1987 Legislative Session: 1st Session, 34th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

WEDNESDAY, JUNE 10, 1987

Afternoon Sitting

[ Page

1679 ]

CONTENTS

Routine Proceedings

Dual Elected Office Prohibition Act (Bill M203). Mr. R. Fraser

Introduction and first reading –– 1679

Oral Questions

Writ filed by Attorney-General. Mr. Harcourt –– 1679

Aids funding. Mr. Clark –– 1679

Proposed offshore petroleum exploration. Mr. Guno –– 1680

Meech Lake accord. Mr. Guno –– 1680

Offshore drilling in South Moresby region. Ms. Smallwood –– 1681

Presenting Reports –– 1681

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

Hanson) –– 1681

Mr. Gabelmann

Mr. Miller

Mr. Clark

Mr. Lovick

Mr. R. Fraser

Mr. Hewitt

Hon. Mr. Brummet

Ms. Smallwood

Appendix –– 1703

The House met at 2:08 p.m.

Prayers.

MR. CLARK: I'd like the House to acknowledge that the second

member for Langley beat the second member for Vancouver East in the

celebrity wheelchair race last night. As we were going around the

left-hand turn, I was quite far in advance, but at the end of the race,

there's a hard right that I had trouble in negotiating. The second

member for Langley then snuck ahead.

MR. PETERSON: I'd like to acknowledge the good fellowship we

enjoyed last night at the Harry Jerome international track meet. I

think a few more things like that should go on; it makes us able to do

our work in here a little better. I certainly did have fun last night;

it was an enjoyable experience. I did have to learn to turn a little

bit to the left on that track, too.

MR. CHALMERS: Mr. Speaker, somewhere in the gallery today we

have a gentleman visiting who lives in your riding. He came from the

Okanagan, where he lived and worked in the insurance industry, was very

active in community affairs and served on the executive of the local

constituency for the Social Credit Party. I'd like everybody in the

House to give a warm welcome to Mr. Mark Cloutier, please.

MR. WILLIAMS: I ask the House to welcome Mary Rawson in the gallery, a former member of the Land Commission.

Introduction of Bills

DUAL ELECTED OFFICE PROHIBITION ACT

On a motion by Mr. R. Fraser, Bill M203, Dual Elected Office

Prohibition Act, introduced, read a first time and ordered to be placed

on orders of the day for second reading at the next sitting of the

House after today.

Oral Questions

WRIT FILED BY ATTORNEY-GENERAL

MR. HARCOURT: I'd like to ask the Premier a question about

the recent judgment on the injunction application. It's my

understanding that Mr. Justice Meredith said that the application was a

misuse of the courts, that amending the statement of claim exonerated

all of the defendants. I'd like to know, Mr. Premier, if you are

prepared to apologize to the people of British Columbia and to these

innocent defendants who have had to go before the court on this very

unnecessary and unfortunate political misuse of the courts.

HON. MR. VANDER ZALM: The use of the courts is never a misuse. The judge

rules in a court. We accept the judge's ruling, and we do not begin to label

it misuse, because I think the process is one we respect and continue to respect,

regardless of the outcome.

MR. HARCOURT: A supplementary to the Premier. Mr. Justice

Meredith said this was a misuse of the courts. That is what he said. I

wonder, after the wholesale amending of the statement of claim, whether

you can have any confidence at all in your Attorney-General and the

advice he is giving you and your government.

HON. MR. VANDER ZALM: We're hearing from the Leader of the

Opposition after the fact, certainly. I would like to ask if perhaps we

may at some point hear from the Leader of the Opposition whether he

condoned the illegal acts of a week ago.

MR. HARCOURT: A supplementary. The Premier had the

opportunity to do that by taking action against his own employees and

has chosen not to. I would assume that he thinks what they did was

legal.

The supplementary is that this action that he refuses to address in

terms of my question about the Attorney-General was hatched in his

office. The conspiracy was in his office, the Premier's office.

I would like to know, Mr. Premier, because this was a vexatious

action and a misuse of the courts, if you are going to make a

commitment here to at least pay.... If you won't apologize — and we

were disappointed that you wouldn't do that — at least make a

commitment and give an undertaking here to reimburse the defendants for

their costs in this misuse of the courts.

HON. MR. VANDER ZALM: Mr. Speaker, taking an action on behalf

of British Columbians, given the circumstances as we saw them a week

ago, is hardly a conspiracy.

[2:15]

AIDS FUNDING

MR. CLARK: A question to the Minister of Health. British

Columbia has the highest rate of AIDS in Canada. One out of 45 people

in Vancouver test positive for the AIDS antibody. It appears to many

people that the minister's personal philosophy is determining policy.

If that is not the case, how can the minister possibly justify his

rejection of an application from AIDS Vancouver for a grant of only

$250,000?

HON. MR. DUECK: To begin with, I don't know how anyone in the

opposition can say that I rule by a certain philosophy or a certain

feeling that I may or may not have. I don't ask the opposition why they

take a stand that they take. It is my responsibility to act in the best

interest of the province,

I must say that when I am accused of not spending $250,000 for AIDS,

that does not say that we don't spend millions of dollars in that

particular area. I would also like to make it very, very clear that

when we look at ill people, we don't look at what their illness is. We

don't look at whether they are sick because they have cancer or AIDS,

or whether it is an accident caused through alcohol abuse. We don't ask

those questions. We deal with health issues because people are sick.

As for AIDS Vancouver in particular, they were never promised any

money at all. We gave them a bridging fund of $30,000, and then

extended that with another $15,000, which made it $45,000. At the time

this money was granted,

[ Page 1680 ]

it was a one-time grant. It was clearly understood. We budgeted no extra money this year.

I must say that we spend roughly $150,000 to $200,000 per AIDS

patient. We look after them in hospital; we give them access to

everything there is in our power to give as far as any other patient is

concerned when it comes to health. So for someone to accuse me or the

province of not giving them $250,000 is a very poor accusation, and it

should be withdrawn.

MR. CLARK: The minister said publicly last night that it was

all right with him if "they want to help their own kind." What did he

mean by that statement?

HON. MR. DUECK: That is very, very simple. Many people have

formed societies. For example, Alcoholics Anonymous is a society formed

to help alcoholics. Others have helped by forming a society to look

after mentally handicapped. That was no slur; nothing was meant other

than that any group at any time has sympathy towards a group of their

kind. They are not only welcome, but we are very supportive of people

helping each other on a voluntary basis. I must also say that as far as

AIDS Vancouver is concerned, we are helping them with a homemaker

service, which is available to any group.

When it comes to looking after their own, as far as counselling or

what have you is concerned, that's not on our program in any other

sector of society. When I say "their own kind" I mean someone who knows

of someone who is ill; it doesn't have to be of the same kind as far as

philosophy or their lifestyle is concerned. It may be a cousin, it may

be an uncle, it may be a mother. That's what I meant, because we were

talking in general terms — people forming societies to help the kind

they wish to help.

MR. CLARK: A supplementary. St. Paul's Hospital estimates

1,000 AIDS cases by December 1989. The minister himself said $150,000

to $250,000. It's quite clear that community groups are more

cost-effective, and that's been proven in New York and elsewhere. Will

the minister order an independent review of the comparative costs of

the kind of volunteer homemaker service provided by AIDS Vancouver

versus stay in hospital?

HON. MR. DUECK: I said very clearly just a little while ago

that we have a criterion for supplying a homemaker service which also

applies to AIDS patients. We make no exception. Anyone in the society

that needs that help and fits into the program, as far as our criterion

is concerned, can ask for that and it will be provided.

As far as St. Paul's is concerned, there are at any one time roughly

12 — maybe 10 to 15 — dying of AIDS. These people — and I wish the

member would listen; he's the one who asked the question — who are

dying of AIDS, when they reach the hospital....

Interjections.

HON. MR. DUECK: What I was going to say — what I am saying —

is that once they reach the hospital, they are in a condition where

they cannot be looked after in their home. They are sick; they are

there to die. Other than that, they are being looked after in friends'

homes and what have you; and if AIDS Vancouver has a specific program

such as homemaker, if they think they're not getting enough homemaker,

let them get in touch with our society in Vancouver. There are criteria

and we will gladly do it, the same as we do for anyone else who is

sick; it doesn't matter what the sickness is.

PROPOSED OFFSHORE PETROLEUM EXPLORATION

MR. GUNO: Mr. Speaker, my question is to the Minister of

Energy, Mines and Petroleum Resources. The area that is being proposed

for offshore petroleum exploration is on a major salmon migration route

for the Nass and Skeena Rivers. The announcement by the provincial and

federal governments on Monday makes no mention of this fact, or of the

negative effects petroleum exploration might have on the migration. In

light of this, will the minister reconsider the decision to begin the

process of lifting the moratorium?

HON. MR. DAVIS: Mr. Speaker, preparatory to the announcement

recently about a resumption of exploration and drilling, there was a

three-year federal-provincial environmental review of all ecological

matters, including salmon runs and so on, and input was received from

the fishing industry, from others concerned about environmental impact.

There were some 92 recommendations, virtually all of which have been

taken seriously to heart. They are all requirements, conditions of any

exploration or development in the future. So the fishing industry's

interests and concerns have been addressed, and all of their concerns,

to my knowledge, have been taken into account in the new rules and

regulations which would obtain if there is exploration and development.

MR. GUNO: Mr. Speaker, a supplementary to the Premier. Hecate

Strait, where petroleum exploration has been proposed, is part of the

Haida sea claim. Despite being discussed in the west coast offshore

panel's report, no attention is being paid to the fact in the recent

government announcement. What has the Premier decided to do to ensure

that the Haida claim is resolved before any offshore petroleum

exploration begins?

HON. MR. VANDER ZALM: No decision has been made.

MEECH LAKE ACCORD

MR. GUNO: A new question to the Premier. On Tuesday, Premier

Hatfield indicated he would be willing to reopen the Meech Lake accord

to include a requirement for another first minister's conference on

aboriginal self-government and to remove the clause requiring unanimous

consent for the creation of new provinces. Will the Premier of this

province agree to reopen the accord on these two points, so that the

rights of native people and the northerners can be recognized in it?

HON. MR. VANDER ZALM: Mr. Speaker, if we reopen the accord,

chances are there won't be an accord. Frankly, I think we should go

with the accord and proceed as the accord has been agreed upon.

[ Page

1681 ]

OFFSHORE DRILLING IN SOUTH MORESBY

REGION

MS. SMALLWOOD: My question is to the Minister of Environment.

Even though the establishment of a national park reserve in South

Moresby is imminent, negotiations have begun which will allow offshore

exploration in that area. Does the minister not agree that offshore

exploration will reduce the tourism potential in the South Moresby

region and will increase the risk of damage to the environmental

integrity of that area?

HON. MR. STRACHAN: There's a 20-kilometre extension from the

Queen Charlotte chain and also from the mainland. With that limit in

place, there would be no impact on tourism to the South Moresby

archipelago or to any areas of the Queen Charlottes.

Secondly, as the Minister of Energy, Mines and Petroleum Resources

(Hon. Mr. Davis) has indicated in an earlier question, the

environmental concerns have been addressed after some three very

serious years of discussion.

MS. SMALLWOOD: Supplementary to the Minister of Environment.

Is the Minister of Environment saying that the only studies that were

done were reported in the 1986 report?

HON. MR. STRACHAN: There were many others done, but that is a

massive study, Madam Member, and it contains, as the minister has

indicated, 92 recommendations for safeguarding the environment. We're

convinced, and so is the federal government, that those are adequate

and most appropriate safeguards.

MS. SMALLWOOD: The report indicates a need for further study.

My question is: has there been further study, and what is the

involvement of the Environment minister in this process? Is he

committed to putting the money into this project to do further studies?

HON. MR. STRACHAN: If further studies are required, I guess I

could take that under advisement. That's about all I could say about

the question at that point.

Hon. Mr. Richmond tabled an answer to a question on the order paper. [See appendix.]

Presenting Reports

MR. CRANDALL: I have the honour to present a report from the

Select Standing Committee on Standing Orders, Private Bills and

Members' Services.

I move that the report be read and received.

Motion approved.

MS. SMALLWOOD: I'd like to ask leave to give an introduction.

Leave granted.

MS. SMALLWOOD: I'd like to make an introduction on behalf of the

member for New Westminster (Ms. A. Hagen), who is unable to be here. Today in

the galleries there is a class of grade 7 students from the Lord Kelvin Elementary

School.

There are 25 students, and I'd like the House to make them welcome.

CLERK-ASSISTANT:

"Report No. 3, June 10, 1987.

"Mr. Speaker, your Select Standing Committee on

Standing Orders, Private Bills and Members' Services begs leave to

report as follows:

"That the

preamble of Bill PR403. Intituled Columbia

Bible College Act, has been proved and the bill ordered to be reported

as amended.

"That the

preamble of Bill PR404, intituled

An Act to

Incorporate Mission Foundation, has been proved and the bill ordered to

be reported as amended.

"All of which is respectfully submitted."

MR. CRANDALL: Mr. Speaker, by leave, I move that the rules be suspended and the report adopted.

Leave granted.

Motion approved.

Orders of the Day

HON. MR. STRACHAN: Mr. Speaker, I call committee on Bill 19.

INDUSTRIAL RELATIONS REFORM ACT, 1987

(continued)

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

section 42.

MR. GABELMANN: As we drew towards 6 o'clock yesterday

evening, Mr. Chairman, we were discussing a concern of members on this

side of the House in respect to the last few words in this clause,

which says: "'There shall be no strikes or lockouts so long as this

agreement continues to operate.'" Our concern was that we feared this

clause could potentially restrict the ability of a trade union to

declare a partial strike or a rotating strike or an intermittent strike.

[2:30]

I had an opportunity this morning to consult further with legal

opinion within the Ministry of Labour, and for that I want to say thank

you to the Deputy Minister of Labour. I very much appreciate that that

can take place. I feel relatively sure, given no change to the B.C.

Court of Appeal decision in respect of the Paccar case at the Supreme

Court, that our concern will not be founded. But should the Supreme

Court make a decision that an employer indeed does have the right to

expiry date, then we will, I think, need further legislative amendment.

The concern is that it appears that the law says — and will continue to

say if the Supreme Court does not change it — that when a contract has

expired, the collective agreement is not necessarily in force but its

and in many ways it is a narrow distinction; but it is a very important

distinction.

What we want to avoid here — and I'm sure the minister is in

agreement with this — is the opportunity for employers to change the

[ Page 1682 ]

following its expiry but before completion of or

ratification of a new agreement. So if some members of the bargaining

unit — either the whole of the bargaining unit, some portion of it, all

of them intermittently or any variation on that — continue to work, it

may be clear that the collective agreement is not in force, but its

minister that that is his intention, his policy — that his intention is

that the law of this province reflect that principle — then I feel

satisfied we can move on. Should any court decision upset that

principle, we then need virtually immediate legislative rectification

of that in order to preserve the principle that I've tried to enunciate

here.

If I have expressed it correctly and the minister agrees with my

interpretation, and agrees that that is his policy as well, then I

would feel satisfied in not pursuing this particular issue in this

section. There is another

section that flows from this

section which I

want to discuss briefly after that.

HON. L. HANSON: Certainly I agree with the

interpretation of

the clause by the member for North Island. There is no question of

that. As I understand it, his reference to the issue before the Supreme

Court of Canada deals with two lower court decisions, and it is

difficult to discuss that case as such. It's difficult to say, you

know, what that decision would be. It's difficult to comment on it

until you see what the actual decision is. But I certainly would look

at that situation very quickly, if that were the case.

MR. GABELMANN: That's fine, I think, Mr. Chairman. I hope the

minister would do more than look at it but would act to make sure that

the principles we're in apparent agreement about are in fact

maintained, if a court decision were to upset that principle. I think I

feel fairly comfortable that that is indeed the case.

The obvious reason for the introduction of this particular

section —

and I mentioned this almost in passing yesterday; I didn't deal with it

in any length — is to allow employers to sue for damages if they don't

have a comparable clause in the collective agreement, if there is a

midterm strike or some activity that would qualify under the definition

of "strike."

It seems to me that if employers are insistent upon the right to be

able to sue for damages, then they should insist on a clause in the

collective agreement that would enable them to have that right. Most

employers in British Columbia, in fact, have negotiated agreements with

their unions which have such a clause, which then enables suits for

damages to ensue.

So the first point I want to make is that it's a free country out

there. If they want the right to sue, they should go and have the

clause inserted. If they don't want the right to sue, they should not

bother with getting that clause. I don't see why the government should

interfere in the marketplace in that way. It may well be the labour

marketplace, but it's an interference that just doesn't seem warranted,

in my view.

The government talks constantly and repeatedly, everywhere it goes,

about not interfering in the marketplace. But it sure wants to

interfere in the labour marketplace. It's a curious philosophical

dichotomy that baffles me, frankly. It's not consistent

philosophically. So I make that point. If they want the right to sue,

let them negotiate a clause. If they can't or won't negotiate a clause,

they don't have the right to sue. Simple as that. You don't have to

give them a clause they may not want or be able to negotiate. Why give

it to them? Leave it to the table. Let parties be free to make

decisions about matters that govern their relationships. Don't have the

Legislature interfering in the freedom of people to make contracts out

there.

That's a fundamental point that puts us, I guess, on the right,

politically, of the government. The government is in favour of massive

government intervention in this matter. We're in favour of a more free

market system. An irony in....

Interjection.

MR. GABELMANN: The Premier smiles, or chortles, or giggles,

or laughs at this point. That's a philosophical fact of life. The

government is writing a law that says: "The following sentences will be

in collective agreements." You know you don't say that to the

commercial contract-makers out there. You don't say that to the

unwritten contract between a purchaser of a quart of milk and Canada

Safeway. You don't say: "There will be a clause — unwritten or written

— in how it's going to govern how you determine what the price of that

quart of milk is going to be, or on what days you can buy that quart of

milk, or if it's sour that you can sue." That's left to the common law.

It's left to the relationship between the consumer and the seller.

But you abandon the principle when it comes to labour law. You're as

interventionist as any government in North America — and that's putting

it politely, mildly and understating it; in fact, more interventionist

that any government on the continent. It's a curious irony, I think, in

politics in this province. The public should know about it. Believe me,

Mr. Chairman, they will, if they don't already.

I want to make another point. I want to make an industrial relations

point about this same clause. That is that almost always, if not

always, when suits for damages are filed....

AN HON. MEMBER: It's getting too hot in here.

MR. GABELMANN: No. I understand that the Premier has other

work to do. He's got the whole afternoon to try to prepare an answer

for the Leader of the Opposition.

MR. CHAIRMAN: Back to

section 42.

MR. GABELMANN: I will continue with

section 42, Mr. Chairman.

The industrial relations point is this: if suits for damages are

filed, almost always, if not always, those suits for damages end up at

the bargaining table, and they're bargained away. They're put on the

table and no agreement is signed until the suit is withdrawn. Whenever

there is a suit for damages, it's a spoiler in the attempt to create

and develop a good bond and trust between the two parties.

The minister's response, no doubt, would be or should be that the

employer's suit is a response to an illegal activity, or an alleged

illegal activity. But usually that alleged illegal activity is in

response to some other activity of the employer, so it's a

chicken-and-egg thing, and it usually emanates from bad labour

relations that often date back for years. Our task, as legislators, and

the minister's task, as the person responsible for governing labour

relations, should be to find a way of breaking those cycles, bringing

the parties together in a more amicable setting than might now exist.

When you allow for an unlimited right to sue, when parties may have chosen in their negotiations not to put a

[ Page 1683 ]

clause in that will allow that, you inject yet

another negative element into the efforts to build good relations

between the parties, and you inject another element which will make the

eventual resolution of the dispute more difficult, because it has to be

bargained away. And it will be. They may have to give up a nickel an

hour, they may have to give up a clause, they may have to give up

something in order to bargain it away, or they may have to take a

strike to get it off the table, but inevitably it will come off the

table. So what do you do? You raise not necessarily the likelihood but

the possibility at least — I'm probably looking for a word between

"possible" and "likely" — that you will have strikes or lockouts where

you might not otherwise have had them, because you're adding a more

difficult item to be resolved at the table. It doesn't help good

relations.

I guess this point is a good one. It's not a major issue in terms of

the bad stuff in this bill, but it's a perfect illustration of the

mindset of the government in drafting this law. The mindset was "punish

people" rather than "find ways to bring people together."

I can understand if the Attorney-General wants to go off in his

gunslinger mode, shooting everybody on sight, but the Labour minister

has a different responsibility. The Labour minister has a

responsibility to try to promote good industrial relations. Despite the

watering down of

section 27, that goal is still there. This doesn't do

it. This just adds another sore point, a picking point, an area where

if bad relations are going along they can only be made worse. This

can't help things; it can only make it worse.

I'll go back to my original point: if employers and employees decide

collectively that they don't want this kind of clause, then let them go

along without that kind of clause. The government doesn't have an

interest in whether or not, in that situation, the employer has a right

to sue. Why would the government want to do this? No good industrial

relations purpose is served.

I can't say much more than that. As far as I know anyway, that's the

argument, and I'm not going to repeat it. I just make it, and I think

the minister should recognize that this is counterproductive to good

labour relations.

MR. CHAIRMAN: The first member for Vancouver East asks leave to make an introduction.

Leave granted.

MR. WILLIAMS: I ask the House to welcome in the precincts Mr.

Patrick Kinsella. It's an indication of how low the government is in

the polls. We welcome this adviser to Mr. Mulroney, who is equally low

in the polls, and we welcome the man the Premier wouldn't hire as

recently as last year. I'm sure they'll make beautiful music together.

[2:45]

MR. HEWITT: On a point of order, Mr. Chairman, I'd just like

to make a comment that I feel the member opposite has abused the leave

granted him to make a proper introduction. I would ask that he

apologize to the House.

Interjections.

MR. CHAIRMAN: I think we've had enough, hon. members. Leave

was asked and leave was granted, all with the best of intentions. The

member does make a point. Let's continue with our debate on

section 42.

MR. GABELMANN: Mr. Chairman, I don't have any more to say

about it. I'm disappointed that the minister wouldn't share with us his

views on the subject, not with the intention of having a longer debate

— unless he says something outrageous — but simply because this is, I

think, an important issue and one on which the public deserves a view

from the minister.

HON. L. HANSON: Mr. Chairman, as my critic mentioned earlier,

I think we do have a difference in philosophy, with his earlier

suggestions, and I accept that as being a difference in how our two

parties see things. There certainly is no intention on the part of the

government to create great difficulty in the labour relations field by

this clause; but we do feel, as a philosophy, that there should be a

recourse as a result of actions contrary to the agreement, and that's

what we're providing, I guess. In this section, I recognize the

concerns of the member for North Island, and his experience in

industrial relations and as critic for a number of years in this House.

But we don't think we are promoting legal wrangling. I understand the

member's comments, and I appreciate the dialogue that goes back and

forth, but we certainly don't intend to promote legal wrangling. We

subscribe to the philosophy that if there is an illegal action, there

should be a remedy.

Section 42 approved on division.

section 43.

HON. L. HANSON: I move the amendment to

section 43 standing in my name on the order paper. [See appendix.]

In the original draft the wording was that a strike or lockout vote

would not be allowed until the parties had reached an impasse in

bargaining. That provision was not to delay strike or lockout votes

until after negotiations had completely broken down and the parties

were at the dispute level: it was only our intention to ensure that a

reasonable amount of meaningful bargaining had taken place before a

strike or lockout vote was conducted, and that's the substance of the

amendment.

Amendment approved.

section 43 as amended.

MR. MILLER: A very brief question in terms of how that will

be defined. Would permission have to be obtained, or would one party

complain to the council that the process defined in the

section had not

taken place? In other words, at what point.... ? How is that to be

determined?

HON. L. HANSON: Mr. Chairman. first of all, let me go a

little bit into the background. A number of briefs and submissions that

we received indicated that a strike or lockout vote had taken place

even before an exchange of initial positions. We feel that as a

philosophy this is wrong, that to deliver a strike notice, or at least

have a strike or lockout vote before some exchange of positions by the

two parties, is

[ Page 1684 ]

contrary to good collective bargaining. I realize

the member's question is: how do you determine meaningful collective

bargaining? I think as much as anything it is a message that bargaining

should be taking place. But there is a case to be made that there is a

possibility, where a strike vote has been taken or a lockout vote has

been taken — whichever side is doing the vote — prior to any meaningful

negotiations taking place, that they may want to take that to the board

to prove that it has happened prior to a meaningful bargaining process

taking place, and the board will make their determination.

I think it's very much in the form of a philosophy or a message that

you should really sit down and do some bargaining before a strike or a

lockout vote is taken. We view that happening prior to any bargaining

as being contrary to the interests of both of the parties and of the

general public. As for requiring meaningful bargaining, again, I know

that we can get into a long discussion of meaningful bargaining, but I

think it's a determination that the board would make if it does get

presented with a case.

MR. MILLER: The minister is right. Each party knows whether

they're bargaining in good faith, but sometimes it's hard to convince

the other party whether or not you are, or it's hard to prove whether

you are or not.

I would contend that the same holds true for a strike vote. In fact,

I think there is a built-in bias actually when it comes to negotiating

under certain circumstances. Let's face it, employers with any degree

of skill in negotiating know that a pre-bargaining strike vote is

pretty useless to the union. In fact, that will be tested; make no

mistake about it. There is far more sophistication out there in

bargaining than this clause gives the parties credit for.

I guess to show my point on the other side, with a single employer,

of course, when we talk about votes, they don't apply. We can't read

the minds of people, and it may be an employer's intention to lock out

as a bargaining strategy. An employer, I guess, could sit down and say:

"Well, look, I've been reading. I know what's going to happen this

year; I can see some trends. I'm going to nail these guys pretty hard

and I think I can win some concessions." So it wouldn't apply in that

situation either. I just wanted to really point out that although I can

agree that if the process is meaningful, if the bargaining is

meaningful, it's preferable to take a strike vote at some point when

the process breaks down, in reality it has no practical application in

current bargaining today.

MR. CLARK: In the scheme of things, this isn't a large

section in terms of the act, but I have a couple of things. One is that

it seems to me to say that you can't take a strike vote before

collective bargaining. I mean, so what? They take a strike vote. Again,

it's this sort of interventionist, bureaucratic response to collective

bargaining. You kind of mire the thing in process and maybe it'll go

away. I just find it incomprehensible that the union now has to go and

prove somehow that there has been collective bargaining, and how you

prove that I don't know.

So maybe a couple of questions might clarify it. For example, if you

read this in conjunction with

part 8, which we'll get to hopefully

fairly soon, the new commissioner can appoint a mediator, a

fact-finder, a special mediator, a public interest inquiry board or all

this range of things. Is it your intention, Mr. Minister, that one of

those things would have to be exhausted or one of those remedies would

have to be sought prior to a strike vote being allowed to take place?

MR. CHAIRMAN: That is another

section I think you're dealing with, hon. member.

MR. CLARK: Okay. Well, we can do it then. All I am saying is:

how do you prove that you've engaged in collective bargaining before

you take a strike vote? You now have to justify before the council that

you've engaged in collective bargaining. When you read this

section in

conjunction with all these other powers of the commissioner to

intervene, is it the intent of this legislation to say that all of

those other avenues have to be explored prior to a strike vote taking

place?

HON. L. HANSON: No. Quite simply, the answer is no. I think

I'd like to point out that this

section is really a statement of

principle as much as anything. There may be the odd case go before the

Industrial Relations Council with the accusation that either side has

not bargained at all, but I'm sure that the IRC will deal with great

respect, looking at the situation that's happened, and I'm sure the IRC

will treat frivolous requests under this

section as just that,

frivolous requests.

MR. CLARK: So it's your intention that if they have some

meetings and then the union believes they want to take a strike vote,

and they go to the IRC and say,"We've had these meetings and we'd like

to take a strike vote," in a general sense it will be a pro forma

thing. It's just to ensure that they have some meetings before they

take a strike vote. If I could get that assurance.... I see the

minister nodding his head.

One problem I do have, though, is not from the union's point of

view. If I were a company and I wanted to delay a strike for whatever

reason or to frustrate, then I would keep putting off meeting, and if

the union wanted to take a strike vote, they'd have to go to the IRC

and say,"We're trying to bargain in good faith, but these guys won't

meet with us," which is a common thing in negotiations. Justice delayed

is justice denied is another way of putting it. If you slow down the

process — if you build up frustration — it's clearly not in the

interests of solving labour disputes or promoting harmonious labour

relations. So what's the remedy? If an employer fails to meet and then

the union hasn't bargained in good faith because it has trouble

meeting, can the union, under this section, take a strike vote? Do you

understand what I'm getting at?

[3:00]

HON. L. HANSON: Yes, I would certainly say that they should

be entitled to without any question. I'm sure that's the determination

that the IRC would make in that situation when there was a deliberate

attempt by one party or the other to avoid bargaining.

Section 43 as amended approved.

section 44.

MR. GABELMANN: Mr. Gov.... Mr. Chairman. For a government....

What's today, Wednesday? This is two weeks and one day on this. It's a

wonder we can put words

[ Page 1685 ]

together consecutively and have them make sense, actually, and occasionally we don't.

For a government that talks about reducing bureaucracy, this has got

to be one of the most bureaucratic, convoluted processes. It's only

part of a much bigger bureaucratic process, but this particular

section

really goes that extra step in developing a bureaucracy that we just

don't need in labour relations. It's a process that can frustrate good,

normal bargaining tensions. It adds an element into the discussions at

the bargaining table that really deflects from the appropriate tensions

that exist between labour and management. They are always going to be

looking over their heads to figure out whether or not all of these

requirements have been undertaken and whether or not all of the rules

have been met. Rather than just letting the parties knock heads and get

to it, they're always going to be affected dramatically and, I think,

in a way that will reduce their ability to focus on the real issue,

which is getting a collective agreement. They're always going to be

frustrated by this outside process.

Rather than make a big speech about all of this, I just want to get

some clarification from the minister, first of all, on why he thinks

this kind of process is necessary and why he hasn't given any

time-frame for the chairman of that part of the IRC to notify parties

under (3)(b). You can frustrate the process and stop it in its tracks

forever with no time limit under (3)(b). I guess the most effective

thing we can do, in terms of trying to debate all of this, is to do it

under

section 62. Trying to debate the philosophy of this massive

intervention under each of these sections just won't work in terms of a

constructive debate in this House.

We want to make the point that this is part of a mechanism which

will not assist industrial relations but will frustrate them, and will

do nothing other than make a lot of work for a bureaucracy, which we

don't need. If you want to bring Sam Bawlf back and have privatization

and deregulation, a good place to start would be the IRC. Just get rid

of it if you want to have deregulation in this province. Get rid of the

kind of bureaucratic nonsense that is required in a

section such as

this. That would be the very best place to start. But instead of doing

that, of course, we are building it up. Again, a philosophical point, I

guess: that the government believes in no regulation when it suits

their purpose, and in massive regulation when it suits their purpose.

There's no consistent philosophy here at all. They're on both sides of

the fence on this one.

We just want to express our view that even though no consequential

issue is involved in this particular section, this whole

bureaucratization of labour relations is a counterproductive and

useless way of building a good relationship between people in this

province. In the final analysis, the only way you are going to have

good labour relations and few strikes and lockouts is by having a good

relationship between parties who are not always looking over their

shoulder. All you can do now is look over your shoulder and try to

figure out if you've dotted every "i" and crossed every "t," and

whether you're in the right time-frame to do this and the right

time-frame to do that. This is a classic

section in that respect.

MR. CLARK: I of course concur with the member for North Island. It is bureaucratic in the extreme.

One little point I would like to pick up on is that under part

(3)(

b) there doesn't appear to be any restriction on time. There is a

potential problem in that the chairman is not required to notify the

parties of having received a fact-finder's report. You might want to

comment on that. In other words, this indicates that there's a time

limit after the chairman notifies the parties of the results of the

fact-finder's report, but no time limit is set on the chairman. It

appears that if a fact finder reports to the chairman, and the chairman

sits on it for two or three days before notifying the parties, that is

allowed. It may be another way of delaying the resolution of a dispute.

I'm not saying this will happen, but I think it should be codified in

the act. Maybe the minister could make his intentions clear in that

respect.

HON. L. HANSON: In the case of mediation, we don't have any

time limits now either. It's not that greatly different from that. But

I would like to point out to the member that the mandate of the

disputes resolution division which he's talking about — we get into

that in more detail in other sections — is to help collective

bargaining, not to hinder it. The suggestion that a chairman would sit

on it for an undue time simply to delay the process I think has.... In

the past, the practice in the appointment of mediators has been that

there is a time notice after the report is tabled before anything can

happen. So in that sense it really hasn't changed much.

MR. CLARK: I won't belabour the point, except to say that a

mediator was only an option before. Now, presumably, there is a

mediator, a fact-finder, a public interest inquiry board, That means it

would be advisable, it seems to me, to put some pressure on the

chairman to report back to the parties, because they could go from a

mediator's report to a public interest report and then to a

fact-finder's report, or those kinds of things. So I would just flag

that.

If you're going to have these things, which I completely disagree

with, there should be some tight reporting restrictions on the chairman

so that when a fact-finder's report is filed with the chairman, the

parties are notified immediately of the results of the report so that

it doesn't frustrate further the attempt of a trade union, or an

employer to lock out employees.

MR. LOVICK: I have just a very few comments about this that I

offer almost in a spirit of whimsy, because it seems to me pretty clear

that one of the effects of

section 44 will be to discourage people from

taking strike votes by two avenues: namely, exhaustion and confusion.

What will happen by trying to go through this elaborate process

sketched out in subsection (3) is that people will say: "Well, what is

involved in this process is, frankly, very difficult to comprehend and

analyze. We will therefore have to go through this. We'll probably have

to hire some legal help, or we'll have to get our staff people working

on this problem." All of which, of course, as I say in a whimsical

mood, will simply exhaust those people.

But I'm wondering, on a more serious note, if it might not have the

opposite effect of that intended; if this particular clause, taken in

concert with all those other clauses in the bill, might have the

impact. rather, of making people all the more convinced that the

government is putting obstacles in the way of its own resolution of

conflict; whether this is simply another example of the deck, as the

parties in the game perceive it, being stacked. That scares me a little

bit, because I don't think that's the intention here. But again, I

would suggest that that may well be perceived to be the case.

The other point I want to draw on very briefly — and I would invite the minister to respond, should he wish to — is

[ Page 1686 ]

the one suggested by my colleague the member for

North Island (Mr. Gabelmann): namely, the irony or the inconsistency

demonstrated here on the part of this government, which on the one hand

wants to talk about deregulation and privatization and getting

government and the state out of the way of people doing business, and

so forth, with the exception of industrial relations. In the area of

industrial relations, rather, we have this incredible labyrinth of

structures and constructs that confuses and perplexes everybody.

I'm reminded of my days as a graduate student. I used to say that to

be a good student in graduate school, what one had to do was become

functionally schizophrenic. What that meant, of course, is that you had

to be able to be literally two different people, because there were

times when you clearly had to look upon what you were doing as

absolutely the most important thing imaginable. But at other times you

had to be able to say: "This really, in terms of measuring the world,

is frankly quite trivial."

I suggest that maybe that's what this government does: it somehow

convinces itself that it can indeed be two completely different

personalities — contradictory personalities — and apparently it doesn't

have any identity crisis over that. As I say, one side of the

personality in this case is to say that we want smaller government

because we are philosophically and ideologically predisposed to regard

with suspicion big government and a too-interventionist state. But on

the other hand, when it comes to the realm of industrial relations, in

almost every single clause in this bill what we see is this

prescription for building something bigger, a more elaborate industrial

relations department.

I'm suggesting that there is a contradiction there that I don't

think will escape the notice and attention of most of the players in

the game, and that I think will simply take another cut at the

credibility of this government and this legislation. And that, as I

say, causes me some sadness, Mr. Chairman. Perhaps the minister would

care to respond.

MR. R. FRASER: When I listen to some of the presentations

from the members opposite, who are doing a diligent job, I wonder

sometimes if they take things in isolation a bit too much and tend to

look at sections individually instead of as part of a total package,

which indeed they are.

MR. GABELMANN: The Chairman wouldn't let us do that.

MR. R. FRASER: I understand. But you do have to reflect on

one being related to the other. Certainly the sections follow very well

here in that we do not want, any of us, frivolous lockouts or frivolous

strikes. Nor do we want to put people in the position of making some

statement in a rush of anxiety, anger, or whatever, and saying: "We're

locking out, we're striking, we're doing this, we're doing that."

Indeed, we want to, from my perspective, put a few obstacles in the

way.... This may be one way to do it. Maybe that was the intention, the

minister himself will say.

I certainly want the bargaining to go on in good faith — and I've

done some. Certainly there are frustrations in bargaining, as anybody

who's been involved can attest. But, in fact, if we remove the possible

ambitions of the union or the management and think more in terms of the

people, and we can keep people working while the bargaining is ongoing,

then indeed we are providing them with some income, the economy with

some effort, and, with luck, resolution without any disruption

whatever. So if that's what this is going to do — and that would be my

hope — then I have no difficulty supporting it.

[3:15]

AN HON. MEMBER: Here we go.

MR. GABELMANN: No, I'm going to resist the temptation to do a rhetorical response. I have to comment a little bit, though.

Frivolous strikes — or lockouts, for that matter? I don't ever

remember there being such a creature in the history of this province. I

know strikes and lockouts have happened, unfortunately because

inexperienced bargainers have closed all the doors too quickly. Talking

about closing all the doors, that's precisely what we're trying to tell

the Premier these days: don't close all the doors. Experienced

bargainers never do. That's when you sometimes get unnecessary strikes.

Just to make one other reference to the member's comments, and that

is that these processes.... In effect, I think you might have been

saying that, given the extra time delays and whatever, you're going to

cool things off; people will keep working and maybe it will be able to

be resolved after that. That might happen on occasion, I wouldn't deny

that. But what's more likely to happen is that the level of anger and

frustration will increase. Particularly for employees, you get to a

point where the boiling level has been reached. Once you've reached the

boiling level, the best thing you can do with it is to let steam

develop. It's a natural phenomenon in physics, and it's also a natural

phenomenon in human relations. If you get to the boiling point, the

very best thing that can happen is that the steam can be released. If

you don't release the steam, it's contained and you'll have an

explosion before long. That's a significant element of carefully

devised labour relations and labour law.

We've made the point now for ten weeks tomorrow that this law

doesn't recognize that point; that in fact the steam is going to be

contained, which will lead to explosions and destruction of what could

be a pretty decent system.

This

section — and we are on this

section — creates extra delays.

There's the 48-hour delay from the time of booking out until the strike

can take place. I presume that's so the IRC can find yet another

mechanism in its huge arsenal of mechanisms to inject into the process.

Interjection.

MR. GABELMANN: After the next election, the first member for

Vancouver South (Mr. R. Fraser) will have the opportunity to find out

what it's like on these benches. Our job is to be negative. The member

should be delighted that I think he's going to win Vancouver South next

time.

Interjections.

MR. GABELMANN: If I had control of the redistribution system, I'd probably win my seat too. But that's another issue, Mr. Chairman.

HON. MRS. JOHNSTON: You don't believe that.

MR. GABELMANN: Not yet I don't, that's right. Wait and see.

[ Page 1687 ]

However, to the amendment. It is in the Labour Code now that when

you want to go on strike, you have to issue a 72-hour strike notice to

your employer; and vice versa — and that's the next section. Sections

44 and 45 are sections that we have to read in conjunction: one is

strike, one is lockout. We're making the same arguments in respect to

both sections, and we may as well make them all on one

section because

they're mirror images of each other.

You have to give a 72-hour strike or lockout notice to the other

party. Now you have to give 72-hour notice to the IRC, but you only

have to give notice to the other party, as I read it. So there's no

requirement that the other party is.... That is as I read it; maybe

I've missed it. I'm quite happy to have the minister tell me I've

missed it. But it seems to me there's no time requirement for notice to

the other party.

In a way, if I'm right, it's quite symbolic of this whole

legislation. The relationship is between the parties. They should be

talking to each other, but the law is being rewritten so the parties

are talking not to each other but to the IRC. Now there is a

requirement that notice be given to the other party. I'm in 45; it's

the same point.

Let me go back to 44 then, because it's exactly the same issue. It's

a curious way of numbering, incidentally. In (b)(

i) it says: "...the

employer has been given written notice by the trade union that the

employees are going on strike." In (iii) it says that 72 hours are

required for notification to the IRC. Now theoretically — unless I've

missed this somewhere — the notice to the employer could be given and

the strike could take place a minute later. Obviously the employer is

going to know; there aren't many secrets when you get to that stage.

If I'm right about this, it clearly symbolizes the direction that

the government is going in respect of all of this legislation, which is

to make the IRC the central player, rather than the parties. The

responsibility should be on the parties, and if there is notice

required, if there are minimum hours required, it should be to the

parties. So I'm curious to know why that appears to have been....

Unless it's still in the Code and I have missed it, but I don't think

so, because I notice sections are struck, and we've got these new

sections in place. I'm just curious to know the reasons for that

particular change.

HON. L. HANSON: Mr. Chairman, 44 and 45 — you're quite right

— are mirrors of one another. The employer has been given written

notice by the trade union that the employees are going out, and then it

goes on to say: "...the written notice has been filed with the chairman

of the Disputes Resolution Division." That's the same notice. It says:

"...72 hours, or a longer period directed under this section, has

elapsed from the time the written notice was filed with the chairman of

the Disputes Resolution Division." To me that reads that 72 hours after

both notices are filed there is a requirement to.... At least, there is

that time lapse, as a delay before the actual strike can be put in

place.

MR. GABELMANN: I think I see that point. I'm assuming that in

(b)(ii) "the written notice" is the written notice that was given to

the employer. In other words, it has to go to the employer, and a copy

of that same notice goes to the IRC, and then 72 hours is required.

Okay, that's a misreading of mine then. I would agree that I have

misread it.

Other than that, Mr. Chairman, we've made the points I think we want to make on this section.

Sections 44 and 45 approved.

section 46.

MR. GABELMANN: Mr. Chairman, this is what you might call the

non-affiliation clause. I'm curious to know whether this

section is in

place as a result of Whistler and Duke Point, and to a certain extent

Expo, and if so, why it's necessary, since common sites were not

declared in those particular instances in any event. If it's not in

response to those kinds of situations, what is it in response to? What

was the motivation of the minister here?

HON. L. HANSON: Mr. Chairman, I guess I'm not as familiar

with the Duke Point and the Whistler Land Co. decision as my critic is,

but as a matter of philosophy, we believe that the treatment of a

development — and I guess this gets to those two decisions — permits

the building-trades members to withdraw from the entire project. We

believe that when you have that sort of site that is made up of a

number of projects, and the project is easily discernible, I guess, if

I can use a.... What can I think of? I don't know what the Whistler

decision was, but let's take Whistler as an example. There are three

hotels going up and a convention centre and so on. If all of those are

being developed by one owner and one project under one contract, then I

think it should be one project. But if they are being developed

independently on a common site, just the fact that they are on a common

site shouldn't make them one project.

MR. GABELMANN: The problem here is the definition of a

construction project. To take it to its ridiculous extent, if I'm

having an addition built on my house and at the same time I'm building

a garage at the other comer of my property, you could argue that those

are two construction projects.

Interjection.

MR. GABELMANN: You could argue that. Whether the IRC will

agree that it's one project or two, who knows? But you certainly could

argue that those are two projects. You get into a situation, I think —

not just me, but others have suggested this is the case — where every

construction project will be able to be designed to be more than one

project by definition, which will mean that the non-affiliation clause

will not be enforceable because you can't enforce a nonaffiliation

clause in two different projects if it's not a common site.

You're going to get into a situation where the lawyers will be

involved in determining how the construction project is going to be

established, so that there will be separate construction projects going

on in what, to date at least, has been considered one site. I

understand the government's perspective on the Whistler issue and on

the Duke Point issue.

I don't agree with it, but I understand in situations of that kind

when you're talking about large projects. You have different kinds of

buildings being constructed and you have different kinds of

construction activity taking place for what will end up being different

purposes, even though in my view they're part of an overall common

site. I understand but don't agree with the government's perspective

that there should be an ability to split it up.

With Expo the government chose the option of this special economic zone ruse that was developed. That kind of

[ Page 1688 ]

thing won't be necessary any more. It will all be

available under here. If the government is attempting to prevent the

possibility of common site declarations in issues comparable to Duke

Point and Whistler, I don't agree with it, but it is one thing. What

you do, I think, by establishing this language is to open it up to

virtually every construction project — the possibility of separate

projects being identified and defined within what would ordinarily have

been one project.

[3:30]

Therefore a construction union has the right to go on strike to

protect its affiliation clause on the one project, but it doesn't on

the separate projects. With this language, you're going to have a

situation where that definition is so loose that that right that

construction unions have had will be gone. It may well, however, be

entirely academic, because in 25 months we may not have any

construction unions left in this province anyway.

MR. R. FRASER: This bill saves them.

MR. GABELMANN: That's not what they think. However, I've made that point. I think I'll leave it at that, Mr. Chairman.

MR. CHAIRMAN: The Minister of Transportation and Highways rises to make an introduction. Shall leave be granted?

Leave granted.

HON. MR. MICHAEL: Mr. Chairman and colleagues, I would like

you to make welcome a constituent of mine from the beautiful city of

Armstrong, Frank Mahfouz. He has with him today some relatives of his

from Lebanon. There is Mohammad Mahfouz, Marian Mahfouz and Maurice

Abboud. I would like you to make them welcome. They wish me to relay

the message to the Legislative Assembly and to all of my colleagues

that they are very happy to be in a beautiful province such as British

Columbia; they're really enjoying themselves.

MR. LOVICK: First, may I say that we in the opposition would

also like to extend our greetings to the guests of the Minister of

Transportation and Highways. We hope they have an enjoyable time here.

I'm certainly not going to go into some long and elaborate

dissertation on this small

section of the bill, but what I want to

begin with is a question. It's a question that must appear on the face

of it to be rather trivial, but the more I look at the problem, the

more perplexed I am. We know clearly that sections 44 and 45 are in

fact just two sides of a particular coin, to all intents and purposes.

What strikes me is, however, a significant difference between sections

44 and 45 in the first clause, a kind of enabling clause. Let's see if

I can find it precisely.

Sections 44(

a) and 45(

a) both, in effect, begin with similar words:

"A person shall not declare or authorize" — on the one hand — "a

strike"; or, on the other hand,"a lockout." Then they use essentially

the same words. I believe they're almost identical, are they not? The

question is: in

section 45 we have a whole series of commas between the

parts of that sentence, but in

section 44, though the words, as I say,

are the same despite the fact we have just replaced "strike" with

"lockout," there aren't any commas.

I'm sorry. Am I losing you in the shuffle? Let me try again by numbering....

Interjection.

MR. LOVICK: No, we're on sections 44 and 45, are we not?

AN HON. MEMBER:

Section 46, the affiliation clause.

MR. LOVICK: I'm sorry. My apologies, then. I got mixed up in the shuffle.

MR. CHAIRMAN: It's quite all right, hon. member. We're on

section 46.

MR. CLARK:

Section 46 deals really with limiting the

affiliation clause in construction agreements and eliminating

affiliation clauses from other collective agreements. Once again, we

have serious reservations about this clause, and concern. It again

expropriates existing language freely negotiated between the parties,

without any compensation. It retroactively alters the terms of

collective agreements, and I guess importantly for the construction

unions, it overturns the Whistler and Duke Point decisions of the

labour board, which ruled that they were integrated sites.

I don't know if members of the House understand why this is so

significant. In normal industrial units, all of the bargaining unit

employees in an industrial setting become members of the union, and

they are protected by union security language, meaning that all members

have to be members of the union, there is a seniority list and all the

other things that go about industrial units. But on construction sites

there is no seniority. The protection, in terms of dealing with

enforcing the fact that everybody is in the union, comes from the

non-affiliation clauses, which is equivalent to what normal union

security clauses are in the industrial sector.

That's another problem I have with this section, It sets apart the

construction sector from all other sectors. It picks on essentially one

sector — the construction industry — and sets up a separate rule for

it. Because the rules on affiliation were designed to deal with the

fact that we didn't have a normal industrial unit; we have a

construction sector. So it says, really: "One law for one people, and

another law for another."

Do you think maybe the minister could answer a few questions, if

he's familiar with the Whistler case? By way of

preamble, what will

happen now? The fear is that construction companies will artificially

carve out units, and they'll have non-union sections working here and

union sections working there. What they'll do is say: "This hotel......

They'll put a steel fence around it. Then they'll have another hotel

under construction next door, and they'll have another fence around it,

and they'll say: "This one is union, and this one is non-union" — even

if there's perhaps an intermingling, or even if there isn't an

intermingling of employees. So it allows union to work alongside

non-union — certainly as I would read it — artificially. I think that's

what the Labour Relations Board said in the Duke Point and Whistler

decisions. They said those were common sites, and therefore had to be

either all non-union or all union. In those cases they said "all union"

because of the non-affiliation clause. So this retroactively, in my

view, voids those decisions of the labour board.

[ Page 1689 ]

Maybe I could ask the minister those two questions. First, is it

your belief that the Whistler and Duke Point decisions would now be

overturned by this language? Secondly, how do you propose to deal with

what I think will be the real fear, that different employers in

adjacent sites can carve out non-union sections of a union site? In

other words, by putting barriers around adjacent sites they will be

able to differentiate between the two.

HON. L. HANSON: Mr. Chairman, first of all, I am not as

familiar with the Whistler and Duke Point cases as the member opposite

probably is. But yes, we do disagree with those decisions. The

construction project is defined as a separate and distinct undertaking.

It should be determined that it can be carried on without integration

with other construction work. That will make it difficult to carve up

projects. I understand your hypothetical problem, but I don't think

that in reality the IRC is going to allow that to happen, because I

think projects are fairly easily determinable. If on the Whistler site

— and quite frankly that is a difference in philosophy.... If two

different companies decide to build two different hotels, they should

be two different projects. But that doesn't mean they couldn't both be

union or both be non-union. I don't think that there is any indication

there.

I have some familiarity with the Tumbler Ridge decision, although

again I don't want to.... I see the member for Esquimalt-Port Renfrew

(Mr. Sihota) is not there, so I won't get into a legal argument with

him. But the Tumbler Ridge decision, as I have had it explained to me,

was the opposite, and we feel that is the way the situation should be.

I guess there is nothing too wrong in admitting that that is the intent

of this section.

MR. CLARK: Two brief points. First, you say that it's easily

determinable. Well, I don't think it is. That is the problem we have,

and that is why we are trying to get at your intent. You've been

reasonably clear. Fair enough if there are two different hotels. The

problems come if it is a hotel and the hotel's golf course, or a hotel

and the garage behind it. In other words, it is the same hotel but

different compartments. Most of the fights have taken place with those

kinds of projects where it is essentially the same owner and two

different phases of the same project. Maybe the minister could tell me

if it is his intent that the golf course or the garage of the hotel

could be non-union-constructed and the hotel, union, with the same

owner and essentially the same site.

HON. L. HANSON: I really do wish that I was an experienced

trial lawyer or judge of a superior court, in order to be able to give

legal

interpretations of the various questions that have been asked.

I think that a project is defined as a single and distinct

undertaking. Again, determination of the various facts that relate to

that.... The IRC will make a decision as to whether it is a project or

not a project. To talk about specific cases is very difficult. We

mentioned the Whistler project. I think it went a lot further than the

garage behind a hotel. That is really the philosophy we are talking

about. I suppose that human beings, being what they are, have over the

years attempted to evade the thrust of everything done by legislation.

But I think it's clear enough. With a well-constituted IRC, which we

will have, those decisions will be as fair and reasonable as the facts

presented to them in a specific case.

MR. CLARK: With all due respect, this is a response you have

given a number of times — that it's a legal

interpretation. It's your

bill. This is a clause that you're authoring. What we're trying to find

out is not how the IRC might interpret it or how the member for

Esquimalt-Port Renfrew (Mr. Sihota) would; how do you think it should

be interpreted? That's what we're really trying to get at here. Not to

be aggressive or anything, we really want to know what your intent is.

[3:45]

Now you've said that you agree that this strikes down Whistler and

Duke Point, and you think that those decisions were bad ones from your

point of view, philosophical or otherwise. I'm trying to get the other

end then. You say that's too broad. How narrow is narrow is all I'm

trying to get at. In your opinion, not knowing all the facts, do you

think it's reasonable that the garage of the hotel or the golf course

of the same hotel, the same site essentially, should be the same — that

the affiliation clause should apply? Would you like to see the IRC

interpret this clause to say that in that kind of situation it makes

sense to allow the affiliation clauses to stand?

HON. L. HANSON: Well, you give me that hypothetical

situation; let me give you another one, and I can make it maybe clearer

that way. Let's say that somebody is going to build a hotel and

somebody else is going to build a parkade facility behind the hotel —

it may be the municipality wherever it is. Those are two separate and

distinct projects. But I don't know what the relationship of the garage

is to the hotel. I would suspect that if it's part of the hotel or it's

underneath the hotel, it should be one project. But those facts that

are given are going to determine whether it is declared as a project by

the IRC. It's very difficult to deal with those sorts of hypothetical

situations that you're talking about, but I believe that, as we're

dwelling on a hotel at the moment, there's no question in my mind that

if a garage is underneath the hotel or it's part of the structure, and

so on, it would be determined as one project. But I'm not going to say

that it would be. The IRC are going to make that determination when

they see who owns it and who designed it and all of the other things

that go along with determining that decision.

MR. CLARK: I'm still having a bit of trouble, because....

We're not trying to trap you, Mr. Minister, into saying something that

you don't want to say; we're just trying to get how....

MR. R. FRASER: We're not trying to trap you, but....

MR. CLARK: No, we're trying to get how.... The member for Vancouver South, why don't you speak in this debate?

Anyway, the question is: how narrow is it? In other words, you said that the

current one is too broad; this narrows it. I'm just trying to get at your

own intentions. And I understand a little bit more about it; we're getting

close. But you keep saying: "I'm sure the IRC would determine this

in a fair and reasonable manner." Well, they may well do, but we're

trying to give them some guidance into what you see as an integrated site. So

could you please just elaborate one more time on this if you could. If it were

a hotel and a separate parkade — in other words your hypothetical case — would

[ Page 1690 ]

you say that those were separate projects, under

that circumstance that you put to me, and therefore could be separate

companies and non-union and union? But if it were a parkade built by

the hotel to serve the patrons of the hotel, in your opinion under

those circumstances you would like to see the IRC decide that the

affiliation clause would apply.

HON. L. HANSON: Again, you make it a very simplistic case. I

can come back and make it a little more complicated and get a different

decision. If a hotel is being built and there's parking required and

it's part of the hotel, I think it should be one project.

[Mrs. Gran in the chair.]

But by the same token, let's say a hotel builds on this location

here — and I hate to get into these hypothetical things — and they

build that, and three-quarters of the way through that construction

project, when it's all let and it's a union contractor and it's going

like heck, they suddenly decide that they don't have enough parking.

But the only land they can find is three blocks away, so they hire

another architect. He designs a parkade and he builds it three blocks

away. That's not part of the same project. Do you follow what I'm

saying? All of these circumstances require all of the facts to be

delivered, and it's very difficult to deal with it. But I certainly

don't want to see, through manipulation, the avoidance of a project

being a project. There is a definition in the Code for project, but I

don't think that that blanket common site application is the correct

philosophy.

MR. CLARK: The only other point I want to make is that

cabinet, it seems to me, already has the power to designate integrated

sites as separate economic development projects; in other words, the

Expo situation. The cabinet has determined in Expo circumstances that

that would not be treated as a common site for the purposes of the

affiliation clause. So given that the government already has the

statutory power to override affiliation clauses in common site

situations like Expo and Whistler.... In other words, the Whistler

case, the Duke Point case, the Tumbler Ridge case could not happen now

because of the recent changes brought in by the previous administration

to allow the cabinet to designate those sites as common. I'm wondering

what the intent is of this legislation. In other words, would the

minister say, given this change — the cabinet power to designate

economic development projects as common sites — that the affiliation

clause wouldn't apply and that that's redundant?

The two things are really redundant. The cabinet can now designate

any site in the province as an economic development site, and in that

area affiliation clauses do not apply. It has been done at Expo and

therefore could be done at any other site. So already the Whistler and

Duke Point and Tumbler Ridge examples are overridden by this ability of

cabinet to do that.

Therefore it seems to me there is a redundancy here between this

clause and the previous powers. Do you agree that there is a

redundancy? Is there something different about this, or do you think

that that economic development designation could now be lifted or that

this clause...?

MADAM CHAIRMAN: Shall

section 46 pass?

Interjections.

HON. L. HANSON: That wasn't a deliberate delay to get the vote through; I was just trying to marshal my thoughts.

I don't agree that this one makes the other one redundant. I think

what we're saying here is that there is in the legislation a very clear

ability to determine that a project is a project and that single-site

rulings should not happen in the case of Duke Point and Whistler and so

on, and that the decision of Tumbler Ridge is the way we, as

government, see that things should be handled.

The economic development project

section prohibits the use of

non-affiliation clauses, and we don't want to do that on project sites,

if you will, unless it's determined.

MR. CLARK: Just on a different tack, I wonder if the minister

could explain whether this

section limits the nonaffiliation clauses

only to the construction industry. In other words, if there is a clause

in my industrial collective agreement that says I don't have to work

alongside non-union employees, is that struck down by this clause?

Interjections.

MR. CLARK: Sorry, I was asking the minister to respond.

HON. L. HANSON: Say it again.

MR. CLARK: Does this clause strike down clauses in collective

agreements that say you don't have to work alongside non-union

employees everywhere except for construction projects?

HON. L. HANSON: I guess it deals with work stoppages, and the

only place that you can have a work stoppage as a result of a

non-affiliation clause is in the construction industry.

MR. GABELMANN: On a construction project.

HON. L. HANSON: Or a construction project.

MR. CLARK: So the answer is yes. So that means that if an

industrial unit, say a pulp mill, has a collective agreement that says

they don't have to work alongside non-union employees, and the company

decides to hire a non-union painting contractor to come in and paint

the mill, then the employees have to work alongside those non-union

painters. Is that how you interpret this section?

HON. L. HANSON: Well, I think the member is referring to

section 10, but essentially that is right.

MR. CLARK: I understand the point;

section 10 deals with that

but this enforces it. This prohibits any job action as a result of

non-affiliation, as I understand it. That is what I think the minister

has said.

I think we are going to see another case where this

section is going

to cause serious industrial problems. In many cases in industrial

settings, there is a clause that says that all members working at the

industrial site must be members of the trade union, and that employees

at that site who are members of the trade union do not have to work

alongside other people there who are not members of the trade union

unless they are in a supervisory capacity.

[ Page 1691 ]

Contracting out of services at that site to non-union contractors is

going to cause serious problems. I can tell you that from experience.

This again is a situation where the government is intervening to strike

down freely negotiated clauses in collective agreements. One of the

reasons that employers decide only to contract to unionized employees,

and one of the reasons why employers agree to union demands to put

language like that in the collective agreement, is that they know it

would be disruptive.

If a painter in a steel-fabricating plant is making $14 an hour in

the union, but he is a painter that only paints maintenance and they

want to paint the whole building, and they bring people in to work

alongside him at $4 an hour or $6 an hour, then there is going to be

disruption and unrest. There may be violence. There may be all kinds of

action. In the normal stream of things, that kind of language in the

collective agreement that forbids that is agreed to by the employer to

circumvent any kind of problem.

I agree that there is a previous section, I can't remember which

section, which prohibits contracting out to non-union, or deals with

that — allows contracting out to the non-union sector and therefore

invites this kind of disruption. But this

section enforces it because

it says that you can't take any industrial action to solve that

problem. Again, it retroactively removes from a collective agreement

protection of the integrity of the bargaining unit that is agreed to by

the employer in negotiations. Again, the union has had to give

something up, usually a monetary demand or some other demand, in order

to get that language in the collective agreement, and again the

government has retroactively removed that

section without compensation.

So I think that in the industrial side.... I mentioned earlier a

number of problems I have with the construction side of things and the

serious limitation on the ability of the union to protect the integrity

of the bargaining unit. We now have the situation I have been talking

about now where it impacts on the industrial sector.

[4:00]

It is very clear in my mind that prohibiting employees collectively

from deciding and negotiating with their employer limits on the

employer's ability to contract out to the non-union sector is going to

cause serious problems, industrial problems, in that workplace. I

cannot for the life of me understand why the government has decided to

intervene on all other areas.

In other words, I can understand why the government has decided to

intervene to say: "We didn't like Duke Point, we didn't like the

Whistler decision" — the minister said that — "therefore we are going

to bring in language that deals with that." I can understand that

rationale. I don't agree with it but I understand it.

But why, then, would the government intervene in the industrial

sector, in other unionized sectors, to prohibit the kind of language

which does not allow non-union workers to work alongside union workers?

Can the minister cite to me any case at the labour board, any personal

experience, any experience told to him, to indicate why there would be

a limit on employees exercising their rights under the current

collective agreement to not work alongside unionized employees?

HON. L. HANSON: Well, I think we are really on another

section that we had dealt with earlier. Our concern as we go back to

that argument is that we don't feel that a contract negotiated between

two parties should affect the ability of a third Party to compete and

work in the marketplace. If the employees of that third party wish to

be organized, they certainly have the right to. But that was another

section, really.

MR. CLARK: If that was another section, then maybe the

minister could explain the purpose of this

section in dealing with the

industrial side and not the construction side.

HON. L. HANSON: I still don't understand. All this

section

says is that any clause known as a non-affiliation clause is a

permissible part of a collective agreement so long as it is only used

for construction work on a construction project.

It reinforces the philosophy that we had suggested earlier. There is

nothing hidden in it; it mainly is motivated by the Duke Point,

Whistler Village and Tumbler Ridge decisions. I am not sure that it has

changed anything that we haven't talked about before. This doesn't

specifically do what the member is saying. It does in I guess a

roundabout manner, but it is to deal with the construction work on a

construction project and recognition of the uniqueness of the

construction industry.

I guess in some senses we have recognized the lack of good security

provisions in the construction industry and the lack of seniority

abilities really. But other industries do have good seniority clauses,

so I am just a little confused. I know that the philosophy of that

change is negative to your philosophy; we talked about that at great

length prior and reached an agreement to disagree, I guess. But this

does deal really with the collective agreement or the permissibility of

a non-affiliation clause in the construction industry on a construction

project. We again recognize that non-affiliation clauses are a

legitimate form of job security in the construction industry.

MR. CLARK: If I could just get that clarified then, the

minister is saying that this only deals with construction work on

construction projects. Affiliation clauses only apply there.

Is it the minister's intent, then, or is it his understanding, that

a clause that says we only work with non-union is not covered by this

clause but it is prohibited by a previous section? In other words, I

would like to understand the minister's definition of affiliation

clause. In other words, to refine it a bit, affiliation clauses in the

construction sector say that they only have to work alongside members

affiliated with the B.C. and Yukon Building Trades Council. That has

been used, for example, for building trades unions to attempt, not to

work alongside other union members, but union members who are not

affiliated with the building trades council.

If that is the

interpretation of affiliation clauses, is it

therefore the case that the minister is arguing that this clause only

deals with construction work on construction sites, and affiliation

clauses only deal with affiliation to the B.C. and Yukon Building

Trades Council, and it does not, therefore, deal with clauses in

industrial settings that deal with not having to work alongside

non-union employees? Therefore that is struck down by another

section

but not by this section.

HON. L. HANSON: Non-affiliation rights will not permit

construction union employees to withdraw their labour beyond the

specific construction project on which they are working. In other

words. this amendment will not condone a large-scale withdrawal of

labour, pursuant to affiliation clauses, beyond the particular

construction job site involved.

[ Page 1692 ]

I know of no jurisdiction in Canada other than

British Columbia that has ever allowed an illegal strike for

non-affiliation purposes. We are putting industries other than

construction in the same position as they are in other jurisdictions.

I'm not sure if that answers your question. I'm reading it from my

notes here, because I'm not sure I totally understand what you were

asking me.

MR. CLARK: It wasn't a response to the question, but it was an interesting answer.

Maybe I'll go through it one more time. I'm not trying to belabour

it. I think the minister made a good point earlier; I'm trying to

clarify it.

In the construction sector currently, affiliation clauses say that a

union member does not have to work alongside a non-affiliated union

member; in other words, affiliated to the B.C. and Yukon Building

Trades Council. That's the construction sector affiliation clause. Is

it your intent that this

section of this bill only applies to

affiliation clauses, as I described them, or does it also apply in a

backhanded way to clauses in collective agreements in industrial

settings that deal with not working alongside non-union employees? Is

it only limited to the affiliation clauses in the construction sector,

the B.C. and Yukon Building Trades Council affiliation clauses?

HON. L. HANSON: This clause prohibits work stoppages as a

result of affiliation clauses on a project site. Except on a

construction site; I'm sorry. And related to the construction industry,

except on a construction site. Yes, that's right. It prohibits the work

stoppage as a result of.... It allows a work stoppage as a result of a

non-affiliation clause on a construction site project, but that doesn't

have any industrial implications.

Section 46 approved on division.

section 47.

HON. L. HANSON: This provides that everyone is free to

communicate information to another person regarding his employment, and

everyone is free to show their support for another person regarding an

employment matter, so long as that behaviour does not constitute either

of the following two activities: participating in a secondary boycott

agreement —

section 4.1 — or while not lawfully on strike or locked out

or picketing to persuade people not to enter a place of business.

Purely informational picketing is legal, so a person could....

MADAM CHAIRMAN: Mr. Minister, would you please move the amendment?

HON. L. HANSON: There is no amendment to this section, is there? Yes? Oh, I'm sorry. My notebook is not up to date, I guess.

I move the amendment standing in my name on the order paper. [See appendix.]

Amendment approved.

section 47 as amended.

MR. GABELMANN: I'm in such a good mood this afternoon that I

won't pursue it, but it would be useful if the minister would conclude

the reading of his notes — if there's any more — which were interrupted

by the need to move the amendment. Can you just do that, and maybe that

will help things. Or if you don't want to do that, just give us a

summary of what you think you're trying to accomplish here.

HON. L. HANSON: My apologies for that. As the member

requested, finishing my notes: "...so long as the person had no

intention of trying to stop people from entering the premises or doing

business there." That deals with the allowing of informational

picketing.

MR. GABELMANN: We're dealing with

section 84 of the Code,

which is information picketing, but broader than picketing; it's

information communicated by people about issues that have a relation to

some subject unrelated to bargaining, but to a collective agreement and

bargaining and those kinds of issues. The clause was originally

inserted in the Code to ensure that information lines — not just lines,

but information in a variety of ways — could be communicated.

[4:15]

I just want to try to sort out what these words are going to do,

because these words as amended are going to limit, to a certain extent,

the right granted by 84. They limit it in a way that I don't quite

understand. The curious thing that's happened on this one is that

labour lawyers have told me that it's designed to prevent the

"enforcement" of hot declarations. They say that hot declarations per

se will still be legal and can still be communicated, but they can't be

enforced as a result of this.

There's an interesting comment from Gavin Hume, a management lawyer,

and I just want to read his

summary of what he thinks this means

because it's a different

interpretation. He says:

"Section 84 of the Code is amended so as to restrict

the manner in which trade unions can communicate information. While the

effect of the amendment is not clear" — and I've underlined this — "it

may mean that hot declarations are prohibited. The amendment appears to

be directed at reinforcing the effect of

section 4.1 of the Industrial

Relations Act, which voids agreements that permit employees to do such

things as refuse to handle products which are declared hot or are

non-union."

We all agree that this is a provision to limit the ability to

enforce hot declarations on handling non-union goods or whatever else,

and we say this is counterproductive to a reasonable balance between

the parties. But leave that issue aside just for the moment, before we

get to the main debate here. I'm bothered by the fact that a lawyer who

represents management clients, in a

summary for Butterworths, which

becomes a bit of a guiding document in this issue, would say:"...it may

mean that hot declarations are prohibited." If that's true — and I have

no way of knowing if it is — that's a very different impact than what

is apparently the impact. In fact, I doubt whether it would survive a

Charter test, but that would take five years to go through the courts,

and I don't think we want to do that, if that's the case. If it means

that hot declarations are prohibited, then it would suggest that nobody

can ever make a hot declaration in

[ Page 1693 ]

respect of issues related to collective bargaining.

I don't want to have a debate about this if I'm wrong, but I'm

concerned about the fact that Gavin Hume would suggest that this is

possibly the case.

HON. L. HANSON: I have been privy to that

interpretation, but

in discussions I've had.... I just don't think that's right. I don't

think that there is a preclusion of hot goods declarations. It does

reinforce

section 4.1, as you mentioned, but it doesn't prohibit the

simple making of a hot declaration as long as there isn't an attempt to

enforce it by strikes or that sort of illegal action.

MR. GABELMANN: I don't think we need to take much time on

this, because I don't have any supporting evidence for the suggestion

that he makes. He makes it as a "may" — I want to emphasize that. He

doesn't say it will; he says it may. In attempting to sort it out — and

as a non-lawyer it's difficult.... What the

section essentially said

before was that you can say.... Let me try it in real layman's

language. You can say anything you want as long as it isn't picketing

as defined in the Code. That's one way. I wish the laws were written

like that, actually, but that's essentially what it said. You can say

whatever you like in respect of the issues at dispute, but you can't

say it if it's caught under the definition of picketing.

Now you can also not say it if it affects — I don't know what the

right verb is here, and a lawyer could tell me, but there is a verb I

need, and I'm not sure which one applies, but let's use "affects" for

the moment — the performance of a provision of an agreement that's

prohibited by

section 4.1. Well, an example of an agreement that's

prohibited by

section 4.1 is the enforcement of a hot declaration. I

think I'm right so far. So if you issue a hot declaration — and that

not a question of enforcing it — aren't you affecting — and that's the

verb I'm not comfortable with because I don't think it's the right one

— the "performance of a provision of an agreement prohibited by

section

4.1 "? I think, without having talked to Gavin Hume or anybody else on

this point, from a legal point of view that's probably where this

interpretation derives, or from where — I'm getting tired; the grammar

is all shot to hell.

In any event, I think that's where they got the idea that this is a

possibility — the performance of a provision of an agreement prohibited

section 4. 1. What governs this? The trade union or other person —

anybody, in other words — may at any time communicate a whole bunch of

things unless they're picketing or unless they've affected — or

directed at or some other verb — a performance of a provision of an

agreement. I'm not quite sure what the word "performance" means in that

case, but it seems to me that you could make a case — somebody, not me

— that just declaring something hot, without enforcing it, without

asking somebody to, in effect, not handle something, could be read into

the word "performance." Before we proceed, I'd really feel much more

comfortable if we could spend a few minutes just probing this a little

bit.

HON. L. HANSON: I don't know whether it will be a reassuring

statement or not, but I have had a lot of discussion with this, and if,

as a result of this section, someone says a declaration as such is

prohibited by this, I may even join you in your concern. But that isn't

my assurance, and I've gone over it and seen what you're talking about.

Not being a lawyer. I have to seek advice in these sorts of cases, and

I am assured that that is not a possibility under this

interpretation.

MR. GABELMANN: And I don't know, and I can't argue. I mean,

I've made the point, and that's really as far as I can go on that

issue. I suspect that in any event it would be declared a violation of

the free speech provisions of the Charter, if not some other common law

or whatever in this country. You should be able to have the right to

say: "Don't buy Pirelli tires." What the law tries to do and what I

know the minister wants to do is to prevent somebody from actually not

handling him on a job site if he has a collective agreement in force,

which is the issue we may get to in a minute.

Having made the point, I guess we'll leave it. It's something we

should keep an eye on. I'll leave it for the moment — the second member

for Nanaimo wants to pick up on it — and then after that maybe we'll

have a few minutes on the general issue involved.

MR. LOVICK: There are all kinds of forces evident that would

move one to say,"Yes, let's leave it," but there is another force, a

still, small voice that I hear when I read this stuff and that frankly

scares me to death. What scares me to death is the statement by the

minister, offered with all ingenuousness. I'm sure — to once again

"trust us, because the advice I'm getting is that this stuff does

indeed make sense." The voice I'm hearing is that that language that

cluttered, that convoluted, that obfuscatory, is dangerous language. I

am frightened to death when I think that we're going to decide the fate

of working men and women in this province, and their right to have

information pickets, on the basis of a statement that most of us can't

even comprehend, despite studying for 15 minutes, as I have been doing

here.

I am really, I guess, asking you to please consider telling your

architects who are drafting this stuff to give us a break, if I can put

heaven's sake. This is outrageous. It seems to be saying that a trade

union or a person may have an information picket if the picket isn't

really picketing or if there is the "performance of a provision of,"

which in turn takes us all the way back — and I have to go all the way

back — to 4.1 to then get into that other incredible list of

participles, or whatever they happen to be. That caused us difficulty

before, you will recall, Mr. Minister, because we had to say that we

would add buying and selling simply to balance things — that whole

business of "cease or refrain from handling, using, selling,

transporting or otherwise dealing in the products of or using the

services of any other employee or to cease doing business with any

other person...." That whole section, I'm suggesting, is so totally

convoluted and so totally confusing that I would like — indeed, I would

almost, if I could, demand — some assurances more than the minister

telling us that he has good reason to believe this isn't as bad as we

perceive it to be.

What really is the justification for this kind of terminology? I

can't understand how, with all the expertise that we have, we would

construct a sentence that has something in it along the lines of — and

let me just quote the first chunk of it; I don't need to quote it all —

"A trade union or other person may, at any time and in a manner that

does not constitute picketing as defined in this Act, or the

performance of a provision of an agreement...." My God, surely we can

put it in more direct and simple and understandable terms than

[ Page 1694 ]

that. That's my contention. I'm not about to impute

or otherwise suggest sinister motives on the part of the minister, but

God we can improve on that. If the architects would like some help, I'd

be more than willing to try to draft some alternative language.

MR. HEWITT: I wasn't going to rise in this debate, primarily

because it's basically a consequential amendment as far as I can read

it, Mr. Member. If you look at

section 4(

l) of the act as it now reads,

it seems to me pretty clear in its meaning. What this basically does is

ensure that any expression made pursuant to the

section of the act that

we're talking about is not an action prohibited under

section 4.1(1). I

fail to see where we get into the concern — like it's a draconian

measure — that we're going to take liberties away from an information

picket. That isn't what it says.

[4:30]

MR. LOVICK: They're your words.

MR. HEWITT: No, it's not our words. It is in

section 4 (

l) of

the current act, limitation on activities of trade union: "Except with

the employer's consent, a trade union or person acting on its behalf

shall not attempt, at the employer's place of employment during working

hours, to persuade an employee of the employer to join or not join a

trade union." Those are limitations that are set out. The amendment

basically still allows for the information picket, and that's only

right and proper; but what it doesn't do is that you cannot go contrary

section 4 of the current legislation.

I think that's fairly straightforward, Mr. Member. Maybe you can try

to convince me a little further in regard to your position on this

bill. However, if you do not wish to do so — if my argument has

convinced you that the amendment is valid — I'll sit down and take my

place. Maybe the minister would like to respond to you.

MR. LOVICK: I appreciate that effort at critical exegesis

provided by the first member for Boundary-Similkameen. The difficulty

is, of course, that the longer I listened to him, the more convinced I

became of the rightness of my first argument and perception: namely,

that this language is indeed confusing.

I see, however, the minister has now returned, and perhaps he would

like to respond to at least some of those concerns we have suggested

about this particular section.

as is my friend from Nanaimo, I have to be guided by the urgings of the

legislative counsel as they are presented to me. That's how the wording

evolves. Quite frankly, I suppose that there are a number of acts that

quite often could be stated in layman's terms, but never seem to be.

but....

[Mr. Hewitt in the chair.]

MR. LOVICK: It's very tempting, of course, to make all kinds

of gratuitous comments. I would love to cross-examine your advisers at

this point, but clearly that's not fair, so I shan't say that.

Instead, what I would like to do is ask the minister to explain to

me please — and I'm sorry if I am in error here and wasn't paying close

enough attention earlier — the distinction in this act between

"ordinary picketing" and "information picketing." Perhaps that is

what's separating us.

HON. L. HANSON: The amendment provides that everyone is free

to communicate. They're free to communicate information to another

person regarding their employment, and everyone is free to show support

for another person regarding an employment matter, as long as that

behaviour does not constitute either of the following two activities:

participating in a secondary boycott, which we handled in

section 4.1;

and, while not lawfully on strike or locked out, picketing to persuade

people not to enter a place of business or not to deal in or handle a

person's products, or not to do business with someone. Purely

informational picketing is legal. The member for Nanaimo certainly

understands what "information" is. So a person can carry a picket sign

in front of a business as long as the person has no intention of trying

to stop people from entering the premises or doing business there.

My deputy has referred me to the

interpretation of "picketing" as

defined in the Code. I'm sure that the member, without my repeating it,

can look at that determination: "' Picket' or 'picketing' means

watching and besetting, or attending at or near a person's place of

business, operations or employment for the purpose of persuading or

attempting to persuade anyone not to enter that place of business," etc.

MR. LOVICK: I want to thank the minister in all sincerity for that answer. I appreciate that.

Now, however, we have opened the door to a larger problem. The

problem is simply whether it is possible to have an information picket

at all, or whether an information picket — strictly defined and

strictly understood — is always, by definition, an effort to persuade

people not to cross the line, not to do business, not to avail

themselves of the service provided by that operation,

In communications theory, it's worth noting, information is defined

as a stimulus that changes behaviour. The only purpose of having an

information picket is obviously to convince people to reconsider what

they are doing, or at least reconsider meaning.... "Yes, I hadn't

thought of it in those terms. Rather than not crossing the line...."

I'm willing to grant that. But the point is still that the information

picket's purpose is to somehow change the behaviour of people who come

across that particular picket.

What seems to be embedded in this particular clause — in 84, the new

amendments in 47 — is that picketing is okay as long as it isn't

picketing. In other words, people can stand there if somehow they are

miraculously only conveying information. I could not give information

to people who were about to enter a particular place of operation that

said, "We dislike this employer. We think we, the employees, are

getting a bad deal," because surely that would be construed to be

attempting to persuade those individuals that they ought not to do

business. The way a picket line is supposed to work, in theory, of

course, is just that when people drive by, they see the line and they

say: "Right, that ends the judgment for me. The decision is made for

me, because if I believe in the solidarity of workers, and if I'm a

trade unionist myself, I honour picket lines. Therefore I don't have to

know what's on

[ Page 1695 ]

the other side. I don't have to know anything. I see the line, and that is sufficient."

Interjection.

MR. LOVICK: The Chairman has difficulty restraining himself How intriguing!

The predicament, of course, is that what we're trying to do in this

particular

section of the bill — and here's where I have my difficulty

with it — is to suggest there is an easy separation between information

pickets and pickets in general. Frankly, Mr. Minister, I think it's a

bogus argument. I think it's a false dichotomy. There simply isn't that

simple division between the two.

The conclusion we derive as a result of saying that there isn't in

fact that clear division between the two kinds of picketing, so-called,

is that all picketing, in effect, then will not be allowed; or at least

all kinds of secondary picketing. Okay? That's the predicament with

this particular bill. So again, the language once more opens the door

to the deeper problem, and the deeper problem is what I've just

attempted to elucidate, not nearly as clearly as I would wish, but I

hope, nevertheless, in a manner that enables the minister to see our

legitimate concerns about that section.

MR. CLARK: Mr. Chairman, I wasn't going to get into this

debate, but I just want to clarify it in my own mind. The minister

agreed with the member for North Island (Mr. Gabelmann) that this does

not prohibit, as I understand it, hot declarations. Other sections of

the bill prohibit the prosecution of hot declarations to some extent,

in terms of enforcement, in terms of not handling hot products, etc.

But there is nothing in this bill now, if the minister could just

confirm this for me, or in this

section that prohibits a union from

declaring something hot.

Assuming he agrees with that, would he also agree, then, that

actions other than at the work site are not prohibited by this bill?

I'll just give you an example: Canadian Tire in Prince George went on

strike. There was a campaign to boycott Canadian Tire. There was

picketing at other stores of Canadian Tire. That was ruled not to be

allowed by the former Labour Relations Board, so what the union did

instead was an extensive boycott campaign that involved things like

large 4-by-8 signs, almost like election signs, that said "Boycott

Canadian Tire." In my riding of Vancouver East alone there were

something like 100 4-by-8s up on all the major highways, saying

"Boycott Canadian Tire." Can the minister confirm, then — I think it's

his intention — that those kinds of acts are still legal under this

bill, and not prohibited in any way?

HON. L. HANSON: Yes, that's also my

interpretation, the same

as it is allowable to provide information in many other areas of our

society to suggest that you should do this or you shouldn't do that —

such as you shouldn't smoke.

Section 47 as amended approved on division.

section 48.

MR. GABELMANN: I wonder if, before I make a speech, the

minister wants to.... This is an important section. I think, before we

get to 62, this is the most important

section remaining, at least. I

wonder if the minister would care to just make some opening comments

first?

HON. L. HANSON:

Section 48 of the bill, of course, deals with

section 85, and that is generally headed "Picketing." In 1984 the

picketing

section of the current act was amended to limit the scope of

permissible picketing in order to restrict such action, as much as was

reasonably possible, to the principal site of the dispute and to those

parties directly involved in the dispute.

The changes in this

section are intended to clarify the government's

intention when it enacted the 1984 picketing amendments. We feel that

the Labour Relations Board has given those amendments such a broad

interpretation that picketing activities have been much more extensive

than intended by the 1984 amendments, and the resulting decisions have

become unnecessarily complex.

The current amendments to

section 85 of the act have been introduced

to clarify the government's intention in the area of picketing rights,

so as to ensure that third parties who are not involved in a labour

dispute between an employer and its employees are not unduly affected

by picketing activities arising from the dispute. These amendments

recognize the public interest by serving the objectives of improving

the practices and procedures of collective bargaining between employers

and trade unions, and by minimizing the harmful effects of labour

disputes on persons who are not involved in that particular dispute.

I guess with that I'll listen to the concerns of the members opposite.

[4:45]

MR. GABELMANN: We want to take some time — not a lot of time

— in going through some of the detailed questions involved here, and

make some references to the Canadian Pacific Express decision and a

number of other concerns. I think it's important on a

section like the

picketing

section to set the scene; to have an overall discussion,

first of all, and then go from the general into the more specific later

on.

The way in which picketing was handled prior to now was that the

picketing was focused on, or directed at, the employer and his

business. The language was constructed and the policy was formulated

with the employer and his business being the focus. It has now totally

reversed that. Under this new legislation the focus is directed at the

employee and his work. I don't know whether the government was

conscious of making that kind of fundamental change when it drew up

these changes, or when, more accurately, these changes evolved —

because 1984 was a watermark in respect of picketing legislation.

Whether or not it was being done consciously, that has happened, and I

think it's important to know that in terms of the way in which the

legislation is constructed.

The original legislation — I'm now thinking back a dozen years or so

— was fairly straightforward. It allowed for primary picketing — that's

the simple question of picketing your own workplace; it allowed for

secondary picketing, where you could picket other operations owned by

that employer; and there could be ally picketing wherever there was an

ally in that particular business or in that kind of service or

production work. It was fairly straightforward and, I think, effective.

[ Page 1696 ]

What happened was that that legislation was designed in that way,

which is a marked change from the old labour relations act, to attempt

to bring some economic balance between the parties. If employees are on

strike, they're not getting any income at all; therefore, to have some

economic balance, the employer should also have no income. In order to

achieve that, you needed to be able to picket additional sites that

that employer owned, where he might be making money to help subsidize

the primary site which was not making any money. The employee didn't

have the right to go off and make money somewhere. Technically, I

guess, he had the right to go off and make money somewhere else, but in

a high unemployment economy he doesn't practically have that right —

it's hard to go and get a job somewhere else. Maybe that's the case in

a full employment economy, and there have been times in our history

when some members of a struck workforce would in fact go off and make

money on their own. We could have a reasonable debate about whether or

not they should have the right to do that. But how do you stop it? It's

very difficult to stop that.

The direction of the government recently has been to approach this

whole issue from the other side. They have repeatedly reduced the

amount of picketing that can take place, and 1984 was the key year for

amendments in that respect. At the same time, the employee's ability to

go and get another job and make money was also being reduced because of

unemployment. That's been the case since the depression started in

August 1981, or whenever it started .

What you had back in 1973 was an attempt to achieve some balance

between the parties. You could have a reasonable debate about whether

or not that was a fair balance, whether there was equal economic

pressure on both parties. It was clearly the intent of the Legislature

then to enact a law that would lead in that direction. Whether the law

achieved that precisely or not is a debatable point, but it was the

intention of the Legislature to do that.

What have we had since then? We have had a diminution of the right

to picket, a reduction in the amount of picketing, which has led to

employers being able to continue to make money while the strike is

going on. While they can continue to make money, there is no economic

pressure on them to settle the dispute. That's been happening on one

side. On the other side, employees, or some portion of the workforce

who might previously have been able to go out and get a job, supplement

their income and help everybody else who is on strike, again reducing

economic pressure on them.... That ability to go out and get another

job is now not only significantly reduced but virtually eliminated

because of high unemployment levels. You just can't go out and get

another job. I'll bet you that last fall in the IWA dispute the number

of IWA members doing another job for income could have been measured in

the hundreds, not in the thousands. There is no question in my mind

about that. What we've done is gradually change the balance so much

that employers can stand a long strike. Rather than having a lot of

economic pressure on people so they're forced to do something in a

hurry — i.e., reach a collective agreement — they don't have to.

Last year in the IWA dispute.... I keep referring to it as the IWA

dispute for shorthand. PPWC members who work in the woods were also

affected, and others.

Interjection.

MR. GABELMANN: Commonly referred to as the IWA-FIR dispute,

yes. We always do that. If unions get blamed for everything, they may

as well have the name of the dispute attached to them, too.

In that dispute last fall, the employers were able to continue their

operations in a variety of ways as a result of the 1984 limitations,

even with the

interpretations by the LRB. I guess Kinzie's decisions on

this issue are the ones the government is reacting to. Even with the

loose

interpretation, you might say, of the 1984 amendments by the LRB,

the employers were able to escape any economic pressure in a variety of

ways. They did it, number one, by continuing to operate their pulp

mills using wood — obviously, because that's what you use in pulp mills

— normally produced for the most part by IWA members, on the coast at

least. So the pulp mills continued to operate. It turned out that last

year was a good year for pulp prices. The best levels of profits made

in this province in five or six years in the forest industry were made

last year. There was no real urgency to settle the strike. The

companies' pocketbooks were not being affected. Similarly, wood

previously supplied by IWA members was being transported and supplied

to these mills by other mechanisms — on the coast in particular; that's

the area I'm most familiar with. What do you do? You go to a contractor

who is not on strike.

Part of that comes from the kind of strike strategy adopted by the

IWA, and I recognize that. If that's going to be the whole answer to

what I'm saying, I understand that. The big demonstration at the

sawmill in Ladysmith was a good example. That led to a lot of

television coverage at the time. That was a good example of a case

where wood was being supplied to these companies who were on strike,

wood that ordinarily had been provided by people who were on strike.

What does that mean as well? It means that the companies can continue

to make money, in this case in their pulp mills. What's the result of

that? A long strike.

If there was an economic balance and the employees were on strike,

and the employers were not making money, it wouldn't have lasted five

months. It would have been over within a month or two. If the employers

— MacMillan Bloedel, Canfor, Crown Forests, Western, particularly the

big ones.... And they were the ones who kept the strike going; in many

cases the smaller companies did settle, and others wanted to settle. It

was the big ones that kept it going. If their pulp mills were shut

down.... I'm not going to be very popular in Port Alice, Gold River or

Campbell River for saying this, because the guys there kept on working.

But if the pulp mills had been shut down as a result of the IWA

dispute, it would have lasted a month or two at the most. Whether or

not FIR would have got in its contract what it wanted, or as it has

now, a neutral — for the moment — resolution on the contracting-out

issue, who knows? I don't know. But at least it would have been some

equitability.

The only way the IWA members had of prosecuting the strike was to go

hungry, to lose homes, to sell their boat, their second car. There were

guys selling their personal, for home use, chainsaws even, in one case

that I know of. That's the only way they could survive. But the issue

was so important for them that they were willing to do that kind of

thing. They were willing to deprive their families and go through all

kinds of economic hardship, while at the same time these companies are

making record-level — for this decade — profits.

Now the government brings in changes to the picketing

section which

even tighten already too tight picketing laws. Surely what picketing

should do is to allow for an equitable

[ Page 1697 ]

amount of economic power. There is no equitability

now between the employer who can continue to make money and the

employee who starves. So what happens? The employee eventually folds

his tent and goes home, unless the issue is so important — as the one

was last fall — that he doesn't fold his tent, and his family is

deprived.

If you don't have that kind of equitability, you don't have an

ability to prosecute a strike. If you don't have an ability to

prosecute a strike, you don't have free collective bargaining, because

it's no longer free. Free collective bargaining implies there's a

balance, that there is no pressure or no influence or no mechanism that

distorts the balance and gives more power to one side than the other.

So what you're saying, when you don't have the right to prosecute a

strike, is that you don't have the right to strike. And if you don't

have the right to strike, you don't have the right to free collective

bargaining. And if you don't have the right to free collective

bargaining — with the emphasis on "free" — you violate the

International Labour Organization's conventions, to which Canada is a

signatory.

That's a difficult issue for trade unionists to convey. It's a

difficult issue for New Democrats to convey to the public. The public

doesn't like extensive picketing, and the government is on the right

side of this issue politically. There's a question in my mind about

that. I understand that. You're on the right side of this issue

politically; it's a winner for you politically. If we were smart

politically, I'd probably insist that we have no debate on this

section. People don't like strikes and disruption, and all that kind of

thing. They don't like picketing per se; just picketing itself they

don't like, never mind the consequences of that picketing. But if you

believe in some things, if you believe in free collective bargaining,

then there are some prices you pay as a society. Either we believe in

free collective bargaining in this society or we do not. Increasingly

governments are moving in the direction of maintaining the fiction of

free collective bargaining but destroying the actual reality of free

collective bargaining.

That's the theoretical and philosophical side. The second member for

Vancouver East (Mr. Clark) reminds me that there is the practical

effect of having a balance. I had talked about that earlier, and I

think now that my time is virtually up, I'll close with that as well.

If you have a balance, you have an equitability; if you have an

equitability, you have shorter disputes, by and large. My time is up.

[5:00]

MR. LOVICK: It seems to me that my colleague from North

Island has presented a thoughtful and obviously much considered

perspective on the issue of picketing. Rather than simply stand up and

carry on in what I hope will be the same vein, I would like to offer an

opportunity to the minister, if he would care to respond to that at all.

Okay. Let me then try and add a little bit to this. One of the

themes that we have been developing in this entire exercise of

clause-by-clause analysis of Bill 19 is that the concept of collective

bargaining relies, perhaps above all else, on some kind of loosely

called "honest broker" in the middle: government or the state as an

arbiter between the two sides. The assumption is that in a democratic

society we are all better served by letting the two sides negotiate and

sort out their differences.

We h