February 16, 2004 (37th Parliament, 3rd Session)


Judi Longfield


Mrs. Judi Longfield (Whitby—Ajax, Lib.)

Madam Speaker, I am pleased to join in this debate on Bill C-312. The bill proposes that the Minister of Labour be given the power to impose severe constraints on the use of the collective bargaining process in Canada's west coast ports. The impact of this bill's passage would be to take away the right to strike, as well as the employer's right to lock out employees, and then to impose a winner takes all settlement process from the outside.
I do not support this bill. Its provisions are contrary to the principles of the Canada Labour Code and it fails to provide the flexibility needed to deal with the kind of complex labour negotiations that are typical in Canada's west coast ports. For example, clause 4 of the bill states that:

Notwithstanding the provisions of the Canada Labour Code, where the Minister is of the opinion that a strike or lockout in a west coast port poses an immediate and substantial threat to the economy of Canada, or to the national interest, the Minister may, by order,
(a) suspend the right to strike or lockout in that port; and
(b) when a strike or lockout has occurred, direct the employer to resume operations and the employees to return to work, as the case may be.

Clause 5 of the bill provides that when such an order is issued, the minister shall also give notice that “the dispute is to be settled” by a process known as “final offer arbitration”, or what is also called final offer selection. These are strong powers and they are not consistent with the spirit of the Canada Labour Code or the tradition of labour negotiations that has evolved in Canada over the years.
The Minister of Labour has said on many occasions that the best way to settle workplace disputes is to encourage the parties to find the solution that best meets their particular needs. The minister can facilitate this approach by providing a conciliator or a mediator, for example, but the objective aims to help the parties toward a shared solution, not to impose one from the outside. Experience shows that this approach works. In recent years, 95% of workplace disputes under the Canada Labour Code have been resolved without a work stoppage. It is not always easy to keep operations going while working toward a negotiated settlement, but clearly it is possible.
Our position maintains that the role of the Minister of Labour should not be to impose solutions in cases of labour disputes, and especially not to impose a process that would pick one side or the other in a dispute such as this bill proposes to do.
Instead, the minister's role should be to provide the kind of support that will move the parties toward a negotiated solution, such as the Minister of Labour provided in a recent case in west coast ports.
In the case of the Waterfront Foremen Employers Association of British Columbia and the International Longshore and Warehouse Union, Local 514, for example, a mediator appointed by the Minister of Labour was able to help the two sides come to a settlement in a long-standing dispute late last year.
Earlier in 2003, the B.C. Maritime Employers Association and the International Longshore and Warehouse Union resolved the renewal of their collective agreement in direct negotiations.
Complex negotiations like these call for flexibility in arriving at solutions that meet the needs of both employers and employees.
The final offer selection approach proposed in Bill C-312 would remove that flexibility and instead impose an arbitrary solution that would favour one side over the other. We do not believe the final offer selection approach is the right one for complex labour negotiations such as those involving the west coast ports.
Now let us examine more closely the final offer selection process. Typically, final offer selection requires one party to prepare a final offer for resolution of all outstanding issues in a dispute. The two sides then submit their final offer to an arbitrator or selector. The selector is then required to choose the complete package from one side or the other, either the union's final offer or the employer's.
There could be variations in the process, but the model is based on the selector being obliged to choose the final proposed solution of one party or another. This approach might have some merit in cases where there is only a single economic issue, such as wages, for example.
However, most labour negotiations involve more than a single issue. The issues involved usually go well beyond wages and can include a broad range of matters such as work rules, vacation entitlements, pensions and so on. Negotiating a settlement in situations like this can be tricky. There is usually a lot of back and forth negotiation involved. Flexibility remains a very important aspect of the process.
In the recent cases involving west coast ports, for example, agreements were achieved because a federal employment mediator was able to go in and work with the parties to find common ground and then build from there to find an eventual solution. In cases like this wages may be only one of the issues that come up, but wages are not the most important in some cases.
Final offer selection by definition must pick one side over the other, and it does not allow for negotiations and compromise between parties. In other words, it sets up a process that prevents the trade-off between parties that can be key to achieving overall agreement. In addition, by setting up a process whereby one side in a dispute puts forth its final bargaining position and an arbitrator picks one over the other, the final offer selection approach creates a scenario where there is a clear winner and a clear loser. That is not usually a good recipe for harmonious workplace relations in a post-settlement period.
I understand the frustration that comes when workplace disputes threaten the economic lives of others, but I do not believe that final offer selection is the way to resolve these situations. In recent workplace experience, Canada's west coast ports achieved a mediation by working together, by one party working with the other to resolve their disputes. Adopting the final offer selection approach would divert us from this tried and true method to dispute labour resolution. This is at the very heart of the Canada Labour Code.
Does it mean that we would deny employers and employees the right to choose final offer selection if they believe it is right for them? No. In fact that option is available to them now. However, as a matter of practical experience, it is rarely used. The fact that parties themselves choose to settle the terms and conditions of work through some process other than final offer selection, when it is an option available to them to choose freely, suggests to us that there is something wrong about the final offer selection that does not meet the needs in terms of an acceptable bargaining process.
The House has considered the issue of mandatory final offer selection before. It seems that these ideas are often brought forward with regard to a particular workplace dispute, but these ideas do not usually develop any momentum in the long run, especially if a negotiated settlement is achieved through using our existing bargaining system.
On the issue of final offer selection, the government's position has been consistent. We do not deny any employer or employee group the right to choose final offer selection if it feels it meets its needs, but I do not see an approach that should be mandated under the Canada Labour Code as desirable. Therefore, I do not support the bill.

Topic:   Private Members' Business
Subtopic:   Final Offer Arbitration in Respect of West Coast Ports Operations Act
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