Soumission

Table of Contents

INTRODUCTION

 

PART 1 - SETTING THE BAR FOR FEDERAL LABOUR STANDARDS

1.0 LABOUR STANDARDS OBJECTIVES
1.1 Canada Labour Code, PART III, VIS À VIS OTHER EMPLOYMENT LAWS
1.2 STANDARDS IN OTHER JURISDICTIONS
1.3 INDUSTRY SPECIFIC STANDARDS

PART 2 - EXISTING FEDERAL LABOUR STANDARDS: WHAT WORKS? WHAT DOESN'T?

2.0 MODERNIZING THE CODE
2.1 LABOUR STANDARDS AND HUMAN RIGHTS

PART 3 - LABOUR MARKET DEVELOPMENTS AND LABOUR STANDARDS

3.0 INTRODUCTION
3.1 CANADIAN LABOUR MARKET DEVELOPMENTS - NON STANDARD WORKERS
3.2 ALTERNATIVE PLATFORMS FOR DELIVERING EMPLOYEE PROTECTION AND BENEFITS
3.3 CBA RECOMMENDATIONS WITH RESPECT TO NON STANDARD WORK
3.4 BALANCING WORK AND PERSONAL / FAMILY RESPONSIBILITIES
3.5 DIVERSITY AND CHANGING DEMOGRAPHICS IN THE WORKFORCE
3.6 WORKPLACE PRODUCTIVITY AND RESPONSIVENESS

CONCLUDING COMMENTS

INTRODUCTION

The Canadian Bankers Association (CBA) is pleased to participate in the consultation process launched by the Commissioner for the Federal Labour Standards Review. For well over ten years CBA member banks have been discussing their concerns with respect to those parts of the Canada Labour Code, Part III, that have become out of date or that were not working well. We have spent considerable time identifying what changes to those parts would improve regulatory effectiveness for both employers and employees. We are very pleased to bring to the Commission our recommendations for amending specific provisions in the Code as well as our views on the policy issues arising from the substantial changes that have taken place in the labour force.

The CBA represents 55 banks in Canada, which, collectively, employ 239,000 Canadians, 229,000 of whom are employees of the seven largest banks¹, and 209,000 of whom fall within the federal jurisdiction. For a number of decades the banking industry has evolved through a steady process of change that has transformed almost every part of the operations, functions and business lines as well as human resources policies and practices. As a result:

• Banking has become a "high tech" industry - banks use technology for internal operations (both operating systems and employee programs) and externally for delivering customer service.
• Banking is a knowledge-based industry in which technology has indeed taken over transaction-based processes formerly performed manually mainly by women. Nonetheless jobs have increased as banks have built knowledge workforces and entered new lines of business.
• Banking is highly competitive, domestically and internationally.
• Bank workforces are highly diverse. Significant numbers of visible minority Canadians work at every level of banking including senior levels. Women now fill over 25% of senior executive positions and over 50% of middle manager and professional positions in the industry.
• Bank recruitment is focused largely at the MBA and BA levels.

Today the banking industry is larger, more highly educated, more diverse, and global, and is a leader in technology. It is an industry that takes pride in the high quality of its workforce and of its human resource policies and practices.

This submission as a whole follows the structure of the Commission's Consultation Paper on Modernizing Federal Labour Standards. Part 1 addresses labour standards objectives. Part 2 is devoted to our recommendations for modernizing specific Code provisions. Part 3 focuses on our views and recommendations with respect to the policy issues that have arisen as a result of the substantive changes in Canada's labour market.

PART 1 - SETTING THE BAR FOR FEDERAL LABOUR STANDARDS

1.0 LABOUR STANDARDS OBJECTIVES

Federal labour standards should be maintained as basic standards of general application in employment relationships. They should provide a meaningful but minimum level of protection for employees and establish an appropriate threshold beneath which employee protection should not be allowed to fall in federally regulated industries.

Labour standards should be broad-based in that they should set the standards for employees in general. We do not agree that standards should be designed to protect specific groups such as the most vulnerable workers in the labour market. First, defining vulnerable workers is difficult. There are many factors that contribute to an individual's "vulnerability" and many fall outside of the role that labour standards plays, e.g. access to education and skills development, access to the labour market, etc. While some workers may be seen to be vulnerable because they lack labour standards coverage, we think it more likely that they are "vulnerable" because of more potent underlying socio-economic problems. We discuss this matter further in Part 3 of this paper. Nor do we agree that standards should reflect innovative or best practices. Innovative practices may work well in some workplaces, but not necessarily in others. Best practices are often unique to a particular industry or company, and arise out of specific business objectives, culture, or employee needs. While they may be aspirational, they may be too costly for some employers. Indeed, too much codification can take the edge off innovative and best practices and ultimately discourage them.

Labour standards need to be reviewed regularly to ensure they are up-to-date and effective, but they should be maintained as a foundation not the leading edge. Employers can build on that foundation in ways that are appropriate to the nature of their work, their workplace culture, and their business circumstances and capacity. In our view labour standards need to provide broad-based benchmarks that reflect the community norms experienced by the majority of federally regulated employees. We would like to note, however, that broad-based standards are not the same thing as "one size fits all" solutions. A standard should be broad or general in its coverage. It is largely in the application and implementation of standards that a one-size-fits-all approach is not appropriate.

A second key objective of labour standards should be to find an appropriate balance between support and protection for employees on the one hand, and on the other, flexibility and efficiency that is needed by employers to conduct their business and maintain productivity. The most effective and fundamental way to strike such a balance is to maintain in the law the broad, minimum standards of protection for employees, and, to the greatest extent possible, leave the details of implementation and the option of exceeding the standards up to employers or to negotiations between employers and employees. There are various ways for providing flexibility in the law. Consideration could be given to development of opting-out provisions in certain areas where employers can demonstrate either that a particular component of the law does not affect them or that they can demonstrate already existing policies that take them beyond the standard. Other methods would include the provision of Ministerial permits for specified periods of time; regular reporting processes by employers to confirm they are meeting a standard but in alternative ways; or systems for certifying that employer practices in a certain areas are meeting a standard, but differently.

In addition balance may also be achieved by avoiding the imposition of rigid, one-size-fits-all solutions. A policy or practice that may be appropriate for a large, national firm which has a substantial human resources management team may not be effective in a small local business. Even in a large company, the capacity for the application of standards and policies will differ between a company with a centralized workforce and one with the workforce dispersed in many small business units. For example, in the banking industry, different challenges and opportunities might exist in branches that do not exist in head office units. A lack of compliance with some aspects of the law by a particular industry or group of companies should not lead to stricter regulation for all employers. We believe that if minimum standards are relevant, realistic and fair along with built-in flexibility they will provide a good foundation of protection across the range of federally regulated industries.

1.1 Canada Labour Code, PART III, VIS À VIS OTHER EMPLOYMENT LAWS

Part III of the Canada Labour Code, is one of eight federal statutes that regulate the way employers manage their work forces. Parts I and II of the Code, are devoted to collective bargaining and health and safety respectively. The Canadian Human Rights Act (CHRA) prevents discrimination in employment and the Employment Equity Act (EEA) promotes equality and diversity. The Pension Benefits Standards Act, 1985 (PBSA) regulates the safety and soundness of employer sponsored pension plans. In addition, and on a broader basis, the Canada Pension Plan Act and the Employment Insurance Act, both of which apply to provincially regulated as well as federally regulated industries, provide, through employer and employee contributions, financing and other measures to support employees who lose their jobs, qualify for specified leaves, or retire. In the past decade all of these statutes with the exception of Part III of the Canada Labour Code, have been subjected to major reviews. If looked at "horizontally" rather than as vertical "silos", the eight statutes can be seen to provide a comprehensive foundation for employee protection upon which employers can build HR policies and practices and manage their workforces. Ideally these statutes should work together seamlessly so that there are no gaps in support, while at the same time not overlapping. In the course of this paper we will identify several gaps as well as some duplication that affect Part III of the Code and will make some recommendations for ensuring the viability the foundation.

1.2 STANDARDS IN OTHER JURISDICTIONS

Provincial and territorial standards should be monitored closely and given serious consideration because federally regulated industries compete directly with provincially regulated companies for both clients and employees. Federally regulated industries should not be placed at a disadvantage vis à vis their provincial competitors. However, standards that may be appropriate for a provincially based and regulated company may not suit a business that operates nationally and internationally.

The standards in other advanced economies, mainly the U.K., other European countries and Australia, may be informative and worth considering, but they may not be at all suitable for the Canadian context or Canadian needs. Developments in the European Union tend to be innovative and far reaching especially in moving towards integration of social and economic goals. Good research and information on the thinking behind these developments would be informative for North Americans but are unlikely to be helpful in the short term. U.S. standards, on the other hand, need to be examined carefully for areas where they differ substantially from Canadian standards. Canadian business should not be placed at a disadvantage vis à vis their biggest trading partner. The U.S. approach to overtime exemptions is a good case in point (see page 7 below).

It may be useful to monitor standards developments at the International Labour Organization (ILO). CBA members have been participating on standards committees at ILO annual conferences since the early 1980s. It is helpful to know what issues and concerns are driving ILO developments, but in the end ILO standards are often not ratified by governments as they are generally unrealistic and impractical.

1.3 INDUSTRY SPECIFIC STANDARDS

Where the circumstances of a profession, occupation or industry are so different or so unique that broad-based standards would not be suitable, we strongly encourage exemptions or development of specific standards, on the understanding, of course, that these are reasonable and cannot be dealt with effectively on a broader basis. The Canada Labour Standards Regulations already recognize this. They specifically exempt certain professions from Division I of the Code. There are also modified hours of work standards specific to bus and truck drivers, to east coast and great lakes shipping, to west coast shipping, and to certain employees in the railway industry, provincial statutes also recognize certain industries and occupations.

The regulations also exempt specific, identifiable classes of employees such as commission paid salespeople at the CBC from certain hours of work provisions in Division I. Flexibility in the Code has been demonstrated recently by Ministerial approval to exempt commission paid salespeople in the banking industry from certain hours of work provisions after investigation by a Commission of Inquiry. When the hours of work provisions were first passed, the banks did not employ commission paid salespeople - this has been an industry-wide development over the past fifteen years. The process for obtaining the exemption worked well, if slowly, in meeting the changed needs of the banking industry and we recommend this type of flexibility be introduced more broadly in the Code to allow for more Ministerial exemptions.

PART 2 - EXISTING FEDERAL LABOUR STANDARDS: WHAT WORKS? WHAT DOESN'T?

2.0 MODERNIZING THE CODE

As the largest non-unionized industry that falls under federal labour law, our member banks have an excellent working knowledge of the Canada Labour Code, Part III - i.e., how human resources policies and practices built on Part III provisions actually work on a day-to-day basis. Thus Part 2 of this brief is devoted to our recommendations for changing and modernizing specific Code provisions that in our view do not make sense from an implementation perspective or that have been superceded by external developments. Our comments follow the order of the Code's Divisions. Also, many of these are technical matters, but on the whole they do not duplicate the technical issues set out in the Commission's Technical Issues proposals of July 2005.

INTERPRETATION & DEFINITIONS

Standard versus Non-standard Work

Currently "standard hours of work" means the hours of work established pursuant to section 169 or 170 or in any regulations made pursuant to section 175. S.169(1) established "the standard hours of work of an employee" as "not to exceed eight hours in a day and forty hours in a week." The permanent, full-time, 9-5, Monday to Friday job was the norm in some sectors for so many years that work was often seen only in terms of that standard and all other iterations of work structure were "non-standard". Many employees who do not work on a "standard" basis, do work regular hours in a 40-hour work week, but they may not be 8 consecutive daytime hours five days a week, Monday to Friday. We recommend that Section 169(1) be rewritten so that the term "standard" is no longer used in the Code to mean 8 consecutive hours five days a week. Hours of work should reflect whatever arrangements suit the employer and employees, to the benefit of both. While minimum standards should create a fair framework for hours of work and overtime and prevent employers from taking advantage of employees, they should not establish a norm that is false. Elimination of the term "standard" in the Code and the widely accepted use of "non-standard" should help in the promotion of greater inclusion. All types of work should be seen as viable, acceptable and adding value.

Definition of Wages

The current definition of "wages" which includes every form of remuneration for work performed except for tips and other gratuities is problematic and out of date. There have been many developments in compensation (such as variable pay) in the past 20 years so that compensation methods today are highly various and complex and contain elements in excess of the legislated standards that are completely discretionary. The CBA recommends a new definition of wages as follows:

Wages are remuneration exclusive of: "Wages are remuneration exclusive of:

• Overtime
• Allowances and premiums
• Bonuses (both discretionary and contractually agreed)
• Tips and gratuities
• Commission or amounts related to production
• Or any other discretionary compensation
• Or an amount calculated by a method agreed and binding on employer and employee. Let the parties negotiate if they wish, but not below a specified floor.

Overtime should be calculated only on wages as defined. With respect to vacation, holidays, bereavement leave, and notice: pay should be on the basis of what would normally be earned during the leave period (regular wages). For those who work varied schedules, pay could be based on an average of wages earned in the 20 days immediately preceding the vacation.

Sales employees who are entitled to receive all or any part of their remuneration as commissions, etc. should be exempt from this requirement. Characteristics of these employees are as follows. They

• Are paid by commission and receive a large portion of their compensation through commission and bonus;
• Have a high degree of control over their work schedules;
• Are highly mobile and work largely independently, often away from the employer's premises;
• Are not tied to the employer's hours of operation, and their hours of work are not determined by their employer.

Employees who do not take vacation time should be entitled to receive a vacation indemnity at the regular rate of wages, within ten months immediately following the completion of the year of employment for which the employee became entitled to the vacation.

DIVISION I: HOURS OF WORK

70% Rule

At present an employer must obtain consent from 70% of affected employees in order to change or modify hours of work or to substitute another holiday for a general holiday. For many years the CBA has noted that this is neither fair nor democratic. One-third of affected employees can prevent a modification that is supported or desired by two-thirds of employees. We recommend that the 70% threshold be changed to "either greater than 50%" or a simple majority. This would be in line with the practices followed in a collective bargaining environment. Why should a non-union environment be held to a higher threshold if the employer and a majority of employees agree?

Overtime

Time off in lieu of Overtime Pay

Some employees who work overtime hours would prefer to take time off in lieu of overtime pay. The Code should provide for time off in lieu of overtime pay when the employer requests that the employee works additional hours. This should be provided at a premium, e.g., time-and-a-half. However, the Code should also accommodate employees who wish to work extra hours in order to take time off on other occasions in order to meet their unique personal needs. In such cases, the extra hours should be available on a one-for-one trade.

Employees Who Ask to Work Overtime

It is a fact that some employees freely choose to work more than one job. Many would find it more convenient to do so with the same employer. Some employees ask their main employer to work additional hours, nights or weekends, often in another unit or location. Employees who request to work additional hours in order to supplement their income or because they want more experience, should not find themselves turned down by the employer because of a requirement to compensate at premium pay. Employers should be able to accommodate such requests, within reason, without having to provide time off in lieu or to pay overtime premiums. However, there should be a limit on the number of hours an employee who wants to work additional hours can work in a week - such as 60 hours a week.

Exclusions from Overtime (S.167(2)) - Non-application of Division I to Certain Employees

The current exclusions from the hours of work rules in the Code, particularly from s. 174 (Overtime Pay), provide that the rules do not apply to employees who are managers or superintendents or who exercise management functions or to members of professions that are designated by regulation (architectural, dental, engineering, legal or medical professions). These are appropriate exclusions which should be maintained, but a more comprehensive approach to exclusions is needed so that they are not tied exclusively to the definitions of manager or superintendent. There are other groups of employees who are highly paid, frequently work longer than eight hours at a time, are not paid on an hourly basis and have a high degree of control over their work, but who do not exercise management functions. Usually it is inherent in the nature of the work, and individuals who choose these careers understand this. For example, information technology professionals typically know that their work is very time sensitive, if, for example, a system "crashes." For this reason, jurisdictions like Ontario exclude IT professionals from overtime provisions. Furthermore their salary levels are predicated in part on the basis that their hours are occasionally likely to exceed the minimum standard. They can also advocate for themselves. They include employees in information technology and treasury operations among other areas. We strongly recommend that these employees not be eligible for overtime pay, and that overtime provisions not be tied to definitions of manager or superintendent.

Recent Changes to U.S. Fair Labour Standards Act (FLSA)

In the U.S. the Fair Labour Standards Act (FLSA) has, since it was first passed in 1938, taken a more realistic approach to exclusions from overtime pay by recognizing that salary levels and certain types of work as well as job level should trigger exclusions. The FLSA has always included exemptions for certain executive, administrative, professional and outside sales workers thereby extending exemptions to a broader group than the Canada Labour Code. Later certain employees in computer related occupations were added to the list of possible exclusions. The overtime provisions in the FLSA have recently been updated and amended. As of August 2004 the following criteria apply: for the exemptions to apply an employee generally must be paid on a salary basis of no less than $455 per week and perform certain types of work that:

• Is directly related to the management of his or her employer's business, or
• Is directly related to the general business operations of his or her employer or the employer's clients, or
• Requires specialized academic training for entry into a professional field, or
• Is in the computer field, or
• Is making sales away from his or her employer's place of business, or
• Is in a recognized field of artistic or creative endeavour.

We recommend that the Canada Labour Code establish a certain level of income such as $75,000 as the ceiling beyond which one cannot qualify for overtime. Such a ceiling may require other factors to also be present before the income threshold becomes operative. We would be pleased to work with the Commission on development of an appropriate threshold.

Flexibility to Negotiate Overtime

The workplace parties should be allowed some flexibility with respect to overtime. The Code should set broad parameters and allow the employers and employees to manage the workload themselves to their mutual benefit to the greatest extent possible. Consideration could be given to establishing a cap on the amount of overtime that can be required by an employer, although the cap should not be too inflexible. For example, the Code should provide that overtime should not exceed a certain number of hours in a quarter (three-month period).

Right to Refuse Overtime

Employees have a right to refuse overtime. We recommend that the threshold for refusal should remain at 48 hours in a week, or some other agreed upon variation such as in a three-month period as suggested above.

Training, Travel and Overtime

When the employer requires that an employee should take training (e.g., especially for obtaining requisite licenses or certificates), and it must be taken during evenings or weekends, then overtime provisions and exclusions should apply. Business travel on personal time, however, does not qualify. We do not support the view that business travel should be conducted only during business hours.

DIVISION IV: ANNUAL VACATION - CALCULATING VACATION PAY

As the provisions in Division IV now stand, vacation pay is based on a percentage of annual wages. Modern pay practices, however, are so varied, that basing the 4% and 6% on many components of compensation is unreasonable. Depending on how wages are defined, those calculations can result in vacation pay "windfalls", for some employees if overtime, bonuses or commissions are included. We believe such windfalls were not the intent of Section 183. Vacation pay should not be linked to annual wages by an arbitrary formula and should not be a means for an employee to earn "extra" income. We recommend that vacation pay should reflect the underlying purpose of providing annual vacations - i.e., vacations are a form of leave of absence without loss of usual income for the purpose of rest and relaxation. Section 183 should be amended to require that the employee receive his/her normal earnings for the period absent rather than a percentage of the year's total earnings, i.e., it should be straight salary continuance. For those who work varied schedules, pay will be based on an average of wages earned in the 20 days immediately preceding the vacation.

Sales employees who are entitled to receive all or any part of their remuneration as commissions, should be exempt from this provision (see list of their characteristics under Definition of Wages above). Employees who do not take vacation time, should be entitled to receive a vacation indemnity at regular rate of wages, within ten months immediately following the completion of the year of employment for which the employee became entitled to the vacation.

DIVISION V: GENERAL HOLIDAYS

We find the provisions for general holidays to be unnecessarily constraining: they can create conflicting legal requirements for the employer between the Canada Labour Code and the duty to accommodate religious differences under the Canadian Human Rights Act. They can also place a federally regulated employer at a disadvantage with respect to provincially regulated competitors which in some cases have different holidays or greater flexibility. Statutory holidays at Easter provide an example of this: the federal holiday is the Friday before Easter Sunday while the Quebec holiday is the following Monday.

We recommend that the general holiday provisions be modified as follows:

• The list of general holidays (s.166) and the provisions for entitlement (s. 192) should be made more elastic to accommodate individual employees' religious, cultural or personal preferences and to meet competitive pressures with provincially regulated financial institutions
• When a holiday falls on a non-working Saturday or Sunday the employer should be able to decide whether the alternate day should be the day before or the day after the holiday or some other day as agreed to by the parties.
• When an employee asks to work on a statutory holiday in order to take off a specific religious holiday, as agreed with the employer, the employer should not be obligated to pay time and a half. As is the current practice, when an employee works on a holiday at the employer's request, he/she should be paid at time and a half. As operations permit, the employee may choose another day as a holiday which would be paid at straight time.

DIVISION VII: REASSIGNMENT, MATERNITY LEAVE, PARENTAL LEAVE, AND COMPASSIONATE CARE LEAVE

The Right to Written Notice of Employment Opportunities

The language of s. 209 puts the person on leave in a more advantageous position than the employees who are at work, and it is our view that this was never the intent of this provision. For example, not all jobs are posted in the workplace. Employees at work may not know about a new opportunity, and yet the employer is required to provide written notice to the person on leave even though the position may not be open to other employees. It is our understanding that the purpose of these provisions is to ensure that the employee on leave is not disadvantaged with respect to information that is available in the workplace. We recommend that the wording in s. 209 be amended to read: "is entitled to have access to the same employment, promotion, or training opportunities...that are generally available to employees present in the workplace." Eliminate "in writing", and "ever...opportunity".

The Right to Reinstatement after Maternity Leave

The language in s. 209.1(2) also places the returning employee in a more advantageous position than the employees in the workplace. If, during the leave period, restructuring occurs in the particular workplace and the employee's previous position is eliminated, the returning employee may have a unique and possibly more advantageous position than the employees who were in the workplace during the same period. We recommend that the wording in s. 209.1(2) be amended to read: "the employer shall ensure that the employee receives the same opportunities or assistance that is provided to all the affected employees."

DIVISION IX: GROUP TERMINATION

DIVISION X: INDIVIDUAL TERMINATION

DIVISION XI: SEVERANCE PAY

Termination of employment is a difficult occurrence for all stakeholders under any circumstances. The Code provisions regulating these situations need to be clear about roles, responsibilities, and underlying principles. CBA members strongly believe that it is unnecessary and confusing to treat group terminations, individual terminations and severance as separate issues and in separate processes. Furthermore there is widespread misunderstanding regarding the nature of severance pay. Severance is not deferred wages. It is the means of providing income protection for a specified period of time as support to a terminated employee who is seeking another job and should be governed by many of the same principles as Employment Insurance. This means employees should not be eligible for severance if they choose not to seek other work upon being terminated. We also find the 16-week period for giving notice to the Minister of Labour in group terminations to be too long. The employer may need to act more quickly than that timeframe allows because of business or legal considerations or for competitive reasons. We have a number of recommendations based on years of experience for streamlining and improving these processes that should benefit all parties.

Recommendations

• The Code provisions must reflect the principle that the purpose of severance pay is to provide temporary financial support while a terminated employee looks for another job, and that severance is not deferred wages. This is entirely consistent with the common law approach to notice/severance which also provides for substantially longer periods of notice thereby providing a better standard for employees.
• Merge Divisions IX, X, XI into one division on employee termination.
• Eliminate the distinction between notice to employees and severance. This will bring the Code provisions more in line with common law.
• Once severance is folded into the notice requirement, the Code should be amended to provide increased consideration for terminated employees by increasing notice from the rate of two days wages for each completed year of employment to five days. However, any notice entitlement is subject to the duty to mitigate. Such notice period should have a statutory maximum of six months which is consistent with many provincial standards.
• The employer should have the option to provide notice or to pay the employee a lump sum in lieu of notice. Notice stops when the employee finds other job.
• Notice applies only when termination of employment is initiated by the employer. In such circumstances as a permanent layoff, the employer is obligated to assist employees with the transition to other employment.
• We are opposed to providing payment where the employment contract is terminated because of frustration of contract, e.g., when the employee cannot meet the requirements of the position - if an employee has been absent for disability for extended periods and every opportunity for accommodation has been tried without success, or an employee has lost immigration status. Other social programs should apply when the employment relationship ends through no fault of the employer.
• If employees who are severed are eligible for an actuarially reduced pension, but choose to work, they should be eligible for notice. However, employees have a duty to mitigate regardless of age or entitlement to pension. It is their responsibility to seek another job, and the employer must provide the appropriate notice to assist them. If an employee decides not to work, the employer should not be under any obligation to fund what would essentially be a leave of absence. The ability to draw pension should not impact the right to notice as long as the individual is looking for work.
• The sixteen-week notice period to the Ministry of Labour regarding the termination of 50 or more employees within a single establishment is too long and should be eliminated. If notice to the Minister is considered necessary, the notice requirement should be no longer than eight weeks, or the CBA would support a graduated approach as in Ontario legislation. For example, the Ontario requirements are 8 weeks notice for 50 to 199 employees; 12 weeks for 200 - 499 employees; 16 weeks for over 500 employees.
• The Labour Program should offer three or five-year renewable permits waiving the requirements for ministerial notice, posting requirements and planning committees to employers who are able to demonstrate that appropriate transition and adjustment programs are in place for assisting employees should terminations occur. If the employer makes changes to the adjustment and transition programs in place, the employer would need to apply for another permit. The permit process would allow the Minister to review and approve (or not) an employer's plans. Joint committees and special Ministerial waivers could then be eliminated as they are rarely used.
• In today's environment, the Code's posting requirements are outdated (e.g., for group termination). There are more effective and humane ways of communicating, and the employer should be able to decide how this is done.

DIVISION XIV: UNJUST DISMISSAL

Unjust dismissal is another circumstance that is difficult for all parties, and here we find the Code provisions particularly unhelpful for both employers and most legitimate complainants. There are two major issues arising from the current provisions for unjust dismissal:

• There are too many unfounded, frivolous and exorbitant complaints that proceed to adjudication even though they have no prospect of success.
• The complaint process takes far too long - it can sometimes be years before final resolution is achieved.

We believe a number of steps could be taken to weed out frivolous complaints leaving the more substantive ones, such as: (i) limit the number of employees who have access to the complaint process by virtue of eligibility requirements; (ii) tighten up the process through the use of strict timelines especially with respect to adjudication (adjudicators should not take on cases that they are not going to be able to complete within a reasonable time); and (iii) giving adjudicators power to award costs. The CBA urges consideration of the following recommendations for improving and streamlining this process:

Eligibility

• It should be recognized that very few jurisdictions have a provision such as s. 240. Outside of the federal jurisdiction only in Quebec and Nova Scotia do employees have access to this form of complaint resolution. Employees in all other jurisdictions have access to civil means for resolving dismissal complaints.
• We believe the provisions in s. 240 should be reserved for those employees who have a substantial investment in terms of length of service with an employer. The current eligibility requirement in s. 240(1) is twelve consecutive months of continuous employment. One year - or even the two years required in Quebec - is not a long enough investment on the part of the employee to warrant invoking the substantial and costly unjust dismissal process. Nova Scotia legislation requires ten years continuous employment. We would suggest that five years is an appropriate eligibility period.

Election of Process

• There are employees who engage in "forum shopping" - seeking to be heard in all available or potential forums: the Labour Program complaint process; civil law; or the Canadian Human Rights Commission complaint process. The complainant should not be able to choose the unjust dismissal route if they have tried either civil or CHRC routes. At the time of making a complaint the complainant should be required to elect what process to use to seek restitution.

Time for Making a Complaint

• A complaint of unjust dismissal should be made within 30 days of the date on which the dismissal occurred. This is a reduction from the current 90 days. Complainants should be required to provide in writing the reasons they believe their dismissal to be unjust. Extensions may be granted for special circumstances, but not beyond 90 days. Subsection 240(3) currently allows extensions beyond 90 days.

Reasons for Dismissal

• The time allowance for the employer to respond to the complainant's request for a written statement of the reasons for the dismissal should be increased to 30 days to bring it in line with the complainant's schedule.

Inspector's Right to Dismiss

• The Inspector should have the right to dismiss a complaint before it goes to the Minister of Labour for a decision on an adjudicator. Inspectors should have certain discretion to dismiss or to refer the complaint to the Minister.
• No complaint should go to adjudication if:
  • there is no prospect or no reasonable likelihood of success;
  • the complaint is frivolous, trivial, unfounded or exorbitant or launched in bad faith;
  • the function / position at issue has been eliminated or discontinued;
  • there is a demonstrated downsizing in the organization or division of an organization;
  • there is mutual agreement between the parties to settle all matters in relation to the termination;
  • time limits are not met;
  • the employee has elected to proceed under civil or other administrative procedures for remedy of termination and related matters;
  • the particulars in the complaint do not provide prima facie grounds for a complaint.

Adjudication

• A request for an adjudicator should be made no later than two weeks from the date of the report by the Inspector.
• Findings by the Inspector who worked on the complaint should not be made available to the Adjudicator. There should be clear firewalls.
• A hearing should be held within three months of the appointment of the adjudicator.
• A decision issued by an adjudicator should be served on the complainant and employer within forty-five days of the date of hearing, failing which a written explanation must be provided for the delay. The Labour Program should remove adjudicators from their list who are repeatedly or unreasonably late.

Powers of Adjudicator

• Adjudicators have the authority to determine the procedure to be followed. This authority should include the option of holding preliminary proceedings when the adjudicator can rule on the admissibility of the complaint based on written submissions.

Additional Recommendations

• We suggest that a provision should be added allowing either party the right to request transcripts at their own expense and on condition that copies will be provided to the other parties if requested. It is possible that transcripts should be required.
• A provision is needed with respect to when unjust dismissal is not found. The adjudicator should have power to: (a) award costs against the complainant; (b) make an order to require restitution, and (c) do any other like thing that is equitable to require the complainant to do in order to remedy or counteract the effects or consequences of their conduct.
• There should be a provision for the statutory right of appeal to the Federal Court on any question of law or fact. If transcripts are made, they could be used in judicial review.
• If the changes above are made, clause 246(1), Civil Remedy, may be eliminated.

2.1 LABOUR STANDARDS AND HUMAN RIGHTS

Labour standards should not include legal requirements respecting human rights in the workplace. All human rights provisions that relate to employment should be dealt with in the Canadian Human Rights Act (CHRA) and should not overlap with Part III of the Canada Labour Code. The current bipartite treatment of certain human rights (e.g., sexual harassment and pay equity are dealt with in both the CHRA and the CLC, Part III) is confusing for employees and may be confusing for employers especially if the role of the regulators is not clear. The CBA recommends that the sexual harassment provisions, and possibly the pay equity provisions, currently in Part III of the Code, should be removed, and that they and any other potential legislation regarding any form of harassment or any other prohibited ground of discrimination should be dealt with in the CHRA only.

PART 3 - LABOUR MARKET DEVELOPMENTS AND LABOUR STANDARDS

3.0 INTRODUCTION

In this Part we will discuss the major socio-economic developments that have dominated employment trends in Canada in the last quarter century and that have been identified as worthy of examination in the review of federal labour standards. These are: forms of employment relationships and non standard work; balancing work and family or personal responsibilities; workplace productivity; and diversity and changing demographics in the workforce. Some of these developments have led to significant change such as the transformation of the Canadian labour force from being largely white and male dominated to a highly diverse population accompanied by a new, significant role of women. Furthermore the rapid growth in non standard forms of employment has altered the profile of the Canadian labour force.

Each of the four issues is of major interest and direct concern to the banking industry - new regulation in any of these matters would have a significant impact on the banks as employers. But in our view it does not necessarily follow that change should automatically trigger a need for new legislation. In fact, we think that very little new regulation with respect to the Canada Labour Code, Part III, is needed in response to the key developments noted in the consultation paper. What is critical is that the trends and the thinking about them be closely examined so that it is possible to identify clearly and concisely where there may be critical regulatory gaps and to focus practical responses to them, recognizing that in many instances minor adjustments may be all that is required. In fact, the government's smart regulation policy demands such an approach. We would also like to point out that labour regulation is not always the desired response to changes that have taken place in the workforce.

3.1 CANADIAN LABOUR MARKET DEVELOPMENTS - NON STANDARD WORKERS

Statistics Canada data reveals that during the first half of the 1990s there was significant growth in Canada of "non standard" forms of employment in which they include part-time, temporary and self employment (both employer self employment and own-account). Own-account self employment grew at a surprising rate in Canada, and at a much faster rate than in the same period in the U.S. This phenomenon has attracted a great deal of academic and public policy attention. The representation of this group jumped from 7% of the labour force in 1989 to 11% in 1997 where it remained for several years. Although the level dropped to 10% in 2000 and has hovered there since, there continues to be widespread concern among academics, public policy organizations, governments and others who have been studying non standard employment from economic, social and regulatory perspectives.

The major cause of concern is that these workers are not covered by a labour standards regime and therefore lack the structure and protections that such a statutory regime offers: limits on hours of work and overtime, statutory holidays, vacation pay, a job on hold during maternity or parental leave, paid sick leave, other paid leaves and so on. They do not receive any of the non-statutory benefits that employers offer such as extended health care, pension plans, employee share purchase plans and support for training. The Employment Insurance program is not accessible to most self employed people, and to participate in the Canada Pension Plan or a workers compensation program they must pay both employee and employer premiums. They are sometimes described as "vulnerable" workers who are at risk because they lack the support systems that can see them through job loss, maternity and parental leaves, serious illness, or retirement. In addition there is data that suggests that individuals in groups already marginalized in society such as single mothers, people in visible minorities and recent immigrants have difficulties finding permanent work, set themselves up as self employed or willingly accept whatever job they can find and thereby become prey to the risks involved. Some studies indicate that approximately 25% of self employed individuals have annual income of $20,000 or less. Of particular concern are "disguised employees" - those workers who although ostensibly self employed are, in fact, functioning in a workplace as if they are employees, their work and their schedules controlled by an employer.

3.2 ALTERNATIVE PLATFORMS FOR DELIVERING EMPLOYEE PROTECTION AND BENEFITS

At the present time statutory and non-statutory protections and benefits are only available to employees who are in an employment relationship with an employer. Much, if not most, of the research on non standard employment is questioning whether the employment relationship is the appropriate platform for such protections since there are substantial numbers of people who are not in employment relationships. Alternatives to the employment relationship as platform that are being proposed vary widely both in Canada and internationally. Some thinkers and advocates are going back to square one, e.g., the Law Commission of Canada, the European Union Expert Committee on the Changes in Work and the Future of Labour Law in Europe, are considering the entire field of work and social security and how they might be reconfigured in order to be more inclusive. We feel that these broad concepts are beyond the parameters of the current discussion of the Canada Labour Code, Part III.

However, the CBA is very concerned about other research recommendations, particularly recommendations for extending the definition of employment or the employment relationship to include all working people who are economically dependent on their work whether or not they are self employed or in some other arrangement. In their comprehensive October 2002 study of self employment in Canada, The Legal Concept of Employment: Marginalizing Workers, Fudge, Tucker & Vosko while providing evidence that, among other things, self employed people "do not constitute a homogeneous category," nonetheless conclude by recommending that "all workers dependent on the sale of their capacity to work" be covered by labour protection. In other words, all paid work would become the basis or platform for delivering labour law protection. A similar recommendation has been made in Quebec. The 2005 report by the Bernier Committee, The Social Protection Needs of Individuals in Non Standard Work Situations, recommends to the Quebec government, among other things, expanding the definition of employee to include: 1) a person who works for another person and for remuneration, 2) whether this person is or is not an employee under a contract of employment, and 3) who is obliged to personally do work for that other person in such context or under such terms and conditions that he or she is made economically dependent on that person.

The CBA is opposed to extending the definition of employee or the employment relationship to individuals who are in a business relationship with an employer, who have no intention of making a long-term commitment, and who have chosen to work outside of the employment law framework. None of the research we have consulted explains how such significant change would be structured, what protections would actually be attached to the new relationship, whether it would in fact be an employment relationship at all, or what an employer's obligations would be. For example, Fudge et al acknowledge that their proposal raises the practical challenge of developing the mechanisms and institutions that could make labour protection effective for all working people and suggest that a minimum standards law that applies to all workers should be developed, for example, or a system of universal entitlements that would protect the economic welfare of all citizens, regardless of their attachment to the labour market.

To extend the employment relationship to all workers in order to capture self employed individuals misses the point of what true self employment is all about (independence, flexibility and freedom from bureaucracy). Furthermore the definitions of employee and employment relationship have been developed and refined over many years in the common law. Extending the definition of employee to all workers as opposed to employees would introduce a further complicating factor for determining a person's status. Such a recommendation also fails to acknowledge the significance of the employment relationship to both employers and employees. Through this relationship, the employer makes use of the human capital under the organization's control in such a way that enables it to achieve its business goals. For the employee, the employment relationship provides not only the basis for his or her economic well-being, but also is a significant means for achieving personal goals and satisfaction.

Guylaine Vallée, in a study that is part of a series on vulnerable workers sponsored by Canadian Policy Research Networks (CPRN), explores a number of the recommendations for potential alternate platforms for delivering rights and benefits in such ways that would include workers who are currently excluded. She examines broadening the work relationship beyond the existing employment relationship as well as making use of human rights as the platform, using work in the sense that European Union Expert Committee has proposed (i.e., including non-market forms of work such as raising children and volunteer work, self employment, periods of education or training); and finally collective representation. In spite of her analysis - or because of it - Vallée concludes that no single model, including broadening the employment relationship would be satisfactory in itself and that further study is required.

Views of Non Standard Workers

We are struck by the fact that nearly all of the literature examining non standard employment that we have consulted fails to take into account the views of non standard workers themselves, and of self employed workers in particular. Graham Lowe, formerly of the University of Alberta and former head of CPRN's Work Network, has been interested in the nature and quality of various forms of employment from the employees' perspective. In a more recent study called Rethinking Work, conducted in partnership with Ekos Research Associates, he launched surveys in 2004 and 2005 with both employees and employers exploring views on types of work; the quality of work and work environments; expectations of employees and employers; levels of job satisfaction and what goes into achieving or promoting such job satisfaction. The employee survey revealed that in 2004 63% of respondents were in permanent full-time jobs, and 68% of respondents work regular, daytime schedules, substantiating Statistics Canada data in this regard - i.e., approximately two-thirds of the labour force continue to work in standard jobs.

Rethinking Work also found that 13% of respondents were self employed. About two in three of these individuals (66%) had been self employed for more than five years, and 84% of them planned to remain self employed. Most of them (64%) do not have employees. They were more likely to be found in management occupations as well as business, and resource and construction industries; they were more prominent among top income earners and those working at both extreme ends of the work schedule - less than 25 hours per week and more than 43 hours. They are older; the proportion of individuals working for themselves increases with age. They are also more often members of professional associations. The 2004-05 surveys built on an earlier CPRN study of what factors go into making good employment relationships and in understanding how employees, whether full-time or part-time, or self employed people, actually feel about their work. Rethinking Work included a number of questions designed to solicit views around the quality of jobs and job satisfaction. The results substantiate and enlarge on the earlier findings, i.e., that self employed people have above average job satisfaction, they are more positive about key features of their work and they experience lower levels of stress including fewer stress-related health consequences. Very few have interest in becoming an employee. The Rethinking Work report notes that "these positive attributes of self employment need to be weighed against the risks, such as reduced job security, benefits, and for some, earnings.... these findings suggest that we can learn more about what is missing for many employees by taking a closer look at what underlies the quality of work-life of the self-employed."

3.3 CBA RECOMMENDATIONS WITH RESPECT TO NON STANDARD WORK

The CBA believes that there are more practical ways of addressing concerns about non standard workers, particularly the self employed. While it appears that most self employed individuals have made a conscious choice to remove themselves from a protected labour standards environment and in doing so have made certain trade-offs - i.e., no statutory or employer provided benefits in exchange for independence and flexibility, it is our view that the current legal framework could offer them some basic protection. In this regard, we strongly recommend that the Employment Insurance program and the Canada Pension Plan be made accessible to own account self employed individuals. Terms and conditions for self employed participation (e.g., qualifying, registering, submitting work records, etc.) should be developed as well as appropriate and manageable contribution requirements for both programs.

Most analysts acknowledge that self employed people do not constitute a homogenous group, and that there are significant numbers of medium and high end earners, and even lower end earners who, for various reasons, prefer the choice, autonomy and independence of self employment in spite of the lack of benefits or, in many cases, less income. The results of Graham Lowe's surveys in 2001 and 2004-05 strongly suggest that there are a substantial number of self employed people who would not consider themselves vulnerable. However, many researchers have observed that there is a "blurring" of the distinction between bone fide employees and individuals who are ostensibly self employed and in a business relationship with the employer, but who are treated as if they are employees. The extent of this practice is not entirely clear. The 2001 study by Graham Lowe and Grant Schellenberg reported that as many as 10% of self employed individuals were in situations with employers that could only be described as disguised employment relationships.

The CBA is opposed to this form of "disguised employment," that is, the hiring of individuals on a contract or business basis to provide a service, when, in fact, the reality is that they continue to work entirely under the control of the employer in the employer's premises and using the employer's equipment and supplies. In our view this is a specific challenge that needs to be remedied. They may be low wage earners who do not have the knowledge or ability to negotiate for themselves and who may already be trapped in low wage cycles. We recommend that these situations be identified and regularized to the extent possible by more proactive enforcement. They are unfair to the employees involved and they do a disservice to the many self employed people who have legitimately chosen to work independently.

Furthermore, however, several studies make reference to inadequate supports for low-skilled workers to move out of non standard or low-paying work arrangements and to train for and obtain better work. Training is an issue for low end earners whether self employed or not, and it appears that it may be easier to obtain training if you are unemployed than if you work in a low end job with no benefits and no opportunities to advance. In our view the issues relating to workers who are trapped in these situations go far beyond the application of labour standards. A 2003 study for CPRN by Ron Saunders, part of a series of studies on labour market vulnerability, suggests, among other things, that some form of tax relief should be investigated.

3.4 BALANCING WORK AND PERSONAL / FAMILY RESPONSIBILITIES

Balancing work and family and related issues have been major concerns in the banking industry since the 1980s if not before. Banks became aware of the issues early on in large part because of the high proportion of women in their workforces (representation of women has fluctuated between 70 and 77% since 1987). Even before the Employment Equity Act was passed in 1986 with its requirements to accommodate special needs and to report on the advancement of designated groups, the increasing number of women in dual career families and of single mothers in the workforce had already indicated that the need to assist employees to balance work and family responsibilities would be a continuing challenge. Over time the banks' program offerings to assist employees expanded from their early adoption of flexible work arrangements to the broader issues of work and personal life more generally and the stress arising from such conflict. Over time, all of the large banks developed comprehensive work-life programs which include:

• An array of options for flexible work arrangements including job sharing, compressed work weeks and flexible hours.
• Child care and elder care referral services. One member has contracted a children's centre in Toronto to provide backup childcare for employees when their primary care is suddenly unavailable. Another has designed and launched an internal, web-based, self-service approach to help employees manage dependent care issues.
• Additions to Employee Assistance Programs to provide counselling for time and stress management, among other things.
• Personal days, often paid, to allow employees to take care not only of family responsibilities such as parent teacher meetings, medical and dental appointments, etc., but also for volunteer work in the community.
• Introduction of wellness programs including seminars, web-based tools.

Banks are continually monitoring their programs to ensure they are current and effective. One of the first CBA members to launch a formal work-life program, has described how, over 20 years, they have been able to develop, modify and add to their program over time in order to keep it focused and up-to-date. Their approach has consisted of numerous studies, both quantitative and qualitative; research and benchmarking; formal impact assessments and evaluations over time to ensure that both the organization's and the individuals' needs are being met; the development of manager tools, training and supports; and the transformation of informal supports and arrangements into a program of formal policies and resources.

Within the broad framework of the CHRA's prohibition of discrimination based on sex and family status and the EEA's requirement to be proactive in meeting special needs of employees, much of the effort that the CBA's members have brought to bear on this issue has substantially exceeded the regulatory requirements. Based on this experience, the CBA strongly recommends that the Canada Labour Code, Part III, not be used as the vehicle for regulating any aspect of work-life balance and urges that the future focus of the Labour Program should continue to be on non-legislative approaches in this area. Tools for educating and assisting employers, especially smaller employers, in dealing with work-life issues could take the form of case studies, best practices manuals, non-binding guidelines, and web-based resources. They should be designed to help employers of vastly different workforce size find and implement solutions that are appropriate for their particular circumstances.

The CBA is opposed to establishing labour standards relating to work-life balance or any form of regulation of work-life balance and flexible work arrangements. Flexibility is the key in responding to work-life balance issues for both men and women. Employees need flexibility in order to be able to function in the workplace while caring for children, elderly parents or both, and employers need flexibility in order to be able to respond effectively to employees' needs while also functioning productively in a highly competitive market. Furthermore, flexible arrangements are, by their very nature, meant to respond to individual circumstances (almost all of which are based on unique combinations of factors), and are negotiated between an employee and his or her supervisor/manager. Among the conclusions of the 2003 final report on the comprehensive study, Voices of Canadians: Seeking Work-Life Balance, conducted for Health Canada by Linda Duxbury, Christopher Higgins and Donna Coghill, is the following observation along the same lines:

"There is no 'one-size-fits-all' solution to the issue of work-life balance. The data from this study show quite clearly that different policies, practices and strategies will be needed to accommodate employees at different stages of their careers and life cycles. "

We do not, however, agree with the same report's recommendation to entitle employees to up to five days of paid personal leave per year. The CBA is opposed to the addition of a fixed number of paid family leave days in the Code. Banks already provide both paid and unpaid days off for personal or family reasons on either a formal (e.g., having a formal policy of allowing so many paid personal days per years) or informal basis. To provide paid personal days would, in effect, be adding additional vacation days to the current legislated vacation requirements. The CBA strongly believes this is counter to the productivity considerations set out in the mandate of this review of Part III of the Code.

3.5 DIVERSITY AND CHANGING DEMOGRAPHICS IN THE WORKFORCE

The banking industry strongly supports workforce diversity in all of its manifestations. In our view the issues relating to women, Aboriginal people, people with disabilities, and people in a visible minority are adequately covered by the Employment Equity Act (EEA) and the Canadian Human Rights Act (CHRA) . Obligations of employers under the EEA are extensive including detailed annual reporting to the Minister of Labour; the development of special measures to increase employment and advancement where there are gaps; and the requirement to undergo an intensive audit by the Canadian Human Rights Commission. In addition to the regulatory approach in the EEA, the CHRA prohibits discrimination against, among others, the four designated groups and requires the accommodation of special needs in the workplace. The CBA would object strongly to any further regulation relating to managing a diverse workforce. The CBA is not opposed to reviewing existing requirements to allow greater flexibility in the management of a diverse workforce, such as our recommendations relating to greater flexibility in the taking of statutory holidays (see page 8 above).

On the other hand, non legislative aids providing guidance, role models, case studies, etc., would continue to be useful in these areas particularly, from the banks' perspective, with respect to employment, retention and promotion of Aboriginal people and people with disabilities. As long as Canada's Employment Equity Act is in force, we do not see a specific role for labour standards in addressing issues arising from a multicultural workforce.

The same is true with respect to retirement issues and the aging workforce more generally. At the present time, the Canadian Human Rights Act prohibits discrimination based on age, but allows mandatory retirement if the employer can provide a bone fide occupational requirement (bfor) for doing so. It should be recognized that the standard for establishing a bfor is very high. Although a federal task force recommended the elimination of the bfor defence, and at least one province has already done so, the Canada Labour Code does not contain any constraints with respect to employees being able to work as long as they wish. Here again, non legislative tools would be most effective in helping employers understand the implications of the aging workforce, options for initiating retirement through phasing programs, and experiences with older workers (65 and over). Case studies, roundtables, and web-based resources are more effective than legislation.

3.6 WORKPLACE PRODUCTIVITY AND RESPONSIVENESS

Productivity is a complicated concept, and, at the present time is causing concern in Canada because of the way Canada is lagging behind other advanced economies in this regard. No one thing or specific regulation can guarantee a productive workforce. It is more likely a result of the right combination of many factors. Studies suggest that qualities such as job satisfaction, trust in management, effective and efficient policies and practices, and employer support for flexibility in managing work-life challenges are among the conditions that would promote high levels of productivity. The Canada Labour Code, Part III cannot dictate these particular workplace qualities but it can help to foster productivity by ensuring that regulatory requirements are clear, that the law is not burdened with heavy-handed administrative requirements, and that it has enough elasticity to allow employers and employees, should they wish, to modify or exceed Code standards.

Training and lifelong learning are the most obvious components of productivity. In our industry, banks have provided training for their employees for decades, and are today leaders in providing alternate delivery channels so that training can reach more employees more of the time and be conducted at their convenience and at their own location. The CBA has been monitoring the six large banks' training investment for many years. It has never fallen below 1% of payroll (the generally accepted benchmark) and has often been over 2%. But we do not agree that legislation should dictate how much training is required. Training needs vary from year to year and from employee to employee. In Quebec, where we have had some experience working with their regulated training requirements, we found them to be administratively cumbersome and time consuming to very little effect. We should point out that it is even possible that there could come a time when the training investment falls below 1% of payroll, not because an employer is failing to provide training, but because the employer has found ways of training online that are more effective - in ways that reach more employees but actually cost less to the employer.

CONCLUDING COMMENTS

To review our broad concerns: we would urge you to maintain the integrity of the employment relationship as it has developed over many years; streamline and modernize the Code's cumbersome, out-of-date provisions; make use of the existing potential of the eight employment related statutes, keep them focused but make sure they work together seamlessly; make use of non-legislative tools - case studies, non binding guidelines, focused seminars on difficult issues.

And finally, flexibility is important to the banking industry, to both employees and employers. You may be assured that we do not look on flexibility as licence to act irresponsibly. In the final analysis our employees are our most important resource.

In conclusion, we would like to thank the Commission for inviting us to submit our views.

Endnotes

¹ BMO Financial Group, Bank of Nova Scotia, CIBC, National Bank, RBC Financial Group, TD Bank Financial Group, HSBC Bank of Canada