38th PARLIAMENT, 1st SESSION
EDITED HANSARD • NUMBER 135
CONTENTS
Monday, October 17, 2005

Mr. Ed Komarnicki (Souris—Moose Mountain, CPC): Mr. Speaker, I have questions I would like to pose to the proponent of the bill. One point is that the bill could have quite easily addressed the issue of safety concerns for pregnant mothers, their fetuses or their unborn children across the nation, from province to province, but this specific legislation talks about having the employee avail herself of the legislation in the province where she works, which is something very different from the present. Nowhere in the balance of the provinces of Canada is this particular compensation paid.

I think the objective of the bill is good and the principle behind it is fair and is worthy of debate, but if it were to pass we would find that it would be applicable with respect to a particular province only; it would distinguish between mothers and fetuses and babies across the other provinces. More important, it would make every provincial law that is passed hereafter in any province a matter of federal jurisdiction under the Canada Labour Code, without any review by this House or by anyone who is a member of Parliament. The provinces would be dictating what is happening in the Canada Labour Code with respect to federal undertakings.

If the proponent had the issue of the safety of mothers in mind, why was the bill not designed specifically to deal with that issue, not federal-provincial jurisdiction?

[Translation]

Mr. Robert Vincent: Mr. Speaker, as I said earlier, obviously, if there is already provincial legislation and the province already has the expertise on the precautionary cessation of work, why not take advantage of that? For the past 15 years, the government opposite has been thinking about implementing measures and been studying the context of precautionary cessations in Quebec. However, this measure already exists in Quebec. So why are employees subject to the federal code not able to benefit from legislation in Quebec, where there is already an occupational health and safety commission?

On the other hand, if the government wants to make all present and future pregnant and nursing employees equal, it need only amend part III of the Canada Labour Code. I fully support this.

In reality, the bill that I am introducing today seeks to eliminate any differences in the rights of employees living in the same province, perhaps in the same neighbourhood or even the same building. Why are these employees being treated differently?

As for the rest of Canada, as I already said, part III of the Canada Labour Code is currently being considered. We need only review and amend it in order to ensure that all employees covered by this code share the same rights.

Mr. Ed Komarnicki (Souris—Moose Mountain, CPC): Mr. Speaker, the singular objective of ensuring safety and discussing safety issues with respect to pregnant mothers and nursing mothers is one that we think is worthy of debate and should be debated. There is no doubt that the issue would be better dealt with in the context of a larger review than presently is being conducted by Professor Arthurs.

I look at the present legislation and what it provides. It allows a pregnant or nursing worker to ask her employer, during the period from the beginning of her pregnancy to the end of the 24th week following birth, to modify her current job functions or reassign her to another job if continuing in her job poses a health risk to her, her fetus or her baby.

The legislation that the member proposes and the one that we have now is similar. The request must be accompanied with a medical certificate from a medical practitioner. While working in a modified or reassigned job, the employee is entitled to the same salary she earned in her usual job. It is only in the event that the employer is unable to modify or reassign an employee, the employee may ask for leave with pay until such time that the employer informs her in writing that it is not reasonably practical to modify her job functions or to reassign her. Thereafter the leave is unpaid.

The legislation that the member proposes to bring through to the House, in kind of a circuitous fashion, is to incorporate what presently exists in Quebec and does not exist in any other province. Saskatchewan has some peculiar legislation, but it does not deal with compensation.

For that period where under the Canada Labour Code the employee would remain unpaid in Quebec, that employee would receive continuing payments which in our estimation would be about $6,230 per pregnant or nursing mother. Based on the number of federal employees in Quebec, we would anticipate that it would be about an additional $12.3 million. If one were to extrapolate that throughout the nation of Canada, that would be about $59 million to $60 million. The objective itself is fine. However, the way the member proposes the bill to proceed causes me some concern. It is worthy of discussion. It should go to committee and be discussed in the context of what is happening.

We will support the bill for that purpose, to come to fruition through a lively exchange in committee and with the opportunity for stakeholders to present their views as well. However, the act probably could better be styled the Canada labour constitutional federal provincial jurisdictional issues act for that is essentially what is at the heart of the bill.

The bill raises some very significant jurisdictional issues that overshadow the legitimate concerns relating to the matter of pregnant or nursing mothers who find themselves in the workforce. It also overshadows the protection and compensation they can expect. If the bill were really concerned primarily with pregnant or nursing mothers, it would have been drafted with those concerns in mind and it would have dealt with the issue on a national basis as opposed to a province by province basis.

It is my proposal that the bill should be amended where the final product deals with the specific issue, but is not allowed simply to do through the back door what it would not do through the front door. I take exception to what is being attempted in the bill in terms of subjecting federal supremacy in matters of federal jurisdiction to the legislative purview of the provinces in areas of provincial jurisdiction. This is not withstanding that I believe there is considerable merit to better protection and more extensive financial coverage to pregnant and nursing mothers, an aspect of the legislation that is supportable and indeed laudable.

Let me deal with the jurisdictional issues first. When one looks at the bill, it indicates that an employee may avail herself of the legislation of the province where she works. What we find is provincial legislation that deals either with occupational health and safety or other matters. It depends where one works or where one resides and works as to whether one has a benefit. There is no doubt in my mind that if we are dealing with issues of safety, if we are dealing with issues with concern to the health of the mother of the child, or the fetus, the same standards should be set across this nation and not province by province and there should not be any discrimination depending upon where one lives.

This legislation also indicates that this right may be exercised by application to the provincial agency administering the provincial legislation. This is simply an administrative matter. It also requires the federal government to enter into an agreement with the provincial government to determine the administrative and financial terms resulting from the application.

It would seem to me as a very minimum the House should require that any bill that automatically amends the Canada Labour Code be brought before it for members to affirm it or to agree with its content. That should be a required amendment.

If the legislation intended to deal specifically with pregnant and nursing mothers, why was it not so styled? Instead, what we have is the automatic imposition of provincial occupational health and safety laws on federally regulated employees in each particular province.

The Supreme Court of Canada has held that matters of health and safety and accident prevention in respect of federal undertakings bear directly upon the management and operation of the federal undertakings and are matters of federal jurisdiction. The court has also held that legislative delegations involving a delegation of law-making power from Parliament to a province would be unconstitutional unless the delegation was purely an administrative delegation where the provinces were given authority to administer certain federal legislation.

I am afraid that what is happening here is not an administrative matter. It actually allows the provinces to legislate and make federal laws in the areas that apply to federal undertakings.

A constitutional alternative would be for the federal government to incorporate provincial legislation by reference, but in most common situations the legislation is in existing form so we can understand and know what it encompasses. What we have here is anticipatory incorporation by reference. That is, each time a province amends its legislation, it also has the effect of amending federal legislation, and therein lies the danger. It is a principle that should not be used.

This House and its parliamentarians should not subject themselves to provincial legislation in advance of knowing what it is or having the opportunity to review it or to debate the merits of it or its effect or impact on the nation and matters of federal undertakings. Also, it should not differ from province to province or where one lives.

Having said that, as I mentioned before, the specific objective of the legislation has merit. It is one that is supportable, but this can be done by formulating new language that reproduces essentially the existing provincial legislation that we are now aware of and by making it applicable nationally if that is where we want to go. Simply put, I would say to set out the additional protection that is desired for pregnant and nursing employees and let us debate that issue.

As flawed as this legislation is and as significant as the pitfalls are and notwithstanding the standards are not uniformly applied throughout every province and territory of this great nation, my position is that the issue itself is a social issue of national concern that relates to the health and safety of mothers, the newborn, and interesting to note, the fetus.

This special social issue is worthy of debate. The bill should at least go to committee so debate can take place there. It is my view that if the social objective is to be preserved, many significant amendments need to be made to the bill as it now exists. It also should have the input of those who may be affected by the proposed legislation. It should have a far wider audience than has been allowed or can be allowed in a private member's bill.

It is with some trepidation that we think this matter should go back for further debate. It concerns me that what we are attempting by this bill is to really incorporate by reference provincial legislation into federal law without the House even knowing what that legislation may be. It is a dangerous course of action. It is something which we certainly should not adopt without very significant and severe amendments. It would be most unseemly that the House would allow legislation to pass without the House doing its due diligence by looking at the legislation particularly, by hearing from the various interest groups, by making an assessment, and being held accountable to the populace at large in this great nation of ours, as opposed to having provinces legislate in such a fashion that would automatically change the laws of this country as soon as one province took a step.

That is the wrong direction in which to be headed. Certainly that portion of the bill would have to be remade. In fact, the bill would have to be reconstructed in a very significant way for it to be able to proceed on any basis.