Examen des normes du travail fédérales canadiennes - Soumission : United Food and Commercial Workers International Union

Thank you for inviting UFCW Canada to make a presentation before the Federal Labour Standards Review Commission.

UFCW Canada is delighted that a review of the Canada Labour Code (Part III) (the "Code") is underway and we encourage the Commission to principally focus on the concerns of working persons during your deliberations.

Many UFCW Canada members are workers in precarious employment arrangements and strong, effective labour standards legislation is vital to their well-being. We believe that federal labour standards can be strengthened in many areas thus having real and positive impact for all workers, not just UFCW members.

Our union is a union of diversity. We have the most ethnically and gender diverse trade union in North America. It is important to UFCW Canada that efforts are made under the Code to strengthen human rights protections for all workers so that no one is subject to discrimination and that all workers have the right to organize and bargain collectively.

We thank the Commission in advance for the countless hours that will be necessary in a review of such a significant piece of legislation and we wish you much success.

Brian B. McArthur M.A.

Brian McArthur is the Special Assistant to the National Director and National Collective Bargaining Coordinator (concurrent positions) for the United Food and Commercial Workers International Union (UFCW Canada).

Brian holds a Master's Degree in Law and Employment Relations from the University of Leicester in Great Britain and a Bachelor's Degree in Political Science and Economics from Laurentian University in Canada. In addition, Brian has professional certificates from Harvard Law School in Teaching Negotiations in the Organization and in Intensive Mediation from the Osgoode Hall law School at York University.

Brian began his career as a part-time produce clerk at Dominion Stores in Sault Ste. Marie, Ontario. While in university he worked as a summer student for Mathews, Dinsdale and Clark in Toronto where he conducted research for The Employment Standards Handbook. Upon completing his studies in 1988, Brian took a position with the Ontario Ministry of Labour as an Employment Standards Officer in Toronto. In 1989, Brian was hired as an International Representative for the Retail, Wholesale and Department Store Union (RWDSU) in Northern Ontario until 2003 when he took on his current assignment with UFCW Canada.

In 1995, Brian was selected as one of three (3) young foreign labour leaders to be chosen by the Japan Institute of labour (JIL) as a special guest of the Japanese government. During his time in Japan, Brian was invited to speak before senior officials of the Japan Trade Union Federation (RENGO), The Japan Federation of Commercial Workers Unions (JUC) and The Japan Federation of Employers Association (NIKKERIN). He has been a guest speaker of The Canadian Institute and has made numerous presentations before Boards, Tribunals and Commissions. In 1999, Brian was appointed by Human Resource Development Canada (HRDC) as an Employment Insurance (EI) Referee representing workers. Brian was featured on the Canadian Broadcasting (the "CBC") program Venture in connection with his activities during the Southern California grocery workers strike/lock-out. Brian is a Vice-President of the Commerce Section of Union Network International (UNI). He has been a guest speaker at the University of Leicester's Law and Employment Relations program where he was a graduate student. Brian's academic work on the law of statutory union recognition has been published in the International Journal of Comparative Labour Law and Industrial Relations (IJCLLIR). He has also been a guest speaker of the Conference Board of Canada. He is a member of the International Industrial Relations Association (IIRA) and the Law Society of Leicester University.

Brian is married to wife Margaret, a nurse educator, and they have one daughter, Jillian, age 16.

Nancy A. Quiring

Nancy Quiring is the Assistant to the National Director for the Western Provinces for the United Food and Commercial Workers International Union (UFCW Canada).

Nancy was raised in a small Mennonite village in southern Manitoba. She had a traditional Mennonite upbringing where a "woman's place" was almost without exception in the home raising children and looking after her man.

Nancy's first Union experience was a part-time position at Shopper's Drug Mart in Winnipeg, Manitoba. It turns out this Shoppers Drug Mart location was the only unionized location in Manitoba. Only a few weeks later Nancy found herself on the picket line. Much to the dismay of her family and friends she walked that picket line every day. The strike lasted ten weeks and taught Nancy that women were actually able to disagree and speak up for what they believed in! This was radical thinking and it fascinated her. After the strike Nancy became a Shop Steward.

Later that same year UFCW Local 832 was engaged in a bitter strike against Westfair Foods. Nancy was asked to assist on the picket line for two weeks. The strike lasted 125 days. Nancy never returned to Shoppers Drug Mart. She was hired by UFCW Local 832 in August of 1987 and worked there as a servicing representative and later as Director of Servicing. In 2003, Nancy was offered a position with the National Office of UFCW Canada.

Nancy is responsible for coordinating UFCW national union representatives in her region and assists Local Unions as needed with Negotiations, Local elections, Grievance Appeals, etc.

Nancy's base of operation is Calgary, but her position keeps her traveling extensively throughout Western Canada.

Who is UFCW Canada?

Representing more than 230,000 workers from St. John's to Victoria, UFCW Canada is one of Canada's largest and most respected unions.

As an active participant in the Canadian Labour Congress and all Provincial Federations of Labour, one in ten of all CLC-affiliated union members belong to UFCW Canada.

One of the most progressive and fastest growing unions in North America, UFCW Canada members can be found working in virtually every type of workplace and providing just about any type of service you can imagine.

Membership

Strength in Diversity

From the harvest to the dinner table, from the oceans and forests to the urban core, UFCW Canada members work in such a wide range of sectors and workplaces they are always nearby. Wherever people work in retail, manufacturing or service, UFCW Canada members can be found.

The following is a list of some of the sectors in which UFCW Canada members work:

National and Local Structure

With UFCW Canada's large and diverse membership spread across the country, many levels of administrative service along with democratically balanced boards and councils with a high percentage of rank-and-file membership participation to service the membership is required.

In any diagram of UFCW Canada's national structure the members are uppermost - the ultimate decision making power of our union rests with the membership. Each member belongs to a Local Union, which is part of our national organization. Local unions may also belong to intermediate chartered bodies such as a provincial or industrial council and every local in Canada belongs to our Canadian Council.

The officers of each local union are elected by the members to run the affairs of the local and to provide members with the services and benefits to which they may be entitled. The President of a local union is its Chief Executive Officer; in addition, there is a Secretary-Treasurer, a Recorder, and three or more Vice-Presidents. In some Locals, the President and other officers may be rank-and-file members; while in others the jobs are full-time, salaried positions.

UFCW Canada local unions vary greatly in size. A single-workplace Local might have as few as six members, whereas the largest UFCW local union, Local 175/633 has more than 45,000 members and a province –wide jurisdiction encompassing hundreds of workplaces. Most larger local unions in UFCW Canada have their own full-time union representatives as well as administrative staff, while many smaller locals obtain service through an industrial council, a servicing agreement with a larger local, or directly from the National Office staff of the union.

The Canadian Council of UFCW Canada provides an added voice for political action in Canada, as well as additional services uniquely designed for Canadian members. The Council holds a constitutional convention every three years, which elects a President, Secretary-Treasurer, Recorder, and 23 Vice-Presidents (the Executive Board) as well as 26 Council members. The Council has a number of Advisory committees and also elects the Canadian Vice-Presidents and the UFCW Canada National Director.

For more information on UFCW Canada, see our website at:
http://www.ufcw.ca/index.cgi

Executive Summary

Please note: We have not replied to each and every section of the Consultation paper Modernizing Federal Labour Standards and, therefore, the sequence of sections contained herein is not always in consecutive order.

Part I - Setting the Bar for Federal Labour Standards

As outlined in the government's Consultation Paper,¹ the historical, overarching goal of federal labour standards has been "to protect employees who are in a weak bargaining position". The acknowledgement by government that employees need labour standards protection is as true today's as it was 45 years ago when the Canada Labour Code (Part III)² (the "Code') was first enacted.³ The rise of "non-standard" or "precarious" forms of employment, globalization and a decline in union density all contribute to a decline in individual bargaining strength. As a result, workers need labour standards that reflect their vulnerability in the Canadian and International labour markets. As long as there is a power imbalance between workers and employers, we will need minimum labour standards to equalize bargaining strength. Those who are employed by the largest non-union corporations on earth, such as Wal-Mart, have no bargaining strength other than their own human capital and what the law provides. Consequently, they are open to exploitation and strong law is therefore needed to prevent that from happening.

The decline in the scale of collective bargaining and the general welfare of un-organized workers in the last 25 years supports the proposition that labour standards is more important now than at any other time since its inception. Labour standards legislation is the center piece of a wide array of law governing the employment relationship and it must be a major focus of government in the future because it is so heavily relied upon by those who do not benefit from collective arrangements. The rapid Wal-Martinization of the Canadian economy necessitates that immediate action be taken to revamp labour standards and collective bargaining rights in this country for the protection of vulnerable workers. While considerations generated through effective collective bargaining and community standards have produced a template for the introduction of new labour standards, often government is slow to respond to these changes in a timely way. The federal government, as a leader in the area of progressive labour law reform, must take the initiative by setting national labour standards that are progressive, effective and timely. Being in a position to shape truly "national" labour standards agenda, the federal government has a leadership role to play by setting an example for the Provinces in this critical area of labour law reform. Thus, the Code operates as a template for Provincial governments of all stripes to follow. To that end, the federal government has an obligation to enact law that reflects the pulse of the nation and, as important, to ensure that universally acknowledged trends in global labour standards are recognized by Canadian employers.

I.1 - What should be the overall objective of federal labour standards?

The objective of federal labour standards should be to continue with the intellectual tradition of enacting legislation that reflects normative labour standards in the employment relations field and nothing more. Federal labour standards are not a substitute for free and open collective bargaining! Canada's obligation to promote International Labour Organization (the "ILO") standards has existed for some time but in 1998, the Federal government, in the context of the ILO's Fundamental Principals and Rights at Work⁴, solemnly reaffirmed its support of those principals including it's oath to "promote" collective bargaining with a view towards it's benefits being enjoyed by the largest number of Canadians. To recommend that employment standards become something that might "improve the working conditions of workers in general"⁵ is inconsistent with Canada's stated preference that employment relations should be conducted "collectively" through organizations of workers own choosing. Recently, the Supreme Court of Canada in Dunmore⁶ has affirmed the principal that Canadians have the right to freely choose a collective representative and that government may not interfere with that right nor restrict it in any way⁷. Dunmore was concerned with the plight of Ontario agricultural workers being denied the right of association under Ontario's Labour Relations Act, 1995 (the "LRA"). In their decision, the Justices affirmed that it was a violation of the workers Charter rights to be excluded from the right to effectively organize under the LRA because:⁸

"The freedom of association of agricultural workers under the LRA can be characterized as a hollow right because it amounts to no more than the freedom to suffer serious adverse legal and economic consequences."

We contend that labour standards must include protection for workers when they exercise the right to join a trade union. Freedom of association is a cornerstone of the Canadian Charter of Rights and Freedoms and is a universally recognized human right. Freedom of association must be thought of in a similar way as other fundamental freedoms such as the right to be free from discrimination based on age, sex, marital status, handicap, ethnicity, gender and sexual orientation. To be victimized, coerced or discriminated against because of exercising the right of association is as wrong as being victimized, coerced or discriminated against because of a person's race, gender or handicap.

Yet systematic discrimination based on association is allowed to flourish in this country. The workers from Wal-Mart in Jonquiere, Quebec know only too well how it feels to be a victim of discrimination. More than 100 workers at that store had their jobs terminated because they had the courage to join the United Food and Commercial Workers Union (UFCW Canada). They joined the union because they wanted a say in how they would be treated while at work. They wanted to exercise their right to collectively bargain and freely associate. With corporate tyrants like Wal-Mart on the loose, and the fact that they are rapidly becoming the business model to follow, UFCW Canada believes that the Code must be amended to provide strong remedial protections for workers who have exercised their fundamental right of association but who have been victimized.

UFCW Canada would agree that labour standards improves the conditions of all workers in general but the notion that labour standards could somehow be a substitute for collective bargaining is misconceived and, again, inconsistent with Canada's official policy on the subject. Only through collective bargaining do workers have the capacity to increase their negotiating power as, in the vast majority of cases, individual bargaining is simply a one sided affair. The federal government has acknowledged this and there is no legitimate rational to suggest that Canadian workers would be better off with the government acting as a surrogate bargaining agent. Unfortunately, some in the business community have advocated that labour standards has progressed to the point that it has become the basis for a contract of employment with more detailed considerations being the subject of minor negotiations between the worker and employer. In our view, such thinking is motivated by a desire to make out labour standards as a substitute for collective bargaining and is consistent with the U.S. human resource "union-free" school of thought. We can see no reason how individual workers might possibly benefit from this type of arrangement and we strongly discourage the Commission from adopting such thinking.

It seems obvious to UFCW Canada that federal labour standards must not be simply limited to what currently exist in terms of entitlements and obligations. We acknowledge the fact that we are living and working a global economy and that flexible work practices are needed for Canadian businesses to be able to properly compete. However, flexibility for competitive reasons does not mean that workers should have to go backwards. Workers, who have high standards of income, including safe and secure jobs, are some of the most productive employees on the planet. As the Canadian labour Congress (the "CLC") pointed out in its submission on Labour Standards for the 21st Century:

"There are some very tangible and direct links from high standards in the workplace to higher productivity... A host of studies have shown that the path to higher productivity lies in the effective combination of technologies, training, and changes in the organization of work to maximize the use of skills"⁹

Adopting "new and innovative" standards is a necessary function of the federal government and they would be delinquent in their responsibility towards Canadian employers and workers alike if such measures were not brought to the forefront of the policy agenda. We would say, however, that employment relations practices that negate any minimal standard that has, by convention, been established as "minimal entitlements" under both statutory and common law doctrines would be unacceptable. Therefore, we oppose any suggestion that labour standards be made more flexible either by negating those standards altogether or by having the ability to combine standards if the net effect is a greater right or benefit. We need only to point out the debacle that occurred in Ontario when the Harris government amended The Employment Standards Act (the "ESA") section on public holidays. Under the guise that more employees would be eligible for public holiday pay under the ESA, the legislation was amended so that the three (3) month qualifying period was eliminated. However, the calculation methodology was substantially changed in that employee's holiday pay was now calculated by dividing the total gross earnings (excluding overtime pay) four the four (4) work weeks prior to the public holiday divided by twenty (20). Presumably, the number 20 was based on a full time work week of forty (40) hours (i.e. 40 hrs x 5 days = 20 shifts per month). The resulting effect of this change was that part–time employees received approximately one-half a day's pay as opposed to the former method that produced an average day's wages over the four (4) work weeks prior to the holiday. So yes, it was true that more workers qualified for public holiday pay, but the reality was that the vast majority of workers received less of a "standard" that what they have been previously paid. This is totally unacceptable!

I.2 - What should be the relationship between labour Standards and Conditions of Work established by Collective Agreements?

Labour standards are not a substitute for freely negotiated terms and conditions under a collective agreement. While it is argued that labour standards should reflect the normative provisions found in the vast majority of collective agreements, we reject the notion that it's appropriate to enact law mirroring exactly that which is obtained through collective bargaining. If that was the case, then why would it not be appropriate to also reduce standards when the situation warrants it? Certain industries (Airlines, Forestry, Fishing, etc...) have experienced great change in recent years and have often had to survive through contract concessions extracted from their workers, et al. Would it be acceptable and, indeed, appropriate to do the same and reduce the corresponding labour standards by a similar level? We think not.

The idea that the state could play a role as a substitute bargaining agent for working people is ill advised policy. Workers and their trade unions want the ability to craft their own solutions to challenges they face in the workplace. This does not mean that we condone a laissez-faire approach to employment relations. To the contrary, there is a definite place for government regulation in this area of employment law but it must be limited and designed to act a minimum floor rather than a maximum ceiling. Labour standards are a starting point for discussions and a useful reference for both parties (employers and trade unions) in the event of impasse on substantive issues. Since the vast majority of collective agreements provide for greater rights and benefits than what is contained in the Code, legislative minimum labour standards are nonetheless still very important in terms of setting a floor underpinning collective bargaining agreements. Moreover, due to competitive pressures, it is often difficult for unions to bargain improved rights beyond the minimums contained in legislation if the floor is set too low.¹⁰ This is abundantly apparent in the retail sector of the economy where due to falling union density and aggressive anti-union policies¹¹ it is very difficult to bargain greater rights and benefits than what the Code calls for.

Employment standards should be deemed to form a part of every collective agreement unless a greater right or benefit exists under the collective agreement in which case the greater right or benefit should prevail. Moreover, unionized employees should have the right to pursue employment standards claims under both the provisions of the collective agreement or through the appeal system currently in effect for resolving these disputes. We are not saying that employees have the right to take up concurrent claims in both private arbitration and in the public domain: rather, what we are saying is that the union should have the right to pursue such claims in the public forum if it is more cost-effective and if the subject matter might produce a decision with substantive precedent that the public might benefit from.

I.3 - How closely should federal labour standards reflect international labour standards, standards in other advanced economies, standards in the provinces and territories and "best practices" adopted by leading Canadian employers?

The focus on the part of government should be to follow the ILO's definition of acceptable labour standards¹² along with recognizing standards universally applied in collective agreements and other advanced economic jurisdictions. It is the position of UFCW Canada that there are other countries with similar industrialized / informationalized economies that have set the bar significantly higher than Canada. For example, in Germany, vacation with pay leave is up to and including thirty-one (31) days per year. I bring this to you attention only as a minor illustration of the cleavages between some of our Canadian standards and that of our European counterparts. It is beyond the scope of this short brief to offer a comparative analysis of these differences but, needless to say, in many European countries, the standards are often much better than here in Canada. To that end, labour standards that have been adopted by countries that do not meet or exceed the Canadian level would, in our opinion, is unacceptable comparators.

UFCW Canada will not endorse policy that has the effect of reducing the minimal standards that are currently in effect under the Code. Thus, where there are jurisdictions having inferior levels of labour standards, we would reject those as being appropriate in the Canadian context. In our view, there is no economic justification to reduce or rescind labour standards in this country because some other jurisdiction (whose domestic situation may be quite different than ours) has developed a set of standards that either collectively, or individually, may be inferior to our own.

Canadians have struggled for decades to achieve the modest gains in labour standards that are now universally applied. Like Medicare, labour standards are part of the Canadian identity and they are a social trust that should never be broken. Remember, we're speaking about "minimal" standards here and not some greater right or benefit that might be revisited in the future because of the economic situation of an enterprise¹³. A strong floor of rights assists all employers by having a common set of universal standards to work from while, at the same time, provides a competitive labour standards environment.

UFCW Canada would welcome any employer suggestion respecting best practices that make sense for both workers and the company. We believe that employers often have legitimate reasons for implementing progressive "best practices" that benefit both everyone. The government should always be prepared to adopt standards that are universally recognized provided that such standards do not compromise the principals underpinning existing law.

I.4 - Should different labour standards apply to specific industries, occupations or sizes of businesses? If so, what should be these standards and how should they apply?

There is little doubt that there are certain industries and occupations that should be treated as exceptions to the general rule that labour standards must be universal. Of course, certain industries like ports, and other continuous operations, should be entitled, for example, to substitute public holidays for other days or for averaging hours in trucking operations. However, we see no reason for special exemptions to exist that either modify or exempt labour standards for small business or for businesses that have less than a certain number of employees. It is inherently discriminatory for small or medium sized firms to receive a competitive edge of large firms and vice versa. The employment standards package that we have today is a contiguous package of minimal entitlements that every enterprise should be able to easily cope with notwithstanding their size. Small business does not need a competitive advantage over other types of enterprises at the expense of providing less than, for example, the prevailing minimum wage. A small firm threshold for exclusionary reasons will likely cause larger business to demand the same over time on the basis of competitive dis-advantage. Air Canada, for example, consistently reminds government of West-Jet's unfair advantage in the market because of the legislative requirement for Air Canada to have bilingual services. In the area of employment law, if West-Jet had an advantage because they met a small firm threshold test, for example, Air Canada would have a duty to demand the same concession.

Thus, small firm thresholds and unjustified exclusions based on size is ill advised policy and should not be explored. We could only imagine the outcry by Wal-Mart (the world's most profitable and largest retail company) to get similar treatment in the case of labour standards exemptions. The Wal-Mart business model of, inter alia, low labour costs, demand such a concessions and they would do everything in their power to ensure that they receive the same concession. We submit that the last thing the government should be doing is giving companies like Wal-Mart reasons to seek out more and more exemptions from what is a basic minimal package of labour standards.

I.5 - How can Part III of the Code strike the right balance between fair and adequate protection for workers on the one hand and reasonable flexibility in the application of those standards for employers and workers on the other?

Our experience has taught us that when employers ask for flexibility, it's really about getting an edge over the competition by reducing the level of negotiated standards in labour agreements. Our union fought one of the most aggressive attacks on worker's wages and benefits during 2003/4 in Southern California. Safeway, Vons and Albertson's food store chains demanded concessions in the contracts covering more than 70,000 workers. This was all demanded in the name of flexibility and competitiveness. Not once, either leading up to the dispute or while the strike/lockout was taking place, did Safeway, et al attempt to extract concessions from its suppliers or government in order to address their economic concerns. Instead, the workers of these companies are attacked and have to pay the price for the company's economic re-structuring.

UFCW Canada acknowledges that there are occasions that it is necessary to have flexible work practices but what's constantly being proposed to our members is that flexibility equals concessions. Workers always seem to pay the price when companies want flexible work arrangements. That notwithstanding, we have no fundamental issue about labour standards being flexible in certain circumstances, however, flexibility schemes cannot undermine the essential character of the basic labour standards¹⁴ and such arrangements must be entirely voluntary. For example, UFCW Canada would be in full agreement with a flexibility option in the area of banked overtime. We think that banked overtime, under certain conditions, is a win/win solution for both the workers and employers. Many of our collective agreement (warehousing, trucking and soft drink) have these features negotiated into them and they have been in effect for years. We would, however, have a hardship with flexibility on the question of hours of work in terms of averaging. The forty (40) hour work week for industrial workers is something that unions have fought hard for and won and we have no intention of giving it up in the name of corporate competitiveness.

The issue of flexibility is complicated. We understand an employer's dilemma when faced with anti-union, aggressive competitors like Wal-Mart. UFCW Canada has always been willing to explore solutions when faced with bona fide concerns over flexible work practices. There have been many instances where we have faced employer's ultimatums about downsizing and closure options if flexibilities were not achievable at the bargaining table. In fact, our primary jurisdiction, retail, is one of the most competitively sensitive environments existing in Canadian business. We have worked with employers in the past to ensure that their businesses continue to survive and our member's jobs are secure. The solution rests with the parties themselves. We believe that government should leave it up to the parties to negotiate fair and equitable solutions to their problems. Having flexible labour standards will only provide a template for business to exploit the situation in terms of beginning at a starting point that might not otherwise be there but for the law.

I.6 - How can the Code promote investment, job creation, productivity and competitiveness while maintaining a decent environment for Canadian workers and their families?

It is not the function of the Canada Labour Code (Part III) to promote investment, create jobs or increase productivity for employers. The Code is a piece of social legislation that promotes the well being of "workers" by ensuring that universally recognized minimal standards have been followed by all employers. And, as previously mentioned, it is an instrument to equalize the bargaining strength of workers. Thus, the Code is designed for the protection of vulnerable workers so that they won't be exploited by employers who, given their own self-serving interests, would undoubtedly profit off them but for the legislation. Efficiencies and investment incentives lie elsewhere and not in social welfare law that is solely designed solely to protect exploitable workers.

In our view, the employer community would be better advised to deal with those in their own ranks who take advantage of workers so that they can further invest in bad jobs while increasing productivity all without sharing the wealth. There are plenty of employers in Canada, and elsewhere, who would be quite content to see labour standards lessened or disappear all together in order to expand their market share through a lack of legal regulation. Not only must government see to it that labour standards are complied with by corporate Canada but the institutions that represent corporate Canada must also ensure that those same companies live up to their responsibilities under the Code. Good corporate social responsibility means, inter alia, playing by the rules and acting in good faith towards workers and competitors. This means that all employers share a common interest in protecting the integrity of the Code and looking after Canada workers in general.

Part II - Looking at Existing Federal Labour Standards: What Works? What Does Not Work?

II.1 - Do any current provisions of Part III of the Canada Labour Code need improvement? Are there problems with the application of Part III of the Code that need examining? What works and what doesn't work from your perspective? Please describe any solutions you feel might allow the Code to work more effectively.

UFCW Canada is not going to set out an elaborate shopping list of provisions under the Code that needs to be added or amended. We would suggest, however, that a sub-committee on Part III of the Code be established once the Commission has received the public's input through the consultation process. The job of that sub-committee would be to make recommendations to the Commission on the deficiencies and/or errors and omissions, if any, under the Code. We would suggest that the sub-committee be compromised of three (3) individuals, one (1) from the labour community, one (1) from the employer community and one (1) from government. These individuals would meet as soon as practical to draft a report for the Commission on its recommendations. We are not suggesting, in any way, that a sub-committee usurp or diminish the importance of the Commission's work in this area: rather, we think that an examination of the Code "provisions" is such a huge undertaking that it requires a concentrated effort by a specialized sub-committee, along with the Commission of course, to properly assess the situation for the future. Obviously, any sub-committee that's struck would take into consideration the public's submissions during deliberations on areas of Code's provisions that they believe are defective and/or require amendment.

Notwithstanding the above, Appendix "A" below is UFCW Canada's position on the amendments that have been suggested by Labour Standards Operations. In short, we concur with the vast majority of the suggested technical changes to the Code by Operations and, where we do not, suggestions have been added in bold type, where appropriate.

II.2 - Are there any important workplace issues not currently covered by Part III of the Code that should be regulated by labour standards legislation?

Again, as in our reply to item #1 above, we would respectfully suggest that a sub-committee be struck to look at specific issues and make recommendations to the Commission.

II.3 - Should any issue currently covered under part III of the Code be dealt with elsewhere instead, such as another federal statute (for example, the Canadian Human Rights Act)?

As previously mentioned, it is the position of UFCW Canada that the Code should be amended to ensure protections are available for workers who exercise their right to freely associate but are denied that right due to employer coercion, harassment, discrimination and intimidation. Freedom of association and the right to collectively bargain should be set-out as a basic labour standard under the Code. The Canadian Charter of Rights and Freedoms, as an instrument to protect employee's fundamental rights, is insufficient to ensure that swift and expedited justice is available to workers who suffer detriment due to being denied these rights. The Code's enforcement and remedial measures will ensure that workers are protected when they are subjected to union-avoidance and union-busting techniques as in, for example, the situation that UFCW Canada has faced, time and time again, at Wal-Mart.

II.4 - Self-employed persons are not covered under Part III of the Canada Labour Code. In addition, certain provisions, such as hours of work, do not apply to managers and specified professionals. Should these exclusions be revisited, eliminated or extended? If so, what criteria should be applied?

It is no stretch to say that one of the greatest scams ever to be perpetrated over working people is the claim that "workers", under economic dependency and control of a single enterprise, are, nonetheless, self-employed individuals. For the vast majority of these so called "independent contractors", working life is all the more harsh because they have been systemically excluded from even the most basic of labour law protections. More often than not, firms that employ so called independent contractors are simply attempting to avoid two scenarios: 1) liability to provide minimal basic entitlements under law such as labour standards;¹⁵ and, 2) unionization. The trucking industry, for example, is notorious for its use of so called independent contractors or self-employed individuals. In this sector of the labour market, it's common practice for trucking firms to avoid unionization of it's workers by arbitrarily labeling "employees" as independent contractors. Moreover, it is done to ensure unlimited operational flexibility as these workers are prevented from accessing the Code or other so called restrictive legislation.

Perhaps the time has come for government to recognize the precarious situation that these so called "self-employed" individuals are faced with when being exploited by corporations whose motives are less than honorable. It is the position of UFCW Canada that the Code must be amended to reflect a more restrictive definition of what an "independent contractor" really is and regulations should be provided to guide the courts in making a legitimate status determination based on a much more realistic standard then the ancient test of Montreal v. Montreal Locomotive Workers, the so called "four-fold" test¹⁶.

One of the more useful and realistic discussions about the nature of self-employment and the need for a narrower legal test can be found in the Judy Fudge's ("Fudge") Labour Protection for Self-Employed Workers¹⁷. Fudge postulates that we should modernize this issue by asking ourselves... "to whom should this law apply?" as opposed to... "is that person an employee?"

Surely, this is one of the more complicated issues facing the commission. How this issue is handled by the legislature will have profound effects for hundreds of thousands of workers across the country, some of whom are in the most difficult and demanding occupations imaginable. It is the position of UFCW Canada that the legislature should provide an expansive definition of who a "worker" is for the purpose of both collective bargaining and basic labour standards protections. Pursuant to Fudge's "whom should the law apply to" test, the government should reject the common law definition as established by the courts and begin with a new, broader definition of "worker"... one that is reflective of the modern understanding of need for all workers to be covered by basic labour rights and collective bargaining arrangements.

II.5 - Should alternative mechanisms or non-legislative options be explored to give employers and employees more flexibility to set conditions of employment that, overall, meet or exceed existing federal labour standards?

The short answer to this is "no". Labour standards must be about the protection of universal rights (in an individual sense) and not some contiguous variation of those rights, in particular, when workers have no collective representation or bargaining power. It would be unacceptable, for example, to have an employer and employee agree to less than the minimum hourly federal rate of pay even though an individual contract was struck that the worker would receive at least the federal minimum wage over the course of a standard work week, a month or, perhaps even a year. What about overtime rates, payment for vacation and so on? What about the simple logic of knowing how much you might expect to earn each week so you are able to prepare a household budget. When the hydro bill, the gas bill, the phone bill, the cable bill, and so on, come in each month, there's never any option to defer payment until some other specified time when you might have sufficient funds necessary in order to pay the bill. Federal labour standards were designed and provided as "single" universal entitlements and "consistency" of those entitlements is implied in their application.

Current rules that are in effect for specific industries based on the needs of those businesses respecting variations in labour standards are acceptable because they have been assessed as being appropriate under the circumstances given workers concerns and the needs of the business. The ability to contract out of basic labour standards, however, either individually or collectively, so long as a greater right or benefit exists, defeats the intent and purpose of the law and we reject it categorically. We see no need for workers and employers to have the flexibility to contract out of single or combinations of specific labour standards and, in any event, it would be unfair for workers since in the vast majority of cases they simply have no bargaining clout to strike an acceptable deal in the first place.

Part III - New Forms of Employment Relationships and Non-standard Work

III.1 - What forms of work should be covered by federal labour standards?

Non-standard, including self-employed, contract, term or task, part-time, casual or temporary workers should all be entitled to all basic minimal labour standards, period. Arguably, the precarious nature of their working conditions, and more generally the insecurity of their employment, makes it all the more compelling that they be allowed to be eligible for all minimum basic labour standards. It is a fact that over a third of the Canadian workforce is engaged in non-standard work that is dissimilar from so-called permanent employment. However, eligibility for legislated benefits and protections is still based on the standard employment relationship rather than the more pragmatic view that status should have no bearing on eligibility¹⁸. Indeed, arguably, the system is broken when employment benefits are granted based on a test that has long been proven redundant given the modern circumstances of the workforce. For example, entitlements such as vacation with pay, equal pay and unjust dismissals all have time lines to before employees become eligible. This is particularly troublesome given that the Code is silent on issues such as equal pay and access to benefits as is the case now in the EU following implementation of the Directives on part-time and contract work¹⁹.

As mentioned in the previous section on self-employment, the legal test as to whom should qualify as an "employee" for these purposes must be strengthened to include a broader definition of "worker" and, indeed, that definition should encompass anyone having an ongoing economic dependency and who is substantially controlled and directed by an employer regardless of their employment status. Again, as Fudge suggests: "to who should this law apply, as opposed to, is that person an employee?"²⁰

It is simple fact that precarious workers, in general, have lower wages, greater insecure in employment and less opportunity for promotion compared with regular employees. According to the Canadian Labour Congress (the "CLC"), 1 in 4 workers between the age of majority earn less than $10.00 per hour.²¹ Moreover, it is also a fact that the medium income for precarious workers is getting worse rather than better given the reality that annual growth or real national income has risen 3% a year for the last 20 years.²² We believe that this situation has the potential to get even worse given globalization and the Wal-Mart effect. In fact, the Wal-Martinization of the labour market (i.e. casual, temp, non-standard, work becoming the normative) has become a very real concern for UFCW Canada and many others including some in the greater business community. The vast majority of new jobs that are being created in the retail sector, for example, are non-standard or part-time. It is now common place for retail food stores agreements to have at least three (3) wage tiers for workers: 1) A full-time rate; 2) a part-time rate; and, 3) a part-time / casual rate for employees hired after specific dates. Both the part time before and after rates are significantly less than the full-time rates for similar job classifications. If this was an equal pay for equal work question based on gender, the public would be outraged at the discrimination between these workers and would not stand for the cleavages that have appeared in the rate structure of these classifications²³. But because this is an "employment status" question, these cleavages are allowed to exist and, indeed, they are thriving as the prevailing way in which wages are determined. To that end, there has been little or no improvement in the quality of jobs since the explosion of the casualization of work during the last 20 years and with corporations such as Wal-Mart forcing a race to the bottom it seems that this is the way of the future. To illustrate this point, the Canadian Broadcasting Corporation (the "CBC") lockout was the result of CBC management's demand that more and more future workers be designated casual with accompanying concessions²⁴. This type of situation is becoming more and more common with a steady rise in concession bargaining through so called flexible work arrangements.

It's clear, however, that both employers and employees may benefit from non-standard employment. UFCW Canada is not suggesting that the government somehow do away with the notion that precarious workers should somehow be made to be permanent or that non-standard employment become illegal. To the contrary! What we're saying is that there is absolutely no reason why these workers should not be entitled to the full range of labour standards provisions and, therefore, be treated equitably. Workers benefit from part-time or casual employment when they are allowed the flexibility to capture working hours that may be convenient for their own schedules given other jobs, family commitments and recreational activities. For employers, the flexibility of having a contingent workforce for peak business times, vacation relief, etc... is a definite advantage. It must be said, however, that not all employers are accommodating in terms of providing workers with flexible work schedules. UFCW Canada has had horrible experiences with major Canadian grocers concerning part-time work schedules. In our experience, employers, more often than not, want flexibility from its workers but are unprepared to give it in return. For example, Loblaws, in many of it's retail food stores, have guaranteed part-time employees twenty-four (24) hours per week by seniority provided that the worker makes themselves available during a seven (7) day work period to claim the hours even though those hours may be achievable in as short a time as three (3) days. Needless to say, we believe that this is unfair and defeats the intent and purpose of flexible employment or casual work arrangements and trivializes the advantages of having both sides benefit from situation.

UFCW Canada also echo's the CLC's recommendations that part-time workers be entitled to equal pay for work of equal value as a minimum labour standard²⁵. The day has come (like in Quebec and Saskatchewan) for the federal government to show leadership on this issue and legislate away the inherent inequity of part-timers being paid at a lesser rate of pay than full-timers who have the same skill, effort, responsibility and working conditions. Legislation guaranteeing equal pay is needed for part-timers to close the growing wage gap between them and their full-time comparators and it's also needed to stop the trend by employers to convert full-time jobs to part-time to simply lower labour costs.

Term and task employment should not be renewable for more than period of one year as the status is often abused. For example, under the Employment Standards Act for the province of Ontario, term or task employment that exceeds a period of one year is no longer term or task but rather permanent²⁶. There have been too many cases where contract employees (who have initial 6 or 12 month terms) have had their contracts extended indefinitely. Such arrangements are inherently unfair because they create sub-standard working conditions. Long term contracts are often abusive and exploitative!

UFCW Canada has fought hard for the rights of all workers but we take particular pride in our work for Canada's agricultural and migrant workers. These workers, some of the most exploited in the country, have little or no legal rights or protections and work in some of the harshest conditions imaginable. It was UFCW Canada that went to the Supreme Court on behalf of Ontario agricultural workers and challenged the repressive Harris government's anti-freedom of association legislation under the Labour Relations Act (the "LRA") Under that legislation, unionization of Ontario agricultural workers was forbidden. In a free and democratic society that was unacceptable and contrary to international law. Thus, in Dunmore²⁷ the Court affirmed UFCW Canada's charter argument and ruled that the sections of the LRA that prohibited agricultural workers from exercising their right to freely associate and join a trade union of their own choosing was unconstitutional.

Stripping away rights or prohibiting seasonal agricultural workers from receiving minimum basic labour standards is just plain wrong! All workers, regardless of their employment status, must be allowed to participate, without discrimination, in the economic and social fabric of the country. There is no justifiable reason for any workers to be denied basic employment protection weather that is Labour standards, human rights, workplace safety or employment insurance. UFCW Canada is proud to have recently won the right of Ontario agricultural workers to be participants in the provincial Health & Safety Act starting in the spring of 2006. The shameful legacy of second-class treatment for agricultural workers is coming to an end. Alberta, however, has refused thus far to include agricultural workers in their Health & Safety legislation but we are hopeful that they will come around soon.

Part IV - Balancing Work and Personal/Family Responsibilities

UFCW Canada supports legislative changes in the Code that would permit workers to attend to the bona fide needs of their family members in cases of serious illness, disability or family emergencies. Labour standards must include provisions for non-compensated leaves of absence for workers who must attend to the personal and physical care needs of their family members or themselves. Compensation for involuntary unemployment due to having to take time off work for this reason should be addressed under the Employment Insurance Act. In addition, workers need time off occasionally to attend to the special needs of children. Also, time off for medical appointments is required so that workers are not indirectly penalized by having to lose a day or half-day's wages for having to visit a Doctor's office for medical issues either for themselves or their children.

Workers also need to have more flexible scheduling arrangements in order for them to fully participate in religious, cultural and social events. Accommodation by employers must be legislated as a basic labour standard in that should no adverse effect arise as a result of an accommodation request for reasons related to religious, cultural or social activities, such requests should be granted. To that extent, workers, and society in general, are taking more time to pursue leisure and religious activities in the 21st century. The trends seem to suggest that workers are attempting to have a better quality of life by taking time out from their everyday busy schedules and concentrating more on sports, family, and religion, social and cultural activities. This is far cry from the workaholic days of the 1990's but it is a welcome change and one that's long overdue.

Part V - Workplace Productivity

V.3 - How might Part III of the Code encourage workers and employers to cooperate in finding creative solutions to these and other workplace issues?

The time has come for Canada to implement legislation requiring "work councils" as is the case in the EU. Part of the solution for more productive workforce is to have a vehicle for dialogue that is meaningful, efficient and legislatively required. In Europe, works councils have been a tremendous success. Contrary to earlier predictions, works councils did not turn the workplace into a debating society where efficient and effective management decision-making would be neutralized.

There has been a plethora of studies that have shown how works councils have proven to be of value for both workers and employers alike. Employers have found value, for example, in the fact that works councils can be an effective change agent for policies that need a "buy-in" by the workers. Works councils have exceptional value in being an appropriate venue for "trial balloons" to be put out to test reaction and to get the necessary agreement to go forward with selling proposals having to deal with productivity and other workplace issues. Workers, on the other hand, have an equally exciting opportunity to be part of the actual decision making process. When it comes to the quality of their working lives, and the kind of working conditions that they will have to endure, why wouldn't workers want a say?

It's an example of efficient corporate governance to have works councils set up in an enterprise. The fact is that it's becoming more and more common for employer's to voluntarily put into place work councils²⁸ in their establishments. That notwithstanding, legislation is needed, however, for all employers to have a formal works council so that both parties may explore the benefits of ongoing dialogue. The truth is that like workplace Health and Safety committees, works councils make sense and are very non-intrusive in the orderly management of business. This is an idea whose time has come!

How works council's will work in the Canadian context, however, must be studied further. UFCW Canada suggests that the following technical points be observed by the Commission for further study and review:

In the future UFCW Canada would be very pleased to submit further reports and recommendations on this subject. Again, we believe it's time to look to the template that the EU has established so both workers and employers are able to have the kind of ongoing dialogue needed in order to develop more modern workplace practices. Employers can only gain by having the opportunity to work with their employees in terms of achieving productivity gains and such other goals that will place them in the forefront of the global economy.

Part VI - Diversity and Changing Demographics in the Workforce

Canada has a very diverse multi-cultural society and that is one of our greatest strengths. We are more diverse now than we have been anytime in the country's history. More than three out of four immigrants into this country are persons of color. One in seven workers are persons of color and the percent is growing each year. UFCW Canada's membership is as diverse as the country itself. Our membership's ethic makeup mirrors Canadian society. We take particular pride in knowing that we have a vibrant, multi-cultural membership. However, workers of color and women are in a disproportional number of precarious occupations. If the government wants to see this trend reversed, it must assist by enacting law that eradicates racism. That is why UFCW Canada has negotiated some of the strongest anti-discrimination clauses on record in our various collective agreements. But we need to do more!

The CLC has said that one of the principal functions of the Commission in this review is to examine the relationship between Human Rights legislations and part III of the Code²⁹. On that point, UFCW Canada couldn't agree more! We have said this previously in connection with our argument that the Code needs to be amended to include strong protection for persons wanting to join trade unions (i.e. freedom of association). That thinking also extends to protection for workers in the event that they suffer from discrimination, harassment, coercion, or threats as a result of their ethnicity, race or creed. It is unacceptable in a multi-cultural society for direct or indirect discrimination to exist based on reasons related to a person's ethnicity. All workers, including workers that come from European (white) backgrounds, must be protected from racial discrimination in employment. There should be no special rights for any group. All workers, regardless of their race, color or creed must be protected and allowed the opportunity to flourish economically in this country. To that end, strong remedial measures are also needed to ensure that workers are protected and that employer's are sufficiently motivated to take this issue seriously.

Part VII - Modernizing and Clarifying the Code's Enforcement and Administrative Provisions

VII.1 - From your experience, to what extent are current compliance measures adequate? Are they effective and fair for employees and employers? Do they deter potential violators?

It is our position that there are essentially two defects in the current compliance measures. The first has to do with the problems of companies that are flight risks or, in other words, companies who leave the country owing wages, etc... to their employees and have no intention of paying out claims. This is unacceptable and must be put to an end. The only real way to deal with this situation is to have a fund established for unpaid wages, vacation and termination pay that employers automatically contribute towards on a regular basis. When a delinquent employer has been issued an order to pay by Operations and such order is refused, up to and including being sent to collection, workers should not be penalized because of the disappearance of their employer into some other jurisdiction. Workers must, without exception, be paid outstanding wages, et al out of a fund of some sort. Moreover, in terms of follow up on the disappeared employer, a registry should be established containing the names of the officers and directors of the enterprise and shared with Employment and Immigration for possible action in the future. Needless to say, if employers know that they can defeat the legislation, and thus make the law meaningless, the current system is not much of a deterrent.

The second point is the issue of delay. There is little doubt that enforcement officers have their work cut out for them given the cut backs in the number of officers in recent years but the situation must improve to increase the timeliness in resolving complaints under the Code. The Commission must remember that the vast majority of people filing claims under the Code are people who don't have abundant economic resources and, frankly, need the money that they may be claiming in order to survive. No one wants to file a claim under the Code because it's "something to do"! Workers turn to the Labour department for help. They need assistance from government to resolve their pressing economic claims so that they may begin to pick up and move on. More officers need to be hired by the government to expedite the resolution of claims so that workers will be able to see the results of their claims sooner.

VII.3 - Should new enforcement tools be developed, such as monetary penalties, fines, and administrative surcharges on wages owing?

UFCW Canada believes that the time has come for penalties to be set out under the Code for delinquent employer's who refuse to remit on orders to pay or who simply refuse to cooperate with an investigation by an officer. Moreover, costs including collection and court costs should be recoverable by Human Resource and Skills Development Canada ("HRSDC") when employers have been found liable under the Code. After all, penalties exist under the Employment Insurance Act ("EI") for delinquent claimant's who make false reports on earnings or who have failed to pay monies owed (e.g. claw backs, etc...) to government. Why would it not be appropriate in cases where an employer willfully attempts to circumvent the Code by failing to pay out claims after an officer has ordered payment? This would send a significant message out to those who believe that they can avoid liability under the Code and who deliberately use the appeal system to frustrate and delay.

VII.4 - Should there be more educational and other activities to inform employers and employees of their rights and responsibilities under Part III of the Code? If so, what would be the most effective measures to take?

It is the position of UFCW Canada that current efforts to educate both workers and employers about their rights and responsibilities under the Code are insufficient. A simple Google search with either "federal labour standards" or "filing a claim under the Canada Labour Code Part III" produces site lists that refer to the legislation and other bureaucratic references that, quite frankly, are complex and confusing. Perhaps it's time for the web sites relating to Part III of the Code to be understood from the perspective of person(s) who are enquiring about their rights and responsibilities under the legislation. Thus, for example, no where on the web site does it say where and how a claim under the Code can be filed with the government. There's plenty of information about "whistleblower protection" and the content of the legislation itself but nothing on how to file a claim under the act. The web site is simply not user friendly for the person(s) that would most likely visit the domain, namely claimants.

Ultimately, the government's performance on the effectiveness of the Code is correlated with the level of compliance with the legislation itself. The simple measurement to test that performance is the number of complaints that are filed each year with the Department of Labour. Thus, if the government wants to improve the performance of the legislation it must be prepared to commit the appropriate economic resources to Operations so, for example, more auditors can be hired with the powers of those auditors being expanded significantly. By that we mean that when an individual complaint is filed, the auditor should have the statutory power to do a random sample of compliance with other labour standards in the same enterprise. Auditors should also have the statutory authority to perform audits based on third party complaints of non-compliance with the Code. In addition, officers should emphasize education about the Code while performing audits and investigations.

VII.5 - Should employees and employers, particularly in unionized workplaces, be given greater degree of responsibility in ensuring compliance with federal labour standards? What would this involve?

Employees and trade unions must have the right to go directly to government with claims under the Code notwithstanding their status as trade union members and the fact that they may be covered by a collective agreement. Denying Canadian's the opportunity to pursue their statutory rights because they have exercised their Constitutional right to freely associate is adverse effect discrimination and is just plain wrong. The unacceptable situation in Ontario, for example, where under the Labour Relations Act (the "LRA"), employees cannot pursue employment standards claims if covered by provisions contained in a collective agreement, is totally unacceptable.

Collective agreements were never designed to be the appropriate venue for the adjudication of statutory rights or other claims that normally fall to the courts. Collective agreements have dispute resolution procedures (arbitration) for the provisions that were negotiated directly between the employer and trade union. To suggest that labour standards claims, for example, should be adjudicated by private arbitration under the mechanisms contained in a collective agreement is an abuse of the limited resources of both employers and trade unions. Unfortunately, the landmark decision in Weber has caused much confusion on this subject where, pursuant to the jurisprudence prior to Weber, there was none. Weber³⁰ stood for the proposition that if the subject matter was contained in the collective agreement, then the arbitration procedure under the agreement was the proper forum as opposed to the courts. This, in our opinion, is clearly bad law and was subsequently attacked as such from a number of learned commentators. It is the position of UFCW Canada that because, for example, hours of work are covered under the term of a collective agreement, that does not mean that either an individual worker or trade union does not have the right to make a claim that a company violated the overtime provisions under the Code if the collective agreement was silent on overtime.

Upon further enquiry on this matter, we believe that the Commission with find general agreement on the part of both the labour movement and the employer community that collective agreements are no place for the adjudication of labour standards or any other statutory claims. This is one area that, thankfully, both management and labour agree on. Union members should not be treated as second class citizens and be denied the right by government to seek redress for potential violations of the Code like any other citizen. To do so, as in the case of Ontario, makes the universality of Canadian legislation a sham and needless to say is inconsistent with our values as Canadians.

Appendix "A"

UFCW Canada's reply to TECHNICAL ISSUES as outlined by Labour Standards Operations July 2005

Part III Review

Issue:

There is no authority in Part III of the Code for an employer and an employee to agree that overtime can be taken as time off with pay.

Discussion:

Employers, unions and employees have all discussed this matter with Labour Program staff at one time or another. The ability to take time off with pay would increase flexibility in the workplace.

Proposed Solution:

Amend the Code at section 174. to permit employers and employees (where a bargaining agent exists the agreement must be with the agent) to agree that the hours worked as overtime may be taken as time off with pay at the rate of one and one half hours off for every hour worked as overtime. There would need to be a limitation on the banking of overtime hours and a defined period for a reconciliation to be made at which point the time off must be taken or payment made.

Moreover, any such agreements must be voluntary and denial of such time off by the employer after a request has been made by the worker must be reasonable in the circumstances and related to legitimate business needs.

TECHNICAL ISSUES

PART III REVIEW

Issue:

There is no authority in Part III of the Code for an employer to issue pay statements electronically to employees.

Discussion:

Employers have made numerous requests for an exemption on the requirement to produce a pay statement in writing to employees. Despite the provisions of the Interpretation Act concerning the production of documents by electronic means, the current interpretation of Part III of the Code of the words "in writing" as set out in section 254. (1) does include by electronic means.

Proposed Solution:

Amend the Code at section 254. (1) to permit employers to issue pay statements by electronic means. There would need to be provisions, or the authority to make regulations, related to accessibility, privacy, retention and content. Upon reasonable notice, employees would be able to obtain copies of their pay statements in writing.

TECHNICAL ISSUES

PART III REVIEW

Issue:

The word "and" located at the end of paragraph (a) and before paragraph (b) in section 235. (1) has been a source of confusion for employers, unions and employees.

Discussion:

While a careful reading of the phrasing "pay to the employee the greater of" contains the meaning of a choice between one thing and another, there have been numerous occasions when clients have sincerely believed that the and meant entitlement to both provisions in (a) and (b). The intent was that an employee, when admissibility conditions were met, should receive the entitlement in (a) or (b) as circumstances warranted.

Proposed Solution:

Amend the Code at section 235. (1) to replace the word "and" with the word "or" between paragraphs (a) and (b).

TECHNICAL ISSUES

PART III REVIEW

Issue:

The word "forthwith" as used in section 188. is in conflict with the general requirement in section 247. (b) to pay wages or other amounts within 30 days of when the entitlement arose. This conflict has caused difficulty for the Labour Program to administer these provisions of the Code.

Discussion:

It is reasonable to expect that when an employee ceases to be employed by an employer that all outstanding payments will be made for wages and other amounts within a reasonable time period. That is the purpose of section 247. (b). Vacation pay is defined at section 186. of the Code as being wages. To require the payment of vacation pay "forthwith" upon an employee ceasing to be employed in today's world of offsite payroll services and compensation practices based on factors that only become known at a later date is not practical, particularly if the termination of employment has been a sudden event.

Proposed Solution:

Amend the Code at section 188. to replace the phrase "shall forthwith pay to the employee" with the phrase "shall pay to the employee within 30 days".

TECHNICAL ISSUES

PART III REVIEW

Issue:

The phrase "workers' compensation legislation in the employee's province of permanent residence" in section 239.1 (2) is problematic for employers and employees.

Discussion:

Employers who subscribe to a workers' compensation plan do so in the province where the work is performed. To require an employer to subscribe to a plan in the employee's province of permanent residence could force an employer to subscribe to the workers' compensation plans of two provinces when work is only performed in one province. This could create additional premium expense and administrative costs for the employer and confusion for employees. In addition, this particular provision is not in line with those of the provinces.

Proposed Solution:

Amend the Code at section 239.1 (2) to replace the phrase "in the employee's province of permanent residence" with "in the province or territory where the work is performed".

TECHNICAL ISSUES

PART III REVIEW

Issue:

The term "regular rate of wages for his regular hours of work" as it appears in section 235. (1) paragraphs (a) and (b) has proven to be problematic in the administration of the Code when an employee has been laid off without wages for a period of time immediately preceding the termination of the employee's employment.

Discussion:

The Code and regulations provide a number of processes for determining what the regular rate of wages is when an employee is working and being paid. Neither the Code nor the regulations deal adequately with a situation where the employee is still in the employment of an employer but not working nor receiving wages. The problem arises when an inspector endeavors to calculate what is owed. The argument is made that if an employee is not earning wages the regular rate of wages is zero.

Proposed Solution:

Amend the Code at section 235. (1) in both paragraphs (a) and (b) by adding the words "when the employee last worked regular hours of work" after the words "for his regular hours of work".

Amend the Code at section 230. (1) (b) by adding the words "when the employee last worked regular hours of work" after the words "for his regular hours of work".

TECHNICAL ISSUES

PART III REVIEW

Issue:

Section 235. (2) (b) basically states that the employment of an employee has not been terminated by an employer if the employee is entitled to a pension. In other words if the employee is entitled to a pension, regardless of the amount, the employee is not entitled to severance pay.

Discussion:

When the Code was created 40 years ago there were no pension plan provisions allowing early retirement at either a "full" or an actuarially reduced pension. When an employee reached the age of 65 the employee retired and went on a pension where such plans existed. The Code was written to prevent an employee from receiving a "windfall" by not requiring an employer to pay severance pay when the employee was leaving the employer to go on a pension for normal retirement.

In the 1980's pension reform legislation was passed that permitted early retirement at "full" or actuarially reduced pensions. The Code was not amended to keep pace with these changes.

The Canada Labour Code has been criticized by several courts as being outdated (the Motorways and the Byers cases to name two).

Proposed Solution:

Amend the Code at section 235. (2) (b) by adding the words "non-actuarially reduced pension" after the words "the employee is entitled to a".

TECHNICAL ISSUES

PART III REVIEW

Issue:

Section 254.1 (2) (c) provides for an employer to deduct amounts authorized in writing by the employee from the employee's wages. The administration of this provision has been very costly and time consuming for the Labour Program.

Discussion:

The intent of this provision was to permit the employee to authorize, and the employer to deduct, amounts from an employee's wages for certain specified purposes. These purposes were intended to be such as premiums for life insurance plans, accidental death and dismemberment insurance plans, disability insurance plans, and pension plans, profit sharing plans where the employee makes a contribution, savings plans, and the like. Essentially, this was intended to be a payment by the employee to obtain a benefit for the employee.

Unfortunately, this provision is being used in contractual arrangements to recover monies from employees through the payroll for certain expenses which, more properly, should be addressed in small claims court as a dispute over the terms of a contract.

Proposed Solution:

Add a provision under 254.1 (4) for the Governor in Council to prescribe the circumstances under which deductions authorized in writing by an employee will be permitted but in no case shall regulations be permitted for allowing set-off's for damage to equipment and material, for faulty workmanship and/or for any monies that are asked to returned to an employer.

TECHNICAL ISSUES

PART III REVIEW

Issue:

There has been confusion on the meaning of section 230. (1) (a) when an employee is on layoff status or otherwise not being paid wages at the time notice of termination of employment is given.

Discussion:

The intent of this provision was to provide an employee with two weeks of notice with pay or two weeks of pay in lieu of notice. This provided the option of allowing the employer to require the employee to cease working upon being notified of the loss of employment. This option is frequently used where issues of confidentiality are of concern. However, the argument is often presented to inspectors that if an employee is on layoff status, or not being paid wages, all that is required is to provide two weeks of notice and there is no need to pay the regular rate of wages for the regular hours of work during the notice period.

Proposed Solution:

Amend the Code at section 230. (1) (a) by adding the words "and permit the employee to work his regular hours of work at his regular rate of wages" after the words "terminate his employment on that date".

TECHNICAL ISSUES

PART III REVIEW

Issue:

When the parties to the appeal of a payment order reach a settlement prior to a referee being appointed by the Minister of Labour, there is no mechanism for the Minister of Labour to pay out the funds on deposit for the appeal.

Discussion:

In order to pay out the funds in accordance with the settlement reached by the parties, the Minister must appoint a referee to make an order under the provisions of section 251.12 (4) (b). This causes unnecessary delays in the payment of the funds to the appropriate party, or parties, in accordance with the terms of the settlement and unnecessary expense to the tax payer for the payment of a referee's fees.

Proposed Solution:

Amend the Code at section 251.14 by adding a provision that permits the Minister of Labour to authorize payments out of the account in accordance with the terms of a settlement agreement between the parties to an appeal of a payment order when that agreement has been reached prior to the appointment of a referee by the Minister. This provision would be placed immediately following 251.14 (1) and before 251.14 (2).

TECHNICAL ISSUES

PART III REVIEW

Issue:

The current enforcement mechanisms under Part III of the Code for wage recovery are not as effective as was envisioned when they were implemented in 1993.

Other than prosecution, there is no mechanism to obtain compliance with non-monetary infractions.

Discussion:

It has been our experience that when payment orders to employers or directors are neither appealed nor paid, recovery of the monies owed to the complainant is remote. Even the filing of the orders in Federal Court, upon the request of the complainant, produces minimal results. The reason for this is that after filing in Federal Court the Labour Program has no further mandate. Enforcement is left to the complainant with all the associated costs being borne by the complainant.

We have experienced numerous instances where employers take every opportunity to drag the process out as long as possible in order to avoid having to pay the money that is owed to the complainant. We have noted that repeat offenders who have ignored payment orders in the past continue to ignore new payment orders resulting from new complaints because there were no consequences. In short, our payment orders have no teeth.

A further problem that we have encountered is the enforcement of non-monetary infractions under the Code. While we have used some creative administrative solutions in a few instances, these activities are not supported by the legislation.

This lack of enforcement capability, in addition to the problems faced by the complainant, puts compliant employers at an economic disadvantage.

Proposed Solution:

TECHNICAL ISSUES

PART III REVIEW

Issue:

There is no provision in the Code or the regulations to determine an hourly rate of wages and an applicable rate of wages when overtime is involved for an employee who is paid on a basis of other than time.

Discussion:

When the Canada Labour Code was written forty years ago it was not designed to deal with situations like we face today. The world of work and the methods of compensation have changed markedly over the years and the Code and regulations have not kept pace. Today there is nothing in the Code or the regulations that will assist us in this area.

Regulation 20 provides for a determination of an hourly rate of wages when an employee is paid on a basis of time other than hourly. Regulations 17 and 18 provide for the calculation of a regular rate of wages when an employee is paid on a basis of other than time, but the use of these regulations is restricted to General Holidays and Bereavement Leave and the principles used for the calculation do not satisfy the circumstances when overtime is involved.

Proposed Solution:

The simplest solution would be to amend regulation 20 by adding the words "or on a basis of other than time," after the words "on any basis of time other than hourly,"

TECHNICAL ISSUES

PART III REVIEW

Issue:

The Code at section 195 requires that when agreement is reached to substitute a General Holiday, it can only be substituted for another "holiday".

Discussion:

This particular provision is very restrictive in today's work environment. The Code currently provides a more flexible approach when applied in a continuous operation. A review of the definition of "holiday" in the Interpretation Act indicates that it is a day fixed by a legislative body, the Holidays Act, or the lieutenant governor of a province. As a result, should the employer or the employees wish to substitute a General Holiday for any other day that is not a holiday, as earlier defined, they cannot do so.

Proposed Solution:

Amend the Code at section 195 to remove the word "holiday" in the third line and replace it with the word "day" mutually chosen by the employer and employee within twelve months of the date of the original holiday and in the case of disagreement, the employer may set the date provided that it is within four (4) weeks from the date of the original holiday.

Endnotes

¹ Modernizing Federal Labour Standards: Review of Part III of the Canada Labour Code, Consultation Paper, February 2005 at <http://www.fls-ntf.gc.ca/en/index.asp>

⁷ Except in the case of the military and police where the state has the right under international law to prohibit or restrict collective representation and bargaining.
See: <http://www.ilo.org/public/english/dialogue/ifpdial/llg/index.htm>

⁹ Labour Standards for the 21st Century: Canadian Labour Congress Issues Paper on Part III of the Canada Labour Code, April 6, 2005 at pp. 47; see also: <http://www.canadianlabour.ca/index.php...>

¹¹ Such as in the case of Wal-Mart with it's union-free policies. See also: <http://www.union-network.org/UNIsite/Sectors/Commerce/...> for a copy of Wal-Mart's "union-free' manual.

¹³ For example: Air Canada has, on numerous occasions, re-negotiated collective agreements with the Air Canada Pilots Association ("A.C.P.A."), the Canadian Union of Public Employees ("C.U.P.E."); the Canadian Auto Workers ("C.A.W.")and the International Association of Machinists ("I.A.M.") all due to economic restructuring necessitated by economic considerations.

¹⁵ Also included would be liability under the Canadian Human Rights Act and other legislation.

¹⁸ Law Commission of Canada. Is Work Working? Work Law that Do a Better Job. December, 2004 at pp.1. see: <www.lcc.gc.ca>

²³ Arguably, the majority of new employment in part-time in retail is female dominated and thus constitutes a violation of the principal of pay equity.

²⁴ see: http://lnn.laborstart.org/more.php?id=530_0_1_0_M and see also: <http://www.ufcw1518.com/view.php?id=1343>

²⁸ Loblaws, for example, the nation's largest grocer, has a form of "work councils" in both its union and non-union facilities.

Soumission

A Presentation on Behalf of UFCW Canada to the Federal Labour Standards Review Commission

Index

Greetings from:

Michael J. Fraser, National Director of UFCW Canada –and- International Executive Vice-President

Brian B. McArthur M.A.

Nancy A. Quiring

Who is UFCW Canada?

Membership

Strength in Diversity

National and Local Structure

Executive Summary

Part I - Setting the Bar for Federal Labour Standards

I.1 - What should be the overall objective of federal labour standards?

I.2 - What should be the relationship between labour Standards and Conditions of Work established by Collective Agreements?

I.3 - How closely should federal labour standards reflect international labour standards, standards in other advanced economies, standards in the provinces and territories and "best practices" adopted by leading Canadian employers?

I.4 - Should different labour standards apply to specific industries, occupations or sizes of businesses? If so, what should be these standards and how should they apply?

I.5 - How can Part III of the Code strike the right balance between fair and adequate protection for workers on the one hand and reasonable flexibility in the application of those standards for employers and workers on the other?

I.6 - How can the Code promote investment, job creation, productivity and competitiveness while maintaining a decent environment for Canadian workers and their families?

Part II - Looking at Existing Federal Labour Standards: What Works? What Does Not Work?

II.2 - Are there any important workplace issues not currently covered by Part III of the Code that should be regulated by labour standards legislation?

II.3 - Should any issue currently covered under part III of the Code be dealt with elsewhere instead, such as another federal statute (for example, the Canadian Human Rights Act)?

II.4 - Self-employed persons are not covered under Part III of the Canada Labour Code. In addition, certain provisions, such as hours of work, do not apply to managers and specified professionals. Should these exclusions be revisited, eliminated or extended? If so, what criteria should be applied?

II.5 - Should alternative mechanisms or non-legislative options be explored to give employers and employees more flexibility to set conditions of employment that, overall, meet or exceed existing federal labour standards?

Part III - New Forms of Employment Relationships and Non-standard Work

III.1 - What forms of work should be covered by federal labour standards?

Part IV - Balancing Work and Personal/Family Responsibilities

Part V - Workplace Productivity

V.3 - How might Part III of the Code encourage workers and employers to cooperate in finding creative solutions to these and other workplace issues?

Part VI - Diversity and Changing Demographics in the Workforce

Part VII - Modernizing and Clarifying the Code's Enforcement and Administrative Provisions

VII.1 - From your experience, to what extent are current compliance measures adequate? Are they effective and fair for employees and employers? Do they deter potential violators?

VII.3 - Should new enforcement tools be developed, such as monetary penalties, fines, and administrative surcharges on wages owing?

VII.4 - Should there be more educational and other activities to inform employers and employees of their rights and responsibilities under Part III of the Code? If so, what would be the most effective measures to take?

VII.5 - Should employees and employers, particularly in unionized workplaces, be given greater degree of responsibility in ensuring compliance with federal labour standards? What would this involve?

Appendix "A"

UFCW Canada's reply to TECHNICAL ISSUES as outlined by Labour Standards Operations July 2005

Part III Review

Issue:

Discussion:

Proposed Solution:

TECHNICAL ISSUES

PART III REVIEW

Issue:

Discussion:

Proposed Solution:

TECHNICAL ISSUES

PART III REVIEW

Issue:

Discussion:

Proposed Solution:

TECHNICAL ISSUES

PART III REVIEW

Issue:

Discussion:

Proposed Solution:

TECHNICAL ISSUES

PART III REVIEW

Issue:

Discussion:

Proposed Solution:

TECHNICAL ISSUES

PART III REVIEW

Issue:

Discussion:

Proposed Solution:

TECHNICAL ISSUES

PART III REVIEW

Issue:

Discussion:

Proposed Solution:

TECHNICAL ISSUES

PART III REVIEW

Issue:

Discussion:

Proposed Solution:

TECHNICAL ISSUES

PART III REVIEW

Issue:

Discussion: