Third reading of Bill C-29, An Act to provide for the resumption and continuation of operations at the Port of Montreal—Senator Dalphond

By: The Hon. Pierre Dalphond

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Chateau Laurier, Ottawa

Hon. Pierre J. Dalphond: Honourable senators, allow me to present a few observations as a jurist and senator from Quebec.

The first ones will be on the role of the Senate as compared to the House of Commons and the government, now that the Senate is an institution that isn’t controlled by the political parties represented in the House of Commons. The second observations have to do with the fundamental rights at play here, and the third with the contents of Bill C-29 before us.

The general public may not fully realize it yet, but more than three quarters of the members of this chamber are affiliated to three groups that have no ties to the political parties or the government. What’s more, none of these groups impose a position on its members when it comes to the votes that are held in the Senate.

In other words, a vast majority of the members of this chamber believe in individual independence and equality among senators. Former practices have become a thing of the past. The government of the day has to deal with this new reality as is the case today with the Committee of the Whole made up not only of ministers, but of representatives from both parties. By the way, the same cannot be said for the House of Commons, where the bill was passed under a gag order.

This newfound independence allows us to better fulfill our mandate and to make decisions based on facts while fully respecting the fundamental rights of all Canadians, including indigenous treaty rights, minority rights and rights recognized by the Charter of Rights and Freedoms, like the right to equality, freedom of association and freedom of expression.

I now turn to the fundamental rights that are before us today and that must be taken into account during our discussion and reflection on this bill.

In the 2015 decision in Saskatchewan Federation of Labour v. Saskatchewan, which Senator Gold mentioned earlier, the Supreme Court of Canada ruled on the extent of the right of association, most notably to include the right of freely associated workers to bargain collectively and, after negotiations have failed and a collective agreement has expired, to use legal pressure tactics to force an agreement, including, ultimately, by going on strike.

Justice Abella, a remarkable legal mind who will soon retire from the Supreme Court where she was appointed in 2004, wrote the following in the majority decision in 2015:

The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations. . . . The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction.

As the majority of the Supreme Court of Canada judges pointed out, the right to strike fosters fairness in the bargaining process. It pushes both sides to negotiate in good faith, which puts employees on an equal footing with their employer.

In this case, the last collective agreement freely negotiated by the Maritime Employers Association and the longshore workers’ union, CUPE Local 375, went into effect on March 20, 2013. At the time, this agreement represented the shared intention of the parties. It was not imposed by a law or by arbitration. It did not happen by accident, but was the result of long negotiations by experienced people on both sides. In fact, since 1970, all collective agreements at the Port of Montreal have been freely negotiated.

As you know, collective agreements are by definition of limited duration. The agreement signed in March 2013 expired in December 2018. Unfortunately, more than two years later, the parties are still unable to agree on the terms of a new collective agreement. Based on what I understand from what we heard today in Committee of the Whole, the parties seem to be far apart on about 30 issues.

It was in this context that, in April, the employer decided to change the income guarantees and the work schedules. These actions came in response to job action taken by the employees, but they served to heighten the adversarial atmosphere. The workers responded with a general strike, a right that is enshrined in law. A mediator and many outside actors, who were calling for a return to the status quo that existed before the events that provoked the strike, were not able to resolve the situation.

In the meantime, this general strike — which, I repeat, is completely legal — has had significant consequences for the Montreal area, all of Quebec, and many businesses and individuals in eastern Ontario and some Maritime provinces. These consequences are apparently even affecting some medical supply businesses, while we are in the middle of a pandemic.

That is probably why the mayor of Montreal, the Government of Quebec and many economic stakeholders in Quebec are unanimous in calling on the federal government to intervene. They say that the stakes are not limited to the employer’s economic interests, but also affect the development strategy of Montreal and of Quebec, as well as the supply of goods to third parties, particularly during the pandemic.

On the basis of mediation reports, the government came to the conclusion that an agreement to bring about the resumption of operations would be impossible to achieve. It is in this very particular context that it proposed that Parliament pass special legislation.

The government proposed special legislation as a representative of the community, not as an employer forcing the other party to accept its conditions, as was the case in the Saskatchewan Federation of Labour v. Saskatchewan decision, nor to impose its economic interests, as in the case of the Canada Post Corporation, of which the government is the principal shareholder.

In other words, the government’s intervention in this case is driven only by its perception of what must be done for every dimension of the public interest. In this instance, the bill will have several effects, one of which is to force workers to go back to work, or, in other words, to end their right to strike.

In my view, such an intervention is always possible under exceptional circumstances, even if it puts an end to the exercise of the constitutionally recognized right to engage in lawful strike action in the exercise of the right of association, provided that it meets the strict criteria of section 1 of the Charter of Rights and Freedoms.

What is this case all about? First, we have the June 2020 decision from the Canada Industrial Relations Board, in which it refused to declare that maintaining all services required for the full operation of the port constituted an essential service. Based on evidence previously presented, the board found that the employer was demanding too much. It’s important to remember that if too many things are designated as essential services, the right to strike becomes meaningless.

I also want to point out that the bill will restore the expired collective agreement and require binding arbitration if the parties cannot reach an agreement after a mediation period. This arbitration may cover all of the terms of the collective agreement that are at issue, of which there are around 30.

In other words, the bill mandates an end to the hostilities, forces negotiations to resume and, in the meantime, restores the collective agreement that was freely signed in March 2013, including the obligation that the employer pay for guaranteed hours. I would remind you that it was the decision to reverse these guaranteed hours after the collective agreement expired that provoked the strike.

As with any collective agreement, this one will also regulate the employer’s management rights. Do all of these measures constitute justified and minimal impairment to the Port of Montreal workers’ right to strike? I understand that the unions will put this question to the courts. I will refrain from answering it, but I do want to point out that this situation seem quite different from the case of the Canada Post Corporation, which has quite a history with special legislation.

Mr. Speaker, that is why I will not vote for or against this bill. I will abstain if a recorded division is held. In the event of a voice vote, this speech will confirm that I did not vote in favour of the bill.

Before I conclude, I want to point out that in response to my questions earlier today, Mr. Tessier, speaking on behalf of the Maritime Employers Association, said that effective tomorrow morning, if the bill is passed, they would cancel the two unilateral changes to the working conditions made on April 9 and 22 that provoked the general strike.

I want to remind honourable senators that the union has repeatedly been saying for the past week that its members would resume work as soon as these measures are revoked. It’s really unfortunate that the mediation process didn’t lead to that result, but I’m glad to see that, during the Senate proceedings, the employer finally committed clearly to what the union has been asking for.

Thank you. Meegwetch.

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