1987 Legislative Session: 1st Session, 34th Parliament

HANSARD

The following electronic version is for informational

purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

THURSDAY, JUNE 11, 198

Morning Sitting

[ Page 1705 ]

CONTENTS

Routine Proceedings

Industrial Relations Reform Act, 1987

(Bill 19). Committee stage. (Hon. L. Hanson) –– 1705

Mr. Gabelmann

Mr. Clark

Ms. Smallwood

Mr. Harcourt

Ministerial Statement

Provincial school examinations. Hon. Mr.

Brummet –– 1713

Mr. Rose

Appendix –– 1714

The House met at 10:10 a.m.

Prayers.

Orders of the Day

HON. MR. STRACHAN: Mr. Speaker, I call

committee on Bill 19.

INDUSTRIAL RELATIONS REFORM ACT, 1987

(continued)

The House in committee on Bill 19; Mr. Pelton in the chair.

section 48.

MR. GABELMANN: Yesterday afternoon we had a

broad, free-ranging kind of discussion of picketing. This morning we

want to be more focused and deal with the specific sections — not

specific sections but the wording changes in a seriatim fashion.

The one I'd like to start out with first is the very first of

the amendments, which is to change the word "persons" to the word

"employers." There's a variance of opinion as to what this means. The

opinion that seems to be most prevalent is: "The effect of this

amendment is not clear." That's what Gavin Hume says in his analysis of

the bill for Butterworths. I wonder if the minister would like to tell

us what he thinks it means and why this change was introduced.

HON. L. HANSON: The amendment to I guess

it's 48(

a) I think has to be read together with the change to

section

85(6), which is a new provision. In

section 85(

l) the definition of

common-site picketing has been changed by replacing the word "persons"

with "employers," and in

section 85(6) a new provision allows the

council to treat separate and distinct divisions of a corporation as

separate employers.

The amendment to

section 85 has been introduced to clarify the

government's intention that in the area of picketing rights, so as to

ensure that third parties are not involved in a labour dispute between

employers and employees.... It's intended to clarify the government's

intention that when it is enacted, the Labour Relations Board will have

the ability to narrow, I guess, its jurisprudence as it relates to

common-site picketing.

There were some determinations by the LRB as a result of the

'84 amendments that gave those such a broad

interpretation that

picketing activities have been much more extensive than intended. We

believe that the changing of the word "persons" to "employers," taken

in context with the changes to

section 85.6, the new provision, will be

very easily defined; the council will have clear direction to treat

separate and distinct divisions of a corporation as separate employers.

[10:15]

MR. GABELMANN: There's no question at all

that these changes significantly narrow the opportunity for picketing,

but a lot of it's going to rest on We have to go to 85(6) to deal with

this first change, as the minister points out.

A lot of it is going to deal with the definition of separate

and distinct operations.

If a company owns a sawmill and also conducts logging

operations under a separate division of the company, and the sawmill,

let's assume, given the possibility of the breakup of accredited

employers' groups.... Let's assume that we get into the situation with

fragmented bargaining, which is now possible. If the sawmill is on

strike, it would appear that the separate and distinct logging

operation of the same employer would not be able to be picketed.

I think I hear the minister whispering: "If it's the same

certification." I'm saying that if we get into the fragmented kind of

bargaining, and there are separate certifications asked for and granted

as a result of an employer's decision to take advantage of all of these

changes — to establish separate and distinct operations with separate

certifications and separate collective agreements — they would then be

able to continue to have the logging operation function without the

right of the union to have a legal picket line in front of that

operation, and then to contract out with another sawmill to process the

wood for them. I'm speculating — obviously that's all we can do — but

that's the kind of scenario that clever company lawyers and accountants

are going to be able to establish, it seems to me. We will have a

situation where there will be absolutely no economic power available to

the union.

I wonder if the minister agrees with that kind of scenario.

It's just an illustration, it may not be the best one. I wonder if he

agrees that there will now be the opportunity for that kind of evasion

of the economic impact that strikes and lockouts are supposed to have

on the respective parties.

HON. L. HANSON: Mr. Chairman, certainly it

is a hypothetical case, but from my understanding, I believe that they

would be considered upon application as an ally, if in fact they were

continuing that logging operation for the benefit of the struck

employer or for the benefit of his ability to withstand the strike.

MR. GABELMANN: That may well be, but in the

meantime.... This may not be the best example, because it's just off

the top of my head. There may be others that are in a greyer area of

law, and if these distinctions are in a greyer area of law, the

employer would be able to apply for an interim order.

Interjection.

MR. GABELMANN: That's what we do in here.

To the Minister of Energy (Hon. Mr. Davis), that's what this place is.

It's a law-making body. If we don't know what the law is going to mean,

we shouldn't pass it.

HON. MR. DAVIS: The minister's opinion

expressed in here isn't legally binding.

MR. CLARK: It is in labour board matters.

AN HON. MEMBER: It's not binding.

MR. CHAIRMAN: Order, please.

MR. GABELMANN: It's not binding.

MR. CLARK: It's used in labour board

matters.

[ Page 1706 ]

MR. GABELMANN: The Minister of Energy is

testy this morning; I don't know why. I don't know whether the Pacific

accord is going badly, or what. But the fact is that in labour law and

in labour jurisprudence, the opinion of the Legislature is considered.

It's not binding; it's considered, unlike the courts of the land, where

what the Legislature or the minister says is not considered or not

relevant. It's not true in labour law. What the minister's intention is

as indicated in Hansard is referred to frequently and is used as a

guide.

MR. CHAIRMAN: Is the member on a point of

order?

HON. MR. DAVIS: A point of order, yes. I

wonder if the Chairman would seek a ruling — not now, but for later

today or later this week — as to whether hypothetical questions are in

order in this House and, secondly, whether requests for legal opinions

need to be answered by a minister or anyone else in this House.

MR. CHAIRMAN: There are no restrictions,

Mr. Minister, on the questions that can be asked in committee — not

that I'm aware of. Mind you, the minister who is being questioned is

perfectly within his rights to not answer them if he so chooses. I

would suggest to the hon. minister that there is no restriction on the

questions that can be asked, so I don't really see any point in making

any inquiries in this respect. The member for North Island continues. I

should say that the questions must be relevant, however, which is

always important.

MR. GABELMANN: Yes, I was just going to

make that point, that we must be relevant to the

section and we want to

be. There is no possibility of even discussing this bill in committee

unless we discuss hypothetical situations. Because a law like this

doesn't exist anywhere, everything that flows from this legislation is

hypothetical — everything. If we cannot suggest scenarios that will

flow from the effect of this language, then we may as well not have a

debate and we may as well close this building and forget about

parliamentary democracy. If that's what the Minister of Energy, Mines

and Petroleum Resources wants, then that's something that I certainly

don't want. However, leave that aside.

In order to understand what the effects of these picketing

changes are, we need to clarify what the intent of the minister is.

It's not seeking a legal opinion from the minister. I have never done

that in the course of this debate. I wouldn't presume to ask the

question, much less to have it answered. That's not what we're trying

to determine.

What we want to sort out is what the effect is going to be. I

agree that in the hypothetical case I cited, if the board made the

wrong decision based on 85 of the Code, then an application could be

sought; but at the same time the employer has an opportunity to go to

the council for an interim order. If it's in a grey area, what we'll

have on occasion — because the full hearing hasn't been held — is

orders that will prevent picketing in these situations, because the

ally status is not entirely clear until the hearing is held. So the

decision, no doubt, of the council in matters like that will say no to

an application to allow picketing or say yes to an application to

prevent picketing — the more likely scenario. What you then have is an

added element in building up this head of steam that I talked about

yesterday in terms of how people feel their rights are being violated.

I decided not to get into a general philosophical thing,

because we all did that yesterday, and I won't do it now. But that

really does flow from this discussion. It's a whole question of how you

achieve some balance between the parties. If you say that a company,

firm or operation that has separate divisions or parts that are

separate and distinct can't be picketed, then those separate and

distinct operations will continue to keep the employer in the cash

flow. So what's the point of going on strike? When you have a situation

where the strike creates no economic impact of a significant kind, you

effectively don't have the right to strike. Yesterday in the House in

response to a different angle on this same issue, the Minister of

Education (Hon. Mr. Brummet) was suggesting that the law doesn't take

away the right to strike. Well, it does, and here is yet another

example of how it does that. You may have the legal technical right,

but if there is no point in exercising it because its effect, its

impact, is negligible, then you effectively don't have a right.

So bit by bit we are violating the ILO convention, violating

the tenets of a western industrial liberal capitalist society. Without

getting into a long debate about it, I just find it appalling that

members on the government side don't understand. I think it is a

question of not understanding, rather than a question of deliberately

not understanding. I think they just don't understand why it is that

people are saying that their fundamental rights are being denied. They

don't understand that the effect of these kinds of changes, and this

one in particular, in fact is to take away those fundamental rights. If

the fundamental rights are there technically by law, but not

practically, then they don't exist. Clearly, people on that side don't

seem to understand that point.

MR. CLARK: I just want to explore a little

bit the change in definition from "person" to "employer," because, as

the member for North Island said, there are some legal

interpretations

that say that it means certain things. I would just like to know

whether that's the intent of the legislation.

Employers who are single-entity employers, who have no

employees: there is some thought that on common sites, where there are

single operators — proprietorships, dependent or independent

contractors — who amount to essentially owner-operators, would be

exempt from common-site picketing because they are "employers" and not

"persons," in other words. So there is a question there. Does the

minister have any thoughts on that? There is a wide range of

interpretations from both management lawyers and labour lawyers in this

regard. Almost all of them seem to feel that those single operators

could be exempt from picketing even if they're common sites because of

this definition change. Is that the intent of the legislation?

HON. L. HANSON: You're suggesting that

there is an employer who is on a common site who doesn't have any

employees. There's a possibility that because of the physical layout or

nature of the site it would be impossible to ban picketing from that

employer, because it's just physically impossible.

I suppose that's a possibility. It has been raised by other

concerns. It's a very difficult one, I agree, to deal with. Quite

frankly, we will have to monitor that situation, if that is a serious

difficulty. It really is a concern that we have looked at, but it's a

concern that we have found very difficult in true terms. I think that

the Industrial Relations Council will attempt, to the best of their

ability, to live up to the intent of

[ Page 1707 ]

this. But there is a possibility that

physically it may be difficult in some very unique circumstances to

ensure that the picketing is only related to the disputing parties.

Because of physical problems or whatever, it is a possibility, but, we

think, a very remote one. We think that in the good judgment of the

IRC, they will attempt to provide their orders in such a manner as to

provide that protection.

MR. CHAIRMAN: Hon. members, the second

member for Saanich and the Islands has asked leave to make an

introduction. Shall leave be granted?

Leave granted.

MR. HUBERIFS: Mr. Chairman, in the gallery

are 14 grade 11 students and their teacher, Mr. Hurne, from Stelly's

Secondary School in the great constituency of Saanich and the Islands.

I would ask the House to give them a big welcome.

[10:30]

MR. CLARK: I appreciate the answer from the

Minister of Labour, because I think he's touched on how difficult it

is. Maybe he could say for the record that it's not the intent of the

government.... Because of the definition of employer, single-entity

employers would no longer be employers, they would be persons. That's

how many people are reading it. But it's not the intent of the

legislation to say that a common site that has single-entity employers

— in other words, owner-operators — should be exempt from picketing on

common sites. I'm just trying to tighten up what you said; I think

that's what you meant.

HON. L. HANSON: I think you're going just a

little further. I think I acknowledged that there may be a

circumstance, because of configuration or physical facilities, where a

single-entity employer, although not picketed legally, may be

effectively picketed. Certainly if it is possible, and if there is a

way that the IRC can designate the allowable sites to be picketed, that

would be the intent of the legislation.

MS. SMALLWOOD: I wonder if the minister

would be good enough to clarify something for me. If a nursing home, a

private hospital, had a dispute and there was picketing at that site,

and the union chose to also picket the suppliers of that hospital,

would that be covered? Would that be permitted under this legislation?

HON. L. HANSON: If I understand the

question. we've got a hospital or a health care facility that is on

strike legally and is being picketed, and it continues to be supplied

by a laundry service, or whatever. I think there would have to be two

determinations there. First of all, would they be determined as an

ally? I would suggest that they would. But I think there would also

have to be determination under the essential services: is there a

requirement for that service to maintain the essential services so

there isn't harm to the health and safety of people? It would be two

determinations in that case.

MS. SMALLWOOD: It's still not clear to me

whether or not the picketing of another site or another company would

be permitted. We are talking about services supplied to that hospital;

and I acknowledge the point that you made about essential services.

If I can ask another question, let's talk about a nurses' aide

strike. An agency provides staff for the hospital to fulfil the work

that was done by the striking employees. In that case, would the

striking employees be able to picket the agency that was providing

those workers?

HON. L. HANSON: It seems that we're almost

talking about professional strikebreakers. They're prohibited. In the

health field and with the emergency services, I think there is a

requirement — and we all accept that as being a necessity in our

society — that during a labour dispute a certain level of service must

be provided to the public. To maintain that level of service there may

be a requirement for supplies to come in, or there may be a requirement

for laundry to be done, because it is part of that essential service;

and I think the IRC would rule that that was the case.

Getting away from the health service, if there was a.... Let's

leave the emergency service part out of it, because that does muddy it

a little bit. If there was a circumstance where a struck employer was

receiving a service from another employer for the benefit of the struck

employer, and that continued to be delivered. then there's no doubt in

my mind that the IRC would rule them as an alk and therefore would

allow picketing.

MS. SMALLWOOD: I want to carry on from

where I left last night, in addition to that. This is another instance

in the service industry where the employers now can take the work and

locate it in a different site. In the case of a data centre, where the

employer now has the ability to take all of the information services

and locate it perhaps down the street or in another city of the

province, could the employees picket that site under these provisions?

HON. L. HANSON: I think we've dealt with

that in the amendments to 85(4). The purpose of this amendment is to

clarify that where an employer is attempting to shift struck work to

another location, that location can also become the site of permissible

picketing. The IRC would make that determination, given all of the

facts. But I and my ministry and the government feel that if an

employer who has a legitimate strike going on attempts to shift that

work to another location, there should be permission for picketing.

MR. GABELMANN: Mr. Chairman, I want to move

on to 85(2) of the Code. The law has been that there's a presumption

that the ally is the ally unless he proves differently. This change

shifts that onus of responsibility of proof in two ways. First of all,

the trade union is going to have to prove before it can even get any

further in this application that there is a benefit to the struck

employer, or that there is a benefit to an employer if there's a

lockout. I'm sorry; when I say "in two ways" it really is in one way:

the onus to prove that there is a benefit to — let's just leave the one

example — the struck employer. That's not the easiest thing to do when

you don't have access to the books, when you don't have a knowledge of

the private and internal affairs of the particular company.

The original approach to this was done deliberately,

consciously and quite appropriately, because shifting the onus in this

way puts unions in a position to try to prove something that's very

difficult to prove. How do you prove that in fact there is a benefit?

There will be all kinds of inventive and cute legal arguments on the

other side of this issue to demonstrate

[ Page 1708 ]

in fact that there is no benefit, or

that a benefit can't be proven, and that's all that's now going to be

required.

The original law on this issue was, in my view, not causing

problems. The employer — if they could prove there was no ally function

being performed, then there would be no ally status declared. And

that's the way it should be. The onus, I think, should shift in this

particular case.

I guess the case that people think about in respect of this

issue is the CP Transport aiding MacMillan Bloedel last year in the

Alberni Valley. In that case the onus rested with the employer to show

that there wasn't a benefit, and that's the way it should stay. But

this seems to be a response not to a request for balanced, fair

industrial relations, but rather a response from two of the biggest

corporations in this country, Canadian Pacific and Noranda, who lost a

case in '86.

Again as we've demonstrated throughout the debate on this

bill, we see yet another example of legislation being brought in at the

behest of major Canadian, but nevertheless multinational, corporations

— in this particular case two of the biggest companies in the country.

Why? Simply to help them win their cases so that they can beat the

union, rather than find a way to promote good and sound industrial

relations. I just make the point again that these kinds of changes are

not appropriate to speedy and expeditious resolution of disputes. They

are designed to allow employers to continue to make money; they are

designed to weaken the bargaining power and position of the working

people; and they are clearly, unmistakably biased in that respect. This

is yet another example in a long litany of examples where fairness and

balance are just being thrown out the window. Whatever General Motors

wants, General Motors gets, because what's good for General Motors is

good for the country. That's the philosophy that underlies this whole

bill. It underlies this particular

section as well and we oppose it too.

MR. CLARK: Well, I'd just like to confirm

this. I've read this a few times and this is, from the unions' point of

view, probably one of the worst provisions, because it substantially

weakens it; but I just want to clarify. Maybe the minister could take

issue with any of these points.

It seems to me that a union can only picket an ally now after

he's got permission from the board. He has to make an application to

picket someone — okay? — and the board has to agree. But the board will

only agree if the union can prove that the work performed by the ally

is an integral and substantial part of the work that was done by the

struck employer. Then the union also has to prove that the work being

done by this alleged ally that was work done by the struck employer is

for the benefit of the struck employer and not the ally. Then, if they

can do all of that, the union can only picket those aspects of the ally

which are performing the work that was being done by the struck

employer. Is that a fair characterization of the steps that a union has

to go through to be allowed to picket, and the extent to which the

union is allowed to picket?

[10:45]

HON. L. HANSON: What you said was

substantially correct. First of all, we believe that the permission of

the board is a requirement before picketing of an ally should take

place, quite simply because picketing before the determination that

they are an ally puts a place of business down, and the employees

working there lose time and money and so on. We think that it is fair

and reasonable that the determination of an ally should be prior to the

picketing process taking place.

I think that the terminology used, "for the benefit of a

struck employer," is good because if an ally who knows that a

particular firm is in dispute with its labour organization chooses to

continue to do work or provide services, or whatever, of benefit to

that employer, then we think they should be struck. It depends on what

we are talking about, whether it is a multi-faceted operation or a

smaller operation. In the latter, the determination of an ally would

likely lead to picketing of the whole operation; but in a very large

and complex organization, the picketing would be restricted to the part

performing the allied work. But that in itself would be a message to

other labour organizations that these people are performing something

contrary to the interests of an ongoing dispute.

Just about all of this is in the Code now, except for "for the

benefit of...." I guess you feel that it shouldn't be, and we feel that

it should be.

MR. CLARK: I won't belabour it, but one of

the most powerful weapons a union can have before deciding to go on

strike is to try to have a lot of the work being done by the employer

caught behind picket lines. Let's say it is a steel fabricating company

— which I happen to be familiar with — and the company has a

one-million dollar piece of machinery that is halfway completed. If you

strike then, you catch that one-million dollar piece of machinery

half-finished behind picket lines. One of the things that employers try

to do is get that piece of machinery out of there and give it to

another company to finish; otherwise they are stuck with this piece of

inventory stuck behind picket lines. What normally happens is that if

it looks like there's going to be a strike, the company will attempt to

get rid of that stuff quickly to other companies. Of course, you can't

really do that with impunity, because you are doing work elsewhere that

was done by your employer. Therefore you can picket the ally. I'm

trying to think of how this would impact on that. It seems to me that

it would be significant. If that one-million dollar piece of machinery

that is half-finished behind my company's picket line managed to get

out and go to another company's operations, would the union be allowed

to picket that other company's operations?

HON. L. HANSON: The description of the

member's hypothetical case, in my mind, invokes the ally perception,

and therefore it would be allowed to be picketed.

I think that in that section, and I guess again in 85(4),

secondary picketing, the purpose of course is to clarify that where an

employer is attempting to shift struck work to another location, that

location can also become the site of permissible picketing. I think

that answers that.

MR. CLARK: Okay. Thanks to the minister for

that answer.

If I were an astute employer, what I would do — and this had

been done; I've seen it done — is, instead of taking that half-finished

piece of machinery to my operations to finish, if I'm alleged to be the

ally, I would rent a warehouse and put it there and send some of my

employees down there to finish it, and then if there was a declaration

now under this, the only place you could picket is that warehouse where

that's being done, not my operations. In other words, if you're an

astute employer, it seems to me that it's really quite easy to get

around picketing with this kind of language. See, one of the

[ Page 1709 ]

things is: if you're declared an ally

now, that means you can picket the operations of that ally, and of

course that means you can picket more than just the little part that

used to be done by the struck employer. So there's a real disincentive

for employers to take work that was done by struck employers.

It seems to me that now all you have to do is take the work

from a struck employer but put it in an operation that is not part of

your own or in one

section of your company that is not part of your

own. It's not always easy to do that, in fairness, but in many cases it

is. So you could now, say, in the steel fabrication industry.... There

are dozens of empty equipped steel-fabricating companies that are out

of business, and they're lying there empty; all you have to do is rent

one for a month, take all the work and put it in that rented operation,

and then you're picketing a warehouse or an operation that wasn't there

before, and that's all you can picket. You can't picket the main

operation. Is that a fair...? I mean, does the minister agree that

that's possible under this language?

HON. L. HANSON: Mr. Chairman, I was just

having a discussion with my assistant here. First of all I'd point out

that the primary site where the dispute started is still being

picketed, and what you're suggesting is that there's a very major

project going on within that site and that the employer, anticipating a

dispute, has gone to another company....

MR. CLARK: Or after a dispute.

HON. L. HANSON: Or after a dispute. ...and

said: "Hey, rent a warehouse and send your men over there and finish

this piece of work for me." Well, I suppose in the strangest of

circumstances that probably could happen. I think that in today's

world, where there is such a requirement for sophisticated equipment

and all the other things that go along with it, it's very difficult on

short notice to manoeuvre that sort of a situation. But you're right

that that picketing would be limited to that warehouse, except that I

think the board would have some jurisprudence to see if that was a

deliberate motivation that they might look at within their discretion.

But summarily, you're right.

MR. CLARK: I'm finished. I just want to ask

the minister if he could tell us what other sections allow the

discretion of the IRC. Could he give us an example?

HON. L. HANSON: In these debates you have

lots of time to discuss with your partners, and I don't get that time,

because I have to answer your questions very quickly. So sometimes I'll

take a little longer than I should.

In another

section we are bringing back the "clean hands"

provision, and that gives the board a wide sort of understanding, or at

least an ability of a wide discretionary sort of thing, to see that

there is some fairness and equity in all of their decisions as they

relate to the performance, and that's a possibility. But again, you

know, I'd like to emphasize that the picketing is at the primary place

of work, and that right is always there. It's not removing that. That

is probably the most pressureful system that can be applied to the

employer — picketing that site. With the various clauses, particularly

that clean-hands one, I think manipulation to avoid the allied sort of

situation will be picked up very quickly by the board.

MR. GABELMANN:

Section 48 is one of those

kinds of sections where we could easily take two or three days to go

through the complexities. We're not going to do that. We've made the

argument, so I want to conclude the discussion on this

section by

making a specific reference and then some general comments.

The specific reference is Slade and Stewart and the Retail,

Wholesale Department Store Union. This is the kind of situation in

which it will now be impossible for unions to prosecute a strike —

absolutely impossible. If you have a company — and a courier service is

probably an even better example — that does its business in a variety

of sites.... Its business is being conducted as its drivers drive down

the highway or through the streets of a city; its business is being

conducted when it makes deliveries to a site or delivers a parcel; its

business is being conducted on the telephone; and its business is being

conducted in a variety of ways. The effect of this legislation, these

changes, will be to prevent absolutely and clearly the ability of the

trade union to follow the business and to establish picket lines where

the business is being done.

Because the primary site will be defined as the office or the

warehouse or the facility from which the employer operates, in the case

of, for example. Slade and Stewart, the warehouse from which the

groceries and other goods are dispatched becomes the primary site. The

real business, in fact, happens at the delivery door. That will not be

able to be picketed. It was arguable after 1984 whether or not it would

have been allowed to be picketed. Certainly the intention of the

government then, in my view, was to prevent pickets of that kind.

The labour board, recognizing the idiocy of that kind of

policy, tried to soften it. The government now is bringing in these

changes to require the adjudicating body, the new council, to make

tougher and stiffer decisions. I guess this leads me to the comments

made yesterday in particular by the member for Surrey-Guildford-Whalley

(Ms. Smallwood) that there are some people in our society who are going

to be hurt more than others by these changes.

Those people, for the most part. are the people who work in

the service industry; in the service industry, for the most part,

increasingly those people are women. Men who, for the most part, make

up the workforce in the heavy industrial sector, in the mills, in the

woods and in the mines will be less affected. In a mine which might

have 90 or 95 percent male employment, the employer has a great deal of

difficulty picking up the mine and moving it down the street, and a

great deal of difficulty subverting the picket line, obviously.

[11:00]

Similarly, in pulp mills and in sawmills and in the forest

industry, despite the weakening of the ability to prosecute the strike,

there will be some measure of ability to prosecute it — much reduced,

much less effective in terms of minimizing the length of the strike;

nevertheless, there will be some ability. In the service sector, where

business is increasingly conducted on the fly. on the move; where it is

increasingly populated by women, increasingly by younger women,

increasingly young single women; where the rates of pay are already

low.... Even in the unionized service sector, it's lower than the

industrial average. The familiar figure of 62 percent of income....

For every dollar earned by a man, 62 cents is earned by a

woman in this country. That is because women are in these areas that

either are not organized or have only recently been

[ Page 1710 ]

organized; or where they are

organized, the power of the union is not very strong. These changes

will mean that that power is not only not very strong but non-existent.

If you can't picket the delivery of the goods or services, you can t

prosecute the strike. If you can't prosecute the strike, it will

continue to be scabbed and eventually the strike will be lost, and

those people who spent their year or two on the picket line going

hungry will then eventually fade into the woodwork and will end up on

the welfare rolls, while somebody else will take their job at a lower

rate of pay.

I guess what bothers us, those of us who view the advent and

the strength of the labour movement as the single most important

element in our society to redistribute society's wealth.... Governments

don't do it; capital doesn't do it; employers don't do it voluntarily.

Wealth has begun to be distributed in our society, not in a fair manner

yet, but increasingly moving in that direction. It has only happened

because of the strength of trade unions. But now, as the number of

people employed in the old-fashioned, industrial, heavy-duty sector

diminishes, and the number of workers increases in the service sector,

we will find that the actual ability to continue this redistributive

program will be not only impaired but turned backwards. We will find,

as a result of the inability of people in the service sector — and I

repeat: most of them are women — to prosecute a strike.... That's a

clear result of being unable to picket effectively, in that highly

mobile area. It will mean that those people — those women, in

particular — will be unable in this generation to repeat the successes

of their male counterparts in the generations that preceded them. It

started in the late thirties with the advent of the CIO and their

industrial organizations, went on through World War II and solidified

in the fifties and early sixties. Those people in the service sector

will not be able to repeat the economic path that was open to the men

in the primary industrial sectors of our economy.

That's a tragedy. I could make a long speech about this

subject, because it's a crucial one in our society. There will remain

in our economic system no ability for people who work in the service

sector and in the newly developing communications fields to exert

economic influence and impact on their employers, with the result down

the road of increasing their share of the GNP, in the same way that

their brothers did in mines, factories, sawmills and pulp mills and

throughout the rest of the industrial sector of our society.

These picketing changes reflect a deliberate policy on the

part of the government to ensure that this newly emerging workforce

does not have the same ability to exert pressure and influence on the

economic system in order to get a more equitable share of the proceeds

of that economic system.

I don't think the government went through a great

philosophical debate about how to make sure that this emerging

workforce doesn't get as much of a share of the economy as the male

blue-collar workers have over the last few years. I don't think that

philosophical debate went on in the government caucus. I'm convinced,

however, that it went on with the Fraser Institute, with some of the

key people who were the actual drafters of this legislation, and with

the right-wing economists — not all of the companies share this view,

but many of them do — who work for many of the major companies in this

province, particularly in the newly emerging industries. There's no

question whatsoever that that is their economic strategy. I don't think

it was ever presented to government in that way. I think it's been

presented to government in an emotional way: that picket lines are

disruptive and harmful to other people, that they get in the way of

doing business when you don't really have anything to do with the

struck employer, and on and on. You have those kinds of emotionally

laden arguments, those kinds of conclusions, by drawing from an

example.... You then end up with the adoption of an economic strategy

that the Michael Walkers of the world would hope you would adopt.

I'm not overstating this. It's a fact of life for those

younger people, an overwhelming majority of whom are women. They will

not be able to repeat the economic progress that their fathers were

able to achieve in the last few decades. That's a tragedy, I think, for

the economy of British Columbia. It's a tragedy for the way we progress

as a society. It's a tragedy for those people personally, and it's a

tragedy that the one institution that might have been able to help

redistribute wealth in our society is now being impaired in such a way

that it will no longer be able to do that.

Section 48 approved on the following division:

YEAS — 29

Brummet

L. Hanson

Dueck

Michael

Loenen

Crandall

De Jong

Rabbitt

Dirks

Peterson

Veitch

Strachan

B.R. Smith

Davis

R. Fraser

Weisgerber

Jansen

Hewitt

Gran

A. Fraser

Chalmers

Ree

Serwa

Vant

S.D. Smith

Jacobsen

Messmer

Huberts

Vander Zalm

NAYS — 12

G. Hanson

Rose

Harcourt

Stupich

Gabelmann

Blencoe

Smallwood

Lovick

Sihota

Miller

Edwards

Clark

[11:15]

MRS. GRAN: Mr. Chairman, may I have leave

to make an introduction?

Leave granted.

MRS. GRAN: Mr. Chairman, in the gallery

today are 32 grade 7 students from Alice Brown Elementary School in

Langley and their teacher, who is also a good friend of mine, Peter

Luongo. Will the House please make them welcome.

section 49.

HON. L. HANSON: Mr. Chairman, I move the

amendment to

section 49 standing in my name on the order paper. [See

appendix.]

On the amendment.

MR. CHAIRMAN: Did you want to speak to this

amendment? This is an amendment, hon. members, which just has the

effect of defeating the particular section. Did you want to speak to

it, Mr. Minister?

[ Page 1711 ]

HON. L. HANSON: Not other than to say that

it's the reinstatement of the clean-hands doctrine, which I'm sure my

critic is very aware of.

Amendment approved.

section 50.

MR. CLARK: This

section allows the Minister

of Labour to appoint a single arbitrator even if the collective

agreement says it must be a three-member panel or arbitration board.

Would the minister assure the House and assure the parties that the

Minister of Labour will always appoint as a single arbitrator a member

of the Arbitrators' Association of B.C., or from the list that the

ministry has of arbitrators in British Columbia?

HON. L. HANSON: It will be from the list,

but not necessarily from the association.

Sections 50 to 57 inclusive approved.

section 58.

MR. GABELMANN: All of those sections were

technical, consequential amendments and of no concern. I just have a

brief word on

section 58.

This is the productivity fund. We will vote in favour of this

particular initiative. It was a good initiative that was started by the

Vancouver Board of Trade, the Business Council and the B.C. Federation

of Labour to attempt to bring some sanity and some soundness to

industrial relations in this province. It was accepted by the minister

and in effect incorporated in the legislation through this productivity

fund. It's a tragedy, I must say, just in passing. It's clear that this

particular initiative, which might have done great things for British

Columbia, is now dead in the water as a result of Bill 19 — and I'm

sorry about that.

Section 58 approved.

section 59.

MR. GABELMANN: A brief question on 59, Mr.

Chairman. This is a consequential amendment, but it relates to the

labour ombudsman

section of the Code, which is yet to be proclaimed

after 14 years or so. May I just ask the minister what his views are

about whether or not he feels proclamation of that particular part of

the legislation will happen or should happen?

HON. L. HANSON: I guess the answer I can

provide for that is: not right at this time. But there is some merit to

a labour ombudsman, and I can assure the critic that it will be a

consideration, hopefully not too far in the future.

Sections 59 to 61 inclusive approved.

section 62.

MR. CHAIRMAN: Can we just wait for one

second, hon. members, please. There are some procedural issues we'd

like to sort out before we go ahead, just to accommodate both sides in

dealing with

section 62.

Hon. members, the Chair is sorry for the delay, but it was

necessary that we lay some ground rules as to how we were going to deal

with

section 62. It has been agreed that we will proceed with a more or

less general discussion with respect to the

section as a whole, and

that subsequent to that — and we will all bear in mind that there is

some time to be considered in the amount of time we do take in doing

this — we will deal seriatim, or

section by section, with the portions

section 62.

HON. L. HANSON: Mr. Chairman, I'd like to

say a few words on the aims, objectives and purpose of this

section of

Bill 19. We acknowledge that roughly 95 percent of all of the

collective agreements in British Columbia are settled without work

stoppage, and that's a pretty good record. But British Columbia still

loses far more time per worker to strikes and lockouts than industrial

nations such as Japan, the United Kingdom, West Germany and others. Our

biggest trading competitor, the United States, also loses less per

worker. Ninety-five percent isn't as good as we would like it to be.

[11:30]

[Mr. Weisgerber in the chair.]

The disputes resolution division will assist, and was designed

to assist, in reducing the remaining 5 percent of collective bargaining

agreements which are settled only after work stoppage. The division

will monitor all labour disputes and help parties resolve the disputes

themselves. In doing so, and in protecting the interests of third

parties who are affected by but not involved in various labour

disputes, our goal was always to have an option available when talks

reached an impasse.

It is not, and never has been, our intention to interfere with

the collective bargaining process or to weaken the labour movement in

this process. This bill will facilitate bargaining, not frustrate it.

Neither the government nor the council will use these powers unless

absolutely necessary. On the contrary, our main thrust is to help

parties reach their own agreement.

However, when government involvement is necessary, Bill 19

divides its options and remedies among the commissioner of the IRC, the

Minister of Labour and the Legislature. The greater the degree of

intervention into a dispute. the higher the level of authority that

must exercise it. This is a crucial concept embodied by these

amendments, and one that cannot be stressed enough.

As head of the council. the commissioner will monitor all

labour disputes in the province and keep the minister informed when a

strike or lockout occurs or is threatened. In this way the government

will always be aware of significant labour disputes, especially when

there is a potential threat to the public interest.

If the minister believes that a dispute poses a threat to the

economy or to the health, safety or welfare of British Columbia

residents or to educational services, he will be empowered to order a

cooling-off period or direct the council to designate the service as

essential. The minister may also appoint an industrial inquiry

commission, as under the existing Labour Code, to maintain and secure

industrial peace and promote conditions favourable to settlement of

disputes. As further protection of the public interest, the requirement

to provide essential services can now also apply to members of a trade

union other than the one involved in the dispute.

[ Page 1712 ]

But as I have said, an important principle behind this bill as

a whole is that the greatest powers of intervention in a labour dispute

lie with the publicly elected officials rather than the bureaucrats.

The greatest of the commissioner's powers can be exercised only when he

is ordered by the Legislature to end a dispute. When the Legislature is

not in session, if the cabinet considers a dispute is a threat to the

economy of British Columbia, to the health, safety or welfare of

British Columbians or to educational services, then cabinet may order

the commissioner to end the dispute. But when that dispute ends as a

result of an intervention ordered by the Legislature or the cabinet,

then the collective agreement which results must be placed before the

Legislature at the earliest opportunity.

When the Legislature orders the commissioner to end a dispute,

the commissioner must immediately prohibit a strike or lockout or, if a

strike or lockout has already begun, he must order the parties back to

work. The arbitrator or arbitration board handling a public sector

dispute must take into consideration criteria specified in the Code,

including the employer's ability to pay. If an award which is

inconsistent with the statutory criteria is made, a party can ask the

commissioner to review the award and refer it back to the arbitrator

for reconsideration.

A special mediator must act within terms of reference

specified by the commissioner. If the special mediator is not able to

resolve the dispute, then he will submit his report in the form of a

collective agreement to the commissioner. The report then becomes the

collective agreement of the parties, except in cases where the parties

agree to change that report. In public sector bargaining, the

commissioner may review the special mediator's report to make sure it

does not exceed the employer's ability to pay and to make sure it

complies with the other statutory requirements in Bill 19.

To open the debate, Mr. Chairman, let me repeat the two keys

to understanding this

section of Bill 19,

section 62. First, there will

be no government interference in the collective bargaining process

unless absolutely necessary. Secondly, the greater the degree of

intervention allowed by Bill 19, the higher the level of authority that

must exercise it.

MR. HARCOURT: I would like to say a few

words on behalf of our caucus in regard to

part 8.1 and the disputes

resolution division of the Industrial Relations Council. The hon.

minister has made it clear, as I was going to reiterate, that 95

percent of the collective bargaining between employers and employees is

resolved without a strike or a lockout. So we admit that we have a

healthy and a democratic system of free collective bargaining, where

employers and employees can come together and bargain over a variety of

areas: wages, working conditions, productivity, safety standards,

advances in our society in terms of equality for women, retraining of

employees, and dealing with dislocation and technological change. All

of those matters that are important are done in our society not through

a dictatorship or a fiat or the imposition of experts, but by the

people directly involved in their workplaces, through their companies

and through their democratically elected representatives called unions,

which they choose or do not choose to have.

We're really talking about 5 percent — one in 20. We're not

even really talking, if the minister would elaborate further on the

statistics, about one in 20, because a vast majority of the remaining 5

percent that he talked about are resolved after a very short work

stoppage by either a lockout or a strike.

Even of that 5 percent, Mr. Minister, I am sure you would

concede that after a very short withdrawal of labour or withdrawal of

operations by the company there is a resolution of that collective

bargaining situation. We're not talking 5 percent; we're probably

talking about I percent.

We're talking about an existing system that was reformed in

1973 when the labour relations act was brought in. It was brought in by

building up a consensus among business, labour, government and the

communities on what needed to be done to modernize labour-management

relations in British Columbia.

For that one out of a hundred disputes we have a whole system

of mediators, of special arbitrators. We have a number of very skilled,

capable people inside and outside government to deal with disputes. We

have the possibility of calling in chief justices, we have the

possibility of calling in eminent British Columbians, and we've done

that to resolve many difficult labour-management disputes.

We have that machinery, and if there is a public interest

affected, we have the obvious place to make the decision about the

public interest being affected by a labour dispute and that's this

Legislature, Mr. Minister, which can in public, being recorded in

Hansard and in full public view, make that decision — this Legislature,

all 69 of us, who were duly elected by the people of British Columbia.

For that once-in-a generation forest dispute like last fall's.... We

cover everything but the one-in-ten-thousand situation we faced last

fall, where we had an impasse — for a whole bunch of reasons, which I

won't go into here — as to why the forest companies and the unions were

dug in on certain key issues. This one-in-ten-thousand dispute was one

where the Legislature could have intervened in public — duly elected

people, all of us, with the recommendations of arbitrators, mediators,

your officials, with input from the companies or the trade unions

involved — to make a decision on behalf of the people of British

Columbia on the public interest. We could have done that.

On top of that, we had a unique situation last fall, a

one-in-a-hundred-thousand — at best — situation where a

once-in-a-generation labour-management dispute happened; and it

happened

during an election which the government chose to call. There was no

Legislature sitting for 28 days — and then the period after the

election. That is so unique a situation as to be worthy of the Guinness Book of World Records .

So we have, Mr. Minister, 95 percent of the labour-management

disputes being peacefully and voluntarily resolved through a contract.

We have the remaining 5 percent, the vast majority of which are subject

to a short disruption by either management withdrawing the company's

operation or labour withdrawing their services. We have a smaller

number that we already have the machinery of mediators, arbitrators,

eminent persons and this Legislature to deal with.

The reason we have this section, in the face of that

overwhelming evidence, is one man's pique, chagrin and bruised

feelings. That's the Premier. The Premier could not wave a magic wand

and solve this once-in-a-generation labour dispute, so he has decided

to bring down the hammer of Thor on labour-management relations in this

province. We have discussed that before, and that's what this

section

embodies: pique.

What was one man's pique has become another man's peril — Mr.

Peck, who was already chosen and therefore fatally wounded as an

independent person. There was no labour input to that choice; there was

no management input;

[ Page 1713 ]

there was no input from this side of

the Legislature. It was out of the blue — as a matter of fact, we're

not sure there was input from the Minister of Labour — from the troika

that drafted this legislation: the Premier and his two advisers; one

who chose his own job description here and helped draft this section.

[11:45]

So one man's pique has become another man's peril, and that

man should pull the plug on this section, because he's not going to

succeed. Mr. Peck must know that, as one of the most experienced labour

arbitrators in this country. He must know that he is doomed. He must

know that this is not going to work. He himself should send a signal to

you, to the government, that you should have withdrawn this bill. You

should have done it right the first time. You should have had what over

75 percent of the people of this province want: a cooling-off period,

and let's have another go at this. The Premier rejected both of those.

It is now for Mr. Peck to say it will not work.

I know it won't work. This section, which embodies so much of

what is wrong with this unjust, unworkable piece of legislation, is

fatally flawed. It is not going to work because it is not part of the

election mandate that this government received to govern. It was not

part of your election platform. It was not part of your asking for a

mandate from the people of British Columbia. What you asked for, as a

matter of fact, was exactly the opposite. You asked for a chance to

change things in British Columbia, to bring about consultation,

cooperation and a fresh start in British Columbia. Those promises have

been broken. You have fractured that trust with the people of British

Columbia because you broke your promises.

I think the minister must have had a very difficult time while

he was going throughout British Columbia picking up 700 briefs, talking

to labour and management and community groups, and making a genuine

effort to consult. He must have felt betrayed when all along, starting

last fall, there was a troika in the Premier's office putting together

Bill 19, putting together all that is so wrong and unjust and

unworkable and doomed to fail. He must have felt very betrayed.

This bill will not work, because it has not been put together

by consensus. There is no consensus, therefore there will be no

compliance. There will be non-compliance. You can see that coming

directly at you. This particular

section 62 is the ultimate betrayal of

bringing about fair and just and healthy labour-management relations in

this province. Hundreds of thousands of working men and women in this

province do not feel part of this legislation; feel that it's harmful

to what they believe in, and to themselves and their families. They are

going to feel that this is an unjust law that they cannot and will not

support; that it is doomed to failure. Hundreds of thousands of our

citizens feel that you have betrayed them. You have betrayed their

interests.

We will be, throughout the questions in debate on this bill,

asking many questions. Those questions will be extensive. So much of

this is so highly questionable that the questions will come. Many of

them are very difficult, if not impossible, to answer. They keep coming

back to the central, fatal flaw of this bill: it is imposed unwillingly

on the British Columbia working men and women who make this province

work. It was done by broken promises, by secret deals, by secret

putting together of the most venal, right-wing ideological input that

could be found by the Premier.

We will be talking about the problem the minister will face in

exercising his discretion, because he faces an impossible situation

too. He faces a situation where he has to make decisions that are an

affront to due process, an affront to the rule of law. They are an

affront to the predictability that we expect from our laws. They are an

affront to the essence of our laws, which is a sense of fairness and of

fair play. Those we'll be talking about, Mr. Chairman.

We say that it is indeed sad for British Columbia that we are

here debating Bill 19 today, because we offered another opportunity for

the Premier of this province yesterday to take this bad bill and the

bad faith and the bad results and consequences that will come from it

and give the people of British Columbia a cooling-off period. We

offered a number of specific suggestions which we think the people of

British Columbia, in the vast majority, would like to desperately see

happen now. I think it's sad we're here today having to debate this

bill. I'd like to use the word "mischievous," but it's not mischievous;

it's Machiavellian in the fundamental sense that it affronts and tears

asunder so much of our common weal. I would like to say in sadness, Mr.

Chairman, that we have to be here today debating this bill. when the

Premier had another opportunity to do the right thing, and he did the

wrong thing.

We hope that this bill will not eventually go forward, will

not be proclaimed, will not be put into effect and will not lead to the

tragic consequences that we see coming, which we have been telling you

about very clearly. We hope there is still a chance for British

Columbia to heal the wounds, to indeed have a fresh start, to really

have confrontation and cooperation, and specifically to have the

healthy labour-management relations we all want.

MR. ROSE: On a point of order. Mr.

Chairman, there was a little arrangement between the Minister of

Education (Hon. Mr. Brummet), myself and the government House Leader

that the minister would have an opportunity to make his statement

before 12. We have no objection if he wishes to leave it until

statements which usually follow or precede question period, but I'd

like to honour our deal, because we made a commitment to him.

HON. MR. STRACHAN: Mr. Chairman, we're

aware of that. I thought the Minister of Labour might have a further

response to the Leader of the Opposition — a brief one — but he

obviously doesn't. so I'll move the committee rise, report progress,

and ask leave to sit again.

The House resumed, Mr. Speaker in the chair.

The committee, having reported progress, was granted leave to

sit again.

Ministerial Statement

PROVINCIAL SCHOOL EXAMINATIONS

HON. MR. BRUMMET: Mr. Speaker, I rise to

make a ministerial statement, and I thank the Leader of the Opposition

for allowing it before noon, because there is an urgency in that

provincial examinations started this morning in the school system.

In response to media stories and announcements that the

provincial examinations are threatened by the work-to-rule

[ Page 1714 ]

activities of teachers and hence

should be cancelled, since there will be inadequate teacher

participation in the marking process, I am advising everyone that the

provincial examination

schedule remains intact, and that exam papers

have been sent out to schools. The ministry has signed contracts,

through the standard process, with a sufficient number of qualified

practising B.C. teachers to handle all marking of examinations.

Since students are beginning their examinations today, recent

statements and their timing by the B.C. Teachers' Federation must be

considered irresponsible, and could be very unsettling to students at a

time when they are attempting to devote all their energies to their

examinations. There are enough responsible and conscientious teachers

in British Columbia, as most of them are, that we can rest assured our

pupils will not be deprived of their right to write examinations and to

have them marked by the usual process. It has to be the height of

irresponsibility for the BCTF president to raise such an unwarranted

concern at this critical time through the media — and, I might add,

without prior contact with me or the ministry. Certainly a professional

teacher, above all people, would have to know that some students don't

need much of an excuse to try to avoid exams.

This morning in a couple of schools, I guess, there was some

delay in starting exams because people were wondering, in view of that

announcement, whether or not they should be writing the exams. So I

have today sent a message to each school board asking them to assure

teachers, parents and students that the examination process is in place

and that marking will proceed as usual. Students are entitled to this,

and the people of British Columbia have every right to expect that the

students will be properly served by our education system.

MR. ROSE: Mr. Speaker, it has fallen to me,

in the absence of our education critic, to respond to the minister. I

thank him for the notice, and I thank him for delaying it in the hopes

that our critic would return to the House.

I think the term "irresponsibility" can be thrown around all

over the place. We can be highly partisan about that or not. I think it

is another example of the erosion of the relationship between the

government and 26,000 of its employees that this sort of thing would

even be contemplated.

The minister has assured us that there are enough B.C.

teachers, that he is, not importing them from the States or somewhere

else, that people who are not familiar with our system.... There is a

lot of confusion around it, and if there is an attempt to clarify the

position of each, I think that's always a good thing. I think the main

concern should be the students and their welfare. That is the number

one concern. Like everybody else, I think some of the confusion stems

from the fact that this announcement was made on the day that exams

started, and there's more confusion coming from the government side of

the House on the basis of whether or not examinations are crucial to a

student's future.

Mr. Speaker, we've only had them since 1984. They were

abolished for nearly ten years, and people graduated and went on on the

basis of teacher marks. The minister is a former teacher. He knows that

the research indicates that evaluation by teachers is actually superior

to that of external exams. He knows full well that only 50 percent of

the kids' marks ride on this. But it is the policy of the government to

have those exams. I believe it's supported by the public. I don't think

we need kid ourselves about the pedagogical and research arguments. It

is supported by the public. Whether some people like it or not, that is

the case. The point needs to be made here that the minister controls

the graduation requirements. If there are not enough qualified markers,

teacher evaluations would suffice, as they did for ten years before

1984, when they were brought back.

The other point I would like to make is that this isn't a

withdrawal of services at all. It's not part of the decline in

participation in extra curricular activity. It is an individual

contract outside the school year with individual teachers, and I

presume those people will honour those contracts. The minister has

assured us that they will.

Interjection.

MR. ROSE: I wonder if the member from

wherever he is with the loud voice would care to make his own

statement. I'd be very pleased to listen to it.

Let me conclude. Students need fair examinations. There's no

question about that. If there's any question about the exam or the

marking being fair, then I think we could get along with teacher

evaluations. Let's just save ourselves $2 million, which we could

easily do, if there's any question at all about the adequacy of the

marking.

Finally, this demonstrates, because of the confusion, because

of the turmoil out there that this has caused, the effectiveness of

Bill 20.

Hon. Mr. Strachan moved adjournment of the House.

Motion approved.

The House adjourned at 12:01 p.m.

Appendix

AMENDMENTS TO BILLS

19 The Hon. L. Hanson

to move, in Committee of the Whole on Bill (No. 19) intituled Industrial

Relations Reform Act, 1987 to amend as follows:

SECTION 49, by deleting

section 49.

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