HUMA Committee Meeting

    Good morning, everyone. I call the meeting to order.

    I will give some overview comments before we hear from our officials.

     We have with us today, from the Department of Human Resources and Skills Development, Lenore Duff, senior director, strategic policy and legislative reform, labour program, and Charles Philippe Rochon, manager, labour law analysis.

    As you know, we received a letter from the chair of the finance committee inviting our committee to consider the subject matter of clauses 219 to 232 of Bill C-45. The letter essentially invited our committee, if it deemed appropriate, to provide them with recommendations, including any suggested amendments. We do have with us today Christine Lafrance, who's a legislative clerk, should we need her later on in the meeting.

    It's up to this committee in terms of what we propose to do after the hearing. I've looked at the notice of motion from the finance committee. Essentially, they leave it up to us to suggest whether we want any amendments or not. The decision will be theirs as to whether or not the amendments ultimately will be in order and considered in their clause-by-clause consideration of the far larger bill of which this forms a part, and they've referred specifically to us those portions that relate to the Canada Labour Code and specifically the sections that they reference in their motion.

    My view was that we would get an overview of those particular clauses from the officials. Then I was suggesting to this committee that we have them go through each of the clauses. Then, in a way that is a bit different from the normal practice, where we have opening rounds, I would leave it up to the members who have questions to put those questions as we go through the clauses, without any particular order. We will recognize a speakers list to go through those questions. If we have time at the end of all of that, we could open it up to some rounds of questions, but it might be more productive if we were to go through it clause by clause and raise any questions.

    That is the way I propose to proceed, subject to any further direction of the committee.

    Mr. Boulerice, do you have a point?

    Yes, thanks, Mr. Chair.

    Maybe I'm a little bit more traditional than you are, or maybe a little bit more conservative—

    Voices: Oh, oh!

    Mr. Alexandre Boulerice: —but personally I would like to have it in the old way of the rounds to ask questions. That would be my preference.

    You have a preference.

     Does anybody else have a comment?

    Go ahead, Monsieur Lapointe.

    Without necessarily describing myself as conservative, I support my colleague's position. I would be more comfortable if the question period was organized in a more traditional way.

    I'll explain why I thought we should proceed in the first way, the way that I suggested. It's simply from the point of view that this is closer to a clause-by-clause situation than a traditional witness situation, where you have questions flowing by rounds. From the point of view of the officials, it might be easier if we had some pointed questions relevant to the area or the clause that they're dealing with, but I'm not fixated on that. It's just the way I had discussed it with the clerk and thought we might go, but I might hear from others.

    Go ahead, Mr. McColeman.

    I'm in full agreement with your procedure. It actually shocks me that the NDP wouldn't be as well, because typically this is a very pragmatic approach to something that's very different from what the committee usually deals with, and it's in a very tight timeframe.

     The pragmatic approach would be to understand it, to treat it section by section, and to have it so that we understand it much better, instead of the structured format wherein politics can play a much larger part in the discussion. I think we need to eliminate that. We need to be part of discussing what this is and how it affects us.

    I fully support your way to go here, Chair.

    Madam Boutin-Sweet.

    Regarding the pace, we thought of proceeding in this way because we don't want to slow down the debate. I think it would be easier for us to ask questions on certain topics in the usual way. I think that would speed up the process.

    Does anyone else wish to speak?

    Go ahead.

    All I'll say is that this is very much like what we dealt with at our last committee meeting. A piece of legislation was brought forward to this committee and we reviewed it clause by clause. I think the intent would be to review it clause by clause so that we don't miss any details with respect to it.

     That is what I think the intent of the chair is. It's that we are able to review this in its totality, just like we would any other piece of legislation, a private member's bill or otherwise, that comes to this committee. It has actually been the standard practice.

    Okay. I think I've heard the views on this.

    In somewhat of a compromise, I suppose, if we move through it quickly, we'll open it up for rounds of questions, but I'm settled that it's more productive to go with an overview and then go through it clause by clause. If you wish to hold your questions until later, you can do that.

    That's the way I'll proceed. I so order. Unless I hear anything further, we'll have the officials make their presentations.

    Go ahead.

    Thank you, Mr. Chair. Thank you for the opportunity to present the main points of division 10 of part 4 of the Budget Implementation Act.

    I will speak mainly in English, but I will also answer any questions in French. Please feel free to ask questions.

    Basically, division 10 amends part III of the Canada Labour Code. Part III is the legislation that sets minimum employment standards for employees in federally regulated enterprises. That includes employees in banking, transportation, telecommunications, broadcasting, and a few other industries, such as grain handling, uranium mining, etc.

    The proposed amendments are basically aimed at making compliance with part III standards and requirements easier and less burdensome. It is also aimed at reducing the cost of administering the legislation. There is a whole series of amendments, but they can be grouped in four broad categories, which I will go through one by one.

    The first broad category, or the first objective, is to simplify the calculation of holiday pay. Currently, under part III, employees are entitled to up to nine general holidays per year, each of which must normally be paid by the employer.

     The difficulty, as we see it right now, is that there are actually numbers of different formulas for calculating holiday pay for employees, depending on how they are generally paid. There are different formulas depending on whether they are paid on a monthly basis, a weekly basis, or a daily basis, whether their hours of work vary from day to day, whether their earnings vary from day to day, and whether they are paid on a mileage basis as opposed to a time basis, etc. There is a large number of different formulas, which is extremely complicated. We've heard from employers, employees, and inspectors that they find the current system extremely difficult to administer.

    Another difficulty is that there are currently a certain number of eligibility requirements for holiday pay, one of which is also very difficult to administer. Right now, to be entitled to holiday pay, employees must have been employed by their employer for 30 days, but they must also, as a general rule, have earned wages for 15 days in the 30 days preceding the general holiday. Now, there are exceptions to this rule and exceptions to the exceptions. Basically, what we've found is that it is extremely difficult to determine who is entitled to general holidays, and, once that's been determined, to calculate the actual amount due.

    Again, from an administrative point of view, that is very complicated. From a fairness point of view, it's also a bit of an issue, because some employees will be entitled to holiday pay and others will not, and their conditions of employment are not necessarily that different from one another. Again, that has proven to be a significant issue.

    What this bill proposes is to put in place a new standard method for calculating holiday pay for a general holiday. It would be as follows. The holiday pay would be an average of the four weeks of earnings in the four weeks preceding the week of the holiday.

     For commission-paid employees, the calculation would be over a longer period; it would be over a 12-week period, quite simply because commission-paid employees tend to have some variation in their earnings, so we would want to make sure that we try to find a proper equilibrium to calculate their holiday pay. This would certainly simplify the calculation.

    In addition to this, we would eliminate one of the current eligibility requirements. Employees would no longer need to have earned earnings over 15 days in the preceding 30 days. This will actually increase the number of employees covered by holiday pay provisions and will certainly make it much easier to calculate the amount due.

    In the second broad category of amendments, we are establishing in the code a statutory complaint mechanism for all complaints not related to unjust dismissal. Right now, the code provides a complaints mechanism for unjust dismissal, but it is completely silent on any other types of complaints.

    This has proven to be a problem, because we've basically set a complaint mechanism in policy, but it does not have any legal weight. Again, it creates some confusion, because employees, in some cases, don't know how they're supposed to proceed to file complaints. On our side as well it is difficult to administer because, given that it is a policy and it has no statutory backing, it is difficult to determine when we can actually reject complaints, when they must be accepted, or what kind of timeline should be set down, etc.

    What we are trying to do now is set out an explicit complaint mechanism, which is what virtually all jurisdictions in Canada have. Right now, only the federal jurisdiction in Nunavut does not have a complaint mechanism for most types of labour standards or employment standards complaints.

    The mechanism would set down explicitly under what circumstances complaints can be accepted or rejected. It would specify actual timelines for filing complaints. The legislation proposes that employees have six months from the occurrence of the violation to make their complaint, although this would be subject to some exceptions that we can go into as part of the clause-by-clause consideration, if you wish.

    What the complaint mechanism will also specify are the specific grounds under which complaints can be rejected. They could not be rejected based on any ground other than those specified in the legislation. It would also provide a review mechanism for employees, so if their complaint is rejected by an inspector, they can ask for a second opinion. They can ask somebody to review that decision to make sure there is no arbitrariness in the rejection of complaints.

    The third broad category of amendments is with respect to payment orders. Currently under the code, where an inspector finds that an employer has not paid wages to an employee, the inspector can issue a payment order. This is an order to pay wages that are due. There is a fairly complicated mechanism for reviewing that, and I'll be going into that afterward, but one of the difficulties we've faced is that it's difficult to know what kind of period should be covered by a payment order. By policy, we set down that payment orders basically should only cover 12 months of wages, or wages in the 12-month period preceding the complaint. Again, that was set by policy and does not have any particular legal weight.

    Again, in some cases there were complaints, because it was believed that it should have covered a longer period. Also, in some cases it was difficult to determine how far back to go in determining whether wages are due, because somebody can make a complaint and say that they haven't been paid wages, and the inspector will start looking six months back, twelve months back.... The employee can say to please continue looking back until the inspector finds something they're owed. So the difficulty right now is that there is no specific standard or specific idea in terms of how long a period this should cover.

    What the code would provide for now is an explicit timeline for the coverage of payment orders. That would be 12 months from the date of the complaint or, where an employee has ceased to be employed—if the employee has been fired and then files a complaint—it would be 12 months from the date of termination of employment. With respect to vacation pay, that could go back 24 months. The reason for this is that vacation pay tends to be earned in one year and paid the year after, so we want to make sure we're covering all vacation pay at the same time. Again, the idea is to clarify what the requirements are in that regard.

    In the last broad category—and there were actually a few small miscellaneous things that I'll be discussing afterward—we are proposing to add a review mechanism for payment orders and notices of unfounded complaints. Again, payment orders, as I explained, are those orders for the payment of wages. Where an inspector finds that no wages are owing, the inspector will issue a notice of unfounded complaint to the employee, and this can also be appealed.

     What we are proposing is to bring in an administrative review mechanism for payment orders and notices of unfounded complaints. Under the current system, any employee, employer, or corporate director who wishes to appeal a payment order or notice of unfounded complaint, can bring it immediately to an external referee.

     That is a process that can be time-consuming, certainly, and somewhat costly, especially when we are dealing with purely factual issues. Sometimes mistakes are made when payment orders are issued. Rather than go through the whole system of appointing a referee, going through hearings, etc., what we're proposing is to bring in an administrative review mechanism so that factual errors can be corrected immediately, or at least as soon as possible. Basically, it would be done by people delegated by the minister, probably senior officials with expertise in labour standards matters.

    We would keep the current mechanism for appeals to referees, external referees, but this would be limited to issues of law and jurisdiction, or issues that are viewed as so complex that they actually merit going directly to a referee as opposed to going through the administrative review mechanism.

    The last couple of things to mention are that there are a few other minor technical amendments, one of which is to specify the timeline for payment of vacation pay on termination of employment. Currently, the requirement is somewhat vague; it does not set a specific timeline, so we would amend that to provide a 30-day deadline for payment of any vacation pay owing on termination of employment. That 30-day deadline corresponds to the current timeline for paying severance pay and termination pay for employees; again, employers could pay vacation pay exactly at the same time as severance and termination pay, which is a bit of a confused issue right now.

    Other than that, there are a few consequential amendments to other provisions, just to make sure the whole system can work. We can go through the clause-by-clause and address some of these issues separately.

    Okay.

     Do you wish, then, to enter the clause-by-clause? If you go through the first clause, I'll open it up to any questions, so be attentive to that. I appreciate that you made some general comments. Members might have some general responses to them before they get to the specifics, and I think that would be acceptable.

    Go ahead.

    Very good: do you need me to actually read out the clauses?

    No, I think—

    No, we can just skip directly...?

    —you can take it and go directly to the clause and give us the essence of it. I'll be watching for anybody who has questions. I think we'll start with proposed section 188.

    Yes. Basically, it's clause 219, which amends section 188—

    Right.

    That's the last point I raised. This is to specify the period within which vacation pay has to be paid upon termination of employment. We would specify that this has to be within 30 days from the date on which the employee ceases to be employed, which, again, is the same timeline as for the payment of severance or termination pay.

    Okay.

    Go ahead, Mr. Boulerice.

    I understand your concern about the consistency of the 30-day period. However, the old version—or the current unamended version—talks about a payment “without delay”.

    Why go from a payment “without delay” to making people wait for a month to receive their money? I think the approach is quicker and more efficient as it is.

    There some issues involved. The problem with the expression “without delay” is that the interpretation of that term will vary depending on the context.

    For instance, if an employee decides to resign and fails to give notice, what is the time frame? The problem is that, in certain cases, employers don't know either because they have to calculate the due amount. In other cases, payments have not been made, wages have not yet been paid out. Holiday pay has to be calculated in addition to wages. Some payments are not taken into account, and holiday pay also has to be calculated. That causes a problem, at least for inspectors, because the situation becomes a bit difficult if the employee complains. It's impossible to know whether the period will be longer or shorter.

    The second problem is that there are currently two contradictory provisions. One provision says “without delay” and another provision specifies “for all wages owed”. They must be paid within 30 days.

    Vacation pay is a salary. So we have two provisions. Which one will apply in this case? This is certainly a problem when it comes to interpreting the code. So we thought we would simplify things and use the same rule for all cases. That's why we settled on 30 days.

    Don't get me wrong, that's not an unreasonable period of time.

    We feel that a 30-day period makes it possible to make a single payment for all the money owing—be it severance pay, any payments related to licensing, vacation pay or any other payments. This way, a check can be made out to cover all the money owing.

    Another element should be mentioned. Currently, there is a deadline for submitting a complaint. A complaint can be submitted within six months following the set payment date. In this case, it's virtually impossible to calculate six months from the “without delay” reference. We are faced with a real administrative problem when it comes to determining the date, while 30 days is at least a clear period.

    Ms. Leitch, go ahead.

    With respect to the amendments that are being made in general, one of the items that has come up is what the comparability is, particularly with provincial jurisdictions, and where the intent was to drive these changes. Maybe you could touch a little on that with respect to what provincial jurisdictions do in this same space and the comparability between what is now being implemented versus the provinces.

    Each province has its own labour laws, so I will generalize, as opposed to going into the specific cases. The provinces generally do not have the same problem of discrepancy between the two. They tend to actually specify when wages must be paid upon termination of employment, and that includes vacation pay, severance pay, and everything put together.

    Right now we are just eliminating an inconsistency in the code, and therefore we will be consistent, as provinces are consistent, with respect to the payment of wages.

    Thank you very much.

    Thank you.

    Now we will go to clause 220 on proposed section 191.

    Okay. Clause 220—

    Sorry—hold on a second.

    Madam Boutin-Sweet.

    I just noticed that paragraph 188(b) has not been translated into French.

    That's proposed paragraph 188(b).

    The reason it wasn't translated into French was that only the English version of the legislation was being amended. The purpose of the amendment was to use a neutral term. It said

“his year of employment”.

    It was only in the masculine in English. We inserted the word their to also include the feminine.

    This amendment applies only to the English version. There was no issue with the French version.

    Okay, thanks.

    Carry on.

    Very well. Clause 220, which amends section 191, basically adds two new definitions to the general holiday division of the code. These two definitions are “holiday pay“ and “holiday with pay”. The reason for this is that we are using these terms thereafter. This is a drafting issue. It is just to ensure that we don't have to repeat the same words throughout all of these provisions.

    Again, “holiday pay” means pay that's calculated in accordance with section 196, so that's a new formula, and “holiday with pay” simply means a holiday for which an employee is entitled to holiday pay.

    Okay. Carry on unless you see any interventions.

    Clause 221 concerning proposed section 196 is where we actually set down the new method for calculating holiday pay. As was explained during the overview, there will be two systems, one general and one for commission-paid employees.

    The general system will be that employees will be entitled to one-twentieth of the wages earned in the four-week period preceding the week of the holiday. Just to be clear, wages in this case include not only salary and hourly wages but any vacation pay, any previous general holiday pay in that period, etc., so it's any earnings in that particular context, excluding overtime pay.

    For commission-paid employees, this will be averaged over a 12-week period. Again, maybe just an element to add is that this would apply only to commission-paid employees who have at least 12 weeks of service. The reason for that is that otherwise they might actually average over a longer period even though they haven't worked 12 weeks, so we just want to make sure they are not disadvantaged. If they don't have 12 weeks of service, they will be covered by the general rule, which is the average over four weeks.

    That is for proposed subsections 196(1) and 196(2). I'm not sure if there were questions on that.

    There will be questions, but perhaps you could finish proposed section 196, and then we'll open it up.

    Should I do the whole thing?

    The Chair: Yes.

    Mr. Charles Philippe Rochon: Okay.

     Proposed subsection 196(3) is actually the requirement for employees to be employed for 30 days. This is a requirement that already existed under section 202 of the code. We have simply moved that provision from section 202 to proposed section 196, the reason being that usually we want eligibility requirements to be at the front end in any division of the code so that people know whether or not they are entitled. This really just clarifies the matter. This is not a new requirement. This is the same requirement that was there before. It's simply been moved.

    Proposed subsection 196(4) looks at employees in a continuous operation. There has been no change with respect to this provision. It has simply been moved from elsewhere in that division, and it simply mentions that for employees in continuous operations—which have been defined at the front end and which include people who work for, let's say, transportation or telecommunications, and those particular activities that have to be maintained 24 hours a day, 7 days a week—basically the rules that applied before will still apply.

     On the one hand, if they do not report to work on a day after having been called to report to work, even if it's a general holiday, they will not be entitled to holiday pay. Second, if they have made themselves unavailable to work under a particular policy in their workplace, again they will not be entitled to holiday pay for that.

    We have clarified the language under proposed paragraph 196(4)(b). It basically states exactly the same thing as was the case before, but we have tried to make it clearer to avoid any inconsistent interpretations.

    Finally proposed subsection 196(5) simply specifies that when looking at the length-of-employment requirement, we are clarifying that this does not mean the employee has to work for 30 days. We only mean that they have to be employed for 30 days, so if they have been employed by their employer for a 30-day period but have worked two days a week in that period, that's not a problem. They will still be entitled to holiday pay.

     Monsieur Boulerice.

    Thank you, Mr. Chair.

    I have a few questions regarding these changes to holiday pay.

    You mentioned that people who are not eligible for holiday pay will now receive some money thanks to these amendments. Is that true?

    Yes.

    Have you estimated how many workers will be eligible for that pay from now on?

    One of the problems is the lack of clear statistics on that. To be able to give you an accurate answer, I would have to have an exact idea of the employment policies of all federally regulated employers to determine what they provide—approximately—and under what conditions. We would also have to know the schedules of all employees in great detail. Unfortunately, we don't have such sophisticated statistics.

    On the other hand, I can tell you that we have nevertheless identified certain groups of workers who are currently especially vulnerable when it comes to the eligibility requirements.

    We know that 110,000 federally regulated employees are working part time. That accounts for about 14% of all federally regulated employees. In addition, there are more women than men—9% of men work part time, while that figure is 20% for women.

    That being said, not all part-time workers are excluded. In certain cases, they benefit from an exception to the 15-day rule. If they have a regular and continuous schedule, they may be eligible. Nevertheless, a certain number of people have a flexible schedule and occasionally do not meet the 15-day standard. That's a fairly vulnerable group.

    Another vulnerable group is made up of employees who aren't eligible for paid sick leave. So we could be talking about someone who does not earn wages for 15 days out of 30 because they are sick or have to miss work. That's unfortunate, but, currently, if someone is sick and does not earn wages for 15 days, they are not entitled to anything.

    At this time, according to the latest data from 2008, three-quarters of federally regulated businesses do not give their employees paid sick leave, at least not systematically. That may be their choice. The fact remains that those employees are vulnerable if they have to miss work because of illness. There could be a problem with that, as a fairly large group of people is affected.

    There are also women who go on maternity leave or men who go on parental leave. If someone takes one of those leaves, returns to work and has not earned 15 days of wages, they are excluded. Thousands of people end up in that situation. The same goes for people who were temporarily laid off. Someone who was laid off and had failed to earn 15 days of wages is excluded.

    To come back to your original question, we cannot provide you with an exact figure. However, we can identify a number of groups that are currently vulnerable.

    With the method of payment standardization you are introducing, most part-time employees do not receive paid sick leave or parental leave, but some of them are winners who will now be eligible for that leave.

    Yes.

    However, a standardized system will also make other people lose out.

    Exactly.

    How many workers will have their holiday leave reduced, and how much will that payment be reduced by?

    My answer will be somewhat similar to the one I provided to the previous question. Our statistics are not accurate enough for us to be able to tell you that. We also cannot be sure whether or not employers will change their policies following the amendments. What's important is that employers tend to provide slightly more than what the code calls for. That statistic dates back to 2004, unless I am mistaken.

    Approximately three-quarters of employees under federal jurisdiction are entitled to more than nine general holidays.

    They are often unionized, right?

    Yes, absolutely; many of them are unionized. That's exactly right.

    However, there are more people who are entitled to those holidays than there are unionized people. Under those circumstances, will the employer necessarily make changes and reduce the payments? That's not clear.

    Those who may lose out are probably people who work over 15 days out of 30, but who do not work more than 5 days a week. In such cases, those people may end up with 10% or 15% less pay for a specific general holiday. Once again, we don't have the total number.

    It should be noted that people in that situation who may receive a bit less money for a specific general holiday could end up winning in the long term.

    Currently, with the rule of 15 days out of 30, people will be entitled to certain general holidays, but maybe not to all of them. There are nine general holidays. Someone who was sick one day may have missed one of those holidays. If they were temporarily laid off, they may have missed another one. If their schedule was changed, they may have missed a third holiday because they worked less than 15 days. Ultimately, even if the percentage is lower per general holiday, a person will be eligible for nine general holidays and for pay for all of them.

    I realize that this is not a clear answer to your question, and that's because we don't have all the figures. However, it's important to point out that we shouldn't only consider pay for a single general holiday. We have to look at the big picture. We think certain people will earn a bit less. There is no doubt about that. However, we believe that, overall, people will probably end up better off.

    If my understanding is correct, people who may lose a bit are those who work part time, but almost full time.

    Exactly.

    Okay, thanks.

     Thank you.

    Carry on.

    Clause 197 deals—

    Madame Boutin-Sweet has a question.

    Pardon.

    In the new wording, it is stated in more than one place—for instance in paragraph 196(1)—that the calculation of the wage portion—one twentieth—will not take into account overtime pay. I have read the previous wording, but I did not see anything about that. Was that included in the old calculation formula?

    That was actually included in the previous wording. Overtime pay did not count towards holiday pay. Currently, overtime is not included, but regular hours are. As previously mentioned, the systems are fairly complex. In addition, I must point out that the legislation is poorly drafted. So it's a bit difficult to make sense of it.

    It should also be noted that this provision is based on the current Quebec provisions. The wording we use is very similar to that used in the Act respecting labour standards, which also doesn't provide for overtime pay.

    If I have understood correctly, with the old formula, overtime was not included. I have not seen that, but....

    Actually, that is the current formula, as the legislation has not been amended. According to the current formula, overtime will not be taken into account. As I said, the legislation is drafted in a strange way. In some cases, it says that the wages of a person paid on a weekly basis will not be reduced, but by definition, that excludes overtime. There are also regulatory provisions on the calculation that apply to people with flexible schedules. Once again, the process is fairly complex. However, the legislation specifically indicates that overtime does not count. It is excluded by definition.

    Thank you.

    Thank you.

    Now you may proceed to clause 197.

    To go back to clause 197, what we are bringing in here are some of the provisions that are currently in sections 197 and 198, so we will repeal section 198 and bring all of these together.

    These provisions do not change other than some wording issues for clarification and also to make it gender neutral. It simply specifies the amount of pay that must be paid to employees who work on a general holiday. There are no changes compared to the current system. We're just bringing all of that together, and we're dealing both with employees in general and with employees working in continuous operations.

    Carry on, unless you see an intervention.

    Very good.

    There is no significant change to proposed section 199. This simply specifies where a manager is a professional and working during a general holiday. Again, we've made the language a bit clearer and gender neutral, with no significant change.

    For proposed section 200, it's the same thing. We're using “holiday pay” because that's the terminology we're now using, but there's no change. Holiday pay will still be deemed to be wages.

    Proposed section 201 is a new section. This is actually something that qualifies the length of service requirement and will be of benefit to employees. We are making the general holiday provisions subject to section 189.

    Section 189 specifies that if the business where the employee works is sold or otherwise transferred, the length of service of the employee with the previous employer and the new employer will be deemed to be continuous, so there's no break in service. The purpose of that, of course, is to make sure with regard to the 30-day requirement that if somebody has worked or been employed for 30 days with one employer and the business is sold, they don't have to again work 30 days with the new employer. It will be deemed they have already met the service requirement.

    Carry on.

    All right.

     Clause 223 looks at the new complaints mechanism. As was previously mentioned in the overview, this is something that did not exist previously in the code. That was set by policy.

     The complaints mechanism in proposed subsection 251.01(1) simply specifies that an employee can make a complaint in writing to an inspector if there has been any contravention of the code. There is a qualifier that comes later, which I will explain.

    Proposed subsection 251.01(2) specifies the timeline for making the complaint. As previously discussed, the timeline would be six months from the last day on which the employer was required to pay wages, if it's related to wages; otherwise, it would be six months from the day on which the subject matter of the complaint arose.

    Proposed subsection 251.01(3) specifies exceptions to the time limit for making complaints. One is specified explicitly: that is, if an employee has in good faith made the complaint, but to the wrong government official. They may have made the complaint to a provincial department of labour or perhaps to the Canadian Human Rights Commission or the Canada Industrial Relations Board, so they've made it to the wrong place, but it was an honest mistake. Then we will count the time they filed the complaint with the other organization...again, it's just to make sure that employees are not penalized for not know knowing where to send it.

    There's also a provision for regulation-making powers to further specify other exceptions that could be covered with respect to the six-month time limit.

    Proposed subsection 251.01(4), which I will explain, specifies that employees may not, under this current complaints mechanism, make a complaint for unjust dismissal. The reason for this is that we already have a complaints mechanism for unjust dismissal under section 240 of the code, so this is just to ensure that we keep a clear separation between the two complaints mechanisms. They're not disentitled to make a complaint; it's just that they'll make it under the other provision.

    Finally, proposed subsection 251.01(5) is a provision for greater certainty, just to clarify that, in some cases, employees...and this is in the case of employees who are covered by a collective agreement that provides equal or better standards with respect to certain provisions, such as annual vacations, statutory holidays, or bereavement leave.

     Under the current rules, these employees would only be covered by their collective agreement and would have to use the grievance procedure under their collective agreement for any complaint. We are just clarifying that by adding this complaints mechanism we are not changing that rule. That rule still stands. If the collective agreement applies, then obviously the recourse is to go through that particular grievance procedure.

    If you would like to pose a question now, go ahead.

    I am glad there is a formal complaint mechanism. It's good to put down in writing a practice that already seems to exist. As nothing had been provided, yet people would still complain, my question is more about how the process worked.

    It's true that nothing is currently provided in the code. However, policies were established over the years to manage complaints. Those policies show how a complaint is to be administered. The complaint may be rejected if it is not within our purview, or if it does not come under part III of the code. It can also be rejected if there is no evidence of a problem. All that is provided for in various policies. Policies also stipulate that a payment order should normally not exceed 12 months, for instance.

    The problem we are currently facing is that, since we are talking about a policy, anyone can challenge it. If someone was dissatisfied and wanted their complaint to be examined regardless of our policy, we would be in a somewhat difficult situation. Basically, the legislation sets out no parameters regarding that.

    Another issue that affects employees is that a policy can be changed at any time. Honestly, it has not been changed often. However, no provisions really clarify what happens when a complaint is rejected.

    We told ourselves that this approach worked fairly well in the past, but there is now a real problem involved. We have known for years that there was a problem, but it took a while to resolve it. Within the current context, resources for administering labour standards have to be managed more efficiently. We can no longer afford to move forward, year in, and year out, while relying on approximations. That's why we have decided it was time to really clarify those rules. There is really no reason not to do that.

    Once again, does this mean that people could not submit complaints? No, there was a policy, and we are doing our best to administer it and to ensure that workers' rights are properly protected. However, once again, we feel it is preferable to be explicit and clear, and to have really clear rules for everyone that cannot be changed willy-nilly or reinterpreted constantly.

    Yes, it's preferable to have the rules on the table—clear and in writing—so that people can know what to expect. That's a good idea.

    I have two other questions about that. How many complaints do you received annually about wage issues under federal jurisdiction?

    I can give you the total number. For the 2011-2012 fiscal year, we received 3,538 complaints. Of those, 65% had to do with pay issues, so that's a significant majority; almost 33% had to do with unjust dismissal; and 2% included all the other issues, such as vacation that was not granted, though it had nothing to do with pay, or those types of questions. Overall, the vast majority of complaints had to do with pay issues.

     The provisions on complaints that you are introducing include a six-month timeline, following the event, the offence, or the complaint.

    In your view, what is the reason for the six-month timeline? Why six months instead of three or 12?

    First, let me give some background. In the code, there is currently a 90-day timeline for unjust dismissal complaints. But we thought that the scope in this case was larger—at least the situations are different—and that there should be a longer timeline.

    So why six months? A few years ago, an independent expert conducted an investigation on Part III of the code. He had examined those provisions and reached the conclusion that a timeline had to be established. His recommendation was a six-month timeframe. That is how the figure came about. We then looked at it and asked ourselves whether it was a reasonable timeline. As a result, we said that we would check what the provinces were doing.

    We found that a number of provinces were using the six-month timeline. The best example we found—and it is not the only one—was Manitoba, which has had a provision like that for almost 15 years. In light of the changes of government, we wanted to see if this six-month timeline has been consistent. It has in fact been consistently applied for all that time. So we decided that the timeframe seemed reasonable for Manitoba. There are other provinces and territories, like British Columbia, Nova Scotia, and Yukon, that provide for a six-month timeline. So we figured that it seemed reasonable. We are going by the recommendation made initially. We are looking at what the practices are.

    At the same time, there are variations in the provinces. In some cases, there is a 45-day timeline for certain types of complaints; in other cases, it will take longer. Once again, a six-month period seems to be a reasonable timeline that enables people to file a complaint in virtually all scenarios. It is impossible for someone not to realize that something has gone wrong within six months. If someone's leave was not approved, quite clearly, there is no problem there.

    That being said, we see a major problem with the fact that there might be circumstances in which people will not know where to send their complaints. Under federal jurisdiction, that is a relatively major problem. Actually, people are not very familiar with the constitutional division of powers; they will think that they must be covered under provincial legislation and, as a result, they will lodge their complaints with provincial authorities. We wanted to make sure that we would not have that problem. That is why there is a provision specifying that, if a complaint was sent to the wrong place in good faith, we will be able to follow up on it.

    So there can be exceptions.

    Yes.

    Thank you, Mr. Boulerice.

    I have Monsieur Lapointe and then Madam Boutin-Sweet.

    I think the six-month timeline is very reasonable. Based on your previous experience, do you know whether a small percentage of people have taken a bit longer than six months, because of all sorts of series of events? Is it 1% or 2%? Could you give me an approximate number?

    We do not tabulate statistics by timeframe. However, we have checked with the inspectors to see whether that has occurred often or not. They told us that it is very uncommon for people to take more than six months to file a complaint. Again, I cannot give you a specific percentage. It is rare.

    It would be appropriate to say that the objective here is not to reduce the number of complaints. We are not trying to say that we will split the difference and eliminate people.

    I didn’t think that that was the intention.

    The objective of this measure is to get people to file their complaints as soon as possible. Actually, the longer they wait to file their complaints, the more difficult it is to process them, because evidence is no longer available or memories have faded. It becomes very difficult to manage. So that is why we still wanted to provide for a reasonable timeline and a manageable process.

    So might some people go over the time limit? Yes, it is possible, but we do not think that a significant number of workers would do that.

    I have never been employed by a federal agency. How do you make sure that people are informed of those rights and regulations?

    I am sorry, I didn’t hear the end of your question.

    How do you make sure that people know about the six-month timeline and other similar information?

    The information is all available on the federal labour program website. For each type of standard, various documents have been prepared. Some have been distributed to trade unions, business associations, and so on.

    Obviously, it is very important that people be kept informed of any amendments that are going to be made here. We are well aware of that. I can tell you that the amendment will not come into force right away, once the legislation is passed. One of the reasons is that we want to have the documents we need to let people know what is going on so that no one is taken by surprise.

     Okay.

    Many organizations provide information on websites in particular. As a result, we will make sure that our information is clear and accurate so that it is properly conveyed.

    Thank you, Mr. Rochon.

    Thank you, Monsieur Lapointe.

    We will move to Madam Boutin-Sweet.

    Thank you, Mr. Chair.

    When you mentioned the recommendation for the six-month timeline, you talked about an independent study. Could you tell me who conducted it?

    It was the Arthurs commission. Harry Arthurs was the president of York University and the dean of the Osgoode Hall Law School. He is an internationally renowned expert in labour law. He is renowned for his integrity and expertise in the area. In other words, he is a smart cookie.

    Thank you.

    Thank you.

     You may now proceed to proposed section 251.02.

    Proposed section 251.02 is a provision that allows for the suspension of a complaint. Again, this complaint has been made within the appropriate timelines, but there may be circumstances under which the complaint cannot be dealt with immediately. What this provides is that the inspector can suspend the complaint so that the employee can take certain measures that are deemed to be necessary.

    For example, let's say that the employee has filed a complaint, but there is some ambiguity in terms of what specific standard has not been respected. Again, the inspector could ask the employee to provide more information to clarify what the measure or the problem is. Likewise, there are sometimes circumstances where an employee will file a complaint, and the first question will be, “Okay, that seems to be a problem, but have you talked to your employer yet to see whether the mistake can be corrected?” Again, sometimes the employee will say no, so we will ask them to please talk to their employer and see if it can be resolved. If it can't, then we will deal with it.

    This particular measure is meant to ensure that if somebody files a complaint, we can actually hold it in abeyance so that they will not have to file a new complaint afterwards. Again, this is to make sure they respect the six-month timeline. If they file the complaint and there is a problem with the filing, we will be able to get it corrected without having to ask them to make a new complaint, potentially outside the six-month period. Again, this is meant to ensure that if they filed it in time and there are some issues, we can correct that, without this being a disadvantage to the employee.

    Monsieur Rochon, could you tighten up a little bit on your explanations? If there are questions, we will ask them. We are short on time—

    That's the only thing I have to say about this.

    Okay. You can move along, then, if you will.

    All right.

    We then provide, under proposed section 251.03 and the subsequent proposed section 251.04, the ability for inspectors to assist parties in reaching settlements. This is a provision similar to what we currently have under the unjust dismissal provisions—again, just clarifying that inspectors can help to do that.

    We also have provisions afterwards, under proposed section 251.04, providing that where there has been a settlement related to wages, the employer can actually provide the money to the Minister of Labour, who will then give it to the employee to whom it is due. There is also a standard provision specifying that no prosecution can take place in that instance without the minister's prior approval. Again, this is to encourage employers to rapidly comply with their obligations.

    Okay. Carry on.

    Proposed section 251.05 specifies under what circumstances a complaint can be rejected, so it provides a number of grounds. These are grounds that we find in other legislation elsewhere, so inasmuch as possible, we try to be consistent. If the complaint is not within the jurisdiction of the inspector, if the complaint is frivolous, vexatious, if the complaint has already been settled, or if the complaint has already gone before court or another tribunal and has been resolved there, we won't have to deal with it.

    If there is no evidence and nothing can be found to substantiate the complaint, it can be rejected in that case. Again, where a complaint has been suspended pending the employee doing something to resolve the issue, or if the employee has done nothing and hasn't followed up, then the complaint can be rejected.

    If a complaint is rejected, we provide that the inspector must inform the employee in writing. We also provide for a review mechanism so that the employee can ask the Minister of Labour, or somebody who is delegated by the Minister of Labour, to review the inspector's decision. On review, if it is found that the complaint should not have been rejected, it will be sent back to an inspector for proper investigation.

     There is also a privative clause, which is a pretty standard clause that simply says the minister's “confirmation or rescission” of the decision is conclusive, so it should not be subject to judicial review. As you know, privative clauses are not an absolute, so it could still go to court if there were unreasonableness in the decision.

    Carry on.

    All right. The next provision, under clause 224, is where we actually specify the limitation for payment orders, the limitation of the period of time in the overview, as was mentioned, and this would be basically, for most wages, 12 months from the date of the complaint, or 12 months from the date of termination, if that was prior to the complaint.

    With respect to vacation pay, we're going back 24 months, and in terms of unfounded complaints, we've simply specified that a notice of unfounded complaint would be issued if the inspector cannot find any wages owing in the previous six months. As you know, we now have a six-month time limit for filing a complaint, which can be extended—so again, we can extend it there—but basically, if no wages are owing, they don't need to go back months and years past. They would simply issue a notice of unfounded complaint at that point.

    Can you identify where you're at in terms of the subsection?

    Yes, excuse me. That was clause 224—

    Yes.

    —looking at proposed subsections 251.1(1.1), 251.1(1.2), and 251.1(2).

    Okay.

    We're now moving to clause 225, which amends proposed section—

    Just hold on a second, please. I think Mr. Boulerice has a question.

    Go ahead.

    Thank you very much.

    Subsection 251.1(2) has to do with the payment order. It says that you can go back 12 months or 24 months for vacation pay.

    That is correct.

    Let's imagine that there has been a systematic error made with an employee's pay cheque, regardless of whether this error was made in good faith or bad faith. Suppose that this has been going on for months, even years, say three, four, five or six years before the person realizes. At some point, the person realizes that an error has been made and makes a complaint within the six-month timeline. The individual would be able to get retroactive pay for the past 12 months only, not for the entire period in which they did not receive the amount they were entitled to. Could you tell me why the limit is 12 months?

    In that situation, there would in fact be a limit. Someone who has not realized for years and years that there was a problem would be limited to 12 months or 24 months for vacation pay, based on the mechanisms under the code.

    It should be noted that this rule applies to almost all the governments across Canada. Our timeline is as generous as, if not more generous than, all other governments. The only exception is Newfoundland and Labrador, where the timeline is not specified. In all other cases, no place has more than 12 months for wages.

    Something else that I should mention is that the code does not prevent and will not prevent an employee from using civil remedy to recover any other amount. In that case, the employee could certainly go in court and ask to be reimbursed for all the other amounts. We specify that the limit only applies to the mechanisms used under the code. Nothing prevents civil remedy and the code does not impose any limit to that effect. Once again, an employee in that situation could hire a lawyer. If it is a small amount, the person could go to the small claims court. No one is opposed to that, but, based on the mechanisms under the code, we expect the employee to file a complaint within a reasonable timeframe so that we can process it.

    This limitation frustrates me a little; it bugs me. But I am satisfied with your answer and I am convinced that my colleague Ryan Cleary will agree with the fact that Newfoundland and Labrador is often better than the other places.

    Carry on with clause 225, proposed section 251.101.

     Again, as I mentioned, we are creating a new administrative review mechanism, and this is where we provide for it. An employee or employer who is affected by a payment order or a notice of unfounded complaint could request, within 15 days of being served the order of notice, to have the decision reviewed.

     We are adding under proposed subsection 251.101(2) a requirement similar to what employers currently must face when they ask for an appeal. If they're asking for a review of a payment order, they have to first deposit with the minister the amount specified in the payment order. This is to make sure that if they lose their case, the money will be provided to the employee.

     Proposed subsection 251.101(3) specifies that the minister, or somebody delegated by the minister, can confirm, rescind, or vary the amounts. We have provisions for the service of documents and proof that they've been served.

    Proposed subsection 251.101(6) specifies that the review should be final subject to potential appeals to referees. Proposed subsection 251.101(7) provides that the minister could, rather than have an internal administrative review, send the matter directly to an external referee. The reason for this is that sometimes there may be legal cases where we know from the get-go that it's going to be too complex for an internal review. We can bypass that particular provision.

    Carry on.

    Under proposed section 251.11, we are currently modifying the existing provisions for appeals to referees. To go to a referee after an administrative review, the grounds for appeal must be specified in writing, and you can only go to a referee on issues of law or jurisdiction. Issues purely of fact should have been dealt with under the administrative review mechanism. If the employer or corporate director asks for an appeal, he has to make sure that any amount in a varied payment order has been deposited with the minister.

    Proposed section 251.12 deals with the appointment of a referee. We've done some tweaking to that provision, because there is now the administrative review mechanism. We're specifying that the referee would be dealing with the decision on review. This is a consequential change to ensure that it meshes with the new administrative review mechanism.

    Proposed section 251.14 deals with the deposit of moneys. This is a consequential amendment. Currently, the code provides that where moneys have been deposited with the Minister of Labour regarding an unpaid wage or a successful payment-order appeal, the minister can give it to the employee. Typically, to be paid back to the employer, it would have to go through a referee, who would order a reimbursement of the amount to the employer. We know that referees will not be appointed in every case, and we've specified that the minister can reimburse the employer as well as the employee. It's a consequential amendment.

    Proposed section 251.15 contains amendments with respect to the enforcement of orders. Where a payment order is filed in court for enforcement, you can either file a payment order or a varied order, that is, an order that has been varied on administrative review. We're also specifying that you cannot file a payment order for enforcement purposes if it is still subject to a review or an appeal. We don't want to have something enforced before it should be. So this is a consequential amendment.

    We have minor transitional provisions. When these provisions come into force, any complaint that has been made before the coming into force will be dealt with under the old system, or the current system. It will be the same for the appeal of payment orders or notices of unfounded complaint. This is to ensure that things now in the system continue to be dealt with under the rules that were in effect when this came into force.

    Finally, under the coming-into-force provisions, everything would come into force by order in council. The reason is that there will have to be quite a bit of development of internal policies and of new structures, as well as communication of the new rules to employers and employees. The way it's been structured, different provisions could come into force at different times.

    I think that concludes the clause-by-clause.

    Thank you very much, Monsieur Rochon.

    We will—

    Mr. Chairman, I have a point of order.

    The Chair: Go ahead.

    Mr. Ryan Cleary: I assert that the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities lacks the authority from the House to propose amendments to Bill C-45 or to issue a report to the Standing Committee on Finance, and therefore we should not hold this farce of a clause-by-clause hearing. What we have here is a bastardization of the process.

    Okay, hold on. This is not.... If it is a point of order—and I don't know if it is—I hold that we have the absolute jurisdiction to do what we did, and I won't hear anything further with respect to the jurisdictional question.

     You've made your comments. I certainly don't appreciate them. I think it's absolutely in order for us to have done what we've done, and I so rule. Thank you.

    Thank you for providing us the information. You're now free to go.

    It was my pleasure. Thank you.

    We have some committee business to deal with.

    I might say that, in my view, we can now take a letter to the finance committee, which is seized with the jurisdiction of actually considering the clause-by-clause of this particular bill and entertaining amendments that they may or may not pass. This committee's job would be to have reviewed the process and the clause-by-clause, free to make any recommendations or any proposed amendments. That's as far as we can go.

     I would propose to take a letter to Mr. Rajotte on behalf of this committee, thanking him for his letter inviting our committee to consider the subject matter of Bill C-45 and other measures, and more specifically the subject matter of clauses 219 to 232.

     There are basically, in my mind, two options. One of the options would say that, after hearing from the witnesses and considering the provisions contained in clauses 219 to 232, the committee wishes to inform him that it has no amendments or recommendations to forward to the standing committee. Or, in the alternative, it would say that it does submit the recommendations and amendments attached.

    Those are the two options. I'm open to a motion for either option or to hear discussion on those matters before a letter is drafted.

     Ms. Leitch, go ahead.

    Thank you very much, Mr. Chair.

    I'd like to move that the current legislation as presented to this committee and as discussed today be accepted without amendment.

    Is there any discussion?

    Seeing none, all those in favour of the motion? All those opposed?

    (Motion agreed to)

    The Chair: Seeing no opposition, the motion carries, and I will draft a letter in accordance with that.

     I don't think—

    Go ahead.

    Were you finished conducting your business with respect to the motion?

    Yes.

    I have one statement.

     I wish to express to the officials who came today our appreciation for their time and for the explanation of this, unlike what was characterized by my opposition colleagues with respect to their time and efforts in order to present to this committee. Our officials, the bureaucrats of this government, I think do an outstanding job of making sure that parliamentarians are well informed. I just want to make sure that we all thank them for their time today.

    I recognize Monsieur Lapointe.

    I appreciate Ms. Leitch's comment. One word in particular really got my attention. It is the word “unlike”. I feel that all the comments my colleagues and I made today have demonstrated our utmost respect for the work accomplished by the representatives who appeared before us. I do not see where the words “unlike the NDP” are coming from. I feel it is important to put that on the record.

    I might say, just for the record, that I certainly don't agree with the characterization that Mr. Cleary has given—absolutely not—but having said that, I might say, before Mr. Boulerice speaks, that had we used the traditional “conservative” approach, you might not have dominated the questions as you did. I think that in the end it probably worked somewhat to your advantage.

    Go ahead.

    Thank you, Mr. Chair. I would simply like to clarify this situation. In line with what my colleague Mr. Lapointe said, I do not appreciate any innuendoes to the effect that we are not respectful of the excellent work accomplished by public servants. On the contrary, we are the first ones to defend those services.

    The fact that we have dominated the question period of the clause-by-clause study shows that we, in the NDP, are doing our homework and that, in this committee, we take the process of amending the Canada Labour Code very seriously. We are the ones who have addressed the largest number of questions to the officials who appeared before us, because we wanted to receive clarifications and answers to our questions. We thank them very much for the work that they do. We also thank them for joining us today.

     I might add that the process that the chair thought would be workable was the one that turned out to give you that opportunity. I think that Mr. Cleary, in fairness, was talking more about process than with respect to the witnesses, and so I take that as fair in that sense.

    With that, we will adjourn.