ISSN 0713-9608 Third Session - Thirty-Second Legislature of the Legislative Assembly of Manitoba STANDING COMMITTEE on INDUSTRI AL RELATIONS 33 Elizabeth 11 Chairman Ms. Myrna Phi/lips Constituency of Wolseley VOL. XXXII No. 1 - 8:00 p.m., WEDNESD AY, 27 JUNE, 1984. Printed by the Office of the Queens Printer. Province of Manitoba

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

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

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

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

LEGISLATIVE AS SEMBLY OF MAN ITOB A THE STA NDING COMMITTEE ON INDUSTRI AL RELATIONS Wednesda y, 27 June, 1984 TIME - 8:00 p.m. LOCATION - Winnipeg, Manitoba CHAIRMAN - Ms. M. Phillips (W olseley) ATTENDANCE - QUORUM - 6 Members of the Committee present: Hon. Mr. Cowan, Hon. Ms. Dolin, Hon. Mr. Kostyra, Hon. Ms. Hemphill, Hon. Mr. Uruski Messrs. Ashton, Banman, Enns, Filmon and Johnston, Ms. Phillips WI TNESSES: Representations were made on Bill No. 22,

An Act to amend The Labour Relations Act and Various other Acts of the Legislature, as follows: Messrs. Keith Godden and Bill Gardner, Winnipeg Chamber of Commerce, Pastor Don Mclvor, Seventh-Day Adventists Church in Canada, Mr. Dennis Sutton, Canadian Manufacturers' Association, Mr. Sidney Green, Manitoba Progressive Party, Messrs. Blunderfield and Dennis Stewart, Prairie Implement Manufacturing Association, Messrs. AI McGregor and John Pullen, Manitoba Food and Commercial Workers and Manitoba Federation of Labour MATTERS UNDER DISCUSSION: Bill No. 22 -

An Act to amend The Labour Relations Act and Various other Acts of the Legislature. CLERK OF COMMITTEES, C. DePape: Committee come to order. Our former Chairman, Mr. Santos is no longer a member of the committee, therefore, we have to proceed with the election of new Chairman. Are there any nominations? Mr. Kostyra. HON. E. KOSTYRA: I nominate Ms. Phillips. MADAM CLERK: Are there any further nominations? Seeing none, Ms. Phillips would you please take the Chair? MADAM CHAIRMAN: Mr. Kostyra. HON. E.

KOS TYRA: In view of the number of delegations that are before the committee I would move 1 that each presentation-and any subsequent questions and answers-be limited to a period of one hour. MADAM CHAIRMAN: Mr. Enns. MR. H. ENNS: Madam Chairman, it always bothers members of the opposition when limitation of time is being imposed upon presentations from the public. Traditionally the committee has not curtailed or placed those kinds of inhibitions on presentations.

I appreciate that this government did so on the last occasion when we had a number of public presentations on a particular matter. lt is, I suppose, the will of the government, if they choose to do so. I just raise my objections. I think most presenters of briefs and of their positions will do so in a moderate time. What I am saying, Madam Chairman, is that if it becomes a problem then that's perhaps the time to deal with it. MADAM CHAIRMAN: Any further comments? All in favour of the motion please say aye? Those opposed? The motion is carried. We will start with presentations then.

The Minister has a few opening remarks. HON. M.B. DOLIN: Just very briefly, I would like to express the pleasure that I have of the opportunity to once again discuss the provisions that are contained within Bill 22. I particularly look forward to the opportunity for review of the specific measures that are contained in the bill which, of course, is what will happen at this committee stage. By now the members of the committee are aware of the lengthy and detailed consultation process that has led us to this stage.

I have been meeting with members of the province's industrial relations community for well over a year; we have listened to their concerns and we have made changes where we felt it was appropriate, and I am pleased to see some key elements of Bill 22 have been introduced with the consensus of the industrial relations community. Madam Chairperson, I look forward to a constructive discussion of the specific provisions of Bill 22, and I believe that the individuals and groups scheduled to appear before this committee share that optimism.

The introduction of labour legislation in this country is often surrounded by confusion, misunderstandings, fear, controversy. We saw it in Manitoba in 1972 but as has been the tradition, the experience of working with the act has proven the original fears to be unfounded. We have in 1984 experienced very similar problems to those of 1972. I hope that through these hearings, and the discussion of specifics relative to Bill 22 that many of the misunderstandings and fears that are being publicly articulated will be put to rest, and I look forward to hearing the presentations. MR. H.

ENNS: Well, Madam Chairman we start off the committee hearing in a highly unusual way. The purpose

Wed nesd ay, 27 June, 1984 of the committee meeting tonight is to listen to public presentation. I hesitated to interrupt the Minister but I do hope that she and the government members will listen. Thank you. MADAM CHAIRMAN: I'll call the first presenters - Messrs. Bill Gardner, and Mr. Keith Godden, Winnipeg Chamber of Commerce. MR. K. GODDEN: Madam Chairperson, members of the committee, my name is Keith Godden representing the Winnipeg Chamber of Commerce.

First, I'd like to just comment on one of statements the Minister made. lt's rather an interesting one, and one that has been given a number of times but this is a replay of what happened in 1972. The first thing is, of course, we don't know what would have happened if something different had happened in 1972, if perhaps the concerns were then listened to. We don't know how much benefit that would have conferred. Secondly, the circumstances are quite different now, and one of the major themes that I'm going to be talking about discusses the future rather than just the present.

First, I'd like to officially introduce some resolutions approved by the Winnipeg Chamber of Commerce at a special meeting on June 26, 1984. I will summarize these before reading them in detail. The first resolution - there's sections of the Bill which the Chamber supports. The second deals with sections the Chamber opposes. These two resolutions have been formulated with the guidance of Mr. Bill Gardner Jr., barrister with the law firm Pitblado and Hoskin. Mr. Gardner will be giving an analysis of the bill later and will be pleased to answer questions of technical nature.

The last two resolutions are of a general nature and I will summarize with an overview of the rationale for the Chamber position. The first resolution states the Winnipeg Chamber of Commerce supports the following sections of the bill:

Section No. 44, clarification of the board's power to decertify in cases of abandonment.

Section No. 61, somewhat similar provisions to

Section 81 regarding ratification votes except the voting constituency may be restricted to union members and secret ballot procedure is not obligatory.

Section No. 69, a shift of emphasis from tripartite arbitration board to sole arbitrator.

Section 69(3), provision for ongoing consultation. (Note: that while the concept is a good one, the proposed method of implementation involving a coercive element is not preferable.)

Section 81, provisions requiring secret ballot strike votes with requirements to provide all members of the bargaining unit, not just union members, with reasonable notice of and reasonable opportunity to vote.

Section 83(1) and (2), possible increased use of mediation services.

Section 103 (5), where parties cannot agree on an arbitrator or chairman, the board, previously the Minister, will make the choice from a list developed in consultation with labour and management. 2

Section 113(1) and (2), time limits for rendering of decisions following the conclusion of the hearing (30 days for sole arbitrators and 60 days for arbitration boards).

Section 113.4, introduction of grievance mediation. If the parties provide in the collective agreement for grievance mediation, the government will pay one-third of the cost.

Section 119(b), tenure for chair and vice­ chairpersons ranging between five and seven years.

Section 120(2) and (5), board to have flexibility to sit in various numbers, but retain tripartite character in all cases, other than the chairperson sitting alone.

Section 121(1), board to have authority to set own rules and procedure.

Section 121.1(2) and (3). board to assume educational role in formulating and publishing general guidelines.

Section 121(6) and 21(3) and (4), board to encourage settlement of the proceedings. That is the conclusion of the first resolution. The second resolution states, the Winnipeg Chamber of Commerce opposes the following sections of the bill:

Section No. 1(t)(1), professional strike-breaking definition.

Section No. 1(

u) and 47(1), definition of sale of a business.

Section No. 26, rules restricting decertification.

Section No. 36(1), application date conclusive.

Section 36(4), improper union conduct; the words "undue influence" have been dropped.

Section 38(1), the standing of an employer.

Section 69.2, deemed fairness provision.

Section 75(1), first contract legislation.

Section 109(2)(f), arbitrators' powers. That is the end of the second resolution. The next resolution is a general one which reads as follows: The Winnipeg Chamber of Commerce calls on the Government of Manitoba to return to the publicly proclaimed policy of the Premier of Manitoba namely to improve economic performance by sincere attempts to achieve consensus as the foundation to progress and to refer those sections of the bill opposed by the Chamber for further discussion with the business community.

Finally: The Winnipeg Chamber of Commerce calls on the Government of Manitoba to defer passage of the bill to enable the public to analyse the purpose, content and consequences of this far­ reaching and complex legislation. Just an overview in rational, the Winnipeg Chamber agrees with the government that an objective that we share is the economic development of the province. In particular, this will be characterized by the generation of more employment.

Further, the government is on record as having predicted - in common with many other analysts - that the largest share of new jobs is expected to come from the small business sector. The

We dnesda y, 27 June, 1984 word "small" is not defined, but around a hundred employees is usually considered to be the top limit of a small business. One important way to view this legislation is against its impact on small business. To introduce that subject, I would first convey, in simple terms, what the practical effect of the legislation is perceived to be by the small business person, not necessarily the same perception as a lawyer.

The legislation, in simple terms, will mean: first, an acceleration of union membership; second, more use of the first contract legislation; third, less collective bargaining; and fourth, less industrial harmony. Why would these things harm small business? The acceleration of union membership is accompanied by a belief that it will favour the large, well-organized union. The strength of that large union, with its legal departments and expertise, is daunting, if not intimidating, to a small employer.

To protect their rights, more would have to engage professional advisors, so raising costs - clearly a negative factor. The flexibility often needed in small business in terms of employees switching jobs, switching skills, will probably be impaired. lt is expected that more use will be made of first contract legislation and this will give rise to fears that the resulting collective agreement will be less satisfactory than the one arrived at by collective bargaining. Even if the terms are the same, the process is inferior to one in which both parties agree to it.

The mandated clauses will further reduce collective bargaining, even when mandated clauses are those which most parties agree to readily. lt's better left to the parties, since they can help to form the basis for an agreement. Less industrial harmony. Harmony is achieved by balance. Our legislation has given us a balance between management and unions, which has served us well. I don't need to repeat, we all know the past history of the province's industrial relations compared with the national average was extremely good.

A process which significantly changes that balance overnight will not help industrial harmony of the kind we need, which is that arrived at by negotiation between two balanced parties. In conclusion, the economic outlook is uncertain. Employers, especially the smaller ones, have been struggling, literally struggling to survive in the hope of better times. We believe that parts of this legislation will cause uncertainty in the minds of employers and will cause the postponed or cancellation of relocation and expansion plans.

Lastly, the legislation, by making things easier for the union movement, will reduce a major incentive to innovate, adapt, and change as indeed we all must do if we're going to benefit from the rapid changes in the coming years. That is the end of my presentation. I'll be pleased to take questions. If there is a technical question involving the law, I'll call upon my colleague, Mr. Gardner, to assist. MADAM CHAIRMAN: Are there questions for Mr. Godden? Mr. Godden, do you have copies of your presentation? 3 MR. K.

GODDEN: I have copies of the resolutions, which I'd like to table if I may, but I do not have the complete presentation. MADAM CHAIRMAN: Was it Mr. Banman that had a question? Mr. Banman. MR. R. BANMAN: Thank you, Madam Chairman. Through you to Mr. Godden, you mentioned in your earlier remarks, Mr. Godden, that consensus on the bill was important. How do you believe this could be achieved? MR. K.

GODDEN: I believe that if there's further discussion where the points of view could be developed, I think we've seen a process where the legislation only appeared on June 11th and until it appeared we didn't know the full scope of it. We had some idea of the general thrust obviously, but certain things appeared in that legislation that weren't discussed. So therefore there hasn't been a proper opportunity to debate those.

I think that because of the complexity of the bill and the resulting difficulty of predicting what its effects will be, this is even more important that we have ample opportunity to debate the issues further. MADAM CHAIRMAN: Mr.- my mind is going blank - Filmon. MR. G. FILMON: How soon you forget, Madam Chairman. Madam Chairman, I'd like to ask Mr.

Godden, we're given to understand by the Minister, in response to some of the criticisms that have been laid forth on the Table of the Legislature, that your side, let's say the Chambers of Commerce, the major employer groups in this province, have had 18 months of consultation with the government on this particular legislation; you had an opportunity to appear before the Marva Smith Commission, for instance; that you were given first opportunity to see the Wh ite Paper when it was released; and that there's been ample consultation. What's your response to that? MR. K. GODDEN: Yes, Mr.

Filmon, there certainly has been a great deal of consultation, nobody denies that, but I think that at a lot of the time we spent in consulting on the wrong things, but several times some of us have said that we're concerned a year ago, and more, about the effect on investment. This is what we saw as the major threat. This was always answered by an answer of this kind that said, we realize, we appreciate, how important investment is.

Some of us have business experience and certainly we will take this very much in view, and your concerns will be listened to, and we're both trying to achieve the same ends, and to a very large extent we were caught a little off guard on this and one of the reasons that we've not been so vocal is that we sincerely believed that these concerns were being addressed and that we were making this point. MR. G. FILMON: Madam Chairman, to Mr. Godden: Were the proposals that were put forward to you in each of these opportunities for consultation, the initial

Wed nesday , 27 June, 1984 discussions with the Minister and the government, the appearance before the Marva Smith Commission, the White Paper, and now this legislation. Were the proposals put before you always the same, or were you being asked to address a moving target, so to speak? MADAM CHAIRMAN: Mr. Godden. MR. K. GODDEN: I can only speak on the latter part of the process that I was involved in, which basically starts from the publication of the compendium.

When the compendium was announced and publicized, this was when the business community began to get concerned, when it read of some of the proposals that were included in that. This was where I met Ms. Smith and discussed our concerns about investment and this is one point I would go over. She pointed to her office wall, where there was a clipping from a Quebec paper just touching on that very subject, of the concern of the Quebec Government's effects on investment, and she said, so there you are. We're aware of this, so don't worry, it will be taken care of.

Since then there have been a number of meetings, yes, but I think that we have to come back to the fact that some of the major points of the effect of this legislation on - I picked specifically the small business sector, not neglecting the others, but because it does illustrate the point. That has not, I don't think, ever been fully addressed. MR. G. FILMON: Madam Chairman, what is your recommendation to this committee then? You've given us a series of resolutions on certain aspects of the legislation, in an overall sense.

Are you asking for massive amendment to the legislation or are you asking for it to be withdrawn for reconsideration? Are you asking for further consultation that might bring together representatives of all of the groups, who have differing interests and differing viewpoints on this legislation, before anything is done? MR. K. GODDEN: Mr.

Filmon, I think that when you've had the opportunity to study the resolutions of the Chamber, it'll be apparent that there are a number of issues on which we have achieved consensus and which we approve of, so therefore our position is certainly, let's try and improve legislation. However, when legislation reaches the point of seriously affecting the existing balance in such a delicate matter as management-labour relations, we say proceed extremely carefully and do not upset what we have had previously and let's talk further to see if we can find some other solutions to perhaps the union concerns.

This may not be the only answer. MADAM CHAIRMAN: Mr. Kostrya. HON. E. KOSTYRA: Thank you, Madam Chairperson. I'd like to also thank Mr. God den for the presentation on behalf of the Chamber. You made mention of the compendium of presentations that were presented to the Labour Law Review. You are aware that that was merely a listing or a collection of all the presentations 4 that were made to the Labour Law Review and they were not intended as government policy? MR. K. GODDEN: I'm aware of that. HON. E. KOSTYRA: I would also ask you, in terms of, you mentioned in reponse to a question from Mr.

Filmon that the Chamber first became concerned when that document was published, that there was a number of items that were contained in that document that caused the Chamber concern. I recall receiving representations, indeed, and having discussions with members of the Chamber and other organizations at that time. Was not the concern around a number of issues, key among those was any legislation in regard to plant closure or technological change? MR. K. GODDEN: Yes. HON. E. KOSTYRA: Are those contained in this bill? MR. K. GODDEN: No, they're not. HON. E. KOSTYRA: Thank you.

In terms of the White Paper, are you aware of how many items that were contained in the White Paper that are not in the legislation? MR. K. GODDEN: How many items that were in the White Paper that are not? I couldn't tell you a number, no, but I know that there was one particularly important subject that was not Included, one outstanding subject was not included. HON. E. KOSTYRA: You're aware of one, but are you aware that there's a number of items that were in the White Paper that are not in the legislation? MR. K.

GODDEN: I'm aware of that one particularly. l'n sure there are details as well, but I don't recall there being other major ones. HON. E. KOSTVRA: One further question. In your presentation, you stated that there were a number of items that were contained in the bill that were not raised previously and I presume, when you mentioned previously , you mean the Wh ite Paper or the compendium of presentations. Could you elaborate which items are in the bill that have never been raised previously? MR. K. GODDEN: Yes.

Madam Chairperson, I have a list of six clauses which, although of a detailed nature, some of which have quite a significant effect on the legislation,

Section 1(a), dealing with the transfer of business and the definition of sale; 1(t.1), definition of strikebreaker; 36(a), removal of undue influence as grounds for improper union activity;

Section 38(1), removal of standing of employer to make representations to the board regarding employees' wishes;

Section 75.1, removal of discretion by board in imposing first contract; 109(2)(

f) arbitrator to have power "to do any other thing," as part of the powers of an arbitrator. HON. E. KOSTYRA: That's all the questions. Thank you.

We dnesda y, 27 June, 1984 MADAM CHAIRMAN: Mr. Ashton. MR. S. ASHTON: I'm wondering if the Chamber has done any comparison with labour legislation in other provinces on any of the particular items that you've taken a stand on. MADAM CHAIRMAN: Mr. Godden. MR. K. GODDEN: Yes, the Chamber has done that and my colleague, Mr. Gardner, would be happy to expand in detail on our findings. MR. S. ASHTON: Are you aware, for example, of the fact that many of the items which are being opposed are in place in other provinces? One item in fact is in place in eight provinces. MR. K.

GODDEN: I'm aware that some of the items are, in principle, included in the legislation of other jurisdictions, but in some cases they have been changed again in a small way, but in a significant way. As an example of that, I would quote the strikebreaker definition, where two words were added to the definition in the Ontario act which very considerably widen the definition of strikebreaker beyond what we feel is a reasonable definition. MR. S. ASHTON: I'm also wondering if consideration has been given to the fact that there are other items which were not included which are included in other provinces.

For example, some of the plant closure legislation which exists in Ontario was not replicated here in Manitoba. The reason I ask that is because, surely when you're comparing investment opportunities, one has to look, not just at the particular item but also the fact that there are various other provinces which have these sections and have additional sections which aren't included in this act. Was that considered? MR. K. GODDEN: Yes, this is recognized and I think that it's an endless debate if you begin to compare provinces with each other because so many characteristics are different.

Wh at we're really comparing is what the act was before the changes, what it is proposed it will be and relating this whole picture against what the kind of province we think we will be into in the years to come, which will be more rapid change than the past. Therefore, relating to parts of acts which may have operated perfectly satisfactory in the past is no guarantee that it's going to be adequate for the future. MR. S. ASHTON: Are you suggesting then that some of the existing legislation should be changed back to the way it was, say, in 1972?

I'm not quite sure of the thrust of your comments because I know . . . MR. K. GODDEN: The thrust of my comments really is quite simple that I'm saying, given, most people agree that the rate of change - and I'm not just talking of technological change, I'm talking of social change and structural changes in industry - are likely to be more rapid in the future than they've been in the past, and now is not the time to try and stabilize the situation 5 beyond what we have. We should be spending more time, I feel, in investigating what those trends of the future are. MADAM CHAIRMAN: Ms. Dolin. HON. M.B.

DOLIN: Thank you, Mr. Godden. You noticed how formal I am tonight, I've been calling you Keith for weeks. I am pleased to hear you say that there were a number of areas of consensus, a number of areas in which we have consensus and I hope we keep that in the front of our minds and proceed from there. I believe what Mr. Ashton may have been referring to, and this may be a technical question that you wish to refer to Mr. Gardner, I'm not sure; you are certainly free to do that if you wish, but I'm wondering if you did research

Section 6(2), The Ontario Labour Relations Act (1975)? That seems to be the only area where you feel that the act is going to have the effect that you describe on small business and I'm wondering if you did research that section. MADAM CHAIRMAN: Mr. Godden. MR. K. GODDEN: I'll just clarify, Madam Minister. You're asking me, did we research the effects of

Section 6(2)? HON. M.B. DOLIN: No.

Section 6(2), The Ontario Labour Relations Act is the certification process that you see before you in Bill 22. They've had it in Ontario since 1975 and I'm wondering, since that seems to be the area, it's not the Labour Board, it's not arbitration, it's not all of those things, we seem to have a good deal of consensus.

The one area that seems to be the thorn, if you will, for you, is the certification or ease of certification, as you've called it and I'm wondering if you did research that and have any comments to make with regard to the industrial relations scene in Ontario and whether business there has been negatively affected by that section. MR. K. GODDEN: I would prefer to refer that question to Mr. Gardner. MADAM CHAIRMAN: Mr. Gardner. MR. B. GARDNER: Madam Chairperson, might I have the question repeated? MADAM CHAIRMAN: Ms. Dolin. HON. M.B.

DOLIN: The first thing we have to ask you to do, Bill, is speak into the microphone. We want your words recorded for posterity . MR. B. GARDNER: I promise. HON. M.B. DOLIN: Okay, I'll try one more time. I'm wondering if the Chamber researched The Ontario Labour Relations Act,

Section 62. I think you are probably familiar with the

section I'm talking about and I believe it came into force in 1975. That

section is remarkably similar to the certification process presented in Bill 22, date of application system. I'm wondering if you did any kind of comparative study of the effect of

Wed nesday , 27 June, 1984 that

section in Ontario as to what you are predicting for Manitoba? MR. B. GARDNER: Madam Chairperson, with your indulgence, I'll read that

section and see if we're on the same wave length. This is the Ontario Act. "Where upon an application for certification the board is satisfied that any dispute as to the composition of the bargaining unit cannot effect the trade union's right to certification, the board may certify the trade union as the bargaining agent pending the final resolution of the composition of the bargaining unit, in effect, interim certification." Is that the

section or the subsection that . . . HON. M.B. DOLIN: Yes, that's one of the problems you have raised in certification and there are others throughout the certification process. I won't take the time to point them all out because I don't want to take up your time with your hour of time for presentation. But I'm wondering if you did research the effect of The Ontario Labour Relations Act on the business community there, and compare it with what you are suggesting will happen in Manitoba with the imposition, as you call it, of Bill 22. MR. B. GARDNER: Madam Chairperson, beyond researching it, I've lived it.

I received my call to the bar in Ontario; I practised primarily in the area of labour relations; I practised in Ontario since 1976. I took my articles in part at the Ontario Labour Relations Board and was involved as an articling student in the relatively major - at least for Ontario - amendments that came in in 1975. Interim certification as such is not a problem in Ontario, nor would I anticipate it to be a problem in Manitoba, nor is one of the particular areas that the Chamber of Commerce at least has difficulties with.

The area with respect to the certification process that the Chamber of Commerce has the most difficulty with, is the proposed provision making the application date conclusive for all purposes, subject to a somewhat limited, somewhat automatically frustrated possibility to establish improprieties in the campaign process, in which case the board, if it can hear the evidence, or proposed would admittedly have a discretion to either dismiss the application or order the vote.

The difficulty is the removal of the right of employees to change their minds, the right of employees to make decisions pro or con as to union membership subsequent to the application date. This is an obviously emotion-laden word, the disenfranchising of those employees who may not previously even have been aware, much less been approached, during an organizing campaign until they receive notice of it when the employer receives notice of it. HON. M.B. DOLIN: Mr. Gardner, you are aware that those items did appear in the White Paper. We had lengthy discussions about exactly what you just explained. MR. B.

GARDNER: We did indeed, Madam Minister. We should distinguish, when we're going through this, that not everything in this bill that we don't like has come as a surprise and the proposal that the application 6 date be conclusive subject to limited exceptions, has not come as a surprise. Certain things having to do with that have come as a surprise. One is the dropping of undue influence as prohibited conduct during an organizing campaign; the other is the

section in the act which states that an employer has no standing before the board with respect to the determination of the wishes of the bargaining unit. Now, what I suggest is going to be the effect of that, if I can give you a hypothetical situation - assume a certain union has engaged in inproprieties during a certification campaign and the standard way that happens when it does happen - and I'm not saying that it happens often - is that a union will put more than acceptable pressure upon the last few employees needed to take them from, say, 48 percent to 56 percent.

Now, one can obviously conceive of a situation where intimidation works so well that those employees are not prepared to come forward themselves and the employer may know of it. The employer may be able to adduce evidence to that effect, but if the employer has no standing, then the board in effect is going to have to say, well, I'm sorry, we have to disregard that evidence and the certification would go through. HON. M.B. DOLIN: What I hear you saying is that intimidation of employees by other employees is something that will cause coercion or threats not to be able to be upheld before the labour board.

I must say that I disagree with that. That's about ali i can say because I think it's a point of view in the act. MR. B. GARDNER: Madam Chairperson, with your indulgence, I'm not positive that is the sort of thing you can say there's just a difference of opinion. I would think, as an individual who, if you will, practises primarily on the business side, I would be quick to condemn those individuals, those corporations that seek to frustrate the principles of the act, that seek to undermine it by attempting to gain their objective through improper conduct.

I would suggest that where an employer or a business commits something that is improper, not only in the act but as understood by all moral people, then the interests of the entire labour community, into which 1 would include business, labour and government, are served if that evidence is brought forth and if the offender is called to account for what it's done. I would apply the same standard, regardless of who commits the unfair labour practice, regardless of who seeks to undermine principles that fair, thinking individuals - from whatever side of the street, if you will - support.

Now even the other things that are going into this bill in the area of certification and decertification, it would seem to me at the very least, that it behooves us to be reasonably sure, before the collective bargaining relationship is entered into, that that is a valid, reasonable and free choice, because, by God, it's going to take them a while to get out of it if it isn't.

There's a year following certification; subsequent to that there's another year, essentially as of right through the route of an imposed first contract on the board, and that year does not have any open period, unlike other collective agreements. Subsequent to that, if a legal strike is called, there is - according to the bill or at least according to the

Wed nesday , 27 June, 1984 only provision I can find in the bill - six months. I rather think the intention is that it be increased to 12, where applications for decertification - I'm prepared to be free and open. If I find something that you may wish in your interests, Madam Minister, to change, I'll point it out to you. There's, as I say, in the bill that 6 months, I rather think the intention, as expressed in the White Paper in the

summary, is 12 months where there's no decertification. So we're looking at - effectively, if you will - at least 18 months from the date of certification. Now that's a long time to wait to remedy a mistake and mistakes do happen. The point is this: if unions are to have, if you will, protection - if there's going to be increased focus on protecting newly-certified unions - we ought, I suggest, to be as sure as we possibly can that that choice is free, open and fairly reflects the wishes of employees. I don't mean to stand up here and be all negative about this bill, because that would be unfair to it.

There are many positive provisions in this bill. There are many things that were mutually recommended or achieved through consensus or people recognized they were good ideas, and they'll be supported and they are steps in the right direction. If time allows me, I'll touch on some of them because I think it's worth touching on them. One of the provisions that has been taken out of the Ontario act is the 45-55 rule, if you will.

Now that tends to provide a little bit of a margin of safety because you're not looking at a simple bare majority, you're looking at 55 percent, which is something more than a majority. lt seems to me that a margin of safety is also in order here to ameliorate, if you will, the otherwise almost total crashing-down-of-the -do or, come the filing of the application.

Because in my experience- and it's starting to become fairly extensive - in small or medium­ sized bargaining units, it is often attempted, by no means improperly and often successfully, to get into an automatic certification position in one day, sometimes in an evening.

If you do the job right, that is indeed possible to do, but what that means is that almost automatically, with the best intentions in the world, some people are going to be left out and some people are going to go along with the crowd and may - and I say may - on sober second thought, which may only be with their families, think that perhaps it isn't the world's best idea. Equally people who haven't been approached might wish, not unreasonably, to express their views as to unionization in general, that union in particular, or possible other alternatives.

They will have no chance of effectively doing that if Bill 22, as proposed in this area, goes through. Now I bring a somewhat personal element into this, because for the last eight years every once in a while I have to try to explain to those people what they can and can't do and I don't have a very easy time of it sometimes, particularly with individuals who are not entirely convinced that they really are living in a democracy, with trying to make them understand some of the general principles that work in the act.

How I'm going to explain to somebody who was never even approached, that he's got no right to do anything, I'm not sure. MADAM CHAIRMAN: Mr. Cowan. 7 HON. J. COWAN: One question for Mr. Godden. Mr. Godden could you take just a few moments perhaps to explain, in your opinion, your perception of the Manitoba Labour Relations climate at the present time? MADAM CHAIRMAN: Mr. Godden. MR. K. GODDEN: Yes, Madam Chairperson. We believe that the labour relations climate in Manitoba at the present time is generally healthy. HON. J. COWAN: For what reasons would you say it's generally healthy? What criteria are you using?

MR. K. GODDEN: In terms of the numbers of days lost through disputes, going back over the last two years would be the yardstick I'm using. HON. J. COWAN: And to what reasons would you subscribe that successful record or that general healthy condition? What are the driving factors that provide us with that sort of a climate? MR. K. GODDEN: I think an extensive period of experience with the existing legislation is certainly a factor. HON. J. COWAN: How would you describe the existing legislation in respect to the balance of power that it creates between labour and employers? MR. K.

GODDEN: We would feel that it is satisfactory. HON. J. COWAN: Would you then suggest that it is a fairly equal balance that is written into the act between the rights and responsibilities of both employers on the one hand, and employees on the other? MR. K. GODDEN: With certain reservations - yes. HON. J. COWAN: What would those reservations be? MR. K. GODDEN: The first reservation would be the absence of free speech on the part of an employer being unable to advise his employees of virtually anything concerned with organization. HON. J. COWAN: But you would say generally there is a balance.

You wouldn't be prone to say that the balance of power is almost completely on the side of labour? MR. K. GODDEN: With that one exception - no I wouldn't. HON. J. COWAN: In the presentation that was made by the Winnipeg Chamber of Commerce to this committee 12 years ago, on July 11th, 1972, and I quote when they were talking about Bill 81 they said "Bill 81" that is your organization at that time said "Bill 81" which was

An Act to amend The Labour Relations Act or the Labour Relations Act itself "for the balance of power is almost completely on the side of labour."

We dnesday , 27 June, 1984 What has made you change your mind over the past 12 years in respect to the balance of power that was written into that act? MR. K. GODDEN: I think the passage of 12 years has seen some changes of attitude and as I've continually stressed in the past we're trying to look into the future, and it is against the requirements of the future that some of our principal concerns are. HON. J. COWAN: Were you trying to look into the future when you formulated that presentation and that opinion in 1972? MR. K.

GODDEN: The conditions that existed 12 years ago are completely different from the conditions today. I don't think there's any relevance. HON. J. COWAN: If the conditions are completely different perhaps there is not then a requirement or a need for different legislation. MR. K. GODDEN: Possibly yes. HON. J. COWAN: Thank you. MADAM CHAIRMAN: I see no further questions. Mr. Godden and Mr. Gardner thank you very much for your presentation tonight. MR. B. GARDNER: Madam Chairperson, I have a couple of other items that I'd like to bring up, if this committee will indulge me the time.

MADAM CHAIRMAN: That's agreeable with me, Mr. Gardner. You have 10 minutes left in total, if that's agreeable with the committee. MR. B. GARDNER: I'll try hard, Madam Chairperson, to confine myself to 10 minutes. The immediate victims of that sort of time constraint will be comments that I had regarding positive aspects of the bill. MADAM CHAIRMAN: Mr. Enns. MR. H. ENNS: Madam Chairman, I think members of the committee recognize that committee members took up a considerable amount of time in posing particular questions.

We're also hearing from two persons in effect speaking of course for the Chamber, but surely we can be somewhat liberal if I can use the term with respect to time. MADAM CH AIRMAN: Mr. Enns, it was my understanding when Mr. Godden made his presentation that he was going to refer to Mr. Gardner if there were technical questions. If Mr. Gardner would like to use the rest of his time to add to the presentation, I have no problems with that if the committee doesn't. MR. B.

GARDNER: If it's of any assistance, Madam Chairperson, from the view of technical requirements, I also hold office as Chairperson of the Labour Relations Committee of the Manitoba Chambers of Commerce and have been instructed by them to speak on their 8 behalf. I had not intended to do so tonight, but I can take off my Winnipeg hat and put on my Manitoba hat if that gives me a little bit more time. MADAM CHAIRMAN: Mr. Gardner, I have the Manitoba Chamber of Commerce on the list to speak. What I'm saying is that if you're prepared to take their spot on the list at their time and make your presentation then. Mr.

Filmon. MR. G. FILMON: Mr. Chairman, Madam Chairman, I keep forgetting. If it will help at all . . . MADAM CHAIRMAN: I'm so masculine looking I can understand it. MR. G. FILMON: If it'll help at all perhaps I could suggest that Mr. Gardner appear as a private citizen then and he'll have the entire time limit at his disposal. - (Interjection) - Go ahead, if you guys want to be punitive go ahead. MADAM CHAIRMAN: Mr. Gardner, do you understand that suggestion? MR. B. GARDNER: I understand that suggestion, Madam Chairperson, and I'm more than willing to appear as such.

MADAM CHAIRMAN: All right, we'll put you on the list as a private citizen and you can return. MR. R. BANMAN: Well, Mr. Chairman, I would make a motion that Mr. Gardner be accepted to make his presentation before the committee since he is here to do it right now. MADAM CHAIRMAN: We do have a list, people's names are in order. I'd suggested at the beginning that Mr. Gardner could use up the rest of the time of the Chamber and he's suggesting he wants more time. A suggestion was made on how he could have a whole hour. To do that I would put him at the bottom of the list.

There are also many other people that are waiting, who have their name on the list, who are expecting to speak in a certain order. Mr. Filmon. MR. G. FILMON: Madam Chairman, with the greatest of respect, his name is on the list and it appears up at the top. MADAM CHAIRMAN: Mr. Filmon, he is on the list as part of the delegation of the Winnipeg Chamber of Commerce. I suggested that in that regard he had 10 minutes left of the time allocation for the Winnipeg Chamber of Commerce presentation. Mr. Filmon. MR. G.

FILMON: Since the names were submitted in the order in which they asked to appear before committee, and in view of the fact that I'm sure that Mr. Gardner would not have been aware that limitations were going to be put on the presentations at the time he asked to appear, and I would suggest that his name

Wed nes day , 27 June, 1984 is up at the top and he ought to be able to appear with the full time limit that's been alloted by the committee. lt's a decision of the committee that would not be known to him at the time that he applied to appear. MADAM CHAIRMAN: Mr. Enns. MR. H. ENNS: Madam Chairman, I believe you have a motion before you, or rather before the committee, put by my colleague that Mr. Gardner now be heard. MADAM CHAIRMAN: Are you calling the question? MR. H. ENNS: . . . question. MADAM CHAIRMAN: All those in favour of the motion, please say Aye; those opposed. Continue Mr. Gardner. MR. B.

GARDNER: Thank you, Madam Chairperson. I've dealt fairly extensively with comments regarding the certification process, and to a reasonable degree with the area of decertification. I would pick up then in the area of collective bargaining, and may I say, Madam Chairperson, that I invite questions and I invite individuals to interrupt me, to ask those questions as they may occur. MADAM CHAIRMAN: That is not the way we usually proceed, but . . . MR. B. GARDNER: I will certainly fit myself into the procedure of the committee, Madam Chairperson.

In the area of collective bargaining, and this will follow the form of the

summary, a number of provisions are welcome and, in fact, present a good model for change in the area of labour relations. Examples of this are proposals for improved support of conciliation services and potential expansion of the use of mediation services. The Conciliation Branch historically has functioned very well under a regime of less than ideal financial and other support. The provisions contained in the bill and the White Paper to increase this support are welcome and have been generally encouraged by both sides of the labour relation's community.

These services focus upon achieving resolution, agreement and settlement, which after all is the basic intent of this act; and to the extent that certain portions of the bill focus on that area, they are supported not only by representatives of labour but also by representatives of business. Other much needed changes include clear language, requiring secret ballot strike votes as a prerequisite to the commencement of a legal strike and the establishment clearly of the voting constituency for such votes as the entire bargaining unit.

Provisions designed to ensure reasonable notice of the vote and reasonable opportunity to vote are a forward and I suggest a progressive step. Somewhat similar provisions dealing with ratification votes, except to the extent that the voting constituency is limited to union members and a secret ballot is not required, but 9 also containing provisions for reasonable notice and reasonable opportunity are appropriate and supportive. Unfortunately, in this area, there is one particular and very serious problem and that lies in the area of first contract legislation.

This is one of the things that has come as a very large and very nasty surprise to representatives of business and to me personally. Since the introduction of that legislation, it has been a constant complaint from representatives of government that access to first contract is too easy and the result is too attractive to bargaining agents. lt was too easy, we argued, because it was effectively available as of right although the Minister had a discretion either to refer an application for an imposed first contract to the board, or to decline to refer it.

In practice, to my knowledge, such discretion was never exercised when the applicant was a union. The applications simply were processed to the board where the board simply had a choice between proceeding to impose an agreement immediately or delaying such imposition for a period of up to 60 days.

The White Paper issued in April inferred and clearly was understood by myself as an individual that such discretion would be removed from the executive office and placed with the judicial branch, i.e., the Labour Board, and that from and after the coming into force of the new provisions, the Labour Board would have a discretion, if it considered it advisable, to proceed to settle the terms of a collective agreement, or if it did not consider that to be advisable to decline to do so.

The need for this sort of jurisdiction, I suggest, was clearly demonstrated in a previous case where the board without, in my opinion, jurisdiction to do this declined to impose a collective agreement where such application had been referred to the board because it found during testimony that the applicant union had either not bargained in good faith or had not made every reasonable attempt to achieve a collective agreement.

There are numerous other areas in this bill where a discretion is conferred upon the board to either do something or to decline to do it where it sees that one party or another has not behaved properly. The best example of this is in the area of decertification where an otherwise timely decertification - this is

Section 41(4) - an otherwise timely application for decertification can be rejected by the board if it finds that the employer has frustrated the bargaining process or frustrated attempts of the bargaining agent to reach a collective agreement to reach a solution. That does not seem unreasonable. But what is difficult to follow is why the same sort of reasoning would not apply in a situation where there is an application under 75.1 and the board finds that the applicant has not made every reasonable attempt to achieve a collective agreement, has not fulfilled its duty to bargain in good faith.

Why should the board proceed then, in effect, to reward a wrongdoer for its offences? What makes the changes even more difficult to accept in this area is the removal even during the settlement phase of relative good faith or bad faith as a factor that the board can take into consideration. To give you a doomsday scenario, which I don't suggest is necessarily likely but is certainly possible, an applicant could merely go through the motions of collective bargaining, could cover all of the steps, go to

Wed nesday , 27 June, 1984 conciliation, sit down at the table and stare stonily across at the other side until all of the technical prerequisites have been satisfied, put the application into the board , sit out whatever delaying period the board attempts to achieve until finally the board is left with no choice under its jurisdiction but to impose a collective agreement; and not only to impose a collective agreement, but to impose a collective agreement on the same basis that they would if they found that the applicant had otherwise made a full attempt to achieve a collective agreement.

To me, and again, I think this goes beyond points of view. lt just doesn't make any sense. We have seen very useful, very beneficial mutually recommended provisions come in to strengthen the Labour Board, to improve the financial support to the board, to insulate the board from the political process by granting limiting tenure to chair positions, all of which are excellent ideas. We have a board now and for the future, presumably, that the entire labour relations community can have confidence in.

Expressions of confidence are found elsewhere in ·t he bill, in areas that I've suggested, in other areaa such as the clause which is known colloquially as the penalty certification clause, which really isn't a fair term, which again allows the board a discretion to certify in cases, which on the language of the bill seem appropriate. it's possible to make a case regardless of where you come from , whether you're from business or from labour, that an employer who has attempted on purpose to chill the organizing process, who's identified the risks and the fines that can be handed out and decided that all of those penalties are worth it, you can make a case for the proposition that the clause that is proposed to go in Bill 22, which has existed in Ontario for a number of years, should be there so that you can provide an effective deterrent by imposing the very thing that the employer is most afraid of.

That makes sense. lt particularly makes sense if you've got a board that you have faith in, but it equally makes sense - very strong sense, I suggest - that if we have this confidence in the board , we should vest them with an appropriate discretion in appropriate areas which clearly includes something as important , something as potentially devastating to a collective bargaining relationship as an imposed first contract. The history, and those who have done the research and people at this table have done that research, of B.

C., the jurisdiction that first implemented first contract, is that with respect to the cases where it's imposed , it has not, by and large, achieved lasting relationships. In other words , if this process has to be used, it's already failed. The whole idea is deterrent, but deterrent doesn't work unless it works in both ways. If you make the process too accessible and you make the result too attractive, you're not going to deter bad faith. You're not going to promote good faith bargaining; you're going to have the effect of undermining it.

If you look at Ontario, and people are often looking at Ontario and fond of quoting those provisions, first contract legislation is unknown there. To take the worst recent case of employer interference and cold-blooded undermining of the collective bargaining process and the certification process, coming out of the Ontario board in 1979 - and I don't have to mention a name because everybody knows it - the board was asked to 10 impose a contract in that case, declined to do so. That was 1979. That relationship has gone through three renewals. They're still functioning with each other.

They happen to be on strike at the moment, but people do go on strike from time to time. Since the date of that decision, there have been no unfair labour practice complaints coming out of there. They have achieved, without imposing a contract, a lasting relationship. We would concede, I think , if we're realistic, that we're not going to achieve the removal of

Section 75. 1 altogether. What we urge upon the government and upon this committee is to provide a situation that makes sense. If someone has validly tried to achieve a collective agreement, hasn't been able to do it, notwithstanding the best of their efforts, other circumstances tending to indicate that there is some usefulness in imposing a contract, by all means do so, but do not leave the board without the ability to make a choice, without the ability to cover off the extremes of situations that you are obviously going to get.

You will not do, in the long run, anyone a service, if the provision doesn't make sense. Staying just with the major things , the other clause which is a definite cause for concern and not a surprise is the provision 69.2 indicating that management will be obliged to act reasonably fairly, in good faith and in a manner consistent with the agreement as a whole, and requiring the introduction of that clause into a collective agreement and if it's not there, it's deemed to be there. That sounds fine until you start trying to figure out what it means.

The difficulty there is that under specific situations it's going to make the collective agreement less predictable, less easy to understand, and less likely to provide a valid guideline for the parties to conduct their affairs and to govern themselves. lt is not, with respect, the equivalent to say, well, the bargaining agent is to be imposed with a duty of fair representation. That particular provision, while arguably appropriate, is, in and of itself, going to cause problems.

The experience of other jurisdictions, in particular the federal jurisdiction and Ontario, is that the vast majority of unfair representation cases are without merit and they are expensive. They are obviously of concern to the bargaining agent who doesn't want to be seen as acting unfairly to its members. They're often a concern to employers, but at least that provision is drafted with some care and some restraint. lt isn't enough just to show that the union may have made the wrong decision or been negligent, you have to show that they've acted in a manner that is arbitrary, discriminatory or in bad faith.

Similar restraint in 69.2, in the drafting of that clause, might help. Good faith has always been required. Arb itrators - and I've sat on arbitration boards - we've never had any difficulties finding a requirement of good faith, irrespective of the absence of legislation or the absence of any particular provision in the collective agreement.

We never, in my experience, have had difficulties considering the context of the collective agreement, and we have never had difficulties taking into account certain provisions of the collective agreement, which may not have been specifically brought to our attention in the grievance or during the presentation of the arbitration. That much , you don't

We dnes day, 27 June, 1984 need legislation for. What reasonably or fairly is going to turn out to mean, I would suggest, exists at the moment in the cosmos. There is not enough jurisprudence on that, but if this goes in there will be soon. Parties, in their own interests, will test the limits of those provisions and if you combine it with another provision that is an equal cause for concern, the power of an arbitrator to do any other thing to achieve a final conclusion, what you're going to get is a situation where arbitrators can, within their jurisdiction, rewrite the collective agreement.

Now that has always been understood to be an anathema in labour relations, because it makes it impossible for the parties to understand ahead of time what's going to happen. lt has always been understood in collective bargaining relationships that you reach your collective agreement and then you live by it. Once you've signed that agreement, you stick with it. You don't come back in the middle and say, oh yes, well, we may have agreed to that but this specific application is not reasonable or is not fair.

All that is going to do, I suggest, other than make people like me wealthier, is provide more uncertainty and less predictability into the process. You know, if you want to be ridiculous, it would be final and conclusive if an arbitrator ordered the parties taken out and shot, on the basis, well, I can do any other thing - this is some other thing. I know the maxims that tend to restrict a general clause like this into the context of what has gone before, but the use of these particular words are so wide that I think it's going to be very difficult.

Some day when either the union or the employer, to their horror, finds a provision being rewritten on them and takes it up to the Queen's Bench, and the Queen's Bench judge takes a look at the provision and says, well, counsel, he can do any other thing. How can you say he's exceeded his jurisdiction?

The difficulty with some of the provisions - and this is a guess - is that they give the inference, they give the suggestion, of having been written perhaps in the last couple of weeks, perhaps as sort of a clean-up clause, when something occurs to the drafts person that hasn't occured to them before, because when we went through the labour law review process, we were talking mainly about concepts, not statute language and it hasn't been fully thought through. I don't mean to demean the people who have drafted this bill; I'm not certain of the time that they've had.

I have a feeling that maybe it was a little short. My difficulty is understanding why all of these provisions should be passed now. I would readily recognize that when you have a circumstance where there's a clear and immediate need, and I think arguably an example of that is the penalty certification clause, although I'm not necessarily joined in that feeling by some of my compatriots, at least there's an abuse that can be pointed to and there are examples that can be pointed to. Some of these other provisions do not address clear and immediate needs.

I would concede that the intention is that we look towards the 21st Century, but we've got fifteen and one-half years to go, and I would have thought that in certain areas it's time to take a considered second look. I would also think that if we're engaged in a modernization there are certain things that we've left out. Again, taking a look at The Ontario Act, which is a useful model - Ontario's done relatively well by both 11 sides of the labour-relations community.

That act has for many years, with the recognition that the court of first resort should be the board, provided reasonable, rational and useful remedies in the area of strikes and lockouts, and I'm thinking of illegal strikes and lockouts. Now this bill has gone to considerable effort to increase the focus on the Labour Board as the place you go to have your problem settled, to reduce the access of the parties to the courts where they wish to dispute a result. lt has left out something that seems to me to make an enormous amount of sense.

The most effective remedy that you can get in a situation where you believe there has been an illegal lockout or something constituting an illegal lockout or an illegal strike is injunctive relief. That is not available under the present act; it is not proposed to be made available under this bill. I'm not positive that I understand the sense of leaving that out. Why should you have to go to the courts as either a union or an employer to seek your most effective remedy which is the injunction to do this or stop doing that?

Injunctive relief is something the board can grant in other areas, why not in an area as important as an illegal lockout or an illegal strike? The final thing that I would like to bring up, and you may not believe me, Madam Chairperson, but I've skipped a lot of things that I was planning to say . . . MADAM CHAIRMAN: You skipped the good stuff, did you? MR. B. GARDNER: . . . is with respect to sale of a business.

The proposals in Bill 22 dealing with that area are not unique to labour legislation. lt exists in the federal jurisdiction; it exists at least to some extent in Ontario. lt isn't something we dealt with in great detail. lt's a very important question; it's a very important area.

I would suggest, as a representative of business, that bargaining rights should not be lost except in clear situations which I would take, for example, to be situations where the businesses clearly cease to exist and people are perhaps taking over the lease of the building and where it was a foundry, it's now going to be a drugstore or an insurance agency to take something that's a really clear example. However, while bargaining rights should be preserved and while there should be a focus on preserving bargaining rights, the same is not necessarily true of the terms of the collective agreement.

In fact, a previous collective agreement negotiated under different circumstances, perhaps over a number of years, can be a real impediment to the chances in everyone's interests of a defunct, bankrupt, or otherwise failing business being revived.

As you renegotiate contracts with suppliers, with customers, as you get into discussions regarding heat, light, rent and all of the other provisions that you take a very fresh look at when you're seeking to turn something around, so should the collective agreement receive scrutiny. lt would be a mistake, I suggest, to in all cases where it's clearly appropriate that bargaining rights should flow to simply conclude automatically that the collective agreement should tollow as well. That could run totally against the interests of the employees, the union, the would-be rescuer and in fact the entire province.

I would urge upon this committee and upon the government to take a fresh look at that area, to perhaps

We dnesda y, 27 June, 1984 put that into further review, to perhaps allow the parties, or representatives of the labour relation's community, a chance to work something out that makes sense for everybody. You know, to have bargaining rights and to have a collective agreement and to have a closed plant gets you nothing. The final thing that I've been waiting desperately, since about June 12th, to say to somebody - and I'm going to take this opportunity - is that it was widely reported after the release of Bill 22 that the government had bowed to business pressure and dropped final offer selection.

I would like to have a crack at trying to clear that up. First of all, the government didn't bow to business pressure. I agree totally with the Minister of Labour when she states that was a decision reached in Cabinet, in consultation with caucus, in response to concerns expressed from both sides of the labour relation's community. Secondly, it isn't dropped, it's merely put into the review phase for further discussion which I, for one, welcome. Finally, business, at least those groups that I'm a member of or I represent, didn't urge that it be dropped.

In the presentation made to the Minister of Labour by the Winnipeg Chamber of Commerce, and I can quote it from memory, referring to final offer selection, we wrote, "This concept is unquestionably innovative and potentially beneficiaL" In our recommendations, there was never a suggestion that it be dropped. We had difficulties with the proposed method of implementation.

We had suggestions how it might be more evenly carried out, but we did not and do not now urge that it cease to be considered or be forgotten for all time. it's potentially a good idea and potentially something that can be worked out by the parties. My point, to a certain extent, is that as people reported that the dropping of final offer selection was a big concession to business, and here lo and behold business was not being suitably grateful, an impression may have been raised in the government that was exactly what was happening. I would appreciate that being cleared up because it just is not correct.

I thank you for your attention. Madam Chairperson you've been very good to me and I'll take any questions that anyone has the energy to ask. MADAM CHAIRMAN: Are there any questions for Mr. Gardner? Seeing none, thank you very much Mr. Gardner. MR. B. GARDNER: Thank you, Madam Chairperson. MADAM CHAIRMAN: The next people on the list are the Seventh-Day Adventists Church in Canada- Pastor Don Mclvor and Dr. Douglas Devnick. May I ask, Sir, are you Pastor Mclvor or Dr. Devnick? MR. D. MciVOR: Madam Chairperson, I'm sorry that I'm going to have to speak for two people. Dr.

Devnick was unable to be here tonight from Oshawa, and so, Madam Chairperson, Madam Minister, and members of the committee I'd like to introduce myself as Don Mclvor, the President of the Seventh-Day Adventist Church, of the Manitoba-Saskatchewan Conference. I 12 also Chair to the Board of West Park Manor here in Winnipeg. West Park is a personal care home. I chair the Board of Park Manor, which is also a personal care home, and also Chair the Board of East Park Lodge, which is to be an elderly person enriched housing unit, which will probably be the first of its kind in Canada.

So I want to say that we're speaking about in dynamics ihat Winnipeg-Manitoba is going to be a first along this line. Madam Chairperson, I want to apologiz e for something. I never had a copy of this law 'till just a few moments ago when the person that helps us out here handed this to me, so I've never seen a copy of this law, so if I'm a little bit out to sea forgive me, and I've just gotten through a 500-mile drive here from Saskatoon, so maybe I'm a little more tired than the learned lawyer that spoke 'before me. I'd like to say one word though of appreciation.

My being here was completely worked out through maiL That's a very awkward situation to find yourself in to be making telephone calls and trying to contact people and finding where you fit in to a program, so my

schedule I feel was very nicely worked out by the group. I want to express apprecitation for those who helped fit me in the program tonight I mean I know how awkward it is to go through all these things and I really appreciate the way that we were treated by telephone. Now the only information I have is by phone and the reason I'm here is because of concerns that were expressed by people of the Seventh-Day Adventist Church who find themselves in an awkward position as far as this Labour Bill 22 is concerned.

Now am I right, Madam Chairperson, that on Page 42, and the top of Page 43, that that is the Labour Bill as it is being presented? I'm sorry that I have to ask this information, but I am not clear on . . . In other words I'm talking about (

a) through (e)? MADAM CHAIRMAN: I'll have the Minister answer your question, Sir? HON. M.B. DOLIN: If you're looking at

Section 68(3) - yes, on Page 42, and Page 43 of the bill I believe. MR. D. MciVOR: And that's on Page 43 (

a) through (e), Madam Minister? HON. M.B. DOLIN: Yes, it begins I believe on the bottom of Page 42 and continues (

a) through (

e) on the next page. MR. D. MciVOR: Thank you very much. The

part I am particularly interested in addressing is

Section (

a) on the top of Page 43,

Section (a). I'd like to read it as I understand it. "(

a) the employee is a member of a religious group which has as one of its articles of faith the belief that members of the group are precluded from being members of, and financially supporting, any union or professional association; and (

b) the employee has a personal belief in those articles of faith;" Now the thing that has caused me concern, and many of those who are members of our church a sincere concern, is that one little sentence which includes

We dnesday , 27 June, 1984 "precluded from being members of. " Now my understanding is that in a free a democratic society that the members of this society have a degree of choice, freedom of choice, and freedom of conscience. I followed with some interest the proceedings that took place recently south of the border when on a federal level they brought in the freedom of conscience clause in this matter of employee-employer relationships. This was passed at the federal level and we find in some of our provinces that we have a little more latitude than what is being spelled out in

Section (

a) here. I want to tell you just briefly what the problem is. First of all, we don't feel that as a church we have a mandate to be anti labour. We don't feel that's a part of our philosophy or religious teaching and so as I look at this where it says "precluded from being members of" what's happening here is that we're taking away the freedom of choice from the employee on the grounds of his or her commitment to a church and on the grounds of their personally having a conscience relationship to this.

Now I feel that an employee should not have to choose subjectively whether to belong to a labour union or to a church. I feel that's an unfair position to place an employee in, that he has to choose between his church or a labour union. So for us as a church, and I'm speaking as an administrator of a church, for us to write in to our - how is that spelled out here again - articles of faith that if you belong to a labour union, I'm putting it the other way now, then you should be precluded from membership in our church, we feel that would be wrong.

We feel it's also wrong for us to tell our church members that they are precluded from belonging to a labour union. Now we have a teaching, a very open and forthright teaching, that we have shared many times with labour unions, the fact that we sharply differ with the labour unions over the methods they use to obtain their ends. We have teachings along this line; our members are made aware of these teachings.

We carry these teachings forward in different ways, but when the final decision is made, we feel it has to be the member of the church making their decision whether they feel conscienciously impelled to do such a thing in regard to their membership in a labour union. Madam Chairperson, I have just a brief recommendation that I would like to table as a substitution for (

a) and (

b) here, if that's permissible. MADAM CHAIRMAN: That's fine. The Clerk will take your paper. MR. D. MciVOR: Madam Chairperson, I would like to further state that the principles that are enunciated in (

a) and (

b) are somewhat also enunciated in other provinces within the country of Canada and so the intent is not new. Can I take just a moment until members have a copy in their hand? MADAM CHAIRMAN: Yes, certainly. MR. D. MciVOR: I want to press through this, Madam Chairperson, to give others the chance to speak. Madam Chairperson, I want to say again that this was written down without us having time to contact 13 our legal counsel. lt was written down strictly by laymen and so you will understand that this doesn't have all the finesse that it should have under the circumstances. Under 68(3)(

a) then, we are recommending that this would be much more palatable and yet probably the same end would be accomplished. Under (a), the employee is a member of a religious group and as a matter of conscience, based on religious training or beliefs, is opposed to belonging to a trade union or financially supporting it, and (b), an employee has a personal belief in these religious teachings and is committed to them. Madam Chairperson, that's all I have to say and I'm open to any questions that anyone would like to have. MADAM CHAIRMAN: Thank you very much, Mr. Mclvor. Are there questions from the committee? Mr.

Banman. MR. R. BANMAN: Thank you. Pastor Mclvor, in your presentation you make it very clear that your church does not have, within its constitution or prerequisite of membership, something which, when a person joins your church, prohibits him or her from joining a union. Is that right? MADAM CHAIRMAN: Mr. Mclvor. MR. D. MciVOR: Yes. Would you re-word that question for me again? MR. R. BANMAN: In your church constitution, there is no clause which states that an individual that becomes a member of your church cannot or should not be a member of the union? MR. D.

MciVOR: Yes, Madam Chairperson, we do have a definite teaching on this matter, that we disagree with the - how would I put it - methods that unions use to get agreements and what have you, wages and what have you, and we teach that these kind of pressures should not be brought to bear upon agreements between employers and employees and we have a definite teaching on this; but we do not have, as is stated here, something that says that if you join a union, then you're now in bad faith with the church.

See, we don't go to that extent and we don't want to be caught in the position of telling people what they should do if they don't feel, after all the teaching, that they conscienciously must adhere to that. MR. R. BANMAN: In essence what you're saying is that a member of your church, under this legislation which is proposed, would not be able to really present the employer or the bargaining agent or the board with a document showing that, here it says that I cannot belong to the union because that is the teachings of my church.

What you're saying is that it would be up to the individual's personal beliefs and personal conviction that he or she shouldn't belong to the union. MR. D. MciVOR: No, what I am saying, Mr. Banman, is that the individual should, with the support of the church, if he is conscientiously convicted, have a right to make this appeal. I think that what I'm saying here

Wed nesday , 27 June, 1984 is I feel that the unions and management move in an orderly fashion under law and for just any individual to suddenly stand up and say, well, I'm conscientiously opposed because it's against my conscience, I feel that he's walking on pretty thin ice there; but when we have an organization that has definite teaching regarding this, definite teachings in regard to conscience and relationships of worker to employee, that then the employee should be allowed to make his decision and that if he wants to make a positive decision, that he would like to follow the teachings of the church and follow his conscience, we will stand by that employee, go before the labour unions and plea on behalf of the employee, as well as him making his own plea.

Is that helpful, Mr. Banman? MR. R. BANMAN: Sounds fair enough to me, Madam Chairman. MADAM CHAIRMAN: Ms. Dolin. HON. M.B. DOLIN: I have just one question.

I'm wondering and I realize that you say you didn't have a lawyer write this. lt is certainly drafted, I think, in a way that presents your position very clearly, but I'm wondering if you are aware that the point that you are making has not been changed from the previous act to this, that the change that has been made in the amendments is that the Labour Board is now involved, rather than just the union making the decision about whether to include or exclude the member. That is the point of change and I don't know if you're aware of that. That's why I wanted to clarify it. MR. D.

MciVOR: What I am aware of, Madam Minister, is that I just had an employee, who is a Seventh-Day Adventist, of a large corporation within the confines of Manitoba, this week make me aware that he had made his appeal and he had been turned down, because he'd made his appeal on conscientious grounds and he said, well, there was no place where we could point to in our church, saying that you're going to be forced not to do this or to do it. HON. M.B.

DOLIN: Are you saying that what you agree with - I'm trying to separate out where the point of disagreement occurs, I guess, the manner in which unions bargain, is that acceptable to your church, to your faith? MR. D. MciVOR: All right, I guess where we differ with the labour unions is not with bargaining, but it's with striking which sometimes can go on beyond what's even within law, which opens up unsavory situations, and we disagree with the use of collective force in order to obtain personal gain. HON. M.B.

DOLIN: Would a member of your faith, who belonged to a union that had binding arbitration, would that be a satisfactory membership in the eyes of your members? MR. D. MciVOR: The teaching of the Seventh Day Adventist Church is from our long relationship with labour unions that we ask that our members not belong 14 to labour unions.

In every province across here, as far as I know, in all of the experiences I have had, especially I should say subjectively lately I've had this appear many times before the Labour Board in Saskachewan on behalf of our members, and on the strenghth of the teaching of the church and of the conviction of the individual, they were awarded what you're seeking to come to here, but it doesn't quite state that the belief that members of the group are precluded from being members of. You see, that's the part that I feel is vicious, to preclude somebody from being a member of a union. That's a little bit too strong.

I feel that it's much nicer to say that an employee is a member of a religious group and as a matter of conscience, based on religious training or beliefs, is opposed to belonging to a trade union or financially supporting it. I know it's a 'fine line, but the problem is that it's causing problems to some of our members who, as I say, as a church we refuse to be caught in the net of being anti-union. We don't go out and campaign against labour unions or something like that.

But on the other hand, I faced the same thing during World War 11 in a little different arena, but I was called into the Navy, to serve in the Navy. I asked to serve as a non-combatant. Well a non-combatant goes where the shells are flying and everything else, but you don't carry a gun. That is the teaching of my church - non­ combatancy.

However, we did have young men that in spite of that teaching went out and carried rifles and fought in other ways instead of serving as I did, you know, partly in the medical part and then different parts of it, but it was not said that they should now be excluded from church membership. I mean, it was a matter of conscience with them.

They made the final decision and I feel that with this slight change here, the decision rests with the individual and if he cannot make that board to understand that he is a member of a religious group, you know, and that he has these convictions personally and the religious group that he belongs to has this kind of conviction, well then, of course, if you can't prove that then there would be a reason for him being excluded from it. HON. M.B. DOLIN: Just one last question and I must say that I share your views on the analogy you just gave.

I wonder if you have a solution, or if you have in fact a case that you might tell us of the way in which an employee, who is a member of your faith, determines what benefits, what wages, etc., he or she will get from the employer if they are not a member of that particular bargaining unit. MR. D. MciVOR: Yes. You're talking about a mechanism that can be used . HON. M.B. DOLIN: If a person is excluded from the bargaining unit, I would assume that they are then excluded from any of the benefits gained by that bargaining unit, any of the benefits of representation and so on. How does that employee fare? HON. D.

MciVOR: Madam Minister, in order to belong to a church you have to be willing to make sacrifices,

We dnesday , 27 June, 1984 and we just had one of our workers demoted substantially from a much better paying job just to stand by his convictions as a Seventh-Day Adventist. We feel that if a person has a right to be a member of an organization, they also have a right to make sacrifices to belong to that organization. lt is true that we might say, well, that's unfair, but we also have to admit that there is nothing that's more fair in this world today than freedom. At whatever cost, I feel that it's worth it.

That's why I'm merely making this plea, that people be able to make in a sensible way a judgmental approach to boards, and if they can't convince a board that they're convinced themselves and that they have a church that has principles that they're willing to stand by and even make sacrifices to do it, then the board has a right to turn that aside. But I believe with this very simple approach of coming through with the religious training and beliefs - if I had the time I could have tabled all of this, our actual teachings on it, you know. What they are, they're straightforward and simple.

You can see that by these other labour boards that I've had to appear before that they've never to this point once turned us down, so our relationship is good.

I feel very comfortable with it and when I was working down in the United States I had sometimes before this conscience clause thing was brought in down there, I had to deal directly with labour leaders eyeball to eyeball, and when they could come to an understanding of our situation, there was only one experience in all the experiences I had that I felt that I could point to as being negative, because they saw that we were willing to sacrifice, to hold to our position, they saw that we appreciated freedom of conscience and it wasn't just a passing fancy or something to gain advantage, because it is a disadvantage.

So that's why I put this under (

a) that the employee is a member of a religious group. No. 1, he should be a member, and as a matter of conscience, based on religous training or beliefs, is opposed to belonging to a trade union or financially supporting it, all the rest of it, of course, then takes over, and (b), that the employee has a personal belief in these religious teachings and is committed to them. HON. M.B. DOLIN: Thank you very much for presenting your view to us. I appreciate it. MADAM CHAIRMAN: Thank you, Mr. Mclvor. Next delegation on the list is Messrs. Jack Benedict and Dennis Sutton, the Canadian Manufacturers' Association. Mr.

Sutton, I'd just like to clarify, the two of you are presenting together as a joint presentation I presume? MR. D. SUTTON: Actually, Mr. Ken Holland, who is the Chairman of the Manitoba Branch of the Canadian Manufacturers' Association was supposed to be here tonight. Mr. Benedict is I believe our First Vice-Chairman and you can ask him any questions if you like. I'll be making the presentation. MADAM CHAIRMAN: it's a joint presentation though between the two of you, which will be an hour? 15 MR. D. SUTTON: lt won't be an hour. MADAM CHAIRMAN: Thank you. MR. D.

SUTTON: Madam Chairperson, Honourable Ministers, Members of the Committee, the Canadian Manufacturers' Association is pleased to have this opportunity to respond to Bill 22, which is the end result of the Labour Law Review which has been ongoing over the past year. Throughout the entire process, the Canadian Manufacturers' Associaton has maintained the position that such changes are not desirable nor necessary in Manitoba.

The Canadian Manufacturers' Association cannot understand why the government wants to change The Labour Relations Act, which has been and is presently providing a framework for a labour relations record, envied by other provinces, both east and west of Manitoba. · We believe this bill will serve as a deterrent to harmonious labour-management relations, individual freedoms and rights and the potential to attract new additional and outside investment to the province. We can ill afford to convey such a perception during this fragile stage of recovery.

We cannot accept the changes being put forward in the government's 91-page bill, as ones which streamline the process. The bill is long, detailed and complex. Recognizing that the act will not come into force until January 1, 1985, we urge the government to take the time to reconsider the contents of the bill and study its impact as presented by the business community of Manitoba. Bearing the above in mind, we wish to address the specific concerns and clauses of Bill 22 which are of our greatest concern. lt is our sincere desire that the government address these areas and amend them accordingly.

In consideration of those being addressed, our areas of concern will be presented in the order in which they are found in Bill 22,

An Act to Amend The Labour Relations Act. AREAS OF SPECIFIC CONCERN

Section 1, under DEFINIT IONS

Section 1(c.a), the definition of a Business. We urge the government to modify this definition so that it does not have the very broad, far-reaching implications which presently exist.

Section 1(

i) DEPENDENT CONTRACTOR lt is the government's intention to delete this definition. The removal of this clause will cause confusion in the whole area and result in less predictability. We seek that this clause remain as stated in the present act.

Section 1(1.1) PROFESSIONAL STRIK EBREAKERS. This clause has been referred to as being "right out of The Ontario Labour Act." With respect, we must point out that this is not the case as the words "one of" have been added before the words "whose primary objects." These two words vastly broaden the scope of individuals who may be considered Professional Strikebreakers, when in actual fact they are not. We

We dnesda y, 27 June, 1984 recommend the words "one of" be deleted frm the proposed definition.

Section 10(4) RE STR ICTIONS ON CHANGES OF CONDITIONS AFTER TERM INATION OF COLLECTIVE AGREEME NT By extending the time limit by six months relating to the above-mentioned topic, the incentive to achieve a collective agreement has been reduced for both parties. This does little to enhance labour harmony and the collective bargaining process in Manitoba. The time interval should remain at six months as opposed to the proposed 12 months.

Section 14.1 Insurance Schemes To allow unions to pay premiums on benefits during work stoppage is certainly open to abuse, which can only result in exorbitant premium cost increases, which most employers would refuse to incur over the long term. At the very least, employees who are actively involved in work stoppage should not have access to wage loss programs which are designed and intended to substitute for wages lost as a result of being unable to work. Such amendments must be made to reflect the above.

Section 15, ACT OF UNIONS Clause 15(d), the proposed new clause has left out of the phrase "undue influence" as it relates to union activities, thereby permitting such actions to take place without the union being deemed to have committed an unfair labour practice. This additional power which unions would have at their disposal is not healthy nor desirable. The words "undue influence" should be placed back into this clause with such actions deemed as an unfair labour practice.

Sections 21 and 22 DUTIES OF INV ESTIGATOR AND APPLICATION FOR REM EDY With the present Sections 21 and 22 of the act being repealed and the proposed sections substituted, all time limits are removed for raising allegations of unfair labour practices being committed. This in theory may seem harmless, but in practice leaves such applications for remedy open to abuse. The present time limit is reasonable and useful in dealing with such issues in a timely manner and should therefore remain unchanged.

Section 24(2) DISRUPTION OF OP ERATIONS In the present act such actions now covered under the above-mentioned

section are deemed to be an unfair labour practice. We believe that such actions cannot be condoned in the workplace and for this reason should continue to be deterred, deeming the disruption of operations as an unfair labour practice.

Section 32, DISCRETIONARY CERTIF ICATION FOR UNFAIR LABOUR PRACTICE This clause, when taken at face, allows the board to automatically certify when it is satisfied that an employer has committed an unfair labour practice. Such a ruling may not represent the true wishes of employees which could be ascertained by ordering a vote. In such cases then, we would recommend that the board order a vote to determine if the union in question should be certified as the bargaining agent for the employees in the unit.

Section 36 WI SHES OF EMP LOYEES AND MEMBE RSHIP 16 We do not favour the abolishing of the minimum $1 membership fee. This being the case, we strongly recommend that if such an amendment is passed, a random sampling be conducted by the board to ensure that employees were knowledgeable of the implications of signing a membership card. In addition, all employees should be entitled to a grace period, say seven days, tv change their minds and withdraw their names as union members. Once again, undue influence should be included as valid reason for the board to dismiss an application or order a vote under Clause 36(4).

Section 38(1) STANDING OF EMPL OYER ON CERTIF ICATION APPLICATION With regard to this section, we must say, with all due respect, that the exclusion of one party in labour relations does little to accomplish harmonious relations between the parties. · lt is our understanding that in other jurisdictions, from which many of the proposed changes found in Bill 22 were adopted, the employer does in fact have the status which in this clause is being denied. We urge the governmenmt to strive for consistency in this regard and amend this clause accordingly.

Sections 46 to 50 MERGERS AND SALE OF BUSINESS The proposed amendments have far-reaching implications to present Manitoba employers who are considering expansion as well as outside firms considering locating operations in Manitoba. With this in mind, we recommend that these sections be reviewed and amended to ensure that they do not act as barriers to such investment, but at the same time, preserve the rights of appropriate and legitimate bargaining agents.

Section 58 INFO RMATION AS TO EMP LOYEES AND INFO RMATION DURING COLLECTIVE AGREEMENT We are opposed to the expansion of information which is proposed in the revision of these clauses, as they relate to employers providing the cost of all benefits. Such a requirement is an infringement on confidential and in many cases, competition-related information, which could harm an employer's position in the marketplace. Historically, employers have negotiated benefits, not costs. This approach should not be tampered with.

Section 69 - LEGISLATIVE PROVISIONS RE LATING TO FINAL SETTLEM ENT, JUST CAUSES, FAIRNESS, AND CONSUL TATION The imposition of

Section 69 of Bill 22 attacks the basic principles of labour relations and collective bargaining. Under no circumstances should clauses, especially ones dealing with such basic principles as just cause and consultation, be legislated into collective agreements. lt is through the negotiation of such areas that parties develop a sound and mature relationship upon which they can develop further co-operation. To have clause language imposed is simply another form of third party intervention which does not facilitate harmonious relations.

We encourage the government to resist legislating any clauses into collective agreements and allow the process which has worked successfully over the years to continue to operate.

Section 75 - DISPUTE RE: FIRST AGREEME NT The Canadian Manufacturers' Association has been opposed to first contract legislation since its

We dnesd ay, 27 June, 1984 introduction and believes that such legislation in fact impedes the collective bargaining process. Without prejudice to our stated position, we believe that the amendments proposed to this

section will improve the process with one major exception . Throughout our discussions regarding this matter, we have encouraged the government to give the board the same discretion the Minister has, which includes having the ability not to proceed with imposing a first contract. To date you have chosen to disregard our advice in spite of the fact that all other jurisdictions with such legislation include this option. We urge the government to amend this

section accordingly. If left as proposed, we will end up with legislation which will allow contracts to be settled where in fact one or both of the parties have not bargained in good faith.

Section 109(2) - REME DIAL AU THORIT Y OF ARB ITRATORS We are concerned about and opposed to the far­ reaching implications of sub clause (

f) in this

section which allows an arbitrator to "do any other thing necessary to provide a final and conclusive settlement." This language must be changed and/or clarified so that it is clear that an arbitrator does not have the power to go outside the terms and conditions found in a collective agreement in order to reach a settlement. To allow this situation to exist will destroy the predictability of administering a collective agreement and attack the very process and spirit under which collective agreements are reached.

Section 113.5 - REFERRAL OF GRI EVANCE TO BOARD We believe that this section, Expedited Arbitration, will result in more disputes being settled by a third party, which in labour relations has not proven to be satisfactory over the long term. lt may be a hard fact to accept, but the present arbitration process, with its high costs in terms of real dollars and time expended by all parties, acts as a real deterrent to going through arbitration to resolve disputes.

The parties therefore sit down and hammer out a solution they both can live with which goes further towards improving industrial harmony than a decision by a third party that neither labour nor management is willing to live with. We encourage the government to follow through with their amendments in 113(1) to 113(5) which places time limits on the present system of arbitration and stop there. In

summary and conclusion, once again, The Canadian Manufacturers' Association would like to assure the Government of Manitoba that we, too, are dedicated to a valued quality of life for all those who work and live in the Province of Manitoba. lt is for this reason that we come forward today in a final attempt to convince you that many aspects of Bill 22 will serve as a deterrent to harmonious labour management relations, will infringe on individual employees' freedoms and rights, and will do little to encourage manufacturers to establish facilities in Manitoba.

We thank you for this opportunity to provide input which has been presented in sincerity and with the conviction of our beliefs. We urge the government to address our concerns and follow through with the required changes in the interest of the Manitoba economy and all Manitobans. 17 Thank you. MADAM CHAIRMAN: Thank you, Mr. Sutton. Mr. Filmon. MR. G. FILMON: Thank you, Madam Chairperson. I'm wanting to just ask two very brief questions of Mr. Sutton.

He has presented us a very orderly group of concerns and the suggested remedies immediately following the concerns, and I compliment him on that sort of orderly presentation. But there are two cases in which he has presented a concern without a suggested remedy and I wonder if The Canadian Manufacturers' Association does in fact have a suggested remedy. In

Section 1(c.1) he urges the government to modify the definition of business so that it does not have the very broad far-reaching implications which presently exist. Does he have a suggested definition for that clause? MADAM CHAIRMAN: Mr. Sutton. MR. D. SUTTON: Not specifically. The concern we have there is that in fact, with the present proposed definition, it could be implied to include such things as volunteer organizations and that may be an extreme, but as in some other areas of the act I think a lot of the concerns and issues have been raised due to the vast or wide opening of

interpretation and uncertainty. We feel that this is one area where it should be narrowed. I personally haven't looked at that proposed . . . MR. G. FILMON: Madam Chairperson, the second area is with regard to the sections on mergers and sale of business.

The comment that has been made is that the proposed amendments have far-reaching implications to present employers considering expansion as well as outside employers considering location here and the recommendations that the sections be removed and amended to ensure that they don't act as barriers to such investment, I am sure that's an objective all of us here in the committee and in the Legislature share and, at the same time, preserving the rights of appropriate and legitimate bargaining agents. I'm wondering if he has a suggestion on some amendments to those clauses that might achieve that end result. MR. D.

SUTTON: Again, not specifically, but I can possibly elaborate somewhat on what our concerns are. The present legislation, with the

interpretation of the board, has I think adequately dealt with this

section and I believe also, through federal rulings, it's been adequately dealt with. The concern is that some employers who are considering moving into Manitoba, setting up, not just exclusively manufacturing operations, but any operations, have been concerned and possibly scared off because things such as facilities that were previously occupied by a unionized operation could be deemed to impose a collective agreement upon them. As I'm sure recent rulings have determined, it's a very complex area and again I think it's one that should

We dnesday , 27 June, 1984 be looked at and reviewed and given the time it merits because of its importance to Manitoba. MR. G. FILMON: No further questions, Madam Chairman. MADAM CHAIRMAN: Mr. Banman. MR. R. BANMAN: Just coming back very briefly to the definition of business. Really, what you're saying, that now of course incorporates things like a co-operative day care centre or a self-help centre that employs some people, and that was basically your concern with regard to that voluntary aspect of it. MADAM CHAIRMAN: Any further questions? Thank you, Mr. Sutton. MR. D. SUTTON: Thank you.

MADAM CHAIRMAN: The next delegation is Mr. Frank Steele from The City of Winnipeg. Is Mr. Steele not here? Mr. Sidney Green, Manitoba Progressive Party. MR. S. GREEN: Thank you very much, Madam Chairman. I appreciate your courtesy, I sincerely do. Thank you for having properly identified me. Madam Chairman, I feel that in speaking to this bill it's necessary first of all to establish one's credentials because I note that the Minister has talked about people who have opposed her legislation as being uninformed people.

She's also mentioned with respect to an advertisement that appeared in the paper by people who oppose her legislation as being crazy. So I say to the Minister that I wish to exchange the complement, that the legislation is crazy, and the people who propose it are uninformed. Given the necessity of having informed people I wish to try to use the time that is afforded to me this evening to inform the uninformed Minister and her uninformed advisers as to the defects in this legislation.

I also want to indicate, Madam Chairman, that I am appearing here essentially because I feel that employees' rights are being hurt by this legislation and are being hurt in an indelible way. I find it unusual that some of the positions that I will be pursuing will have been put by the Chamber of Commerce and the Manufacturers' Association because I have found that frequently they are for free collective bargaining when their ox is being gored but are not for free collective bargaining when the union ox is being gored.

So I hope that the Chamber of British Columbia, and the Canadian Manufacturers' Association, take the trouble to go to British Columbia and make an assault on that government for interfering with free collective bargaining in exactly the same manner as is being interfered with in the Province of Manitoba, by this government, because the legislation in British Columbia has its counterpart in the Province of Manitoba.

Both are guided by the same ideological base - namely for the government to interfere with the free collective bargaining process at the behest of either one of the parties to the process or the other.

I can say, Madam Chairman, who also has told people that if they agreed with the '72 and '76 legislation, and 18 they should agree with this legislation, that she is misinformed about the 1972 and 1976 legislation; that she obviously doesn't understand it; that she needs to be informed; and that between 1972 and 1976 one can trace the legislation and see that step by step, with one rather important exception which I have to live with, it was in favour of more freedom of the parties, rr.ore free collective bargaining, and less government involv ement.

Several periods were abolished, the appointment of conciliation boards was virtua lly abolished, and the parties were virtually left on their own. There was one important change and that was the inclusion of a compulsory check off once there had been a collective agreement. I expressed my misgivings with it at the time but being the compromising person that I am I went along with it. But I have seen, Madam Chairman, that I was right in the first place and that, too, should have been left to free collective bargaining.

In any event, Madam Chairman, I want to assure the members of this committee that I am informed, even by their definition, that I was a member of a trade union; that unlike many of today's organizers I walked on a picket line; I went on strike; I taught labour law at the University of the Province of Manitoba for seven years; I was paid by the Manitoba Federation of Labour to represent them when they required representation for many years; I was the Labour critic of the New Democratic Party between 1966 and 1967; I was heavily involved in the drafting of much of the labour legislation that existed between 1972 and 1977; I personally drafted, and this can be established through the legislative counsel, the two sections of the Queen's Bench Act which I insisted not be put into the Labour Act because they were not labour legislation, they were pieces of legislation which were designed to protect the rights of everybody in society.

Interestingly enough, Madam Chairman, between 1977 and 1981 there were virtually no changes to The Labour Relations Act because Mr.

MacMaster was from the labour movement, because seven years of even­ handed treatment had produced good industrial relations, that contrary to the Canadian Manufacturers' Association and the Chamber of Commerce, those provision in the Queen's Bench Act which are unique to the Province of Manitoba - namely that a court cannot enjoin somebody to work, and that a court cannot stop somebody from walking down the street with a sign carrying information unique to Manitoba and almost unique to the North America, did not result in industrial chaos in the Province of Manitoba.

Indeed they resulted in a greater measure of freedom to the parties and with freedom comes responsibility. With the taking away of freedom comes irresponsibility and that is what is sought in this legislation. So, Madam Chairman, I suggest to you that when you said that you tried throughout the Province of Manitoba to find people who were experienced in labour law to draw these sections of the act, you didn't ask me.

I suggest to you, Madam Chairman, that I am a person experienced in drafting labour legislation in the Province of Manitoba; that there was no need to pay $70 an hour or $600 a day, I don't know what the fee was, to bring people from outside to draft this legislation; that I have drafted such legislation; that I had, and this is immodest but it's part of demonstrating

Wed nes day, 27 June, 1984 that I am informed, and that the Minister is uninformed, and that she brings in crazy measures, so that she should hear what it sounds like when it is said the other way. Hear what it sounds like - crazy, because it disagrees with her and she knows it aiL Well she doesn't know it all. She is more misinformed, more uninformed than the people that she says are uninformed.

I am, Madam Chairman, therefore someone who is here on the basis of trying to protect the free collective bargaining situation, which is being assaulted by this government more than any government in Canada, including the Province of British Columbia, and the pendulum swings, Madam Chairman. Once you make the assault, then the treasure that you are trying to protect ceases to be a treasure. How do you, in opposition, say to the Conservative Minister who will be urged and as I remember it, will accept the urgings, of their pressure groups to say we should stop a right to strike in these circumstances?

How can you say, at that stage, but the right to strike, the freedom - what is a strike? - the freedom for a group of people to say we will not work, unless we are satisfied with our terms and conditions of employment.

How can you say that is sacred when you have made a greater assault on that freedom than anybody else has ever done in the past, and any Conservative administration has ever done in the past, than any Liberal administration has ever done in the past? lt will be impossible to stem the tide and there has never been a more apt time to say that he who sows the wind will reap the whirlwind, and what you and Bennett are doing in this country are exactly the same thing. For the Minister to say that this is nothing but a continuation of the good that was enacted in 1972 and 1977 is, with respect, crazy and misinformed.

Now, Madam Chairman, I think it's also necessary to go through a brief history - and I'm going to try to be brief - of why this legislation is here. it's not here because any of these provisions are good or thought to be wonderful. it's here because of something internal that happened in the government party. In 1976, there was a strike; and it was a terrible strike; and it was a strike at Griffin Steel; and it was brought about by a irresponsible organizer who decided that he has an employer by the throat; and that he can use his position to get great advantage.

He decided to go on strike on the expression, no compulsory overtime in the Province of Manitoba, and the government, quite properly, said this is a matter to be settled by collective bargaining and within the NDP there was an uproar. There was, Madam Chairman, walking in the Legislature, the President of the party, now a Cabinet Minister, another person who is now a Cabinet Minister, saying, "One, two, three, one, two, three, we've been screwed by the NDP," and they demanded legislation, saying that there would be no compulsory overtime in the Province of Manitoba.

We've been here - those people who rode to power over the back stabs of their colleagues are here - they've been here for three years. They haven't enacted no compulsory overtime in the Province of Manitoba, which was the great cry as a result of the Griffin strike. Then at two successive conventions, the NDP got up and said that we will enact anti-scab legislation. When there is a strike no employer will be able to hire people during the continuance of that strike.

I, who had been for free 19 collective bargaining throughout all those years, said that if you do that you'll have to pass essential service legislation because you won't be able to have a strike in a hospital, or a police strike, or a strike anywhere that is an essential service and tell the government that they can't hire people while there is that strike. In answer to that, the present Attorney-General, who at that time was aspiring to kick somebody out - said baloney. He didn't say balderdash. He said baloney.

But there is no anti-scab legislation here, Madam Chairman, and for three years they passed it at two conventions, and the Premier of this province went up to the labour seminar of the NDP and said - if I am elected leader I will have anti-scab legislation, there's nothing wrong with it at all.

No, Madam Chairman, after coming to power there were debts to be paid and the trade union movement has been on the backs of this government ever since, making demands, and since even the government is not that crazy as to legislate those things that they promised when they were in opposition or when they were members, were aspiring to be members of the government, they had to pass a whole bunch of things and what have they passed here, Madam Chairman?

Essentially they have heard from every union about some of the problems that they have had living with the legislation and the trade union organizers find that they can't win everything they want. They call irresponsible strikes and then cannot win them, and they need the government's help.

So this legislation is not passed for employees, it's passed for an irresponsible, gutless union bureaucracy that doesn't know anything about free collective bargaining and wants to take the place of employer bosses to have union bosses. it's not for workers, it's for trade union organizers and has been enacted by trade union organizers, and the advisers are trade union organizers and that's what the inspiration of this legislation is, Madam Chairman, and I can prove it to you.

There's one clause here, Madam Chairman, that says that even if there is no just cause clause- that's become easy for me to say because I've said it so often in court.

Therewas a particular court case, and I can give you the name of it - Miami Sportswear, where the clause in the collective agreement said that the employer has full right of discharge, and I'm not repeating it verbatim, but can exercise that right only with due respect to justice and the rights of the workers. lt didn't say that the employee is entitled to be reinstated. lt went to arbitration; the arbitrator reinstated the employee; it went to court; the court upset the Arbitration Board award; it went to the Court of Appeal, and the Court of Appeal upset the Arbitration Board award and said that the Arbitration Board has no right to reinstate an employee unless there is a just cause clause in the Constitution.

The Minister's nodding her head. Everybody knows this. So now rather than allowing the employer and the employee to agree as to the clause, Big Brother comes in - and let's not be chauvinistic - Big Sister comes in, and says that regardless of what you have agreed to, you have a just cause clause in your agreement and even if it's not there we say it's there. Well, Madam Chairman, when I was a little boy I used to hear from a man by the name of Kovnats, who

Wed nesday , 27 June, 1984 happens to be the brother of one of the MLA's, and he used to do a routine, it was a comic routine and it had to do with him stirring up the workers to revolution. He said, comes the revolution there will be this and comes the revolution there will be that, and comes the revolution you'll have strawberries and cream. Everybody will eat strawberries and cream. One guy said; but I don't like strawberries and cream. He said, comes the revolution you will eat strawberries and cream whether you like it or not.

That's what this legislation says, that you're going to have these clauses in your collective agreement whether you have agreed to them or not, so that's one of them. By the way, I won't be able to find all of them, but I'll be able to find many of them. There was a particular situation, and people should know what you're doing, 18 people worked in a plant. it's Mrs. K's. I imagine the Deputy Minister knows all about that and that's why they have to change the act. Mrs. K's Food, it's a little plant in Stonewall. They signed up approximately 12 out of the 18 people.

They didn't approach the four most senior people because the four most senior people were what they call company friends. So the four most senior were not approached and they did not approach six people. After they applied for certification there was a shortage of work. There was no accusation of unfair labour practice, and finally, there were only six people left in the plant, only six. They happened to be all not union members. They went to the board. The board said, how many employees are there? They said, six. How many employees do you represent, Mr.

Green? - because I represented the objecting employees, which is going to be a disappearing breed, they won't have objecting employees any more. How many do you object, six, you represent all the employees. Well, I don't know because in your information, you don't tell us what the cards are and who has signed. But they concluded that all six employees did not want the union, all six unanimous, and the board decided, whether or not you like strawberries and cream, you're going to eat strawberries and cream, and they certified the trade union. They certified the trade union.

The trade union was then sent a letter - know what you are doing. They sent a letter, we are uninformed. Now you'll be informed. The member sent a letter to the union and to the employer, we don't want a collective agreement, please don't bargain with these people. The union sends a letter to the employer. We are the certified bargaining agent. The law says that you shall bargain with us. The employer says, my employees don't want me to bargain with you, they have sent me a letter signed by their lawyer. So what does the employer do? Know what you are doing.

He applies to the Deputy Minister for a first agreement. Do you understand that the law in the Province of Manitoba is that you can have and impose an agreement even though the employees in the plant are unanimously opposed to such an agreement, unanimously opposed, and the union demanded such an agreement? We told the courts that the union was demanding such an agreement and the union continued to demand such an agreement while we were in court. lt went to the Court of Queen's Bench and they sustained the Labour Board. They said, the Labour 20 Board has the law to do this.

They maybe didn't have it then, but the government is going to see to it that they've got it now, at least they think they are. One of the things that will happen is that I will not be made poorer by this legislation, because the more sections they pass, the more legal cases there will be. Yes, the Minister who thinks that she can solve these problems by passing legislation is misinformed, misguided, one could even, if one wanted to be rude, say it's crazy. In any event, the Court of Appeal set aside the certificate. The Court of Appeal said that's not what this is all about.

We cannot have the Labour Board ignoring the provisions of The Labour Relations Act which say in

Section 31, and the Board ignored it, 31(

c) that the board shall determine the wishes of the employees in the unit as to the selection of a bargaining agent, whether expressed by way of vote, petition or any other manner. So you could read a petition, you could get a vote. You want to know something, look at your bill. 31(

c) is eliminated. The board now does not have to determine the wishes of the employees in the union because this

section was ruled by the Court of Appeal as placing a mandate on the Labour Board to determine the wishes of the employees in the unit. What a revolutionary concept that you are going to determine the wishes of the employees in the unit before you have a certification. Now what this act does, and I don't have to spell it out, I can tell you it's there even if you can't find it, it's there.

This one says that the cards are submitted by the union, that nobody sees those cards, that the board has to accept those cards, that you can't cross­ examine anybody as to how they got those cards, that nobody tells you how many cards are obtained and if there are 45 percent of the employees that signed cards there will be a vote. If there is 55 percent, there will be certification and petitions of employees or wishes of employees are irrelevant unless some employees want to come in and charge the union with fraud. I can't remember all of them, but virtually criminal acts in getting those cards signed.

But nobody can look at the cards. Nobody knows who has signed the card. If you people, the 18 people at this table, don't know how many cards are in, you don't know from your neighbour if he or she has signed the card because the union always said that nobody wants to admit they are a member of a union, they are afraid. What nonsense. What irresponsibility. Who are the people who are affecting union militancy in this province? Fully 25 percent of the workers in this province got organized the hard way through freedom, through militancy, through knowing that if they did go on strike and they didn't get suppo