1987 Legislative Session: 1st Session, 34th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, JUNE 16, 1987

Morning Sitting

[ Page

1785 ]

CONTENTS

Routine Proceedings

Industrial Relations Reform Act, 1987 (Bill 19). Committee stage. (Hon. L.

Hanson) –– 1785

Mr. Lovick

Mr. Gabelmann

Mr. S.D. Smith

Ms. Edwards

Mr. Clark

Mr. Jansen

Mr. Sihota

Mr. Jones

Mr. Loenen

Mr. Bruce

The House met at 10:04 a.m.

Prayers.

Orders of the Day

HON. MR. STRACHAN: I call committee on Bill 19.

INDUSTRIAL RELATIONS REFORM ACT, 1987

(continued)

The House in committee on Bill 19; Mrs. Gran in the chair.

section 62 as amended.

MADAM CHAIRMAN: Shall the

section pass?

SOME HON. MEMBERS: Aye.

MR. LOVICK: Madam Chairman, it's interesting to note that I

obviously caught some members opposite by surprise, who were convinced

that they were simply going to waltz through on this section.

The title of

section 137.7, "Intervention by the commissioner," says

it all. It demonstrates pretty clearly the concerns we have tried to

elucidate and enunciate on a number of occasions: namely that this

makes provision for an almost automatic intervention by a third party

to the debate and to the disputes. We're suggesting, of course, that

that is not the right approach to a ready solution for industrial

relations conflicts.

More specifically, we have a number of concerns about this section.

Let me, if I might, run through the entire

section and itemize broadly

and quickly what the concerns are. Then I want to return to some of the

substantial and more significant issues revealed in this section.

First of all, for the record, we have concern that this commissioner

has the right to intervene without being requested to do so; simply as

a matter of course, to get involved in the process. We're not entirely

sure it's compatible with what we like to call free collective

bargaining.

More importantly perhaps, still under 137.7(1), is that the

commissioner or a person appointed by the commissioner has the power to

request that information regarding the dispute be granted. That again

is a broad and very wide-open requirement that suggests to us that

almost any information that comes into the imagination of the players

can be requested and must, it would seem, be granted. The power,

frankly, seems to be too much invested in that individual.

A second concern I have is in 137.7(3) and is again with the

criterion, with the guiding light for this particular section. It is

not anything to do with harmonious labour relations as the old act was;

rather, if I can quote, it says the commissioner may do any or all of

the following as he considers "necessary or advisable to facilitate the

making of a collective agreement between the parties."

The predicament there, of course, is that a collective agreement, if you have

a third party who is indeed saying this will be done, this should not be done,

does not necessarily have to be voluntary in any meaningful sense of the term.

This can indeed effectively provide a kind of prescription for coercion, a prescription

for a kind of intimidation on the part of a commissioner.

If the only guideline in effect, the only criterion in effect, is to

say, "Your job is to get a collective agreement between the two

parties," knowing the reality of the economic system, knowing the

reality of what can happen in terms of industrial relations

negotiations, it may well be the case then that the commissioner simply

bangs heads together and says, "You must do this," and the two parties,

of course, will have no choice but to respond accordingly. It doesn't,

as I say, strike us as a manifestation of good, harmonious labour

relations.

Let me move on to subsection (4), and I think (4) and (5) are the

two sections that we are most concerned about, namely what seemed to us

to amount to a kind of final-offer selection process. What subsection

(4) specifically refers to is that the negotiating committee of a

particular bargaining unit, a trade union, can effectively have the rug

pulled out from underneath it by law: namely, that the commissioner can

in fact ask for and have granted that a vote be held among the members

regardless of what the negotiating committee may want — that kind of

intervention. Our concern with that, of course, is that it effectively

delimits and circumscribes the strategy on the part of the trade union.

If you have, hanging out there, a mechanism whereby the rank-and-file

membership is going to be given the opportunity to vote on a contract,

it necessarily limits the amount of room you have to construct in terms

of setting up your own negotiating strategy.

We're suggesting that here is the glaring illustration of

intervention on a massive scale. Let me quote, if I can, to make sure

that we do indeed have a sense of what this clause refers to, and then

I will elaborate somewhat more. Subsection (4) says as follows:

"Before the commencement of a strike or lock-out, the employer

of the employees in the affected bargaining unit may request that a vote of

those employees be taken as to the acceptance or rejection of the offer of the

employer last received by the trade union in respect of all matters remaining

...."

What that says, of course, is that the negotiating committee, freely

elected, democratically chosen by the members — note that: freely

chosen, democratically selected and elected by the members — will have

whatever it is doing taken away. In other words, its strategy, its

right to say, "This is what we your representatives are doing for you,

and this is what we want to do by way of approach to solving a

particular problem," that power is effectively undercut. because what

we've said is that a third party will now come in and say that whatever

the union's bargaining or negotiating committee may be doing doesn't

matter, because we are going to require that the offer from the other

side be made public.

The minister may well want to argue the case that a comparable right

is being given to the other side of the equation — namely management —

because employers' councils, where those obtain, have a similar kind of

mechanism in subsection (5).

The point is, however, that the analogy is demonstrably false. It is

not the same thing to set up a council of employers as it is to set up

a council of unions or a trade union. The difference is that in the

latter case, the trade union case, what we're talking about is freely

elected individuals as opposed to a collection of employers who join

together strictly and only for bargaining purposes for settlement of a

particular contract.

[ Page 1786 ]

Our concern, then, is that under subsection (4), we're effectively

saying to those individuals who have freely expressed their wishes and

delegated authority and responsibility to others to act on their behalf

that they no longer have that sovereign right. Rather, somebody has an

opportunity — has, indeed, every right — to interfere with what they

normally do.

I just want to suggest for a moment if I can, Mr. Minister, that

there is something very dangerous in that — at least, it causes me some

sense of alarm — and that is that our entire system, remember, tends to

be based on delegated democracy. We choose people to represent us.

Indeed, all of us sitting or standing in this House have been chosen by

that process, and we are given a mandate to act within the constraints

of law and due process to represent our constituents' interests.

[10:15]

The same thing, of course, is true with a trade union. Trade

unionists band together, and they elect executives and they elect

negotiating committees to work on their behalf. What we're saying in

the case of the trade union is that we are not, however, going to let

you carry out doing what you do without constraint. Instead what we are

going to do is introduce another structure, another mechanism that

effectively takes away your right to do what you were elected to do.

I would just ask the minister this: does he not agree that following

the logic enunciated in this particular

section of the bill would

effectively amount, if applied to this chamber and the overall system

of choosing representatives, to government by referendum? In other

words, what we're saying is we no longer have the capacity and the

right to elect our delegates to represent us and to give them freedom

to operate. Instead, what we're going to do is to say you are allowed

to operate only insofar as some ubiquitous and not terribly clear third

party agrees that that's acceptable. Just as that system, that

approach, is not entirely compatible with parliamentary democracy,

neither is it compatible with union democracy. So that's a concern we

have in 137.7(4). We think it's a blatant intervention in the process.

It effectively amounts to a taking away of the rights of individuals

who were duly elected to represent their people.

I'm a little concerned also about subsection (8). What concerns me

is nothing sinister or profound but rather what it seems to suggest

about the overall intention of this section. What subsection (8) does

is tell us that only one vote will be allowed; in other words, one can

only go and canvass the total membership one time during the course of

any dispute. I'm wondering why. If we are in fact saying that we don't

trust the negotiating committee to be bargaining in good faith, which

seems to be the assumption underlying this section, by the way; if we

are indeed saying that, and we're saying that the commissioner then

should be allowed to intervene in the name of the public good or the

public order, or some such thing, why are we setting it up as a lottery

system? Why are we saying you only have one shot at it?

What you, the commissioner — or his or her designate — must do is

figure out what the appropriate time is to go around the duly

constituted negotiating committee and throw the question to the

membership. What is the appropriate time? That's why I call it a

lottery: it becomes a gamble. It becomes a question of saying: what's

the appropriate time to pose this question to the so-called rank and

file, because we've only got one chance? Therefore what the

commissioner has to do is consider a whole bunch of strategic

considerations. When should we intervene? The obvious question, then,

is: if in fact it is a good mechanism, if it is indeed the case that we

need to give the commissioner this kind of power, because we don't

trust the parties directly affected to solve their own problems, and

therefore we need some kind of omniscient and omnipotent third party

intervening to solve all those difficulties, why not then allow the

commissioner to intervene and to act in this manner half a dozen or 20

or 30 times? Why limit it to one? If it's a good policy, what possible

reason is there for saying he's only allowed one shot at it? I would

love to hear an answer to that question. I'm not sure there is a good

answer, but I would certainly be more than interested in hearing one.

The other questions that come to mind on this particular

section are

complicated and complex, and I am sure that a number of my colleagues

also want to address this section, as I too shall have occasion to do.

I'll therefore pause for a moment and allow the minister to perhaps

respond to at least some of the specific questions or points that I

have raised thus far.

Interjection.

MR. LOVICK: Oh, I'll have more.

HON. L. HANSON: Madam Chairman, I think this system of

answering a question and jumping up and down.... The position I'm going

to take is that I make a note of the questions and answer them in some

numbers at one time, instead of....

To answer the questions that have been raised to this point, there's

certainly no suggestion that there is a lack of trust in the bargaining

committee. I think the member is making an assumption, which, I guess,

he's entitled to make; but it certainly isn't the intent of this

legislation to do that.

His second concern was that the two related votes in subsection (4),

which he covered earlier, or the one vote that can be at the request of

the employer — and subsection (5) deals with the reciprocal of that for

the employees — is the one opportunity that those two parties have to

request a vote of the commissioner. I'd refer to subsection (8), which

says that not more than one vote in respect of the same dispute shall

be held under subsections (4) and (5). That simply means that at the

request of the employer or of the employee, only one vote is allowed.

When we get to subsection (9), you'll see that during a strike or

lockout the commissioner can order votes. That's dealing with after a

strike or lockout. But the restriction is at the request of the

employer and employees.

Madam Chairman, in

section 62 we have a subsection (9) –– I would

like to introduce to the House an amendment to

section 62, 137.7, and

the amendment will be (10). We will circulate copies of that amendment.

In effect, it's the mirror of subsection (9) of 137.7, as it relates to

an employers' organization. It says that during a strike or lockout,

where more than one employer is represented in the dispute by an

employers' organization, or an accredited organization, and the

commissioner considers that it is in the public interest, he can

require a vote of the employers' organization to accept or reject the

offer of the bargaining agent for the employees. I move that amendment,

Madam Chairman.

On the amendment.

[ Page

1787 ]

MR. GABELMANN: This amendment is acceptable. It deals with an issue

that in fact we were going to raise: the fact that the proposal.... This, I must

say in parentheses, indicates no commitment whatsoever on this side of the House

to accept in principle this whole

section or subsection. We still feel it's

the wrong approach. But at least this amendment makes more balanced the requirements,

inasmuch as an accredited organization is also required to accept or reject

a proposal that might have been made by the employees' bargaining agent.

So I don't think that debate is particularly necessary on this point. We

will just proceed.

Let's do the amendment.

MADAM CHAIRMAN: The amendment has been moved by the minister. Shall the amendment pass?

Amendment approved.

MR. LOVICK: Madam Chairman, I must respond to the statement

by the minister that there is no suggestion of lack of trust in the

bargaining committee. I want to suggest that the reason I argue that

that is not the case, that indeed what this legislation does.... What

this proposal does is to demonstrably show that there is a lack of

trust. I would ask the minister to simply follow me through this

illustration of the logic of the proposition. How's that?

I'm saying that if in fact we, by legislation, make it possible for

one of the parties to appeal to the commissioner that there be a vote....

Well, let me put it in blunter terms. If we, by legislation, say that

the employer can appeal to the commissioner that the membership of the

bargaining unit, i.e. the union, should be canvassed on the employer's

offer, we do two things. First of all, what we obviously do is say that

the bargaining committee is perhaps not, at least from the employer's

point of view, sharing honestly and accurately and fairly with the

employees what the employer has indeed offered. We must be saying that.

There is no other explanation.

If, moreover, the government says that we provide that mechanism as

a matter of course to the employer, as a matter of course we say to the

employer: "You can appeal to the commissioner so that you can then

ignore the bargaining committee and talk to the members." What other

conclusion can we possibly derive than that the government is

effectively saying: "We are willing to acknowledge that the union

bargaining committee is not being fair and honest"? Therefore I

conclude that there is indeed a demonstrated illustration on the part

of government that it does not trust the bargaining committee to be

entirely honest or to act in good faith with its members.

I'm not sure that I have elucidated that quite as clearly as I would

wish, but I think the general outline of the case is sufficient to make

the point.

Clearly this

section demonstrates that yes, indeed, we are inclined to believe

that the bargaining committee of the trade union is not always being fair to

its members — is not always being totally above board and honest and ingenuous

and all of that kind of stuff — and therefore what the government will do is

set up a mechanism whereby the employer in a dispute can ignore the bargaining

committee and say he wants his offer presented to the rank and file. If you

do that, how can you possibly construe that to mean anything other than that

we don't have faith in the bargaining committee; that we don't believe

that they are accurately and honestly reporting to their membership what we,

the employer in this case, are presenting? There is no question, Mr. Minister,

that simple logic demonstrates that that conclusion is a valid one. It seems

to me that there is no other possible conclusion.

I will leave that for the moment.

MR. S.D. SMITH: Madam Chairman, I want to postulate a

scenario with respect to this

section where I think indeed it would and

could and will help to resolve industrial disputes and will therefore

help to create more harmonious industrial relations in the province.

[10:30]

In that regard, I would like you to contemplate subsection (5) of

this section. I would refer to the dispute with the Canadian Union of

Public Employees and the OMMLRA last year in the interior of the

province, where for a very long time a public dispute raged as to

whether or not the local governments had had an opportunity to receive

and share the final demands that had been made by CUPE. It was the

position of CUPE that indeed they had not, and it was further their

position that if the local governments had had that opportunity, then

they would not have proceeded with their lockout.

Now it seems to me that whether they did or they did not was not

really the sum and substance of the issue. The problem was that the

parties to the dispute were operating on an assumption that the dispute

could be resolved before the strike or before the lockout if they had

the opportunity to receive that information.

It seems to me that this

section simply provides the chance, in that

instance, for local municipalities to receive the final demands of CUPE

at the request of CUPE and to make a determination whether those final

demands would be acceptable to individual municipalities. If upon

receiving them the individual municipalities had rejected them, then

CUPE would clearly have had the signal that the bargaining unit, the

OMMLRA, were going to stand firm in their position, and of course if

they had accepted it, that would have been the end of the matter. The

result would have been, on the one hand, the elimination of a

five-month lockout, and on the other hand a strong indication to the

union, at the union's request — because after all, it was the union

that was requesting this kind of procedure in this instance — that the

OMMLRA's resolve was much firmer than they thought it was.

This is not a

section that in any way suggests you can't trust the

relative bargaining agents. It is not a suggestion that the management

bargaining agent, the OMMLRA, is not to be trusted. It is not a

suggestion that CUPE was trying to use that kind of tension in order to

drive splits or wedges. All that is being suggested here, by this kind

of process, is that the parties have an opportunity, before a strike or

lockout commences — and I think that is key — to have a final go at the

proposals on the table. Quite often it is the case, as it was in the

OMMLRA dispute, where the bargaining agency for the management took

their vote on whether or not they were going to support a lockout

several months in advance of exercising that vote. It was that fact

that created in the mind of CUPE the possibility that the individual

municipalities, the members of the bargaining agent, were no longer in

support of the mandate that had been given to them, and it is a simple

process, in this instance, that would clear up that kind of

misinformation or disagreement in a very sensible, measured way. If it

was cleared up in a way that solved the contract, then obviously we

would have harmony in terms of our industrial

[ Page 1788 ]

relations, and if it was cleared up in a way that demonstrated to

CUPE that they were wrong in their assumption. then they would know

what they were facing.

I think that this kind of mechanism, rather than diminishing the

role of the individual bargaining units, will make them, first of all,

more responsive to their individual memberships, because they will know

well in advance that that mechanism is there. So they will maintain

that kind of relationship with their membership so that they can

maintain the strikes they have from the numbers and pulling together

that it gives them. But also, it will ensure that there's a vehicle by

which the.... Because in this process, each side makes certain

assumptions about the relative strength of the other side. This kind of

mechanism will give CUPE an opportunity to be certain in this instance

that the OMMLRA is or is not supported by the individual

municipalities. So I think in that way it will provide a vehicle, if

the discretion that rests with the commissioner is exercised to do so,

by which that kind of process can take place, and it thereby will

create an opportunity for more harmonious industrial relations in our

province.

MS. EDWARDS: I just want to follow up on this whole idea in

(4), (5) and so on: the whole business of requiring that information be

taken back to the basic parts or an organization beyond the people who

represent those parts of the organization. I say "parts" rather than

"people," because in fact we're talking both about the union — the

employees, who would be people.... But the employers is the other side,

as the minister says.

I think it's interesting to look more closely at it and wonder why

it's written that way. First of all, as a democratic representative

yourself, Mr. Minister, I think you might wonder why, if someone

consistently kept asking to take the decisions that you make, and said:

"Before you can decide, before you can say anything on that, that

should all go back to your voters, every time." That's the kind of

thing that you're saying. You're saying that the democratic process

that puts forward the negotiating group on the part of the employees is not democratic; it's not working in a democratic way.

In order to look like it's even — and you know I applaud that

initiative — you have said that employers, if they operate in an

employers' group, shall suffer the same type of distrust. In other

words, if we decide that their negotiating group hasn't operated well,

we'll go back to the base and we'll make them do another vote.

What I'm wondering, Mr. Minister, is why it was only employers who

operate in a group that that applies to? It seems to me that if you're

willing to interfere in the democratic operation of the employees, who

are negotiating on one side of an industrial dispute, why do you trust

that the negotiating party on the side of an employer represents the

feelings of everybody in that particular organization, which may be a

major corporation? Why in effect did you not suggest that the

negotiating committee should have to take the vote back to its board of

directors?

MR. SIHOTA: Or a shareholder.

MS. EDWARDS: The shareholders, in fact, would be going even

beyond that. Because if we're not going to trust democratic processes,

then let's not trust them. Why in the world is it that we trust other

processes and not the democratic process?

MR. CLARK: I just want to make a few comments on this

section. This

section really is the central problem with Bill 19 in a

lot of respects, in terms of the major thrust of the legislation, and

that's really a result of the power given to the commissioner. I might

note that in

section 137.7 all of those powers were untouched by the

amendments which were introduced, which in some respects put a little

bit more power in the hands of the minister.

I think it's really going to result in a great deal of uncertainty

in negotiations. Any time you introduce that level of uncertainty,

you're going to extend disputes, unlike what the second member for

Kamloops (Mr. S.D. Smith) said, which I might deal with later on. This

section really empowers the commissioner to intervene in negotiations

right from the start, without being asked by any of the parties

involved. It's really the trigger mechanism that refers matters to a

fact finder, a mediator and a special mediator. The commissioner can

make recommendations directly to the parties, or can refer to a public

interest inquiry board. Then the commissioner, of course, can review

the report of the public interest inquiry board and see if it has given

— and this is in a later

section — "due regard to such interests of the

public as it considers are or are likely to be affected by the

dispute...." If it involves a public sector employer, it can make it

subject to ability-to-pay criteria in another

section — all of those

things. So the public interest inquiry board makes a report, and the

commissioner can review it with respect to all of these other matters

and then refer it back to the public interest inquiry board with

instructions.

I think what happens here — not to exaggerate the point — is that

the commissioner can intervene in so many different ways and continue

the process so long that it smothers collective bargaining in a kind of

bureaucratic process, which I think is counterproductive to getting an

agreement. You know the old saying: "Justice delayed is justice

denied." Nothing more frustrates the ability of two parties to come

together and get an agreement than third-party intervention of this

scale. You end up with processes in place that inevitably delay and

frustrate the ability of the employer and the employees to exercise

their economic leverage and power in bargaining to come to an

agreement. By miring it in a process that, I think, is going to delay

and frustrate the parties coming together in agreement is really

counterproductive. It's really the central thrust of the legislation,

and we believe very strongly that it is counterproductive.

It's in the interest of the parties to have a quick settlement. This

kind of third-party intervention is really going to delay the matter,

and will, I think, end in a great deal of frustration for the parties,

and that's also cause for industrial unrest to a great extent –– I

think the parties to the dispute will never really know whether they

have the ability to use a particular bargaining strategy. In other

words, the union will never really know whether it can go on strike

because of all the different avenues available to the commissioner to

thwart that endeavour, and the company will never know whether it can

actually lock out an employee. When you take away the certainty of

those mechanisms and allow all these other interventions, it simply

drags the process on, and I think that a great deal of uncertainty

hangs over the heads of the parties in negotiations.

Interjection.

[ Page 1789 ]

MR. CLARK: That was a very enlightened comment from the

member for Yale-Lillooet (Mr. Rabbitt). He has talked in this House

about being involved in collective bargaining, and he knows that

neither the union nor management can exercise their prerogatives to

negotiate a collective agreement if there are all of these other

interventions available that cast this kind of uncertainty on the

bargaining process and delay settlement of the dispute. It's going to

cause frustration; it's going to ultimately cause a greater degree of

disruption than would otherwise be the case, in my view. The parties

can never really predict the chances of success from any particular

demand because of this kind of process.

I guess I just want to ask one question, and I know the minister is

taking a few notes. The one specific question I have on this

section is

that the old Labour Code allowed the minister to appoint an industrial

inquiry commissioner. So there is another avenue for review by a third

party, and that prerogative of the minister has been exercised from

time to time, but very rarely, to intervene in intractable disputes. It

seems to me, with all of these tools available to the commissioner....

Why is the industrial inquiry commission mechanism still in place? Or

is it? Is there not a lot of overlap between those two mechanisms? How

do you see those two playing together?

[10:45]

MR. JANSEN: Listening to the member for Nanaimo and the

second member for Vancouver East.... They use the words "intervention"

and "coercion." In fact, I read

section 137.7 in exactly the opposite

way. Indeed, we are looking....

Interjection.

MR. JANSEN: When you use that word, Mr. Member, it suggests

an intrusion into the democratic process. I believe actually the

opposite to be the case.

MR. LOVICK: What's the opposite of...?

MR. JANSEN: When we look at

section 137.7.... I'm sure the

member wouldn't understand that, because they always look at matters

from a negative point of view. If you look, Madam Chairman, at

subsection (1), through requesting the information.... Where they have

commenced the collective bargaining process and the information is

requested, does that suggest too much power? Where the bargaining

process has commenced, indeed where we can be of some assistance to

mediate problems between two parties, where we can be of help, is it

too much power to suggest that we...? Are we being counterproductive

when we request that information be supplied to us? I think not. I

think that this government has shown that we want to help, that we want

to provide the assistance necessary between the two parties.

Also, when we talk about

section 137.7(4), we talk about "before

the commencement of a strike or lockout." It's before the commencement

of a strike or lockout. Throughout the hearing process the union

members expressed the frustration of not being able to exercise the

democratic right of expressing a vote in regard to what is very, very

important and what some members on the other side take very lightly —

the work stoppages that happen from time to time. Where families have

their houses on the line and their livelihoods on the line, they're

very much concerned. They request simply, Madam Chairman, that they be

given that right, that democratic right that is vested in our country —

the ability to exercise an expression of their confidence in, or

support of, the positions taken in the bargaining process.

I strongly feel that

section 137.7 is a

section that really puts

forward the assistance of the commissioner in addressing the concerns

between the parties and expresses as much as possible our interest in

resolving those differences and in providing a better and more

productive industrial relations climate.

MR. SIHOTA: I want to deal with the point made by the

previous speaker from Chilliwack, and also to direct some comments

towards the minister.

The member for Chilliwack talked about expression of democratic

rights. It strikes me as if this whole debate, particularly as it

relates to subsections 137.7(4) and 137.7(9), is one that

specifically is concerned about democratic rights, or at least in the

perception of members opposite in terms of what happens with trade

unions.

The feeling one gets when one reads the

section — I guess there are

a couple of them.... The first feeling one gets is there's a feeling on

the other side of the House that, well, we just need one last vote,

just before the commencement of a strike or lockout, and that will

solve the situation.

I think the fact of the matter is that if one were to take a look at

industrial disputes and study the history of industrial disputes, if

you were on the verge of a strike or lockout vote, or in fact you've had

one, at that stage one last vote on the final offer is not going to

solve the problem. In fact, what seems to be missing implicitly in the

section is the fact that there's a feeling that.... Let me put it this

way: there's a feeling that you cannot trust the trade union leadership

hierarchy. There's a feeling that they will not take in good faith the

final offer to their membership, that they will not put it before them

and ask them for their approval before going out on strike or not.

When a trade union is making a decision as to whether or not it

wishes to take the ultimate economic weapon that it has, which is to

strike, it's a very, very difficult decision. For those who have been

involved in that type of process, I think they will tell you quite

frankly it's a very, very difficult decision. Not only is the chemistry

of the bargaining process in their mind — and they've been sitting in

the room where both parties have been negotiating, and obviously that

in itself breeds a level of frustration and hostility often, which will

get either side to consider a strike or lockout — but also on their

minds is the question of the economic effect of taking that strike or

lockout vote. In the case of a trade union, to sit there and have to

make a decision which you know will interrupt the paycheques of your

members is not easy. Think about that for a moment. Your membership —

the people who have elected you to represent them — may face an

interruption in their income, their mortgage payments, their car

payments, their grocery bills, and the activities they had planned with

their families, particularly in the case of a longer dispute.

So the decision to move on to a strike is not an easy one, but

usually by that point the situation has solidified, the principles have

crystallized and the parameters of the debate are evident. That

information is provided to the membership, and the decision is made

after considerable thought. By that time it's highly unlikely that one

final vote is going to solve the problem.

[ Page 1790 ]

More importantly, there seems to be an underlying message in

sections 137.7(4) and 137.7(9), which is that you can't trust the

trade union leadership to convey to the membership the parameters of

the debate — that the leaders of the trade unions are out of touch with

their members, that they are far more militant than their members, and

that the leadership, because it's "out of touch" or "excessively

militant," is not acting in the best interests of the membership, and

if only the membership could have the chance to vote on that final

offer sitting on the table, that would solve the problem.

In my view, it's doing an end run around the elected trade union

leadership — democratically elected by that membership to represent

them. It's a little like someone doing an end run around the cabinet,

and going to members of the Social Credit back bench or to members of

the party and trying to sell it on something. Inevitably, if that were

to happen and a vote were taken, I would venture to say — although it

shouldn't happen from time to time — that the solidarity of individual

caucuses would take precedence over any concerns that they had at the

end of the day on the issue.

The same type of thing, it seems to me, will happen with respect to

a trade union vote. There will be an incredible amount of solidarity,

particularly when it's someone other than their employee organization —

their trade union leadership — that's requesting the vote, and

particularly when the adversary, the employer, is requesting that the

vote be taken. At that point you're getting into a matter of force, and

you're beginning to challenge the legitimacy and the accountability of

the leaders of that trade union. At that point the debate shifts away

from the terms of the contract to a vote of confidence in the

leadership. That's what all this means, in the chemistry of a hot and

protracted dispute where people are thinking of going out on strike.

All you're inviting by the adversary — the other side — asking for a

vote.... In the case of a courtroom battle, it's like my adversary

saying to me: "Well, Mr. Sihota, go and ask your client one more time

what he or she thinks." If I have no choice in that, it clearly is

going to be treated as a vote of confidence in myself — or in this

situation the trade union leadership. Given the fact that these people

have been democratically elected and are involved in the negotiation

process and the dispute, the overwhelming chances are that they will

get a resounding vote of confidence, and then you're going into a

strike or lockout — because I'm sure the same thing would happen in the

employer's situation. Then you're going into that dispute with a vote

that clearly is far more threatening to the other side — to the

employer — because it's a solid vote. One could argue that on the one

hand you're almost improving the card, but on the other hand you've

also hardened the positions at a time when, in my view, they ought to

be softened.

The underlying theme that emerges from this

section — and I'd like

to ask the minister if he agrees with this — is this whole mistrust or

this whole feeling that the leadership of the trade union is out of

touch with its members.

I know perhaps this has been quoted before; I think I may have

quoted it in the past. It once again draws it back to a comment that

Paul Weiler made in his oft-quoted book during the course of the debate

that we had; but I think it has significant poignancy at this stage of

the debate. He said:

"There are few institutions as democratic as a typical Canadian

union, as accountable to their constituents, whether one considers the corporation,

the university, the professional association, or even our political parties

and governments. Employees choose by majority verdict whether they want union

representation; they often have the opportunity to vote in favour of a rival,

raiding union; they elect the officers who exercise authority in the local unit,

and send delegates to conventions which select national officers. More important,

it is the employees themselves, not these officials, who make many of the key

decisions in their collective bargaining regime: to ratify contract settlements,

to authorize strike action, to raise their union dues, often to discipline individual

members, and occasionally even to set the salaries of their officers."

He says there are few institutions as democratic as trade unions;

and yet the thrust of this

section is basically to challenge that

democratic process. The member for Chilliwack (Mr. Jansen) says: "Is it

not democratic for them to have a vote?" Of course it is. And of course

they've exercised the option to have that vote. They exercised it when

they elected their officials. They exercised it when they decided to

select the bargaining committee. They exercised it when they decided to

set out the terms that they wanted to take to the table. They exercised

it when they considered other votes. They exercised it when they

considered the strike vote. That democratic right, that free right, to

vote happens far more than, as Weiler says, within the political

process.

It was only a short while ago that the Premier of this province

talked about referendums on significant issues in the province. Of

course, now he's backed down on that promise with respect to Bill 19.

The right to vote is exercised over and over again. One more vote is

not going to make a difference. It is particularly offensive when that

vote happens not at the request of the democratically elected trade

union officials your leadership — but at the request of the employer of

course through the commissioner. It's particularly offensive when the

thrust of that

section appears to suggest that these officials are out

of touch. I just don't think that's true. And if I'm wrong, I would

like to ask the minister, in concluding, what comment he has with

respect to the tenor of my submission, which is that the thrust of this

section, particularly 137.7(4) and (9), is a lack of trust on the part

of the government with respect to the democratic process in selecting

trade union officials.

Is it not true that the purpose of the sections that I've quoted is

simply to do an end-run around the leadership of the trade unions

because of an assumption on the part of the government that it believes

that these people are not representative of their employees, despite

the arguments that I've made? Is that not really what the government is

trying to do here?

[11:00]

HON. L. HANSON: I have suggested earlier that I have been

making notes of the various concerns of the various members as they

expressed them. Instead of popping up every question, I will answer

after there have been a number of speakers. But I'd be pleased to speak

for just a moment. It's not a distrust of the bargaining unit members,

or the bargaining team, which, as the member said, are democratically

elected. I certainly have no disrespect for the process that they go

through to elect their bargaining committees and their other officers.

I'm sure they're very democratic. I'm not aware of them all, but I

don't have any difficulties

[ Page 1791 ]

with that process. I guess various constitutions have various

methods; I don't know if they're absolutely all identical. But I accept

the fact that they are democratically elected; I certainly wouldn't

dispute that fact.

Something we're suggesting here is that the people most affected

have a right to express their opinion before it gets to that very

disruptive stage of a strike or lockout. It's not a question of

mistrust. Bargaining involves a certain amount of buildup of pressure

on both sides, as they go through the process. We think there should be

an opportunity for those people most seriously affected to have an

opportunity to express their opinion at that point.

It's interesting to look at some of the experiences in another

jurisdiction that suggest that this could be a very effective method.

In Ontario they've used it for a number of years; I'm not sure exactly

how many. In the last year or so there were 27, and the total of such

requests made — again, I'm not sure exactly when it was put into force

— was 137. The results were that 23 of those offers were accepted, 70

were rejected, 34 settlements were reached prior to that vote, and nine

of those requests for a vote were withdrawn. So there is some evidence

of the merit of that vote.

I don't accept the premise that it's predicated on a question of

distrust of the bargaining committee in their desire to communicate it.

I think it's more an assurance that the people most directly affected

have a right to express their opinion on the last offer, I guess, in

this case.

MR. SIHOTA: The minister makes some interesting points. His

thrust is to say that those most directly affected ought to have the

opportunity to vote on the final offer. It seems to me that that raises

two issues. First of all, it raises a technical issue, and then it

raises, in my mind, a larger philosophical issue.

The technical issue is this. What is the final offer? The employer

could put forward an offer; there could be a vote and it could be

rejected. Then the employer can amend that offer, only in a minor way,

between the first vote and a time uncertain, and request a subsequent

vote. The substantive portions of the agreement may not have changed at

all, but the commissioner, as I see it, has no option but to hold that

vote. As I say, that is more of a technical concern. I see the minister

querying. That's my reading of the legislation: there could indeed be a

vote again and again, even though the substantive aspects of the offer

may not have changed at all, and it could be classified as the final

offer.

The larger philosophical concern is this. If the minister feels that

the employees ought to take a final vote on the issue before going to

strike, it still doesn't address the question of it being the employer

who has the ability to trigger that vote. It doesn't address the

solidification, question of confidence issue that I raised earlier on.

Philosophically, you have to leave it up to the employees' organization

itself to decide whether the final offer will either be put to a vote

or canvassed thoroughly with the membership. I believe, philosophically

again, that it ought to be canvassed thoroughly with the membership. My

experience is that it is; that because of the financial impact on

members of going out on strike, the final offer is inevitably looked at

very closely by employees. They've got to, because they're making a

critical decision, in terms of interruption of their own income when

they decide to go out on strike. They are not going to do that without

being familiar not only with what is on the bargaining table but with

the arguments as to whether what is on the bargaining table is

deficient one way or the other. So it seems to me that that is already

happening in terms of employees being able to be totally familiar,

immersed and able to canvass the content of the final offer before

making the decision to go out on strike. They've got to be; it's by

implication. If my income was going to be interrupted, then of course I

would want to be on top of the issues as well.

So I think it is going to happen, but asking that it happen at the

request of the employer, and the employer only, is unfair. It brings

about another issue with respect to confidence, and it ought not to be

triggered in that way. It is going to get canvassed, it is going to get

discussed, and employees are going to know what they are going to be

doing before they go out on strike. Hence I can’t see the rationale

behind the employer....

Time does not permit me to go on, although I had some other

questions. I will pop back in the House in a few minutes, because I do

have something else I have to attend to. I think one of the other

members wishes to make an introduction, so I will step down at this

point and come back and continue this matter with the minister a little

bit later on today.

MADAM CHAIRMAN: The second member for Okanagan South would like leave to make an introduction.

Leave granted.

MR. CHALMERS: Today in the gallery we have some 29 students

from the Kelowna Christian School here to watch democracy in action and

probably to learn how the same question can be asked 22 different ways.

With them they have chaperones: Mrs. Phyllis Mitchell. Mrs. Sharleen

Kruschel, Mrs. Elsie Biersteker and Mrs. Shirley Sawatsky. I would ask,

on behalf of the first member for Okanagan South, that these people be

welcomed here today.

MR. CLARK: I am a rookie here too, Madam Chairman, but we

haven't been asking questions 22 different times. But we could; you

should remember that.

I just want to touch on the industrial inquiry commission aspect of

the old Code and how it seems to be that there are a lot of mechanisms

for intervention by the commissioner in this

section entitled

"Intervention." The old Code had a provision for the minister to

intervene in extraordinary circumstances with the industrial inquiry

commission. That is retained in this legislation, so I am interested in

the minister's comments regarding essentially why he would feel

compelled to retain that

section of the old Code, given all these new

mechanisms for intervention, and how he sees the two playing — or the

sort of dual-track process for resolving intractable labour disputes.

MR. GABELMANN: We are ready to move on, and we could move on as soon as the minister responds. That is why we are waiting.

HON. L. HANSON: There were a number of questions raised by

various members, and I have been keeping note of them. I think one

question was the ability of the commissioner to require information; I

think it was raised in one of the earlier presentations. It seems to me

that the commissioner, in order to be able to perform his

functions.... He needs information to be able to perform his functions

from a

[ Page 1792 ]

knowledgeable point of view. So I think that is very well justified.

There was another question, I believe from the member who has left,

on the number of times that the employer could require it. I think it

is very clear in subsection (8) that the employees or the employers

can.... It's restricted very specifically to one vote per dispute. I

don't think there's any question of that.

The commissioner does have an opportunity to order more than one

vote, but I would think that that would be extremely unlikely to

happen, because the commissioner's mandate is to enhance the bargaining

process, not to repeat it. With his knowledge of what is happening and

what has gone on with this particular dispute, he would use that with

great discretion.

I think the last one was the question of an IIC. The IIC provisions

have certainly been there since 1973 and have been very rarely used; I

don't think there's any question of that. I believe that the range of

powers of the commissioner will be used very sparingly too. There may

be some overlap between an IIC and the public interest inquiry board,

but I think that's a deliberate overlap. The main difference is that

the public interest inquiry board will be more visible; it will take

place under public scrutiny.

I refer to

section 122.1:

"The minister may, on application or on his own motion,

make or cause to be made the inquiries he considers advisable respecting industrial

matters, and subject to this Act and regulations, may do the things he considers

necessary to maintain or secure industrial peace and promote conditions favourable

to the settlement of disputes."

That hasn't changed, and I guess what the member is suggesting is: "Why

are you giving it to the commissioner when it's still an option of the minister?"

An industrial inquiry commission can be appointed at any time; it doesn't

require a dispute in order to be triggered. I think that under some very unique

circumstances there is a requirement that the minister, as such, do retain that

ability, and it may not have a direct relationship to an actual dispute.

[11:15]

MR. GABELMANN: I just want to make it clear as we move on

here, Madam Chair, that in no way should the member for Vancouver

East's comments be construed as meaning that we're not in favour of

maintaining the IIC option. It's clear that that option should remain.

It's clear, however, that there's no longer the intention of using the

IIC for dispute resolution, because all of that now is here in this Ed

Peck section.

The IIC remains, however, a useful mechanism for broader industrial

inquiries; for example, inquiry into how this legislation is going to

impact on the construction industry before it's proclaimed. It could

very easily be established under the IIC provision, and it might be a

very useful thing to do. I hope the minister would take that kind of

suggestion, among others, into play.

We have talked about 137.7 at some length this morning, and I think

have made all of the points we want to make about how we feel this

intervention by the commission is inappropriate, wrong and

counterproductive to industrial relation dispute resolution, to harmony

and, in fact, to the economy of this province. I'm not going to go

through all of those arguments again, other than to say that whether or

not the commissioner uses the powers that are available to him in this

legislation is less the point than the fact that these powers exist.

It's the sword of Damocles that is as much a concern as the actual

downward motion of the sword. The fact that it hangs there is at least

as damaging as if it were used. It's as damaging if it sits there

unused as it is if it were used. I don't think the drafters of this

legislation and the government understand that point, and I don't think

they understand that these kinds of powers and this kind of opportunity

for intervention is what so angers people in the trade union movement

and so stiffens their resolve to not cooperate with legislation that

could do them in at any point. Whether or not the legislation would be

used doesn't matter; the fact that it's there is sufficient damage.

I want to move on to the essential services section, which is a new

section. In a sense, it's better that the minister have these powers

than Ed Peck. The original

section would have allowed this non-elected

person to make very subjective decisions about when the so-called

public interest is affected in the delivery of so-called essential

services. That power now rests with the minister. It doesn't make it

any better.

I'm sorry; I shouldn't say that, because it does make it better in

one sense. It makes it better in the sense that at least the minister

is accountable to this Legislature, and that's better; I need to

acknowledge that. It's pretty clear to me that if the commissioner, in

reporting — to use the verb in the first line — to the minister,

reports about a dispute and makes a suggestion in respect of essential

services, he won't have much credibility in that job if repeatedly the

minister turns down his advice. If the minister is repeatedly turning

down his advice, then no doubt a new person will soon be hired.

So I think it's a logical thing to conclude that whatever Mr. Peck

wants, the minister will give. If he doesn't, there is an obvious lack

of confidence in him. I think that underlies the comment that we and

others have made that all that this amendment really does is to place a

phone call into the mechanism and into the system.

I want to deal, however, at this point with the whole question of

essential services. It used to be, and I think should still be, that

essential services were when an immediate and serious danger to life,

health and safety could occur as a result of the withdrawal of labour.

Nothing else is essential in our society. If someone is going to lose

his life or be seriously endangered in terms of his health or safety,

which is related to his health, then clearly one could argue that it's

an essential service. But nothing else is essential. If the ferries

were an essential service, they would run all night. They don't,

because they're not an essential service. I live in a riding that's....

MR. LOENEN: I'd like your constituents to hear that.

MR. GABELMANN: Well, I don't mind saying this. I've got

Quadra Island, Cortes Island, Malcolm Island, Cormorant Island and a

series of other islands that are serviced by ferries, and I get 70, 80,

90 percent of the vote in those islands. I've taken this position

clearly and loudly, and the people there understand it and accept it

and agree with it. There's no problem. Members who don't have ferries

in their ridings, like the member for Richmond, don't understand that.

MR. LOENEN: You're killing B.C.; you're killing tourism.

[ Page 1793 ]

MR. GABELMANN: The member for Richmond says we're killing

B.C. What the member for Richmond doesn't understand is that these

essential services will be provided less often in the future than they

are now with this kind of legislation, and that's the underlying,

fundamental point that we've been trying to make for however many weeks

this bill has been debated. No matter what you do with legislation —

and I'll come to that in a few minutes — if people can't live with it,

the law won't matter.

Police strikes in the Maritimes were illegal for years. We always

had them. There were police strikes in every Tom, Dick or Harry

community in the Maritimes. Every year you'd read about dozens of them,

it seemed. There weren't that many, but it seemed there was always a

police strike in the Maritimes and Quebec over the last two or three

decades. They were illegal. Police strikes have been legal in this

province, and we haven't had them. It seems difficult to get through to

government members this essential point. If you make it lawful to do

something, and you establish a mechanism by which frustrations can be

resolved, you don't have the denial of this essential service — in this

case, the police service. If you make it illegal and have no

mechanisms, you have all kinds of strikes. They're illegal strikes, but

you still have them. That is such a fundamental point in dealing with

the basic human right to work or not to work. It seems so obvious, so

logical, so elemental, that it is frustrating dealing with a group of

members of this House who don't seem to understand it.

I acknowledge and I understand why the public in large numbers feel

that if you had a law saying it's illegal, that would solve all the

problems. This is essentially a law saying that essential service

disputes are illegal. You go through the hoops and everything, but

that's effectively what you end up doing; and I will get to the point

in a minute about how everything now is essential, as defined by this

section. But we need, first of all, to deal with the basic point. If

there are life-threatening situations, workers who provide that service

have always provided that service. Trade unionists have always, before

a strike in an industry or service that has the potential of impacting

on health or safety or life, instructed some of their members to

provide the service. It used to be done entirely voluntarily by the

trade unions involved.

More recently the Labour Relations Board has got itself involved in

designating certain people as essential to make sure that there wasn't

that kind of threat to life. It's always been done. But now we're

moving this concept of essential services from "essential..... . The

only thing really essential in life is that you don't lose it, or have

it impaired in a way that might threaten it. I can't think of anything

in my life that's essential, other than preserving my own life and that

of others around me, and for that matter any human being's life.

Nothing else really is "essential." If I can't get to Vancouver by

ferry tomorrow, does my life change? No, it doesn't. But the real

question is the need to design laws to make sure that we can get off

the Island every day. So what do you do? Do you have a law that says

you will be breaking the law if you don't provide the service? Or do

you have a law that encourages dispute resolution in a voluntary way

that in fact encourages the lack of disputes?

That's the central point of this whole debate, and we have been

unable to get through to the government on this point. The law they're

making, especially when you come to things like essential services,

guarantees the Maritimes police situation, not the British Columbia

situation, where police officers have had the legal right to withdraw

their services. As I said before, when they have the right, they don't;

where they don't have the right, they do. That just seems to me such an

elemental fact, and for the government not to understand it,

particularly when it's a government that talks about freedom — the

freedom for individuals to do their own thing and not be impaired by

government and its agencies.... But we've made that point before, too.

We have moved since the early seventies from a position that

essential services are life-threatening situations to one where it has

got broader and broader, through the '79 amendments and the '84

amendments, where the economy somehow became an essential service, to

this section, which allows the minister to declare essential any

activity in this province that might by its absence for some days pose

a threat to the economy of the province, to the health, safety or

welfare of its residents, or to the provision of educational services.

What have we got right there? You have every conceivable dispute where

the participants have some bargaining power. You do not have any

dispute where the participants have no bargaining power, such as a

situation where the strike is being scabbed. If that, all by itself, is

not an illustration of how unfair this legislation is, and if people

can't see that, then clearly we have been talking into the wind for ten

weeks now, and we will never make our point clear. The Trail dispute at

the present time, the forestry dispute last year, or any significant

industrial dispute of that kind could be declared by the minister a

threat to the economy and therefore would be declared an essential

service.

I am not sure this word is parliamentary, but I think it is

appropriate, and I am using it as a verb: that bastardizes the whole

concept of essential service. It makes the concept absolutely

irrelevant; you no longer have a concept of essential services. What

you are saying is that everything the government feels could hurt the

economy is essential.

The tragedy is that you take bargaining power away from people by

that declaration. People who have no power will never have that

essential service declaration made on their behalf, because their jobs

are being scabbed, and there is no threat to the economy. If this

section does not symbolize — as others have done, I suppose — this

whole awful bill, then nothing ever will.

[11:30]

I won't belabour the point. I think we have made it in a variety of

ways. It is inappropriate to free collective bargaining. It violates

the Geneva conventions which call for free collective bargaining. I

don't think this is too personal, but for a government that has as its

leader a practising Roman Catholic.... He should know that it violates

everything the Catholic church stands for in terms of issues that the

Pope is enunciating from Poland to Chile. On every count, those

standards, those goals and those appropriate philosophical positions

are being violated by this government in a way that is difficult to

speak rationally about.

AN HON. MEMBER: Aye.

MR. GABELMANN: Well, the member can say "aye," which, to

those people in the gallery, simply means he wants us to stop the

debate, move on and have a vote on this section. That's what this word

means in this context.

[ Page 1794 ]

MADAM CHAIRMAN: Hon. member, your time has expired.

MR. GABELMANN: Oh, I'm sorry. Already?

MR. JONES: I apologize in advance for my voice; I think I'm

suffering a serious danger to my health at the moment. But I did want

to make a few comments on this section, particularly as it relates to

teacher bargaining in this province.

It seems to me that Bill 19 and this

section in particular really

symbolize the philosophy of the government. This government gave to

teachers in this session the right to strike on one hand and took it

away with the other — sort of the "now you see it, now you don't"

philosophy. Although this

section certainly affects all workers in the

province, it introduces I think in a substantial way the

section on

education.

As the member for North Island (Mr. Gabelmann) pointed out, I guess

that there is a need for designation of essential services in this

province, and it's the question of degree. It appears to be the

government's philosophy that all workers in this province are

essential, and fundamentally the right to strike, the right to withdraw

one's labour, has been taken away, except, as has been suggested, in

the area of teacher bargaining, where teachers will have the right to

strike in the summer and on weekends.

I guess we could look at what was existing prior in the Essential

Service Disputes Act and compare it to what we see in this legislation.

Previously I think we had a

section that suggested that if there is a

substantial disruption of the delivery of education services that

exists or is likely to occur, then it is possible to invoke the

Essential Service Disputes Act. But what we see now in this legislation

is a much broader, heavier

section dealing with far more than just the

substantial disruption of educational services; it's the entire

provision of educational services.

I think I'll sit down and ask the minister to comment specifically

as it relates to teachers' bargaining. Who asked for this heavy-handed

approach? Why does the government see the necessity of broadening this

part? Actually the whole

section has been broadened substantially.

Before I go on, I would very much appreciate the minister commenting on

that.

MR. S.D. SMITH: This section, unlike what has been stated for

the last few minutes, does not prevent strikes. Neither does it take

away the so-called right to strike, which I call "so-called" because,

as we all know, recently the Supreme Court of Canada has ruled pursuant

to the Charter, which the members of the NDP so strongly supported,

that indeed that so-called right does not exist.

What this

section does do is impose some responsibility on society

to take action if a lockout, for instance, has the effect of

threatening the economy, and if a lockout, for instance, has the effect

of threatening the health, safety or welfare of individual residents,

and if a lockout has the effect of threatening education services.

If that happens after the lockout has occurred, and it has affected

third parties, then this

section imposes a responsibility on the

minister to take some steps to deal with those threats. It seems

passing strange to me that people who are here to serve the public of

this province would oppose giving tools to a minister to step in and

order a cooling-off period, which is what he is entitled to do, or to

make certain designations about facilities where he has concluded that

a lockout has, in fact, threatened the economy; where he has concluded,

for instance, that a lockout is threatening the health and the safety

and the welfare of individual citizens; or where he has concluded that

a lockout is affecting education services.

I think that we would want the minister to step in under those

circumstances. I'm surprised, frankly, to hear the passion with which

some of my colleagues in this House who sit on the opposition benches

oppose this. There is no way in which this

section and this form of

responsibility does what you are saying. It simply does not. There is

no way that a minister who has to exercise this discretion could get

away with using it in the way you suggest, which is to eliminate the

right to strike.

We all agree with you. No one says that by law alone you can

eliminate the possibility that someone will withdraw their services, if

they so choose to do. The question, it seems to me, is: in the event

that they do, and in the event that the consequences that are

contemplated by that

section occur, what is a reasonable and fair and

appropriate response when a dispute threatens the economy, when a

dispute threatens the health or the safety or the welfare of

individuals in the province, or when a dispute threatens educational

services? What is a fair and reasonable and appropriate response to

that?

Why do you find it to be the case that ordering a cooling-off period

somehow is not a fair or reasonable or appropriate response where that

is happening? Or where under subsection (

b) the council is designated

to direct that certain facilities are deemed essential where they are

not now? What is wrong with that? What is wrong with that, if the

effect of the dispute is threatening the economy, if the effect of the

dispute is threatening the health and the safety and the welfare of

individuals in the province, or if the effect of the dispute is

threatening educational services? The question then is: what is an

appropriate response, and how ought the minister to exercise his

discretion?

The question of how you measure that is an interesting one. We have

seen and heard today the member for North Island (Mr. Gabelmann) say

that, for instance, he does not believe that the ferries are an

essential service. He said specifically that the ferries are not an

essential service; and that is a very good point at which we ought to

make the line of demarcation between the view that is held by members

on this side of the House and the view that is held by members on that

side of the House, and indeed within their own caucus.

I would ask the first and second members for Victoria (Mr. G. Hanson

and Mr. Blencoe) to stand in this House and support the position of the

member for North Island (Mr. Gabelmann) that ferries in this province

are not an essential service, and that in the event of a lockout of the

workers on the B.C. Ferry Corporation, which would have the effect of

cutting off supplies to this area for a certain period of time — or a

long period of time — the minister ought not be clothed with the

authority to recognize that which would be obvious to every citizen on

southern Vancouver Island, at least: that there is a threat to the

economy and that there probably could be a threat to the health or the

safety or the welfare of individual residents.

Why would you want to deny to the Minister of Labour the

responsibility under those circumstances to step in and ensure that

that threat is removed, to step in in a way that I

[ Page 1795 ]

think is entirely reasonable, where he would simply order a

cooling-off period? Why would you object to that? What is so incredibly

difficult for you to accept about a proposition that a Minister of

Labour will be granted and have imposed upon him the responsibility to

deal with those kinds of threats in the entirely reasonable fashion,

such as that given to him, of ordering a cooling-off period?

MR. LOENEN: Madam Chairman, I've spent the morning here

listening to the debate. I was away for a few days; it's good to be

back again. I do wish to make a few comments. I heard the member for

North Island tell us that it is better not to have laws outlawing

certain actions, because if we don't have such laws, people will

naturally automatically do what is correct and proper, and making such

laws will somehow aggravate the situation, will cause people to not do

what is proper. I just find this incredible. I think it's utterly

naive. and certainly my experience runs counter to that.

[11:45]

I'm glad that there are people who have such idealistic notions of

how we can run a society, but I must confess that it's not within my

experience that in fact that is so. If we carry that principle through,

I suppose we could abandon the Legislature and simply go back to some

kind of state of nature or whatever, and let everyone do as they please.

The other point the member for North Island (Mr. Gabelmann) made was

that this

section violates free collective bargaining. As the second

member for Kamloops (Mr. S.D. Smith) pointed out, the right to strike,

the so-called right to strike, is not a fundamental right. The Supreme

Court of Canada has just recently ruled on that, and it's

understandable that it's not a fundamental right. No one needs to feel

coerced to work for working conditions and wages that they're not happy

with; they can walk away from such a situation. But what the right to

strike entails is that you not only have the freedom to walk away from

a situation that you're not happy with, but you're also trying to

prevent everybody that's unemployed from taking that job. That is

something that can never be a fundamental right.

I think there are overriding reasons, concerns and interests in a

society which in certain instances limit the so-called right to strike.

It would be foolish, indeed it would be abandoning our responsibility

over society as a whole, for us not to recognize that. Therefore when

the member for North Island, the labour critic, tells us that this is a

violation of free collective bargaining, I think he's doing both

himself and the people of this province a disservice, because clearly

that is overstating the case. It's exaggerating to such a degree that

it becomes an utter distortion.

MR. BRUCE: Madam Chairman, I'd just like to comment, after

listening here, in respect to essential services and what was stated

by, as I heard it, the member for North Island in regard to the

question of ferry service being essential or not. If I heard him

correctly, I understood him to say that in his opinion, and certainly

that which he has gained from people who live on the islands in his

riding, he would feel that the ferry service is not an essential

service.

I have an altogether different view of that, and that's probably not

surprising. I too have in-riding ferry service, as well as both I and

the member for North Island sharing the same ferry service to the

mainland.

One of my islands has no services whatsoever on its shores. It has

no hospitals, no schools, no drugstore, no grocery store, nothing at

all. In fact, if that ferry link is not there, they're in very grave

difficulty. Their whole lifeblood.... That link is like a bridge to the

community of Vancouver Island — the mainland, if you like — and in

their view it is a very, very essential service for their livelihood

and their way of life. I certainly appreciate that there is the

question, that has to be reviewed. of what is essential and what is not

essential. But I have no problem at all with the minister having the

authority in that matter, and the act is written that he be able to

deem it essential. There may be degrees within that ferry service, and

the member for North Island has a different view than me.

In regard to the overall ferry system, from the mainland to

Vancouver Island, and if we're talking about essential service for life

and limb, I suppose the case can be made that we have the hospital and

care facilities on Vancouver Island and that ferry service may not be

needed to transport people to the mainland. But there is a much larger

question of economic survival, and a much more personal question of

jobs and the ability of people to find work. That essential link of

ferry service to the mainland can have a phenomenal impact on the way

the Vancouver Island economy can grow, or conversely, shrink and

stagnate. It's certainly not something that should be taken lightly, in

respect to whether or not our ferry service is essential. There's a

given about that one little ferry service I mentioned — that they have

no services on that island at all and it's very much an essential

service. But when we come back to that overall question of the lifeline

and lifeblood of the economy of Vancouver Island, there's that whole

aspect of knowing that that ferry service is going to be there and is

going to be running, and that the minister has the ability or the

wherewithal within this act to be able to determine, and set right if

there's a problem, that aspect of making sure that essential services

for the people of Vancouver Island are looked after. As one who has

lived on the Island all my life, born and raised here. I know that

ingrained in the economy of Vancouver Island is the fact that those

ferries from the mainland to Vancouver Island, the ability to transport

our goods and supplies back and forth, and the ability to send the

message that this is a stable economy, a good place where people can

invest — that you will be able to get your goods and your services to

and from the larger markets of the mainland, throughout this province

and throughout this country.... It is essential that we be able to

maintain that.

No, it is not like Poland at all. It gives us the individual

opportunity to grow and to expand. The whole aspect of the union

movement and the development here on Vancouver Island, where the union

movement has really fostered and grown, is very strong and is equally

ingrained in my blood and in those of us who live on Vancouver Island.

But to be in a position where we cut off our nose to spite our face by

having those links that are essential for each and every one of us in

the broadest sense to grow and develop.... It is extremely important

that it is there, or that there is the ability, through the auspices of

the minister, to step in and make sure that those services are able to

run.

So certainly there are lines and periods when one has to define the

aspect of essential. In my mind, the whole aspect of ferry service to

and from Vancouver Island, and to and from the islands within the

parameters of our ferry operation, is very clearly essential.

[ Page 1796 ]

MR. GABELMANN: I want to deal with the issues raised by the

last three government back-benchers in two ways; first of all, the less

important of the two.

Let me just give you an example. If it is essential for the ferry

link between Campbell River and Cortes Island to be maintained, why is

it not essential that there be a ferry between Campbell River and Read

Island? There is no ferry there; the government won't provide one and

hasn't provided one. If it is essential for the 400 people who live on

Cortes Island to have guaranteed ferry service, why isn't it essential

for the approximately 150 people who live in the Read Island area to

also have this essential service? They have no ferry. Why is it

essential for 400 and not essential for 150? The fact is it's only

essential if the government decides it wants it to be essential.

When I argue for roads to be constructed to communities in my riding

that have no roads, it's not considered essential. People in those

communities, and there are dozens of them, have to find their own way

to civilization — chartering a plane or boat or one way or another. The

government doesn't say: "It's essential, therefore we're going to

provide access to these people in the same way that people in larger

communities have that access."

So don't tell me it's essential. It's a matter of degree, and most

of all it's a matter of politics. The 150 people don't have much

political clout; the 400 have more. The quarter of a million, or

whatever it is, on Vancouver Island have yet even more clout. If these

quarter of a million people were in a population of 200 million, there

might not be a ferry to the island and it wouldn't be considered

essential, because their voting strength would be so low it wouldn't

matter, and so it wouldn't be essential.

So let's not say that every citizen's right to unimpeded, unfettered

access to a larger community in their neighbourhood is an essential

service, because if it was it would be being provided by various

government ministries, and it's not being provided. Let's get that

issue out of the way first of all, and that's the minor point in this

debate.

The major one is: we would agree with members of the government side

and every citizen in this province who would argue that we need to have

laws in place that guarantee the best possible services, that we have

to have laws in place that make sure that there are not interruptions.

We also have to recognize that in a democratic society that may occur

on occasion. So what do we have to do, knowing that on occasion there

will be disruption or there will be something happen that may lead to

that?

What do we have to do then? Do we design law that makes it worse and

makes people feel frustrated and makes people react to the law in such

a way that there will be more disruption, or do we design a law that

enables processes that can avoid disruption? That's the essential

choice, if I can use that word, that we have to make in designing this

kind of legislation. I use the police example now to pick up on what

the member for Richmond (Mr. Loenen) was saying — and I'll just be one

more minute, Mr. House Leader.

I used the police example as the classic example in Canadian society

of where making it illegal doesn't stop it, on one hand, and making it

legal, on the other hand, has stopped it: that is, police strikes. All

those illegal police strikes in eastern Canada and no legal strikes

here in British Columbia, because a process exists whereby people can

resolve their differences without resorting to that. That leaves aside

the whole question of whether market economics are essential, in terms

of being so important that it was necessary to have laws that deny

basic human rights because a market is so much more important than

people. We'll get to that argument starting at 2:30, Madam Chairman.

The House resumed; Mr. Speaker in the chair.

The committee, having reported progress, was granted leave to sit again.

Hon. Mr. Strachan moved adjournment of the House.

Motion approved.

The House adjourned at 11:58 a.m.

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