Submission

December 8, 2005

Federal Labour Standards Review
165 Hotel de Ville
Place du Portage, Phase II
Gatineau, Quebec
K1A 0J2     Via email info@fls-ntf.gc.ca

Dear Professor Harry Arthurs and the Advisory Panel:

On behalf of the membership of the Canadian Media Guild, I submit this brief for consideration in your review of Part III of the Canada Labour Code.

We recognize this brief is well past your deadline. Much of our time through the autumn was consumed by the lockout at the CBC. However, that lockout has given us some insight into some of the very issues that are before you in this review.

If you plan further consultations we would welcome the opportunity to meet with you at any time to discuss this brief or any other issues of interest in your review.

Sincerely,

Lise Lareau
President
Canadian Media Guild

BACKGROUND

The Canadian Media Guild (“CMG”) is a trade union that represents over 6000 media workers in Canada, including those who work at the Canadian Broadcasting Corporation (“CBC”), TVOntario, Reuters, Canadian Press/Broadcast News (“CP/BN”), the Aboriginal Peoples Television Network (“APTN”), Vision TV and Sun TV.

The CMG's members include a broad range of media workers such as television, radio, print and web journalists, photographers, broadcast technicians and information technology, sales and administrative staff.

The CMG has a long bargaining history both in the public and private media and broadcasting sector in Canada. The CMG's bargaining unit at CP/BN has its roots in 1949, when employees first formed what was then known as the Canadian Wire Service Guild (”CWSG”). The CMG currently represents about 400 employees at CP/BN in a bargaining unit that was certified in 1975. The CMG has represented employees at the CBC since 1953, in a bargaining unit that has grown over the years, as more and more CBC employees chose to join the CMG. In 2004, the CMG was certified to represent almost all non-managerial CBC employees across the country, excluding Quebec and Moncton, New Brunswick, in a unit that now numbers some 5500 employees.

Due to the fact that they work in the broadcasting industry or at newswire services, most of the CMG's members are governed by the Canada Labour Code. Accordingly, the current review of Part III is of particular interest to the CMG and its members as it will impact on the way that they work and the protection that they are afforded from their employers. Based on the CMG's experience representing its members, it is in a unique position to comment on the needs of workers at media employers under federal jurisdiction with respect to Part III of the Code.

The number of workers covered by federal standards may be greater than it would appear. Given the ongoing integration of print, new media, television and radio, federal legislation can affect those who work in all aspects of the media. For example, the Guild has recently been certified to represent employees at SunTV. SunTV is owned by Quebecor, which also owns the Toronto Sun Newspaper. Newspaper journalists working for the Toronto Sun newspaper, under provincial labour jurisdiction, may soon appear on air at SunTV - where federal standards apply. We believe that the Canada Labour Code should set the highest standard for how employees are treated in Canada.

SUMMARY

In preparation for our own submissions, we paid particular attention to the submissions already published by the Canadian Labour Congress, the Syndicat des communications de Radio-Canada (“SCRC”), as well as those made by FETCO (Federally Regulated Employers - Transportation and Communications). In general, the CMG endorses the submissions made by the CLC and SCRC, as they accurately reflect some of the challenges faced by workers today, in particular those workers who are made more vulnerable due to their precarious employment situations.

The CMG finds many of the submissions made by FETCO at odds with today's reality. While FETCO suggests that Part III work standards should be loosened in their content and application, we see a need for increased worker protection that would be applied to all workers, regardless of the nature of their employment or whether or not they are covered by a collective agreement.

The CMG's recommendations are summarized as follows:

• The language used in the Code should be modernized in order to be clear with respect to what work falls under the jurisdiction of the Code;
• There should be a clear definition of “employee” in Part III of the Code;
• The labour standards set out in Part III of the Code should apply universally to protect all employees working in the federal sector;
• Part III of the Code should provide the right to negotiate flexible work arrangements in order to better address growing work life balance issues, without compromising maximum hours of work standards;
• Sections 247.1, 247.2, 247.3 and 247.4 should be revised to address all forms of workplace harassment, including workplace bullying or personal harassment;
• The Group Termination provisions should be revised to ensure that they are applied in the manner intended and that their objectives are met;
• There should be consequences for employers who refuse to co-operate in the joint-planning committee procedure with the union, or who otherwise ignore or frustrate the group-termination provisions under the Code.
• Prearranged annual vacation or other special leaves, including paternity and maternity leaves, should be specifically protected in the event of a strike or lockout.

ISSUES & RECOMMENDATIONS

The Code needs to be modernized in order to clarify who is in the federal sector. We need to examine those employers who are currently within the federal sector and update the language used to describe them in the Code so that current terms are used. For example, there should be explicit reference to the Internet and new media operations.

This is not a theoretical problem. Reuters has already used as a preliminary argument during one of our disputes that its employees may not properly fall within the description of telecommunications or broadcasting under the Code.

1. Definition of “Employee”

The CMG recommends that a definition of employee be included in Part III of the Code. As in Part I of the Code, “employee” should be defined to include the notion of a dependent contractor. “Employee” should be given the broadest definition in order to extend the protection of minimum labour standards to all those who work in an employment relationship within the federal jurisdiction.

The definition of “employee” should include those who are nominally self-employed, provided that they are in fact working in an employer-employee relationship with a particular employer. The CMG has seen certain employers abuse individual employees by hiring them as “independent contractors” in order to exclude them from the collective agreement and the Code, even though their working relationship is clearly one of an employee-employer nature. Where a freelancer is working in an employment relationship with a particular company, he or she should be entitled to the protection of the Code with respect to that relationship.

2. Vulnerable or Precarious Employment

There are a growing number of people working in vulnerable, precarious or non-standard employment situations. These employees are in need of greater protection under the Code, not less. Part III of the Code should be universal in its application to employees who work in the federal jurisdiction.

The CMG disagrees with FETCO's suggestion that certain classes of employees are not in need of minimum labour standards under the Code and that the application of Part III should be made more flexible. The CMG's experience is that everyone who is working in an employment relationship is in need of basic minimum work standards, notwithstanding their education, their degree of skill or the nature of their work. It seems counter intuitive to suggest that by enhancing one's educational qualifications and credentials, one will lose the basic protections of the Code which are provided to other workers. Simply because someone has a high level of education does not mean they aren't in need of the same protections.

The CMG has seen evidence of the need for minimum labour standards first hand with freelancers in the broadcast industry. The CMG is in a unique position to speak to labour law issues affecting freelance employees as we are the only union that currently represents freelancers. We speak for as many as 800 who work for the CBC. In the media industry in general, there has been a significant increase in the use of so-called freelancers. However, despite the fact that such individuals are called freelancers, in many cases they are for all intents and purposes, employees. Their income may come from one or two employers at most. All media employees, including freelancers, may use new technologies that grant them more independence from the workplace, but that does not eliminate their need for protection under the Code. Nor does it fundamentally change the work relationship.

In many ways, freelancers are the ultimate disposable employees. These workers are often highly skilled and educated, yet frequently find themselves in a vulnerable position vis-a-vis their employers. They lack any job security. They are reluctant to push employers to apply any standards because they fear reprisals that will hurt their ability to obtain future work with these employers. For example, freelancers who work for the CBC are often reluctant to question onerous contract terms presented to them by the CBC because they are afraid it would jeopardize their chances of being hired in the future.

Canada is a relatively small country, with a limited number of media outlets. This makes freelancers more vulnerable.

3. New Media Workers

There is a myth surrounding new media workers and their “unique” employment relationship. For example, when the CMG applied for certification at TVOntario, the employer initially sought to have all those working on the new media side of the operations excluded from the bargaining unit. Part of TVO's objection was that employees working in new media had no community of interest with the rest of the bargaining unit. At one point in our bargaining history with the CBC, the Corporation also claimed there was no community of interest between employees working in new media and those who work in television and radio.

These arguments were again rooted in the mistaken belief that new media workers were not in need of any protection and that regular labour standards or collective agreements could not possibly meet their particular work needs. There was a general misperception that new media workers had some unique knowledge that allowed them to move from one lucrative contract to another. In other words, all new media workers were portrayed as some sort of Bill Gates type entrepreneurs. In fact, employees working in new media in the broadcast industry are doing the same type of work as their counterparts in television and radio, they are just doing it on a different platform. They still write sentences, they still tell stories using illustrations, audio or video just as others in the media do.

The internet has become an integral element of the media and workers have the same need for minimum labour standards as those who work in the more traditional print, radio or television. There is no reason to make the standards set out in Part III of the Code optional for high tech workers or others who work in new media.

4. Diversity & Vulnerability

The CLC has pointed to the problem of a concentration of visible minorities in precarious jobs. These concerns have been raised at workplaces where the CMG has members as well. At the CBC, for example, there are a high number of visible minorities employed in temporary positions or through special funding programs. The problem is that once the subsidy disappears so does their job. Despite employment equity and human rights legislation, most of employers where CMG members work continue to fail to meet their employment equity objectives.

In its 1999 submission to the Canadian Human Rights Act Review panel, the CLC proposed the establishment of Human Rights Workplace Committees on the model of health and safety committees required pursuant to Part II of the Code. The CLC has suggested that such committees would be required to monitor human rights compliance and act as a resource to ensure that employees understand how to bring complaints. The CMG believes that such committees could serve a needed role in enforcing existing employment equity and human rights legislation, and would support the inclusion of such an initiative in Part III of the Code.

The CLC has also recommended that Part III of the Code include provisions relating to workplace harassment, including a prohibition on racial harassment. The CMG agrees with this recommendation. Workplace harassment of any form is unacceptable and should be prohibited under Part III of the Code. Employers should be required to have a harassment policy that addresses all forms of harassment, similar to what is currently required with respect to sexual harassment pursuant to section 247.4 of the Code. The CMG recommends that sections 247.1, 247.2, 247.3 and 247.4 be revised to address all forms of workplace harassment, including workplace bullying or psychological harassment discussed in detail below.

5. Collective Agreements should not be exempt from labour standards

FETCO has made the suggestion that collective agreements should be exempt from labour standards under the Code. This is based on the myth that unions have bargaining power equal to the employers with whom they bargain. As the SCRC has rightly pointed out in its submissions, this is not the case at the CBC.

CMG's members were recently subjected to an eight-week lockout by the CBC. The CBC was in a unique position to impose the lockout to force its position at the bargaining table: it is a public broadcaster, financed by the federal government. As a public broadcaster, the CBC continued to receive funding throughout the lockout, without the burden of having to pay wages to some 5500 employees or any of the other fiscal pressures a private broadcaster would have faced under similar circumstances. As such, the CBC had little incentive to settle, and therefore the relationship was not equal either before or after the lockout. The CMG lockout marked the third time in the last six years that the CBC has locked out employees in order to further its bargaining objectives. It should be noted that these lockouts were with three different bargaining units and unions.

We would also like to note that the ability of employers to hire replacement workers, as permitted under Part I of the Code, contributes to the power imbalance between unions and all employers in the federal sector.

Contrary to the position of FETCO, the CMG is of the view that basic labour standards should not be subject to the vagaries of collective bargaining. Unions should not have to bargain from ground zero in order to establish basic minimum standards for their members.

Exempting collective agreements from Part III labour standards would increase the frequency of labour disputes. Unions already fight off demands for concessions at the bargaining table and strive to improve wages and working conditions for their members. Adding the possibility of undercutting even basic minimum labour standards to this environment is a prescription for conflict.

FETCO states that there is a need for greater flexibility for employers to determine what works best for their operations. In fact, there already exists a great deal of flexibility under the Code. One example is the provision regarding the averaging of hours of work. Without legislated labour standards, employers would bargain to minimize labour standards and maximize flexibility in their operations, to the detriment of the affected workers.

6. Need to Accommodate Evolving Family Structures & Work-Life Balance Issues

As has been pointed out in many submissions to date, as well as in the Interim Report on the Federal Labour Standards Review, there is a growing tension between work demands and family life.

Since Part III of the Code originally was drafted forty years ago, society has changed and new family structures have evolved. For example, a majority of households now see both spouses working outside of the home. There are more single parent households and a growing number of workers must cope with the competing demands of children and aging parents. Workload on the job has also increased and changed. 1

We should note that the demands of 24-hour media operations have always meant that non-traditional work hours are a factor. However, as is the case in many other sectors, increasing workloads have become a growing problem in the media. New technology has forced employees to do more work outside of the workplace and outside of or in addition to their regular work hours. Employers, either directly or indirectly, pressure employees to do more work after they leave the office and expect this work to be done with no additional compensation. Employees now carry Blackberries, cell phones and check email from home. Downsizing has imposed an increased workload for those who have kept their jobs. Employers continue to focus on minimizing their labour costs, with fewer and fewer people doing more work. These increased demands make balancing work-life issues more difficult.

The CMG has successfully negotiated flexible work arrangements through the collective bargaining process with most of its employers. For example, it has negotiated alternative work arrangements with Canadian Press / Broadcast News, including reduced work week, compressed work week and job sharing provisions. Applications for these arrangements can be made by employees for any reason. The parties have developed rules to govern these arrangements that allow the employee to maintain seniority and other benefits, prorated to the actual time worked by the employee. The provisions also give the employee the right to return to full time employment in his or her former job, or to another existing job in the same classification and location.

The CMG recommends that Part III of the Code be revised to increase worker flexibility in order to accommodate these often competing demands, and assist workers in achieving a more realistic work-life balance. This flexibility should not compromise existing labour standards, such as maximum hours of work. If the government fails to legislate in this area, we risk an increase in burnt-out workers, resulting in increased expenses in the form of lost productivity and absences due to stress-related sick leaves.

7. Bullying / Personal Harassment

The CMG recommends that Part III of the Code be amended to include provisions prohibiting bullying or personal harassment, also known as psychological harassment, and that sections 247.1, 247.2, 247.3 and 247.4 be revised to address this form of harassment. The Code should also deem such provisions to be a part of every collective agreement subject to the Code. We note that the CLC has endorsed the inclusion of such provisions in Part III of the Code, together with a “speedy and objective” complaint and investigative process, and we support the CLC's recommendations on this matter.

Collective Agreement Solutions

The CMG has seen bullying of its members in the workplace, and while it has had some success in negotiating anti-bullying language through the collective bargaining process, in some workplaces there are no clear remedies for employees who are subject to this type of harassment.

The CMG's recently negotiated collective agreement at the CBC contains clear language against bullying or personal harassment:

1.1

The Corporation and the Union recognize the dignity and worth of every individual and are committed to a climate of understanding and mutual respect in the workplace.

1.2

The parties agree that they will not tolerate, ignore or condone bullying, improper comments, conduct, actions or gestures directed towards a specific individual that would be reasonably considered to create an intimidating, humiliating, hostile or offensive work environment.

Improper comments, conduct, actions or gestures:

1. include: profanity and abusive language; verbal and physical threats or assault; intimidation; taunting or ostracizing; rude or inappropriate jokes or innuendo; overly aggressive, embarrassing, humiliating or demeaning behaviour; and malicious gestures or actions;
2. must not be a trivial occurrence that could reasonably be expected to take place in a work environment; and
3. do not include the good faith exercise of supervisory or management duties or responsibilities and/or do not serve any other legitimate workplace purpose.

The CMG believes that all employees should be entitled to work with dignity and respect, free from any form of harassment, including personal harassment or bullying, However, not all unionized employers will agree to contract terms that address this matter and many employees are not represented by unions. It is essential that all employees, whether they are represented by a union or not, have a statutory remedy where employers fail to ensure that this right is respected.

Quebec Legislation

In June 2004, the Quebec government implemented changes to its Labour Standards Act to protect workers from psychological harassment. The provisions are as follows:

Section 81.18:

For the purposes of this Act, “psychological harassment” means any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee's dignity or psychological or physical integrity and that results in a harmful work environment for the employee.

A single serious incidence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment.

Section 81.19

Every employee has a right to a work environment free from psychological harassment. Employers must take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, to put a stop to it.

(An Act Respecting Labour Standards, 2002, c. 80, s. 47)

The Quebec legislation also deems these provisions to be a part of every collective agreement.

8. Division IX - Group Termination

Part III of the Code contains provisions that are aimed at mitigating the impact of layoffs and assisting workers in obtaining alternative employment in the event of group layoffs at their workplace. In the media industry, layoffs tend not to be huge and dramatic, but spread over a longer period of time. Nevertheless, it is important that the objectives of the group termination provisions are met where it is clear that a significant number of employees are ultimately going to face layoffs. Unions need the ability to meet with employers in order to understand the layoff plan and to jointly attempt to minimize the impact on affected employees.

Section 212 - Determining when Notice is Required

A simple way for employers to avoid the application of the group termination provisions is by engaging in rolling or staggered layoffs. An employer can deliberately time layoffs so that they do not number more than fifty in any four-week period, even though the total number of layoffs will in fact exceed fifty. The CMG has experienced this at the CBC time and time again, where the total number of layoffs in a relatively brief period has exceeded fifty, but the timing was such that the application of the group termination provision of the code was avoided.

The CMG recommends that the four-week period referred to in section 212 of the Code be extended to a twelve-week period in order to better capture the intent of the group termination provisions in situations where it is clear that mass layoffs will take place. We further recommend that the provision be triggered when 100 or more employees or positions are terminated within a six month period. These changes would prevent employers from avoiding the provisions by implementing rolling layoffs.

We further recommend that section 212 be amended to refer to “positions” rather than simply to employees. The mix of full-time and casual or other non-permanent employees in many workplaces, plus the ability to include other unfilled positions, makes it possible to impose mass layoffs without triggering the existing provisions of the Code.

Section 228 - Waivers

The CBC routinely requests and is granted exemptions from the group termination provisions under the Code where they would otherwise apply. The CMG has in the past opposed CBC's exemption requests. On one occasion we sought and were granted a meeting with a Ministry official to explain our opposition. In that case, the Ministry granted a waiver without even notifying the union!

The waiver provisions of the Code, as set out at section 228, do not require that the employees and/or union affected be given notice of a waiver request, nor do they require the Ministry to consult with the union prior to making a decision on the request. Nor do they require any notice to the union of the ultimate decision. This is clearly inequitable.

We submit that the provisions of the Code are clearly intended to mitigate the impact of large-scale layoffs. Waivers undermine the objectives of the Code and therefore waivers should not be granted. If it is decided that waivers should continue, they should be granted only under truly exceptional circumstances. In the event waivers are granted, we submit that 228 be amended to provide for:

• mandatory notice to the union and employees of the request for the waiver and reasons for the request
• mandatory consultation with the union and an opportunity for the union to make submissions to the Ministry relating to the request
• mandatory notice to the union by the Ministry of any decision made with respect to the employer's request for the waiver, together with the reasons for the decision
• an appeal process where the Ministry has erred in law or fact in issuing the waiver

Enforcement

The existing provisions do not offer sufficient protection for employees. Employers planning to implement group terminations should be compelled to meet with the union and fully disclose all information required to engage in a comprehensive review in order to meet the objectives of section 221 of the Code:

1. eliminate the necessity for the termination of employment; or
2. minimize the impact of the termination of employment on the redundant employees and to assist those employees in obtaining other employment;

The CMG recommends that there should be consequences for employers who refuse to co-operate in the joint-planning committee procedure with the union, or who otherwise ignore or frustrate the group-termination provisions under the Code. We should examine the possibility of imposing fines or other sanctions, such as staying the layoffs, against employers who fail to comply with the group-termination provisions of the Code.

9. Vacation or other leave during a lockout or strike

The recent lockout at the CBC highlighted a possible gap in the Code with respect to protecting prearranged leaves of absence during a strike or lockout. While it appears such leaves are a benefit protected under the Code, the CBC argued that the Code's general protection of benefits did not apply to leaves of absence and took the position that it would not honour any such leaves, even where they had been prearranged prior to the lockout. The CMG also had to fight to protect self-funded deferred leaves during the lockout, even though these leaves were clearly planned far in advance by employees and were in fact funded by the employees themselves, not the CBC.

In order to prevent future conflicts over this matter, the CMG recommends that such leaves should be specifically protected in Part III of the Code in the event of a work stoppage. The Ontario Employment Standards Act, 2000 has already been amended to protect vacations in the event of a labour dispute:

Payment during labour dispute

37. (1) If the employer has scheduled vacation for an employee and subsequently the employee goes on strike or is locked out during a time for which the vacation had been scheduled, the employer shall pay to the employee the vacation pay that would have been paid to him or her with respect to that vacation. 2000, c. 41, s. 37 (1).

Cancellation

(2) Subsection (1) applies despite any purported cancellation of the vacation. 2000, c. 41, s. 37 (2).

The CMG recommends that the Code include clear language to protect all types of leave or other earned benefits during a work stoppage, including annual leave, special leave, self-funded deferred leave, parental or maternity leave, including any employer top-up.

CONCLUSION

We recognize we are very late in submitting this brief. As you are aware, our focus for much of the summer and fall was on the CBC lockout. However, that lockout has given us some insight into some of the very issues that are before you in this review.

If you plan further consultations we would welcome the opportunity to meet with you at any time to discuss this brief or any other issues of interest in your review.