1984 Legislative Session: 2nd Session, 33rd 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, MAY 15, 1984

Afternoon Sitting

[ Page

4771 ]

CONTENTS

Routine Proceedings

Oral Questions

Bids for Systems Corporation. Mr. Stupich –– 4771

Television advertising. Mrs. Dailly –– 4772

Brief on Mainland Magazine publications. Ms. Brown –– 4772

Community involvement program. Mr. Barnes –– 4772

Sale of ICBC general insurance division. Mr. Cocke –– 4773

Presenting Reports

Select Standing Committee on Standing Orders and Private Bills

Mr. Pelton –– 4773

Select Standing Committee on Public Accounts and Economic Affairs

Mr. Blencoe –– 4773

An Act Respecting Central Trust Company And Crown Trust Company (Bill PR402).

Committee stage

section 1 –– 4774

Mr. Howard

Mr. Parks

Mr. Macdonald

Third reading –– 4775

Labour Code Amendment Act (Bill 28). Committee stage

section 3 –– 4775

Mr. Nicolson

Mr. Macdonald

Mr. Gabelmann

Mr. Mitchell

section 5 –– 4781

Mr. Gabelmann

Mr. R. Fraser

Ms. Brown

section 7 –– 4783

Mr. Gabelmann

Mr. Cocke

Mr. R. Fraser

Ms. Sanford

section 8 –– 4787

Mr. Gabelmann

section 10 –– 4788

Mr. Gabelmann

section 11 –– 4790

Mr. Gabelmann

section 13 –– 4791

Mr. Gabelmann

Mr. Cocke

Mr. R. Fraser

Mrs. Wallace

Ms. Brown

TUESDAY, MAY 15, 1984

The House met at 2:03 p.m.

[Mr. Strachan in the chair.]

HON. MR. GARDOM: Mr. Speaker, we are very privileged this

afternoon to have with us on the floor of the chamber the Hon. Brian

Peckford, Premier of Newfoundland, and Mr. Tom Siddon, the member of

Parliament for the British Columbia constituency of Richmond–South

Delta. Newfoundland and British Columbia are the bookends of our great

country, and I would say it is the best country in the world in the

estimation of everyone in this assembly. Notwithstanding the fact that

we are located at the extreme boundaries of our land, we are mightily

representative of all Canadians.

Premier Peckford is on a quest of seeking fairness and a capacity

for the province of Newfoundland to achieve its full potential within

confederation, and we're totally supportive of that fact.

Also in the members' gallery is a group of officials travelling with

Premier Peckford, and I would certainly ask all members of the House to

give a very warm and rousing welcome to our distinguished visitors. We

are delighted to have you aboard, sir.

HON. MR. WATERLAND: Mr. Speaker, some 27 years ago I had the

pleasure of spending two years of my life in the province of

Newfoundland. As a matter of fact, my eldest daughter was born in St.

John's. So on behalf of myself and my family I would like to offer a

very warm and special welcome to Brian Peckford, the Premier of

Newfoundland.

MRS. DAILLY: Mr. Speaker, it gives me pleasure to introduce

today a constituent of mine who has just achieved a new post; he is the

newly elected leader of the Liberal Party of British Columbia, Mr. Art

Lee.

MR. REYNOLDS: In your gallery, Mr. Speaker, are a number of

my constituents who are here to meet with the Minister of Education

(Hon. Mr. Smith) this afternoon. In fact, just about your whole gallery

is from West Vancouver. I'm going to take the House's time to introduce

them all because they so seldom get over here.

From the West Vancouver–Howe Sound Parents' Association we have Mrs.

Susan Brown, Mrs. Pamela Clark, Mrs. Jeanie Ferguson, Mrs. Barbara

Howard, Mrs. Alice Jennings, Mrs. Alden May, Miss Shelagh McClenahan,

Mrs. Fay McCracken, Mrs. Peggy Marfitt and Mrs. Pat Pearmain. We also

have trustee Margot Furk, and we have the principal of Sentinel

Secondary School, Mr. Doug Player. They're all from West Vancouver. I'd

ask the House to make them welcome.

Also here this afternoon, from another area of my constituency, that

great area of Pemberton, from the Pemberton Secondary Parents' Advisory

Group, are Max Halber, Lydia Dennison and Sandra Spetifore. I'd ask the

House to make them welcome.

MS. SANFORD: From the Malaspina alternative program in Parksville there

are 18 students from Grade 11 and college level who are visiting in the precincts

today and are in the gallery at this moment. They are accompanied by their teacher

Gordon Buzzard. I would ask the House to make them all welcome.

HON. MR. McGEER: Before we adjourn for the supper break, I

wonder if the House would make welcome and wish well Dr. Terry Howard,

who is the new executive director of B.C. Research and is here visiting

our parliament buildings in that capacity for the first time.

MRS. JOHNSTON: Mr. Speaker, in your gallery this afternoon

are two people who were formerly resident in my constituency and are

now in the Langley constituency. I would ask the House to please

welcome John and Mary Vertin.

MR. VEITCH: In the event that we have missed anyone in the gallery, I would like to bid them welcome.

Oral Questions

BIDS FOR SYSTEMS CORPORATION

MR. STUPICH: I've been waiting for some time for this

opportunity, and I welcome the Minister of Finance. While the House was

in recess, the minister announced rejection of all bids for B.C.

Systems Corporation and announced that the corporation will continue to

be in government hands. Will the minister confirm that the taxpayer

will continue to be liable for the $80 million in liabilities as a

result of the minister's rejection of all offers?

HON. MR. CURTIS: Mr. Speaker, without confirming the precise

figure mentioned by the hon. member for Nanaimo, quite clearly there is

a liability which rests with the Crown and therefore with the people of

the province. But it is wrong to draw the inference that with a sale of

the Systems Corporation as was originally envisaged the liability would

have disappeared with the snap of a finger.

MR. STUPICH: Mr. Speaker, one would have expected that if

there had been a sale there would have been some asset come into the

Crown to offset at least some of the liabilities.

The minister also announced that over half of the Systems

Corporation business will be directed to private suppliers. Turning

over half of the business to private suppliers is turning over an

asset. Does that still mean that the public will continue to be liable

for the total debt, whether it is $80 million plus or minus a dollar?

HON. MR. CURTIS: Mr. Speaker, it's difficult to relate the

two, because the ongoing contractual opportunities which will be

available for the private sector in the systems field will have built

into them a certain return to the Crown. Just what that is I cannot

identify at this particular point in time. But it is a positive move,

and I think it is a move which will, to a significant extent, generate

increased activity in the private sector in this very rapidly

developing area of individual activity.

MR. STUPICH: Mr. Speaker, I have some difficulty following

the minister's logic. It would seem to me that there is not going to be

any more activity generated as a result of this. It's true that it will

be in the private rather than in the public sector, but I would have

thought that if something were

[ Page 4772 ]

being turned over to the private sector there

should be some measurable return. Is the minister telling us that the

business is going, and we're left with a building that is essentially

empty? That's another question I'd like to put later on. We're left

with a building that has some tenants; we're losing the business; we're

getting nothing at all for the equipment. Yet we're turning all the

business over to somebody else who is going to use their own equipment

to do the work. Does that mean that we're left with equipment that will

be worthless and we still owe $80 million?

HON. MR. CURTIS: No, Mr. Speaker, it does not mean that.

MR. STUPICH: I'll ask the minister this question then. We do

have a new building. That's agreed to. It did cost us $39 million,

according to the financial statement of B.C. Buildings Corporation.

What proportion of the building is currently being used, and by whom?

HON. MR. CURTIS: In precise percentage terms of square metres

occupied, I'm afraid I don't have that information readily at hand. The

member in the

preamble to his second set of questions identified the

building as being virtually empty. That is not the case. One ministry

has located in the building already, and it is expected that other

government activities will be placed in that portion of the building

which is not required by the B.C. Systems Corporation over time.

MR. STUPICH: I'll accept something less than precise if the

minister would tell the House how many floors are currently occupied by

tenants. It's a four-storey building, I believe.

HON. MR. CURTIS: I think that information is readily

available in terms of the number of floors. I undertake to provide the

member, at the earliest possible opportunity, with the closest

approximation of occupied space in the B.C. Systems Corporation

building. I can have that information tomorrow.

TELEVISION ADVERTISING

MRS. DAILLY: A question to the Minister of Labour. Currently

appearing on Canadian and American television channels is an

advertisement featuring the voice and likeness of the Social Credit

member for Langley (Hon. Mr. McClelland), apparently making some

partisan political arguments about a bill which is presently before

this House for debate. Will the minister advise whether any taxpayer

moneys have been used in the airing and preparation of these ads?

HON. MR. McCLELLAND: Yes, Mr. Speaker.

MRS. DAILLY: Can the minister name any other jurisdiction where standards

of government propriety are so lax that partisan debate on a bill before the

House would be carried on television at taxpayers' expense? Do you know

of this taking place anywhere else by any other government?

[2:15]

HON. MR. McCLELLAND: Mr. Speaker, I don't know that there is

any television program running with my likeness on it which is

partisan; far be it from me or any of my impersonators ever to be

partisan on television. But we do have a serious responsibility to make

sure that the people of British Columbia are informed about the

activities of their government and are up to date in the ways in which

their government is looking after their interests.

MRS. DAILLY: As taxpayer moneys are being used by that

minister to put over his side of the argument on the Labour Code, would

the minister be prepared to offer equal time for the contrary view

under similar circumstances so that the opposition would have an equal

opportunity? After all, we're all taxpayers.

HON. MR. McCLELLAND: Mr. Speaker, I expect the television

station might want to offer the member for Burnaby North equal time; I

don't know. That would be up to them. There are no partisan statements

being made. It's not the opposite side being told on television

commercials, it's the people's side.

MRS. DAILLY: Since the NDP got 45 percent of the vote, I

don't think the minister can say that he's giving the people's side

when he speaks for everyone. If the minister is offering me or our

labour critic an opportunity to go on and talk about the Labour Code —

it would be our critic — may we therefore bill the Finance ministry?

HON. MR. McCLELLAND: Mr. Speaker, I didn't make any offers. I said they might want to approach the television station and talk to them about that.

BRIEF ON MAINLAND MAGAZINE PUBLICATIONS

MS. BROWN: Mr. Speaker, I have been waiting for a couple of

days to ask a question of the Attorney-General (Hon. Mr. Smith), but he

hasn't been in the House. So working on the assumption that he has

resigned his responsibility for this ministry which he handled so

badly, I would like to go to the backup, who is the Minister of

Intergovernmental Affairs, if he's willing to take it.

The North Shore Women's Centre submitted to the Attorney-General a

brief dated May 9 pointing out several specific publications

distributed by Mainland Magazine under the ownership of Jim Pattison,

which appear prima facie to contravene

section 159, subsections (1) and

(2) of the Criminal Code, as well as the Attorney-General's own

guidelines. Can the Attorney-General or the backup for the

Attorney-General advise why charges have not been laid against these

magazines previously?

HON. MR. GARDOM: Mr. Speaker, I'd like to thank the hon.

member for her thoughtful question. I shall take the question as

notice, make inquiries and report back.

COMMUNITY INVOLVEMENT PROGRAM

MR. BARNES: I have a question for the Minister of Human

Resources. On previous occasions the minister has indicated that the

community involvement program for persons with varying degrees of

handicaps and on GAIN, terminated during the restraint program, would

be reintroduced. I

[ Page 4773 ]

am asking the minister when that program will be

reintroduced, and to what extent it will cover those people who have

been applying for it in the past.

HON. MRS. McCARTHY: Mr. Speaker, I thank the member for the

question and assure him that the commitment made by the government to

bring back CIP in one form or another will be honoured. There will be a

public statement in the next few days on that, and all details will be

shared with the member in his office.

SALE OF ICBC GENERAL INSURANCE DIVISION

MR. COCKE: Mr. Speaker, I'd like to ask the Minister of Consumer and Corporate Affairs a question. Surprise, surprise!

Interjection.

MR. COCKE: A filler! Outrageous! The behaviour of this government, Mr. Speaker, and he calls it a filler.

In the course of making a decision to sell the ICBC general

insurance division, what consideration will the minister give the role

of ICBC general insurance in providing essential insurance services in

areas where the private industry does not assume the risk? We're

talking about prior to 1973. Are we going back to those dark ages?

HON. MR. HEWITT: Mr. Speaker, two things. First of all, in

making that decision to divest ICBC of its general insurance division,

we obtained from the Insurance Bureau of Canada and its members

assurances that no British Columbian would be disadvantaged by the

government's getting out of the general insurance field. ICBC doesn't

just write all the high risks or possible risks in the province of

British Columbia. We write 7 percent of the market, of which some is in

the rural areas and some in the lower mainland. Therefore the private

insurance companies that write 93 percent of the total insurance in

this province are also accepting some responsibility. What we're saying

is: why are we in the marketplace competing with the general insurance

people when they write 93 percent of the business, and we're the

government that makes the laws by which the private sector operates? I

for one don't accept that philosophy, and I'm very pleased we made the

announcement yesterday to get out of the business.

MR. COCKE: It was embarrassing to them. It was a money-maker

in the first place, it was a window on the industry in the second

place, and in the third place it has provided an expansion of insurance

coverage across the province.

Interjections.

MR. COCKE: I'll ask my question in due course.

DEPUTY SPEAKER: Question, please.

MR. COCKE: What mandate does the government have to deprive

British Columbians of the locally owned and controlled insurance option

they presently enjoy? It's going back.

Interjections.

DEPUTY SPEAKER: Order, please.

HON. MR. WATERLAND: We won the election, in case you didn't notice.

MR. COCKE: No, the insurance companies won the election; we know that. You're their representative, and always have been.

Anyway, would you give us an answer to that?

Interjections.

DEPUTY SPEAKER: Order, please. I'll remind hon. members that

at question period, in pressing a question, it must be a question, not

an expression of opinion, representation, argumentation or debate.

HON. MR. HEWITT: The member prefaced his remarks by talking

about the period prior to 1972-1973. I think it's fair to say that at

that time there was a problem, and it was readily identified that there

were some areas not being properly served. In the view of the

corporation and in our discussions with the Insurance Bureau of Canada

and its representatives, we felt assured that those private sector

companies, which are run by responsible businessmen and businesswomen,

will ensure that people in British Columbia have adequate coverage. I

also said very firmly to the members of the Insurance Bureau of Canada,

in my preliminary discussions with them, that if they don't accept the

challenge and if they don't ensure that British Columbians are

protected in the general insurance field, then they have to recognize

whatever moves the government may make if they fail in that

responsibility. I can assure you that they're aware of that as well,

Mr. Member, and they have accepted that offer to come back in the

general insurance field. We're moving out of it, and, as I said before,

we should be out of it.

Presenting Reports

Mr. Pelton, Chairman of the Select Standing Committee on Standing

Orders and Private Bills, presented Report No. 5, which was read as

follows and received:

"Mr. Speaker, your Select Standing Committee on Standing Orders and Private Bills begs leave to report as follows:

"That the

preamble of Bill PR401, intituled Bill No.

1,

An Act to Amend the Vancouver Charter, has been approved and the

bill ordered to be reported as amended.

"All of which is respectfully submitted, F.C. Austin Pelton, Chairman."

Mr. Blencoe, Chairman of the Select Standing Committee on Public

Accounts and Economic Affairs presented the committee's second report,

which was read as follows and received:

"Mr. Speaker, your Select Standing Committee on Public Accounts and Economic Affairs begs leave to report as follows:

"The committee has received correspondence from John

A. Bovey, dated April 6, 1984, chairman of the public documents

committee established under authority of

section 3 of the Document

Disposal Act, and, having read this submission on behalf of the

[ Page 4774 ]

public documents committee, recommends that, in accordance with

the provisions of the Document Disposal Act, approval be given for the destruction

of various public documents as listed in the submission to the Public Accounts

Committee for 1982 and 1983 insofar as the following ministries of government

are concerned: Ministry of Consumer and Corporate Affairs, Ministry of Education,

Ministry of Finance, Ministry of Health and Ministry of Labour.

"All of which is respectfully submitted. Robin Blencoe, Chairman."

MRS. JOHNSTON: May I ask leave to make an introduction, please?

Leave granted.

MRS. JOHNSTON: In the gallery this afternoon I see one of my

constituents. This gentleman is a very involved community worker and is

also a very loyal and hard worker for Social Credit. I would ask the

House to welcome Zyg Skrupski of Cloverdale.

MR. PELTON: I would also beg leave to make an introduction.

In the members' gallery today is one of many fine school trustees

that I had the pleasure of meeting when I attended the B.C. School

Trustees Association convention on behalf of the Minister of Education.

Her name is Vicki Kuhl, and I would ask all members to make her welcome

to the House this afternoon.

Orders of the Day

HON. MR. GARDOM: Leave to proceed to bills, Mr. Speaker.

Leave granted.

HON. MR. GARDOM: I call committee on Bill PR402.

AN ACT RESPECTING CENTRAL TRUST

COMPANY AND CROWN TRUST COMPANY

The House in committee on Bill PR402; Mr. Pelton in the chair.

section 1.

MR. HOWARD: Mr. Chairman, I want to put a question basically

to all of us and ask why it is that we need to go through the process

in a legislative way of dealing with the incorporation of private

corporations or private companies, that it would seem.... It may be

cheaper for the company to do it this way. There may be some reason for

this to occur, but it seems to me that we should be examining our own

mechanisms for proceeding with respect to trust companies. Surely if a

trust company wants to become incorporated — and that's what is

occurring here, in a sense — there needs to be some procedure for the

transfer of the business of one company to another. That might more

properly be dealt with through the normal letters patent process rather

than consuming the time of the House in dealing with the matters. I'm

just talking in a general philosophic sense.

At one time in the dim past, I understand the Parliament at

Westminster spent most of its time dealing with private bills,

demarcating boundary lines between people's property, determining what

legitimate children were and all sorts of funny things. But we've moved

far beyond that, and this Legislature should be spending its time

dealing with the broad question of public business. I simply want to

put that forward as something that probably needs to be examined. I do

know, of course, that the Legislature established a committee, gave

authorization in terms of reference to a committee, a committee with

which you are very familiar, that might want to look at this mechanism

here and search out some other way of having these companies conduct

their business rather than taking up the time of people who should be

dedicating their time and effort to public rather than private business.

[2:30]

MR. PARKS: I think it should suffice to say to the hon.

member that I appreciate the tenor of his comments, but in fact this

legislation will enable the individual private citizens affected not to

have to incur tremendous legal expenses by each and every one of them

applying for court consent. In this legislative stroke, we are able to,

in effect, gain a community-wide approval of the transfer process. So I

can understand and concur in the tenor of the hon. member's comments,

but the true purpose of this bill is to bring about a speedy resolution

of a very unfortunate situation that originally occurred in Ontario.

MR. MACDONALD: Mr. Chairman, further to that question and the

answer, the amounts of money saved in terms of the transfer of titles

and so forth and the land registry office are probably immense. We're

probably looking at $200,000 to $300,000. I don't know what the amount

would be. But why should this procedure be available to trust

companies? It isn't available to all of the companies out there when

they merge or transfer their assets one to the other.

We're giving a very great boon in terms of relief from public fees....

AN HON. MEMBER:

Section 6.

MR. MACDONALD: In

section 6. We're almost at

section 6; it's a very short bill. Have you read the bill? It's very short.

Anyway, it's a very great relief in terms of public revenue. I

thought we lived in a time of restraint where the government needed

these revenues from trust companies as they do from other companies

that have to go to the land registry when they merge and file their

titles.

Sections 1 to 8 inclusive approved.

Title approved.

MR. PARKS: Mr. Chairman, I move the committee rise and report the bill complete without amendment.

Motion approved.

The House resumed; Mr. Speaker in the chair.

[ Page 4775 ]

Bill PR402,

An Act Respecting Central Trust Company and Crown Trust

Company, reported complete without amendment, read a third time and

passed.

HON. MR. GARDOM: I call committee on Bill 28.

LABOUR CODE AMENDMENT ACT, 1984

(continued)

The House in committee on Bill 28; Mr. Strachan in the chair.

section 3.

MR. NICOLSON: Mr. Chairman, as I was saying at the time of

adjournment, this change in the Labour Code is opening a loophole. It

repeals the old

section 5, which said that no person shall use

"coercion or intimidation of any kind that could reasonably have the

effect of compelling or inducing a person to become, refrain from

becoming or continue or cease to be a member of a trade union."

Under the new provisions of the Code there will be some restrictions

on a trade union and on members of a trade union, there will be some

restrictions on employers; but there will not be restrictions on third

parties who could disavow any interest, such as happened in the case of

the Association of Commercial and Technical Employees, Local 1728,

against "Dr. Pat McGeer," a labour decision of September 26, 1979. They

found that there was considerable pressure put on the members of a

union called FANDU — the Faculty Association of Notre Dame University —

which was a certified union. At the time, the government was attempting

to close down Notre Dame University and create a transition to what

later became David Thompson University Centre. There were many

documented accounts of the minister, the deputy minister, the executive

assistant Mr. Jim Bennett, acting on behalf of the minister, in

telephone conversations with aldermen, mayors and people — such as

Donna Graychick — who were associated with the then Save Our University

Committee. They were communicating with Alderman John Neville, Mayor

Louis Maglio and others. Over and over again the message was given

that....

For instance, in a speech in Nelson on June 1, 1977 — this was a

wide open public meeting — the minister said that he suspected that one

of the problems in getting other institutions to move in and take over

third- and fourth-degree programs — that is, the three major

universities — might be that the professors represented by the Faculty

Association of Notre Dame University were the only ones in B.C. to

unionize. "'Nelson might have to make a choice between FANDU and the

university,' McGeer said. 'If FANDU is standing in the way, that should

be known.'" In other words, there was a coercion, and that is exactly

what the Labour Relations Board found. The minister accepted full

responsibility for the statements made by Mr. Jim Bennett and his

deputy minister, and by one or two others. It was said also.... For

instance, on June 1, 1977, "Mr. Jim Bennett, executive assistant to the

Minister of Education, told Terry Peterson, president of the Notre Dame

University Student Union: 'If FANDU decertifies there will be third-

and fourth-year programs in Nelson next year.'"

On June 2, 1977, the Minister of Education made the following remarks: "None

of our existing institutions are interested in FANDU, and I certainly would

not wish FANDU upon any of the existing facilities." Later he said: "Universities

want to hire their faculty on the basis of merit, not because they belong to

a bargaining unit recognized by the Labour Relations Board." The minister's

remarks were reported in the Province , the Vancouver Sun , the Nelson Daily News ,

all dated June 3, 1977. This is evidence from the hearing of the Labour Relations

Board.

Mr. Chairman, that had the effect.... Testimony was given by the

then president of FANDU, Mr. Vincent Salvo, that it put tremendous

pressure on them to give up the right to a trade union; in other words,

it created a coercion. In spite of the attempts by the minister to hide

behind parliamentary privilege, which was rejected, I understand, by

the late Justice J. Kirke Smith, and despite other attempts to change

the rules retroactively, the board nevertheless proceeded toward a very

profound decision. There were objections originally. Quoting from the

report, "Dr. McGeer, Hardwick, Bennett and Armstrong objected to the

board's jurisdiction to hear the complaint," so they objected to the

Labour Relations Board having that jurisdiction. Then Dr. McGeer filed

a petition in the Supreme Court of British Columbia, seeking to quash

the board's jurisdictional judgment, and that petition was heard in

June 1978 and was dismissed. In his reasons for judgment J. Kirke Smith

said — and I'll give the full quotation from the report here:

"The thrust of Dr. McGeer's position before the board

and on this hearing before me is the contention that he is protected by the

absolute privilege traditionally and by statute conferred on our legislatures

from being answerable for the comments attributed to him which are here complained

about. The board decided that is not so, and I respectfully and completely agree...."

They were made outside of the Legislature. The

notice of appeal to the court of appeal was subsequently filed but was

later abandoned by the minister. Thereafter the complaint was heard by

the board on its merits.

Mr. Vincent Salvo gave testimony of the pressure that was placed on

members of that union, of the fact that of the 23 who were members at

the time the closure of Notre Dame was announced, only four were still

teaching within the province; that the previous president had suffered

heart problems as a result of the anxiety and pressure. The judgment

says:

"The statements referred to therein, says counsel for

ACTE, are patently coercive and intimidating. Coercion within the

meaning of

section 5, so the argument goes, can be either economic or

social in nature."

Indeed it was social as well as economic. In fact, as a result of

some of that I think the marketability of some of these skilled

professors was diminished and their job options were somewhat

restricted, although most of them have found fairly decent employment

or alternative employment. Some of them are practising law and doing

other things like that. But the fact is that counsel referred to the

testimony of Vincent Salvo, the president of FANDU at the time of NDU's

closure, and he said:

"...that all of the statements complained of became

well known to the faculty at NDU; that the public campaign against

FANDU had a 'chilling effect' on the faculty members, some of whom

began actively to discuss decertification; that they faced the might of

the government coming down hard on them when they simply wanted to

teach and do research;

[ Page 4776 ]

that the former president of FANDU had suffered stress-related

heart attacks; and that of the original 23 faculty only four remain involved

in education in this province. Salvo was not cross-examined by counsel for Dr.

McGeer, and we are asked to apply the usual rule and accept the testimony as

factual."

[2:45]

It talks about a balance in terms of free speech, that people certainly do have a right to speak out. It says:

"...the concept of free speech has traditionally been

seen as a necessary protection of the individual from the state, not

vice versa. It was never intended, so counsel argues, that a minister

of the Crown would shield himself behind a free speech argument in

order to emasculate or attempt to emasculate individual rights under a

statute, e.g. the Labour Code. In any event, free speech is not

absolute. It is always subject to statutory encroachment. Here the

Labour Code has struck a necessary and delicate balance between the

right to organize on the one hand and freedom of speech on the other.

It is submitted that Dr. McGeer and his officials did not respect that

balance, and it should be so declared."

MR. CHAIRMAN: Hon. member, one moment, please. Even when

quoting documents one should avoid mentioning the name of a member of

this assembly, and I'm sure we can refer to the member by the riding or

portfolio and remain quite clear in the argument.

MR. NICOLSON: Mr. Chairman, I'm reading a document.

MR. CHAIRMAN: Using one device, though, to do something which is not parliamentary is still unacceptable.

MR. NICOLSON: Mr. Chairman, with all respect, I find it a

very uneven-handed application of that rule. I hear many of the

sycophants of the opposition lauding "Premier Bennett." You're not in

agreement? I'm not trying to be derogatory; I'm not editorializing. I'm

just reading fact from a finding of the Labour Relations Board of

British Columbia.

MR. CHAIRMAN: I'm not trying to be difficult either, hon. member, and I appreciate your comments.

MR. NICOLSON: Mr. Chairman, a great deal is said in this very

lengthy finding, which goes on for some 40 pages. I've glossed over the

first 23 in the five minutes we've been going on this. But this is the

section which is going to prevent this. It has been very clearly

pointed out that this

section as it has been interpreted applies to any

person, not just to unions or employers, and not just to agents of

employers. It is also very clearly found in this judgment. At the

bottom of page 25: "First of all, in sharp distinction from, for

example,

section 3 of the Code...." In sharp distinction from

section

3: that is the form that's going to be taken on now in the amended form

of the Labour Code. In other words, everything will really be like

section 3 in the present Code. It applies to any person and not just to

employers or trade unions. So that is what we lose if this current

effort to repeal

section 5 of the Code goes through.

"Section 5 is an umbrella prohibition against any conduct reasonably

likely to coerce or intimidate employees in the exercise of this

fundamental freedom, whether the conduct is by the employer, a union or

an outsider." That's the thing we're going to miss. No matter what the

interpretations are of what's contained in

section 3, or what's going

to be contained in the new

section 5, the outsider is going to be left

to run free, rampant, irresponsibly, and immune to any kind of

prosecution.

It is also said in here that the language of

section 5 is not

materially different from that contained in

section 6 of the old Labour

Relations Act; that is the old Code which existed prior to 1973 or

1974. So we're really going back a long way in terms of the rights

we're taking away. We're not just repealing rights that were granted or

won by labour and included in an NDP-introduced Labour Code. These are

rights and

interpretations that existed prior to the NDP ever becoming

government: that is, under the old Social Credit government. That's how

far back we're going.

The conclusion of the board was that "Some forms of social pressure,

if sufficiently persistent... will constitute a violation of that

provision if they have or could reasonably have the effect of

compelling or inducing an employee to exercise the freedom guaranteed

section 2(

l) in a particular way." They say that "there evolved what

can only be described as a program of public coercion, the clear

purpose of which was to mount intense and irresistible community

pressure on the FANDU membership to give up that membership." I suppose

I was also under pressure to cut and run from 23 individuals who were

in trouble, but I didn't. I always gave them support. While I might

have had some differences with some of them as individuals, I felt they

had certain rights, and they were well within their rights to fight for

them.

There was, however, considerable community pressure, and I certainly

felt it. It was very reassuring to know that there was a Labour Code,

that there were rights and remedies, and one could point toward legal

remedies. One could counsel that people give the law a chance. But if

the same circumstances were to arise, if this

section 3 goes through,

killing

section 5 of the present Code, those remedies will not be

there. I think we're opening a loophole that probably hasn't existed in

this province for over 20 years. The board accepted that "the

statements must have had the chilling effect alluded to in the

testimony of Salvo" — that is, Dr. Vincent Salvo.

"There can be little doubt that an employer who tells

his employees, 'Quit your union or I will shut the business down,' has

committed an unfair labour practice. Although..." — there's that name

again, Dr. Blank; maybe I can put it like a Victorian novel would —

"and his officials were not acting as an employer, we agree with the

argument that the positions they held afforded them a far greater

degree of influence over the FANDU membership than ordinary strangers

to the employment relationship."

So this

section creates, I think, some very dangerous areas for

interference. I've been aware, for instance, of two occasions when the

Minister of Municipal Affairs (Hon. Mr. Ritchie) has interfered. I

believe once was in the case of some supermarket in his riding; I think

it was Overwaitea. People informed me that a minister of the Crown came

in and talked about them and about their union certification — whether

they were applying for certification or decertification, I don't know.

That's been reported to me, and now I hear of other reports dealing

with some sort of fast-food outlet or something — the same person. That

is an unfair labour practice,

[ Page 4777 ]

and it should not be permitted. It really should

not be permitted when a person is a minister of the Crown; it's even

worse, I think, than an employer. In many ways — in keeping with the

conclusions of the Labour Relations Board decision — a person like that

is sometimes in an even greater position to influence a decision.

At any rate, they reached the conclusion and said: "It is our

conclusion that in the manner and to the extent earlier indicated, a

violation of

section 5 did indeed occur, pursuant to

section 38 of the

Code. We so declare." Other reasons for judgment were summarized, and

it was signed by Donald R. Munroe — not, I think, as chairman — and

Alcott and Smith as members of that board. I think these are rather

respected people, usually by both sides, people normally held in pretty

high respect.

This is the kind of decision that opens a tremendous loophole.

Somebody stepped beyond the proper bounds. Instead of letting them have

their punishment, I suppose we give them their revenge, by killing that

offending

section of the act which compelled a minister of the Crown to

behave as, I guess, all persons were expected to behave. It had that

humbling, levelling effect, which might be an insult to one who has

enjoyed a lofty position for some number of years; but it has a

reassuring effect on the general public of British Columbia to know

that the law is equal to all.

So, Mr. Chairman, for that reason I certainly do not support this

amendment. I am not reassured by the minister and the comment he made

section 2 that everything remains as it always was. If everything

remains as it always was, you could have the safety of some redundancy.

Section 5 was not all that long; it's not that many lines, and it

wouldn't take up that much more paper, but it would certainly reassure

people a great deal more that we have equal justice for all.

MR. MACDONALD: First I want to be sure that I do understand

the

section correctly. It seems to say that notwithstanding this

dispensation of dues, when somebody signs up in terms of a

certification application, that person would have to make up initiation

fees and one month's dues — and possibly two months' if the

certification application took some time — which would mean the

applicant looking at $50 or $60 sometimes. If that is right, why is

that kind of roadblock being placed in the face of people who seek

trade union protection?

HON. MR. McCLELLAND: I think it would be up the union and the

member to decide how and when they would pay their dues and initiation

fees. What this seeks to amend is the Christmas-gift idea of a dollar:

"We're only going to charge you a dollar to sign up for the union."

MR. MACDONALD: Temporarily.

HON. MR. McCLELLAND: No, not temporarily, on a permanent

basis. What we're saying is that it's got to be upfront from now on

that the members know exactly what their dues are and exactly what

their initiation is. I assume that then the decision could be made

about how and when they're paid.

[3:00]

MR. MACDONALD: Mr. Chairman, it may be that the dollar under

the constitution of a particular union would be all that member would

pay until the union was certified, because he has no protection up to

that point. But what were the abuses? What was the problem that caused

you to say that a new member who still hasn't got certification for his

particular business where he works, who has still not got the benefit

of any union contract, must pay full fees right from the word go,

without any assurance that he's going to have union protection? What's

the reason for that? Am I not stating it correctly? Say it's in the XYZ

enterprise and there are 20 employees and the union fees are $25 a

month and there's an initiation of $25. You're asking that person who

signs the application in a union organizing drive to put up the $50?

Why not? That's what the

section seems to say to me.

HON. MR. McCLELLAND: No, it's up to the person and the union

to decide how and when the fee, whatever it is, will be paid. What the

section says is that what has happened in the past is that when an

organizer.... I'm not saying this is widespread, but it does happen and

has happened. An organizer goes into a plant or a store or whatever it

is and says: "Look, I'm only going to charge you $1 if you sign up

now." And to the other guy, who says, "I don't really want to sign up,

" he says: "Look, I'm only charging $1 now, but if we're successful in

our drive, we're going to charge you $50." That's not fair. It should

be upfront.

MR. MACDONALD: Well, it is. They understand that.

MR. McCLELLAND: No. It's used as a coercive tool, and that's

what we're attempting to stop. As for whether or not the person has to

reach in his pocket and take the money out at that time, that's not up

to us and not up to this legislation.

MR. MACDONALD: Mr. Chairman, one of the requirements when

there is a union drive to organize a place is that the members must be

in good standing in the trade union. Here you say the trade union can't

apply a different fee or initiation structure with respect to those

people who are being signed up in an organizing drive. To me, that

means they've got to be in good standing in the trade union and they've

got to pay all that money upfront. There's no abuse. You say they can

still pay $1 or $3, as they can under the Canada Labour Code and as

they could in British Columbia all these years. Is that what you're

saying? I don't think that's what the wording of the

section says. It

seems to me that you're saying here that you can't discriminate before

or after an application for certification in terms of fees or

initiation fees. The person has got to be a full member right from the

time he applies as part of a group of employees applying for

certification. If so, you're putting a tremendous financial roadblock

in the way of organization.

MR. GABELMANN: In his response the minister said it's used

occasionally — he didn't use that word — not always but occasionally,

in effect, as a coercive tool by the organizing drive. If in fact it is

a coercive tool, there are other sections of the act that deal with

coercion. Unions are prohibited in the law from using intimidation or

coercion. We've been through that debate this morning. So if it's a

coercive tool, it's covered and you don't need it here.

Dealing with the issue as I understand it, Mr. Chairman, the union

has a three-month period in which the organizing drive can take place.

They go in, they sign people up, people make a commitment in writing to

join the union. They pay

[ Page 4778 ]

usually $1 — sometimes it's a different amount —

but $1 is common. They receive in that period no benefits for their

membership fee. They receive no benefits for their initiation fee.

Should the application be successful and certification is granted,

then they and all the other employees who are covered by that

certification, starting on the date of the granting of certification,

pay the full monthly fees and the initiation fees. The people who chose

to sign a card are out a dollar. That's what it cost them to

demonstrate their commitment. The people who did not choose to sign

save that dollar. Nevertheless they get the benefits that come from the

certification and a subsequent collective agreement. But they both pay

the initiation fees upon the completion of the certification process.

They both pay full membership dues. Under this proposal the minister is

saying that those people who want to demonstrate a commitment to the

union have to pay the full monthly fees in advance of certification. If

the campaign takes three months, my

interpretation would be that they

would pay $75 if it's a $25-a-month fee plus the initiation fee. Often

the initiation fee covers a whole variety of other benefits that may

not come to them. I suppose the minister could say that that money

could be returned, but the act doesn't say that. The fact is that this

section is designed whether the minister knows it or not, to put a

financial impediment in the way of unions organizing. People who need

unionization are poor people for the most part; they don't make very

much money. That's why they're interested in forming a union. If you

tell people to put 50 bucks up front, and the campaign takes three

months before certification is granted, they put in a total of perhaps

$100. People are going to say: "I can't afford it." That's the way it

reads. If the minister doesn't intend that, then he should write

legislation stating what he intends.

HON. MR. McCLELLAND: Mr. Chairman, it doesn't say that in the

legislation. The legislation doesn't care whether they pay it today,

next week or next month. What the legislation cares about is that

everyone is treated fairly and equally. The case the member for North

Island stated, in which full initiation and membership fees are paid

sometime in the future by everybody, is not what's happening. Quite

often what happens is that the guy who signs the card, and obeys

whatever the dictates of the organizer are, pays the dollar, and that's

all. But the rest of the members, who perhaps haven't signed the card,

pay the full initiation fees and the full membership fees once the

certification has taken place, and that's not fair. What we're saying

is: treat everyone fairly. The legislation doesn't deal with whether

the money is paid up front; the legislation doesn't address itself to

that.

MR. MACDONALD: Mr. Chairman, if they apply for a vote, don't

they have to be members in good standing in the trade union and show 45

or 55 percent — whatever it is.

HON. MR. McCLELLAND: No.

MR. MACDONALD: They don't?

HON. MR. McCLELLAND: I don't see why.

MR. MACDONALD: They used to have to be. If you've changed something it's news to me.

HON. MR. McCLELLAND: I stand to be corrected by my staff, but

I don't know where the act requires them to be members in good standing

of a trade union. The act requires that the board be persuaded that a

majority of the people in an appropriate bargaining unit wish to apply

for a representation vote, and that's really all.

MR. MACDONALD: Following that same point,

section 39 is the

usual

section whereby you apply for certification. It says: "A trade

union claiming to have as members in good standing...." You can't

be in good standing now without being paid up in your dues. How come

you're not in good standing unless you do that?

HON. MR. McCLELLAND: This act doesn't go into the affairs of

a union in that way. The act says "claiming to have as members in good

standing," and I assume that the union itself can decide under its

constitution who is in good standing at any particular time. I believe

that the board requires only that a $1 initiation fee be paid in order

for a member to be in good standing. That's a board regulation at the

present time. We're not changing that. All we are changing is that

everyone must be charged the same fee for initiation and for

membership. They can't say that one person who has signed the card in

advance will get in for $1, but because you were naughty and didn't

sign the card, you're going to pay $60. That's all we're saying.

MR. GABELMANN: I think this exchange demonstrates the problem

we've got in this bill. First of all, the minister said that you don't

have to be a member of the union.

HON. MR. McCLELLAND: Claiming.

MR. GABELMANN: If I claim to be a member in good standing of

the NDP but I haven't paid my dues, I'm not a member in good standing.

It's the same in any organization.

The minister then went on to say that the board will be able to

determine that having paid a dollar means you're a member in good

standing. But when you read

section 7 of this bill, which will amend

the representation vote before certification, it says: "...not less

than 45 percent of the employees in the unit were members in good

standing of the trade union making application...." Then if the

trade union has as its rules that in order to join a union in a

campaign you only pay a dollar and that makes you a member in good

standing, and once the certification is reached you then pay the

regular fees as does everybody, that's one thing. That's not what we're

saying here. Go back and look at this wording in

section 3(4): "where

a trade union charges, levies or prescribes different initiation fees,

dues or assessments...." Let me do the reverse argument just to see

if this gets through. The person joining the union is going to have

paid a discriminatory fee because he will have paid one dollar more

than the person who didn't join the union in the organizing drive.

That's an effect of this.

Mr. Chairman, this is important because on first perusal this

section, in my mind, requires that whatever the monthly union dues are

and whatever the initiation fee is must be charged in an organizing

campaign. The minister shakes his head. Read me the words where what

I'm saying is not true and I'll be delighted to sit down.

[ Page 4779 ]

HON. MR. McCLELLAND: Mr. Chairman, there are no words which

say what he says. We can back and forth like this for a week and a

half, but the dollar referred to, which is the board practice, is a

down payment on the future dues and initiation fees. If what happened

in the community was the way the member for North Island describes it

and that after a successful certification drive everybody paid the

same, we wouldn't need this legislation. But that is not what happens

in the community. In fact, in some instances there are discriminatory

fees charged based on whether or not you were an active part of the

membership drive. When that happens it's clearly discriminatory. That's

what we want to stop. Look at the dollar as just an expression of being

a member in good standing, which the board accepts. All we're saying is

that everybody who is a part of that appropriate bargaining unit should

pay the same fees and not be discriminated against.

MR. GABELMANN: Mr. Chairman, just so that when this issue is

dealt with, as it no doubt will be, later on.... Let me see if I

understand what will happen in an organizing drive.

It will still be legal for a union, in the minister's opinion — I'm

trying this on; you can agree or disagree — in an organizing drive to

their membership initiation fee and on their first monthly dues, as

long as every employee in that unit pays the same amount for the first

month following certification in respect of the monthly membership fee

and also the same initiation fee, with the exception that the person

who signed up during the organizing drive pays a dollar less because

he's already paid a dollar. Does that sum up the minister's

interpretation of this section?

HON. MR. McCLELLAND: By George, you've got it.

MR. GABELMANN: I'm glad we have extracted that, and I want

Hansard to note that the minister agrees with that

summary, rough as it

may be, of what this means, so that there is no misunderstanding

whatsoever about what is required in an organizing drive and so that

employers don't point to this

section and say to their employees:

"Look, this isn't even legal the way they're doing it. You have to pay

$50," or whatever the amount will be. The minister is agreeing that

the dollar down payment signalling an intention to join the union is

still appropriate as long as in the first month after certification

every person covered by that certification who is a member of that

union or whatever pays the same amount.

[3:15]

MR. MACDONALD: Mr. Chairman, I am content with the minister's

assurance too. I'm very concerned about the language, because if

somebody goes to work when there's already a union agreement and he

reports in that plant, he obviously has to pay his full dues and

initiation right then and there. That sounds discriminatory as opposed

to somebody else who has to be in good standing for the union. You say

it isn't going to be so, and I don't think you've worded it very well,

but I accept your assurance that if it isn't so you'll come back and

amend the legislation.

MR. GABELMANN: Can I take another tack now on this section? I

am still not completely satisfied with the third party involvement in

unfair labour practices. I guess I want an indication from the minister

as to whether or not he intends that uninvolved parties — uninvolved in

the sense that they're not acting on behalf of the union or the

employer — can now not be charged with an unfair labour practice. Is

that the intention of the minister?

HON. MR. McCLELLAND: I don't know how far you'd go with that.

The object of the Labour Code is to regulate and to try and make as

peaceful as possible the relations between an employer and an employee,

particularly those who have a collective agreement in place or want to

have a collective agreement in place. It seems to me that those are the

areas where most protection is needed. How far down the line do you go?

Can we stop you in this Legislature from saying that you think

somebody's been a bad employer because he did something to his

employees? Can we stop the newspapers from commenting on labour

disputes? Can we stop the radio hotliners from...? We're going to

dig deeply into the freedom of speech in this community if we go as far

as that member seems to want to go. If that's the question that I'm

being asked, I don't agree that we should go that far. I do believe, as

I said in the previous section, that we have made it very clear now

what an employer can and cannot do. We've made it very clear what a

union can and cannot do, and should they violate that, I guess they do

it at their own peril.

MR. GABELMANN: Again the minister wants to move it into the

area of labour disputes. We're not talking about labour disputes. We're

talking about organized unfair labour practices in organizing drives or

in decertification campaigns — same principle. The way the legislation

will now read, the Minister of Universities, Science and Communications

was not committing an unfair labour practice. The Minister of Municipal

Affairs was not committing an unfair labour practice in the Pizza Hut

matter. To take it outside the realm of this chamber, because it's a

broader issue than that, one of the things that I, as an MLA, am

absolutely scrupulous about is to make no comment — pro, con or

indifferent — about any aspect of an organizing or a decertification

guide. That could be perceived to be — no matter if I intended it

neutrally or not — interference in that matter.

There is no preclusion any longer under these amendments. We will

have a situation where organizations will form. There are people in

this province who don't like unions and who would like to defeat

organizing drives, even though they may not be acting on behalf of — as

the language of the Act refers — a particular employer. Those people

will be allowed free range to interfere in either an organizing drive

or a decertification process without any recourse to the Labour

Relations Board, because they are not acting on behalf of that

employer. They are acting on behalf of their political belief.

HON. MR. McCLELLAND: My staff just reminded me that I should

have probably raised this in the previous section. With your

permission, the legal advice that we have is that

section 381 of the

Criminal Code does extend into the field of labour relations and covers

coercion or intimidation by a person, which was formerly covered under

section 5 of the Code.

MR. GABELMANN: So what? We're not talking about coercion or

intimidation, as those words are defined. We're talking about

influence. There is a big difference. I don't know 381 of the Criminal

Code. We can belabour it forever, and I don't have any intention of

doing that. I think it is quite

[ Page 4780 ]

clear that representations were made on behalf of, if not by, the

Minister of Universities and the Minister of Municipal Affairs to allow

them to involve themselves in these kinds of matters. That's why we

have these amendments.

I want to ask another question. I have legal advice from lawyers — a

firm I have some confidence in — who state: "In our view,

section 5

interferes with the internal affairs of trade unions to such an extent

that it may" — and they use the word "may"— "breach the freedom of

association protections under the Charter of Rights." Has that question

been referred to legal counsel within the government?

HON. MR. McCLELLAND: Mr. Chairman, not specifically, but

certainly it's a matter that has come up for discussion on a number of

occasions. As a lay person, I find it very hard to believe that under a

freedom of association rule you would.... I assume you're talking

about the prohibition of a union to fine or otherwise penalize a member

for refusing to take

part in an illegal action, and I would find it

very hard to believe that the Charter of Rights would ever contemplate

that anyone should have the right to discipline another person, whether

they're a member of an association or not, for refusing to break the

law. That's really all we're saying.

MR. GABELMANN: On the surface, it's fair enough, Mr.

Chairman, but unfortunately with these amendments all the loose ends

aren't tied up. For example, a person refusing to handle goods that are

declared hot prior to a declaration, presumably under

section 90 of the

act — it could be elsewhere, but presumably under

section 90 — where no

declaratory judgment has been made by the Labour Relations Board in

advance but is then made subsequently — as I read the Code when it will

be amended — is in effect going on strike. A refusal to handle hot

goods is a strike, in effect. This is the way this is going to work.

Now if that happens, what's the status of that member in that case?

HON. MR. McCLELLAND: There wouldn't be a status at that point

in time, because it would not have been established whether the act was

legal or illegal. I would assume that if there was the kind of dispute

that the member refers to, and someone felt that that dispute was an

illegal dispute, the normal practice is for the employer to go to the

Labour Relations Board and ask for a ruling. If the board ruled that

the dispute was legal, and one of the members of that union had, in

fact, refused to do something in advance of that, then I assume the

union would have the right to discipline under its own bylaws or

constitution. If the board ruled that it was illegal, what we're saying

here is that the union would then not have the opportunity to

discipline that employee, having found that the action was illegal.

MR. GABELMANN: Under the new picketing sections, prior to

secondary picketing you are required to get approval from the board

before you can set up the picket line. No similar sections relate to

hot declarations. Presumably there is case law which states that hot

declarations are a form of secondary picket, but I don't know. It's not

clarified at all in these amendments. If a union member refuses to

handle hot goods, or because a strike will be lost without establishing

a picket line immediately prior to a chance for a board to make a

decision, presumably that union member will be breaking a law. His

partner decides to anticipate, on the other hand, and goes against the

union policy. Under this ruling, even though the decision would be made

later by the board, the union cannot discipline that second member for

refusing to participate in that secondary boycott or in that hot

declaration or in fact in that flying picket line. Right?

HON. MR. McCLELLAND: Mr. Chairman, yes, that's correct, and I

don't think we'd want them to. The employer would have to first make

the application — and I'm reminded that it is under

section 90 that the

employer would make the application — and it would only be following

that. Presumably under all union constitutions that I know of, there is

some method of justice in which there is a trial or a hearing of some

kind or other, and nothing could take place until that happened anyway.

MR. GABELMANN: Fair enough. I think we agree about what the

implications are. What that means, Mr. Chairman, is that strikes or

lockouts in the small industrial sector of our economy will last for a

long time, because the only way you can beat those strikes is with

flying picket lines and with secondary boycotts that have to be put up

within minutes so that you can exert pressure on the employer. I'm

sneaking into a debate on principle, and I will avoid that. I think the

minister and the people who helped him prepare these amendments fail to

understand that that prohibition on a member to go along with the

majority of his colleagues in a particular action — and the prohibition

is there, and a prohibition against the union too in terms of all kinds

of penalties — will mean that strikes that might ordinarily be settled

quickly will drag on interminably because the employer will have escape

hatches in terms of the ability to carry on selling his particular

product or service.

HON. MR. McCLELLAND: Mr. Chairman, the member is really

saying: "Hurt anybody you want and hurt them as much as you want." It

doesn't matter whether it's legal or not, just hurt them, because you

want one employer to give in. That's really what you're saying. Yes, we

are attempting to correct that under this legislation.

[3:30]

MR. GABELMANN: Just to clarify it, that's not what I'm

saying. I think there have to be rules, obviously. But if you have to

get permission before you can set up a picket line, you've got nothing,

because the truck is gone.

In any event, let's leave that alone for the moment. I just make the

point in order to demonstrate yet again that here's another

section

that tips the balance remarkably.

[Mr. Pelton in the chair.]

The principle of

section 5, if there is a principle in a section, is

that the government wants to interfere in the internal affairs of

unions in a way that is unprecedented in Canadian labour law. I'm

curious to know why, in a recently adopted statute in this province —

the Companies Act — the government is quite content to not impose the

same kinds of prohibitions as to what management can do to

shareholders. I've gone through sections 141, 148 and 149 of the

Companies Act to see if there's some even-handedness. In fact, there

isn't. Every act of a director is valid. No limitation or restriction

on the powers or functions of the directors shall be effective against

the person who does not have knowledge of the limitation or

restriction. There is virtually unlimited

[ Page 4781 ]

power for treatment of shareholders by management, and no desire on

the part of the government to restrict their behaviour in the same way

that they're saying the behaviour of trade unions should be restricted.

I acknowledge that the situations aren't entirely parallel, in terms

of the Companies Act and the labour act, but what the government is

saying in this legislation is that they don't believe the trade unions

are mature enough or democratic enough to run their own affairs. In

fact, they're a hell of a lot more democratic than any company I know

of in this province.

HON. MR. McCLELLAND: Well, on the day that the member for

North Island brings me the first case of a company which has taken one

of its shareholders to court in a kangaroo court and fined that

shareholder, and given him other punishment for doing something

illegal, I'll recommend to my colleagues that we change the act.

MR. MITCHELL: It's interesting to sit back and listen to the

various legalistic and academic arguments, and then to the blatant

remarks the minister came out with when he referred to the problem that

I still have — although I spoke about it in an earlier

section —

regarding taking out the present

section 5 that pinned down the idea of

intimidation and coercion. The minister said very blatantly: "Oh,

that's covered by the Criminal Code. It's all right for the employer;

he'll be charged under the Criminal Code." But he insisted and

demanded, and they steamrollered it through, that that

section he now

blatantly says is covered by the Criminal Code must be in there to

control the trade union movement.

As I said yesterday in second reading, union busting is a

million-dollar industry. We in society do not want to see the return of

the goon squad and the union-busting tactics of large companies. As it

said in articles I read yesterday, it's a hundred-million-dollar

business in North America to bust unions, to decertify unions, to

oppose certification. We have to have some control over that whole

society, not only one segment of it. We can't afford to take that

section out. If he insists, we can bring in additions to

section 5, but

we can't delete the present

section 5, which pins down coercion and

intimidation of anybody — anyone who may be hired indirectly, who may

come in from an eastern company, who may appear on the docks. If you

read the history of the trade union movement and organizing workers,

the goon squad was employed by both sides.

I say that we can't afford to go back to it. Let's go back to some

sanity in this province. Let's go back to some openness. Let's go back

to some cooperation. Let's bring into the Labour Code something that is

going to encourage cooperation and not have a double standard. You have

a double standard when you say that in one

section we don't need it

because it's in the Criminal Code, but in another section, we need it

to control the trade union movement.

I thought it was quite interesting when he was talking to the second

member for Vancouver East (Mr. Macdonald). He said it's unfair if some

person gets into the union for $1 and doesn't pay the whole initiation

fee. But he hasn't the same legislation on the books to control private

industry. Every day of the week you read in the paper that if you sign

a contract and buy something before the end of the month, you get it at

a cheaper rate; if you sign a mortgage now, the rates will be cheaper.

These are business practices. They're all part of business practice and

the administration of a business is a business practice. The running of

a trade union is a business. The breaking and destroying of a trade

union is a business.

So let's make sure that we do have legislation that is equal, that

is fair, that when it ends up in court — which a lot of these sections

will eventually do, or before a labour board.... When they go

through the reports of the debates in Hansard , some of these fears that

a lot of us are expressing now — the

interpretation that is put on it

as you go down the line; and there is a different

interpretation when

it's read in its very narrow, legalistic manner and not interpreted the

way the minister does in the debates.... I find the offhand remark

that it's not important for the business community to have

section 5,

to give protection for the general public, that anyone can come in and

coerce as long as he's not a member of the union.... That's not

important because that's covered by the Criminal Code. But he insisted

in an earlier

section that it has to be in there to control the trade

union movement, which I think is blatantly unfair and a double standard.

Sections 3 and 4 approved.

section 5.

MR. GABELMANN: First of all, I want to ask the minister if

his intention in this section, amending

section 40 of the Code, is to

open another door for what is in effect raiding.

HON. MR. McCLELLAND: Raiding? No.

MR. GABELMANN: The minister answers that no, it is not his intention to open another door for raiding.

Let me cite an example. If an industry in which the employers

bargain collectively has within its ranks three or four different

unions and the employers decide that one of those unions is their

choice to bargain with in the entire industry, what would prohibit them

from asking, in concert with that one union, that one union to apply

under

section 40 for multiple-employer certification? Because of the

desire on the part of the organization of employers to accomplish that

goal, all of the employers agree. Right? So we take a vote. When you

read the section, the vote is taken by every person who is not a member

of the union. Presumably this would be the trade union making the

application. It is not likely, but theoretically it is possible to

think of situations where those members voting, who would include in

the bargaining unit any who might not be organized, and that's

possible....

All those represented by the other unions could vote to in effect

have one certification, and the union making the application would be

granted the certification for the entire industry, despite the fact

that there may be components of that industry in which the workers

prefer to have another union. I acknowledge it's theoretical and not

very likely to happen often, but in reading this and consulting with

the few people that I've had a chance to talk to about this particular

section, I don't see why that wouldn't be possible. I'm not going to

name an obvious industry, but it may come to the minister's mind

quickly. That could happen as this is written and as I understand it,

and I would appreciate it if the minister would help me to understand

this better.

HON. MR. McCLELLAND: Mr. Chairman, I don't think the scenario that the member puts forward could happen

[ Page 4782 ]

under this legislation. If there is an allegiance to a specific

union, all of the employees would have the right to vote on whether or

not to be represented. I assume that you couldn't take a dummy union

and have a phony vote in that way, because everybody has the right to

vote, if I understand the member correctly. Really all this does is

prevent this

section from being used as a tool for organization. It

means that everybody must consent — both the employees and the

employers — before this

section can apply. It cannot apply against the

wishes of either or both parties.

MR. GABELMANN: Mr. Chairman, 5(

a) establishes a new

subsection (2): "Where an application is made under this

section and

the board (

a) is of the opinion that the unit is appropriate for

collective bargaining, and (

b) determines that all the employers of the

employees in the unit consent to multiple employer certification" — so

far that is the situation I've described — "it" — the board — "shall

order that a representation vote be taken among the employees not

already represented by the trade union at the time application under

this

section was made...."

So we have an industry in which there could be three or four unions

certified at different establishments within that industry. We

theoretically could have some non-union establishments within that

industry; everybody except the members of the applicant union would

have the right to vote, as I read those words. Right?

HON. MR. McCLELLAND: Mr. Chairman, I think it is important

that the member go back to

section 40, which says "a trade union" which

makes application, and that's the trade union that's referred to in

this section.

[3:45]

MR. GABELMANN: I just want to be able to establish in this

discussion, Mr. Chairman, my initial premise that I believe this

section can be used for raiding purposes. Where there is an agreement

between an employer or an employer's organization, and all of its

component members, and a union within that particular industry — and

more likely it would have to be the union with the majority of the

employees in that particular industry — it is theoretically possible

for that union to make application under

section 40, because it says:

"A trade union claiming to have as members in good standing a majority

of employees in a unit appropriate for collective bargaining...."

That's the entire industry. It may be the majority union; there may be

two or three minority unions and some unorganized, and for the purposes

of the industry they may persuade all of their members not to file an

objection, and therefore the application would proceed.

The majority union would probably make the application. If — and

there's a big if, I grant you — the majority of people voting, and

these are the union members in the other unions and the possible

non-union people there.... If the certification were broader it

could include some previously excluded people. If that's what the board

determined would be the new unit, it's possible technically to use this

section as a raiding section.

HON. MR. McCLELLAND: My staff probably agrees that it is

possible, but raiding is not against the law in British Columbia. I

guess it is possible, because

section 39 also applies to this

section

which is the area in which that certification is sought normally.

Technically, the member is correct: it could be used for that purpose.

I'm not so sure that would be the most preferred way for any union to

attempt to displace another union.

MR. GABELMANN: I agree that it wouldn't be the most preferred

way, but I wanted to establish that the way it is written this

section

could be — although it's not likely to be — used as a raiding section.

I have no problem with the concept of people having the right to change

unions, obviously, but it seems to fly in the face of the stated

intention of the minister to try to further the establishment of the

relationship between individuals in a workplace and their employers. I

guess there's some nervousness on my part about what the minister's

overall intentions are in this respect, given his TV interview one day

in which he talked about the desirability of closer relationships in

bargaining between employees and their employers — seemingly a

direction different from that established in the accreditation

section

which comes later. I'm just curious about what's on the minister's

mind. Some of these sections really hint at future activity.

Why the absolute requirement that every employer participate? Why not discretion to the board?

HON. MR. McCLELLAND: I guess it goes back to the heart of the

amendment, and that is that the whole idea behind many of the changes

in the amendment is to make sure that people have the right to have a

representation vote before they have either an organization imposed

upon them or one taken away from them. In this instance, under the

current legislation, it would have been possible for an organization to

be imposed against the wishes of one of the parties. That's what we're

attempting to correct.

MR. R. FRASER: Mr. Chairman, I would like to put something

into this debate. I get the feeling from the members opposite that most

of the will of the employers is not well motivated. In fact, it is

suggested that there are evil motives that employers have. I suggest to

you and everyone else in the room that that is not so. There are large

numbers of employers with few or many employees who, in fact, use the

collective bargaining system well and effectively and will retain it.

The motives given to employers generally, by the arguments I hear, are

not ones that I accept as a citizen, an MLA or an employer. I do not

see subversion in the bill at all. As I see it, if the members of a

given bargaining unit wish to trade representation, that is their

right. Those in management or unions that would oppose the will of the

members will feel their wrath. I would not impugn the motives of either

labour or management on this one.

MR. GABELMANN: I don't have much problem with the member for

Vancouver South's comments. If every employer was like most employers,

particularly the larger ones, we could probably do without a Labour

Code. The whole thing could be done voluntarily, which, it seems to me,

might fit well into the philosophical.... The problem is that when

we deal with these things we have to deal with the "worst case"

scenario.

HON. MR. McCLELLAND: On both sides.

MR. GABELMANN: I'd have no problems with that. I wish the government could agree to that.

[ Page

4783 ]

HON. MR. HEWITT: That's the content of the bill.

MR. GABELMANN: I wish the member for Penticton would go back to sleep.

What we're saying here is that the majority of employees in a

bargaining unit established by the labour board as a bargaining unit

appropriate for bargaining use

section 40 for application if one

employer says no. Is that right? The minister nods his head. Why? Let

me phrase the question more fully then; I was trying to be brief. On

the one hand, why would the minister deny the right of the majority of

employers within that bargaining unit to exercise the majority right to

have a union organized; on the other hand, why would he deny the right

of perhaps a potentially overwhelming majority of workers in that

industry — which has been defined as a bargaining unit — for multiple

employer certification under this section? I don't understand what his

motives are.

HON. MR. McCLELLAND: I can't explain it any more than I did

earlier. If in fact an overwhelming majority of the employees wish to

be represented by a trade union, they have the normal opportunity to

apply for certification in the trade union and get that application.

What we're saying here is that employers should not be forced into a

common relationship against their wishes. That's not denying the right

of the employee to organize under the normal process,

MR. GABELMANN: Now we're getting somewhere, Mr. Chairman. The

minister says an employer shouldn't be forced into participating in the

collective bargaining against his wishes — in the employer collective

bargaining.

HON. MR. McCLELLAND: The group.

MR. GABELMANN: In the group. Why not complementary changes to

the accreditation

section so that if MacMillan Bloedel no longer wishes

to participate in FIR — the pulp and paper industry negotiations — they

can't have the same right as an employer who is covered by this section?

HON. MR. McCLELLAND: That can happen now under the present legislation. They can go to the board and ask to be let out of that accredited group.

MR. GABELMANN: "And ask to be let out of that accredited

group" — by the discretion of the board, as opposed to the mandatory

language of this section. There's an inconsistency.

HON. MR. McCLELLAND: Well, one's in and one's out. What we're

saying is that you can't be forced into a group. Once you're in the

group I think you've got some obligations to the group, but you can go

to the Labour Relations Board and ask to be relieved of those

obligations.

MR. GABELMANN: I'm not going to pursue it, Mr. Chairman. I think

I've made my point. It's quite clear that in the certification of multiple

employer units an individual employer has a legislative mandate to avoid that

multiple employer bargaining, but once you're in, you stay in. I guess I'm

interested because I think it's an important area of policy determination

that I sense is slipping in. The comments made by senior management of MacMillan

Bloedel following the resumption of work in the pulp industry, in which they

called for an end to the multiple employer — they didn't call for it, but

they at least suggested that it seriously should be considered that there be

an end to the multiple-employer negotiations in the pulp industry, if not the

forest industry — combined with the minister's stated views both on television

and in this House of wanting the negotiations to get closer to the employer

and the employee, combined yet again with this

section relating to multiple-employer

certifications: is this now a policy direction of the government to move toward

the end of accreditation, if we haven't done it in these amendments? Should

I take from this that this is a direction the government is seriously considering?

HON. MR. McCLELLAND: Again, I've been consistent in what I've

said in public: that is, that we want to leave matters up to the

parties as much as possible. My own personal opinion is that I don't

think we've gained much by having huge accredited units, huge

industry-wide bargaining. I've never believed that that was the best

way to go or that it got us any better deals on either the union side

or the management side than we might have had, had we not had them. But

that's not a policy of the government, and I've never put it forward as

a policy of the government. It's never been discussed by the government

at this point. It's just a personal opinion, and it seems to he shared

by some other people, at least in the forest industry at this present

time.

But the member is correct that these amendments don't deal with that, and it's probably out of order to even talk about it.

MS. BROWN: Could I ask a question, Mr. Chairman, because I'm

not quite sure what this means. Could the minister explain to me or

give me an example of when the board would take it upon itself to amend

the description of the unit contained in the collective bargaining

agreement? Give me an example of when the board would have the right to

do that, just to clarify it for me.

HON. MR. McCLELLAND: The board always has that opportunity,

and has had in the past. For instance, the union may come during the

time of or after the representation vote.... It may be that one side or

the other may apply to the board and say: "Look, we made a mistake.

This unit should not be in the form that it's in. It should be

something else." And the board has got to have that flexibility to make

those changes.

MS. BROWN: So it's triggered by a request. The board doesn't unilaterally do that.

HON. MR. McCLELLAND: The whole test in all of this — and

always has been — is the appropriateness of the unit, and the board has

to make that determination. It may in fact be asked to reconsider the

appropriateness of the unit, and at that point it can — and it can do

that throughout the Code, really.

Sections 5 and 6 approved.

[4:00]

section 7.

MR. GABELMANN: Mr. Chairman,

section 7 is a major

section in

this legislation, one that in my personal view is at least as important

as any other provision in the act. I spent

[ Page 4784 ]

some time in second reading debate talking about the principle of

representation votes as opposed to applications based on cards, and I

won't repeat those arguments at any length at all. I want to deal with

that issue toward the end of my comments, but I want to clarify a few

things first. I'm correct, I assume, Mr. Chairman, in reading

section 7

of the bill — the new 43 of the Code — that I have to read it in

conjunction with

section 55 as amended by

section 11 of this bill, in

terms of the way in which the representation vote is conducted, and of

some necessity there will be some slopping over between those two

sections.

As I understand it, under this representation vote before

certification, if 45 percent of the workforce is signed up and the

board is satisfied that that's the case, a representation vote shall be

held, and no requirement exists as to how many days following the

certification application the vote must be held — unlike the Nova

Scotia legislation, which requires five days. And in that intervening

period, with the board's consent, additional employees can be hired and

can vote, if they're working in that operation on the day of the

certification vote. Am I correct in that?

HON. MR. McCLELLAND: I think the member is correct, in part

at least. I, too, would skip around here a little bit. First of all,

the operative part of

section 55 is subsection (3), which says: "All

persons who are employees within a unit at the time an application for

certification or decertification is received by the board...."

Subsection (4) does allow the board — in its discretion only, and only

upon application — to include other people who may be bona fide

employees at the time the vote is taken. Quite often, after a

representation vote is taken or during the time in which a vote is to

be taken, there are serious questions about what is the appropriate

unit and who were bona fide employees at the time the application was

made. I think that the board needs some discretion, in order to be able

to receive an application either from the union or from the employers,

to be able to include others who may have been omitted, who may in fact

have been hired in a bona fide way in the two weeks or one week or

whatever it takes in order to get the vote taken. So from that point of

view the member is correct. I think the safety net, though, is that it

is in the board's discretion, and the board can only include those

employees, should they be proven to be bona fide employees in the

board's opinion.

We've given a fair degree of thought to the matter of time limits.

Because the government sets the rules for taking votes, I've instructed

my staff to look at that provision and to ensure that if necessary we

can build a time limit into the regulations governing representation

votes. It's interesting that there were arguments against time limits

as well, including — I believe I'm correct — from some members of the

trade union movement who have given us advice that time limits are not

appropriate. We're studying the whole matter of time limits, and if

it's appropriate we can build the time limits into the regulations, Mr.

Chairman.

[Mr. Strachan in the Chair.]

MR. GABELMANN: Mr. Chairman, here I am preparing the

compromise position, which is really the Nova Scotia position, before I

make the argument against the initial premise that the government has

adopted, which eliminates the ability of the board to certify

automatically. Maybe 55 percent for an automatic certification bothers

the minister. Why not 60 percent or some number like that, if the

minister's worried about the narrowness of 55 percent? The automatic

certification procedure eliminates an immense amount of bureaucracy,

work and additional staff needed at the Labour Board, if in fact

certifications continue at the rate that they have. I'm given to

understand that at the present time 90 percent of certifications are

automatic. I asked one lawyer about how these two sections worked in

his experience. He said: "In all the time I've practised labour law" —

and that's all he does — "I've never been involved in a vote." The

automatic certification provision has been there, and there are very

rare cases where there's a problem.

The board needs to be given some discretion in that respect; they

have it. They don't have to award certification if there's any doubt as

to the true intentions of the employees. But when you don't allow the

board to make an automatic certification, with the exception of

section

8, if there's an unfair labour practice proven, as I read it....

When you don't give them that authority you then open the door for more

lawyers than any of us will ever want to see involved in the labour

relations process. Immediately an application is made or before, the

company's going to get a lawyer. They're going to find every way they

can to delay the vote. They will raise all kinds of objections, as only

lawyers can. It's totally inappropriate, in my view, to the process at

hand. I have no problems with lawyers being involved if there's a

legitimate dispute as to the validity of the intentions of the

employees. But there the board has the discretion under the current

legislation.

It sounds so democratic, Mr. Chairman. That's one of the beauties of

this

section from the political perspective of the government. It

sounds so democratic to say that if 45 percent want to decertify you

get a vote. The majority rules. It sounds so good and democratic that

if I didn't stop to think about the details I'd say fine, it's great,

perfectly within the democratic system we have. But when you have

elections they have to be conducted fairly. We've opened the door for

employer interference earlier in the amendments.

MR. R. FRASER: Would you go for automatic decertification?

MR. GABELMANN: If in the board's opinion there was an

overwhelming desire, not influenced by the employer, for a

decertification, yes. I have no problems with that. I believe in being

consistent. This is consistent, but it's consistently wrong — that's

the problem.

In a sense it isn't consistent. I'll deal with the decert later when

we get to that section. In my own mind they go together, but we try to

keep in order in the debate. We're just dealing with the applications

here. What we're doing with this.... I don't always agree with Paul

Weiler, and we had a discussion in second reading about Paul Weiler

being on our side in one issue, and on your side on the other issue,

and true, he was. He took different positions than we've taken in some

sections and he took different positions than the minister took in some

other sections. One of the compelling arguments that Weiler makes in

reconcilable differences relates to the issue of cards versus votes. He

pleaded in that book, he's pleaded at every opportunity he's ever had

to talk about it, and he pleaded again the other day in Vancouver for

Canadians to reject this American approach to trade union organizing.

What we will end up with is a repeat of the rogue employer situation we

had. Here I think about the member for

[ Page

4785 ]

Vancouver South. I'm not talking about the overwhelming number of

employers. I'm talking about rogue employers like J.P. Stevens, who

were characterized in that movie Norma Rae . Although there were a lot

of things wrong with the way the movie portrayed the law, it

nevertheless was an emotional confirmation of the problem.

What we do here is allow for rogue employers — if they exist, and I

believe some do — to thwart the democratic desires of a majority of

people in an operation from exercising their right to join the union.

The board needs to be given the discretion, and if the problem is that

55 percent is too close — in a 25-person operation, 55 percent is just

barely a majority and therefore there's a problem — then change the

percentage. Narrow the discretionary powers of the board somewhat if

that's the intent. I plead not as eloquently or as forcefully as Paul

Weiler can do, but I plead for the government to recognize that what

you do here by this

section is open up jungle warfare in organizing

drives. There will be intimidation through the use of lawyers, because

the process will take so long. I think the 90-day provision is still

intact, so after 90 days all the members will have to be signed up

again. We'll have organizing drives that last forever, and in the final

analysis, for the most part, we will be thwarted despite the democratic

decision of the people involved.

To deny the board its discretionary role in this just does not make

any sense at all. A compromise obviously is the Nova Scotia position.

I'm not that happy with it, but I think it could be accepted. There are

criticisms of it from both sides of the table, and the minister made

that point. But it is certainly better than this. The minister is not

prepared to put time limits into it like Nova Scotia. Even though he

talks about maybe building it into the regulations or whatever, can he

justify why he would deny the board — he controls them in terms of its

appointments; they're not permanent appointments — the discretionary

power to certify automatically when there's a clear indication?

HON. MR. McCLELLAND: Well, Mr. Chairman, what clearer

indication can you have than a vote by the people involved? That's a

pretty clear indication. I think it would be great for us to go out and

take a public opinion poll, and if the poll said that we should be

re-elected, we wouldn't bother going to the polls any more; we would

just automatically become government again. That's easy, simple and

cheap, you know. But it doesn't matter if democracy is a little more

expensive and a little more time-consuming. We believe that everyone

should have the right to make their own decision and not have someone

else make it for them. There's no clearer way of indicating your wishes

than by putting a piece of paper in a secret ballot vote. I don't know

why the members opposite are so afraid of that. Nor do I understand why

anyone would be afraid of having a fair vote to make that kind of

important decision — and it is an important decision, probably the most

important decision some people ever make in their lives. So I just

don't know why people are frightened of democracy.

If there is a problem with time limits, we have the avenue to

address that problem, and the same thing is true with regard to

disputed votes. I'm sure that under the regulations we have an

opportunity to look after that as well, perhaps by sealing the ballot

boxes for a period of time or something like that. But those are

technical problems which could be addressed at a later date.

The heart of the matter is that we believe that an employee should

have the right to express his wishes in a secret ballot, and it's as

simple as that.

[4:15]

MR. COCKE: Mr. Chairman, I am delighted that the minister

believes in democracy. If you read the bill, you sometimes wonder. But

the fact of the matter is that the minister is arguing that it's far

more spectacular for them to have a secret ballot some time down the

road. Don't give us the old stuff about the fact that regulations may

bring it closer to the day of the application than would otherwise be

thought. The regulations, Mr. Chairman, will have to take into account

all of the legal process that goes on in a situation like this.

What could be more democratic than the number of signed cards?

Interjection.

MR. COCKE: Mr. Chairman, the secret ballot doesn't assure me

of any protection at all from the employer's coercion during the

period, and I'm talking particularly now about a small business.

Interjection.

MR. COCKE: The employer isn't bound the way the union is in

this bill. The employer has subtle ways of doing it: not only that,

they can stack the vote, because if it's close they can hire a few

anti-union people for the time being, or whatever.

As far as I'm concerned, Mr. Chairman, I think that this is just to

thwart the organization of small businesses. No matter how many

assurances you get from the minister about the fact that the vote is

going to take place shortly, how can he be sure of that — no matter

what his regulations say? Once you go this course, in my view there is

nothing that can be done otherwise than make it very difficult for you

to hold the people who've made a decision, particularly when economic

pressure gets on them, and in a small business where they almost know

what everybody is thinking and certainly what everybody is talking

about. It takes the employer very little time to find out who is on

which side, and then the old screws can be put on. I'm not saying that

every employer will do that, but I think significant numbers will.

MR. R. FRASER: I disagree with you.

MR. COCKE: Then tell me why there is such a very great

difficulty, even with the liberal rules that we have now, in a small

firm by virtue of the close contact that management or the owners have

with the people who are working for them. The only protection working

people have over the years is the protection of being able to get

together in a union and make their case. They can't do it individually.

As far as I'm concerned, this device here is to make them do it

individually. They don't even have a provision here for a rerun of the

vote if there are any problems.

I suggest to you, Mr. Chairman, that this

section is making it

almost impossible, particularly for small firms. Let's hear what the

member for Vancouver South has to say.

MR. R. FRASER: Mr. Chairman, we've heard some comments about coercion and what the employer can do to

[ Page 4786 ]

the employee and things like that, but there are two things that

should be remembered when you talk about businesses, particularly small

ones. One of the things you want to avoid is business disruption, and

you avoid it in all sorts of ways, by having good personal relations

with employees, employers, etc. You do everything to keep the business

going, for starters. The driving, motivating force in any business is

to keep it running and not to have discord; that is one of the reasons

that small businesses survive.

If you want to talk about getting rid of coercion and you suggest

that it's mainly on the part of the employer, which I happen to reject,

you would want to do something that would prevent the employer from

having any effective mechanism by which he could coerce employees. So

in spite of what might be said around the floor, the office, or

whatever, you want to give the employee a chance to do what he wants to

do in a way that is secret to himself. In my view that is not signing

the card, Mr. Chairman; it is taking the vote. You can say whatever you

like, but when it comes down to it and you mark your X that's your

personal decision. I suggest to you that those decisions aren't known

by anybody except the worker, unless he cares to disclose it himself,

because that information cannot be taken from him without his consent,

That is why I like the secret ballot idea.

MR. GABELMANN: Mr. Chairman, I once participated in a

certification vote where there were two employees. We got a voluntary

certification; we took a vote. Now our employer at that time happened

to be friendly to the idea of a union. If the vote had been 1 to 1,

since I was the one who was actively pushing for the certification the

employer would have known who voted for and who voted against. That

would not have been a secret ballot. In fact it wasn't a secret ballot,

because the vote was 2 to 0. The employer knew exactly how I voted and

he knew exactly how the other guy voted. That's an extreme example, but

it happens all the time.

Increasingly the people who need to be organized in our society now

work for employers who are small. Increasingly you are talking about 7,

8, 10, 25 or 30 employees, and no one will ever persuade me that those

votes are secret, particularly now when you read this in conjunction

with

section 55: "....and to allow the use of facilities owned by

the employer." The vote is going to be taken on the employer's

premises. Mr. Chairman, we have more democratic elections than that in

the Philippines.

Interjection.

MR. GABELMANN: The tenor of the crossfire and the exchange

that's going on right now, just so it's clear in Hansard , is

that.... The implication is that I think all employers behave that

way, or that I pick the worst-case scenario. It's required that in

dealing with legislation we make clear what can happen, not what will

happen in most cases. I talked earlier of the rogue employer. If

anybody wants to see a rogue employer, they deal with J.P. Stevens. And

the J.P. Stevens scenario is now possible here in British Columbia

under this legislation — for the first time in Canada. We allow the

rogue employer to behave in a rogue fashion.

The minister says: "What can be more democratic than a vote?" Agreed

— if it's secret, if it's on neutral territory, if there can be no

indication, ever, that the particular preference is known and if there

was no unfair influence. The member for Vancouver South talks about

unfair influence from both sides. The union doesn't have the power to

imply to a worker that joining or not joining a union could impact on

his job security or future employment. The union has no power

whatsoever. The union organizer visits that employee once in the course

of the organizing drive — in his home, most likely — and doesn't see

him again. The employer sees him every day.

Interjection.

MR. GABELMANN: Well, the chirping from the member who has

never organized a union in his life is really quite irrelevant, because

he doesn't understand the process. The process requires that you go

around and sign people up, almost always at their home, and when you've

got your 55 percent you file application — at the present time. It

doesn't leave you time to go back and talk every day to the people

you've signed up. It requires that you carry on and see the ones you

haven't seen yet.

The presumption in the government's statements about what can be

more democratic than a vote is that the rules that apply in a

parliamentary election apply in a certification vote. They don't, for a

variety of reasons. Let me talk about some of them. There is no

regulation of the campaign, first of all, in terms of unfair

influences. It's a far less regulated system. There are no common-law

checks and balances — no legislative checks and balances, either, but

primarily no common-law checks and balances. That's an argument that by

itself I wouldn't make, but it's just one in a series of arguments that

taken together, I think, make a compelling case. Not always, but often,

employers — and this is especially true of small employers — are

paranoid about the prospect of a union. They're prepared to do almost

anything they can to stop it. This electoral mode, where the vote takes

place some weeks or months after — or even longer, if the company's

lawyers are on the ball — gives ample opportunity for all kinds of

quiet influence: "You really don't want a union, do you." That is now

legal.

I discussed the secret ballot; that's another issue in these notes

I'm following. There's no such thing as a secret ballot in these small

operations. If the minister says that when you organize a pulp mill and

there are 1,000 employees and the vote is 600 to 400, you've got a

secret ballot, sure, I agree. But those kinds of operations have been

organized, for the most part. We're now talking about the small sector.

And everybody knows who's for the union and who's against it. It's

quite clear. So there's no secret ballot, and any pretence that there

is is simply that — a pretence. The opportunity for automatic

certification by the board allows those people, in fact, to have some

measure of secrecy, which they aren't allowed if they have to cast a

vote which is then counted and known to the employer.

The opportunity, even though it's up to the board in its discretion,

for the employment of anti-union employees between the time of the

application and the time of the vote is there. All you have to do, if

you're a small owner in the manufacturing sector, is start producing

more goods, even if you have to stockpile them. You hire more people to

produce more, and you make an economic argument that it's an

appropriate thing to do. The board isn't going to say that you can't

have those new employees. But they'll be laid off as soon as the vote's

over, you can be sure.

[ Page 4787 ]

It seems to me that the appropriate voting unit we are talking about

in this case is the unit that was there on the date of the application.

None of those loopholes should be allowed. I don't understand why they

are. Even in the U.S., with their lousy card system of organizing, as

the member for New Westminster made reference to, there is an

opportunity for a rerun vote if there is some problem, but there's no

opportunity for a repeat vote here. In the U.S. the penalties for

improper conduct by employers is considerably more severe than it will

be under this legislation. Even with those more severe penalties you

get the kind of situation that we had with J.P. Stevens.

I wonder if the minister has ever had a discussion with the former

Minister of Labour, Allan Williams, and asked him about this question

and why he rejected the same proposal when he was Minister of Labour

and maintained the present system. I make those points. We could go on

and on and repeat ourselves, but I don't intend to do that.

In conclusion on this particular principle, we are into some murky

grounds that will further legalize the process. We are into a procedure

that will make it more difficult to organize, and we're into a

situation that will create industrial havoc in a small way in areas

that are attempting to become unionized. You don't create peace this

way. You don't create a leaner system, you don't create a cheaper

system, and you don't allow the democratic wishes of a majority to

prevail as a result of the built-in advantages to employers.

[4:30]

MR. COCKE: I am totally convinced that this is aimed at small

business. I totally agree with the member for North Island, who

indicates that major industrial or large businesses are already, for

the most part, organized. This particular

section is aimed purely at

the heart of the small business organization. The member for Vancouver

South said it best: as far as he is concerned the employer wants to go

on with no problems, and unless he has something like this he is going

to have problems. And I agree. The fact of the matter is that that

employer may be only too delighted to be paying the lowest rate of pay

that he can possibly get away with and feels that that's the way you

have a good business situation.

For the employee not to have access to organizations that could

improve the workplace for the employee and also improve their wages is

wrong, in my view. I think that most employers are reasonably good

people, but many of them suffer a real paranoia about trade unions. I

think what we're doing here is protecting that employer. The bias is

obviously there.

The minister hasn't persuaded me, in any event — and, I'm sure, not

many others — that this is a good move. All he does is get up and talk

about democracy and secret ballots — heaven only knows when they're

going to take place — and then totally ignores the fact that if you

have more than the required number signed up, what's the percentage?

What's the need? There should be automatic certification at that time.

I think this is an unfair roadblock in the way of organizing the

smaller business. I don't think it's good at all, because all it's

going to do is make those people second-class citizens forever compared

to their peers in other businesses.

MS. SANFORD: The minister has not explained to us the need as

he sees it to change this particular section. Has the Labour Relations

Board expressed concern that the 55 percent now

required under the act is not a high enough percentage? They were

granting automatic certification as a result of receiving 55 percent of

the unit signed up through the signatures on the cards. I don't

understand. Is the concern there with the Labour Relations Board? Do

they feel that 55 percent is too low? Do they feel that they have been

certifying units when in fact there was not the desire of the majority

of those people to become certified? Where does the problem arise here?

Mr. Chairman, the percentage of those people in the workforce who

are certified has remained approximately the same during the ten years

that this Labour Code has been in effect. There hasn't been any sudden

change in the certified percentage of the workforce. If there was some

concern here that all of a sudden we had a large percentage increase

that was somehow an indication that certifications were being granted

when they weren't being asked for.... We've had no explanation from

the minister as to why this

section is necessary. I know what I think.

I know the attitude of the government towards trade unionism. I know

the attitude as expressed by so many of the people on the back bench.

It's just an attempt to place another roadblock to ensure that the

percentage of the people organized in this province goes down rather

than stays at the level it's been at over the last ten years or so.

Has the minister considered how many additional employees are going

to be required at the Labour Relations Board as a result of this

requirement that a vote be taken even though 55 percent have signed

cards? What consideration has the minister given to raising that

percentage, as my colleague for North Island suggested, to perhaps 60

percent if he's uncomfortable with 55?

I have never heard from any of the people serving on the Labour

Relations Board that they are concerned about this particular provision

of automatic certification when 55 percent of the employees are signed

up. It's never been a problem for them. They've granted that

certification. The ramifications have not been evident to me or to any

of the people serving on that Labour Relations Board that I'm aware of.

It's just a deliberate attempt, Mr. Chairman, to put another roadblock

into the already very difficult process of applying for certification

or at least signing up unorganized sites as organized sites. It's a

very difficult process. How many more lawyers are going to be involved

in the jungle that is going to result when we have this kind of

requirement?

I wonder if the minister would mind responding to some of those questions.

HON. MR. McCLELLAND: Well, Mr. Chairman, I've answered the

basic question I don't know how many times, and the member obviously

wasn't listening. The government believes that every person has the

right to vote on a major matter such as whether or not he wishes to

belong to a trade union. I've been saying that for 18 months, and the

government has been saying that for a long time, including during the

last election campaign. It's as simple as that.

Section 7 approved.

section 8.

[ Page 4788 ]

MR. GABELMANN: I have some questions on

section 8. Does the union have a choice whether it applies under

section 39 or

section 45?

HON. MR. McCLELLAND: Yes, the choice is there, Mr. Chairman,

and it would be the employer who would apply under this

section for

that kind of automatic certification for the life of the project. But

they can go either way.

MR. GABELMANN: I must have not heard that. The employer applies for certification under

section 45; is that what the minister said?

HON. MR. McCLELLAND: Or the trade union, whichever.

MR. GABELMANN: If an employees' group, a trade union, applies under

section 45 and that fails, can they revert to

section 39?

HON. MR. McCLELLAND: I see no reason why not, Mr. Chairman. Yes, they can.

MR. GABELMANN: What's the effect of the provision of

section 45 on provincewide or geographical certifications? Has that been considered?

HON. MR. McCLELLAND: Mr. Chairman, I don't see that it has

very much effect, if any, on geographical representation. I just can't

see the application. I expect that any employer who wants to have

stability for lengthy periods of time — and most employers would want

that — would want to be certified under the normal manner rather than

under this section. But a small company, which can now get certified in

almost the same manner as this

section indicates, is certified until

some decertification action is taken. I think there is similar

legislation in other provinces, where they refer to it as voluntary

recognition. That's really all we're saying here. It's an option; it's

not a course that an employer or an employee is forced to take. It's

simply an option to deal with that kind of need for an employer to

become certified in order to win a job, for instance, and then he would

carry that certification for the life of that job.

MR. GABELMANN: Every day that goes by I learn a little more about the

intention of the amendments. I've just learned something else that I hadn't

thought of. I have to read this

section in light of the fact that this is designed

— I guess I should have twigged a few minutes ago, but I didn't — to allow

the employer to say to all building trade unions: "I want to use the hiring

hall, and I want not to be affected by the affiliation clause. Therefore I'm

going to apply...." The minister said the employer can apply for certification

on behalf of the workers. I'm just trying to figure out how this is going

to work.

HON. MR. McCLELLAND: The act is clear on how this

section

gets triggered. The board has to be satisfied that 55 percent of the

employees wish to be represented; only then can they certify that trade

union as bargaining agent. What happens at the board now — in practice

at least, as I understand it — is that an employer may wish to become

certified, for whatever reason. They do make the initial approach at

least, but it's the employees who trigger the certification. It is

under this

section as well.

MR. GABELMANN: I guess I was puzzled before when the minister

said the employer could make application under this section. In fact,

it's the employees — the union — that make application for

certification and not the employer. I recognize now....

My problem, Mr. Chairman, is that I take so many things on faith,

and I should learn from some of my colleagues who don't. I assumed that

this

section was designed to deal with the fact that a lot of

construction jobs are of short duration and that this was an

opportunity to avoid the vote requirement as is applied everywhere else

for certification; that there could be an automatic certification

granted upon proof of 55 percent or more; that this was designed to

allow the union to make sure it could be certified before the job

ended. That's what I thought the intention was, but now I pick up that

in fact the major motivation of the

section may well be so that small

contractors — or large ones, for that matter — can avoid the problems

contained in the affiliation clause. I'll leave it at that.

[4:45]

[Mr. Pelton in the chair.]

The process of what happens between jobs in terms of whether they're

union or non-union is one that is murky at best, in my view. It may

well not be. If certifications die with the job, has the minister

considered what implications that will have in the long term when taken

together with

section 10, in which probably 1,500 or 2,000

certifications will automatically die? Has the minister taken into

consideration the impact on apprenticeship programs, which for the most

part are now jointly funded between union and employer? In fact, the

construction industry will be largely non-union. When the recovery does

come, if it ever does, and the present defunct contractors go back to

work with non-existent collective agreements because of

section 10, has

the minister taken into account the problems when the certifications

die with the job, and the job is narrowly defined as a very narrow part

of a construction project, taking into account the implications for the

treasury, if nothing else, on the apprenticeship programs that at the

present time are run by industry and its unions?

HON. MR. McCLELLAND: Mr. Chairman, because that particular

certification dies the union doesn't die. In the construction industry

a person is represented by the union and certified to the union, and

those members move around from job to job, which is one of the reasons

why in the construction industry you have the hiring-hall practice —

because of the very nature of the construction industry. So those

people would not lose their union representation; the employer's

certification would die. You know, there are a lot of employers in the

construction industry who don't have any employees, never have had and

probably never will have. Those who do, I would expect, would certify

in the normal manner, but in other cases where the employer may be as

transient as the unions in some terms, then they will have that

opportunity for an option or a choice.

Sections 8 and 9 approved.

section 10.

[ Page

4789 ]

MR. GABELMANN: Mr. Chairman, I guess the best way of

characterizing

section 10 is that it's the decertification section. The

first concern, among many, that I have about this

section is this. Do I

read this correctly that upon 45 percent of the employees in an

operation indicating a desire to decertify, a vote must be taken, first

of all?

HON. MR. McCLELLAND: Right.

MR. GABELMANN: The answer is yes; it's obvious. I just want

to set this up slowly. If the vote is taken and the decision is that a

majority wish to retain the union, do I understand then that it is ten

months before another application can be made?

HON. MR. McCLELLAND: That's right.

MR. GABELMANN: Mr. Chairman, it seems to me that what you

will have again in smaller, stable operations, especially in the small

manufacturing area where there is a possibility of a continuing 45 to

50 percent who wish there not to be a union.... They will have the

opportunity every ten months for a decertification bid, and what you

will have then is a continual process at work of: "Should we or should

we not have a union?" That will be the focus of attention in a case

where there is that narrow fifty-fifty kind of arrangement, even though

the results of the vote may well be every time, every ten

months.... What's there to stop an application being made

continuously? A ten-month period is not long in terms of a campaign.

HON. MR. McCLELLAND: Mr. Speaker, there is nothing to stop

that. Maybe you could take it as a parallel situation to the rules

regarding raiding. There is nothing to stop a predatory union from

raiding continuously, even though that union may continually be

rejected. There are of course time limits before they can raid again

during the life of a collective agreement, but still there is nothing

to stop that from happening over and over again. And again the wishes

of the people will prevail.

MR. GABELMANN: Mr. Chairman, this is difficult for us lay people, and

it is a difficult

section inasmuch as it deals with both raiding and decertification;

this

section impacts upon both elements. Let's just deal with the raiding

at the present time. You now have to apply in the seventh and eighth months

for a raid to be considered, and you need to have 50 percent signed, and there

is a 90-day limit on the cards. This amendment will allow that raid to take

place in the seventh and eighth months on the basis of 45 percent of the membership

as opposed to 50 percent. The opportunity to raid in the seventh and eighth

months of each year of a collective agreement, based on 45 percent as opposed

to 50 percent, will undoubtedly lead to more frequent raiding, because you only

need 45 percent instead of 50 percent. Is the minister not concerned about that

disruption? I don't deny the right — in fact, I fully support and encourage

the right — of people to change unions. If a majority of people in an operation

desire a change in unions, they must be given that opportunity — no question.

The present system allows that to happen