operates in virtually every mall in Ontario.
As both a retailer and a manufacturer, Dylex employs approximately 15,000 people across Canada. Approximately 9,200 of our employees work here in Ontario. Some of our operations are unionized; others are not. We have successfully negotiated over 50 collective agreements without a strike. Because we are an Ontario-based company, with 50% of our stores, 60% of our sales and more than half of our workforce here in Ontario, the negative implications of this bill could destroy the company.
In international terms we are still quite small. Our sales last year were less than $2 billion, to compare to Wal-Mart, a fast-growing American competitor that has annual sales of over $45 billion.
The retail sector has been badly hit by the combined forces of recession, cross-border shopping and record low levels of consumer confidence. In fact, in the first three months of this year over 2,800 retail jobs were lost in Ontario. This does not include layoffs involving less than 50 employees. Our company has not been immune from these pressures. Last year we closed our Town and Country operations. In the last three years we have suffered losses of over $100 million.
We are well into the second half of 1992 and economic recovery continues to elude Ontarians. A successful retail sector is critical to achieving economic renewal. Retail drives product and manufacturing innovation. For every job in retail there are two more associated with it. Retail provides critical first jobs to our youth. Youth unemployment is now about 20%.
I think it's fair to say that we are all just beginning to realize that the changes under way are not temporary or cyclical and that our economy is undergoing a fundamental revolution. As we face these restructurings, public policy should enhance our ability to respond, not constrain it.
Regrettably, the process of considering the amendments to this act has driven a wedge between employers, the trade unions and the government of Ontario unlike any we have ever seen or experienced before. This is a terrible shame because the government has a critically important opportunity before it. I am referring to the opportunity to provide the province with bold leadership in the struggle to find a new relationship between labour, management and government that could take us forward into the next decade. The government can work to bring together the parties to seek the required new solutions and to engage in real strategic planning for an industrial policy for Ontario. What is special about this government's position is that the union movements trust it. Now you must work to forge a similar bond of trust with the business community. If this can be achieved, the result could be an unprecedented opportunity of cooperation.
Against this backdrop, government should be making every effort to help promote the Canadian retail sector in Ontario, not legislating policy which will only worsen the already bleak situation. Bill 40 sets retail employees and employers backwards in confronting the challenges that face us. Bill 40 will impede new innovation, distance employers from their employees and slow down the pace of economic renewal. Bill 40 will also damage consumer confidence, which is essential for economic recovery.
The November discussion paper on labour reform has already had a negative impact on new business startups, new investments and reinvestment plans of those in Ontario. Critics accuse employers of creating hysteria and scaremongering. Investment analysts are, by nature, jittery. Now, more than ever, it has been our direct experience that since the release of the discussion paper, it has been more difficult to secure funds for new investment in Ontario.
Bill 40 falsely assumes that employers and employees cannot constructively work together without legislation. True partnership is achieved by setting common goals and working towards them over time in a climate of mutual trust. This legislation will only undermine employers' efforts to work constructively with employees. Imposing cumbersome and outdated processes based on practices from other sectors and other jurisdictions will destroy the initiatives under way to transform Canadian retailing.
For years, Ontario has focused its attention on the resource and manufacturing sectors, yet retail is fundamentally different. Applying labour provisions designed for the factory floor of the 1950s will not solve the problem of retail in the 1990s. Those who support Bill 40 argue that each proposal exists in some form or other in other jurisdictions. It is important to understand the cumulative impact of these proposals. Taken together, these changes represent a dramatic departure which significantly worsen the labour relations climate in Ontario.
The purpose clause: One of the most significant changes is the purpose clause. By placing it in the body of the legislation, you are giving unprecedented powers of interpretation to arbitrators and the Ontario Labour Relations Board. By indicating that working conditions can only improve, the clause ignores economic realities which may be constraining a company.
Automatic certification: It is also disturbing that if the Ontario Labour Relations Board rules that an employer has contravened the act during a union organization campaign, a union is entitled to automatic certification. This can be achieved regardless of whether the union has the support of the employees.
Full-time and part-time: Under the present system, if the majority of full-time or part-time employees want collective bargaining, they can achieve it. In most situations, full-time employees have significantly different interests from part-time workers. To illustrate this difference, let's look at whether a pension plan should be improved or whether wages should be improved.
Part-time workers tend to be those seeking transitional employment: students, artists etc. They do not expect a long-term relationship with the employer. They are more interested in higher incomes now, rather than seeking pension benefits. Our full-time employees, however, expect to spend most of their careers with us and have a real interest in negotiating retirement provisions. Consolidating bargaining units will make the unions' activities easier but will not reflect the wishes of employees.
Third-party property: The provision to allow picketing on third-party property is another specific concern of retailers. As I mentioned earlier, regaining the confidence of consumers is critical to achieving economic recovery. Consumers will not shop in an environment of picketing and leafletting. By permitting picketers on third-party property, neighbouring stores will also suffer. Principles of fairness suggest it is inappropriate to permit demonstrations or other forms of picketing on the private property of those parties who are not involved in the dispute. In larger malls, some with over 200 stores, there is the possibility of continual picketing. People put off by picketing and demonstrating would likely return to cross-border shopping as an alternative.
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Replacement workers: Virtually every employer's representation has dealt with this clause. Allow me to echo those concerns and highlight that in retail we are striving to flatten our structure and empower employees. What this means is that if there are no managers available to staff stores in the event of strike, the stores will be forced to close. This provision undermines the government's industrial policy that advocates continuous innovation and employee empowerment.
Last week, David Posluns told you that the bill is a threat to Canadian retailing. I want to elaborate. In the time that many of you have been MMPs, you will have seen local Canadian-owned stores close in your communities and new stores open. The Gap, Price Club and Talbots are just three examples. Because of the vacancy rate in Canadian malls, our American competitors are getting long-term leases with 75% discounts and cash incentives. As I mentioned, a company like Wal-Mart has sales in excess of $45 billion, whereas ours are $2 billion; if they were to open in Ontario and face a strike, it would not harm their viability. To Americans, Ontario is a small market, an afterthought, an extra 100 miles on a US-based distribution. To Dylex, Ontario represents 60% of our market. A strike here would cripple us in a matter of days.
Let me give you an example of how the American government is helping US retailers come to Canada. Last week, it was reported that the US trade department had written American retailers, advising them of fantastic market opportunities for discount warehousing in the Canadian market. The government was offering briefings to explain how Americans could further penetrate our market. Meanwhile, our government is handicapping our ability to respond to these kinds of challenges.
You have been told that criticism of the bill is hostile and hysterical and that employers are simply out to preserve their profits. As I said earlier, Dylex has lost over $100 million in the last three years, and we are a success story.
We are moving quickly to empower our employees and to ensure that they are well trained and well motivated. Unlike the manufacturing and resource sectors, most of our employees are our point of contact with our customers every day. We spend almost $1 million annually on staff training and development. We have introduced state-of-the-art information technology and have invested in new store formats in communities across Ontario. We are communicating directly with our employees by such means as employee hot lines, staff input meetings, attitude surveys, upward assessments and self-appraisals. We have also put in place progressive anti-harassment policies. Employees are being empowered to solve problems. The legislation impedes that process.
I'm speaking for a company that is fighting to remain viable in Canada, a company that is investing in employees and in technology to be successful as an Ontario-based international retailer. I'm here to say that the negative impacts of this bill are real. The bill is already affecting our ability to attract new investment. It will impair our ability to empower employees and introduce value-added innovations. This legislation undermines the province's chances of economic recovery. We are working with employees to revitalize our operations. Public policy should support these efforts, not undermine them. Bill 40 is a step in the wrong direction.
Mr Offer: Thank you for your presentation. You may be aware that during our hearings we are also hearing from employees in the garment industry, home workers and individuals who are concerned about their working conditions. I must say they have made some forceful presentations with respect to the position they find themselves in. My question is, as a leader in the retail clothing industry, how do you respond to that concern which has been brought forward to this committee?
Mr Robins: First, I would like to put the problem into some perspective. In the first instance, we are in the retail business. Of the roughly $2 billion we do, less than 2% is represented by manufacturing, and of that 2%, a very small minority would be represented by home workers. So we are dealing with something that in the scheme of things in terms of size is quite small.
I do have to say a couple of things. We are not perfect; we are not doing everything in a perfect fashion. The issue of the home workers, however small, is not small to the individual who is being affected. It is presently being negotiated and if there are any specific issues we can be made aware of, I can tell you, I certainly would look into them, as I would look into any other situation affecting anyone who worked at Dylex.
Mr Offer: I'd like to thank you for that response. I felt it was only proper to bring up that matter because we have heard this in the committee and maybe we should be exploring that particular issue, not only with yourself but with representatives of the sector, in order to deal with the issue straight on so that those issues which have been brought forward to us can be rectified. It seems that the concerns would not be markedly improved with this particular bill and certainly I want to provide some balance in that respect. But I do thank you for that response and I think we are going to have to deal and work with that issue as time progresses.
Mrs Witmer: Thank you for your presentation, Mr Robins. You mentioned that it's much more difficult to secure funds at the present time for investment. Actually, you are the second individual who has appeared before us today who has made the claim that it is more difficult. Where would you normally have obtained those funds for investment from, and what would these funds allow you to do?
Mr Robins: Let me take your second question first. The primary use of the funds would be for investing in refurbishment of the retail stores, and that is an ongoing requirement. It's probably heightened in the most recent years, given that we do have American competitors who are coming in with new, fresh physical plants. The retail business is not selling need; it is selling want. We are trying to inspire people to want to buy something. I think each one of us would admit that if we didn't buy anything in terms of clothing in the next year, we wouldn't wear out what we have. Our investment in our physical plant is vital in terms of a strategy to inspire people to want to, and it is exaggerated when you have strong American competition coming in to do that.
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A second area that is also vital, as I mentioned in my formal remarks, is that we at Dylex do not look at what is happening as an economic downturn and we do not look at it as cyclical. My very strong view is that we are going through a fundamental restructuring and only the fittest will survive. Another area we are investing and need to invest very considerably in is technology. Just by way of example, when I started in business, which was some years back, when you bought a cash register you bought it for life. We're into the third generation of cash registers in my time at Dylex, because the technology is changing. We need to be better in terms of eliminating workload for employees at the store and doing it in a re-engineered or automated fashion. The time lag of information to allow people to make effective decisions has changed, and it's changing by the hour. To re-engineer a company of Dylex's size, you're talking $25 million just to replace the cash registers, but if you don't do it, it's the beginning of your demise.
Those would be the two key areas for which capital is required. Ordinarily the funds would come, generally, out of lease financing. Lease financing is arranged through the various chartered banks and other people, but I can tell you, going back three years, the banks just basically turned off the retail business. They had no faith in it, and it's going to be self-fulfilling, because they apply pressure on the manufacturers; the manufacturers can't finance the receivables and that puts pressure on the retailers. That's really causing the demise, and it is not over yet, not by a long shot. I think anything we do that undermines confidence or weakens the retail climate is going to be more self-fulfilling as time goes by.
Mrs Witmer: I'm concerned about the possible impact of Bill 40 on Ontario businesses, because, as you've indicated, certainly the American chains are coming into this province. Do you see this increasing that they would come in? Obviously if you can't continue to function and others can't continue to function, we won't have a local, homegrown economy.
Mr Robins: They are and they will. I think the impact will increase as the free trade agreement extends and the seamless nature of free trade really levels out.
I think what is also going to get them to come is that in my 25 years I have never seen the amount of shopping centre space that is available. The shopping centres can't afford to sit with empty space; they are very concerned sitting with empty space, because it becomes self-fulfilling. It's hard to be strong vis-à-vis dealing with your people when the tenants walk around and see an empty shopping centre. Shopping centres are fighting for market share, no different than the retailers in them. They're looking to create differences from one shopping centre to the other, and if new concepts come in, like Price Club, like Talbot's, like The Gap, and there are others that are coming, the shopping centres are going to look to be first to have these new retailers as a way of differentiating their mall from their competitor's mall.
I think you're well aware of what's going on in the real estate industry between Cadillac Fairview and Trilea and Bramalea and Cambridge. The thing is crumbling, and they're not going to sit back and have their shopping centres empty. They are going to deal, and we know for a fact some of the deals that are being made. Not only are they putting out the money to build the store, they're providing working capital to operate the stores. It is mind-boggling what is truly going on in terms of efforts being made to attract American retailers.
Mr Huget: Thank you very much for your presentation. I want to refer back to Mr Poslun's presentation of last week, and this one today, which is essentially identical to the Fairweather one, which is essentially identical to the Hudson's Bay one in terms of wording.
I'm trying to wrestle with an issue that's developed here in the last four or five days that to me is very important. I'm being told on the one hand that the retail industry is a very progressive industry in how it treats its employees, what it does for training, what it does in terms of working conditions and how very much it's interested in the well- being of its employees and using that employee wellbeing as a front-line customer contact and in that regard generating higher customer sales and greater satisfaction.
On the other hand, several groups have appeared before this committee and referred specifically to your organization, and others, as being an organization that isn't quite like that. I've heard it referred to as intimidating, threatening. There have been discussions around what happens when someone mentions that he or she wants to join a union in the retail industry, and your company is not excluded from that. There is an issue of home workers, some who are being paid, as I understand it, the equivalent of a dollar an hour. I had a presentation last night and one of the home workers informed me that she would receive $7 for this jacket in terms of putting it together.
Clearly, what you're saying in terms of the working conditions in the industry and what they are saying is diametrically opposed. I have a feeling that someone's not telling me the truth and I would like you to help me with that.
Mr Robins: Let me try and do that. First, I can't, and I don't want to, mislead and comment on the problem of a home worker. I would be pleased if you gave me the specifics. As with any other employee, I'd be pleased to look into it. I am certainly not here, and I don't believe we're going to build our company, by abusing people. As I did mention, though, the manufacturing does represent about 2% of the business we're in, and home workers would represent a minute percentage of that 2%.
On the issue you're talking about in terms of an employee and intimidation, again, if you would supply me with the fact, I would be pleased to look into it.
But I would like to comment. I believe very strongly -- it's the way I was brought up, I think it's the way I've managed, and I've managed for over 30 years -- you can't make people do anything. I don't believe in threats. I believe the role of management, and the culture I've tried to inspire in the two years I've been leading Dylex, is to have management inspire their people to want to, because I believe that's how ultimately we're going to win. If you have to make people do things, I don't think there are enough hours in the day and I don't think you've got enough eyes to watch what's happening. I have, I believe, succeeded in getting a whole host of things done, not by intimidating anyone but by truly inspiring them to want to succeed.
I believe that is the culture that is molding, taking shape and filtering through Dylex. I don't believe it was always there. I don't think it exists everywhere in the company, but I believe it is vital to have that kind of culture to become a world-class company, and if we don't become a world-class company, we will not survive. So as a broad principle, when you talk about intimidation, I can tell you it is not my belief, it's not my style, never has been my style and I believe it is a recipe for failure.
Mr Huget: If people in the workplace feel they are intimidated, whether it's in your workplace or not, and feel they have grievances in terms of working conditions and in other areas, who want to organize -- is there anything in your view that should prevent them from doing that?
Mr Robins: If you're asking whether we look at it that they should not be allowed, no, I'm not saying that. I think what we are trying to deal with is that there is a level playing field in the process. The way it's being approached, I think the level playing field does not exist; that is striking and I think the number one problem we all have.
I mentioned before that I think we have a responsibility to try and lead people. If you look at a couple of things, they're saying that we're not going to get through the recession portion of the restructuring without a change in consumer confidence. I don't think consumers are going to be confident when they see the kind of bickering and uncertainty and lack of capital spending and management attitudes that are fearful of the environment they're living in. I don't believe that is an environment that's conducive to management creating a leading role to create jobs and move forward.
I'm a customer too, and I'm an individual. Aside from running a company, I have my own personal feelings, and there isn't a day that goes by that I don't pick up the paper and read about a factory closing down and people being laid off and cutbacks. Where do you get any kind of feeling of confidence when that kind of thing happens?
You ought to take a look at one other perspective. If you watched a couple of weeks ago, do you know that the banks were paying less money to borrow than the federal government? Does that tell you how much money they've got and how fearful they are of where to put it? They were paying less on short-term borrowings than the federal government. I don't think it's ever happened.
Mr Huget: Do you think an organized workforce in the retail sector or the retail-manufacturing sector can be competitive?
Mr Robins: Would you repeat the question for me? I just want to make sure.
Mr Huget: Do you think a workforce that is organized or unionized, or however else you want to refer to it, in the retail sector or in the retail-manufacturing aspect of your business can be competitive?
Mr Robins: The answer is, I believe, yes, depending on a whole host of things. I could say the other side, a retail environment that is not unionized could be competitive as well, or I could tell you it's not competitive. I think it relates to how it's managed. I think it relates to the people it has, attitudes it has, policies and practices it has. I think it relates to a whole host of things, so I don't think I can answer it one way without giving you the other.
The Chair: Thank you, sir. I want to thank Dylex and you, sir, for appearing to present your views and the views of your company. We appreciate your interest in the legislation and your eagerness to appear here at the committee, especially at this rather late hour in the evening. Thank you kindly. Take care.
Thank you to the committee for its cooperation throughout the day, thank you to the staff, and we'll be back. We're adjourning until 10 o'clock tomorrow morning, at which time there will be more interesting submissions by interesting people like the Canadian Paperworkers Union, Local 101, here tomorrow at 10 am.
The committee adjourned at 2104.