Soumission

Labour Standards For The 21^st Century

Introduction

The Saskatchewan Joint Board, Retail, Wholesale and Department Store Union is Saskatchewan's largest private sector union representing employees in the federal and provincial jurisdictions, primarily in the retail, service and production plant sectors. We have extensive experience before all levels of the courts, labour relations tribunals and legislative drafting, particularly as it relates to labour standards in Saskatchewan.

Many of our major achievements in collective bargaining relate specifically to terms and conditions of employment for workers who work outside the normal, M-F full-time day shifts. This has been a focus of much of our Union's efforts, in collective bargaining and in legislative reform. We note that it is our experience that these workers are generally young and from primarily disadvantaged groups including single women and mothers, aboriginal people, immigrants, and members of other visible minorities.

We endorse the Submissions of the Canadian Labour Congress, the Grain Services Union and the International Longshore and Warehouse Union (Canada) and submit the following additional comments. This review is long overdue and we wish to thank you for the time and consideration the Commission is giving to this very important initiative.

The Commission's Mandate and the Questions for Consultation: A Statement on Our Conceptual Perspective

Below is our response to the first set of questions. A review of the rest suggests a lot of overlap in the conceptual framework for this review. We have approached this review in a manner similar to that of the CLC and provide our comments in that regard following the answers to the questions.

At the outset, we must express a concern with respect to an aspect of this review. At the outset of the Consultation Paper, it is stated that "Minimum standards also provide a level playing field for employers in the marketplace". We agree with that wholeheartedly. Leading into the first set of questions, we are asked "to take into account the impact of our recommendations on…..employers…..and the Canadian economy". Throughout the questions are the following: "How can the Code promote investment, job creation, productivity and competitiveness.."; "How important is the use of these forms of work for employers…"; "How important is the use of these forms of work to ensure business competitiveness and economic growth.."; "What would be the impact of these measures on…employers and the Canadian economy in general..".

In every consultation, study, presentation, legislative review, debate, round table, and at every bargaining table since we first unionized a workplace over sixty years ago, employers and their proponents have said that this or that improvement in the terms and conditions of employment of every worker will negatively affect their "bottom line", "their competitiveness locally, provincially, federally, and internationally" and that they would be forced to "close", "move elsewhere" or "downsize". This became such a common threat that most labour legislation specifically outlaws such threats.

We are cognizant of the push by George Bush and his American corporate groups towards globalization, free trade and the growing attempt by corporations worldwide to race to the bottom in terms of working conditions and labour costs. We are keenly aware of numerous threats and actual choices by such corporations to move elsewhere to gain access to cheaper and less empowered workforces.

We are also cognizant of worldwide opposition and action to resist such political and economic blackmail at all levels of society including many governments. Even the US is reconsidering this attitude as the corporations of China, Japan, South Korea, and India enter the global marketplace to compete.

If there is one message that we could leave with you that represents our concept for this review, it is this: Canada is respected worldwide for its compassion and its respect for citizens, including working people. We urge you to keep us on that path and resist the temptation to alter our course - labour standards are to set the minimum standards for Canadian workers when they exchange their labour for wages. As we define those standards as a country, let us not succumb to economic threats and define our standards by the lowest bidder in the marketplace.

Our second message is simple: GBA...gender balance analysis. As you ponder and discuss the changes you will recommend, ask yourselves this question. How will this impact on women in our society and will this improve their lives as equal citizens in this great country? As we define and improve the lives of women in Canada, we define ourselves as a nation to this world.

Our third message: At the end of the day, place yourself in the position of a worker who must work under the minimum conditions permitted by your new Part III. The conditions of work of the lowest paid, least protected worker define our level of humanity.

Responses to Questions for Consultation

1. Setting the Bar for Federal Labour Standards
   1. The overall objective of federal labour standards should be to set Canadian standards as a societal objective reflecting our values as a country. This should include adopting all ILO and International Standards as a minimum and becoming an enlightened world leader. Presently, the US through its corporate elite has promoted a "race to the bottom" in world-wide labour standards, encouraging economic development based upon the lowest standards for labour. This permeates the Canadian economy with attitudes such as: if you don't agree to our working conditions, we will build/expand where they are lower; if you don't lower statutory standards, we will invest elsewhere. It should also be noted that the federal standards set precedent for provincial standards, international standards both in terms of legislative initiatives and judicial interpretation.
   2. Their main purpose should be to improve the working conditions of all Canadians. All workers are vulnerable, particularly in the non-union sector.
   3. Obviously, they should try to adopt and generalize new innovative practices which improve the working conditions of our workforce. There is every reason why Canada has a responsibility to working people as part of its responsibility as an enlightened world leader.
2. It is a general principle of law that one cannot contract out from legislation.
   • There should be a provision which makes it clear that any collective agreement, contract (written or oral), memorandum, letter of understanding or agreement between an employee or employees and an employer or its agents is in violation of the Code if any provision or part thereof provides for a benefit, right and/or term or condition of employment which is less than any provision or part thereof of the Code. Many jurisdictions are unclear on this point and there is some jurisprudence which equivocates on this issue. Our view: Rights are not subject to 'horse trading'. Permitting such trade-offs opens the door to asking for such and therefore places rights into the market place to be determined by the employer. Unorganized workers and particularly those with lower education, less secure personal and social situations and less grasp of the language of the Code are very vulnerable in this regard. Saskatchewan has such protective wording.
   • There should be an absolute ban on provisions or sections of the Code which exclude or permit exemptions that are negotiated by a union and/or a majority of workers in the workplace affected. Opening this door invites employer proposals to do such and workers/unions are then faced with economic coercion and other forms of intimidation to seek such exemptions/exclusions. Our view: Rights are not commodities and there should be no method by which they become such.
   • Some rights, in fact many, affect primarily disadvantaged groups. We do not encourage the 'tyranny of the majority' nor majoritarianism so we ask that you keep that door tightly shut.
   • Our experience is such that leaving room for exemptions/exceptions at the discretion of the "Director" (or similar) opens the door too wide. Political pressure or undue influence is inherent in our political system. Why open that door? For example: Overtime in Saskatchewan is by statute, voluntary and is to be paid at 1.5 times rate at minimum. Upon application to the Information Commissioner, it was learned that hundreds of employers in the construction industry had been given exemptions. Our view: A right or benefit is just that. Eliminate discretion. Take the politics out of our rights.
3. See answer to question 1a.
4. Generally, creating legislative differentiation in the application of a legislative provision will attract Charter scrutiny. The jurisprudence is constantly evolving in this area and we would encourage legislative leadership rather than reliance upon judicial intervention and the unbearable costs for working people and unions to take up those issues. See O.N.A. v. Mount Sinai Hospital (Ont. C.A.), May, 2005, for recent example.

   Beyond that, it is difficult to understand the conceptual premise for the question. A standard is a standard. All workers are entitled to "equal protection and benefit of the law" under the Charter. We see no reason to create the conditions for deviating from that concept.

   On a related issue, there are hundreds of statutes and/or statutory provisions which deal with labour standards that are outside the Code and within federal jurisdiction. This separation has an institutional aspect and a political aspect. We encourage the concept of ONE CODE FOR ALL and ask that the Commission review related federal legislation for such purpose. There are multiple layers of administrative and adjudicative bodies with concurrent or related jurisdiction on the same or similar issues. The tribunals and courts struggle with this issue continuously, again at great litigation costs to workers. Workers struggle with identification of which agency to talk to. Conflicting advice is not unusual.

   When interpreting a law, tribunals and courts look at other laws for comparison as precedent or guidance. This has two aspects: what do other jurisdictions say about this issue and what other statues impact on it. Some see this as persuasive, some see it as binding, some see it as guidance and some see it as irrelevant.

   This leads to the issue of accountability. If another law is being amended or created which impacts on another law and/or its interpretation (like the Code), should all those potentially affected be able to know and respond to it before it becomes law. We say, of course! The recent attempts to invade the privacy of ILWU members working in our ports under the guise of "security" through legislative means outside of present statues is an example of such.

   We as a society and as workers have the right to know when the legislature intends to change a law that may affect labour standards before they do it. The simplest way to ensure that, and the most expedient and efficient, is to have one Code.

5. See answer to question 4.
6. The Code is about workers and their standards of employment in this country. It is not an economic development statute nor should it be. One can provide a library full of research on the debate between the role of the state and the economy. One can also provide research ad nauseum to support the concept that providing "a decent environment" for workers and their families permits bosses to live a decent life as well. The question being asked in and of itself is cause for concern. Rights are not commodities whose value should be determined by the market.

Our responses to most other questions are incorporated below in general terms. Most of the remaining questions address similar issues. If you find some of these concepts within your comfort for recommendation, we would be more than happy to assist with making specific recommendations and/or drafting legislation to make them a reality.

GENERAL COMMENTS AND RECOMMENDATIONS

Precarious Work: Implications for Part III

We support the CLC and its conceptual framework to reverse the trend of breaking up full-time work into part-time blocks of hours. We attach our Submission to the Minister of Labour in Saskatchewan respecting this issue. We would encourage you expand a bit more in the following areas:

• Providing benefits and other rights that are dependent upon a legislated threshold for qualification (particularly hours worked) opens up two doors in our experience: employers ensure that they avoid providing hours that will permit employees to reach that threshold (it is very simple to do!) and enforcement of such requires the hiring of many officers to monitor and many more for adjudication and enforcement, on one issue! Hence, the importance of the companion elements - scheduling and most available hours.
• Scheduling permits a method for enforcement by creating a record for monitoring employer "avoidance" behaviours. One should include some comments requiring the maintenance of these schedules for a period of at least two years and employee access to them. Saskatchewan has legislation in this regard.
• Most available hours or maximizing your hours based upon length of service (date of hire?) is also critical in enforcing the part-time benefits. It permits employees to ensure that employer "avoidance" is severely restricted and able to be caught immediately.
• Some rights and benefits are dependent upon status as a permanent or full-time employee. One might consider a provision which triggers a full-time and/or permanent position after a certain period of consecutive weeks working "full-time hours". This is another aspect of protecting against "avoidance" behaviours.

Compliance and Enforcement: "A Right Without A Remedy is a Right Writ on Water"

• We would encourage inclusion of a stronger link between the mechanisms for and need for enforcement The existence of unions in a workplace is the most effective, efficient, cheapest in terms of tax expenditures, and empowering method of enforcement and most effective method for achieving education objectives re: Part III Standards. Strengthening the ability of employees to form and join unions is essential to Part III enforcement and therefore, this Commission should specifically recognize such by including recommendations for changes to other Parts of the Code to achieve this objective.
• The concept of workplace committees is great, however, we ask that you consider additional elements: "majoritarianism" or empowerment concerning the composition of the committees? (e.g. a committee of all white, able bodied, English speaking, heterosexual males would not be the concept we promote as the way to enforce the rights of women, aboriginal people, etc.) We also need to avoid compartmentalizing "isms".
• Workplace committees are an acceptable concept, so long as they are committees of employees with the authority to rectify. We encourage the concept that "those who are the intended beneficiaries of the authority or law should be the decision makers".
• The duty to accommodate has become one of the most serious, confusing and important issues of our time. Mixed in with this issue are the massive growth of workplace absenteeism policies and programs. We strongly encourage that there be specific provisions providing for the duty to accommodate and minimum standards and protections with respect to protecting workers who are sick, injured, ill or unable to be at work through no fault of their own. Human rights appears to cover this area reasonably well, however, the absenteeism issue is not dealt with there. Our View: You cannot fire/terminate/dismiss/discipline/demote/layoff or otherwise and in any way refuse to continue the employment of an employee in their position if their absence from work is not their choice, including without limiting the generality of the foregoing, because of the illness, injury, sickness or disability of their child, parent, spouse, partner or close personal friend.

We support the CLC for its focus on this issue. We would encourage including the following concepts:

• It is difficult to monitor and enforce provisions with thresholds for entitlement. Including a provision making it an offense to engage in practices or use of policies which have the affect of avoiding the rights and benefits of the Code (no intent is required to be proven) would go a long way to discourage such behaviour.
• Yes. Penalties need to be increased. In light of the Honda decision, we recommend jurisdiction to award aggravated and punitive damages.

New Institutional Mechanisms

We support the CLC vision and would encourage a concept that is somewhat akin to how we started many Unemployed Workers Centres - funding to the central/local labour councils and bodies to provide for office and staff for such. The Employment Insurance Commission, the adjudicators and judges have applauded the benefit of such in the context of employment insurance. Having similar or operationally integrated centres for labour standards enforcement, education, training, and compliance issues makes immense sense.

Lifelong Learning: Training and Educational Leaves

If we adopt employer "best practices" and legislative precedent around the world, there are tons of examples which prohibit the concept of lay-offs. Why not adopt this approach? Once employed, the employer works to ensure qualification, training and access to vacancies/new positions within the company for employees. It also dramatically discourages the trend towards "precarious work" and moves the worker and their labour from being treated purely as a commodity to recognition of the "person".

Job Security, Severance and Unjust Dismissal

• We restate our comment immediately above.
• Many collective agreements have the concept of "innocent until proven guilty" re: you remain at work until an adjudicator accepts that an employer can terminate an employee. Why not as a minimum standard?

Self Governance and Labour Standards

In recognition of the right to self governance of first nations/aboriginal people, there should be a section of the Code which aggressively seeks empowerment. This does not mean we support a law which permits anyone from creating working conditions which are less than those recognized by this Code. Enforcement mechanisms, educational processes, dispute resolution methods, affirmative action concepts and many other areas can and should be open to recognition of this right to self governance.

Conclusion

We apologize for not providing the wording for specific amendments to specific sections of Part III of the Code. Like interest bargaining, perhaps a useful approach might be for the Commission to come out with an interim report identifying the concepts and intentions it is recommending. At that point, we would kindly offer our assistance in providing specific language to give birth to your ideas.

Should you wish more information with respect to any matter raised in our submissions, please do not hesitate to ask. This is a daunting task given that over 40 years have passed since the substantive aspect of federal labour standards has been reviewed. Perhaps this might give us cause to be somewhat forward looking in our choice of amendments. We progress as we experience life. Since most of us spend the majority of our lives at work, what that work should be like is critical to our social, economic and political well being as a nation and as a country in the years to come.

We commend you for your commitment to the task given to you and offer our appreciation and assistance on behalf of our more than six thousand members.

Saskatchewan Joint Board,
Retail, Wholesale and Department Store Union (ILWU - Canada)

Larry Kowalchuk, General Counsel

Retail, Wholesale and Department Store Union (ILWU - Canada)
1233 Winnipeg Street
Regina, Saskatchewan
S4R 1K1

Facsimile: (306) 569-9521
Phone: (306) 569-9311
E-mail: lkowalchuk@rwdsu.sk.ca