1987 Legislative Session: 1st Session, 34th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, MAY 26, 1987

Afternoon Sitting

[ Page

1365 ]

CONTENTS

Routine Proceedings

Oral Questions

Government advertising. Mr. Harcourt –– 1365

Admission fees to provincial museums. Ms. Edwards –– 1365

Mr. Rose

Interruptible power to Vancouver Island. Mr. Clark –– 1366

Admission fees to provincial museums. Ms. Edwards –– 1366

Highway tolls. Mr. Miller –– 1366

Allowances for forestry contractors. Mr. Williams –– 1366

Environmental appeal process. Ms. Smallwood –– 1367

Municipal Amendment Act (No. 1), 1987 (Bill 30). Third reading ––

Industrial Relations Reform Act, 1987 (Bill 19). Committee stage. (Hon. L. Hanson), 1367 Mr. Gabelmann

Mr. Miller Mr. Jones Mr. Clark Mr. Sihota Mr. Lovick Ms. A. Hagen

Royal assent to bills –– 1387

Appendix –– 1388

The House met at 2:09 p.m.

HON. MR. COUVELIER :

Mr. Speaker, I am delighted to welcome on your behalf four lovely

ladies who are resident in the Victoria area: Mrs. Helen Lindholm, Mrs.

Teresa Middleton, Mrs. Jane Lewis and Mrs. Kathy Stolle. All of these

individuals are very active in greater Victoria in a variety of

community enterprises. I would ask the House to give them a warm

welcome this afternoon.

MR. JONES : I would like to

introduce three very important people in my life: my wife Jennifer, my

son Emery, and good friend Nina Hunter. Would the House please join me

in making them welcome.

HON. MR. SAVAGE : It gives me

great pleasure to introduce to the House four constituents of Delta:

Murray and Elizabeth Jackson and Allan and Colleen Cash. Would the

House please make them welcome.

HON. MR. COUVELIER :

Mr. Speaker, we are fortunate to have in British Columbia many capable

financial institution administrators. We're particularly pleased today

to have in our presence senior executives from the B.C. Central Credit

Union: Mr. Tod Manrell, first vice-chairman; Mr. Ken May, second

vice-chairman; Mr. Barry Forbes, chairman of the legislative committee;

and Mr. Wayne Nygren, the chief executive officer. I ask the House to

give these gentlemen a warm welcome.

MR. DE JONG : It

gives me great pleasure to introduce to the House two citizens of

Central Fraser Valley riding, Mr. and Mrs. Bill Wiebe. I ask the House

to welcome them.

MR. GABELMANN : I'd like the House to welcome a good friend of mine and her sister — Candace and Marianne Parker.

MR. CASHORE :

I'd like to introduce Don and Jeanine Goodison, residents of your

constituency, Mr. Speaker, and friends who are visiting in the

precincts today. Would you please welcome them.

I would

also like to welcome to the precincts Dawn Black and Linda Asgeirsson,

constituency assistants in Maillardville-Coquitlam, who are at meetings

in the area today.

Oral Questions

GOVERNMENT ADVERTISING

MR. HARCOURT :

Mr. Speaker, I'd like to ask the Provincial Secretary about the

advertising for Bill 19. We realize that this is just a proposal; it's

not law; it's a bad proposal for which the government is plummeting in

the polls. Yet last night we saw some ads that are paid-for public

propaganda, and we want to know how the Provincial Secretary can

justify the expenditure of public funds to promote Bill 19.

HON. MR. VEITCH : Mr. Speaker, I want to thank....

AN HON. MEMBER : I'll bet.

HON. MR. VEITCH : Yes. ...the hon. Leader of the Opposition for giving me the opportunity to respond to our constructive awareness program.

There

are two elements to this advertising campaign. There is the JobTrac

program: some $80 million that the government of British Columbia is

putting into the JobTrac program. I think that's something that you

ought to be proud of. And in a free and open society — in a democratic society —

especially with an open government, it behooves that government to

fully inform the citizenry; there's no question of that. I have no

problem with these ads. I think they're timely. They're well done, and

it's part of the government's plan for open government.

[2:15]

MR. HARCOURT :

Supplementary. Can the minister confirm that this is only the first

stage of a $350,000 campaign that will combine TV, radio and newspaper

ads?

HON. MR. VEITCH : Well, I can confirm that this

government will continue to be an open government and will continue to

inform the citizens, and they'll be informed in all aspects of

government.

MR. HARCOURT : Mr. Speaker, can the

minister confirm that money, time and space that has been allocated to

advertise the JobTrac program has been hijacked for the Bill 19

propaganda campaign?

HON. MR. VEITCH : Hijacking is a term that is without my lexicon. It may sit very well with the Leader of the Opposition, but not with me.

MR. HARCOURT :

It may be beyond your comprehension, Mr. Minister. The simple question

is: did the ads in which the Premier sat on a simple stool to talk

about JobTrac and Bill 19 come from the advertising budget for JobTrac?

Yes or no. That should be within your comprehension.

HON. MR. VEITCH :

As the hon. Leader of the Opposition may or may not know, several

ministries are involved in the JobTrac program; they will have already

budgeted funding for this type of situation and the funding will come

from that area. It is administered through my ministry, through

government information services, and I think you will find it

worthwhile. I know the hon. Leader of the Opposition would want to have

the public of British Columbia informed, especially in such a very

important area — $80 million in JobTrac — and beyond that, on

one of the most important labour relations initiatives ever undertaken

in British Columbia.

ADMISSION FEES TO PROVINCIAL MUSEUMS

MS. EDWARDS :

Mr. Speaker, my question is to the Minister of Tourism, Recreation and

Culture. Mr. Minister, are you contemplating the introduction of

admission fees this summer at the Provincial Museum, Fort Steele and

Barkerville parks, and British Columbia's other heritage sites?

HON. MR. REID : Mr. Speaker, since that concerns future action, future policy

[ Page 1366 ]

MR. ROSE : Could I have permission to rephrase the question? Has the minister decided to apply these fees to provincial museums?

HON. MR. REID : The answer is no.

INTERRUPTIBLE POWER TO VANCOUVER ISLAND

MR. CLARK :

My question is to the Minister of Energy. Half of the homes on

Vancouver Island, about 100,000 households, now rely on electric

heating. What possible explanation does the minister have for setting

up a system which will require that all of these people either install

or maintain an oil backup system in order to get cheaper electric rates

on the Island?

HON. MR. DAVIS : The recent

announcement of new, interruptible rates will be followed by others.

Basically, on Vancouver Island there are another 100,000 customers,

most of whom are dependent on oil at the present time, and they can

quite cheaply, quite economically, take advantage of the new rates.

They can do this on a long-term basis, and by that I mean literally

decades. So this is a new service; it's good news particularly to

lower-income people, people in outlying areas, and it's the first phase

of what I hope will be several announcements.

MR. CLARK :

So the minister has confirmed that half of the homes on Vancouver

Island simply won't be eligible for this program. Could he tell the

House why it wouldn't be possible for those that have electric heating

solely to pay the cheaper rate when there's a surplus and pay the firm

rate when there is no surplus?

HON. MR. DAVIS : Mr.

Speaker, those who are on electricity only clearly need a firm supply

because they have no other way of heating, so they must pay the firm

rate. The firm rate, in the longer term at least, will require

additional dams to be built, power lines to be installed, distribution

systems. They require a firm, reliable service. They have to pay the

whole shot. If they have an alternate means of heating and can be

interrupted, then they too can take advantage of this lower, favourable

rate.

MR. CLARK : They're already paying the firm

rate, so it doesn't enhance that at all. Virtually every week, on this

side and everywhere in this province, we get another press release

announcing a discount for electricity for industrial users. Does the

minister agree that residential consumers of electricity, particularly

in areas not served by natural gas like Vancouver Island, Revelstoke

and those other communities, should take precedence, should get

electricity before any future discounts are given to industrial

consumers in the province?

HON. MR. DAVIS : The

discounts to which the hon. member refers given to large industry will

expire within the next three to four years. It's not a long-term

policy; it's not a long-term rate. Few, if any, residential users would

want to buy into some discount rate arrangement; they would have to

make a substantial investment in the process and then find that they

had to pay the firm rate after three or four years. The discount rates,

in other words, are available short-term to major industries and then

they have to pay the full rate. That is consistent with rulings by the

Utilities Commission, which always looks at fairness and equity across

the province.

ADMISSION FEES TO PROVINCIAL MUSEUMS

MS. EDWARDS :

Again, I'm going to question the Minister of Tourism. Could you confirm

that there will be no user fees imposed at the Provincial Museum, parks

at Fort Steele and Barkerville, and other heritage sites in British

Columbia this summer?

HON. MR. REID : Inasmuch as we're discussing future policy, the program will be unveiled when it's available.

MS. EDWARDS :

Could the minister confirm that he has decided that no user fees will

be imposed this summer at the Provincial Museum and the other

provincial heritage sites?

HIGHWAY TOLLS

MR. MILLER :

I have a question for the Minister of Highways. The minister has

indicated that there will be a $2 increase in the toll on the

Hope-to-Merritt

section of the Coquihalla. Does the minister not feel

that that increase will act as a deterrent to traffic taking that route?

HON. MR. MICHAEL :

I thank the member for asking the question. However, I would like to

clarify for the record that the minister has not decided that there

will be an increase. It's one of the options being considered as an

element of fast-tracking Coquihalla III.

MR. MILLER :

The minister has indicated that he'd like to see a $5 fee on the

connector route. Can the minister confirm that this is the new method

adopted by this government to finance highway construction in British

Columbia?

HON. MR. MICHAEL : Once again I thank the member for the question. The answer is no.

MR. MILLER :

A supplementary. Will the minister confirm that he has decided there

will be no tolls on the new Vancouver Island Highway when it is

constructed?

HON. MR. MICHAEL : I thank the member

for the supplementary question. The answer is that the minister has not

given that aspect of tolls any consideration whatsoever.

ALLOWANCES FOR FORESTRY CONTRACTORS

MR. WILLIAMS :

A question to the Minister of Forests. The Hopwood report indicated

that allowances for contractors — that is, where a licensee

contracts out works on his licence —

exceed actual costs by about 25 percent, and the difference is pocketed

by the corporations rather than being returned to the Crown in the form

of stumpage. Can the minister confirm that those allowances have now

been reduced and reflect the real contract prices?

HON. MR. PARKER : Mr. Speaker, the member knows full well that the stumpage appraisal system is under review at this time.

[ Page

1367 ]

MR. WILLIAMS : There are some bulging pockets out there in the private

sector. The truck logger contractors, however, are the people who have been

squeezed in these circumstances at the hands of the majors. Their income has

gone down while pulp prices have gone up and commodity prices have gone up.

They've been badly squeezed. Can the minister advise whether he has considered

ministerially approved contracts that have arbitration clauses in them, so that

these truck loggers can be protected from the unreasonable squeeze play by the

major corporations?

HON. MR. PARKER :

Mr. Speaker, the ministry doesn't have a policy of interfering in

contractual obligations between business partners; but we have had

discussions with the truck loggers, and they are seeking that sort of

contract.

MR. WILLIAMS : Mr. Speaker, these people,

who are the real entrepreneurs in this industry, are becoming its

sharecroppers. Can the minister confirm that he is considering this

matter in a positive vein?

HON. MR. PARKER : Mr. Speaker, we consider all citizens of British Columbia in a positive vein.

ENVIRONMENTAL APPEAL PROCESS

MS. SMALLWOOD :

My question is to the Minister of Environment. The ministry has removed

the rights of citizens to full public appeal on environmental issues by

eliminating the requirement for public hearings. The Regional District

of Central Kootenay has been forced to take on the lawyers of the CPR

in order to halt the spraying of herbicides in the Creston and Slocan

valleys. In the name of open government — the point that we heard

earlier — will the minister now reconsider the procedural changes that

he put in place?

HON. MR. STRACHAN :

The premise to the question is incorrect. I cannot accept that by

allowing for written appeals the full public process is in any way

destroyed. With respect to the second part of the question, as minister

I cannot comment on any appeal before the Environmental Appeal Board,

if there is an appeal in place.

MS. SMALLWOOD : I

think it's clear to this side that the people concerned about herbicide

spraying in their watershed have lost confidence in this government

because of the changes in the appeal process. The minister said that

when appeals came down he was prepared to reconsider, if it was brought

to his attention that the recommendations were not going to work. This

side is bringing that concern to the minister. We are saying that they

are not working, and that regional districts are having to take on the

courts.

MR. SPEAKER : Order, please. Could the member please come to a question.

MS. SMALLWOOD : My question to the minister is: will he reconsider the changes to the appeal process?

HON. MR. STRACHAN : Sure, I'm ready to reconsider anything, but not

at this point.

Orders of the Day

MUNICIPAL AMENDMENT ACT (NO. 1), 1987

HON. MR. STRACHAN :

Mr. Speaker, at the outset I'd like to ask leave that the order

regarding Bill 30 made earlier today be discharged, and that leave be

granted for third reading of Bill 30 now.

Leave granted.

Bill 30, Municipal Amendment Act (No. 1), 1987, read a third time and passed.

MR. HARCOURT : Mr. Speaker, I'd like to ask leave to make an introduction.

Leave granted.

MR. HARCOURT :

Mr. Speaker, I'd like to introduce to members of the House one of the

reasons why culture has become such a significant part of our tourism

and economic development. I'm sure the Minister of Tourism (Hon. Mr.

Reid) will know the real people who make his job possible, the people

who are daily in the cultural world. We have with us today Mr. Stuart

Backerman, who is the cultural programmer for the city of Vancouver.

He's the person who put together the cultural program that the minister

was working on in California and other areas and who helped put

together and was the founding force behind the Asia Pacific cultural

festival, which is such a wonderful part of our relationship with the

Asia Pacific nations. I would like us to give a very warm welcome to

Mr. Stuart Backerman.

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

INDUSTRIAL RELATIONS REFORM ACT, 1987

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

[2:30]

section 1.

MR. GABELMANN :

Mr. Chairman,

section 1 of the bill is not a significant

Section in

comparison to dozens of other sections that we'll come to in the weeks

that follow, but I do want to take a moment to reflect on the passing

in its thirteenth year of the Labour Code of British Columbia.

This

section abolishes the title, "Labour Code, R.S.B.C. 1979," and replaces

it with "Industrial Relations Act." In making this change, the act

will — as we will canvass during subsequent sections — adopt

an entirely different role and behaviour in labour relations in this

province.

The

Labour Code was conceived in the early 1970s following years of

tumultuous and disruptive labour relations in British Columbia which

followed upon the introduction of changes to the original Labour

Relations Act introduced in the 1940s, and changes in 1959, through the

sixties and in a major way in 1968 with the introduction of the

Mediation Commission Act.

The Labour Code, which by this

section we are now formally abolishing, grew out of a recognition that

labour relations could not be conducted in our courts and that labour

[ Page 1368 ]

relations could not function given compulsory arbitration as a major mechanism of dispute resolution.

repealing the Labour Code, as we are doing in

section 1, we are

repealing a lesson that all British Columbians learned in the early

1970s. We are repealing an approach to labour relations that was

supported by all elements in our society, given their concern about how

labour relations had been conducted in the sixties and very early

seventies.

Given that, we are making a fundamental error,

in my view –– I recognize that in these comments I am treading close to

the line in terms of being in order, and I will not take too long –– I

will be careful not to do that, but I think that some of these things

need to be said just to set the framework.

We learned the

lessons, but for some reason 14 years later we seem unwilling to

recognize that we are going to have to go through the exercise once

again. This change and the changes that follow will lead us back into

those dark days of industrial relations characterized, as I

said, by excessive court activity and by the unworkable provisions of

compulsory arbitration. It is unfortunate that a consensus could not

have been reached in respect of this legislation, as was reached in

1973 — a unanimous vote of this Legislature in second reading in

favour of the Code that we are now abolishing. I think it important at

this point to remind the House that the letter the minister wrote to

the Premier on February 28 of this year contained a very telling and

accurate paragraph, in which he warned the Premier this legislation

will not work unless it has the support of the parties affected by it.

I want

to say one other thing in respect of the change from the Labour Code to

the Industrial Relations Act. This is not in order in any

section but

it needs to be said at this stage of debate –– I find it highly

offensive and insulting, not only to members of this House on both

sides but to all people in our society, that major changes to

an act of

this consequence are introduced at 2:15 on a Monday and are called for

debate at 2:30 on a 'Tuesday –– 24 hours and 15 minutes to attempt to

comprehend and to get feedback on just what exactly the words mean,

which is impossible.

I think for that reason — and I say this quite candidly —

it will take us a little longer to get through the first early

sections, so that we can get caught up in terms of comprehension and

understanding of the subsequent sections and don't miss important

elements as we proceed through debating this section.

Mr.

Chairman, that is all I want to say because I recognize your tolerance

in allowing me these comments on this particular

section –– I recognize

they skate close to the edge in terms of order, but I did want to make

the point that we are making a fundamental mistake by not recognizing

the lessons of the late sixties; and we are making another mistake by

rushing this legislation through, not only rushing it through the House

but rushing it through society. Time should be taken before we consider

legislation of this magnitude that is going to have the kind of impact

it will have, not only on our society here in British Columbia but on

our reputation around the world. I am sorry that that process will lead

to a very negative image for this province. The government should be

condemned for that.

HON. L. HANSON : Mr. Chairman, I

appreciate the remarks of my critic. In fact, I don't think that at

this point we are debating. We did through second reading of the bill

debate the philosophy and so on, but I had understood that

section 1

was relating to the title of the new act.

I would just

like to say a couple of words about that, and that is that the titles

of bills relating to labour relations have been a very fluid thing

across Canada. If you look at the various titles that are prevalent

across Canada, Alberta has the Labour Relations Act; Saskatchewan has

the Trade Union Act; Quebec has the Labour Code; I understand Ontario

is going to change theirs from the Labour Relations Act to the Labour

Relations Code, and that sort of thing.

I think that

changing the wording to the Industrial Relations Act is to signify that

we do recognize that this is 1987 and not 1970, when the original one

was introduced, and that there are some changes and some requirements

for a different method of handling labour relations in British

Columbia. That's one reason why we brought forward the Industrial

Relations Act –– I guess the second reason is a lesser one, but

certainly apparent to me. When it was called the Labour Code, a lot of

the public had the misconception that labour meant that the ministry

was responsible very directly for the creation of labour, as opposed to

the Economic Development and Advanced Education ministries –– I spent a

lot of time asking questions on JobTrac and that sort of thing, but

that's a minor consideration. The main consideration is that there is a

change in industrial relations in British Columbia, and therefore the

name of the act should be changed.

MR. MILLER : Mr.

Chairman, I want to reiterate what my colleague from North Island had

to say –– I listened very carefully to the minister's rationale — the reasons he provided for changing that —

and quite frankly find it less than satisfactory. What difference does

it make if it's 1987 as opposed to 1973? That in itself is completely

immaterial and irrelevant to the issue. What I think is really the

issue in terms of the title is that "Labour Code" signified and

implied, and indeed was felt to be by both parties who operated under

this code — the very word "code" itself implies — something

meaningful. We talk about a code of ethics. The very use of that word

was I think significant, in that the original Labour Code was viewed

with a great deal of respect by both labour and management. It may be a

small point. Some people may dismiss it in terms of only talking about

a title. I think it is significant; we're departing from a document

that both parties thought was pretty good, and one they could use to

iron out their differences.

Section 1 approved.

section 2.

MR. GABELMANN :

Mr. Chairman, there are two issues that I want to deal with in

section

2, again briefly. The first is the providing of collective bargaining

rights to teachers.

First

of all, if it were as simple as

that, I would say to the minister: "Well done. It's appropriate. It's

years overdue." The introduction of full collective bargaining rights

would be an appropriate thing to do for teachers in our society.

Unfortunately — and I can't talk about it in detail — later

sections of this bill effectively withdraw the right of free collective

bargaining.

need to take a moment to try to make the point that if the government

or its agent has the power to put an end to a dispute, as in education

affecting teachers, the commissioner of the Industrial Relations

Council has that power if he perceives "a threat to the provision of

education." When

[ Page 1369 ]

teachers

aren't teaching, that's a threat to the provision of education. So if

teachers aren't teaching because they're on strike, there is a threat

to the provision of education. The strike — or the lockout, for that matter; the same arguments apply —

can be and most likely will be ended by the commissioner, because in a

later

section he has the right to put an end.... If you don't have the

right to strike or the right to lock out, you don't have full

collective bargaining. This country is a signatory to an international

labour organization that is a United Nations agency convention — in different language, an international law —

which says that workers have the right to withdraw their labour in

order to protect their right to full and free collective bargaining.

while this

section ostensibly allows for collective bargaining by

teachers, in fact it doesn't give them the option or the opportunity to

carry out to the full extent their collective bargaining. Why? Because

if they get into a crunch situation where the employer refuses to deal

in a serious way with their request and they're forced to withdraw

their labour, that will be stopped; and what bargaining power do they

have then? They have no bargaining power whatsoever. They don't even

have the bargaining power of public opinion anymore because of the way

subsequent sections of this legislation are drafted.

[2:45]

Not to belabour it — I won't

take a lot of time; other members may want to say a thing or two about

this particular

section —

but the point needs to be made that full collective bargaining rights

have not been provided to teachers, no matter what the press releases

and the propaganda produced by the government's agents. No matter what

they say, you do not have free collective bargaining if you cannot

withdraw your labour. Nor do you have free collective bargaining if you

cannot declare a lockout. In this case, as I said, if there's a "threat

to the provision of education," the strike or lockout can be ended.

let's not characterize this legislation as having given full, free

collective bargaining to teachers. It has not. What it has done is to

allow teachers to bargain as other so-called essential services in our

society, services that are perceived by the government to be so

important that someone should be given the authority to say a strike or

lockout cannot occur. When that happens, you do not have free and full

collective bargaining.

Mr. Chairman, I want to talk about

another part of

section 2, but I'll step down for the moment in case

there are others who may want to comment on this issue.

MR. JONES :

Mr. Chairman, I did want to take a moment to make a comment to the

minister. Part (

e) of

section 2 should be a signal of a very proud and

happy day for the teachers of British Columbia, because for many years

teachers looked at other jurisdictions in Canada longingly, seeing that

full collective bargaining rights were accorded those colleagues in

other provinces — and also in looking at other employee groups in

this province and seeing that they had full collective bargaining

rights, the rights to bargain the conditions of employment that were

denied teachers. As a result, the teachers of this province thought

that by seeking their bargaining rights to be included under the Labour

Code, they would achieve those fundamental rights enjoyed by others in

B.C. and in Canada.

On the surface, it would appear that

they have achieved this goal; but very sadly, this is not the case.

Although the government has repeated numerous times, ad nauseam in

fact, that we gave them what they wanted, this

section does not do

that. This

section gives the appearance of that — gives with one

hand and takes away with the other. What the teachers were asking for

was inclusion under the Labour Code that would give them full

collective bargaining rights, the right to organize as a union, the

right of certification and to bargain collectively all terms and

conditions of employment. Although it is true that they have the same

rights enjoyed by other members under the Labour Code now, those rights

have been taken away drastically by other sections in this act.

seems to me, Mr. Chairman, that what's happened here is analogous to

purchasing a piece of property with a home on it; then when you go to

take occupancy, you find the home isn't there. I think teachers have

lost a home in this province. The home isn't under the Labour Code.

Teachers are no better off than they've ever been. Rather than being a

joyous and happy day in the history of the teaching profession, it's a

very sad day, because teachers are very disillusioned, very frustrated

and very angry at this government. I think the reactions that we see in

the school system at the moment are a reaction to their frustration.

just wanted to comment that this is a very illusory right given under

section 2(e). When it should be a very positive thing, it turns out to

be very negative.

MR. CLARK : I just wonder whether the minister would like to comment on that first line before I go to a different line of questioning.

HON. L. HANSON :

Mr. Chairman, the presentations made to me during my tour of the

province by the various teacher organizations were mixed, I guess.

There was no question that the teachers wanted rights to bargain their

working conditions which they didn't have previously. There was some

difference of opinion whether they wished for the right to strike or

not. But there was very definitely the wish that the teachers did have

the right to bargain their working conditions, and we're pleased to do

that in this act.

All we're doing by this

section is

ensuring that the teachers do come under the new Industrial Relations

Act. The conditions that they bargain and so on will be the same

conditions that all other employees are required to bargain under. I'm

sure that those discussions will carry on in great detail as we reach

those sections.

MR. JONES : Mr. Chairman, the

minister implies that there was some disagreement on the part of

teachers throughout the province, and I appreciate the minister

traveling the province and hearing briefs. But I think when he heard

those briefs, he heard unequivocally from teachers in this province,

without any variance in their perception of their goals and aspirations

for bargaining, that very clearly what they wanted was full collective

bargaining rights, which included the right to strike, but primarily a

choice mechanism so that at the point of impasse they would have a

choice. And if the minister disagrees with that, that's fine, but I

think the minister shouldn't state that what they wanted was at

variance from group to group. What they wanted very clearly was at the

point of impasse the right to choose strike action or compulsory

arbitration. There was no variance around the province. I think that

point has been missed and obviously it's been missed by the minister

too, and I think that's sad.

[ Page 1370 ]

MR. CLARK :

I have some brief questions and comments on

section 2, subsection (f),

and I'm sure other members — the member for North Island (Mr.

Gabelmann) —

will flesh it out. To begin with, this is the

section which amends the

Labour Code to exclude from coverage any person whose bargaining is

regulated under the Canada Labour Code.

Could the minister

please tell the House what is the government's understanding of what

this clause does, and how many provinces have this kind of exclusion in

their labour legislation?

HON. L. HANSON : I'm not

sure I can answer how many provinces specifically. In any case, I think

it's been fairly clear in some of the actions that have happened in the

past that there has been a lack of clarity as to whose jurisdiction

those employers who are regulated by the federal government come under.

In the past, determining which court or tribunal had jurisdiction over

picketing has often been a complex and difficult issue.

What

we are simply saying here is that when there is a labour disagreement,

I guess, if you will — and it could happen with either management

or labour —

and it relates to an employer who is governed federally, then he must

seek his action, or at least his answer, either from the Canadian

labour board or the courts. It's not a question of any of those

individuals, or at least of those circumstances, not having access to a

judicial body of some kind to make decisions on it; it's a question of

clarifying where they should go for that decision.

MR. CLARK :

Can the minister name one province where federally regulated employees

are specifically excluded from coverage under its labour code?

HON. L. HANSON :

No, I can't name another province. To the best of my knowledge I don't

know another one that does have it. That doesn't mean that it isn't a

good jurisdiction for British Columbia.

But by that same

token, I want to reiterate that no one in the labour relations field,

be it federally regulated or provincially regulated, is having his

right to a hearing before a judicial body removed.

MR. CLARK :

Can the minister confirm that one effect of this amendment is to ensure

that no federally regulated employer can now be declared an ally of a

provincial employer who's on strike or locked out?

HON. L. HANSON :

I think that the opposition member has stated a fact. They cannot be

considered an ally, but certainly it was not part of the motivation

within the bill.

MR. CLARK : The minister says it's

not part of the motivation for the bill. It seems to me the only

motivation for the bill, in many respects. I think that it is unduly

disruptive for labour relations. I'll just give you an example. If the

provincial government Centrex staff go on strike, then it seems to me

that they could call on B.C. Tel to keep the equipment going for them,

because B.C. Tel is a federally regulated operation. So there'd be no

protection in terms of provincially regulated bodies that are on strike

from that work not being done by federally regulated operations. Can

the minister confirm that that is, in fact, the major implication of

this legislation?

HON. L. HANSON : First of all, it's

not a denial of right but a clarification of jurisdiction. That's the

whole motivation behind it. But in the circumstance that the member

opposite was talking about, I would suspect that the B.C. Tel, or its

employees' union, would seek an injunction from a court to prevent that

from happening. You suggested who? What was the other?

AN HON. MEMBER : Centrex.

HON. L. HANSON :

Centrex? Well then, I would suggest that Centrex or its organization

representing its employees would immediately seek an injunction from

the court.

MR. CLARK : So simply to declare an

employer an ally you have to go to court to get a ruling? Surely that's

an incredibly expensive and time-consuming delay. And if that's true,

then it's really counterproductive for industrial relations, as we've

seen with many cases of attempts to move more of these matters into the

courts.

One

simple question. The minister said in the

briefing documents that "someone asked for everything that was in this

bill." Can the minister indicate, given that that ally provision —

not being able to declare someone an ally — has tremendous

consequences in all kinds of fields in British Columbia, which

organizations asked for such an amendment?

HON. L. HANSON :

I don't think there has to be a request for any amendment; in

considering things, government must sometimes make up its mind as to

what is best. But let me tell you of a case which appeared to require

clarification. There was a request or an appeal, if you will, going to

the Labour Relations Board of British Columbia. It involved a federal

government-regulated organization, and the Labour Relations Board

refused jurisdiction. They went to court, and the courts refused them

jurisdiction. So all we're trying to do here is make sure that anyone

who has a dispute or needs clarification of something that is in

dispute knows where the resolution mechanism is.

MR. SIHOTA :

I'm having some difficulty following the minister's supposed motivation

for having put in this clause. The minister is saying that it's really

to clarify issues of jurisdiction, so that people know where to go in a

labour relations matter. This act, or its predecessor, clearly deals

with B.C. labour relations matters; and we have a federal Canadian

Labour Code that deals with federal matters. Under the British North

America Act we know which areas the federal government has

responsibility for and which areas the province has responsibility for.

I don't see where the need arises to clarify the jurisdiction. I wonder

if the minister could provide us with an example of what he means when

he says there's a need to know where you have to go. It seems to me

that we already know where we have to go: if you're a federally

regulated company, you go to the federal jurisdiction, and you're

covered by the federal Code; if you're a company that operates in the

provincial realm, you work under the provincial Labour Code. Could he

provide us with a concrete example of what he's thinking about when he

talks about a jurisdictional motivation behind this?

[3:00]

[ Page 1371 ]

HON. L. HANSON :

Mr. Chairman, currently there's a conflict in the law regarding Labour

Relations Board jurisdiction over employers subject to the Canada

Labour Code. Some Labour Relations Board decisions suggest that where a

federally regulated employer — for example, the CPR or CNR —

is involved in a dispute, the employer must be subject to the B.C.

Labour Code. That federally regulated employer must apply to the Labour

Relations Board for an order to halt the picketing of its B. C.

operations by the trade union. However, there are other judicial

decisions which state otherwise, requiring the federally regulated

employer to go to court to obtain such an order. That confusion that

exists is all that we're trying to clear up. I'm sure that we can dig

into case law and find some cases to present to the member opposite.

MR. SIHOTA :

It seems to me then that the problem is really one of picketing, and

that's obviously the intention here. If you have a federally regulated

company being picketed and there's an ally activity going on, that

company has to decide where it should go. If there's a flaw in the

jurisprudence, in terms of the same board saying, "You should come to

me," and then, "No, you should go to the other board," I don't think

this is the way to correct it. The only example that the minister is

able to point out, and the only one that makes any sense, is with

respect to picketing and allies. Will the minister now confirm that the

sole motivation behind this

section is to deal with the matter of

allies and picketing?

HON. L. HANSON : First of all,

I won't confirm that, because that is not the motivation. In fact, with

picketing, we believe that the courts would apply

section 12 of the

Interpretation Act to find a contrary intention, which.... If the

member opposite is suggesting that this is a deliberate attempt to

avoid the application of

section 84, regarding information picketing,

it's our information that if that were taken to the courts, using

section 12 of the

Interpretation Act they would likely find a contrary

intention.

MR. GABELMANN : Mr. Chairman,

section 84

of the Code, which the minister referred to, deals with information

picketing, which is different from picketing. They are two different

kinds of picketing. What we're trying to establish here is that this

section has implications, intended or otherwise — and I can't

quite tell.... Earlier it sounded as if the minister didn't intend

these implications, and later, as he gets warmed up, it sounds as if he

did intend the implications. The clear implication is that if you are a

provincially regulated employer and your employees are on strike, you

as the employer enlist the assistance of a federally regulated company

to produce your goods or services for you.

Under current

law, you can go to the B. C. Labour Relations Board and have a

declaration of ally status imposed on that federally regulated

employer. With this change, you can no longer do that. What's the

effect of that? To lengthen the strike in place in the first-named

employer. Why would the minister want to bring in changes that would

lengthen a dispute?

HON. L. HANSON : First of all, we understand the concern that the member

opposite is expressing, but by the same token, all we're trying to do is

clarify where they should go for their remedy. If in fact a B. C. company was

obtaining goods from a federally regulated company, we're simply saying

that they would go to the courts or to the Canada Labour Relations Board to

get their remedy to stop that action which is harmful to their intent.

The

member is saying that that is a delaying tactic. Well, I suspect that

.... I don't know the court system that well — whether it's a

delaying tactic or not —

but we're certainly providing a judicial body for those people who feel

they've been harmfully dealt with to get a remedy. All we're attempting

to do is clarify that.

Another thing is, I guess there's

some question then, if we did change that.... Would the federally

regulated body be subject to the B.C. Labour Relations Board's ruling?

MR. GABELMANN :

Well, Mr. Speaker, I'd like to go back to the beginning of this

discussion. Dealing with this issue that the members for Esquimalt-Port

Renfrew (Mr. Sihota), Vancouver East and I are pursuing at the moment,

the minister said, as I remember, that this implication wasn't the

reason this language was brought in. If I understood him, the reason

was that people didn't know whether they were supposed to go to the

LRB, to the Canada Labour Relations Board or to the courts for redress.

I can't believe that we would bring in a

section to a bill like this

simply to help lawyers make up their minds which board or court they

are to address their grievance to. Is that what the minister is

suggesting — that people don't know where to go?

HON. L. HANSON :

Mr. Chairman, I'm not suggesting that people don't know where to go.

The member is effectively putting words in my mouth, if you will. But

by the same token, all it is is a jurisdictional clause. We're simply

saying that if you have a difficulty with a federally regulated

organization, go to this body and get your recourse. We're not stopping

anyone from having the ability to have their decisions made. The member

raised the question that it takes longer there; maybe it does, I don't

know. But there has been confusion in the past with where someone goes

for a remedy when they have a difficulty. There are cases that we can

present to the members opposite, although we don't have them with us,

that.... All this is saying is that we're clarifying that if it's a

provincially regulated body, their court is the Industrial Relations

Council; if it's a federally regulated body, it's the courts or the

labour board of Canada.

MR. GABELMANN : Mr. Chairman,

that's been the case for decades. Everybody knows it. If you have a

labour dispute at B.C. Tel, you know that you go to the Canada Labour

Relations Board; if you have a dispute with Mac-Blo in the woods

industry, you go to the B. C. Labour Relations Board — everybody

knows that. What we're talking about is if the dispute transcends the

jurisdictions, and a provincially regulated employer takes advantage of

the fact that he can get a federally regulated employer to do his

business without having that federally regulated employer declared an

ally and therefore subject to picketing.

Is the minister

suggesting that if a provincially regulated company is on strike and

uses as an ally a federally regulated company, the union can make an

application to the Canada Labour Relations Board for a declaration that

that federally regulated employer is an ally, and that that ally status

will stand up in respect of B.C. labour law?

HON. L. HANSON : Mr. Chairman, the Hon. member is building a very hypothetical case. I am certainly not one to

[ Page 1372 ]

give out legal advice, even if I knew what legal advice to give.

are simply clarifying jurisdiction, and quite often — I think the

member is quite right — it is cross-jurisdiction that causes the

confusion, when it is very clear there is no difficulty in finding that

out.

think that in most cases it is recognized. But there are cases we have

heard and cases we can present that that is a question of argument. All

we are simply saying is that federally that's where you go;

provincially this is where you go.

MR. SIHOTA : As a

further question to the minister, what is the minister proposing would

happen in a situation wherein, to embrace what I understand now to be

the minister's argument, there is a provincial dispute and a federal

ally, and the provincial company then goes to the federal board trying

to seek a remedy? The federal board turns around and says: "Hey, look,

this is a provincial dispute. We don't have any jurisdiction."

the minister suggesting that in those instances the matter should go

back to the provincial board? Or should it go to the courts, or should

it be left where it is, because it seems to me that you are going to

have that problem immediately, because a federal board will just simply

say it is a provincial dispute.

HON. L. HANSON : Mr.

Chairman, I think the hon. member has actually made the case for us.

What we are saying is that the remedy to that individual would be to

the court who has overriding jurisdiction, or at least crossing

provincial boundary jurisdictions.

MR. SIHOTA : I

can't believe what I am hearing. I mean, the minister is now saying

that if the province can't decide and the federal board can't decide, I

guess the courts will decide.

Does that then not result in

lengthening of the dispute? Yes or no, given the fact that the courts,

as we all know, are backlogged?

HON. L. HANSON : Mr.

Chairman, with due respect to the member opposite, who I understand is

a lawyer, we don't know that the courts are that slow.

But

by the same token, when there is a question of jurisdiction, we have

simply clarified here that the provincial jurisdiction lies with the

provincial bodies, and that the federal jurisdiction lies with the

others. If there is an interprovincial jurisdiction question that the

federal board does not feel is under its jurisdiction, the recourse is

then to the courts.

MR. CLARK : It is clear that the

minister does not understand the consequences of this amendment. I just

want to back up again. I am going to try not to be pejorative, but if

the purpose of it is to clarify the distinctions between the Canada

Labour Code and the B.C. Labour Code, no other jurisdiction in Canada

has such a distinction. Everybody knows at B.C. Tel that they go to the

federal labour board, and that the IWA goes to the provincial labour

board. Those are common. If that is the only intent, to clarify the

jurisdictions of the two boards, then this has unintended consequences

which are serious and could be very disruptive. The minister is shaking

his head.

Clearly it will. If it reduces the power of a

provincially regulated trade union to declare as an ally a federally

regulated company, which the minister admits is the unintended impact

of this change, then it has serious ramifications for industrial

harmony and peace in this province. I gave you an example of Centrex,

which is a provincially regulated organization that could then use B.

C. Tel. management to do their work, and it would have no impact. The

provincially regulated union would have no recourse.

Could

the minister tell us, if the courts are the redress, under what statute

would the workers in the Centrex union, for example, apply to the

courts to get an injunction to stop management employees at B.C. Tel

from breaking their strike? Could the minister give us some example of

where, if this change takes place, the provincially regulated union is

now not allowed to declare as an ally a federally regulated company

which has their employees — if that's the impact of this

legislation...? Under what statute could the union go to court to get

an injunction to stop that work from being performed?

[3:15]

HON. L. HANSON :

Mr. Chairman, I'm not sure that it's the business of the Industrial

Relations Act to define what the courts can deal with. That's where he

would go for recourse.

MR. SIHOTA : Let's just take

that thought a bit further, then, Mr. Chairman. The minister is saying

that a provincially regulated company that is involved in a dispute

that cuts across borders and deals with a B.C. resident company that is

federally regulated.... If you have a dispute, first of all — if the minister is to be accepted in this argument —

you can't come to the British Columbia code; you have to go to the

federal, and the federal says that in their view they don't have

jurisdiction. Then you go to the court and the court makes a

determination, and if the court makes a determination that really this

is a matter of provincial jurisdiction, has that not frustrated, then,

the very thing that the minister is trying to do?

HON. L. HANSON :

Well, we in our deliberations with the labour legislation and this

particular section, in an attempt to clarify it, certainly don't see

the concern that the hon. member raises as being a very real one. We

think that it will be handled quite comfortably with the method that we

have suggested: the provincial jurisdiction for provincial bodies, the

federal jurisdiction for federal bodies, and the courts where the

federal body considers the jurisdiction should lie there. I assure the

members opposite that there's no ulterior motivation in

section 2.

MR. SIHOTA :

Well, could the minister then explain if, to quote the minister in his

opening statement on this legislation, the whole purpose was that the

intent of the legislation was to have a speedy resolution of labour

disputes in this province — how it is that the minister achieves

that by carving out a greater role for the courts and excluding a role

for the specialized body that we've created to deal with labour

relations matters? How does the minister think that this

section is

going to achieve that goal of speedier resolution of labour disputes?

HON. L. HANSON : I think that it certainly will very quickly advise the members who need recourse to some

[ Page 1373 ]

decision-making

body where they should go and go very quickly. That's the whole intent,

and the whole intent behind that is to get a decision quickly and get

the matter resolved and have everybody get on about their business.

MR. GABELMANN :

Mr. Chairman, I want to make two points. One is that I don't think the

minister understood what I was saying earlier about how in fact a

section such as this could lengthen a dispute.

The

minister

in response to me talked about lengthening the process of resolution,

but he didn't deal with lengthening the dispute. I think I need to make

that point again. If you have an ally doing the work of the struck

company, so that the employer is making money, there is no incentive to

bargain, no need to come to a resolution. One of the ways you have the

ally making money is you get them out of the jurisdiction; you use

somebody in a federal jurisdiction. You can't do this in all industries

or in all cases, but you can in some. And in law you can't read what

the intent was — or what the motivation was, to use the minister's

words —

you've got to read the words. The words will allow for some

provincially regulated companies to use federally regulated companies

as allies — some. There doesn't appear to be a mechanism for

declaring that federally regulated company as an ally under this Code.

The courts aren't going to take that jurisdiction. The federal board

might, but I don't think that the provincial board would necessarily

accept that declaration. In order to protect, to give the right to

picket not only at the source of production of the goods or services

but perhaps at the distribution point — and this brings back the

retail-wholesale case.... They won't be able to under this law.

you're saying that you're giving another loophole for employers to go

on and make money while the workers are starving. What does that do? It

lengthens the dispute and poisons labour relations. One of the

philosophies underlying the Labour Relations Board, through the Labour

Code, was that the board would have a lot of discretion to operate

within and without the law, formally and informally, in an effort to

resolve these kinds of issues. The discretion that the board has, in a

case like this, is now taken away. The board has no discretion any

longer to declare any federally regulated employer an ally, or to make

any other declaration of any kind about that particular employer. That

kind of discretion is required.

The minister suggests that

this

section is needed only to tell people which court to go to, or

which board to go to. What we're suggesting is that people know which

board to go to. We're also suggesting that the discretion of the boards

or the courts.... The Canada board, the B. C. board and the courts all

have discretion as to how to deal with a particular situation without

being constrained by the law. That flexibility, that discretion, can

help to resolve a dispute, because other mechanisms can be used to

bring the parties together or in one way or another exert pressure on

somebody who isn't having enough pressure exerted on him. But when you

put in a clause like this one, 2(f), you preclude that option. You make

that option no longer available to the new Industrial Relations

Council, so they can't undertake to get the parties on an even footing

and therefore get the dispute over with quickly.

It's one

of countless sections in this bill that will have the opposite impact

to what's intended. It will prolong and inflame labour relations, not

reduce the inflammation. When you have an inflamed ligament, you put a

cold compress on it, not this hot pad. What we're doing is

inflaming — making hot — all of these issues, when we should

cool them down. You make them hot when you prevent agencies of

mediation or reconciliation, or agencies empowered to bring parties

together, from doing certain things; you make it more difficult to

solve. That's why historically, over the last two or three decades, we

have moved family law out of the rigidity of the courts and into a less

formal kind of court setting; it's why we've moved labour law out of

the rigidity of the courts as well. What the minister is suggesting is

that we should go back to those rigid approaches.

I don't

think we need to take a lot more time on this section. In the scheme of

things in this bill it's a minor element, but it's significant as yet

another illustration of either a misunderstanding of labour relations

or a deliberate attempt to inflame the situation and to give all of the

ammunition to the employers. That's what this kind of regulation does.

MR. CLARK :

Mr. Chairman, I won't take too much longer, but I have a case here. The

minister referred to cases. Just so the minister doesn't think that

we're being hypothetical in this matter, it's a very clear application

of this particular point. It's right on point.

It has to do with Canadian Pacific — a federally regulated company —

the IWA and MacMillan Bloedel, on September 23, 1986. Remember the IWA

dispute? Canadian Pacific was doing work previously done by the struck

employer. The issue before the board was whether or not a federal

undertaking can be declared an ally in a provincial labour dispute

where there is a lawful strike in progress and that federal undertaking

is doing struck work within the meaning of the ally definition of the

Code. The decision was based on the courts: they have adopted the

origin-of-dispute approach when dealing with interjurisdictional labour

disputes. Accordingly, the board has jurisdiction to hear this matter,

which concerns an application for an ally declaration and a federal

undertaking. The board has jurisdiction, in the context of a provincial

labour dispute, to declare any person, including a federal undertaking,

an ally to a provincially struck employer.

This decision of

a year ago will now be reversed if this very small change takes place.

Even accepting the motivation of the minister.... The minister says

it's not something that he's trying to slip in to thwart this, and I

accept that you simply want to define the jurisdiction. That's not the

consequence. The consequence of this amendment is to take this major

decision of the Labour Relations Board, which had an impact on

shortening the labour dispute because it declared Canadian Pacific an

ally to MacMillan Bloedel, and the IWA could picket it and therefore

extend economic pressure on the employer and shorten the dispute. That

is no longer the case under this Code.

If the minister is

sincere that the motivation for this clause was not to strike down this

decision under the old Labour Code, then he has to do something about

this

section of the bill, because it has consequences which he admits

he didn't foresee, or that are unintended. If that's the defence that

the minister wants to take, then the only option I can see is that he

stand this

section of the bill and come back with different wording

that tries to deal with his intent. You either stand it and really

clarify it, or admit to this House that it is the intention of the

government to no longer have this kind of

[ Page 1374 ]

decision allowed under the new legislation. It's one or the other, it seems to me, Mr. Minister.

HON. L. HANSON :

I just want to make one last statement to the Hon. member who just

spoke. I don't think he's making a case for the ally provision; I think

he's making a case as to who should make the decision. The decision is

still available through the courts, and that's what we've always said.

He's saying that the Labour Relations Board should make the decision.

The IWA would have the right to the courts to get that same decision.

Another

thing I'd point out is that the federally regulated ally may be a

federally regulated ally operating here in British Columbia; but if it

were an ally shipping out of the province, the right to picket and so

on would be much more difficult. Again, we're not taking away from

anyone the right to get those sorts of decisions. All we're doing is

making sure that the jurisdiction as to who has the decision is clear.

MR. MILLER :

Relating to the last point, the minister has said that satisfaction can

be found in the courts. First of all, we're not certain that that's

true; in fact, the intent of the amendment would be to deny that.

Secondly — and this is dealing more or less with the philosophy —

the original Labour Code was founded on the premise that labour dispute

matters are best kept out of the courts. I think that even the minister

would agree, given the continuing adjudication procedures, etc.,

throughout the new act, that it is preferable. Yet the minister seems

to be saying — and I wonder if he would give his opinion on preferability as to where these matters are resolved —

that it's preferable that they be resolved in court. Regardless of the

minister's lack of knowledge of lawyers and the law — and I doubt it's as limited as he's confessing to this House —

it seems to me that labour matters dealt with by the courts tend to get

frustrated, to get bound up in delays and to be dealt with by people

who have no particular familiarity with the parties or the issues at

stake. Perhaps the minister could comment on that point. If the result

of the amendment is to create that situation, where the courts rather

than labour bodies are dealing with issues, then surely we are heading

in the wrong direction. Perhaps the minister might like to....

[3:30]

MR. GABELMANN : I'd hoped we

could do this more quickly. The minister didn't respond to the Canadian

Pacific Ltd-lWA decision or board ruling that was made last September

23 and raised by the second member for Vancouver East (Mr. Clark). The

situation is that in this case the board dealt with an application by

the IWA to have Canadian Pacific, a federally regulated employer,

declared an ally in the dispute; and the board was able to do so. Is

the minister suggesting that that particular application will now no

longer be able to be sought at the Industrial Relations Council?

HON. L. HANSON :

Mr. Chairman, I think it's very clear in the bill that that's where the

case would go. We're not suggesting that they shouldn't have the

ability to present their case and get a decision. We're simply

clarifying where it's going to go — in that particular case, I would imagine, to the courts.

The other question that was raised by the other member who spoke earlier was:

are we suggesting that everything should go to the courts now, as opposed to

the Labour Relations Board? I suggest to you that the number of federally and

provincially regulated bodies that get into disputes is very small. Secondly,

what it does is free up the Labour Relations Board to deal with other things,

if you will. I'm not suggesting that a number of things are going to go

to the courts. You are assuming that there are going to be ally tests, if you

will, two or three times a month. I'm suggesting to you that it's a

very small issue, that it isn't an issue that gets raised very often and

that the jurisdiction within

section 2 is very clear — where, if there's

a dispute, they should go for their remedies.

MR. GABELMANN :

The minister says that it's very clear where the affected parties

should go for their remedy. What application should be made in the

Supreme Court to seek a declaration that a federally regulated company

be declared an ally?

HON. L. HANSON : I would suggest that the member opposite see a lawyer. I'm not sure what approach is made when you go before a court.

MR. SIHOTA :

Let this lawyer tell the minister that you can't do that. You can't go

to the court and ask for a declaration that one party is an ally to the

other. All you can do is go to the court and seek a declaration as to

who has jurisdiction, and then whoever has jurisdiction makes a

decision on the ally.

So the minister is quite wrong on

that point, and that's the legal answer to it. The courts do not have

jurisdiction on those types of labour matters with the presence of a

Labour Code. But if the cases are so minimal, and if there isn't that

much confusion, will the minister then explain why this change is there?

HON. L. HANSON :

Again, Mr. Chairman, for purposes of clarification. I would assume that

rather than getting a declaration of an ally, they would probably seek

an injunction through the court to stop them from performing the

service.

MR. SIHOTA : I'm not too sure that a court

would grant that injunction, given that you've got a Labour Code that

is able to provide that remedy in any event. We can argue about whether

a court would or not. I'm sure the minister can cite examples, much as

I can, of instances where there have been injunctive orders made which

are tantamount to a picketing order. I'll grant you that. But the point

is, there is also enough jurisprudence out there that says no, this is

a matter that has been deemed by this Legislature to be a matter of the

Labour Code, given privative clauses; that this is something the labour

board should be dealing with. Hence, all you do is compound your

problem.

I don't mean this in a negative way, but the

point is that if the minister wants to provide that kind of a

rhetorical answer to the question that I raised, it clouds the field a

lot more than it clarifies it. If the intent of this

section is to

crystallize things, you've achieved the exact opposite. Hence the need

to introduce the forty-ninth or the forty-sixth amendment, or whatever

it is, to make that clause go, or to stand the clause.

Section 2 approved.

section 3.

[ Page 1375 ]

MR. GABELMANN :

Mr. Chairman, looking at this section, it appears that there couldn't

be much to debate, and that's true. Having said that, however, these

amendments do open up three sections of the Code that are not otherwise

opened up, and I want to pursue that briefly. I see the Deputy Speaker

smiling. I'm not being too coy, I hope.

I do want to pursue

just very quickly a couple of issues here, because those sections are

now opened up as a result of this.

Section 90 of the Code is the

section which allowed the board...will allow the council to issue

declaratory opinions. What is the relationship of this clause now to a

later change, the new proposed 4.1 on secondary boycotts? I wonder if

you really need them both.

HON. L. HANSON : I'm not sure. Could I ask the hon. member to clarify that?

MR. GABELMANN :

Section 90 of the Code, declaratory opinion by the council-to-be; new

proposed 4.1 of the Code dealing with secondary boycotts — same

issues involved. I just wonder whether any consideration or any thought

is given to the relationship of those two sections now: the new 4.1 in

respect of its proposed law on secondary boycotts and the declaratory

opinions that come from that. I think the answer is that the minister

hasn't given it any thought, and that is really what I'm trying to find

out.

HON. L. HANSON : I think the answer to that would be no. We can't see that that is a concern.

MR. CHAIRMAN :

Just before we continue, hon. members, just so that the Chair can be

fully aware of what is transpiring in dealing with this particular

section, I'm sure the member for North Island (Mr. Gabelmann), when he

started off, understands that dealing with this

section does not give

us the right to debate the particular sections in mind. Really, what

we're debating here is the substitution of "board" and "board's" for

"council" and "council's." That's the way I read it.

MR. GABELMANN :

I wanted just to have an opportunity to ask the question, because it

does open those particular sections of the Code. These are in fact

amendments to a whole series of sections of the Code and therefore,

technically, open to debate — granted, however, open to debate

about the powers of the council or the board, and I recognize that.

Can

I just ask one more question? I'm going to abandon most of the other

questions and ask one other, because I'm curious and this is a good

opportunity to ask. Given the fact that this opens

section 133 of the

Code.... Mr. Chairman, I say this again to the minister; he was

listening to somebody else: given that it opens

section 133 of the

Code, which is in the ombudsman section, is this a foreshadowing of the

fact that rather than repealing the ombudsman

section of the Code,

these changes are being made to it...? Is that a foretelling of

proclamation of that particular section?

HON. L. HANSON : No, it isn't. I don't think we're trying to signal that in any way.

MR. CHAIRMAN : On

section 3, the second member for Vancouver East — bearing in mind what we have just discussed a moment ago.

MR. CLARK : I simply want to ask leave to make an introduction.

Leave granted.

MR. CLARK :

We have joining us today in the gallery a friend of mine and other

members on this side of the House, a constituent of Point Grey a

dedicated professional social worker currently on leave from her

profession: Susan Irwin. I'd ask the House to make her welcome.

Sections 3 and 4 approved.

section 5.

HON. L. HANSON : I move the amendment to

section 5(3) standing in my name on the order paper. [See appendix.]

On the amendment.

MR. GABELMANN :

Mr. Chairman, the amendment is to insert the words "undue influence" in

front of "intimidation, coercion and threats," if my memory is correct.

Yes. Can I ask the minister what he perceives "undue influence" to mean?

HON. L. HANSON :

Well, I think, Mr. Chairman, that the other three words that were in

the original wording, "intimidation, coercion or threats," are quite

heavy. The change responds to the concern raised that some employers

might abuse the freedom-of-expression provision in trying to pressure

employees. The "undue influence" was added in there to give the

Industrial Relations Council the ability to make a discretionary

decision when they hear the facts of the case, and it also affords some

protection to the employees, while removing some obstacles to full,

open communication between the employers and the employees.

MR. GABELMANN :

Mr. Chairman, would it be undue influence for an employer to say to his

employees: "I sure hope that this bid for a union doesn't go through,

because if it does, you know, it's probably going to mean that I'm not

going to be able to make a profit, and my business will go under"? Is

that undue influence?

HON. L. HANSON : Well, first of

all, Mr. Chairman, I won't deal with the specific that the hon. member

mentioned. Certainly the jurisprudence of the board will eventually

determine the answer to the question that he raised. But I'd like to

point out to the members opposite that the freedom-of-expression and

anti-discrimination amendment or suggestion here is that we want and

feel that it's necessary for people who are thinking of organizing,

thinking of deorganizing or decertifying, or dealing with the issues

regarding a labour dispute, whether it be strike or lockout or

negotiations in train, to have the benefit, within reason, of all the

information that is available so that they can in fact make a good,

educated, democratic decision. But the concern that was expressed was

that by putting in the original wording it was making it far too open,

and that there may be cases of discrimination that in fact were

coercion or intimidation. So we're giving the board some discretionary

right to listen to the case if the case comes up and make their

decision based on that. I think the most simple one is if the employer

makes the statement — and I

[ Page 1376 ]

can't prejudge him — that:

"If you join the union or organize the union, you're fired." I think

that's a very clear case and would be found to be wrong, and the

Industrial Relations Council would deal with it.

By the

way, the language adopted is very similar to that which exists in a

number of other Canadian jurisdictions. For example, it's in

Saskatchewan, Manitoba, Ontario, New Brunswick, Prince Edward Island;

and Alberta has it in their Bill of Rights.

[3:45]

MR. GABELMANN :

The minister wants to argue in one

section of the bill that it doesn't

matter what other provinces have because we have to make up our own

minds what to do here; and then he comes to this

section and he says:

"Well they have it in XYZ and M province." Not a major point but think

consistency might be useful.

The

minister suggested — we're dealing with the amendment — that

it would be undue influence if the employer were to say something like:

"You organize a union and you're fired."

Interjection.

MR. GABELMANN :

Well, I would have assumed that was intimidation, or a threat actually,

rather than undue influence; but since we're discussing the amendment

and the question is about what undue influence means, I wonder if the

minister wants to recast that answer.

HON. L. HANSON :

Mr. Chairman, I'm not going to stand here with a dictionary and define

what undue influence is, but I think that by inserting that amendment

into Bill 19 we're simply saying that the board — the new council —

has the right to make a decision on what they consider to be undue

influence. And that jurisprudence will be left to them in the specifics

of the case.

MR. LOVICK : To the minister, through

you, Mr. Chairman. My colleague gave what I think was a very reasonable

and fair and non-inflammatory kind of hypothesis, suggesting: would

this be construed as undue influence? Would you, the minister, please

respond to that hypothesis? Would you give us your opinion if that is

indeed constituting undue influence?

May I expand that by

saying that you gave us an example, it seems to me, with all due

deference, Mr. Minister, that was rather extreme. My colleague I think

presented what I would call a very reasonable and understandable

hypothesis, and yet you have chosen not to deal with that hypothesis.

Would you now?

HON. L. HANSON : Mr. Chairman, no,

because you can take degrees of coercion and threats and so on, and all

I was attempting to say is that it is very clear to me that a threat to

fire someone if they get involved in union activity is coercion or

intimidation or unfairness or whatever. When you get to the finer

points of it, that's why we have the labour relations adjudication

division there, to determine those finer points. But I'm not sure I

understand. Are the members opposite suggesting that we should remove

"undue influence?" Is that your concern?

MR. LOVICK :

I don't think for a moment that's the case. What the members opposite

are doing, at least certainly what this member is doing, is trying to

get some clarification of precisely what that language means. Clearly

that amendment has been put in to deal with what are perceived to be

particular kinds of problems. I don't doubt for a moment the good

intentions of the minister. However, I'm becoming a little apprehensive

when the minister is not prepared to explain what he and his officials

understand that phrase to mean. That's all we're saying, and again I

would invite the minister to respond. Would you provide us with a

paradigm case of undue influence? Give us something.

HON. L. HANSON :

It's sort of interesting. The adding of the words "undue influence" was

primarily at the request of a number of very prominent labour

organizations. Their legal advice felt that the

interpretation of undue

influence was reasonable protection for the ability of the employer to

communicate with his employees, but yet to be held within reasonable

bounds. I guess the explanation of undue influence will be determined

by the board — what they see to be reasonable bounds of that communication process that goes on.

MR. SIHOTA :

The employer, during the course of a certification process, comes up to

a set of employees and says: "I don't know if I'm going to be able to

afford those wage increases you are going to be asking for." Now is

that coercion; is that intimidation; is that undue influence? Is that,

indeed, a violation of the larger issue here, which is the ability to

express his or her views as to the certification process? I'm not going

to ask the minister whether or not he thinks the example I just cited

is an example of undue influence. I do; I would suspect that the

minister's officials will. If not, indeed it's coercion.

You

know, I think there is a larger issue here in that by putting the words

"undue influence" forward as an amendment — and that's what I'm

talking to, the amendment — there

is a recognition on the part of the government that employees ought to

be able to engage in the certification process without overt

interference from the employer. But recognizing that, the

section also

gives the employer the right to say things. Does the minister not agree

that instead of putting in interpretive words like "undue influence" or

"coercion" or "intimidation" — whatever you want to use — a

far superior route would be not to put any of that in, not to put that

section in, and to put in a blanket clause against the expression of

those types of opinions? Would the minister not agree that all we're

doing by putting in these types of words is countenancing something

that you're trying to prevent?

HON. L. HANSON : Well,

no, I wouldn't, quite simply put. The hypothetical case that the member

opposite gave.... I think he, as a legal person, would find great

difficulty in making a decision as to whether that was undue influence

or not, unless he considered all of the other facts that were involved

in it. He is certainly a legal mind; I think he would recognize that.

It appears to me that that statement would have been tempered by

whether, in fact, the company was making millions of dollars, or was

losing millions of dollars, or whatever all of the circumstance are.

That's

where we have given the undue influence discretionary decision, why we

have put that in, so that the board does have some flexibility to

consider those things.

[ Page 1377 ]

MR. SIHOTA :

It's kind of an overlap, the thinking of the minister and me, and the

overlap is on this area. The minister is quite correct in saying that

it would depend on a galaxy of factors as to whether or not there was

indeed undue influence. Surely the larger point is: why are we getting

into this, when there is a way to prevent all sorts of litigation or

jurisprudence on what is or is not undue influence or coercion or

intimidation?

It seems to me that we ought to sanitize the

system so that the employer does not have the ability to say anything.

I realize that I'm sort of walking on the parameters of the debate that

deals with the

section as opposed to the amendment. I certainly see the

Chair nodding, but I'm making the point within the context of the

amendment only to point out that it's not the amendment that's really

the problem here. It's the subsection that's the problem.

MR. LOVICK :

I want to come back to the phrase "undue influence" again, and this

time I'm going to try it from the other side, because the minister

seemed reluctant to deal with hypotheses from one side; perhaps he

might from the other. Would the minister agree that this scenario would

constitute undue influence? Let us say we're dealing with a bunch of

people who are trying to organize a union in a particular workplace,

and one individual says to other workers on the shop floor, or whatever

it might be: "You really should join this union because we can almost

guarantee that it's going to improve your wages and working conditions,

based on the history of X, Y and Q." Would that constitute undue

influence? In other words, could an appeal, effectively, to somebody's

self-preservation, or to improve their standard of living and so forth,

be seen as somehow undue influence?

HON. L. HANSON :

I would suppose it could. But I'm not sitting here making that

decision. I think, as your colleague suggested, that those kinds of

decisions are based on a number of facts, not just a very simple

statement. That's why we have put the consideration of undue influence

in there. That's broad enough to give the adjudication division the

ability to get all of those facts gathered together and to make a

reasonable decision.

MR. LOVICK : I think that is

precisely the problem, however, that a number of us have now recognized

and are addressing. We continue to hear phrases like "broad" and "broad

discretion" and "judgment." I'm sorry, I don't mean to put words into

somebody's mouth, but that's certainly the suggestion we're getting.

The question, I think, is whether in fact we are giving too much

discretionary power to this board, to the point that the result of this

amendment is really going to be to open things up to such a degree that

theoretically anything can constitute undue influence, given a certain

set of circumstances. I think that's the kind of concern we're

beginning to perceive here.

The other thing is.... Let me see if I can phrase this in terms of a specific question —

and I'm sure the minister shares our concern and would like to allay

our fears, as well as anybody else's. What constitutes evidence in

terms of what influence is and whether that influence is undue or not?

I'm struggling at the moment. It seems to me that we have a wide-open

field here, and I'm wondering how the devil any board is ever going to

adjudicate.

HON. L. HANSON : The board establishes

its own regulations as to what constitutes evidence. But I'm sure that

there are many precedents and examples that they would use, being

learned individuals in their fields.

MR. LOVICK :

Fair enough. Just pursuing the same line, what then is influence? What

is a good argument? How much can you do in the name of trying to

persuade somebody either to join or not join a union? Where do we draw

the line and say that that's an argument that's allowed to convince

your friends that they should be part of a certified bargaining

unit — or conversely, that they should not be involved in a trade union?

HON. L. HANSON :

Again, Mr. Chairman, the member opposite is asking me to deal with very

specific sorts of circumstances. What constitutes undue influence will

be decided by the board as they develop the various cases and hear all

of the cases that are presented to them. They may even come out with a

policy statement as to what in their opinion undue influence is. I

think that the important point we're missing here is that, first of

all, the addition of "undue influence" was felt by practitioners from

the labour side to be a reasonable assurance, because the other

wording, "intimidation, coercion and threats," was too specific and too

tight, that the board would have the flexibility and the ability to

make a decision as to what they considered undue influence.

[4:00]

[Mrs. Gran in the chair.]

my very practical mind it seems that if someone says, "I can’t afford

to give you a $1-an-hour increase," when in fact the company is

making millions of dollars, that's intimidation, coercion or

threatening. But if in fact the company is not, and is suffering very

badly, the employer may have some justification for making that

statement, and by producing the records that show what his position is.

It's

quite a complicated sort of

interpretation of undue influence, but the

whole thing behind this is that we're trying to make sure that the

employees have all of the information correctly and fairly given to

them, so that they can make a decision based on all of the facts. But

we also don't want anyone to be giving them facts that are not in

effect the truth.

MR. LOVICK : I had thought I had

reached the end of that line of questioning, Madam Chairman, but now

something else I hear makes me wonder. Are we suggesting, then, that

the board, or the council, or whatever it's called in this new

incarnation, will be given the right to open the books of the companies

that are being — what? Approached with some kind of union drive,

some kind of organization drive? Does that become part of the mandate,

then, of the board, to examine whether in fact freedom of speech was

used within the limitations as suggested here; that what we're going to

do is say: well yes, you as a potential employer, or as an employer,

cannot say that you can't afford to pay that much because your books

show differently? Are we saying that that's a power we're now giving to

this board?

HON. L. HANSON : That's not what we're

saying. I think, in fairness, that if someone is accused of using undue

influence, which may be in the form of some statement that they can't

afford to do something, and there is an accusation that that is a

statement of undue influence — do you understand that? — then it is most likely that the individual, to

[ Page 1378 ]

prove

that it wasn't undue influence, is going to present the facts to say

what he said are the facts. That's not saying that he's got to open up

his books. He may choose to say: "Hey, I'm not going to open up my

books for anybody." They may choose to say that that was undue

influence if he doesn't.

MR. LOVICK : Once more, with

feeling. Has there ever in recorded history been an instance when any

company that is threatened with union organization has said: "Sure we

can afford to pay whatever you want"? Even if they are showing a

healthy balance sheet, what they're going to say is: "Look, we need

this money for research and development. We need it for new product

development. We want to have something to pay a higher dividend to our

shareholders." There is always going to be another claim on those

dollars. So surely the suggestion about the balance sheet being the

determinant in terms of undue influence is a pretty bogus and suspect

argument, Mr. Minister, with all due deference.

MR. MILLER :

Just as a prelude, the amendment is to a new

section of

part 1. Of

course, the first two sections — the heading, if you like, of

part 1

refers to the rights of employees and employers and unfair labour

practices. I would assume that we shouldn't get too narrow in terms of

what situations might arise where the words "undue influence" could be

applied. For example, I think the common kind of example that's been

used so far in debate is where an employer uses undue influence to its

employees, either singly or collectively, and that in itself may be a

problem in terms of the addition of.... Well, we'll get into more

extensive debate presumably.

My concern is the application

of that in the setting where there may be, for example, an application

to decertify, which would lead to some pretty hot and heavy debate, say

on the shop floor or on the plant floor, within the plant among

employees. My own experience on the shop floor tells me that you can

get some pretty hot and heavy discussions going. Certainly someone who

is not familiar with that milieu might construe that one person was

using undue influence, or indeed the other descriptions contained in

clause 3.

I'm wondering if the minister would acknowledge,

first of all, that I'm correct in applying that different scenario; and

secondly, whether or not he feels there may be some difficulty in that

kind of situation, in terms of the board trying to get into that kind

of situation. I think the other may be a little bit easier given,

hopefully, a board with some experience in labour relations matters,

which would easily, or fairly easily, be able to distinguish between

genuine use of undue influence in terms of employer-employee

relationships, but may have a great deal of difficulty in terms of what

happens on the shop floor. Sometimes it can get pretty hot, I can tell

you. Perhaps the minister might want to....

HON. L. HANSON :

Well, Madam Chairman, I suppose if the case ever got to the Industrial

Relations Council where one member said to the other member, "If you

vote for decertification, I'll break both your legs," that would

certainly be considered to be an unfair.... But I would think that

there would also be access to civil courts for that sort of thing if

such a case were. What we're trying to do is provide the ability of the

individual to have all of the information that's available to him. I'm

not sure what the question was. Would I consider that undue influence?

I certainly would.

MR. MILLER : Well, there's an

established phrase in labour relations matters and it's called

industrial language. Maybe that will give you some idea of what I'm

talking about; you know, the difficulty in interpreting "undue

influence" in that kind of setting. And increasingly, with our economic

difficulties over the last several years, unions have really gone

through some pretty severe strains and there have been quite a few

internal struggles, not for power necessarily in unions, but....

Just as an example, the question of the application of seniority where

the workforce is going to be cut back considerably, the question of

who's going to remain — who gets the job — and the employer's

application of whatever seniority clauses.... And they have been

tested and found wanting, really, in many instances. We've seen the

case of a lot of older workers tossed out the door while younger

workers have remained.

For the first time in my memory we

suddenly were faced with a lot of applications under

section 7, in

which an employee really went to the board and said: "Look, the union

is not representing me, my case." My personal feeling is that a lot of

this came out of the turmoil of layoffs and all the rest of it and

people being very defensive about their jobs, and I'm sure if the

minister would want to check.... I don't know if that's something

that happened generally; I'm sure it's not strange just to my

experience that there was a general increase in those

section 7

applications.

But if the minister could understand that

setting, would the temptation be for employees to misuse or take

advantage of this

section in terms of running to the board and saying:

"Look, I think I should have had that job, and there's a fight about

it, and so-and-so has threatened me physically"? Or some similar

incident might have happened. Just finally, if the minister wants to

comment on that, he referred earlier, when we were talking about

section 2, to not wanting the board to be tied up in those kinds of

situations. So is there a danger there? Perhaps I'm straying too much

into

section 5, but if the minister could respond to that: is there a

danger that the board could be dealing with essentially frivolous

applications?

HON. L. HANSON : No, I don't think

there is a danger of the board dealing with frivolous applications. I

think that the hon. member is well aware of what happens in the

workplace, and usually those things are settled right there in the

workplace if they're between two individuals. There is lots of recourse

to common law for people who are abusing each other. I don't think you

can read into this

section of the act a concern for abuse; I really

don't think it will ever even be considered. If in the scenario that

you described he felt he was unfairly dealt with, I would think that

there would be much more likelihood of claims under the

section 7 side

of it than this particular one — as it relates to two employees.

MR. MILLER : Just to follow up, I think I am really sticking to the amendment because of the words "undue influence."

Going back to

section 7, in every case that I am talking about,

ultimately the board found that there was no violation; in fact that

the trade union had acted in the best interests of the employee in

terms of pursuing their grievance to the level that they thought was as

far as they could take it.

And yet, in one instance that I

recall, in the initial grievance procedure and on into arbitration

procedure, the union expended a considerable amount of money, a

considerable

[ Page 1379 ]

sum.

I won't quote it because I can't recall it accurately, but it was in

the many thousands of dollars. Despite that, two individuals chose to

file a

section 7 and pursue it. I must confess that when I first heard

about it, I laughed, and I said: "There's not a hope in the world.

Somebody will come down from Terrace and investigate the matter and

make a report to the board that clearly

section 7 was frivolous."

That

didn't happen. That went on, and we will get into talking about how

much lawyers are going to profit by this bill. It is a perfect example,

because that went on and on. More money was expended. Unfortunately the

people who launched

section 7 should have been advised right at the

outset not to proceed because they were going to lose, but they weren't.

very minor matter the way it started, and the minister might say the

same thing doesn't and couldn't apply to this clause, but I think there

is a grave danger that it could apply to this clause. Perhaps it takes

a bit of experience, particularly in industry where there has been a

great deal of turmoil and a great deal of layoffs and a great deal of

defensive feeling among working people, because they are really

fighting for their jobs. I disagree with that. Maybe that is not a

question, but it's for your edification at any rate.

[4:15]

Amendment approved.

section 5 as amended.

MS. A. HAGEN :

It always seems to me useful when we begin to discuss and question a

section — now that we have dealt with the amendment on this

section —

to put it in the context of the original bill into which it is going to

fit. So I am going to, because it is very brief, just read the two

clauses of

section 2 of the existing Labour Code, which this particular

section 5 will be amending and to which it will be adding clauses (3),

(4) and (5). I want to do that because I think it spells out that what

we are dealing with here are the rights of the employer and the

employee, and the two existing clauses are very clear, unencumbered and

I think make a very definite statement about what this clause intends

to permit under labour relations legislation.

The first

clause says that every employee is free to be a member of a trade union

and to participate in its lawful activities. The second clause says:

"Every employer is free to be a member of an employer's organization

and to participate in its lawful activities." The amendment that I

particularly want to speak to is the addition of clause (3), which

says: "Nothing in this act deprives a person of his freedom to express

his views provided he does not use undue influence, intimidation,

coercion or threats."

We are dealing now, clearly from our

discussion, with a matter that I anticipate will have a great deal to

do with the rights of employers around issues of certification and

decertification. The first thing I would like to state as a premise

that I have, which is very much expressed in the first two clauses that

I just read around the rights of the employee and the rights of the

employer, is that it is a fundamental right of an employee to decide

the terms by which he will undertake his or her industrial relations

with an employer.

If that means that a group of workers

decide that they wish to certify and to form a union, that is a most

fundamental right, and a right that I think should not be compromised.

In that regard, an employer too has certain rights, and he has the

right to run his business. In those two activities, these two parties

are going to have the need to consult and work with one another.

seems to me that already in the existing Code there are some fairly

clear

definitions about what should or should not be good labour

practice in the development of those working relationships. If I may,

because I think it is relevant to this discussion, I just note that the

next clause deals with unfair labour practices, and it defines very

clearly some of the things which an employer may or may not do.

I would anticipate. although I am not nearly so experienced in the

practice of labour relations as some of my colleagues who have been

speaking up to this point, that the various clauses in that succeeding

section are very much the basis for decisions about any actions by

employers that are not fair and that infringe on the rights of

employees to organize.

We're

dealing in

section 2 and this

new subsection (3) with a "freedom to express" clause. There is in the

succeeding clause a very clear, succinct and, I think, uncompromising

statement of what the employer's rights and prerogatives are. In

3(3)(g), the next clause speaks about the methods and the parameters of

communications that an employer may in fact have available to him. It

states that the employer may "communicate to an employee a statement of

fact or opinion reasonably held with respect to the employer's

business." It seems to me that that's what the minister has been

talking about, to some extent, as we have defined undue influence. But

when we talk about freedom to express views as long as they do not

exercise undue influence, intimidation, coercion or threats, we're

looking at a clause that appears to me to be much broader in the

latitude that it provides to an employer. Even with my limited

knowledge

of the day-in, day-out working relationships with certification, I,

just as an average person in society, know that in many ways the cards

are stacked in favour of employers as to the information that they may

provide and the influence that they may have on a group of employees

seeking to certify.

I'm concerned about this addition to

the new act that we are now fleshing out in more detail, because it

appears to me that we are shifting again the kind of prerogatives and

rights that employers have. We're giving to those employers more rights

that shift the balance in favour of employers as compared to employees.

Two or three years ago there was an amendment that required that every

certification go to a vote — a change from the automatic sign-up once

there was a certain majority of people who had signed union cards.

So I would like to ask the minister to comment on his motivation for this

particular clause in the new bill; to comment particularly on the

rights that he sees it giving to employers; to comment about it in the

context of the unfair labour practices

section of the current Labour

Code, which certainly does give to the employer very definite rights to

communicate statements of fact or opinion reasonably held with respect

to his business — to give some indication of the need for this

particular clause as it pertains to employers' rights around issues of

certification and decertification.

HON. L. HANSON :

Madam Chairman, I guess the member opposite wasn't in the room when I

originally stated the intent of the legislation, but that's fair. I

think the member is zeroing in on certification and decertification.

The intent of this

section is to ensure that the employees have the

right, the ability and the knowledge of all of the information that

they should have before they make the decision as to whether

[ Page 1380 ]

they're

voting for certification, decertification, contract acceptance, going

on strike, all of those things. We're simply saying that there should

be reasonable communication without threats, intimidation, coercion or

undue influence, so that the individuals can vote from a very

knowledgeable point of view.

MS. A. HAGEN : Mr.

Minister, through the Chair, I find it a little puzzling that we would

assume that we need to have this kind of a clause for that right of

information to be there.

Let me take the case of an

employer who obviously has an interest in his employees certifying —

becoming a part of a bargaining unit. From your answer am I to assume,

Mr. Minister, that you anticipate that in the course of certification

many of the matters that would be the subject of collective bargaining

between the employer and the union are to be defined and to be defined

accurately? You speak about contract; you speak about all of the

information that I would assume would normally be the subject of

discussion between the employer presenting his particular perspective

as a person running a business, and the employees presenting their

particular requests as to the remuneration that they would like to

seek, or the working conditions that they would like to have in place,

or the safety conditions that they would like to have in place. What

kind of information would the minister anticipate employers providing

to employees at this time that would be necessary for them to decide

that they want as a group to present their particular requests to their

employer and bargain freely and collectively with that employer across

the table? I'm not clear about the kind of information that it would be

important for employees to have at that time that is not in fact the

appropriate information to have on a bargaining table as the parties

move to reach some kind of an agreement, once certification has taken

place.

HON. L. HANSON : I don't think you're quite

getting the point. The situation as it evolves across a bargaining

table.... There is obviously management and those representatives

of organized labour sitting at that table communicating very freely,

and I'm not sure that the undue influence and the intimidation and

coercion doesn't go on at that table from both sides. But we're not

talking about that. We're talking about the ability of the employees,

who are being represented at that table by the union leaders and the

management, getting the story from both of their sides to make a

decision whether they want to go on strike, whether they want to accept

the offer that's being presented to them, or whether they want to form

a union, or whether they want to decertify.

We're not

talking about the situation at the bargaining table. I think it's

probably fairly well known just via the media that at the bargaining

table intimidation, coercion and undue influence do go on; but that's

part of the bargaining process. We're not talking about that

communication level. We're talking about the communication level of the

employer with the employees — the broader band of the employees — and

with the employees' ability to get both sides of the story so they can

make a decision on the question that is being presented to them.

MS. A. HAGEN :

Am I to understand the minister to say at this point, then, that we are

going to have two sets of communication occurring with collective

bargaining? I heard him say we're not talking about what goes on at the

bargaining table, where all of these nefarious things — coercion,

intimidation and threats — he says do go on. I've sat at bargaining

tables, and quite honestly I have not thought that those were nouns

that described some of the spirited discussion that took place at that

table. But I thought I heard you say that this did not involve the

bargaining table, and then I think I heard you say that what we want to

do is to have two kinds of communication: we want to have communication

where the employer and the representatives of the unions sit down at a

bargaining table and discuss the matters before them as they hammer out

a collective agreement; and in addition to that, you want with this

clause to provide for the employer a further opportunity to make

certain that certain information from that employer is made available

to that employee — some information about the matters that the two

parties are discussing around the table. Is the intent of this

legislation to have the employer communicate not only with the

representatives of the union across the bargaining table but also to

communicate matters relating to that collective agreement and the

processes that they are working on directly to union members? Is that

the intent of this particular clause?

[4:30]

HON. L. HANSON :

I'm not sure that the member really understands the bargaining process

very well. There's no question that across the table from each other,

the two sides really understand them well, and they divulge as much

information as they want to the other side. We're not talking about

that. We're talking about the situation where the employer at this

point feels that he is subject to an unfair labour practice if he

communicates anything to his employee. All we're suggesting in this is

that without using undue influence, without using intimidation,

coercion and threats, the employee, when he is voting on a specific

issue, whether it be certification, decertification, the acceptance of

a contract or the decision to go on strike.... There is certain

information that the employer should be able to communicate to his

employee, not to make the employee change his mind about which way he

is going to vote but to make sure that the employee is making the best

decision, having all of the knowledge in front of him.

MS. A. HAGEN :

It is, as I feared, that all of the decks are stacked in favour of the

employer. It doesn't appear to me that there is any indication here

that the employees have an opportunity to have information about their

employers' books. The employer has a carte blanche to provide

information to his employees that may or may not be complete, that may

or may not be in the context of the discussions that are taking place.

There is nothing in this legislation to enable the employee to tap into

what the due rights of the employer are, which is to manage his

business.

I would ask the minister again what right the

employer has, once a certification has occurred, or if we're looking at

a decertification. Even if we're looking at a certification, to provide

information that cannot in fact be authenticated except through some

sort of an unfair labour practice.... What right does the employer

have to have prerogatives in the giving of information, other than

across the table between the parties that have agreed that this is the

vehicle by which they will arrive at their duly negotiated settlements?

HON. L. HANSON :

I'm not sure I really understand your line of questioning. Why

shouldn't the employee have the benefit of that knowledge? If it is in

fact coercive, or if it in fact is intimidating, or undue influence,

that's why we have

[ Page

1381 ]

put

it in the act that the adjudication division of the disputes resolution

council will rule on that if the employer has acted with undue

influence, intimidation, coercion, or in a threatening manner. That's

why it's in the Code. But we do feel, and I think that you would agree,

that the employee should have the right to as much information as is

really reasonable to make a fair and honest decision. The employer

should be restricted from using unfair or intimidating, coercive

threats to influence them to decide in one way or the other, and we're

putting it in the act to give the adjudication division the ability to

make decisions on whether that has been done in a proper manner.

MS. A. HAGEN :

I know that various colleagues will be looking at some instances to

bear out some of the kinds of unfair practices that have, in our

province, been manifested over the last number of years.

One

of the people I have found very down-to-earth and realistic in his

assessment of labour-management relations has been Paul Weiler, who is

the first chairman of the Labour Relations Board as it was manifested

in 1973. I would just like to conclude my remarks this time by reading

into the record from his

article "Free Collective Bargaining by

Canadian Workers" a statement that I think probably sums up the reality

for many groups of workers who are seeking to certify, where, even with

the present Code, there have been unfair practices in that

certification process. Mr. Weiler says:

"In

my experience of four years of administering representation law in

British Columbia — to the tune of about 1,000 certification cases a

year — when we did have a hotly contested representation campaign

between the union and the employer, the employer normally found it

impossible to resist the temptation to engage in improper tactics to

turn his employees against the union. I do not think I am unduly

cynical in saying that the labour relations version of the Marquis of

Queensbury rules tends to be ignored by employers if they are drawn

into that kind of battle."

I would just conclude, Mr.

Minister, by saying that I think that anything that further stacks the

deck to make it difficult for working people to be able to collectively

certify and to carry out their needs, in terms of their role in

industrial relations, is a step backward, and one of the clauses in

this bill that I think will be a disadvantage and will produce more in

the way of conflict and resorting to the new industrial relations

commissions, with all of the attendant problems.

MR. CLARK :

I want to follow the excellent remarks of the member for New

Westminister. Maybe I am unique in this House as someone who has

actually worked as a union organizer. I don't imagine there are too

many such people over on that side of the House. I do, therefore, have

some specific experience with this

section of the old Labour Code, and

I want to relate to the minister some of the real difficulties that

workers face under the current Code and how this really is a very

serious amendment that you're putting forward.

I want to

recognize that the intent stated by the minister is not going to be the

result, again. That's the second time in this very short debate we've

seen the minister say, "This is the intent of this clause," when in

fact the consequences will be far different. I want to try and outline

that.

The old Labour Code of 1973 recognized that it was a fundamental right of individuals

to organize collectively without interference from the employer. It recognized

that economics dictates the tremendous power and influence the employer has

over workers and that those who sign the cheques, by that very nature, have

a tremendous influence over how people survive and how they work, their working

conditions, wages and standard of living. That very structural nature of the

system we live in has a tremendous influence on it. So what the Labour Code

did was to say that in spite of that inherent bias in favour of the employers,

in spite of that economic imperative, we will try and say that workers collectively,

if they choose, should be free from any interference by that employer in their

fundamental right to determine for themselves, without interference, whether

or not they should join a union.

One

of the things that the original Code did in recognizing that was to

provide for automatic certifications. It said that where a

certification drive takes place and where more than 55 percent of the

employees decided and paid money to join a trade union, they would

automatically be certified and be allowed to participate in collective

bargaining. This was not done in great haste, but it was done

particularly because of the history of voting in the United States and

across Canada.

The American model is one that I don't think

would be wanted by anybody who recognizes or agrees, as the minister

professes to, that it is up to individuals to determine whether or not

they want to join a union. The minister should know that a very small

percentage of certification votes in the United States succeed. That is

because of a kind of thing we have had in British Columbia since a

previous government amended the Code to require secret ballots on all

certification drives, even if 100 percent of the employees joined the

trade union. Then, of course, there is a lag between the time of

certification and the time of the vote, and it is that time where the

employer recognizes that the majority of employees have decided to

unionize, but the employer has another chance to influence the decision

of those employees to join a union. That is where the interregnum

between the certification application and the vote...where the

pressure is the greatest on the employees.

The secret

ballot amendment that was brought in a few years ago by the previous

administration, together with the

section of the Code — and I want to

read this

section — still exists. It's

section 3(3)(g): "...this

act shall not be interpreted to limit or otherwise affect the right of

the employer to...communicate to an employee a statement of fact or

opinion reasonably held with respect to the employer's business." So

currently under the Code, and historically in British Columbia since

1973, the employer has had the clear right to communicate with his

employees any statement of fact or opinion reasonably held with respect

to the employer's business. So we now have a secret ballot and a

section of the Code that allows the employer to communicate to his

employees very clearly his opinion with respect to the impact of that

certification on his business.

Gee, I may have to make this speech again when the minister comes back.

AN HON. MEMBER : It bears repetition.

MR. CLARK :

So we have right now a situation under the current Code where we have

secret ballots required for all certification attempts, regardless of

the numbers of people who have signed up. And we have a

section of the

Code that says clearly that employers have the right to communicate

their position to their employees. We already have those two

[ Page 1382 ]

sections,

so what is the purpose of this amendment? The purpose of this amendment

clearly is to make the employer's clause stronger. We already have the

fact under the Code that the employer is allowed to communicate to its

employees. We already have a secret ballot; there's no automatic

certification. The employer will have an opportunity to convince his

employees not to join the union. That's already in the act. So this

whole

section can only be to strengthen that clause, to strengthen the

employer's position in any attempt to unionize his or her workforce.

[4:45]

What I'd like to do instead of going over that again is relate to

the minister my own personal experience with one company, and how the

current two provisions — a secret ballot, which always gives the

employer the opportunity to communicate to his employees before they're

unionized, and the

section of the Code which allows the employer to

communicate clearly any opinion reasonably held with respect to his

business.... That's the current situation. How is it interpreted in

British Columbia now?

Well, there's a steel-fabrication

plant in Richmond with 300 to 500 employees. It's recently been

unionized — a few years ago — and I played a

part in that unionization. I want to say that once the application for certification was made, in

the period between the application for certification and the vote there

was industrial relations chaos in that operation. The reason there was

industrial relations chaos was because the employer attempted to

convince his employees under the old Code — using his rights under the

old Code — not to join the trade union.

So what did they

do? Every day for two months between the certification application and

the vote there was a debate between me, my trade union at the time and

the employer. There were letters from me to the employees, and letters

from the employees, from the owners and from the personnel manager,

arguing their case against the trade union and arguing my case in

favour of the trade union. There was a staff meeting held — two of them — with 400 employees on company time, where the owner talked to the

employees and tried to convince them not to join a union. He used the

section of the Code that says that any opinion reasonably held can be

communicated to the employees.

The owner met with most of

the employees individually in his office, privately, and tried to

convince them not to vote in favour of the union. There were leaflets

issued every two weeks with the paycheques, arguing the case of the

employer against the trade union. They weren't strident statements

saying, "We're going to shut the place down" or anything else; they

were opinions reasonably held by the employer that it was his opinion

as owner that this would not be in the best interest of the company. He

repeated that personally and privately, he repeated that to the 400

people on company time at two different staff meetings, and he repeated

that in letters to the employees with their paycheques. And if the

minister doesn't think that the person who signs the paycheque has

influence by the very nature of that person's position in this economic

system, then there's something wrong.

So we had this for

two months, and then we had a very interesting situation. The labour

board ordered a vote, and we had ten days where every day the personnel

manager put out a leaflet to the employees and every day the union put

out one, or in some cases two, leaflets to the employees. The employer

mailed to every employee personal letters to that employee's home — the

trade union couldn't mail personal letters to the employees' homes,

because we're denied the right of access to all the employees' names

and addresses. So the employer also wrote letters to the employees at

their homes — which were in some cases addressed to the family, not

simply to the worker — to try to influence their decision.

Then

the day before the vote, the employer raised the wages of the employees

by 10 percent, which is expressly prohibited under the old Labour Code;

yet he did it. And he did it under the advice of a labour relations

professional, a management lawyer, a specialist in this field, Gary

Catherwood. He probably had something to do with writing this act; I

don't know. He might be one of the.... I wouldn't be surprised.

That's another consequence of this kind of amendment, and it's the

professional anti-union organizers in this province who have had a

history of that. The workers decided to join the union anyway, in spite

of this intensive campaign on the part of the employer.

Admittedly,

the raise that the employees were given the day before the vote is

illegal under the old Code. Probably, as a trade union organizer, I

could have taken them to the Labour Relations Board on that matter.

What would have happened, of course, would have been three or four

months where there would have been no decision on whether or not the

union would be accepted — an unfair labour practice hearing for three

or four months, prior to which there would be no decision. So I

decided, rather than go the unfair labour practice route, which would

have taken three months and may have resulted in something, to risk the

actual results of the vote, which were over 75 percent in favour of the

trade union.

That was under the provisions of the old Code,

the Code that's present. That kind of influence and that kind of

communication to the employees is allowed under the old provisions.

That's the kind of thing the employer is allowed to do: he is allowed

to communicate with his employees any position on certification

reasonably held. So what is the purpose of this amendment, if they're

already allowed to communicate their position to employees? Even though

they weren't allowed to give their position to the employees so clearly

when there wasn't a secret ballot required, because if the employees

decided to join a majority they could have joined, that secret ballot

amendment meant that there's an interregnum between the certification

and the vote, and in that interregnum the employer is allowed to

communicate with his employees. So why this amendment? The only thing

that you can say is that this amendment is to strengthen even more the

employer's ability to thwart any attempt by the trade union to organize.

The

minister should know that I have never been in an organizing drive for

a trade union where the employer has not stated: "This operation will

shut down if it's unionized." That's the common practice. It's never

put in writing. It's constantly stated by the employer: "If this

operation unionizes, we will close the doors." I've never been in a

single, solitary case of union organizing — and I've been in many — where the employe