Port of Montreal Operations Bill, 2021—Consideration of Subject Matter in Committee of the Whole—Senator Dalphond

By: The Hon. Pierre Dalphond

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Senator Dalphond: First, I would like to thank Mr. Murray and Mr. Morin for being here with us today. It’s important to hear the parties’ perspectives directly from them, and not through the media, which can sometimes paint an incomplete picture.

To pick up on Senator Dagenais’ excellent questions, I would like to ask about the changes that were imposed by the employer on April 9, without discussion and unilaterally, if I understand correctly.

From what I understand, one had to do with a change to work schedule policy and the other related to guaranteed hours. Can you clarify this further?

I also have a second question for you right away. Does the special legislation, if passed, restore the collective agreement as of January 1, 2019, which will require the employer to pay the guaranteed hours?

Mr. Murray: With regard to guaranteed hours, Senator Dalphond, that is a trade-off that has existed for 50 years thanks to the absolutely incredible availability of longshore workers. What they get in return is the job security that is the cornerstone of our collective agreement.

From what I understand, the employer was going to comply with that provision should special legislation come into effect. However, we do not have any guarantees that the employer will comply with the working schedules, which were uninterrupted schedules that were used 99% of the time, even if there were only one or two ships in port. I do not have any answers on that.

Like you, I, too, read the bill where it talks about the extension of the collective agreement. I would also like to add that, if possible, should you pass this bill, honourable senators, you should add to section 6 that the working conditions and scheduling practices that were in effect at the Port of Montreal on April 9, 2021 — so before they were amended by the employer — should continue to be applied in order to protect the men and women that our union represents.

If you were to pass this bill, it would be the best way to protect those men and women, so that the employer does not continue to punish the people we represent after they are forced back to work. If back-to-work legislation is passed, although that is not what we want, there would have to be a period of mediation afterwards, and this would have to be done in the best possible conditions.

That is why we are asking you to make this addition to section 6, in the event that you pass the bill, so that after the extension of the collective agreement, the employer will comply with the working conditions and practices that were in effect on April 9.

Senator Dalphond: This is my third question.

You say that you are dealing with an association of employers that is rather absent and sends public relations people to the table, but that the real decision makers are not there. I noticed that they haven’t appeared in the media, as we haven’t seen them. I really want to hear what they are going to say to us in a little while because they have virtually stayed silent. We have heard from the Minister of Labour, we have heard from the government and you, but we have not heard from them. It leads me to believe that you are right when you say that they are rather discreet and even absent.

In this situation, couldn’t arbitration be the means of obtaining, through a decision imposed by a third party, solutions that these absent employers are not really interested in coming up with?

Results might be achieved more quickly with arbitration than by waiting on these people for years.

Mr. Murray: It all depends on the outcome, senator. With all due respect, imposed agreements leave lasting scars. It’s an admission of failure if the employer doesn’t manage to reach an agreement with the Syndicat des débardeurs du port de Montréal, which many employer associations have managed to do in the past. This isn’t the first time. We’ve been part of the Port of Montreal for 100 years, and there have been lots of collective agreements. This would be an admission of failure for this employer.

Depending on the outcome, with all due respect, when a collective agreement is imposed by a mediator-arbitrator, that leaves lasting scars, and I have to say it will also do lasting damage to the hearts and souls of the men and women we represent. It could affect their resolve to go back to work with a positive attitude.

When things get so bad that a mediator-arbitrator has to impose a collective agreement, that’s kind of an admission of failure, and I’m not sure these people will hold on to that sense of pride in working for this employer. I do know that they’ve been proud to be represented by their union, but I’m not sure they’ll feel quite as proud to work for this employer.

Senator Dalphond: If arbitration sides with the union, I imagine that the employees will be proud of the work the union has done.

Has there ever been special legislation in the past 100 years, or is this the first time special legislation would be passed for the Port of Montreal?

Mr. Murray: The last time there was special legislation was in the early 1970s. If we’re talking about ports, two special bills were passed for the Port of Vancouver. There were massive complaints about both bills from the International Labour Organization, which described them as unconstitutional. I might add that neither special bill passed by Conservative governments for the Port of Vancouver can be found in the House of Commons legal corpus anymore.

Senator Dalphond: All right. I will leave the three minutes I have left to my colleague, Senator Mercer. Thanks again for being here, Mr. Murray.

 

[…]

 

Senator Dalphond: Thank you for being here today, Mr. Tessier. We heard from the media that you’re not seen much, so it’s nice to see you, and it’s nice for the media to see you as well. I understand that there have been two issues since April, namely the guaranteed income and the shift schedules. Would you agree that if the special legislation is passed, the old collective agreement from 2013, which expired in December 2018, would apply and would automatically restore the employees’ right to a guaranteed income?

Mr. Tessier: Yes, that is stated in the provisions of the legislation. During the last strike, there was a transition period that allowed us not to reintroduce job security, because you have to understand that we don’t have any more rail cars or freight. That means we would probably be paying people to sit at home doing nothing. Unfortunately, the law. . . Unfortunately, if the law is passed, it won’t be bad for us, the union or the Canadian economy. There will be no transition period. If the workers have to go back to work tomorrow, then yes, we will reinstate the provisions on job security, meaning the guaranteed income.

Senator Dalphond: I understand that there will also be retroactive pay, since the collective agreement will be applied retroactively to January 1, 2019.

Mr. Tessier: No, unfortunately the pay will not be retroactive. Yes, the agreement will apply, but there was still a strike. During the strike, we are not prepared —

Senator Dalphond: No work was done.

Mr. Tessier: No work was done.

Senator Dalphond: But there was a period during which you changed the guaranteed income and the strike, because the strike was April 26.

Mr. Tessier: Yes, but there was a partial weekend strike, so we didn’t have to pay for those hours because the employees did not have full availability for seven days. However, if the legislation passes, we will pay everyone tomorrow morning, even though there was no work.

Senator Dalphond: The second problem is the scheduling. You stated earlier in your presentation that this occurred because of the weekend strikes. This forced you to use the exceptional measures included in the collective agreement, because it is not the usual schedule and does not reflect the way you manage. The legislation will ensure that weekend strikes are no longer possible. Does that mean you’ll return to the usual schedule?

Mr. Tessier: If the legislation passes, given that there are no transitional measures, we could always use the shift schedule, but, in all honesty, that is not our intention. If the bill is passed tomorrow morning, we will do away with the shift schedule, go back to an overlapping schedule and work with the union. If there are other operational issues, then in two or three months, we could use the shift schedule, but if the bill passes tomorrow morning, then we will go back to overlapping schedules.

Senator Dalphond: According to Mr. Murray, two issues caused the strike: the changes to work schedules and guaranteed income. The coming into effect of this legislation will mean that, as of tomorrow, workers will go back to their regular schedule and guaranteed income.

Mr. Tessier: Yes, because the legislation will alleviate anxiety and mitigate the impacts of the strike, which led to volume losses from a business perspective. The legislation will allay market concerns. If there is special legislation, then it will mean that it will be impossible for either side to use pressure tactics. We will therefore be able to reinstate — we will obey the law with regard to job security. We will have no choice. Given that there will be no more uncertainty, we will go back to overlapping schedules and do away with shift schedules. In order to do that, we need the provision of the law to allay market concerns and uncertainty and get our volume back up.

Senator Dalphond: Thank you. That addresses two of the concerns raised earlier. If I understand correctly, you’re preparing for a mediation process. You’re an expert mediator. If, after 21 days, your mediator finds that no progress can be made and that neither side is willing to pursue the process, the mediator becomes the arbitrator. That is the person who will listen to both parties and make a decision about each contentious issue. How many contentious issues are there on the table? Are there 160, 25, 12?

Mr. Tessier: There are lots. I don’t want to put a number out there because there’s always some disagreement with the union when I put numbers out there, but I would say it’s around 30, maybe 25 or 30 contentious issues at the moment.

Senator Dalphond: Are you prepared to let a third party make decisions about those 25 or 30 issues?

Mr. Tessier: Honestly, that’s where we’re at. I would have preferred to reach an agreement with the union, but we are so far apart in our positions that we need a third party to intervene. We’re prepared to take that risk.

Senator Dalphond: There is talk of lost economic activity in Montreal, and that concerns me. Within your employers’ association, since you also operate in Toronto and Trois-Rivières, for example, could some of this activity be diverted to other ports that are occupied by the same operators, whether in Halifax or elsewhere?

Mr. Tessier: It’s not a question of the same operators, but rather the same shipping lines. It’s a bit different. Your question gives me the opportunity to make the point. The shipping lines are not the decision makers at the Maritime Employers Association. I want to make sure everyone understands that, because we hear a lot of things.

Senator Dalphond: It’s a bit of a mystery for most people.

Mr. Tessier: We are the Maritime Employers Association, and we employ the longshoremen and checkers in Montreal, Trois-Rivières, Bécancour, Hamilton and Toronto. We make the decisions. I am like a president of the employers’ union. I have a board of directors, I have a mandate, and I make decisions based on that mandate, much like Mr. Murray does with his members.

Halifax and Philadelphia are ports that some of our shipping lines use. However, when you send the cargo elsewhere, it costs more in freight charges, which is great for CN and CP.

The Chair: Senator Dalphond, you have two and a half minutes remaining.

Senator Dalphond: I will yield the balance of my time to Senator Mercer.

 

[…]

 

Senator Dalphond: I would like to thank both ministers for attending the Senate today. It’s important that we have access to you both to get more information about this important bill.

Minister Tassi, there has been much speculation about what the adoption of the law means for actions recently taken by the employer and union at the port. Your department has provided a brief statement, and the parliamentary secretary answered the question about this in the House yesterday. I am wondering if you could expand on this for us today.

Ms. Tassi: I thank the senator for his question.

I’m very happy to respond to this question. The bill states that the collective agreement between the parties that was in place in December 2018 comes back into force. That’s essentially what happened. The important thing to realize is that the parties did negotiate that agreement. They were the ones that set the terms of the agreement, and now what will happen is that everything will revert back and that agreement will be in full force and effect. Anything that the parties could do in the collective agreement, they will be able to do. Anything that they cannot do as a result of the collective agreement will be repealed. They can’t do that.

The example my parliamentary secretary gave was the question of the minimum weekly salary. The employer decided to change the pay and pay only for hours worked. Since this change wouldn’t have been permitted under the collective agreement, the employer will need to revert back. To answer the question, it will all depend on what the terms of the collective agreement that the parties had previously negotiated and agreed to allow, and those are the provisions that will prevail.

Senator Dalphond: Thank you, minister. I don’t know if you watched the appearance of Mr. Tessier, on behalf of the employers, earlier today.

Ms. Tassi: No, I didn’t.

Senator Dalphond: You may recall — you better than me, as a matter of fact — there are really two conditions that triggered the strike: The stopping by the employer of paying the guaranteed income, seven hours a day; and the second thing was the decision of the employer to change the working schedule. In answer to my questions earlier today, Mr. Tessier said he agrees that if the bill comes into effect tomorrow, he will, as per the collective agreement, make sure that they are paid the guaranteed salaries all the time and he will revert to the old working hours schedule, which I understand were the two prerequisite conditions of the union to immediately end its strike.

As a consequence of your bill, we received today from the representative of the employer a confirmation that the two requirements that were asked for by the union to go back and to resume work will be met. I don’t know if you were aware of that, but I think that the bill has brought something that, unfortunately, the negotiations at the table were not able to yield.

Ms. Tassi: Senator, thank you. I wasn’t aware. I wasn’t watching. I was preparing for my own appearance today. I would say that I think it’s very good that you asked that question. I’m pleased with the response. I’m pleased to hear that.

The message that I continue to give the parties is that mediation is open to them. If they come to an agreement in the next 24 hours, then that agreement is going to stand. Even when mediation starts, whatever agreement they come to, we’re going to respect. I know that Peter Simpson is available as the mediator at any time. I know he carries his phone around on a regular basis. Whenever the parties reach out, he will be there at the table and the mediation service will assist in any way they can. It is important that I have the opportunity to reaffirm that message.

Senator Dalphond: The bill does not really refer to the fees and costs for the mediation and arbitration. In the back-to-work legislation for Canada Post, it said the Crown will get a kind of claim against the parties for that. Is that going to be provided to the parties here free of charge, or is that going to be charged later back to both parties?

Ms. Tassi: I’m going to ask my officials to step in. My understanding is that both parties will be responsible for payment, but I want Deputy Minister Sandra Hassan to confirm that I have that right.

Sandra Hassan, Deputy Minister, Labour Program, Employment and Social Development Canada: You’re absolutely right, minister. The cost of the mediator arbitrator will be borne by the parties, 50-50. It is provided in the proposed bill at section 13.

Section 13 of the bill explicitly states that payment of the remuneration is the responsibility, in equal parts, of the employers’ association and the union.

Senator Dalphond: When we move to section 15, there are orphan words that refer to the final offers, the kind of baseball arbitration. That was removed by the House of Commons, the main section was removed, but these words are still found in other sections. Do you see any problem with these words still being there? Mr. Murray has suggested that perhaps we should amend the bill to remove these words.

Ms. Tassi: Thank you, senator, for that important question. I will confirm that I have had a conversation with my deputy and have been very clear in terms of ensuring that the arbitrator mediator, who is either selected by both parties or appointed by me, has very clear instruction. I think the amendment made in the other place is very clear. The arbitrator/mediator will be given those instructions to ensure they have a full and complete understanding of the tools they have before them.

Deputy, I don’t know if you wanted to add anything to that.

Ms. Hassan: No, you correctly expressed the position.

The adjustment made in the House of Commons concerned a specific clause to eliminate a form of arbitration. The fact that it is referenced in section 15 can definitely be taken into account directly when the mediator-arbitrator is appointed. They can be informed that Parliament discussed and indicated the form of arbitration expected and that, consequently, the arbitrator is expected to use this form of arbitration, which is the only one referenced in the bill that, if passed, will become law.

Senator Dalphond: If I understand you correctly, the powers of the mediator are defined in another clause that clearly states that the only power is to mediate in the absence of an agreement to go into arbitration. Arbitration is carried out based on the issues at stake, and each party can present its position, after which the arbitrator can render a decision to favour either party’s position, a position in between the two, or any other position he or she considers to be appropriate. This is clearly stated in the wording of the legislation, and the words that remain in clause 15 do not concern the power. They are just oversights. When we read the entire bill, there is no doubt as to the intent of Parliament.

Ms. Hassan: You have summed it up very well, senator.

Senator Dalphond: Thank you. I believe my time is up.

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