Soumission

BACKGROUND

The Congress of Aboriginal Peoples is Canada's only national Aboriginal Organization advocating for the interests of, and actively pursuing much needed programs and services for Aboriginal people, regardless of Indian status, who live away from Indian Act reserves in urban, rural and remote areas. Since 1971, the Congress of Aboriginal Peoples¹ (CAP) has served as the national advocate for Aboriginal people across Canada - in cities, towns, villages and out on the land. In pursuit of this role, CAP undertakes a variety of activities, including:

• Serving as a full partner in the Aboriginal roundtable process with the Prime Minister, members of the Federal Cabinet and the Government of Canada, developing consensus on actions needed to improve Aboriginal health, housing, education, negotiations and relationships
• Managing programs dedicated to improving access to housing, childcare and healthcare for Aboriginal peoples
• Labour market development through the Aboriginal Human Resource Development Strategy
• Preparing Aboriginal people for the workplace -- and the workplace for Aboriginal people -- through our National Aboriginal Workplace Strategy

CAP continues to advocate the engagement of governments at all levels, in partnership with national Aboriginal organizations, to develop policies and program frameworks that are fair and just to all Aboriginal peoples, regardless of their status under the Indian Act, or their residence.

Commission on the Review of Federal Labour Standards:
Part III Canada Labour Code

When CAP received an invitation to participate in this review process, we were very pleased to make a presentation to represent the interests of our constituents, both from the viewpoint of our members as participants in the labour force as well as the perspective of those establishing or operating Aboriginal businesses. In fact, in 2004, CAP organized a Conference on Economic Development and just this year, our National Chief, Dwight Dorey co-authored a book on "Legal Aspects of Aboriginal Business Development."

Given our strong interests in labour force participation and economic development, CAP is fully aware of the diversity and varying needs of all stakeholders involved in this process and we appreciate the timeliness and extent of the review of Part III of the Code.

As we previously had a meeting with Mr. Neil Gavigan, Principal Director of the Commission, we will focus on our key issues and recommendations for this presentation. We fully support that the objective of the labour standards should provide support for improving the working conditions for all Canadians with modifications for the needs of different industries.

ISSUES and RECOMMEDATIONS

1. Diversity of Business Situations, especially Aboriginal businesses:
   Much has changed in business across Canada in the past 30 years and especially with Aboriginal businesses. While some operate in the millions of dollars, many are small to medium sized operations without access to Human Resources assistance (as is also the case for the larger Canadian business environment). Given that, there is a need for varying responses to providing information and education on the Act as well as to enforcement and to follow-up.

   Recommendation: There needs to be an easy to access system for workers and owners to get information on the Code. Where intervention is required, the initial response should be timely and relatively informal with the emphasis on education and resolving the situation. If compliance is not forthcoming, then a stronger and more formal step process needs to be instituted with more severe penalties attached. At this point, other related federal legislation, such as the Human Rights Legislation, may also come into play.

   Rationale: Business issues need to be handled quickly and people need to work together in a safe and harassment free environment. The faster the response, the easier it is to get issues resolved and for business owners and workers to understand their respective rights and obligations. A quick initial response (i.e. visit by Officer) with a focus on education and problem solving will keep businesses and employee relations going while respecting the rights of all parties. Getting involved in a bureaucratic and long drawn out process with unduly harsh awards with sole owners of small business being treated the same as a mega- corporation will not be helpful.

2. Maternity-related/Parental Leave/Adoption Related (Section 209.):
   Children are our future and we fully support the need to protect the interests of women and parents while off on Maternity/Paternity Leave with regards to, access to leave, pay and job security; however, as maternity leaves may now be extended up to 18 months or more, it leaves many small to medium sized business places with difficulties in balancing the need to re-align their businesses to respond to ever changing market situations while holding positions for people on maternity leave on hold. These firms are too small to have many "comparable positions". When concerns arise, the current only recourse is a legal one and that can put many small businesses out of operation.

   Recommendation: More flexibility and acknowledgement of the need for businesses to legitimately make internal changes in their business environment while maintaining the rights and support for the workers on maternity/parental leave. This may involve the use of complaints process where concerns can be set before an officer for review. Legal recourse can follow, if compliance or resolution not achieved.

   Consideration for longer "leave of absence" for adoptions also needs review and consideration as part of parental leave. This is very important in Aboriginal culture where family members may be needed unexpectedly (i.e. sudden death, Child Protection Services looking for safe home for extended family member, etc) take on a family adoptions and/or fostering of children in order to help them retain family and cultural ties, yet, they need time off work to help them adjust, to bond and to handle other concerns. It is important, however, that they not be in danger of losing their livelihoods, if requesting time off without pay. Not all situations can be predicted a month in advance to ask for leave in a timely manner or to face the prospect of "leave your job or you are fired".

   Recommendation: More flexibility and acknowledgement of the impact of a sudden or major health situation on a working person in the area of compassionate leave, especially regarding care of children in a temporary (i.e. fostering) and/or adoption situation needs to be taken into account in the Code. These personal situations also need to be balanced again their related impact on a business. Again, where can't be resolved internally, access to a officer for consultation for resolution and problem solving before more drastic measures imposed.
3. Compassionate Leave (Section 206.3) and 206.3 Family member:
   More consideration in this section needs to be given to the area of compassionate leave. Many urban Aboriginal people live far from their communities and, in some cases, need to return to a home community to make arrangements for the care of people who unexpectedly may need a change in their living situation yet may not within 26 weeks of dying. Elders are held in high regard within the Aboriginal community and currently people have to quit their jobs in order to respond to an emergency or family health situation, if the employer is not willing to grant leave without pay. More flexibility is needed for compassionate leave to handle the unexpected and/or need to change care arrangements.

   Additionally, as family membership is more inclusive and custom adoptions (not necessarily formal) are more common in Aboriginal cultures, employees should be able to designate important family members to employers in lieu of or in addition to the designate list of family members.

   Recommendation: More flexibility and acknowledgement of the changing needs of family care for the young, the elderly, the sick and dying needs to be taken into account in compassionate leave. This is particularly important for emergency situations.

   List of key family members may need to be reviewed or employees may be allowed to designate a short selected list of key family members.

   Consideration also needs to be given for Aboriginal employees to attend memoriam and ceremonies that are related to their bereavement practices (i.e. Potlatch); however, as these events are usually planned in advance, there is usually the ability to facilitate unpaid time off for attendance, if consideration for the importance of these events are highlighted in the Code.

   Bereavement Leave (Section 210):
   Standard time off for bereavement is too short for many Aboriginal peoples needing to get to home communities in rural and remote parts of Canada where it often takes 2-3 days to get there and more depending on the weather. Family is very important to Aboriginal peoples and funerals are important for families to be together.

   Recommendation: Similar to situation above, ability to pre-define with employees a list of important family relations in lieu of immediate family (for those not raised by parents, etc) and the ability to take time off with unpaid leave for travel for funerals without penalty of job loss. Appropriate safeguards for businesses, such as documentation of funeral, etc. should also be permitted for balance with these changes.

   National Aboriginal Day² should be recognized in the list as an optional statutory holiday for people of Aboriginal Ancestry or they should have the right to take it off as a day off without pay (regardless of length of employment).

   Minimum Wage: There needs to be more support for the working poor and many Aboriginal peoples are living close or under the poverty line. Simply increasing the minimum wage doesn't always help but access to the same benefits as those people on social assistance (i.e. coverage for medications (especially for Métis and non-status) and Legal Aid would be helpful strategies to retain people in the workplace than having them need to leave to go on social assistance when difficult family situations arise. Support for training and continuing education opportunities also need to be supported, especially for workers at the low incomes levels.

OVERALL RECOMMENDATIONS

1. Need for plain language throughout the Labour Code Part III with all information, FAQs, etc, on a website and in other accessible places. For references to Aboriginal Peoples, constitutional language (Section 35- Canada's Aboriginal peoples, including Indian, Métis and Inuit) should be used.
2. The process should having an informal, cost effective first step for immediate interventions with an emphasis on education, flexibility and problem-solving. If not able to be resolved, then stronger measures need to be in place for non-compliance. This is important for matters relating to sexual and racial harassment as well as for matters resulting from personal issues, such as need for unpaid leave and the like. In Section 248, delete (b.) and replace with Employment Insurance Officer (or other appropriate title). Have more opportunity for mutual consent in a transparent and fair process and cost effective process before legal and more expensive interventions are required.
3. There is a need for positive approaches (i.e. tax credits or incentives) for compliance as well as harsh penalties for those that don't after repeated interventions.

Thank you for your attention and I will be pleased to answer any questions on this submission.

Submitted by

Audrey Lawrence
September 14, 2005

Endnotes

¹ See www.abo-peoples.org

² See http://www.ainc-inac.gc.ca/nad/bgr_e.html