Manitoba Committee Hansard — 28 June 1984 (Intergovernmental Affairs Committee, Sitting 3, 32nd Legislature, 3rd Session)

32-3-ir3

Manitoba — Debates (Hansard)

ISSN 0713-9608 Third Session - Thirty-Second Legislature of the Legislative Assembly of Manitoba STA NDING COMMITTEE on INDUSTRIAL RELATIONS 33 Elizabeth 11 Chairman Ms. Myrna Phi/lips Constituency of Wo/se/ey VOL. XXXII No. 3 - 8:00 p.m., THURSDAY, 28 JUNE, 1984. Printed by the Office of the Queens Printer. Province of Manitoba

MANITOBA lEGISlATIVE ASSEMBLY Thirty-Second legislature Members, Constituencies and Political Affiliation Name ADAM, Hon. A.R. (Pete) ANSTETT, Hon. Andy ASHTON, Steve BANMAN, Robert (Bob) SLAKE, David R. {Dave) BROWN, Arnold BUCKLASCHUK, Hon. John M. CARROLL, Q.C., Henry N. CORRIN, Q.C., Brian COWAN, Hon. Jay DESJARDINS, Hon. Laurent DODICK, Doreen DOERN, Russell DOLIN, Hon. Mary Beth DOWNEY, James E. DRIEDGEH, Albert ENNS, Harry EVANS, Hon. Leonard S. EYLER, Phil FILMON, Gary FOX, Peter GOURLAY, D.M. (Doug) GRAHAM, Harry HAMMOND, Gerrie HARAPIAK, Harry M. HARPER, Elijah HEMPHILL, Hon.

Maureen HYDE, Lloyd JOHNSTON, J. Frank KOSTYRA, Hon. Eugene KOVNATS, Abe LECUYER, Hon. Gerard LYON, Q.C., Hon. Sterling MACKLING, Q.C., Hon. AI MALINOWSKI, Donald M. MANNESS, Clayton McKENZIE, J. Wally MERCIER, Q.C., G.W.J. (Gerry) NORDMAN, Rurik (Ric) OLESON, Charlotte ORCHARD, Donald PAWLEY, Q.C., Hon. Howard R. PARASIUK, Hon. Wilson PENNER, Q.C., Hon. Roland PHILLIPS, Myrna A. PLOHMAN, Hon. John RANSOM, A. Brian SANTOS, Conrad SCHROEDER, Hon. Vie SCOTT, Don SHERMAN, L.R. (Bud) SMITH, Hon. Muriel STEEN, Warren STORIE, Hon. Jerry T. URUSKI, Hon. Bill USKIW, Hon. Samuel WALDING, Hon. D. James Constituency Ste.

Rose Springf'eld Thompson La Verendrye Minnedosa Rhineland Gimli Brandon West Ellice Churchill St. Boniface Riel Elm wood Kildonan Arthur Emerson Lakeside Brandon East River East Tuxedo Concordia Swan River Virden Kirkfield Park The Pas Rupertsland Logan Portage la Prairie Sturgeon Creek Seven Oaks Niakwa Radisson Charleswood St. James St. Johns Morris Roblin-Russell St. Norbert Assiniboia Gladstone Pembina Selkirk Transcona Fort Rouge Wolseley Dauphin Turtle Mountain Burrows Rossmere lnkster Fort Garry Osborne River Heights Flin Flon lnterlake Lac du Bonnet St.

Vital Party NDP NDP NDP PC PC PC NDP INO NDP NDP NDP NDP IND NDP PC PC PC NDP NDP PC NDP PC PC PC NDP NDP NDP PC PC NDP PC NDP PC NDP NDP PC PC PC PC PC PC NDP NDP NDP NDP NDP PC NDP NDP NDP PC NDP PC NDP NDP NDP NDP

LEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMMITTEE ON INDUSTRI AL RELATIONS Thursday, 28 June, 1984 TIME - 8:00 p.m. LOCATION - Wi nnipeg, Manitoba CHAIRMAN - Ma. M. Phillipa (Wolaeley) ATTENDANCE - QUORUM - 6 Members of the Committee present: Hon. Messrs. Cowan and Kostyra, Hon. Ms. Dolin, Hon. Mrs. Hemphill Messrs. Ashton, Banman, Enns, Johnsto n, Mercier, Harapiak and Ms. Phillips APPEARING: Mr. Eugene Szach, Legi slative Draftsman WITNESSES: Repr esentation was made with respect to Bill 22 as follows: Mr. Dick Martin, Canadian Labour Congress. MATTERS UNDER DISCUSSION: Bill 22 -

An Act to amend The Labou r Relations Act and Various Other Acts of the Legislature, passed with certain amendments Bill 35 -

An Act to amend The Construction Industry Wages Act, passed without amendment BILL 22- THE LABOUR RELATIONS ACT MADAM CHAIRMAN: I call the meeting to order. I presume the Minister is trying to get through the crowd outside. Do you want to wait until the Minister arrives? We have a quorum. All right, we'll continue with the delegations, Mr. Dick Martin, Canadian Labour Congress. I should mention before you start, Mr. Martin, tha t we have a one-hour limit in terms of presentations and questions. MR. D. MARTIN: Thank you. Madam Chairperson, I'm here in the capacity of representing the Canadian Labour Congre ss.

The Canadian Labour Congress, for those members of the committee who migh t wond er, is composed of approximately 2 million members, representing 2 million members across Canada. lt's a central labour body for the Canadian labour movement. Since the

preamble to The Labour Relations Act encourages free collective bargaining, we are pleased to see that the majority of these amendments encourage free collective bargaining and submit disputes to the Labour Board, a tripartite body, which is composed of business representatives and labour representatives and a neutral person appointed by the government. 63 We think it's proper and fitting that labour and management disputes are as removed from the courts as possible and submitted to what , in fact, is a specialist body. lt has worked relatively well in other quasi-judicial bodies, such as the Workers' Compensation Board, and we think that it will serve the Labour Board quite correct ly. lt is also important to note that there has been a gene ral agreement within the labour manage ment community that the Labour Board, in fact, should be made more professional with better resources including a comprehensive library of arbitration awards and precedence-setting pieces established within the Labour Board.

We regret that the government has not seen fit to proceed with final offer selection, which in our view was a major innovative answer that would compliment the process of free collective bargaining and there was no doubt that labour had some concerns with the process.

However, in the overall, it appeared to us that it would become a valuable tool to both management and labour by virtue of the fact that it was a tool of last resource in which either party would not want to use, except that they could use it as a last resort and obtain an agreement that would submit the outstanding problems to a solicitor or a selector. We encourage the government to further explore this aspect of new labour tools that will, in our estimation, bring about more industrial peace.

I just want to zero in on that final offer selection by the very fact that we think, contra ry to what ! heard in some of the presentations this morning on first cont ract legisla tion, that the beauty in pieces of legislation such as that, that it in fact does compel the parties to sit down and hammer out a collective agreement. lt would be pleasing for labour to see, over a period of time, that first contract legislation is less and less used which means that the parties are coming to a n agreement without third party intervention.

On the final offer sele c tion , the way that we understood it in being proposed, was that in fact you were not having your issues submitted to arbitration, but you are submitting your issues to a selector that would choose one package or the other, which is not very much liked by either party, which once again compels them to come to terms with each other without that intervention. We also regret that the government did not proceed with plant closure legislation.

We clearly see about us large company after large company and small company after small company introducing technological change and rationalizing their operations, resulting in large massive layoffs that result in a terrible burden imposed upon the workers and their families and upon the state. Surely, any responsible government cannot ignore the plight of those workers, their families and society. Surely, there is an obligation upon employers to justify their actions to the workers and to the people in the province and to society in general. People should not

Thursday, 28 June, 1984 and cannot be thrown out on the trash heap just to increase corporate profits and reverse the burden, placing it on the state and on the individual workers and their families. Plant closure legislation is an absolute must and we urge the government to proceed with all haste. I have also obs erved that some busine ss organizations continue to try to represent themselves as representing the rights of workers. I wish to make it patently clear that unions, after a majority vote - a majority of the workers voting for them - are the representatives of the workers and not business.

Union officials and leaders are elected and chosen by the workers and I have not seen any em ployers' organizations receiving a mandate from any of the workers to represent them. If employees are ever to have the true democratic right to organize freely into unions without interference of petitions and other countless court challenges, then we welcome the certification amendments that will, in fact, hopefully gu arantee the true wish es of the employees.

We have ;1eard repeated many times, "Why is there a need for changes for labour legislation when the labour management community is so harmonious in Manitoba?" I wish to point out that the amount of strikes and lockouts in a given period of time is not the only guideline to judge an atmosphere. How many court challenges have taken place in a given period of time? How many unfair labour practice charges have been laid in a given period of time? How many organizing attempts have been thwarted? How long are arbitration awards awaiting decisions or, in fact, are waiting to just get set up?

We repeat that justice delayed is justice denied. How expensive are all those proceedings to the union, to the workers and, in fact, to the employers?

There was a lot of concern I heard echoed about small employers, and I would think that they would welcome the expedited arbitration proceedings that have been proposed in the amendments to The Labour Relations Act Our general view is that not all is well, and considerable changes were needed to modernize The Labour Relations Act Also, it is interesting to note in a memo put out by the Winnipeg Chamber of Commerce on May 17th, that they stated, "If enacted, the amendments to The Labour Relations Act would substantially change the existing balance of power away from employers in favour of unions." Rather interesting I find, this internal document of the Chamber; rather interesting that they admit that the existing Labour Relations Act is substantially in favour of employers.

That in itself should demonstrate why changes are needed. While we don't agree that this legislation is in favour of unions, it will at least, and it appears to, create a more balanced climate. - (Interjection) - Madam Chairperson, the document is right here and I would be pleased to show it to Mr. Enns later. it's by the Chamber of Commerce's omission, not mine.

In a letter sent to me in my past position as president of the Federation of Labour where the Manitoba Chamber of Commerce asked the federation to join th em, they said, "The proposed legis lation will dramatically interfere with the collective bargaining process." I haven't seen any evidence of this at all in the proposed legislation, and I might add, I am not 64 joining the Chamber of Commerce either. They also said that the level of produc tivity and reduced competitiveness, once again where is the proof of that?

Productivity competitiveness will only come about through free, fair and equally balanced colle ctive bargaining and not through employers smashing unions and bargaining rights. I have heard this morning about a number of poiicy papers issued about co-operation, about signed letters. Let me say that in my past position there was much effort by the Federation of Labour to co-operate with employers' groups to solve disputes and in fact in some issues, and it was stated this morning, there was some resolve throug h the Labour Management Review Committee.

We found that we were generally frustrated, th ough , to have em ployers convince their fellow employers to come to terms with the respective unions. We found that yes, indeed, the present Labour Relations Act favoured emp loyers and frustrated colle ctive bargaining.

We as a labour movement have encou raged , supported and urged the government to streamline the Labour Management Review Comm ittee and we applaud the government efforts to streamline this committee. lt has in fact proved fruitful and I think it will be more fruitful in the future, considering the amount of sub-comm ittees that are discussing various things like technological change, disclosure, arbitration training and the committee has been charged with coming to agreement over arbitrators.

I also might mention that organized labour are also employers and I submit that we have no fear of the proposed amendments. We, in fact, deal with unions with our own organizations and collectively bargain, and we welcome most of these amendments. Now we have heard repeatedly that labour leaders don't really represent the membership wishes. I have heard it through my whole career. We have never seen any evidence of that, but we have said, yes, indeed, that the leadership in a union should have to represent the workers and now we hear that we should not have to represent the membership wishes.

I am surprised that the Fashion Institute joined in the howling about union bosses and big unions. Now it says that a union official must do his or her job and process grievances.

Well, we totally agree that the union leader should represent the wishes of the workers and give representation, but the Fashion Institute, they want a union boss to act in the same way as corporate bosses, I guess; so we reject that and believe that the proposed legislation will serve the membership well and give some member ship righ ts, and that the membership should be entitled to fair representation with the right of appeal to their peers.

Contrary to the employers' submissions, I have heard we believe that the membership has a righ t to democratic unions, democratic elections and support any strength ening of such institutions. In general, we support these positive amendments. For example, a small emplo yer should welcome the expedited arbitration process. lt will save them time, money and expertise. We certainly welcome speeding up a process that has in some cases become cumbersome, expensive and very length y. There was continuous talk about big unions. Well, a few years ago an assessment was made as to the size

Thursday, 28 June, 1984 of labour organizations compared to corporations. lt was found, I recall, that a multinational corporation that operates here in the Province of Manitoba - lnco - had more combined assets than all combined assets of all unions in North America with the exception - and I'm not going to throw in the Teamsters - but all other unions. Now you tell me who is the big multinational tough guy and who is not? lt is a joke and it is absurd that there are big unions as compa red to big corporations and to the corporate side.

I haven't heard any of the business organizations complain about big business as to how it affects small business; how, in fact, they can literally hold a province to ransom, never mind the power they have over workers. Unions are small compared to the corporate sector. In summation, I would hope that all members of the House support the gen eral thrust of the bill while pursuing some justice in the workplace on plant closure legislation.

You should also pursue the whole concept of FOS and other very important matters that affect working men and women in this province such as improving the minimum wage formula, introducing equal pay for work of equal value that will bring economic and social justice to thousands of women, in particular, who continue to be at the bottom of the economic and, in turn, social scale. Thank you very much. I am ready to answer questions. MADAM CHAIRMAN: Any questions for Mr. Martin? Mr. Enns. MR. H. ENNS: Madam Chair, through you to Mr.

Martin; you mentioned earlier on in your comments that it's your opinion that this particular piece of legislation would remove considerably some of the activity that now ends up at the courts in the process of collective bargaining and you welcome that. Yet, Mr.

Martin, we have had a number of lawyers who, I understand, deal daily in the labour management field who have, among other things, indicated to them that they view this piece of legislation as enhancing their own businesses as labour lawyers and have suggested to the committee that quite the opposite will be the result of the passage of this legislation, that there will be considerably more litigation because of the numerous instances where terminology is vague, that it's the kind of language that leads to court challenges.

Now I am not a lawyer; I acknowledge my limited kn owle dge in labour negotiations and labour management matters, but when a lawyer who earns his living, or a good part of his living, and not one, but a number of them come up to this committee and tell me that he welcomes this legislation becuase it's going to line his pockets, I would ask you, how do you rationalize those statements with the statements that you made when you started your brief? MR. D. MARTIN: I have no doubt that initially there is going to be challenges within the courts after every piece of new legislation.

We saw it in first cont ract legislation where it was challenge d before the courts. After the courts have determined what the legislations says and, hopefully, that doesn't happen too often, the litigation starts to decrease. 65 Those lawyers, I assume, if they thought the legislation was so bad, they would welcome it in terms of litigation. I understand that most of them are opposed to the proposed amendments. I find that hard to rationalize, that they are opposed to it, and yet they welcome it at the same time because it's going to put a lot of money into their different law corporations.

Initially, it's going to probably be challe nged, but I assume that later on that it won't be once it settles down. We have seen it, repeated legislation that's been introduced, where that type of challenge has taken place and then it settles down. I don't think really that most, at least small employers, really want to go to court and spend thousands of dollars in the courts on their matter. Certainly, speaking for labour, we don't want to go in the courts on it and most employers came to agreement with an arbitration process within their collective agreements because they didn't want to go to the courts.

In fact, in some collective agreements in this province now, there is expedited arbitration already in continent-wide agreements that proceed with expedited arbitration to keep it out of the tripartite arbitration and to bring it to one arbitrator that companies have agreed to. lt's worked very well and the companies will tell you that it's worked very well. MR. H. ENNS: Mr.

Martin, I can appreciate that from the labour organizers' point of view, one would want to and I accept that, I think, from a general point of view, one would want to arrive at settlements without having to resort to the courts and without having to go through the process of expensive and lengthy legal wrangles. it's our responsibility, Mr. Martin, to try to judge comments from persons like yourself who appear before this committee as best we can. Would it be unfair, Mr.

Martin, to suggest that seeing as how you represent an organization or organizations that very often have to foot the bills to these lawyers, that you would want to or read into a piece of legislation in the hope that would minimize that? That's the advice we are getting from you but, on the other hand, should the committee not place greater credence on the very persons who are currently earning the legal fees and who are telling this committee that those legal fees will be higher, bigger and more often? MR. D.

MARTIN: I can tell you that on the general advice that we retained from legal counsel, they are not of the opinion, that same opinion. So if I'm going to believe anyone when I go and seek legal counsel, I am obviously going to listen to the ones that we retained, and they are not necessarily of that opinion at all. I just want to proceed with Mr. Enns' question in terms of saying, for example, on the expedited arbitration process, that excludes, in many cases, lawyers from being involved.

What in fact happens is not even the personnel manager is going to be involved. lt will be the four persons and the steward that argue it out before an arbitrator, and that arbitration is, in fact, not a precedent-setting arbitration but at that point in time determines who is right and who is wrong and sets it straight. I don't think anyone is doing any favours by trying to continue and push tripa rtite or three-person

Thursday, 28 June, 1$1:14 arbitration boards that, as I have said and others have said, continue on and on and on, that don't bring any decision down. We'd like to have, and we had sought justice and dignity clauses but they're in collective agreements once more. it's not a new thing; it's something that has been proven and tried and we think it's good to introduce it into the legislation that will serve that labour relations community. After the initial flurry of activity, I don't think that lawyers' pockets are going to get real green from doing it. MR. H. ENNS: One final question to Mr. Martin. Mr.

Martin, I certainly wish you well in your new responsibilities, and I appreciate how close you are and have been to governments, particularly this government. Could I perhaps ask you who the new Minister of Labour is going to be in the Turner Cabinet? MR. D. MARTIN: I haven't got that muph influence there, Mr. Enns. I don't think Mr. Turner wants to talk to me. MADAM CHAIRMAN: Mr. Mercier. MR. G. MERCIER: Mr. Martin, let me join my colleague in congratulating you on assuming your new position. Could you tell the committee whether the Canadian Labour Congress is committed to supporting the New Democratic Party?

MR. D. MARTIN: If it's committed to supporting the New Democratic Party, yes. MR. G. MERCIER: Mr. Martin, whilst you were president of the Manitoba Federation of Labour during 1981, could you describe the support you gave to the New Democratic Party during that elect ion? MR. D. MARTIN: Madam Chairperson, I really fail to understand in terms of how this deals with the labour relations amendments that I came here to speak upon. If we want to talk about politics and the political process, I am certainly prepared to do that, but I don't think I would want to do it within this forum. MADAM CHAIRMAN: Mr. Enns. MR. H.

ENNS: Madam Chairman, on a point of order. I want to make it abundantly clear that it's freq�Jently the tradition of this committee to ask of people who are appearing before us their bac kground, their particular credentials that make them appear before us. We have people representing different associations, giving us their backg rounds all the time, Madam Chairman. I think the question is perfectly in order. After all, among the responsibilities that we have as committee members is to try to accept the advice that is being offered and given, and knowing exactly where it's coming from.

If a representative of the Chamber of Commerce appears before this comm ittee, he states so. MADAM CHAIRMAN: Mr. Kostyra. HON. E. KOSTYRA: Madam Chairperson, I haven't had as much experience in legislative committees as 66 Mr. Enns, the Opposition House Leader, has in terms of his many years here, but it seems to me that the process for questioning of delegations that appear before legislative committees js to ask questions of clarification regarding issues that are raised in their brief.

I don't recall this issue being raised in the brief and, quite frankly, I don't recall in the time thatl have sat in committees where that question has been raised. If tha t is going to be a new standard, then that's one, I guess, ttiat we will have to accept as being established for people coming before this committee, or organizations that come before this committee. MADAM CHAIRMAN: Mr. Cowan. HON. J. COWAN: Thank you, Madam Chairperson.

This committee operates under some well-established rules and practices and, certainly, the practice is that we do confine ourselves as much as possible to the brief at hand. lt is also generally considered to be an acceptable practice that if a person appearing before the committee does not wish to answer a particular question, they do not have to answer a particular question, and that has been done on numerous occasions. Again, like my colleag!le, Mr.

Kostyra, I have not had the many years of experience that some of the members on the other side have had in respect to committee hearings, but I cannot recall Chambers of Commerce or representatives of employer organizations, many of whom have appeared before this committee recently, and many who have appeared before this committee in the six or seven years that I have been sitting in these types of committees, being asked if they support the Conservative Party and what level of support they provided to the Conservative Party, although it's well known that such support did exist.

That was done, I think, out of courtesy to those individuals and trYing to confine ourselves to the points at hand. I know the Member for Sturgeon Creek, Mr. Johnston, is shor t on cou rtesy most of the time. Ho wever, notwithstanding that fact, and he's long on chirping from his seat - it has been a practice and I think the record would should it to be so. MADAM CHAIRMAN: Mr. Mercier. MR. G. MERCIER: Madam Chairperson, there have been suggestions that this legislation is a payoff to the Manitoba Federation of Labour and I am just trYing to determine the accuracy of that comment. MADAM CHAIRMAN: Order please.

No. 1, in my opinion, the question is out of order; and, No. 2, even if it was in order, the delegate has the option as to whether he would like to answer it or not. Mr. Banman. MR. R. BANMAN: Madam Chairman, yesterday, during this commi ttee sitting, we had an individual who presented a brief before this committee and said that many clauses in this bill were a direct payoff to unions because of problems they had encountered in different situations in organizing. All that the Member for St. Norbert is trying to establish is what kind of link this particular . . .

Thursday, 28 June, 1984 MADAM CHAIRMAN: Mr. Banman, I ruled the question out of order. Are you challe nging my ruling? MR. R. BANMAN: Yes, Madam Cha irman, I am challenging that ruling. MADAM CHAIRMAN: Mr. Enns. MR. H. ENNS: If we can go back a step or two, you suggeste d - I thought correctly - that no witness is imposed to answer any questions he doesn't choose to answer and I agree with that. That is also a long tradition of the people appearing before this committee. I do respectfu lly suggest to you, Madam, to reconsider the question of whether or not the question was out of order.

The question was placed because others . . . MADAM CHAIRMAN: Mr. Enns, order please. I ruled the que stion out of ord er. That ruling has been challenged. I will now put the question, shall the Chair be sustained? Those in favour, say aye, please. Those opposed. In my opinion, the ayes have it. Mr. Mercier, did you have another question? MR. G. MERCIER: Mr. Martin, particularly now with your position with a national association, could you indicate where Manitoba stands in terms of the number of days lost with strikes? Does Manitoba not lead the coun try in the least number of days lost during work stoppages? MR.

D. MARTIN: I believe that the last statistics demonstrated that it had amongst the least lowest days lost due to strikes or lockouts. MR. G. MERCIER: I have no further questions. MADAM CHAIRMAN: Are there any other questions from Mr. Martin? With that then, Mr. Martin, thank you very much for appearing tonight. MR. D. MARTIN: Thank you. Does anybody wish this Chamber of Commerce document? MADAM CHAIRMAN: Ms. Judy Lingo; Mr. Michael Hill; Mr. Don Henderson, Manitoba Chamber of Commerce. Is there anyone else who would like to make a presentation to the committee?

That concludes the list of the persons wishing to make presentations on this bill. We'll move to clause by-clause. Mr. Enns. MR. H. ENNS: Might it be advisable to call for any representations on Bill 35 in order to deal with all the representations prior to dealing clause-by-clause? I don't know if there are any. MADAM CHAIRMAN: Yes, certainly. There are none registered, but if there are any persons present who would like to make a presentation on Bill 35, we could certainly hear them now. 67 Bill 22, how does the committee wish to proceed? Clause-by-clause? MR. H. ENNS: Page-by-page. MADAM ...

CHAIRMAN: Page-by-page? A MEMBER: Page-by-page, with the appropriate amendments made to the bill. MADAM CHAIRMAN: Page-by-page? MR. R. BANMAN: No, clause-by-clause. MADAM CHAIRMAN: Clause-by-c lause, Mr. Banman? A MEMBER: Why don't you do page-by-page with the appropriate amendments? HON. M.B. DOLIN: Some pages don't have a number and some do. MR. R. BANMAN: Maybe we could do it page-by-page, Madam Chairman, and then we could maybe indicate each

section or each page where . . . MADAM CHAIRMAN: May I assist you? We can do page-by-page. If there's any particular page where you want to go clause-by-clause, we can switch at that time. MR. R. BANMAN: I agree. MADAM CHAIRMAN: Very good. Let's proceed. Page 1- pass? Mr. Kostyra. HON. E. KOSTYRA: I would move THAT the proposed clause (1)(

a) of The Labour Relations Act as set out in

section 1 of Bill 22 be amended by adding thereto, immediately after the word "or" in the 2nd last line thereof, the word "alleged". MADAM CHAIRMAN: Amendment- pass? Ms. Dolin. HON. M.B. DOLIN: I am afraid, Madam Chairperson, that the answer won't be heard so I'll just wait until everybody has their papers. I realize it's a little confusing at this point. MR. R.

BANMAN: Madam Chairman, one of the things which has troubled members of the opposition and people that are dealing with this piece of legislation is, the time in which we're asked to deal with it has been very limited - the actual bill- and now we're faced with some 11 pages of amendments after we paid people $600 a day to draft this legislation. I think it just highlights the problems which the committee, as well as the public at large, faces.

We're asked to deal with a bill here which will have some pretty sweeping change s in labour relations in the province and now in the eleventh - not even the eleventh hour, it's almost the midnight hour - we're going to be dealing with 11 pages of amendments which

Thursday, 28 June, 1984 the Minister will appreciate, and many areas are very technical and which really haven't given us a good chance to look at them. I guess it really reinforces and makes the case for the opposition even stronger in asking the government to hold over this piece of legislation till everybody's had a chance to iron out the bugs. We've got 11 pages worth of bugs here right now and I just say to the Minister, I believe that she is making a really serious error in dealing with a major piece of legislation like this and hoping to just put it through without having all the proper input in it.

I say to the Minister, 11 pages of amendments at this late hour is just an indication of how quickly this bill was drafted and how poorly the whole situation has been handled. lt highlights the problem that this bill will have, I predi ct, when we're dealing with the application once it hits the workplace. HON. M.B. DOLIN: I was about to explain the motion on the floor, which I had been asked to do. I have to agree with Mr. Banman to some extent and explain that whenever there is a long amending bill, it becomes very complex.

When you write a new act it is perhaps easier to rewrite all the clauses, but when one must refer not only to what is outside the windows . MADMAN CHAIRMAN: Order please, order. HON. M.B. DOLIN: . . . one must contend with a complex bill on the table, noise outside the windows, a hot night and so on, it does get tiresome and I am very sympathetic and empathetic about those situations. However, we do have an amending bill and we must deal with those amendments.

I can assure you, although you may wish from time to time to certainly raise questions or perhaps even debate a point with us, that the amendments we have brought before you are te chni cal amendment s, corrections to the typing, the wording in the various · sections. In some cases a

section has been replaced in its entirety because it was easier to do that than to try to write out the various changes in wording; that would have taken even more space. As we go through I'll be happy to explain the changes. The one that you see before you right now is a case where the two clauses should be consistent. The word "alleged" was inadvertently left out of clause (a)(2); it was in clause (a)(1), so it is being inserted into clause (a)(2) to make it consistent. That of course is the way the clause should read. MADAM CHAIRMAN: The motion to amend-pa ss; Page 1 as amended- pass; Page 2 - Mr. Mercier. MR.

G. MERCIER: Madam Chairperson, could the Minister explain why, in the definition of business, it is so all- encompa ssing as to include any part of a business? HON. M.B. DOLIN: The definition comes from The Manitoba Evidence Act. Is that explanation enough, Mr. Mercier? The definition comes from The Evidence Act in Manitoba. lt makes it consistent with The Evidence Act which is appropriate. MR. G. MERCIER: But this is The Labour Relations Act. Why is it necessary to ensure that the definition of business be so all-encompassing? 68 HON. M.B.

DOLIN: I think I gave you the reason. lt is to make it consistent with The Evidence Act so that the description of a business is consistent. MR. G. MERCIER: Well, Madam Chairperson, if the Minister doesn't have the answer or doesn't want to indicate what the real answer is, I have to accept that, but to say that it's consistent with The Evidence Act is not an answer. HON. M.B. DOLIN: Where there is a merger or sale, that is the inst ance in whic h this is used and it sometimes involves parts of a business. MR. G. MERCIER: Madam Chairperson, now the Minister is getting to the meat of the question.

The Minister wants to make sure that any business or any part of a business is included within the

section that relates to union agreements and the sale of a business. Is that correct? HON. M.B. DOLIN: So that it is clear how a merger is handled and when there are various unions involved or different locals of the union and they have to be melded or meshed together in some way, yes. MR. G. MERCIER: The intent is to make sure that on the sale of any business or any part of any business that the union agreement will survive that sale and be binding. Is that correct? HON. M.B. DOLIN: Yes, as staff has said, it meets the statu tory provisions for that. What we are talking about here and what we will be talking about later that blends with this - and I can't very well go to that

section now because we're not talking about it - but what we are talking about is certification standing. The bargaining unit exists and continues to exist, but the contract which is also carried forward may still remain in existence, or may in fact be renegotiated, but that comes under another

section and we'll deal with it when we get there. MADAM CHAIRMAN: Page 2-pa ss; Page 3 - Mr. Cow an. HON. J. COWAN: Madam Chairperson, I move THAT the proposed clause 1 subsection (t. 1) of The Labour Relations Act as set out in

section 8 of Bill 22 be amended by striking out the words "one of whose primary objects" in the 1st line of subclause (ii) thereof and substituting therefore the words "whose primary object". MADAM CHAIRMAN: Mr. Mercier. MR. G. MERCIER: Madam Chairperson, just to raise a procedural point. I appreciate this is an amendment to the

section at the bottom of the page, but if we wish to deal with a clause further on, we can deal with it I guess, but will we revert back later? HON. J. COWAN: I apologize. MADAM CHAIRMAN: I would prefer to pass Page 3 and have the motion on Page 4. Mr. Banman, did you wish to speak on Page 3?

Thursday, 28 June, 1984 Mr. Banman. MR. R. BANMAN: Yes, I wonder if the Minister could explain, on clause 1(k), why this

section dealing with a dependent contractor? HON. M.B. DOLIN: What was the question? Did you finish your question, Mr. Banman? MR. R. BANMAN: Yes, Madam Chairman, the change s in the act strike out the words "a dependent contractor" and it is my understanding that the board can now designate anyone that it wishes as an employee. Why is this necessary at this time? HON. M.B. DOLIN: The purpose of changing that is so that the board is able to recognize as employees, those persons whose contracts, in the opinion of the board, could appropriately be the subject of collective bargaining. MR. R.

BANMAN: The Minister is aware that there are certain functions or certain jobs being carried on by the majority of businesses, many of which are being contracted out. Is the Minister now saying that if someone is a contra ctor, the board can now go ahead and say, that's wrong, that is not allowed? And that particular individual or group of individuals is designated as an employee, I guess, and therefore would come under the jurisdiction of the bargaining unit. HON. M.B. DOLIN: Most of the con tract ing-out situations are to independent contra ctors.

What this will do is allow the board to include some people who can be defined by the board as employees. lt gives some discretion to the board in this area. MR. R. BANMAN: I have to say to the Minister that that makes it very difficult for an employer who arrives at an agreement with, let's say, a truck driver who is doing work on a piecemeal or a mileage basis and then six months later, for some reason or other, either the union or somebody complains and now all of a sudden the board can designate anybody that they wish as an employee.

I would say to the Minister that I can see some problems developing with this particular section. MR. G. MERCIER: Madam Chairperson, there is now a statutory definition of a dependent contractor which in the main appears to refer to the operators of vehicles hauling goods on contract. Is it the intention of the Minister through this amendment to have more people· named by the board, or declared by the board, to be employees for the purposes of organization of unions? HON. M.B. DOLIN: My understanding, Mr. Mercier, is that in the act as it read before, it's very limited.

The definition is extrem ely limited and there have been developed various other occupations that would be parallel, but because of the limitations of the act, the board couldn't deal with them. The act now enables the board to deal with those.

Some occupations that - I can think of one instance - that didn't exist certainly in any way as they do now - the Courier Services that we all use is an example of one occupation that certainly 69 was not in existence in the way it is now, a number of years ago, 12, 14 years ago. lt was a very limiting provision in the old act and it's been expanded to give some discretion so that the board can determine whether the person is an employee or a different contr actor. MR. G.

MERCIER: Madam Chairperson, is it the intent of the Minister, using her example of people who operate Courier Services, that more of these people will be declared as employees by the board? HON. M.B. DOLIN: Is it the intention that they be declared that? MR. G. MERCIER: Why are you passing this, is it so that more of these people be declared employees of the board, so that they can be organized? HON. M.B.

DOLIN: If I may quote from the current act, "the person is a person employed to do work and includes a dependent contractor but does not include a person who is employed in a capacity that in the opinion of the board would make it unfair to that person ... " etc. You know the

section I'm reading from,

section k, it has not changed, I believe. What we are saying is that in the old act, the clause was very limited and we believe there are areas that the board needs to be able to make a decision about and it cannot, under the provisions of the old act. MR. G. MERCIER: Could not designate those people as employees. HON. M.B. DOLIN: They are employees. MR. G. MERCIER: Just a simple question to the Minister. Does she see by virtue of this amendment that more people will be unionized? HON. M.B.

DOLIN: The opportunity to organize, to become a part of a bargaining unit or to have a union represent one is an opportunity that people have. We don't have to bestow it upon them, they have that already. But the board has to be able in this instance to make a decision and it cannot under the old act; it's too limited. MR. G. MERCIER: Madam Chairman, I wonder if the Minister could just answer the question. I think it could be answered yes or no. By virtue of this amendment, is it the intention of the government to see more people become unionized?

Will this amendment lead to more people being eligible to become unionized? HON. M.B. DOLIN: Whether or not more people will become unionized, I certainly couldn't say. More people may be eligible to be unionized. MADAM CHAIRMAN: Page 3-pa ss; Page 4 - Mr. Cowan. HON. J. COWAN: I would move the previous motion - I don't know if it's necessary to repeat it - that was erroneously moved for Page 3.

Thursday, 28 June, 1984 MADAM CHAIRMAN: Amendment- pass; Page 4, as amended ... HON. J. COWAN: Well, do you want me to read it again? I move THAT the proposed clause 1(t. 1) of The Labour Relations Act as set out in

section 8 of Bill 22 be amended by striking out the words "one of whose primary objects" in the 1st line of subclause (ii) th ereof and substituting th erefor the words "whose primary object". MADAM CHAIRMAN: Mr. Banman. MR. R. BANMAN: Madam Chairman, tha t is precisely the motion that we were going to put forward and we can support that amendment. HON. J. COWAN: We'll hold hands on that one. MADAM CHAIRMAN: Amendment- pass. MR. E. SZACH: Madam Chairman, may I interject with a technical point? We left out a

section number on that page. If you look at the

section headed subsection 4(3) repealed and substituted, there is no

section number below it. That is

section 11 of the amending bill, for clarification of the committ ee. MADAM CHAIRMAN: Is that agreed? Pass. Page 4, as amended - Mr. Banman. MR. R. BANMAN: Madam Chairperson, I move THAT the proposed amendment of subsection 10(4) of The Labour Relations Act as set out in

section 12 · of Bill 22 be amended by striking out clause (

a) of

section 12. The affect of this parti cula r motion, Madam Chairperson, has the effect of reverting to the old act in that we were changing the period at which time every1hing was frozen until an agreement was in place, from six months to 12 months. This says that we keep it at the six-month level which was in the old act. In other words, what we're doing is we're saying 12 months is too long, we would like to keep it at the six-month figure. MADAM CHAIRMAN: Those in favour of the amendment. Those opposed. Amendment defeated. Page 4, as amended- pass; Page 5- pass. Mr. Mercier. MR. G. MERCIER: Madam Chairperson, the

section that begins at the bottom of Page 5 and continues on Page 6, a reinstatement where there is no collective agreement. There was presentation from the Manitoba Health Organization that requested the committee to examine this

section because the y believed that some kind of provision should be made that recognizes the right of an employer to refuse to reinstate an employee who has been guilty of vandalism against the employer during a strike or who is guilty of conduct tha t would be found to be so serious as to justify dismissal had 70 the strike or lockout not occurred. Does the Minister reject that argument? HON. M.B. DOLIN: I'm sorry, I was getting some technical advice. Could you just repeat the last part of your question? i<4R. G. MERCIER: The Manitoba Health Organization made a presentation with resp ect to this

section indicating that the y did not quarrel with the provision for reinstatement, but they said the y believe that some kind of provision should be made that recognizes the right of the employer to refuse to reinstate an employee who has been guilty of vandalism against the employer during a strike, or who was guilty of conduct that would be found to be so serious as to justify dismissal had the strike or lockout not occurred. Does the Minister reject that argument? HON. M.B. DOLIN: If the employee is not in the place of employment, I would find it difficult to understand how this could happen.

The employees during a strike or lockout are outside the building, of course, and no specific instance of this was given. If the member would like to sugg est a situation that he thinks might exist, I would think there might be other areas tha t cover that particular concern. If the person vandalized property or was charged with vandalism of the property, that would be a different situation. MR. G. MERCIER: The Manitoba Health Organization referred specifically of an employee who was guilty of vandalism against the employer during the strike.

As the Minister is saying under her legislation, the employer would have to reinstate that employee. Does she not believe that there should be some change in this

section to accommodate this position? lt doesn't particularly seem unreasonable. HON. M.B. DOLIN: With regard to the issue that the member is referring to, there is no change from the current act. The same provisions are incorporated here. I don't know whether he is suggesting an amendment that you add to the bill at this point or what he is suggesting. MR. G. MERCIER: We have had representations that the reinstatement provisions in this amendment should be amended so an employer can refuse to reinstate an employee who has been guilty of vandalism against the employer during the strike and in another situation. Does the Minister not feel the re should be an amendme nt to this

section that would gr ant the employer that right? HON. M.B. DOLIN: I would refer the member to

section 1 i( 1)(

f) in the current act and then 11(2) in the current act. I guess what I am saying is, if the member has an amendment to put forward then I would sugg est that he do that. There is nothing in the current act that deals with vandalism per se. What we are providing in the amendments to The Labour Relations Act are the same as in the previous act. lt is complementary. MR. G. MERCIER: We're not making much ground with the Minister on this one, we'd better proceed.

Thursday, 28 June, 1984 MADAM CHAIRMAN: Page 6- pass. Page 7 - Mr. Kostyra. HON. E. KOSTYRA: I move, THAT the proposed subsection 11.2(1 ) of The Labour Relations Act as set out in

section 15 of Bill 22 be struck out and the following subsection be substituted therefor: Using professional strikebreaker. 11.2( 1) Every employer or employers' organization, and every person acting on behalf of an employer or employers' organization, who or which uses, or offers to use, or purports to use, or aut horizes or permits the use of, a professional strikebreaker commits an unfair labour practice. MADAM CHAIRMAN: Amendment- pass; Page 7, as amended- pass. Mr. Banman. MR. R.

BANMAN: With regard to the clause dealing with the insurance scheme I would ask the Minister, since UIC payments aren't paid to striking employees, what has been the experience in the past when employees have gone out on strike with regard to other benefits that normally are looked after by the employer under either the collective agreement or in other ways? HON. M.B. DOLIN: I can't speak for every case, Mr. Banman, without researching it, and if you want that information we can provide it for you at a later date, I'm sure, although it would take some research.

But the situation is usually worked out between the parties. The union often pays for the benefits during the duration of the work stoppage. The company sometimes maintains a pension plan or something like that during a work stoppage. What we are saying is that information has to be shared if those benefits are to be continued and, of course, many of these plans must be continued, as you know, on a month ly basis. MADAM CHAIRMAN: Page 7- pass. Page 8 - Mr. Ban man. MR. R. BANMAN: Madam Chairperson, I move THAT the proposed clause 15(

d) of The Labour Relations Act as set out in

section 18 of Bill 22 be amended by addding thereto, immediately after the word "penalty" in the 2nd line thereof, the words "or by undue influence". HON. M.B. DOLIN: Just briefly on that, I'll repeat what I explained I believe in the House, that the words "undue influence" exists currently only in Manitoba and the New Brunswick labour law. They have been removed elsewhere and clearer terms used and that is why we have made this change. MR. R.

BANMAN: I would just point out to the Minister that I believe that undue influence, with regard to the organizing, should constitute an unfair labour practice and I believe this is one way of trying to get a balance between the employer/employee groups and the unions should be aware that undue influence, when on an 71 organizing drive, that it could be considered an unfair labour practice and I would recommend the motion to the committee. MADAM CHAIRMAN: Those in favour of the amendment please say aye. Those opposed. I declare the amendment defeated. Page 8- pass; Page 9- pass; Page 10-pass. Page 11 - Mr. Banman.

MR. R. BANMAN:

Section 20(1)((

b) where it says, "has exercised any of the employee's or person's rights under this Act" - why is this

section in there? HON. M.B. DOLIN: Didn't we pass page 11? MADAM CHAIRMAN: No. HON. M.B. DOLIN: 20(1)(b). I have to uncover my notes, if you'll just wait a moment. Sorry, I know where the

section is now. If a person has rights they ought to be able to exercise them and questions regarding the exercising of that right should not be a determining point for employment. MR. R. BANMAN: I have to say to the Minister, Madam Chairma n, that I really don' t unde rstand that explanation. HON. M.B. DOLIN: Perhaps I could explain it in the context of a human rights issue. If a person has a right to join a union, be part of a union, be active in a union, then such activities and such memberships should not be the subject of, or the determination of whether or not a person is employed.

MADAM CHAIRMAN: No further questions? Page 11- pass; Page 12 - Mr. Banman. MR. R. BANMAN: I move, THAT the proposed subsection 21(1) of The Labour Relations Act as set out in

section 23 of Bill 22 be amended by adding thereto, immediately after the word "board" in the last line thereof, the words and figure "not later than 6 months after the unfair labour practice is alleged to have occurred or last occurred". MADAM CHAIRMAN: Those in favour of the amendment? Mr. Banman. MR. R.

BANMAN: Madam Chairperson, we are in this particular section, saying that there is no time limit really to filing a grievance or an unfair labour practice with the board and I believe, as I think most common sense people will agree, that to allow an indefinite time for someone to retroactively go after and allege an unfair labour practice without imposing a certain time constraint on it, really will not lead to harmony in the workplace or good relations between employer and employees.

I would say to the Minister that I believe the six month time period that was in the old act should be left in and really what this amendment does is, it says that someone that is alleging an unfair labour practice

Thursday, 28 June, 1984 has to file that within a six-month period or that particular case cannot be heard. I say to the Minister, six months in the workplace, if something has happened which is an unfair labour practice, my goodness six months time is plenty of time to bring that out and deal with it. I don't see why we want to give unlimited time to anybody who would like to allege an unfair labour practice. Six months is good and that's why I put forward the amendment. HON. M.B.

DOLIN: What the board has found in its experience, and in studying this situation is that the six months, clear and simple, is far too limiting and I would refer you to the first clause on the next page, 21(2) Undue delay. The board has the discretion to not accept such a complaint if it finds that it has been unduly delayed even less than six months. But if it has found that perhaps the information was not available and as we act in the House, tha t the first possible moment the complaint is brought forward, then it can in its discretion, allow it six months and two days later.

But is protected and persons are protected from undue delay by the following section. MR. R. BANMAN: I would just point out to the Minister that a six-month period, I believe, is plenty of time and all this

section will do is, it will cause further problems. I can just see what will happen is, that after eight or nine months if the re is suddenly a problem with the collective agreement and the union, or one side, is unhappy with the other side, then of course the y can then raise and say at such and such a time, 8, 9, 10 months ago this happened and now we say it's an unfair labour practice because we're going to show you that we're not happy with what's happening right now. So I say to the Minister, I don't think it's good to leave it open-ended and the six-month period should be put back in.

MADAM CHAIRMAN: Those in favour of the am endme nt - (Inte rjec tion) - Mr. Merci er, the question had been called before you put your hand up. MR. G. MERCIER: No it had not. HON. M.B. DOLIN: Let him speak. MR. G. MERCIER: I want to bring to the attention of the Minister that we have, for example, limitation of actions legislation in the province which prescribes time periods during which actions must be commenced depending upon the type of civil action it is. We have a

Summary Convictions Act which requires prosecutions to be commence d within six months. All of this legislation is done for a good reason; that if somebody is going to make a complaint it must be a timely complaint, and these matters shouldn't be allowed to hang over the heads of people. This is a

section that applies to both emplo"yers and employees. lt applies to both. lt's not a question of taking one side or the other. lt applies to everyone and to have a

section that follows what the Minister has referred to, where the board is going to make a decision on what is undue delay, makes the whole piece of 72 legislation very uncertain and unnecessary. The Minister has not in any way shape or form justified why the six month period should be amended so tha t there is in effect no limitation unle ss the board deter mines otherwise.

We have had situations in the past, and I can recall doing it with respect to an amendment under The Highway Traffic Act where the previous limitation period had been one year, and while we were in government we amended it to two years, and after a study by the Law Reform Commission, it was felt that the limitation period should be expanded to two years because of the difficulties that the one-year period had brought to many people. If the Minister can satisfy the committee that there is justification for extending six months to nine months or to a year, we might be prepared to accept that.

But to completely take out the limitation period at all and leave it open to an uncertain discretionary decision by the board which will be the subject of a great deal of litigation, is just not satisfactory to people on our side of the House and the Minister has not justified her position with respe ct to my collea gue's proposed amendment. HON. M.B. DOLIN: I believe that tl-ae Member for St. Norbert has made a very good point and that is exactly the point tha t this change is in here. The Labour Board is made up of employer and employee representatives. This clause affects both employees and employers.

In the discretion of those people tha t are appointed by employer groups and employee groups in the discretion of those people, the y will decide whether the complaints brought before them has been unduly delayed and the protection lies in the next clause 21(2) Undue delay. MADAM CHAIRMAN: Mr. Johnston. MR. F.

JOHNSTON: The clause the Minister refers to, 21(2), giving the board the discretion for undue delay, the board is going to be in a terrible position if they decide to accept a complaint before them that is two years old and somebody comes along later and says that they want to have one and they say no to them. There has been a precedent set and the board will probably go through a long detailed explanation as to why the undue delay is allowed for one person and not the other.

I think the Minister is putting the board in a very precarious position and there will be arguments and there will be presentations made on behalf of the person that were not treated the same as others. HON. M.B. DOLIN: May I say again that the board has been deliberating for some time in their new method of acting. They meet in committee. They go over their policies, their rules, their regulations. They bring forward new policies and regulations to us, that they have determined the way in which they should conduct their business.

This is one area where the y have told us that to say that an absolute day of the month, of the year, what ever, is too limiting, that the re have been cases where on both sides of that date - not many - but the re have been cases when they should have been able to exercise their judgment.

Thursday, 28 June, 1984 MR. F. JOHNSTON: My colleague said that there should be some time. But is the Minister saying that a year, if it was in the act, tha t they must do it within a year; that a year is not enough? HON. M.B. DOLIN: My information from thos e who deal with this section, who are on the Labour Board is that, it is not a year, but it is not seven months and 12 days and it is not five months and 28 days. lt is close to six months, but it is not an exact date that then limits them from dealing with what they should be dealing with, and they feel that this change should be there.

I have a great deal of faith and I believe that members opposite do too in the appoi ntees to the Labour Board and the seriousness with which they carry out their responsibilities. MADAM CHAIRMAN: No further questions, are you ready for the que stion? Those in fa vour of the amendment say aye. Those opposed. The nays have it and the amendment is defeated. Page 12-pass; Page 13 - Mr. Kostyra. HON. E. KOSTYRA: I would move THAT the proposed subsect ion 21(3) of The Labour Relations Act as set out in

section 23 of Bill 22 be amended (

a) by adding thereto, immediately after the word "practice" in the 2nd line of clause (

b) thereof, the word "or"; and (

b) by adding thereto, immediately after clause (

b) thereof, the following clause: (

c) at any time decline to take further action on the complaint. MADAM CHAIRMAN: Amendment- pass; Page 13 as amended- pass. Page 14 - Mr. Kostyra. HON. E. KOSTYRA: I move THAT the proposed clause 22(3)(

b) of The Labour Relations Act as set out in

section 23 of Bill 22 be amended by adding thereto, immediately after the word "of" in the 2nd last line thereof, the words "income or other". MADAM CHAIRMAN: Amendment- pass. Mr. Mercier. MR. G. MERCIER: Madam Chairman, could the Minister explain the rationale behind why the board has such a wide discretion on interim orders before there has been any determination on the complaint? HON. M.B. DOLIN: Is the member referring to

section 22(2)? MR. G. MERCIER: Yes. HON. M.B. DOLIN: I'm not sure that the question relates to the power involved as clearly as it might. Let me answer in this way and see if it serves to answer the member's concern. When the board is clearly sure that a certification will be granted, I think we are all aware tha t most of 73 the applications for certification come in with well over 60 percent, or 65 percent even, of the employees having signed cards.

So when the board is sure that they are in fact going to grant that certification but there is a question about the inclusion of someone who may be, as an example, sup port service tha t deals with confidential material, or a-group m computer operators, or someone who should not be included in that local, when that is the question that's outstan ding then the board may grant interim certification. Is that what the member is referring to? MR. G. MERCIER: Madam Chairman, the

section we're talking about are hearings into unfair labour practices. HON. M.B. DOLIN: Ok ay, sorry. I see I have the wrong

section here. When you come to that question later, you'll have my answer already. MR. G. MERCIER: Madam Chairman, we're talking here about hearings with respect to whether or not there have been unfair labour practices. In the section, sections give to the board very broad powers to make Int erim orders before there has been any final determination of a complaint and I would like the Minister to explain the rationale, why such discretionary power should be given to the board? HON. M.B. DOLIN: lt's the board's present practice to grant adjournments. This

section then allows for the board to make adjournments subject to terms and conditions that it deems are reasonable. There is an example I can give you. If one party asks for an adjournment and the other party would be unfairly prejudiced by having to pay the expenses of bringing in out-of-town witnesses and so on, the board might oblige the party that is seeking the adjournment to pay the costs. That would be the order. MR. G. MERCIER: That's fine, but tha t's not what the sections say.

The sections give the board the power to impose penalties in all sorts of terms and conditions and reinstatements, etc., and this is before there has been any final determination. I don't disagree that for someone who is prejudiced by reason and someone else asking for an adjournment the board should have the power to ask that party to pay costs. That's not what we are talking about, though. We are talking about the broad powers of the board here to make Interim orders where there has been no final determ ination of the complaint. Why is that included? HON. M.B.

DOLIN: Let me give you another example, probably a more serious example than the one I just gave you, although both situations might arise and, in fact, do arise before the board where there has been a dismissal of an employee during a union-organizing drive, as an example. Okay? The board might order that the emplo yee be reinstated pending a final hearing. The Interim order such as that will be determined by the board and they will and they have, in fact, developed their policies and practice in this regard. MR. G. MERCIER: Well sure, that in effect is a final determination which is made before but is made on

Thursday, 28 June, 1984 an interim basis. That's the kind of decision that should only be made in the final determination. Are these recommendations from Ms. Smith? HON. M.B. DOLIN: These are recommendations from the government, sir. MR. G. MERCIER: I know. Is the government acting on recommendations from Ms. Smith in making the se amendments? I take it that the Minister is refusing to answer that question? HON. M.B. DOLIN: I believe the member knows that Ms. Smith certainly presented us with an internal document.

We took that into consideration; we took a lot of things into consideration; and we came forward with what the go vernment recom mended as amendments to the bill. MR. G. MERCIER: Who recommended this change? HON. M.B. DOLIN: I think I have answered that question. I don't know how many times the member wishes to ask it. The bill before you and the White Paper are the government' s recommendations based on advice from many sources, one of them being Ms. Smith's report. There were certainly others. MR. G. MERCIER: Madam Chairman, with all due respect the Minister has not answered the question.

She has offered as an example that could be used under this

section where an order to be made by the board that wou ld, in effect, amount to a final determination, but it was done before the matter is heard. lt would be done pending a final determination of the complaint. We're trying to determine why such vast powers should be given to the Labour Board to make Interim orders pending a final determination. These powers certainly could be subject to abuse and, if used, I think would certainly set back labour relations. If the intention of this bill is to improve labour relations, then the powers that are given in this

section could certainly set it back a long way. I would like to know where this recommendation came from. HON. M.B. DOLIN: The member continually refers to a final determination. If he reads the

section it says, "pending a final determination of the complaint". When one has a Labour Board, a quasi-judicial body given certain powers, one does not write out in legislation what that body's determinations are going to be. One sets out the rules for its determining those, perhaps, but one does not predetermine them. The board has the discretion to make the judgment. Since the board is a tripartite board, it is our belief that they will make appropriate decisions and they will have to live by them. · MR. G.

MERCIER: Who has recommended to the go vernm ent that the board be given such vast discretionary powers, to be made on an interim basis pending a final determination? 74 HON. M.B. DOLIN: Madam Chairperson, I am not sure whether the determination of the opposition here is to go thr ough this bill clau se-by-c lause ask ing who recommended each clause. I frankly couldn't even tell you; I can't remember. I don't think they are appropriate questions and I would have to put that before the committee. I can tell you where they exist in other jurisdictions from time to time.

I can tell you why we believe tha t they are appropriate recommendations, but I don't believe it is appropriate for me to tell you tha t who in our consu ltative meetings might have said, "I think this is a good idea or I think tha t's a good idea or why don't you do something else?" MADAM CHAIRMAN: Page 14 as amended- pass. HON. M.B. DOLIN: 22(4), the re is another amendment. MADAM CHAIRMAN: Mr. Cowan. HON. J. COWAN: I move THAT the proposed subsection 22(4) of The Labour Relations Act as set out in

section 23 of Bill 22 be amended by adding thereto, immediately after the word "of" in the 3rd line of each of clauses. (

d) and (

e) thereof, in each case the words "income or other"; (

e) being on Page 15. MADAM CHAIRMAN: Amendment- pass; Page 14- pass? Mr. Banman. MR. R. BANMAN: Page 15(i), why is this needed? MADAM CHAIRMAN: Page 14- pass; Page 15 - Mr. Ban man. MR. R. BANMAN: The same que stion, Madam Chairman. HON. M.B. DOLIN: The board is given the power to do whatever is fair. I wonder if the member has a concern with that. MR. R. BANMAN: lt is another sort of remedial power of the board? HON. M.B. DOLIN: Yes. MADAM CHAIRMAN: Page 15 as amended-pass; Page 16 - Mr. Cowan. Hm.J. J. COWAN: I move THAT the proposed subsection 25(1) of The Labour Relations Act as set out in

section 25 of Bill 22 be amended (

a) by adding thereto, immediately after the word "for" where it occurs for the first time in the 2nd line th ereof, the words "employees in"; and (

b) by adding thereto, immediately after the word "for" in the last line th ereof, the words "employees in".

Thursday, 28 June, 1984 MADAM CHAIRMAN: Amendment- pass? MR. E. SZACH: Madam Chairperson, may I interject for a moment? I'd like to point out to the members, those familar with The Labour Relations Act will recognize sections 25 to 50 as being in a part titled "Certification and Bargaining Rights,

Part 2." Technically under The Inte rpretation Act, those part headings are not part of a statute and th erefore we're not repeating the headings in the amending bill. I thought it might be helpful though, whenever we reach a new part of the bill as it will be identified in the continuing consolidation, to point that out to the committee members. I simply say at this stage that we're not into the part of the act tha t is headed "Certification and Bargaining Rights,

Part 2." MADAM CHAIRMAN: Mr. Banman. MR. R. BANMAN: Madam Chairperson, I move THAT the proposed subsection 24(2) of The Labour Relations Act as set out in

section 24 of Bill 22 be amended by adding th ereto, immediately after the word "union" in the last line th ereof, the words "and every person who acts in the manner described in this subsection commits an unfair labour practice". MADAM CHAIRMAN: Those in favo ur of the amendment please say aye. You wanted to speak, Mr. Banman? MR. R. BANMAN: lt used to be an unfair labour practice, Madam Chairman, to solicit during working hours when there had not been permission or access granted by the employer.

I think that we have had a few cases where a union which has solicited during working hours has been tagged with unfair labour practices under the act which we are presently living under. What I am saying to the Minister is that, really, if this is not included in this act, what you have is really no deterrent by the union to walk into the place of employment.

Sure, the union can then be reprimanded for having done that, but in essence there is no penalty to doing it and I would say to the Minister that I believe, in light of the past experiences, that is should be an unfair labour practice for someone to walk into a place of employment during working hours and solicit for any particular union. I say to the Minister that I would want to add this last

section which I just read, to this

section and hopefully the members of the committee will agree to it. HON. M.B. DOLIN: There is an answer to this and I would like to give it and have the members consider this possibility. The employers can, in fact, ban union solicitation which disrupts production. That's what the

section says. If employees disobey these rules, the y are subject to disciplinary action or even dismissal in appropriate cases. MR. R. BANMAN: But could the Minister confirm that it is now not an unfair labour practice? HON. M.B. DOLIN: That

section has been removed. If the employee can be disciplined or dismissed by the 75 employer, I would think that is certainly a remedy that is stronger than an unfair labour practice. MR. R. BANMAN: Madam Chairman, that is pretty sneaky, because if an employer now is in the position of having to take upon himself to discipline an employee that is trying to unionize, what better clout or what better impetus for the union to say, look how mean this employer is, he's not allowing unionization or allowing us to get the drive going during working hours. Under the old

section of the act, at least it was an unfair labour practice and everybody knew where the y stood. But what the Minister is saying is that they are really going to now allow the practice to happen; hope ful ly, the employe r will catch them at it and discipline a few people, and that will help the union cause to unionize that shop because it is not an unfair labour practice. If the Minister doesn't understand that, she doesn't know what is happening in the workplace. HON. M.B. DOLIN: And the member doesn't know what's happening in Ontario.

This wording is similar to what is in Ontario and so it obviously is not so burdensome. What we are talking about here is the disruption of production in the workplace, not an attempt to organize. There is nothing wrong with organizing and that had better be very clear. The question here is disrupting production or disrupting what is happening in the workplace while organizing. Obviously, the employer has the right to discipline the employee for that. That discipline can take many forms.

We can't say what is in place in the workplace as disci pline; that is dete rmined by the various workplaces and usually by the employer, particularly if the y're not organize d . So up to and including dismissal, those remedies are the re. I can't imagine that an employer would want to go through the whole filing of an unfair labour practice, keeping that employee on, not disciplining that employee, going before the Labour Board for an unfair labour practice. it seems rather self-defeating. MR. R. BANMAN: I say to the Minister, that what in a very subtle way, the

section is changed to try and make the employer the heavy in the scene and I cannot go along with that and th erefore I have proposed the amendments. MADAM CHAIRMAN: Those in favour of the amendment please say aye. Those opposed. The nays have it. I declare the amendment defeated. Page 16 as amended- pass; Page 17- pass; Page 18 - Mr. Cowan. HON. J. COWAN: I move THAT the proposed subsection 26(6) of The Labour Relations Act as set out in

section 25 of Bill 22 be amended by adding thereto, immediately after the word "unless" in the 5th line thereof, the words "in the opinion of the board". MADAM CHAIRMAN: Amendment- pass; Page 18 as amended- pass; Page 19 - Mr. Banman. MR. R. BANMAN: Could the Minister explain 27(1)(b)?

Thursday , 28 June, 1984 HON. M.B. DOLIN: What

section does the member wish explained? MADAM CHAIRMAN: Mr. Banman, could you repeat your question? MR. R. BANMAN: 27(1)(b). HON. M.B. DOLIN: I believe this can be explained best by saying that it is a clarification of the existing act. lt allows an agent for the employees to act for the employees themse lves; it's not limited to the employees the mselves. lt's a clarification of the wording. MADAM CHAIRMAN: Page 19-p ass. Page 20 - Mr. Banman, you had a motion on Page 2 of your list that was out of sequence, the third motion was on Page 20? All right then, Page 20- pass. MR. R.

BANMAN: I had a competent draftperson but I didn't have to pay $600 a day for him. MS. M.B. DOLIN: We did too, the same one. MADAM CHAIRMAN: Page 21-p ass; Page 22 - Mr. Cowan. HON. J. COWAN: I move THAT the proposed clause 32(

a) of The Labour Relations Act as set out in

section 25 of Bill 22 be amended by adding the reto immediately after the word "employer" in the 1st line th ereof the words "or any person acting on behalf of the employer". MADAM CHAIRMAN: Amendment- pass. Mr. Banman. MR. R. BANMAN: I move THAT the proposed sect ion 32 of The Labour Relations Act as set out in

section 25 of the bill be amended by striking out the last two lines th ereof and substituting th erefor the words and figures "the board shall conduct a vote in accordance with subsection 39(2) for the purpose of satisfying itself as to whether the employees in the unit wish to have the applicant union represent them as their bargaining agent ". MADAM CHAIRMAN: Question? Those in favour of the amendment please say aye. Those opposed. The nays have it. Both amendments defeated. MR. G. MERCIER: I'll ask for a count. MADAM CHAIRMAN: All those in favour of the amendment please raise their hands.

(4) Those opposed.

(5) The amendment is defeated. Mr. Cowan. HON. J. COWAN: Perhaps I'll have better luck. I move THAT the proposed

section 32 of the Labour Relations Act as set out in

section 25 of Bill 22 be amended by striking out the word and figures "subsection 31(1)" in the 2nd last line th ereof and substituting th erefore the words and figures "section 31". 76 MADAM CHAIRMAN: One moment, Mr. Cowan, is that one not on Page 23? HON. J. COWAN: Yes, and I thought the last one was on Page 23 as well. MADAM CHAIRMAN: We haven't passed Page 22. HON. J. COWAN: You see, I didn't have better luck. MADAM CHAIRMAN: The amendme nt that was proposed by Mr. Banman was on Page 23 but it was referring to a

section which is on 22. Consequ ently, I would like to pass Page 22, as amended- pass; Page 23, Amendment- pass; Page 23, as amended- pass. Page 24 - Mr. Banman. MR. R. BANMAN: I move THAT the proposed sect ion 36 of The Labour Relations Act as set out in

section 25 of Bill 22 be amended (

a) by adding thereto, immediately after the word "to" in the 3rd line of subsection (1) th ereof, the words and figure "subsection (2) and"; (

b) by adding thereto, immediately after the word "union" in the last line of clause (2)(

a) th ereof, the words and figure "and by paying to the union an amount of not less than 5 dollars in respect of initiation fees or monthly or periodic dues of the union"; and (

c) by adding thereto, immediately after the word "to" in the 10th line of subsection (2) th ereof, the words and figure "or within 7 days of". MADAM CHAIRMAN: Do you want to explain, Mr. Ban man? MR. R. BANMAN: lt really strikes at the heart, I guess, of one of the things tha t I can' t really see this govern ment moving on and which I find hig hly objectionable.

First of all, to have a person sign a card without having any monetary attachment to the signing of that card - in other words, there is no financial commitment no matter how small, to the individual who is signing the card or is being asked to sign the card to allow someone to just sign a card, like a petition, without having to make some financial commitment, Madam Chairperson, I don't find at all to my satisfaction. I think the federal act in the regulations now states that the membership must be $5.00.

I submit to you that that is a very nomimal amount of money and tha t is the least we should ask someone to put up when he or she is signing their name to a union card. The other section, which is mentioned in here, is the fact that a person who has signed a card under this act now, does not have the right to change his or her mind at all, and it's been said time and time again by different people who have made presentations before this committee that there should be a time period in which an individual has time to change their mind.

My goodness, we talk about consumer protection, we talk about different pieces of legislation where we do not want to allow people who have made a decision, maybe

Thursday, 28 June, 1984 in haste sometime, haven't thought about it properly, maybe were under the influence of peer pressure as well as other things, have done something and, upon sober reflection, want to change their mind. I say to members of this committee that there is no way that we should enact legislation which does not allow a person to change his or her mind.

I am suggesting to the Minister that we should be allowing a seven-day period in which that could happen, a seven day period in a case where a union files the next day after som ebody has signe d the card, is a small concession to that individual, and I believe is in the best interest not only of the harmonious relationships tha t later on have to develop between management and labour, but is of vital importance to that individual.

I say to the Minister, to not allow that is really basically saying that all the consumer protection legislation which we all have passed in the many other areas, whether it be with regard to the selling of fishing quotas and things like that, we have always given individuals the right within a certain time period to change their mind. I believe it absolutely imperative that we allow at least a seven-day period for this to happen. HON. M.B.

DOliN: Without sparking any debate, let me say that I really am sorry that I continually hear from members of the opposition words like "sober second thoughts" and innuendoes that union cards are signed in not a truly thoughtful state. That is a reflection upon individuals in our province whom we don't know by name but who are there, it is a reflection on them, it is a reflection that I think is very very unfortunate and I would disassociate myself entirely from any such comments. I want to do that.

But I want to also tell the members that it is the experience of the Labour Board who receive these certifications, that they often have to not count cards because more than six months has elapsed since the person has signed them. Now the potential member signing a card may at any time, up until the date that that application is filed, remove his or her name from the potential membership. All they have to do is let the union know, let the board know that they have done so in case they think the union might not report it.

They send copies of a letter or whatever they want to do to let the board know tha t the y do not wish to be included. The vision that has been put forward of somebody riding in, in the night - as one of the news media persons said to me - leaping over the backyard fence at your barbeque, signing you up for the union and tossing the applications on to Johnny Korpesho's desk the next morning, is not fact; it is fiction; and I think it's science fiction. So I would say that the experience of the board is that organizing drives take much longer, so persons do have the time to reflect upon their decisions.

They do have time to withdraw that decision, change their minds if they wish to, and the y have every full right to do that up until the date of application. MADAM CHAIRMAN: Mr. Johnston. MR. F. JOHNSTON: Madam Chairman, it is rather surprising to me tha t the Minister would make a 77 reference to people who have mentioned the word "sober" and then she regards those statements as a reflection against people that they don't know what they're doing.

People, if the y buy a car or refrigerator, if the y buy a home which is probably the largest investment of their life, if the y buy a life insurance policy, if they purchased most anything within this province or in Canada, have the right to change their minds.

In this particular case, basically, the only place where the y don't have the right to change their minds in this legislation, which is basically written, in this case, to the benefit of the unions. lt really seems to me that the Minister has now taken sides completely against management and business within this province by this piece of legislation because it discriminates drastically against anything else that happens as far as consumer protection is concerned.

Then the other part of it is that the seven days - we mentioned the seven days - the other people who have not been contacted, the 45 percent who don't have to be contacted, they are just completely left out of the picture.

Why in the case of this legislation does a person not have to change their mind and in all the legislation that the NDP has proposed while the y have been in government for 12 years in this province in the last while, they were the ones that believe that people should have the right to change their mind and brought in many of the consumer protection clauses that create that situation within this province.

Now, Madam Chairman, why does the Minister decide that she takes the side against all of the other legislation that has been put through pretty well in this province and takes the sides of the unions against management and small business within this province? HON. M.B.

DOLIN: The statute tha t the member refers to, I believe in The Consumer Protection Act, refers to protection for those persons who have purchased something usually from a door-to-door salesman - photos of your children, encyclopaedias, that sort of thing - it has never been included in this act and I don't know whether the member has an amendment that he wishes to put forward that is comparable. I think that it is not appropriate for this act.

Let me remind the member, as I have indicated before but not specifically - I will do so now - that 14.3 percent of the applications received by the Manitoba Labour Board for certification have an employee sign-up percentage of 95 percent to 100 percent. Over 60 percent of the applications have 65 percent or more signed up. We are not talking about slipping in an application for certification. We are not talking about hoodwinking people into joining a union. We are talking about people who wish to have a bargaining agent represent them, and we are talking about how we determine the true wishes of those employees.

They have the right to exercise their freedom of association. That is cl ear. What we are doing is amending the act, adopting a method that we believe is fair and is appropriate and is, in fact, not an entirely new idea in Canada, to determine the true wishes of the employees. We think it is the best way to do it.

Thursday, 28 June, 1984 MR. F. JOHNSTON: Last night when I posed the question to Mr. Pullen - and I would be prepared to look at Hansard when we get it - he said, "How else can we do this then by going from door-to-door soliciting people to join the union?" If that isn't the same as somebody going from door to door selling something, I don't know what is. They're asking them to join a union, selling them on the benefits of however the y sell them to join it, and I don't see any reason why the y shouldn't have the same benefit that they have in other situations, which is seven days, to change their minds. HON. M.B. DOLIN: I believe that if Mr. Johnston will check that same Hansard

section a little bit farther on, but not too much farth er, he was answered also by Mr. McGreg or, who said, "Give me the right to talk to all the employees, 100 percent of the employees. Let me meet with them in the workplace and talk to them and I will be happy to do that." Going door-to-door, as the member says, visiting with persons in their homes, is because there can be no disruption of the workplace, not even a th reat of disruption of the workplace. lt is very difficult to even find out who the employees are in many many situations.

Employees come to a bargaining agent and ask them to organize and then it is up to the organizing agent to determine who the employees are and ask them whether the y wish, in fact, to have a bargaining agent. I am free to welcome anyone I wish into my home and that is true of any other person in this province, in fact in this countr y. MR. F. JOHNSTON: When the Minister referred to Mr. McG regor's statement, I refer to hers, that she's free to welcome anybody she likes into her home. That' s quite true. These people are free to welcome anybody they like into their home.

The Minister would have the opportunity if she bought something to change her mind in most cases. In this case, the people don't. MADAM CHAIRMAN: Mr. Banman, did you have a question or a comment? MR. R. BANMAN: Yes, I would urge the Minister to, if she doesn't think this is that important a

section that it's going to cause that much trouble, I would urge her in that case to pass it and allay some of the fears which have been expressed and some of the concerns that members of the opposition have put forward. MADAM CHAIRMAN: Those in favour of the amendment, please say, aye. Those opposed. The nays have it. I declare the motion defeated. Page 24- pass; Page 25 - Mr. Mercier. MR. G. MERCIER: Madam Chairman, could the Minister explain why in

section 36(4) the words "undue influence" are not used in addition to "intimidation. ·fraud or coercion"? Why is that level or that standard of proof required and not "undue influence"? HON. M.B. DOLIN: I would refer the member to approximately a dozen answers on the same question. 78 Undue influence only existed in labour law in Manitoba and New Brunswick. Other jurisdictions have change d their labour law to read, th reats, coercion, and so on as we have. We feel it is a move forward and in law we have been advised that it is the more appropriate terminology. MADAM CHAIRMAN: Page 25-pa ss; Page 26 - Mr. Cow an. HON. J. COWAN: Yes, Madam Chairman. I move THAT the proposed clause 37(1)(

a) of The Labour Relations Act as set out in

section 25 of Bill 22 be struck out and the following clause be substituted there for: (

a) the appropriateness of the unit; or MADAM CHAIRMAN: Amendment- pass. Mr. Cowan. HON. J. COWAN: I move THAT the proposed subsection 38(1) of The Labour Relations Act as set out in

section 25 of Bill 22 be amended by striking out the words "or composition" in the 2nd line th ereof. The intent of this is to strike cut the words "or composition" in subsection 38(1). HON. M.B. DOLIN: Because they're unnecessary. HON. J. COWAN: Because I' m informed , Madam Chairman, that in the opinion of those people who are responsible for this legislation, they are not necessary to provide for the intent of that specific clause. MADAM CHAIRMAN: Mr. Mercier. MR. G. MERCIER: Who are those people responsible for this legislation? HON. J.

COWAN: I would have to sugg est that the government itself is responsible, but that the Minister of Labour, on behalf of the government, would be pleased to provide more elaboration if necessary. MADAM CHAIRMAN: Ms. Dolin. HON. M.B. DOLIN: Thank you for the long worded invitation, Mr. Cowan. I am advised by the sam e person who you complimented just moments ago at the clever drafting of your own amendment, that this is not necessary. MADAM CHAIRMAN: Amendment- pass. M(. Banman. MR. R. BANMAN: I move THAT the proposed

section 38(1) of The Labour Relations Act as set out in

section 25 of Bill 22 be amended by striking out the words "but an employer has no" in the 3rd last line thereof and substituting therefore the words "an employer has". MADAM CHAIRMAN: Those in favour of the amendment.

Thursday, 28 June, 1984 HON. M.B. DOLIN: Wait a minute, I want him to explain. MADAM CHAIRMAN: Mr. Banman. MR. R. BANMAN: One of the areas of contention which was brought to the committee's attention was the .fact that employers really now have no status when it comes to a certification application. I would sugg est to the Minister that we really have, by this

section and several others, just about neutered the employers when it comes to dealing with the rights to have anything to say at any particular time with regard to the certification process, or the certification itself. I believe that if we are talking, the government is often espousing the philosophies of individual freedoms, individual rights, here's a classic case where really what we're doing is muzzling the employers all through the unionization process and now we come to a time where they really haven't even got a status before the board.

I find that a very distasteful type of approach to handling this whole act. I would urge the Minister to support this change so that the employer does have some avenue and some area where he or she can make representation with regard to their wishes and possible wishes of the employees th at they have working for them. So I would urge the government to support this amendment. MADAM CHAIRMAN: Ms. Dolin. HON. M.B. DOLIN: The intent of this

section is not to disallow the employer from any complaint to the board that there might have been, as we have in other sections, fraud or threat or coercion in the gathering of the signatures. But what is not appropriate is for the employer to come before the board and argue that that employer doesn't want a union. The employees have the right and that's what we were saying, it's the desire of the employees, the true wishes of the employees. They have the right of free association and they have the right to choose a bargaining agent. Maybe the Member for St. Norbert had some comm ents he wanted to make too.

If he could suggest to me other than a complaint against the way in which the signatures were gathered, which the board would determine by investigation, of course, as it determined whether certification was appropriate, what else the employer would have to say, perhaps we could be clear on where we stand on this. MADAM CHAIRMAN: Mr. Mercier. MR. G. MERCIER: Madam Chairman, could the Minister indicate in how many other jurisdictions similar non status is given to the employer? HON. M.B. DOLIN: If the member will give me a moment, I will get that answer.

I don't have a breakdown on the jurisdictions across Canada, but I can tell you that the status of the employer in this regard was removed in the early 1970s in Manitoba. lt's consistent with the current act. We would have to check other jurisidictions to be sure whether or not it appears there. I just don't have that information in front of me right now. 79 But it's no change from the present act. The status of the employer as someone to appear before the board and complain that they don't want a union was removed early in the 70s. MR . .G. ·MERCIER: Just one final question.

Can the employer make representations with respect to the appropriateness of the unit for bargaining? HON. M.B. DOLIN: Yes. MADAM CHAIRMAN: Mr. Filmon. MR. G. FILMON: Madam Chairman, I just wanted to make the point that the Minister is indicating that this is no different from the current act, but what is being changed in the meantime is the fact that 38(2) is changed and once the cards are submitted in 55 percent of signed cards, there is no opportunity for other employees to make representat ion or to have discussions or to try and further affect the process.

Therefore, it would seem reasonable under the circumstances that the employer would have at least some status to be able to discuss maybe unfair labour practices on the part of the union or on the part of the organizers, or indications on his part of knowledge of fraud, coercion or any of those things. He should have some status, since the employees no longer have an opportunity to have a cooling-off period or an opportunity to, for instance, counsel their fellow employees against the union. I think that's the difference and that's what ought to be considered.

The employer should have status because you 're taking away the righ ts of other employees, for instance, to change the certification. HON. M.B. DOLIN: Let's be clear on this. The no status situation of the employer is in relation to employee wishes and you were talking, I believe, about several other aspects. MR. G.

FILMON: Since the employees themselves have no opportunity once the cards are submitted and the certification process is procee ding, they have no opportunity to change that or to have any discussions with fellow employees or anything else other than making allegations and being able to substantiate allegations of fraud, coercion - or whatever those three terms that are in the section. Since that has been precluded, then I believe it's only fair that at least the employer should have status to give testimony as to employee wishes.

Somebody has to have status to give the other side MADAM CHAIRMAN: The question on the amendment. Those in favour of the amendment please say aye. Those opposed. The nays have it and the amendment is defeated. Mr. Mercier. MR. G. MERCIER:

Section 37(3) on that page, is that a change? HON. M.B. DOLIN:

Section 37(3) refers, as the member will see, back to

section 37( 1) where it is a representative

Thursday, 28 June, 1984 of the board that may have been asked to gather relevant information and prepare a report for the board. MR. G. MERCIER: I understand that, Madam Chairman. I read the section. I want to know why that person's report, which

section 37(2) says is admissible in evidence in the certification proceeding as prima facie proof of its contents. 37(3) goes on to say that the person who prepares the report is not a compellable witness. Is that a change in the proceedings? Why shouldn't he or she be a compellable witness and be subject to cross-examination on the report? HON. M.B. DOLIN: The subject of cross-ex amination? it's a report to the board, I would first remind the member. In a search of the jurisdictional law in this case, it is found that this works very well in the Province of Alberta and has for some time. MR. G.

MERCIER: Is this a change in Manitoba? HON. M.B. DOLIN: With the board's increased powers and increased support, the board will have, in fact, persons that it can ask to do some of the investigative work that is necessary to determine whether it should or should not act on any particular case. You'll find that throughout, and this is a whole new section. MR. G. MERCIER: Why shouldn't the person who makes the report which is accepted as prima facie proof of its contents under

section 37(2), be subject to que stioning on that report and be a compellable witness? HON. M.B. DOLIN: I have a little trouble trying to determine why the person would be cross-ex amined under the card system of certification. But what we know that the board intends to do is to not only clarity · but publicize and make much stronger its system of determining accurate signatures. The signature system, of course, in a card system is tighter than it is in other kinds of systems and I can refer you to the Saskatche wan system in that case.

But I'm trying to imagine who the member would think we'd be cross examining. it's a report for information. MR. G. MERCIER: Madam Chairman, the Minister says it's a report for information. it's more than that. Under

section 37(2) it's prima facie proof of its contents; and under 37(1) it's a report requested by the board related to the appropriateness of the bargaining unit or the employer's operations. But under

section 37(3), the person who prepares the report is not a compellable witness in the certification proceeding. Now with all due respect to the employees of the board or the employees of any board or department, the y're not perfect, mistakes can happen, and why shouldn't the person who prepares that report be subject to questions on that report? HON. M.B. DOLIN: The intention of the section, and 1 think the

section has to be taken as a whole, is to allow the board to use its own representatives to help elimina te delays in the ce rtification process, by gathering informa tion, prepari ng a report and submitting it at the prehearing stage. 80 MR. G. MERCIER: Madam Chairman, with all due respect to the Minister, she doesn't seem to understand. This report under 37(2) is prima facie proof of its contents and the person who makes the report under 37(3) is not a compellable witness and th erefore can't be asked questions on the report. I submit that, human nature being what it is, mistakes will be made from time to time.

Why can't that person be a compellable witne ss where the findings are questioned? HON. M.B. DOLIN: Th ese people who would be gathering information, are acting in good faith as employees of the board. Okay? MR. G. MERCIER: So why wouldn't they answer questions then if the y're asked? HON. M.B. DOLIN: I was just checking this for accuracy too, but I think the members are quite aware that conciliation officers and mediation officers, they aren't called either. it's the same principle. MR. G. MERCIER: These are special reports prepared for the board. The Mir.ister says it's a new section.

Is the Minister saying these people are perfect and the y will not make any mistakes in their findings? HON. M.B. DOLIN: The information that is gathere d and given to the board is shared with the parties. The parties can challenge any portion of that that the y wish. MADAM CHAIRMAN: Mr. Filmon. MR. G. FILMON: Maybe I can be helpful, Madam Chairman, but yes, the parties can challenge the facts of the report, but the report is taken as prima facie proof of its contents and the person who prepared it can't be asked to give evidence, can't be compelled to give evidence.

So, the refore, if one of the parties believes that there is an error, for instance, in the description of the employer's operations, they can't ascertain whether or not the person having prepared the report understands tha t it was an error, or took some things into account. Why wouldn't you want them to be compelled to at least give evidence on the report they've prepared? HON. M.B. DOLIN: The parties, should-they see such perceived error in the report, can easily submit evidence to the contrary in order to prove their case. MR. G.

FILMON: Who would be hurt by having the person who prepared the report asked to come forward, or required to come forward, as a witness? HON. M.B. DOLIN: What would be gained by this? MR. G. FILMON: What would be gained would be the opportunity for fairness and justice in ascertaining the correct ness and the veracity of the information and an opportunity to cross-ex amine. Openness, fairness, that' s a laudable objective and it seems to me is one of the objectives of the whole labour relations' process. If that could be achieved by

Thursday, 28 June, 1984 having a person asked to come forward or required to come forward and give testimony as to the report the y've prepared, it seems to me tha t that's a laudable objective and everyone would gain by that kind of openness and fairness. MADAM CHAIRMAN: Mr. Kostyra. HON. E. KOSTYRA: I have a question for the Minister. Was it not the case that these reports are prepared at the present time for the Labour Board but are not made public and the purpose of this

section is to make that report public so that both parties can have access to it? At the present time, those reports are done, but are not made public? HON. M.B. DOLIN: Yes, that is the present practice of the board. HON. E. KOSTYRA: So the purpose of this amendment is to ensure that both parties to the application are aware of the information that the board bases its decision on and have the right to challenge or to question that information? HON. M.B. DOLIN: That' s exactly correct. That's 37(2) plus the information in 37(1); but 37(2) expands the information given to the parties. MADAM CHAIRMAN: Mr. Filmon.

MR. G. FILMON: Well then it would seem to me to be a natural and logical extension to have the person, who prepared the report, be available to be questioned. MADAM CHAIRMAN: Page 26- pass; Page 27 - Mr. Ashton. MR. S. ASHTON: Madam Chairperson, I move THAT the proposed clause 39(2Xa) of The Labour Relations Act as set out in

section 25 of Bill 22 be struck out and the following clause be substituted therefor: (

a) describe the unit or proposed unit for the purposes of taking the vote and, where necessary, the professional employees in the unit or propose d unit practising each separate profession; and. MADAM CHAIRMAN: Amendment- pass. Mr. Ashton. MR. S. ASHTON: A furth er motion, Madam Chairperson. I move THAT the proposed subsection 39(3) of The Labour Relations Act as set out in

section 25 of Bill 22 be struck out and the following subsection be substitued therefor: Application of quick vote. 39(3) Where the board has ordered and cond ucted a vote among employees in a proposed unit prior to determining the appropriateness of the unit for collective bargaining, the board shall, upon determining the unit which is appropriate for collective bargaining, proceed 81 to determine to its satisfaction the percentage of the employees in the appropriate unit who wished to have the applicant union represent them as their bargaining agent at the time the application was made, and where the percentage is as described in clause 31(1)(b), the board may treat the vote referred to in this subsect ion as a vote conducted in compliance with clause 31(1)(

b) and is not required to conduct any further vote in order to comply with clause 31(1)(b). MADAM CHAIRMAN: Amendment- pass. Before we pass Page 27, the word "certification" in the very top line of the page, has an extra "i" in it, a typographical error. Will you correct that? Page 27 as amended-p ass; Page 28- pass; Page 29 - Mr. Ashton. MR. S. ASHTON: I move THAT the proposed

section 42 of The Lab our Relations Act as set out in

section 25 of Bill 22 be amended by striking out the word "voting" in the 2nd line thereof and substituting therefore the words "who vote". MADAM CHAIRMAN: Amendment- pass. Mr. Ashton. MR. S. ASHTON: I move THAT the proposed

section 43 of The Lab our Relations Act as set out in

section 25 of Bill 22 be amended by striking out clauses (

a) and (

b) thereof and substituting th erefor the following clauses: (

a) upon an application made to the board by (

i) any employee in the unit, or (ii) the employer of the employees, or (iii) any union which appeared before the board when the bargaining agent was certified; or (

b) after a hearing held by the board on its own motion. MADAM CHAIRMAN: Amendment- pass. MR. E. SZACH: Before you pass the page, Madam Chairperson, another typographical error - leave of the committee to correct the word "process" in the last line of subsection 41(4). Add an extra "s". MADAM CHAIRMAN: Page 29 as amended- pass; Page 30 - Mr. Kostyra. HON. E. KOSTYRA: I move THAT the proposed sect ion 45 of The Lab our Relations Act as set out in

section 25 of Bill 22 be amended by adding thereto, immediately after the word "and" in the 3rd last line th ereof, the words and figures "subject to clause 35(c)". MADAM CHAIRMAN: Amendment- pass; Page 30 as amended- pass. Page 31 - Mr. Szach. MR. E. SZACH: If I may interject, Madam Chairperson, just to point out that the continuing consolidation, sections 46 through 50 will be headed:

Part 3 - Successor Rights.

Thursday, 28 June, 1984 MADAM CHAIRMAN: Page 31 - Mr. Banman. MR. R. BANMAN: Successor rights and obligations. I guess dealing with mergers of the bargaining agent, can the Minister inform us what effect these two sections are going to have on subcontracting of work? HON. M.B. DOLIN: Could I ask the member for a clarification? Are you talking about contracting out? Maybe you could explain a little bit furth er. Is it a construction project you're talking about, or what is it exactly? MR. R.

BANMAN: Let's take the example of someone doing a certain type of a job for the government on a tender basis; that particular individual is unionized. On a tender basis then, tha t particular contr actor loses out to another one who is going to perform the job for the government. The new contractor is not unionized. Will this

section say to that particular individual, or will it give the board the discretion to say to tha t individual, you have to now take over and bargain with the union that was with the other employer? HON. M.B. DOLIN: The short answer to that is no. MR. R. BANMAN: So the Minister is saying that, where a collective agreement is in place, it does not transfer to a new successful tender. HON. M.B. DOLIN: To a new succe ssful tender? No. This is not tender. We are talking about sales here and mergers. MADAM CHAIRMAN: Page 31 -p ass; Page 32 - Mr. Mercier. MR. G. MERCIER: Sale of business. Can the Minister explain the difference between this

section and the present provisions of the act? HON. M.B. DOLIN: The incorporation of the various sections that appear in the present act and that are now in what you see before you, in the amendments to the act, are a little complicated. If you'll let me read from the notes so that I can get the

section numbers straight, I hope you will allow that. The sub sect ion, and I hope this answers your question. If it doesn't, ask it again or ask it more specifically. But the new subsection 47(1) together with

section 49 incorporates the principles that are contained in the present act, 35(

c) and 64(d), subsections 36(1), 36(3), 65(1) and 65(3). When a business is sold or there is a merger or amalgamation of businesses the certification, bargaining rights and collective agreements which are in existence at the time, remain binding. I'll refer you there to clauses 47(1)(

a) and 47(1)(

b) which I think is what you are referring to. Also, the successor employer becomes a· party to the binding procedures. That's under the certification clauses that we have already talked about. Other procee dings including unfair labour practice proceedings and grievance arbitrations proceedings and so on, if those are in process at the time of the 82 sale or merger. The closest reference tha t I can give you to compare this to is the Canada Labour Code. MR. G.

MERCIER: Would the Minister agree that the board has much more broad discretionary powers in these situations than they previously had under the old provisions? · HON. M.B. DOLIN: I would say tha t the powers of the board have increased, yes, in general, and it also includes this

section because they may assist the parties in determining how that merger will take place. We talk about seniority rights, we talk about grievances and process and so on - those still continue and are inherited if you will, in the merger or the sale. MR. G. MERCIER: Has the Minister given any consideration to the adverse effect that such broader discretionary powers might have upon someone who wishes to make an attempt to rescue a floundering or insolvent business and attempt to restore it to a viable operation? HON. M.B. DOLIN: I would then refer that employer to

section 47(3). lt's on the next page, but I have .to refer you to it to answer your question. MR. G. MERCIER: What will the effect of tha t be? HON. M.B. DOLIN: Well, I can cite a recent incident where I clearly watched on the late news one night, a bargaining agent offer to renegotiate a contract in order to maintain the jobs of the employees. So this kind of thing does happen and the opportunity for it in law is there. lt says that the employer has the responsibility and inherits - the new employer as they buy a business - what is the status quo at the time.

But the re also may be some changes in the cont ract that can be negotiated, but it's a matter of negotiations. MADAM CHAIRMAN: Mr. Banman. MR. R. BANMAN: What about in the case we just saw, the Superior Bus case? HON. M.B. DOLIN: That was exactly the case I was citing, because I happened to have seen that particular bargaining agent offer to renegotiate the contract. However, the Superior Bus case is different in that it's a receiver manager and then a sale.

There is a great deal of case law developing at this point around that issue and we have not dealt with that in the amendments because of the changing case law and our, I suppose, inability to predict which way that is going to go. We're waiting for decisions and we will watch very closely what happens. We haven't had, over the past 15 years or so, not until the last few years, the number of bankruptcies, receivers appointed, that sort of thing happen. So, the law is now just developing around that situation. MADAM CHAIRMAN: Mr. Mercier. MR. G.

MERCIER: What would happen in a situation where, for example, a business closed on February 1st,

Thursday, 28 June, 1984 it was a union agreement and two or three months later someone purchased the assets of the business and began to operate it as a going concern? Would this

section have any implications, would that . . . HON. M.B. DOLIN: I'm sorry, Mr. Mercier, I'm having trouble hearing you. MADAM CHAIRMAN: Mr. Johnston, could we have order? We can't hear. MR. G. MERCIER: What would happen in a situation where a business closed, for example, on February 1st and two or three months later someone buys the assets of the business and operates it as a going concern? There was a union agreement in effect. Under these sections, could that union attempt to impose that agreement on the new purchaser of the assets who is then operating them as a going concern? HON. M.B.

DOLIN: I would think that it would have to be case specific because I wouldn't know whether the employees would have been laid off, with severance pay, disbanded, found other jobs. I wouldn't know whether they would be recalled as a unit by the new owner somewhere down the road. If the sale took place in perhaps a shorter period of time, I would say that it probably it would apply. But I think. it would have to be case specific. lt would have to be determined by the situation at hand and whether the employees were in fact there. MR. G. MERCIER: I think it's important we get an answer on this question.

On February 1st the employees are laid off; the business shuts down. Within two or three months, the employer sells the assets of the business and somehow the purchaser starts up the business two or three months later, four or five months later. Under that situation, could that purchaser of the assets, who is then operating them as a going concern, somehow be compelled to comply with the union agreement which had existed? HON. M.B.

DOLIN: I think there is a piece missing from this puzzle you are putting before us, and tha t's the layoff of the employees which would probably have been under the conditions laid out in the contract and they would have, in fact, been laid off. That would have terminated the contract. But on the face of it, yes, it applies. But you're laying out a case three or four or five months later. I'm sure those employees would have been laid off under the terms of their contract. MR. G. MERCIER: If they were laid off under the terms of the union agreement . . . HON. M.B. DOLIN: The business closes. MR. G.

MERCIER: . . . and the business closed, is the Minister then saying that that new purchaser would not be bound by the union agreement in that situation? HON. M.B. DOLIN: The new owner has the same right of layoff under the contract that the previous owner had, but I guess I'm still puzzled by how four or five 83 months later the new owner would re-employ. Now this might happen, I suppose, if you had people who were laid off and never moved away from a small town, let's say, and they still were the re, I fail to see how they would have survived for those four or five months.

So you would not, in fact, have them, but the new owner does inherit the contract with all of its clause s including its layoff clauses. MR. G. MERCIER: Is the Minister saying that under the circumstance s that I have cited, the purchaser of those assets who starts up the business, two, three, four, five months later, would be bound by the terms of tha t union agreement that the union had with the vendor of the assets of the business?

I ask this question in all sincerity because it is a situation that happens on a regular basis, and with the stat e of the economy over the past two years, it happens on a regular basis. I would like to have a definite answer. HON. M.B. DOLIN: If the member could refer to Page 32 at the bottom, 47(2)(b), "at the time of the sale a union is bargaining agent for any of the employees emplo yed in the busin ess ... "If there are no employees employed in the business, I think you have your answer. lt's talking about the employees employed in the business. There is no business. MR. G.

MERCIER: Is the Minister saying then that the purchaser in those circumstances would not be bound by the union agreement, because at the time of his purchase of the assets, the business was not operating and the employees were not employed in the business? HON. M.B.

DOLIN: This is ge tting extremely hypothetical, because we're talking about a situation I believe where there is a business that is not operating, maybe an empty building for all I know, has nobody employed in it, has a number of people - the former employees - all laid off by the previous owner and someone comes along and purchases what's left of that business. Sometimes when they purchase, as you said at the beginning, the assets of that business, there certainly have been times when the only asset left was a pension fund and businesses have been purchased just for tha t and never operated.

So again, as I say, we are really far into the land of hypothesis here. Should the new employer have a few people still left, a skeleton crew, let's say, keeping th e plant under surveillance, the maintenance staff or something like that still there, yes, the

section would apply. The balance of the time of the contracting - you're talking four or five months, it probably was in effect for a while, it might be a week a month, two months to run - yes, that cont ract is in effect with all of its clauses and any recall provisions that might be there in the contract. If the new owner started up the business I would think tha t that owner would have to abide by the recall, the seniority lists and so on, provided for in the contract. MR. G.

MERCIER: The Minister's answer then causes me a lot of concern, because there have been during the past few number of years with the economy in the shape it's been, a number of businesses that have shut down because they have not become viable operations.

Thursday, 28 June, 1984 The Minister's

interpretation of the act and its intent is correct. lt is certainly going to discourage and act as a disincentive to people who want to attempt to rescue businesses that have floundered or become insolvent. HON. M.B. DOLIN: The member's intent is now clearer to me as well, because I believe what you are suggesting, Mr.

Mercier, is that it would be appropriate for someone who is in a floundering business, or a business that's in trouble - let's assume that it is, we don't know that, we don't see the books but we assume it's in trouble - that business is cl osed down and sold, and comes back without a union, without a bargaining agent. That's no way to treat people. That's no way to get rid of a union; that's not appropriate. MADAM CHAIRMAN: Page 32 - Mr. Banman. MR. R. BANMAN: The Minister is saying, let's use an example of San Antonio Gold Mines.

They've been closed down and the assets are left in place; it's closed for five or six months and somebody manages to buy it. Is the Minister saying that if there's a contract that's still in place, that that new company has to take over that contract? HON. M.B. DOLIN: That's correct. MADAM CHAIRMAN: Page 32-pass; Page 33-pass; Page 34 - Mr. Harapiak. MR. H. HARAPIAK: I move THAT the proposed

section 48 of The Labour Relations Act as set out in

section 25 of Bill 22 be amended by striking out the words "respondents to the application" in the 4th line thereof and substituting. therefor the words "parties involved in the alleged sale". MADAM CHAIRMAN: Amendment- pass; Page 34, as amended- pass; Page 35 - Mr. Mercier. MR. G. MERCIER:

Section 50( 1 ), is that a new section? HON. M.B. DOLIN: No, that is not a new section. MR. G. MERCIER: What is the existing section? HON. M.B. DOLIN: The existing one is 119. 1. MR. H. HARAPIAK: I have an amendment from Mr. Mercier. I move THAT the proposed sect ion 50 of The Labour Relations Act as set out in

section 25 of Bill 22 be amended (

a) by striking out the words "on its own motion" in the 1st and 2nd lines of subsection (1) thereof and substituting therefor the words "in any other proceeding before the board"; and (

b) by striking out subsection (2) thereof and substituting therefor the following subsection: Duty on affected parties. 50(2) Where on the hearing of an application or in the course of a proceeding referred to in subsection 84 (1) it is alle ge d that more th an one corpora tion, individual, firm, syn dicate, association or any combination thereof are or were under common control or direct ion, the parties affected by the allegation shall adduce all facts within their knowledge which are material to the allegation. A MEMBER: Are you sure about that, Harry? MADAM CHAIRMAN: Amendment- pass? Ms. Dolin. HON. M.B. DOLIN: The whole

section has been clarified to indicate that. Do you want me to explain the

section or the amendm ents, by the way? What are you asking for? A MEMBER: The amendments. HON. M.B. DOLIN: The proposed amendments to

section 50 have been changed to make it procedurally parallel to the successor rights provisions. Thus the board will be able to make a determination of a single employer either on a special application or where the que stion arises out of any other proceeding of the board. In subsection (2), that has been change d to make it cle ar that in both such situations that I described, the parties who are alleged to be involved must provide the board with relevant information. MR. G. MERCIER: Why is it necessary to put such a

section in the act? HON. M.B. DOLIN: As we pointed out, it's not entirely new. The

section has been clarified to indicate that an application can be made for a determination that shows that two corporations are really one. The present

section seems to require that this determination can only be made in he contex t of some other proceeding. The reference for precedent - this

section is virtually identical to

section 1(4) of The Ontario Labour Relations Act. MR. G. MERCIER: Why

Document details

Collection	Manitoba — Debates (Hansard)
Citation	32-3-ir3
Type	hansard
Volume / chapter	32nd 3rd hansardpdf ir3.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	377d0bb8c72e415b53b563248f59b46ac8a7c739

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