1987 Legislative Session: 1st Session, 34th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

THURSDAY, JUNE 4, 1987

Afternoon Sitting

[ Page

1575 ]

CONTENTS

Routine Proceedings

Oral Questions

Writ filed by Attorney-General. Mr. Harcourt –– 1575

Mr. Sihota

Hearing on patent act. Hon. Mr. Dueck replies –– 1577

Industrial Relations Reform Act, 1987 (Bill 19). Committee stage. (Hon. L. Hanson) –– 1578

Mr. Williams

Mr. Gabelmann

Mr. Sihota

Mr. Clark

Mr. Peterson

Mr. Barnes

Mr. Jansen

Mr. Miller

Appendix –– 1598

The House met at 2:09 p.m.

MR. PELTON :

Mr. Speaker, with your forbearance, I have a number of introductions to

make today. First of all, in the members' gallery are three of a number

of very special people in my life. I refer to my wife Louise and two of

our five daughters. Our daughter Ardith is here from Menomonie,

Wisconsin, and Lesley is from Kingston, Ontario. I would ask the House

to help me express to them how very pleased I am that they have been

able to come to visit their mother and me.

And on your

behalf, Mr. Speaker, I would like the House to welcome here this

afternoon Mrs. Helen and Mr. Jim Bottomley of Victoria, Hon. Ron

Huntington, a former minister of the Crown and former Member of

Parliament for West Vancouver, and Mr. John Sherman, a businessman from

West Vancouver. Would the House please make them all welcome.

MR. ROSE :

A great number of names were read off by my hon. friend from Dewdney. I

know only two of them: Mrs. Pelton and Hon. Ron Huntington, a colleague

of mine in Ottawa for a number of years, and a friend. Also, he was a

minister of the Crown, so I would take great pleasure in welcoming Mr.

Huntington on behalf of this side of the House, and I hope everybody

else can make him welcome once again.

HON. MR. DUECK :

Mr. Speaker, in your gallery today are three special friends from the

central Fraser Valley. One is Percy Siemens and his wife Leslie;

another special friend is my girlfriend, my wife Helen.

MR. BLENCOE :

In the House today are two constituents from Victoria, May Henry and

Lillian Branson. Will the House please make them both welcome.

MR. R. FRASER :

Because of this man's particular job, any member of the House could

introduce him; he has members of his association in all ridings. Harry

Gray is the managing director of the Association of Professional

Engineers of B.C., and is here to talk with both the opposition and the

government to help us process the new Engineers Amendment Act. Would

the House please help me welcome Harry Gray.

MR. VANT :

Not in the House today is the hon. first member for Cariboo (Mr. A.

Fraser), but I want to tell the House that his health is constantly

improving. He is not here today because he is in Vancouver being

recognized as the transportation man of the year for British Columbia

and the Yukon, and I know the House will want to join me in all good

wishes on this happy occasion for the first member for Cariboo.

HON. MR. STRACHAN : I've just noticed an old friend of this Legislative

Assembly in the gallery whom I guess I would refer to as Father Smith now, and

it's good to see you here. When Greg left us in 1980, 1981 to study for

the priesthood, I asked him if I could have all his old ties and he hasn't

supplied them yet. But he was a natty dresser, so it's room 124, Father,

if you'd like to send me all your old ties. But welcome again to Victoria;

it's good to see you.

MR. JACOBSEN :

A couple of good friends are visiting today from Mission, Mr. and Mrs.

Edley, and would the House please give them a warm welcome.

MR. JANSEN :

From the wonderful constituency of Chilliwack, I would like to

introduce to the House Timothy Christian School students from grade 9,

together with their teacher, Mr. Teo Van de Weg and also Mr. Karl Stam.

Would you please make them welcome.

Also from our

constituency we have students in the precincts from Kent Elementary

School, together with their teachers Mr. Fraser and Mrs. Froehlich.

Would you please make them welcome.

MRS. GRAN : Mr. Speaker, in your gallery is a young man from Langley, Chris Gardner, and I'd like the House to welcome him.

MR. LOENEN :

Two introductions: special friends from Edmonton, Marty and Edith

Zuidhof. Please make them feel welcome. Secondly, I would like to

introduce the better half for the hon. member from Columbia, Norma

Crandall.

[2:15]

MR. REE :

Mr. Speaker, on behalf of the Minister of Social Services (Hon. Mr.

Richmond) and the second member for Saanich and the Islands (Mr.

Huberts) and myself, I would ask the House to welcome a number of

lovely ladies from up-Island: from Nanaimo, Aggie Flett, and from

Gabriola, Irene Pallot, Liz Palmer, Gwen Honigman, Sue Matthews, Dana

Baker, Edna Driedger, Sandra Peacock. Also from Nanaimo are another two

lovely ladies, Laverne Kilner and Doris Sproule. Would the House

welcome them to Victoria.

MR. CRANDALL : On behalf of my neighbour, the MLA for Richmond, I want to introduce his wife, the second lady for Richmond, Jayne Loenen.

MR. BARNES :

Mr. Speaker, I would like the House to join me in welcoming Joan

Johnston and Thelma MacMurchie of Victoria, who are actually

constituents, of course, of the two members here. But I have had the

opportunity to meet these people and buy them lunch. I even took the

first member.... As I said, this is an unusual day, and even stranger

than that, they had a raffle in which these ladies won the right for me

to buy them lunch, if you can figure that one out. In other words, I

paid off today, so I would like everybody to make them welcome.

Oral Questions

WRIT FILED BY ATTORNEY-GENERAL

MR. HARCOURT : Mr. Speaker, I would like to ask the Premier about the

Attorney-General's application for an injunction. The Minister of Labour

(Hon. L. Hanson) has confirmed that the writ filed by the Attorney-General on

Monday represents, and I quote, "the philosophy of the Premier." Will

the Premier now step back from the brink and order that this writ, which attacks

the basic freedoms of our citizens and proposes to muzzle the media when the

government makes mistakes — which is often these days — be withdrawn today,

now?

[ Page 1576 ]

HON. MR. VANDER ZALM :

Mr. Speaker, I don't know what is meant by "philosophy of the Premier."

As a matter of fact, I doubt if that statement was made. It was

referred to in the paper, and I'll certainly find out more about that.

any event, with respect to trying to muzzle the media, I honestly would

question whether in fact the hon. Leader of the Opposition did much

legal research on that, because he would obviously find that there is

no such intent anywhere in anything that I've seen or anyone's seen.

Furthermore, he should obviously be aware, as a politician, that that

sort of thing doesn't work. Just look at today's newspaper.

MR. SPEAKER :

Before the Leader of the Opposition goes ahead, this matter is before

the courts. I don't want to stop the general questioning, but if you

get into the substance of the writ, I think we have to be very careful.

MR. HARCOURT :

Mr. Speaker, I'm aware of the fact that we're not to comment on the

fact that it is subjudice, but I must say that this is indeed something

that has not occurred, in my memory, in this Legislature. I've heard it

said that this injunction application is a grotesque form of legal

shadowboxing, and I must say, the shadow is winning.

The

reason I bring this up is not to deal with what's before the court, but

to deal with the Premier's confidence in the Attorney-General. The

Premier is saying that what is in the writ, and what he agreed to with

the Attorney-General, are not the same thing. Mr. Premier, how is the

Attorney-General going to be able to continue with that lack of

confidence that you have in him?

HON. MR. VANDER ZALM :

I doubt very much whether the hon. member will have the opportunity to

learn in practice. In any event, for that reason I will try to provide

a little bit of information that he should be aware of. It's not the

role of a Premier or any minister in a government, regardless of where

it is in this country, to start telling the Attorney-General what he

ought to include in a document such as this. That is the role of the

Attorney-General.

[Mr. Pelton in the chair.]

MR. HARCOURT :

I may say, in response to what you have said, Mr. Premier, that you're

not going to have much of a chance to practise much longer either, with

this Fantasygate that's unfolding around us. You say that you cannot

interfere with the action of an Attorney-General. Are you saying, Mr.

Premier, that you give your Attorney-General unfettered, absolute power

to interfere with the rights and freedoms of the citizens of British

Columbia?

HON. MR. VANDER ZALM : No, and I think the

hon. member should know this. Certainly from his background he ought to

be aware that when an illegal act is committed, you don't then, as

members of government, develop some sort of consensus as to how it

ought to be addressed, nor do you tell the Attorney-General of a

province how it ought to be addressed. The Attorney-General addresses

it.

MR. HARCOURT : Mr. Speaker, as a lawyer I

understand that. I also understand that it's up to the courts and

judges and juries to decide whether there's an illegal act or not, not

the Premier or the Attorney-General. That's very clear. There are

remedies, criminal and civil, and you should know that, sit.

have a question. I have just returned from a very successful trip to

Ontario, selling British Columbia. Mr. Speaker, I may say that it was

made more difficult by the Attorney-General. I want to ask the Premier

if he thinks that we're going to be able to convince investment to come

to this province of ours when the Premier and the Attorney-General are

alleging a seditious conspiracy to overthrow the government. Do you

think people are going to want to invest in a province when you make

that kind of allegation?

HON. MR. VANDER ZALM : I'm

confident that we're going to see tremendous investment in British

Columbia and that we're going to see all sorts of opportunities.

Obviously the hon. member, the leader, and I may disagree in the

approach. He feels that by meeting with the leaders of the NDP in

Alberta, Saskatchewan, Manitoba and Ontario he's going to sell coal.

I'm glad those employed in the coal activities of the northeast and the

southeast aren't banking on that, or they wouldn't have a job.

am very confident, Mr. Speaker, that we will see much economic

activity. I'll be very pleased to advise the hon. member a little later

in the course of the year how things are going, but I expect they'll go

very well.

MR. SIHOTA : Mr. Speaker, a question to

the Premier. The Premier has conceded that the injunction requested

will not be necessary when Bill 19 is passed. He's also conceded that

he's not aware of any plans by the labour movement to stage another

walkout. Will the Premier please explain to this House why then it is

necessary to proceed with the writ, and will he not agree to withdraw

that writ?

HON. MR. VANDER ZALM : Mr. Speaker, I can't answer that question, because certainly that touches on the matter before the courts.

MR. SIHOTA :

Mr. Speaker, I'll move on to another question. The Attorney-General has

said that there was a conspiracy to subvert the democratically elected

government of British Columbia, and that's what prompted this writ.

Does the Premier agree with that comment of the Attorney-General?

HON. MR. VANDER ZALM : I'm sure, Mr. Speaker, that all could agree that that will be a matter of

interpretation for the court.

MR. SIHOTA :

The question, Mr. Speaker, is to the Premier. Does he or does he not

agree with that statement made by the Attorney-General in his news

release?

HON. MR. VANDER ZALM : Mr. Speaker, that matter is now before the courts.

MR. SIHOTA :

Mr. Speaker, the matter of the news release is not before the court,

nor is the statement of the Attorney-General. The statement is now

being put before you in this House, and we're asking for an answer: do

you or do you not agree with that statement, Mr. Premier?

MR. SPEAKER : The member for Esquimalt-Port Renfrew.

[ Page

1577 ]

MR. SIHOTA : Clearly the Premier is not willing to answer questions that

are legitimately put to him, so I'll move to the Attorney-General and ask

him this question. The concept of sedition, according to the government, has

been read into the writ by third parties. However, there is a tremendous amount

of similarity between sections 60 and 61 of the Criminal Code, which talk about

sedition, and the wording in the writ. Does the Attorney-General now agree,

in light of those facts, that the concept of sedition was very much in his mind

when he drafted that writ?

HON. B.R. SMITH :

Mr. Speaker, I'm very pleased to hear so much interest in the subject

of the general strike from the members opposite, and also from the

Leader of the Opposition, who I thought was out counselling his

colleagues in labour to obey the law. I didn't realize he was in

Ontario.

AN HON. MEMBER : Where were you?

HON. B.R. SMITH :

I had the honour to accompany the Premier on a very historic series of

meetings in Ottawa, We have brought back constitutional changes that

will greatly strengthen the role of B.C. in Confederation and allow

B.C. to have a much stronger place in the fabric of Confederation.

But

to come to the member's question. He knows that the drafting of a writ

is done by counsel. He knows also that a writ, when drafted, is drafted

in broad language, and that when a motion is applied for in a court,

it's applied for in specific language. And he knows that no allegations

have ever been made that there was a criminal seditious attempt by

anyone to overthrow the government by physical force. He knows that.

This

is clever, legalistic questioning, but he knows that the only

allegation that has ever been made is that there were unlawful acts in

concert which brought about an attempt to try to subvert the democratic

process. That can be done by lawful acts. You can persuade people not

to support government policy or to back down on legislation. You can do

all of that by lawful acts but you cannot do it in concert, and that's

the only allegation that was made. Only civil proceedings have been

taken; no other proceedings have been taken. He also knows that no

penalties were sought against anyone. All that is sought is an order of

the court preventing future illegal activity, and he knows that.

MR. SIHOTA :

First, the Premier said that he doesn't expect any further activity of

that nature. Secondly, it's somewhat hypocritical for the

Attorney-General to stand up and talk about that constitution when he's

filing writs in the courts of this province that deny freedom of

speech, freedom of assembly and freedom of association.

The

question, again, to the Attorney-General is this: can he explain, in

light of this answer, why there is such a degree of similarity between

the wording in the Criminal Code with respect to sedition and the

wording within the writ?

[2:30]

HON. B.R. SMITH : The member knows that conspiracy has both a civil and

a criminal connotation; and he also knows that civil action has been taken here

and not criminal action; and he also knows that, quite apart from trying to

subvert or suppress freedom of speech, it's freedom of speech that we're

trying to ensure. Freedom of speech is threatened when the press are shut down

on a Monday and can't report things. Freedom

of speech is threatened when the courts are not able to function, not

able to adjudicate because of an illegal strike. That's what threatens

freedom of speech, not the filing of a writ.

MR. SIHOTA :

The writ and the intent behind the writ is to deny people the

opportunity to engage in legitimate dissent. It's always been a part of

our democratic traditions that people are entitled to engage in

legitimate dissent.

The question to the Attorney-General is

this. There are certain exemptions under the Criminal Code from

sedition. Those exemptions, by coincidence, appear as a part of the

injunctive relief you're seeking in court. Now is that coincidence or

were you planning or were you writing this writ with sedition in mind?

HON. B.R. SMITH :

The motion for an injunction, which was filed today, asks for an

injunction that will stop unlawful conduct as a means of opposing

government legislation. Neither the injunction nor the writ nor any

action that we've taken is meant to deny people the right to peacefully

and lawfully protest, to argue that government policy should be

changed, to demonstrate peacefully and lawfully; but not to do things

in concert that are illegal to try to bring about that change. Our

system does not permit that.

HEARING ON PATENT ACT

HON. MR. DUECK : Mr. Speaker, I wish to respond to a question raised yesterday by the hon. member for Maillardville-Coquitlam (Mr. Cashore).

The

Senate committee on the drug patent act had not contacted my office or

any official in my ministry to invite us to attend the hearings slated

for British Columbia. In fact, the Senate committee had not informed us

of a date, time or location of such hearings. British Columbia has

ample access to federal officials at all times to discuss matters

important to the people of this province.

I have made it

perfectly clear to Hon. Harvie Andre, Minister of Consumer and

Corporate Affairs, to Hon. Jake Epp, Minister of Health and Welfare, to

the British Columbia Tory caucus members and to all provincial Health

ministers the position of this government. I will reiterate that

position.

I am concerned that the proposed amendments would

result in increased cost to the consumers and to governments, with no

guarantee of a significant increase in research and development. I am

also concerned that proposed federal compensation would not be

adequate. It is my view that the present compulsory licensing provision

of the Patent Act is effective in moderating pharmaceutical prices, and

it should be retained.

Mr. Speaker, the chairman of the

Senate committee informed the hon. member for Maillardville-Coquitlam

at the hearing what British Columbia's position is, and he concurred

with that position at that particular hearing.

Hon. Mr. Vander Zalm tabled answers to questions.

Orders of the Day

HON. MR. STRACHAN : Committee on Bill 19, Mr. Speaker.

[ Page 1578 ]

INDUSTRIAL RELATIONS REFORM ACT, 1987

(continued)

The House in committee on Bill 19; Mrs. Gran in the chair.

section 25 as amended.

MR. WILLIAMS :

Much of the discussion on this

section has centred on the construction

industry in the province and what has been a conscious effort on the

part of this and the previous administration to deunionize the

construction industry. That's been underway for some time. We've gone

through the whole exercise, in terms of construction activities and the

Expo site and many others, including some currently in my own riding of

Vancouver East that are causing considerable despair on the part of

people in my community who have to face deunionized construction people

building their next shopping centre.

But we haven't

thought, other than.... This morning the Leader of the Opposition

raised the implications in terms of our truck logging industry here on

the coast. That, I think, is very significant. We have 275 companies on

the coast in the truck logging industry that are significant players in

terms of the logging industry itself. I don't have the full number of

employees in those 275 firms, but the bulk of those firms are union

firms that work essentially for the major companies that have the large

tree-farm licences and other licence privileges that the Crown has

granted over the years.

Those union contractors have been

in a squeeze for some time by the big companies, a very tough, tight

kind of squeeze play in terms of the contract prices they will pay for

the stump-to-dump work in logging here on the coast. They haven't had

an increase in the funding of their contracts, most of them, for six or

seven years.

It's being made clearer and clearer between

the major companies and those contractors that what the companies want

as the next stage is deunionization. "If you can't meet these costs,

then get rid of the union" is the message that they're getting across

this coast here. There's a conscious pressure on the part of the majors

to deunionize the whole end of logging and trucking —

the contracting side of this industry. What this legislation will do is

make that easier, in terms of deunionizing the industry.

Some of you on the other side may have responded and clucked away this morning

when the Leader of the Opposition said: "What you're talking about

is safety, and what you're talking about is more deaths in this industry."

We do not have a good record in this industry. There are some where we do have

a decent record in this industry. It's a fairly consistent pattern. Where

there is a decent record is with the major companies, by and large. Where they

have safety committees that are active....

The

best example on the coast in terms of a turnaround is Whonnock.

Whonnock had one of the poorest records on the coast, but by

consultation between the trade union and the company, action was taken

that gave the safety committee executive powers to intervene in terms

of procedures and standards and the rest of it. The Whonnock company

ended up turning around from being one of the poorest companies on the

coast to one of the best companies on the coast in terms of current

safety records.

There's no question, once the pressure is

put on these contractors in terms of lower contract price.... The IWA

wages have continued to go up over the years, as we all know. But at

the same time, the unit contract price that those contractors have been

receiving has essentially remained level for half a dozen years; that's

despite prices going up in pulp, in log prices. So there is terrible

pressure on those contractors. The next stage of pressure on those

contractors is to get out, in terms of a union operation. That's what

the pressure will be in the future, and this legislation makes that

much easier.

On April 28 of this year there was an ad in

both major papers in Vancouver. They called it a day of mourning with

respect to workers in the forest industry. In this tough, rough country

of the coast of British Columbia, over 30 people were killed in this

industry. This puts pressure on in terms of those safety standards;

make no bones about it. The Minister of Forests (Hon. Mr. Parker) has

highballers in his riding. You know, we all heard it on the newscasts:

those highballers coming from the Bell-Irving country, from Meziadin

Lake through to Stewart. Anybody who's been around that narrow, little

road going from Meziadin to Stewart, back by the panhandle, knows that

it's dangerous terrain.

The highballing is on them. They're

pressured because of the price levels and all of the rest of it. By

this process of deunionizing the industry, the pressure is greater. You

check, and you'll find that there are greater safety measures, greater

success in terms of safety, in these large unionized operations. It

decreases when you get into gyppo operations and the rest of it. It's

very, very clear.

We operate in the toughest terrain in the

world on the coast of British Columbia, in terms of our logging shows.

It's the toughest terrain in the world. By this exercise in this

section you're opening it up to greater pressures, more highballing,

more danger and more deaths. There's simply no question about that. We

don't need it. We don't want it.

There has been a great

history on this coast of building up a unionized industry, from

miserable standards in the past in this century in terms of terrible

working and living conditions. It's been a very tough, long fight on

this coast to establish half-decent conditions, to establish safety and

all the rest. The record is there. If you want to check with your

Workers' Compensation Board, you'll find that the pattern is clear: the

companies that are unionized, the companies that are larger, are the

companies that are safer.

By opening up this opportunity

for deunionizing, you're not just attacking the construction industry

and living standards there; you're attacking this industry and many

others, and we will all be the losers. Those trade unions have worked

long and hard for decent conditions and for safe circumstances in very

dangerous terrain. This pushes them back decades in terms of safety and

danger, and in a modem, civilized society that simply shouldn't happen.

MR. GABELMANN :

I want to ask the minister whether he's had a chance since this morning

to reflect on the LRB case law that I cited in respect of at least

three decisions, and would tell us whether or not he would agree that

the law as it now will read will allow for double-breasting in those

circumstances. Two of three, as I cited this morning, were not allowed.

I'm not going to repeat all the arguments.

In the cases I

cited this morning, which I do not intend to repeat, I expressed the

viewpoint that with the changes that we have in

section 25,

double-breasting will now be allowed in those instances where

previously it was not allowed, and that was a clear indication that

this legislation will allow for

[ Page 1579 ]

what

I keep referring to as double-breasting, but which we should probably

call deunionizing, because double-breasting is a bit of an "in" term or

a term that only people in the business really use or understand.

Nevertheless, it's a deunionizing activity.

I just wonder

if the minister has had an opportunity to reflect on those cases, and

would give us an indication as to whether or not he feels that I was

being excessive in the comments that I made.

[2:45]

HON. L. HANSON :

Yes, I have, Madam Chairman, but I think that there's a greater

assumption being made here. The previous speaker, before the member for

North Island, suggested that the result of this was a total

deunionization of industry. I certainly wouldn't argue with the former

Minister of Forests that there have been and will continue to be a

number of benefits as it relates to working conditions, safety and

other things, through the organized labour community. Where I differ

with him is that the results of this

section will deunionize industry.

I don't believe that the jurisprudence the council will develop as a

result of this will do that, and I am confident that that is the case.

have to go back to the positive side of this legislation. The intent of

the legislation is to allow some flexibility in the investment in new

companies and the starting of new entities. There is nothing in this

legislation that I know of that precludes the union from attempting to

organize any non-union operation in the province. I guess where we have

the basic difference is that the assumption being made by the members

on the other side is that this legislation is going to deunionize the

province. Well, I just don't agree with that, and I think that the

jurisprudence of the board, as it deals with the individual cases, will

prove that.

MR. GABELMANN : Madam Chair, this morning

I embarked deliberately on a course of action which would take out of

this debate assertions and bring into the debate actual legal cases and

legal

definitions and some, I thought, rational way of dealing with

this issue, which is an incredibly complicated and complex issue. What

we get from the minister in response is a series of "I believes" or a

series of assertions, or, as a variation on that theme, a declaration

that there's no law that he knows of that will prevent organizing. It's

not useful to the committee to know what the minister believes. I guess

it's helpful to know what he believes, but it doesn't serve any purpose

in terms of debating the law. What he believes is irrelevant, really.

What matters is whether or not he accepts our view that the door will

now be wide open for deunionizing through the mechanism commonly

referred to as double-breasting.

I think this morning we

cited the cases. We defined clearly the tests that the board has been

required to make, and we cited clearly, I thought, the tests that will

now be required. We gave examples of situations where before now, under

the previous test, deunionizing through the double-breasting mechanism

was precluded, and we gave at least one example where it was allowed

under the previous test. We made the point that the test is now

different, less onerous, and I think we made the point that the

section

actually does allow for deunionizing through the establishment of

non-union companies by union operators, through a variety of

mechanisms, whether it is the mechanism of taking two principals who

own a union company and having one of those principals establish a

separate non-union company using the same facilities, or whether it's

by a husband and wife who own a union company having one of the

partners in the marriage establish a non-union company, which is now

going to be legal, or whether it's a variety of other mechanisms, the

most significant of which includes the possibility of having separate

and different financial control in each of the two companies.

All

we have been trying to establish through this debate is that the

minister's assertion that double-breasting will not be allowed is

incorrect. It really doesn't matter what the minister believes; all

that matters is what the words say and how the words are interpreted.

We have sufficient case law in British Columbia alone, if not in the

United States, on how these words are interpreted. We know from that

that these words will be interpreted to allow for the establishment of

nonunion operations operating in parallel with union operations. For

what purpose? For the purpose of escaping the responsibilities under

law that go with the fact that a collective agreement is in place or

that a certification has been achieved.

What do we get in

turn? We get no arguments of any consequence other than assertions,

beliefs, and red herrings. I suppose the red herring is a confirmation

of what we're saying. The minister's red herring was: "There's no law

that I know of" — if I'm quoting him correctly —

"that prevents people from going out and organizing." The logical

conclusion you reach from that statement is that yes, in fact, these

non-union companies operating in parallel and in tandem will be allowed

to operate, but there won't be any law stopping trade union organizers

going out and organizing them. We know that there's no law stopping

them, and we would hope that they would be successful in their efforts

if that's what the wishes of the persons in the units are. But that's

not the issue. We're not talking about whether or not they have the

option, ability or legal right to organize; we're talking about the

fact of the possibility under the new law of the establishment of a

parallel, non-union company which is set up for the purposes of

escaping the collective agreement in place with the first company.

suppose we've made the point. I know the member for Esquimalt-Port

Renfrew (Mr. Sihota) wants to make some additional legal points, and I

think that would be useful at this time. I want to conclude my comments

on this

section by saying simply that the minister has not made a case.

The minister has not persuaded me or, I suspect, anyone else in this

House that double-breasting will be prohibited, as he stated in the

introduction of first reading in respect of the original bill.

Therefore I think we are into the situation where.... We will get on to

section 29 a bit later, perhaps this afternoon, and we will have some

of the same kinds of arguments but of a different nature.

are into a situation where, as the member for Vancouver East says, the

potential for the deunionizing of industry in this province is going to

be wide open. The minister may assert that that is not the case, but I

can say, having I think made the case this morning, that in fact the

member for Vancouver East is absolutely right. It will not happen

across the board, and I made that point this morning as well. It will

not happen in every instance. There will be certain circumstances where

the invested capital is so great, and there is a desire not to move to

a lease situation, so the particular contractor will say, "No, I am

going to stay with my current financial structure," and not opt to

evade

section 37 of the Code — of the new act. That will happen.

[ Page 1580 ]

But

countless contractors will be compelled, because of the price squeeze

that is going on, in forestry in particular at the moment, to go to

their lawyers and their financial advisers and ask them together to

define a way they can escape

section 37 so they can go out and hire

from that pool of unemployed people which has been deliberately

established by policies of governments in North America and Great

Britain over the last few years in order to accomplish this very

purpose of deunionizing and establishing the beginning of a downward

spiral in the wage structure in our society, which as Wood Gundy

economists indicated the other day has already begun to happen, where

the wages in fact have already begun that downward spiral. It will

continue but it will be accelerated as a result of these changes.

I also said this morning, clearly from the 1984 government economic

agenda, which I quoted this morning, it is clear that that is exactly

what the government intends. I wish the minister would just say so,

rather than trying to hide the issue by saying things that are not

true. I'm sorry; if that is unparliamentary, by saying things that are,

in fact, just not the case.

MR. SIHOTA : I want to

explore a couple of things with the Minister of Labour as we go through

this section. Again I am caught in the same dilemma, that I am sure the

minister will say that he is not a lawyer so he cannot answer all these

questions. I will probably try to quote some cases and the minister

won't be aware of those cases, and it will probably dissolve into the

same type of debate that we have had so far every time I get on my

feet. But I am hoping again that this won't happen this time. The

minister is a little bit more prepared on this

section than he was on

the last ones.

My thought is simply this. The minister says

that this

section will not allow for double-breasting. Originally, as

the member for North Island said, the words "operational" and

"deliberate" were incorporated into the section. They have now been

taken out pursuant to the amendment, so the word "same" appears before

"control and direction." Under the existing — if I can call it that —

section 37, before this one passes, the word "common" appeared. Would

the minister explain to me the reason for substituting the word

"common" and replacing it with the word "same?"

HON. L. HANSON : Well, I think that first of all I would like to speak just a minute on my critic's presentation.

You know, the arguments and the case arguments that are being presented —

I have no doubt that the member opposite has read all of those, and

certainly I don't dispute what he is reading from in the case laws. I

am simply saying that we have produced a new Industrial Relations

Council and that we have given them new statutes to govern disputes

that may come about as a result of it, and that the arguments as far as

case law are concerned will certainly be made before that board as and

when the cases come up. I would suggest that that is where they should

be. I think where arguments of precedent and all of the others will end

up is in front of the Industrial Relations Council.

The

member from Esquimalt asked why we changed "common" to "same." I think

we said very clearly in the opening statements that we do not want to

allow employers to avoid their bargaining responsibilities as a result

of what I guess is commonly known as double-breasting; but we do want

to allow — which in some cases is not allowed —

those same employers to go into a business that may be related but does

not take away the bargaining gains that the collective agreement has

given to their employees in performing their work. By changing "common"

to "same, " we think we have allowed those people to start up their new

business. Certainly we have allowed those employees in the new business

to become unionized, as is their right, but we have also protected the

bargaining rights and the gains that the employees have of that

original company.

[3:00]

MR. SIHOTA : Let me just make sure that I understood properly what the minister is saying. He said, if I heard him correctly — and tell me, Mr. Minister, if I am wrong —

that by putting in the word "same," you are of the view that a company

can be engaged in a related field but still allow the employees to have

the benefit of the collective agreement. Is that what you were saying?

Maybe I didn't hear you properly. Is that what the minister was saying?

HON. L. HANSON :

I was saying that in this legislation we are trying to allow an

employer to start another business, but we're not allowing that

employer to take the business that his employees are doing under the

collective agreement in that company and lose those benefits that they

have gained through their collective bargaining process. We're also

saying that the new company, if it is found to be a common employer,

will be found to be doing the same business that they were doing under

the other one, and the employer would therefore be avoiding his

collective bargaining responsibilities.

All we're saying is

that we are giving the employer the ability to free up some capital to

start another business, as long as it doesn't take the business away

that its collective bargaining unit in the other business has gained

the rights to and the advantages of.

MR. SIHOTA :

Perhaps the minister can explain to me how he comes to that conclusion,

because my reading of the language doesn't appear to allow that. Could

the minister elaborate on that point and tell me how he arrives at that

conclusion?

MADAM CHAIRMAN : Shall

section 25 as amended pass?

MR. SIHOTA : I was waiting for the minister to reply to my question,

MADAM CHAIRMAN : I'm sorry. Did the minister want to reply?

Would the member for Esquimalt-Port Renfrew like to continue debate?

MR. SIHOTA :

I want to ask the minister again: could he explain to me how he comes

to that conclusion? It strikes me, on my reading of that section, that

that isn't what it says. But I want to understand, from the minister,

upon what basis he arrives at that conclusion. It's not difficult. It's

not a skill testing question; it's a very basic question, Mr. Minister.

How do you arrive at that conclusion?

MADAM CHAIRMAN : Hon. member, perhaps I should just point out that you can ask the question but you really

[ Page 1581 ]

can't insist on an answer. The minister does not have to answer. So if you would like to continue...?

MR. CLARK : Maybe I can try, Madam Chairman. Consistently, clause after clause, the minister said: "This is what we think it does" — an assertion of opinion —

and we've been giving evidence that we think proves otherwise. In this

one in particular, which is the most important clause for the

construction industry in terms of the change, we have made a legal

interpretation. All we're asking, Mr. Minister, is that you simply

explain or justify your

interpretation. Give some explanation or

justification for your

interpretation that proves we are inaccurate in

our

interpretation.

HON. L. HANSON : I've already

explained the intent of the legislation; I've already said that this is

what we see happening. What you are giving me are arguments that should

rightly be placed before the Industrial Relations Council, who will

make the determinations.

MR. GABELMANN : It's difficult to restrain oneself — a nd I'm going to try —

in the face of that kind of provocation. The comparable ministerial

answer in any other legislative activity in this House would be, when a

question was asked about what certain words in a bill mean: "Oh, it's

not for me to say. It's for the courts to determine. The courts will

tell us what the words are going to mean." We don't get that kind of — and I'll leave the adjectives out —

response from other ministers when they run their bills through the

House. They say: "These words mean these things, and that's what we

intend." I remember that that was very clear during debate on

legislation relating to motorcycle helmets. The Attorney-General said:

"This is what we intend it to mean." There were occasions when the

court said that it didn't quite mean that, or it couldn't have that

effect. But at least we got answers, and we agreed on that issue with

the minister who handled the bill. At least we got answers saying:

"This is what I intend it to mean."

To go the next step, in

many instances the minister would back it up by citing other

references. But what we get here from this minister is: "Oh, it's the

intent of the legislation; this is what I want to have happen." Then

when we get into the important issue of trying to determine what the

words actually mean, the minister's refuge is: "Well, that's for the

Industrial Relations Council to decide."

The Legislature

governs; the courts, and in this case the IRC, interpret. We have a

responsibility, all 69 of us, to govern, to legislate, and we'd better

be bloody well sure we know what we're legislating.

MR. JANSEN : Order!

MR. GABELMANN :

It's been used in this House on many occasions by members on both sides

of the House and repeatedly over the years. It's an accepted British

term, and those of us from that part of the world use it frequently. It

shouldn't be of any concern to the member for Chilliwack, who is not in

his chair.

MR. MILLER : And very seldom on his feet.

MR. GABELMANN :

Our job is to legislate, and we should know what we're legislating. We

say, and I think we have demonstrated, that we are legislating a law

which allows union companies to escape their certification by

establishing dummy companies, through their spouse, their principal

partner or one of their senior trusted staff, or using various other

financial escape mechanisms. We've demonstrated that. The law is clear.

It used to be that the board had to have a series of criteria all met

before they could allow for the escape. Now there is a series of single

criteria. I think we have made the case, and it doesn't need to be made

again. I don't think we need to delay this committee on this issue, so

we don't need to go through the cases again — I would hope. They're clear, they're unequivocal. The legal opinion is absolute.

The former deputy minister adds another voice to this debate, another, I might say — and I think he would understand what I am saying when I put it this way — right-wing management voice. That's his background —

right-wing in the Scottish Presbyterian sense, if I can try to relax

and cool this debate down by injecting the odd bit of levity. But the

issue is not light. The issue is not of that kind; it's a serious

issue. The minister cannot stand in this House and expect this

section

to pass by simply saying: "Oh, it will be up to the IRC to determine

whether or not double-breasting is going to be allowed under this

section." It will be allowed under this section, and the minister has

not demonstrated to the contrary.

If this were a court of law, he would have lost his case.

MR. SIHOTA : With costs.

MR. GABELMANN :

Would the minister tell us what he intends the

interpretation of the

Industrial Relations Council to be in the cases that we have cited?

Madam

Chairman, I thought this

section was going to be finished this morning;

I thought it would be finished by 12. I then thought we would be a few

minutes this afternoon, because two of our members had not had an

opportunity yet to participate in the debate, and wanted to. I had

finished, as far as I was concerned, but.... I have no desire or intent — nor do any persons on this side of the House —

to delay this legislation unnecessarily. We've tried to be constrained

in our remarks; we've tried to limit them. We have not taken the

opportunity to read endless cases, to quote from them excessively.

We've not done that kind of thing. We have limited our debate, but we

cannot let go a

section of the consequence of this one without having

some clear indication from the minister that he understands what he is

legislating. We must get that clear.

MR. SIHOTA : I'll defer to the minister. Was the minister preparing to get up? No?

mean, is this democracy? We're sitting in this House dealing with

legislation, and again we're dealing with one of the more significant

sections. I won't call it pivotal again, because I left that for the

privative clause. We're trying to get some understanding of where this

government is coming from on some of these sections, to get some

explanation not of what you intend, Mr. Minister.... If you wanted to

circulate those sheets that you've got there or, Madam Chairman, if the

minister wants to circulate that.... We can read those too, but we're

trying to probe a little bit further, so that those of us who take our

responsibilities in here seriously have a better understanding of this

legislation and can make judgments as to whether or not our

interpretation is correct or incorrect.

[ Page 1582 ]

I'd be the first person to sit down if the minister could show me where it is that my reading of this

section or other sections — because I haven't been talking on this one in depth —

or how it is that my

interpretation differs from his.... If indeed his

was superior to mine, that would be the end of the day. But it's

frustrating to even get into that kind of position, when the minister

sits there silently; he won't answer one detailed question that's being

put.

I don't want to bring out all the cases. I've got some here that I can cite that deal with successor rights —

all sorts of cases, Madam Chairman, that deal with successor rights and

that really try to fine-tune the legislation. Indeed, it is difficult

to understand why the courts or the Labour Relations Board allow

successor status in some instances and at other times don't, and why it

is that certain elements are deemed to be common and others are not.

Months from now, if this draconian legislation ever passes without

amendment, clearly someone is going to be sitting down in front of a

counsel and saying: "Well, it used to say 'common' and now it says

'same.' There must have been intent on the part of the Legislature to

bring about some type of change." Because to the layperson — and I can put aside my legal expertise for a moment — they'll look at it and say: "Well, 'same' and 'common' — there really doesn't appear to be a major difference between the two words."

think if you look at it that way, that's quite correct, and it almost

seems somewhat ironic that we would be debating the essence of the word

"same" versus the essence of the word "common." Yet if you put on a

legal cap, and if you realize that these types of matters are before

counsel or will be in front of counsel if this legislation ever passes,

then somebody.... Let's face it, there have been a lot of cases on

these types of sections, so it's not beyond the structure of

imagination to suggest that somebody is going to be looking at the

difference in language.

[3:15]

Somebody soon, because of the number of cases.... I was looking at

the number of cases this morning between 1977 and '81, and they're

listed just by numbers running across the page. I would venture to say

that the whole list was about an inch and a half thick, and maybe there

were about 20 cases per line, so you can imagine that there are a lot

of cases that deal with this very significant issue. So somebody

somewhere someday soon, if this legislation passes, and later, if it

doesn't, is going to be wondering why it was that the Legislature chose

to replace the word "common" with the word "same."

Funnily

enough, that has significant legal implications. Once again, the

minister always gets very angry when I try to impose my legal knowledge

onto the debate, so I'll again stray away from that. But someone is

going to be wanting to interpret it and to find out why the Legislature

made those changes, and they're going to come back to the debates in Hansard , because — I hate to tell the minister this — from time to time lawyers will go back to the debates in Hansard to determine what the intent of the Legislature was. In some courts and tribunals, the debate in Hansard is not admissible evidence, but in other situations it is.

For

those situations where it will be, you know what they're going to see

when they start reading the transcript? They're going to see a number

of people asking the minister over and over again: what was the

government's intention in changing this section? What was the intention

of going from "common" to "same"? Not the intention in the way that

appears in those draft prewritten comments that the minister has, but

in terms of the real legal meaning of it, from the point of view of

successor and double-breasting and deunionization. I often think

double-breasting is a very inappropriate word; we should be talking

about deunionization, because that's what this does. There is going to

be a whole series of comments from people from this side of the House

trying to probe the minister to find out why the change was made, and

there's going to be silence from the government.

What type

of leadership is that? What type of leadership with respect to this

legislation, which is radical, as I've said many times, new, a total

departure from what we've had in the past? What type of leadership is

the minister demonstrating when he fails to answer even the most basic

question as to government intent —

the most basic question that begins to probe and scratch a little bit

below the surface of that superficial comment that the minister has

before him, time after time? What type of leadership is that?

The

minister is not only the author of this legislation, but for the

purposes of this debate he is the interpreter of this legislation. I

really do not think that those of us on this side of the House who have

spoken have gone too far in asking some very basic questions. I agree

with the member for North Island (Mr. Gabelmann), because I can tell

the minister, and if he wants I can spend the whole week — and so could the rest of us —

talking on this

section alone. We could read in case after case after

case, and ask the minister very pointed questions on it. But we don't

want to do that. We just want some clarification for the record.

the way, I don't mean that as a threat. I don't want to get into that

game, and I don't want to change some of the progress that all of us

have made in terms of trying to improve the climate in this House.

Perhaps my comments now are a little bit contrary to the grain of those

efforts, but they are certainly not inconsistent with the frustration

we feel on this side of the House when the minister refuses to answer

questions.

This is out of the drama of question period: the

press has drifted away, the cameras are gone and we're into the

monotonous discussion of a section. It's not the time to play games.

It's the time to answer some questions with a little bit of diligence,

with a little bit of intellect, with a little bit of foresight. But

we're not getting that from the minister, particularly on this section.

I'll

give the minister a break. I won't deal with the question for the time

being, with respect to saying "common." Let's deal with another portion

of this section, and let's hope that this time I might get an answer

that explains what the government's motivation was in making the

amendment.

The word "deliberate" has been removed from this

section. The clause now has the phrase "attempt to evade." As I

understand it, Mr. Minister, and please correct me if I am wrong, the

decision to eliminate the word "deliberate" was there simply because

one did not want to get into questions of intent, or mens rea ,

as we call it from time to time in court. Yet you've left the words

"attempt to evade" in there. Does the minister not consider that the

element of intent remains when you use words like "attempt to evade"?

Does he not agree that he's failed in trying to remove the very thing

that he said he intended to remove from this section? May I please have

an answer to that question.

HON. L. HANSON : We keep going on. I keep getting criticism for not answering the question. I have to say to the

[ Page 1583 ]

members

on the opposite side that I've explained the intent of the legislation

about 300 times. Because you want to make a case that should rightly go

before the IRC, be my guest. Turn up there. There's no question of the

intent.

I think the question was that we've removed the

word deliberate with the amendment to this section. I think that there

was some concern expressed, and we had heard it a number of times, that

the word deliberate was too onerous to require proof that an attempt to

evade collective bargaining responsibilities was in fact deliberate.

Deleting the word deliberate, we believe, reduces the subjective

element of the legal test to be met by trade unions attempting to

protect their bargaining rights. I guess the concern there is that if

there is an attempt to avoid their bargaining responsibilities, that

shouldn't be allowed. It shouldn't have to be proven that the attempt

was a calculated or deliberate one.

MR. PETERSON :

I've been sitting here listening to this debate, and I really wonder if

there should be a prerequisite for some of the members of the

opposition to have their hearing checked out, because I think our

minister has been giving some excellent answers. He has been telling

you what the intent of

section 25 as amended is, but obviously you're

not listening. Perhaps the reason you're not listening is that when you

stand up and make a statement, you quickly run into a huddle and not

listen to what the minister's saying. Sit at your seats. Listen to what

he's saying. Understand it.

MR. MILLER : You explain it.

MR. PETERSON : I thought he's been very clear on the intent.

Interjection.

MR. PETERSON : One other thing I must.... Just shut...! Excuse me. Just listen for a moment — I withdraw that remark.

MADAM CHAIRMAN : Thank you, hon. member. If you would address yourself to the section, please.

MR. PETERSON :

Yes, I will,

section 25. Somebody talked about leadership. I think this

minister has shown excellent leadership with regard to

section 25 and

with regard to the whole bill. I really take issue with the member for

Esquimalt-Port Renfrew (Mr. Sihota) saying he lacks it. I think he

deserves full credit for listening, for answering, and I certainly

support him.

MR. BARNES : I just wanted to reflect on

the evolution of this document to give the assembly an opportunity to

gather its thoughts on the intent of

section 25 as amended. Perhaps the

minister may, upon reflection, at least express his personal opinions

as a lay person and a new member to the Legislature. Notwithstanding

the responsibilities the minister has as Minister of Labour to

interpret his legislation in as close to legal terms as possible, we

realize he is not a lawyer and certainly it probably gets a little

intimidating when he has such expert analysts as we have on this side

of the House who are asking him questions, such as the member for North

Island (Mr. Gabelmann) and the member for Esquimalt-Port Renfrew (Mr.

Sihota) particularly, and to some extent other members as well.

certainly don't intend to deal with the legalities of the section, but

I question whether or not the minister is really in a position to

interpret all elements of this bill because, as I said on the principle

of the bill when we were in second reading, I believe that he is the

messenger of a bill that was constructed by the Premier. Perhaps as a

sort of an analogy to the concept of double-breasting the minister

might wonder if there is a form of double-dealing going on with respect

to this bill.

I hope I'm not being too far out of line,

Madam Chairman, in suggesting this, because what I'm really saying is

that he was also a commissioner of sorts who did conduct hearings prior

to the introduction of this bill, pretty much along the same lines as

the present commissioner doing a study on education, Barry Sullivan.

Mind

you, we don't hear very much about that right now. In fact, Bill 20 has

already passed, received royal assent and is now law. There is some

concern with respect to this bill and the minister, and there seem to

be some parallels to be drawn. The difference, perhaps, between himself

and Mr. Sullivan is that Mr. Sullivan is not going to have to come in

here and answer for the faults of a bill, because what he is doing now

is after the fact.

As we found out in question period in

days just past, the Minister of Labour was conducting his hearings

while the Premier was conducting hearings as well, privately. In that

sense, I think from a personal point of view the minister may feel that

he has personally experienced what it is to be a victim of

double-breasting or double-dealing or deception — whatever you want to call it. I wonder whether he is in fact the true architect of Bill 19.

this is one of the problems that we have on this side of the House. We

are trying to at least ensure that the government is prepared to state

its intention, notwithstanding how it may turn out when Ed Peck is

addressing complaints — or

the courts or wherever the issues may arise. What is the minister's

position? This is the one opportunity where the minister has a chance

to indicate philosophically what the intent of the

section is as he

sees it and not to be concerned with getting into a fight with these

legal beagles on this side of the House who are experienced in these

matters. I think that the minister is giving it a real good try as a

new member in this House.

He has one of the toughest

portfolios, and if he hasn't begun to grey, he certainly will be before

he is finished his tenure in this Legislature. But there has never been

an issue more vital or a statement that means more than the statements

that the minister makes now with respect to the future of

labour-management relations in this province. As I have suggested in

previous comments, I think this House and some of the comments that we

are hearing by members on both sides of the House indicate that we are

going to be getting to some very elemental differences in terms of the

direction that this province will be taking in the future.

What

we are really saying is that there are some philosophical differences

in our style and our approach. I think that the member for North Island

is quite correct in saying that the

section is not properly entitled;

at least this double-breasting concept is probably inappropriate. I

think it ties in with a philosophical direction to transform the

climate in the province in terms of the marketplace — the industrial community: workers, capitalists, investors and the whole milieu — being changed to something else.

[3:30]

[ Page 1584 ]

are not quite sure what that agenda really is, but we suspect that the

government fundamentally believes that there has to be major changes to

what is existing today. The problem is how it will come about. Will it

come about through a process of consultation, of bargaining in the

traditional, democratic ways that we have practised in the past? Or

will it be by decree?

That is really, I think, where we

have to begin to define what we are talking about, because the Premier

is now saying that he was elected to govern. That is a tough one for us

to argue against. That, in fact, is true. But the point is, to what

extent does a government have the right to impose without consultation?

How obligated is that government to live by the platforms that it was

elected on? In other words, in a general election the government

campaigned on certain policies and canvassed the voters. The voters

believed that certain things would happen.

But I don't

recall at any time during the last campaign where the now Premier of

the province said that he would transform the methods of....

MR. DIRKS : On a point of order, I appreciate the dialogue that is going on, but I wonder if he could please get back to

section 25.

MADAM CHAIRMAN : Thank you. The point of order is well taken.

MR. BARNES :

Madam Chairman, it is quite well taken. I was trying to point out the

difficulty that we have in attacking a minister on this

section because

of his failure to satisfy questioners with respect to the intent. We're

somewhat hesitant to go after a person who is obviously doing his best,

but the fact that the Premier installed him in this position

double-breasted the minister in the first place by telling the minister

that he should conduct hearings, hearings that really were a sham

because the Premier himself was conducting his own study and designing

his own legislation. This is why I'm saying that the ironic part of

this thing is that the minister means well and was shocked to find out

that all that work he had committed himself to was really not relevant

in the final document. This is the problem. We want to attack this

minister for his failures, not for the failures of someone else. He

can't defend someone else's faults. I'm sure the minister really

doesn't know how to defend this section, because it's not his.

think the minister wanted to do something fair, something constructive.

I think he wanted to make a contribution to this province. I think he

and other members of that cabinet are shocked by what is going on, just

as they are shocked by the writ. Even the Premier himself is trying to

wash his hands of the writ to muzzle people in this province. So we

want to know who's running the store. What's going on over there? It's

very difficult for us to take seriously the ability of people in their

positions to do their jobs. We believe there is double-breasting going

on by the Premier in the whole cabinet.

I think that's the end of my comments.

MR. JANSEN :

I think the member opposite made a comment that we are philosophically

different, and indeed we are. But I think we are united in the view

that we are living in a democracy and that we believe in freedom of

choice regarding whether or not we wish association or dissociation.

heard some comment that non-unions are second-class citizens; that

people who are not union members aren't as well skilled or seem to be

lesser people of our society than those who are union members. I don't

subscribe to that view, and I don't think most of us here do. In fact,

we feel we're all equal and have a right to associate or dissociate.

What

is at question here is the right of a company to have democracy in its

workplace, and we exercise that right. If that right is not being

upheld, then we have a right to appeal to the council, which is

democratically structured. We also have the right for a union at any

time to become organized through application, through an oral process.

If this government wanted double-breasting to take place, the simple

resolution would be to withdraw the entire

section 37. It is not the

intent to allow double-breasting. We are allowing the playing field to

be levelled. We're suggesting that there is opportunity to change and

to allow the companies to consider the question democratically.

We're

listening to so much irrelevance here. We're listening to so many

things that don't really pertain to this particular section. This

government is changing

section 37 and allowing a decision.... We're

adding retroactivity, which has not been in place in this

section

before. And we're adding that the council can determine whether or not

there has been an attempt to evade collective bargaining. I don't

understand how the members opposite could argue with that particular

section. I would encourage us to concentrate our debate on the aspects

section 25 and the amendment to

section 37, and request that we

proceed to deal with it in an appropriate way.

MR. MILLER :

We're spending a considerable amount of time on this

section because it

is of considerable importance. In fact, it has caused a fair amount of

controversy in this province because of the intent or perceived intent

by unionized workers in the construction industry. If the member

opposite thinks we're simply going to let the thing go without trying

to ascertain what the government's intention was in bringing in this

clause, then the member is mistaken.

I would point out just

a couple of recent happenings. First of all, the Arbitrators'

Association of British Columbia today flatly condemned Bill 19 and

suggested that the matter be hoisted. They cite a number of very good

reasons, one of which is that they don't believe the government fully

understands the complexities of collective bargaining and the

relationship between employers and employees; that they perhaps bring a

bias to the scene, and I don't mean that unfairly. There is a great

deal of danger involved in proceeding with a bill without these

questions being answered.

A previous clause we debated in

terms of the employer's ability or right to interfere in the organizing

process. There's been considerable debate in this House. We tried to

extract from the minister what their intention was, and we had a long

debate. The logjam was finally broken by the Minister of Social

Services and Housing (Hon. Mr. Richmond), who complained that he

couldn't talk to his employees and that perhaps that's why we needed it.

Here

we have a report again in today's paper where an employer is suggesting

that there should be incentives offered so that they won't join the

union. That was almost flatly denied, that that shouldn't be the case

under that previous amendment, and now we're starting to see the thing

creep in. So, Mr. Member, we're doing ourselves a service, we're doing

the people of British Columbia a service, by trying as

[ Page 1585 ]

best

we can to extract from the minister not only what his intent is in

introducing a clause but what the practical result of that clause will

be. I see nothing wrong with that. I think this is obviously the forum

to do that in, and I would suggest that the member should simply have

some patience.

MR. CLARK : I think I'm going to wrap up this section, unless I get mad.

would like to comment briefly, for the member for Chilliwack, because

in a serious way this clause really has nothing to do with democracy in

the workplace, unless you think that by democracy you mean that the

owner of a unionized company should be free or allowed to create a

non-union company in the same business to compete against his own

company. I mean, it really doesn't.... The purpose of the

double-breasting clause originally was to prevent that from happening

so that workers could decide to join a union or not. But if they

decided to join a union, they'd be protected by a circumvention of that

collective agreement from spinning off another company.

There

is an amendment to the existing clause. The minister says repeatedly

that it's not his intention to allow double-breasting. The question has

to be asked, and we keep asking it: well, why change it then? If it

didn't allow it now —

and it does actually allow a certain degree of double-breasting; it's

very difficult to prove otherwise.... But if the minister's intent was

not to change the existing situation, then why change the law? The only

possible explanation is to make it easier to do that, and I don't think

that has anything to do with the question of democracy.

Now to the minister. Debates in this assembly —

and the member for Esquimalt-Port Renfrew (Mr. Sihota) has indicated

that they aren't necessarily used in courts of law.... But I would like

to say that debates in the assembly are currently used extensively at

the Labour Relations Board. They read them. They pore over the original

Code and the amendments at various stages — and, I'm sure, these debates here in committee in particular —

for some clue as to how to interpret the legislation, in terms of the

intent of the government and, more importantly, in terms of the

minister's

interpretation of the words, what they mean. It's absolutely

critical to the future

interpretation of this legislation. That's why

we on this side feel so strongly about it, and that's why we're

attempting to elicit a response other than the minister's response,

which is that this should be decided by the new Industrial Relations

Council. It is very important that we get some....

So I

want to start off by asking just a simple question on a set of facts.

The Pennyfarthing case, which I'm sure the minister is aware of —

we've talked about it in this chamber.... The situation there was that

the developer, Pennyfarthing, was owned 40 percent by a unionized

company, Stevenson Construction. The unions attempted to have

Pennyfarthing declared a common employer with Stevenson Construction,

and thereby the collective agreement that prevailed at Stevenson would

also apply at Pennyfarthing. That was rejected by the labour board. I

don't think we need to go through any more of the facts in that case,

but the reason it was rejected was that it was only 40 percent owned.

That financial interest was not high enough to be perceived to be

direction or control.

We now have a situation where.... At that time, all of the experts agreed,

I think — and still agree — that if it were 50 percent owned by Stevenson,

the case would have succeeded. I want to ask the minister: under the new language,

under those sets of facts, is it your

interpretation or your intent with these

changes that, under a set of circumstances similar to Pennyfarthing — only

Stevenson, in this hypothetical case, owns 50 percent...? Under these words,

is it your

interpretation that that company would then be declared a common

employer, and in fact the collective agreement at Stevenson would have applied?

HON. L. HANSON : Just before I go to that, I'd like to respond a bit to the member for Vancouver Centre.

First

of all, I think I'd like to acknowledge that your very civil approach,

at least when you started, was much appreciated, because I do

understand that.

[3:45]

MR. BARNES : You say "to start."

HON. L. HANSON : Well, I think maybe some of the remarks got you a little fired up.

keep debating what is the intent of the legislation, and I think that

I've detailed the intent many times as I've stood up. I can say it

again, but what seems to be the biggest difficulty is that what we

intend to do, and of course I've.... Anyone who would believe that I — as a layman, if you will, who has come into the ministry —

don't get all sorts of advice from various people.... I think that the

members opposite would acknowledge that they also get advice from

people for various things, and of course when you get this advice, you

make your final determination as to what you feel is going to result

from this. I've explained that a number of times. I've explained that

it's a philosophy of the government. I don't dispute your right to say

that the words as you see them don't express that intent. I believe

that they do express that intent, and I'm quite comfortable that they

do. I'm quite comfortable that there isn't a situation, as the member

suggested, where I'm being double-breasted. I'm confident that there

wasn't that situation.

MR. BARNES : I don't mean the suit.

HON. L. HANSON : No. I go back as far as when double-breasted suits were the only thing worn.

a very clear, simple statement, we don't feel that the work of the

bargaining unit should not be protected. It should not be able to be

performed by a parallel non-union operation. I've gone over this

wording hundreds of times, and it's very clear to me that the

adjudicative process which we put in place.... If I as Minister of

Labour were doing the adjudication, I guess then we wouldn't need an

Industrial Relations Council. It seems to me that that's where the

adjudication lies, and you are quite right that when a question comes

up before that council, they will get some guidance from the speaking

that goes on within this House as to the intent of the legislation.

The

intent is clear. I'm not a lawyer; it's certainly clear to me. It

simply says that we don't want to allow the work of a bargaining unit

to be performed by a parallel non-union operation. It's not in the

wording, and it's not our intent to allow that, and I am absolutely

sure that it won't allow that. But we have seen cases where people who

are in a business want to open up another business that's not taking

away from that bargaining unit or the rights that those people have

[ Page 1586 ]

achieved

in that bargaining unit. They want to set up another business, but they

feel that that's an impediment to doing that. I don't think that all

people may look at it as an impediment, but some people do. Again, I

stress that there's nothing in this

section that suggests that the

union shouldn't go out and organize that new entity if the employees of

that entity feel that that's how they want to conduct their relations

in the workplace, and we'd hope that they would be given that

opportunity. We'd hope that they would be given the opportunity to

decide not to do that, if they didn't want to.

As I said,

I'm a layman, and it's certainly clear to me. I guess if we get a lot

of legal people standing up and arguing back and forth.... I've heard

some very bizarre cases, if you will, trying to be made before courts

of law by legal people. That's only a layman's opinion; I'm sure it's

not their opinion.

MR. MILLER : What do you think is going to happen to the council?

HON. L. HANSON :

I think that through the process of the adjudication of the new IRC

there will be a development of a very comprehensive direction for the

people out there on what this legislation is doing. Those policies, as

they are established by judicial decisions, if you will, will show that

the intent that we as government have put in this bill will in fact be

there.

The question that the member just asked me — you know, the Pennyfarthing site and so on —

will I think be a very interesting one. Quite frankly, my personal

opinion is that it will be decided the same as it was the last time.

But that will come forward; that's the purpose of the IRC. Again, I'm

not the commissioner or the chairman of a committee of the Industrial

Relations Council, and I think we're giving here in the legislation a

very clear intent. I think we're telling them exactly what we have

intended by this legislation, and I think that's what legislation is

for.

If there wasn't the requirement of

interpretation of

legislation.... I have to point out that the

interpretation of

legislation always relates to specifics and that the circumstances of

one decision don't always completely match the circumstances in another

case. There's always a variety of things that are considered. There's

no question that decisions that had been made by the courts affect

other decisions as they go along, and I've heard lawyers making

reference to a case: "This was proved in that case." I've also heard a

judge say: "Yes, but I don't agree that that decision there proves your

case, because of this, this and this." That's a legal argument that

continues to go on. That's why we have an IRC. But I don't think

there's going to be any difficulty for the new IRC to determine the

intent of the legislation, either by the wording or by the debate that

we've been having.

MR. CLARK : It's clear, of course,

that the IRC will do a lot of adjudication of disputes, but what we're

trying to get here for their future guidance is.... The minister is the

author of the bill, and the bill is supposed to reflect the minister's

intent and

interpretation. What I'm trying to get is a little more

information about how the minister thinks certain things should be

interpreted — how he intends this legislation to be interpreted — to give guidance to future adjudication of disputes.

AN HON. MEMBER : He can't.

MR. CLARK :

That's exactly what we're here for. Yes, he can. The member for

Chilliwack (Mr. Jansen) shakes his head. What we are here to do is not

to pass laws that say: "We're trying to do this." We're here to debate

it so we can find out what the

interpretation is that the minister

would like to see made, so we can find out what exactly and precisely

this law or this

section is intended to do. Not just a blanket

statement but

interpretation is very critical when it comes to labour

relations matters, and it has been looked at historically in this

province.

Let me ask you this question in a little broader

sense; it's a question I asked earlier on Pennyfarthing. The old test

for common employer, a major test in many respects, was the financial

test. The Pennyfarthing decision clarified that financial test by

saying that 40 percent wasn't enough; 50 percent was really the test.

Is it the minister's

interpretation of this

section that there will

still be a financial test and that that test will still be 50 percent?

A major test in determining double-breasting in terms of dealing with

the question of control or the question of ownership or direction....

Is it the minister's

interpretation that 50 percent financial interest

is the critical threshold?

HON. L. HANSON : Again, I

say that's why we have an IRC in place. But there's no question that

financial aspects of the situation will be considered. To say 50

percent is the right figure, to say 40 percent is the right figure, I

don't think is the determination.

Let's say there is a

company and let's say that somebody owns 40 percent of it. Let's say

the other 60 percent is owned by 100 people. That circumstance is quite

different than one company owning 40 percent and another company owning

60 percent, if you understand what I'm saying. So I can't say to you

that 50 percent is the test, because the circumstances of whatever

happens will have to be determined by the Industrial Relations Council,

and they will determine how a financial interest determines their

ability to manage or run or whatever.

MR. CLARK :

Very briefly, then, to the minister. In your hypothetical example where

40 percent is 100 percent owned by one person and the other 60 percent

is owned by a wide range of people, if that was a spinoff of a

unionized firm and it was done so to essentially subvert the collective

agreement, is it your

interpretation that that is, and would you like

to see the case be construed as, double-breasting, on the facts that

you set out?

HON. L. HANSON : Well, you know, I think

in the wording that the hon. member presented to me, if I heard him

correctly, he said that if it was proven that it was an attempt to

avoid.... Well, I think it's quite clear in the legislation that an

attempt to avoid their bargaining responsibilities as related to a

collective agreement would bring forward that sort of decision that

says they're common employers. But again, Madam Chairman, that's why we

have an IRC in place, to determine the facts in the case. When there is

a proof or a decision or a situation that the IRC sees as being a loss

or an attempt to subvert, or at least to get out of the

responsibilities that have been faithfully and honestly bargained and

put in place by a collective bargaining agreement, that shouldn't be

allowed. We've stated that a number of times — that the work of the bargaining unit should not be able to be performed by a

[ Page 1587 ]

parallel non-union operation. I think that intent is simple and clear. It certainly is to me.

[4:00]

MR. CLARK : I'll just wrap up briefly. Didn't I say that a while ago?

AN HON. MEMBER : It's a good line.

MR. CLARK :

Well, we on this side of the House feel very strongly about this

section of the Industrial Relations Reform Act, Bill 19. We feel very

strongly because this

section and

section 29 — and we'll have a similar debate, I think, on

section 29, which deals with successor rights — are two sections which we believe very strongly are designed, or if not designed, will have an unintended effect — I find that hard to believe but they will — which will deunionize the construction industry.

There's

no question in my mind that currently double-breasting takes place, and

currently it's very difficult to prove, and currently the test is very

hard. These amendments are dramatic in terms of the impact they will

have. They're dramatic because of the simple changing of "and" to "or,"

which dilutes it; and they're dramatic also because of the question of

proving intent. It is extremely difficult, and beyond me, why the onus

would be on the union to prove that there was a deliberate intent, or

if not deliberate, the same thing — "intent" — to

circumvent the collective agreement; and then if they can't do that,

but it simply is the case, that there's no retroactivity in terms of

the penalty. It's beyond me. If the minister is clear in his intent

that he doesn't want to see double-breasting, why he would deliberately

weaken the clause, and why even further he would say that even if

you're found guilty, you can't retroactively.... There's no penalty,

essentially, unless it's proven that there was deliberate intent.

"Deliberate intent" and "intent, " in my view and in the legal

interpretation we have, are the same thing. In other words, the onus is

on the union to somehow prove that the employer deliberately intended

to circumvent the collective agreement. That is extremely difficult to

prove, and I think will result in a significant increase in the amount

of double-breasting in this province. This, combined with the other

section that we'll get to shortly, means that.

I want to

say, briefly, that the reason it's so important is the peculiar nature

of the construction industry. We've got a situation where there is no

seniority whatsoever for construction employees in any collective

agreement. We have a situation where there is no fixed plant; there is

no mine or mill —

pulp mill or sawmill. This is a mobile operation. In order to deal with

those peculiarities, the trade union movement has done one thing — they've got a union hiring hall — and the legislation has done another thing, which is to not allow employers to spin off non-union subsidiaries.

This

really thwarts the collective security of unionized employees in the

construction sector, and the American and other experience with similar

legislation means there will be spinoffs. The fact that it's not

retroactive, unless you can prove intent, means that in fact there will

be no penalty. There will be an incentive for employers to spin off

non-union subsidiaries. This is most important in the construction

sector because the projects are so short in duration. By the time you

go before the IRC, by the time you try to prove the case, even if

you're successful, the project is completed. So there's a built-in

incentive for employers to attempt to get around it. It also puts

unionized employers in a very difficult situation, because they're

trying to survive, and if this encourages double-breasting, as we on

this side of the House think it does, it means they'll be forced to

double-breast in order to compete with other companies that are

double-breasting.

So it has a tremendous impact on the

construction industry and on the collective security of unionized

people in the construction sector. We feel very strongly about it. We

think that it's going to have a tremendous impact, and it's going to

bring about significant disruption. This section, almost more than

most, is going to cause industrial disruption for many years to come,

and it does not fulfil the objectives or purposes that the minister

himself states.

Section 25 as amended approved on the following division:

YEAS — 28

Savage

L. Hanson

Dueck

Michael

Parker

Pelton

Crandall

De Jong

Rabbitt

Dirks

Peterson

Strachan

Vander Zalm

B.R. Smith

Couvelier

Davis

R. Fraser

Jansen

Hewitt

Chalmers

Mowat

Ree

Serwa

Vant

Long

Huberts

Messmer

Jacobsen

NAYS — 20

G. Hanson

Barnes

Marzari

Rose

Harcourt

Stupich

Boone

D'Arcy

Gabelmann

Blencoe

Cashore

Guno

Lovick

Williams

Sihota

Miller

A. Hagen

Jones

Clark

Edwards

section 26.

MR. CLARK :

I have had significant experience with the previous way the board

conducted certification votes. In fact, I was the first person to

appear before the hearing set up by the now chairman of the Labour

Relations Board, Kinzie, on the question of appropriateness of a

bargaining unit. I think this

section is an attempt to codify in this

Code what the current practice is in terms of speedy votes and speedy

determination of votes. In that respect, I think it is a step forward.

But I just want to ask a couple of questions for clarification, if I

could.

The way it works now, under the procedures put in

place by Mr. Kinzie as a result of the 1984 amendments to the Code, is

that there is a hearing very quickly, and the appropriate bargaining

unit is determined before the vote; then there is a vote cast by those

who are deemed to be in the appropriate bargaining unit by the

industrial relations officer. This amendment says that there will be a

vote before the determination of the appropriate unit, I understand. In

my view, that's a positive move. Would the minister explain how the

vote is taken? In other words, who gets to vote if the vote is taken

before the determination of the appropriate unit? Right now they

determine who is in the unit and then they all vote.

[ Page 1588 ]

the vote is held before they determine who is in the unit, who gets to

vote? Is it the union's description of the appropriate bargaining unit?

Is that who votes?

[4:15]

HON. L. HANSON :

If I interpret the question correctly, the answer is yes. The

amendment, as the member quite rightly says, is a situation that had at

times developed where, because of an application before the board, or

whatever, in the determination of the correct bargaining unit,

sometimes it was felt that there was too long a delay, which allowed

some practices that weren't really the best to have happened.

The

process would be that the union applies for certification and then the

industrial relations officer would be appointed to investigate and

determine the employee list, and within ten days a vote would be held.

If there is a question or a challenge to that, the process would in

fact be that there is a double-envelope type of situation, where it

isn't determined who the inside vote is cast by. When it is determined,

then if there were envelopes in there attributed to people who were not

determined to be part of the correct bargaining unit, those votes would

effectively be thrown out, I guess. Then the votes would be counted

that were determined to be correct. I don't think there is anything

that would stop the hearing of a challenge very quickly, if that were

the way it went for the determination of the correct bargaining unit.

It is simply to ensure that the vote must be held within ten days and

to ensure that there isn't that time lag that was considered to be

inappropriate.

MR. CLARK : I think, then, that this

is a good amendment, but I want to make sure this is the case: the unit

applied for by the union is therefore what determines who gets to vote,

and if the employer wants to challenge that, then it is challenged

later. All ballots are double-enveloped and the ones that are

determined to be correctly challenged are destroyed and the rest

counted. I think that is commendable,

I think there is,

then, a mistake in the wording of this. It says that if 45 percent of

the employees in the unit get to vote, then there's a vote. If a

determination is not made of what the unit is, how will the IRO

determine whether there is 45 percent in the unit? Does the minister

understand? In other words, let me make a suggestion if I could —

a friendly amendment. Instead of saying "the unit," it should say "the

unit applied for." That would clarify the intent, because as it stands

now, unless the unit is determined.... It's essentially sloppy wording

currently, and I don't mean that in a negative way. So the minister may

consider a friendly amendment: instead of saying "the unit," it should

say "the unit applied for."

[Mr. Pelton in the chair.]

HON. L. HANSON :

That certainly is a valid observation, although we don't feel that that

is a requirement, because the description in the Labour Code.... I

might just read it: "Unit means a group of employees." The expression

"appropriate for collective bargaining" or "appropriate bargaining

unit," with reference to a unit, means "a unit determined by the board

to be appropriate for collective bargaining, whether it is an employer

unit, craft unit, technical unit, plant unit or other unit." I guess we

felt that that description of a unit really handles the concern that

the member mentioned.

MR. CLARK : I don't want to get

into debate with the minister on this, because it's really a friendly

amendment. But I really do think that unless the unit is determined by

the board ahead of time, unless they have to make a judgment of what it

is and then move on, it makes a lot more sense simply to add "unit

applied for." Then it's clear. I think we're going to move on very

shortly, but I think it's clearly a friendly amendment. It really does

clarify it, and you might want to consider moving it now or shortly.

Sections 26 and 27 approved.

section 28.

HON. L. HANSON : I move the amendment standing in my name on the order paper. [See appendix.]

On the amendment.

MR. GABELMANN :

It's difficult; there is so much material and so much paper, and we've

got amendments to amendments, in effect, because we're trying to deal

with the old Code and Bill 19 and the amendments. Sometimes it takes a

minute or two to collect one's thoughts.

Anyway, on the

amendment, just a few comments. I want to repeat a comment that we made

section 25 in respect of the amendment, which — I haven't found it yet — deletes.... I'm sorry. We're on 28; I was on 29.

MR. CHAIRMAN : The amendment to 28.

MR. GABELMANN : I'll back up one file and start where I should be. I apologize to the House for that.

want to ask the minister what it was about the existing subsection

(8) in the Code that wasn't working or didn't achieve some desired goal,

and so required this amendment — or either of the amendments, actually.

MR. CHAIRMAN : The Minister of Agriculture.

SOME HON. MEMBERS : Who?

MR. CHAIRMAN : The Minister of Labour. Sorry about that.

HON. L. HANSON : There has been some suggestion that I should be changing ministries, and I wondered if that had happened without my knowledge.

Interjection.

HON. L. HANSON : You wouldn't, would you, Mr. Opposition Leader?

heard a number of concerns expressed that the council was not permitted

to take into consideration evidence that the employer had acted in bad

faith with regard to an application to cancel a trade union

certification. We believe — and I think there is one that maybe I won't refer to by number — there was some concern about the clean-hands provision, and we think that this amendment — unfair or unreasonable conduct of the employer —

is in fact consistent with the reinstatement of the clean hands

provision, as is in one of the future documents. We believe it will

preserve the LRB's jurisprudence as it was established in the past:

whether an

[ Page 1589 ]

employer

can rid itself of its bargaining responsibilities if in fact it hasn't

acted unfairly or unreasonably. I guess an example of that would be

consideration of contracting-out for two years and then getting a

decertification. I think the amendment effectively reinstates the

council's discretion to refuse an application.

MR. GABELMANN :

I'm puzzled by the minister's response. The so-called clean hands

section,

section 91 of the Code, governs

part 2 of the act. This is in

part 3 of the act. As I understand it, there is no ability to apply

section 91, the clean hands section, even reinstated as it will be once

we get to it — preserved in its original form — to anything other than

part 2 of the Code, and this

section that we're amending —

section 52, I believe —

is in

part 3 of the Code. There's no question there of clean hands, as

I read it. I wonder if the minister wants to give us a new answer based

on that.

HON. L. HANSON : I guess that the member, my

critic, is quite right. But I think that by placing this amendment in

the provision, we have made it more difficult, more stringent for the

employer to get his decertification, because they have now established

that they have to have been fair and reasonable. My reference to

section 91 is I think a reinforcement of the fact that in the intent of

all of this legislation we expect the employer to conduct his affairs

in a fair and reasonable manner. But I do accept the point that the

member made.

MR. GABELMANN : I accept that. We don't

need to debate that further. I wonder if this amendment to the Bill 19

proposal.... I don't expect the minister to know this off the top of

his head, and he may want to ask one of his advisers. Is the amendment

that is being proposed to the original proposal in Bill 19 a result of

concern expressed about the Wall and Redekop decision of the LRB?

HON. L. HANSON :

There certainly wasn't in my mind any specific reference in this

amendment to the Wall and Redekop case. It was pointed out to us that

there should be a requirement for the employer to act in a fair and

reasonable manner. So the specific reference — we are talking about the amendment now —

is simply a requirement that the employer does act in a fair and

reasonable manner. Quite frankly, I think it is a good amendment.

MR. GABELMANN :

I think I agree, but I just want to be sure, Without going into the

history of the Wall and Redekop case, because that would take time I

don't want to take, it seemed to us that the original change as

proposed in Bill 19 which we are now amending is in an effort to deal

with the fact that the board refused to decertify Wall and Redekop — a certification that a union had with Wall and Redekopp —

on the basis that.... The issue revolved around the question of

subcontracting all of the work for two years, which was seen as an

evasion of the collective agreement. Our reading of the original

proposal in Bill 19 was that that would not have allowed the board to

make that decision; that an automatic decertification would have had to

have taken place, We now think — and I just want to be absolutely sure and have the minister concur, if he does — that with this proposal the existing law in that respect is maintained.

[4:30]

HON. L. HANSON :

I do agree with the member opposite that there appeared to be some

confusion. As I remember the circumstances of the Wall and Redekop

case, I think the original draft may have proven that the member's

concern was a possibility. Since that was not the intent, that's why

the amendment....

MR. GABELMANN : That's good. I just

want to say to the minister that we appreciate that. It's useful that

there have been some of these kinds of changes. That's good and a

positive thing. I'll say thank you. I haven't said that very much

during this debate. There hasn't been much to say thank you about, but

I will say it on this section.

Amendment approved.

Section 28 as amended approved.

section 29.

HON. L. HANSON : I move the amendment standing in my name on the order paper. (See appendix.]

On the amendment.

MR. GABELMANN :

This is another important section. It's among the dozen or so most

important sections in the bill. It depends on your point of view, I

guess, as to whether it's second or third on that list. Certainly in my

view, it obviously goes hand in hand with a previous

section that we've

finished debating —

section 25, in respect of 37 and 53 of the Code. This is commonly

referred to as the successor rights clause. Does a collective agreement

follow the sale, disposition, transfer or other activity of a company

that either changes hands or location, or changes partial ownership — or whatever? There are a whole bunch of issues involved in that.

On the amendment itself, I want to deal initially with the word "deliberate." That's 29(b) —

well, if you read it as it's written in the amending bill, it's

29(b)(b), which doesn't make much sense. Nevertheless, we know what

we're talking about, We're talking about deleting the word "deliberate"

as a modifier of the noun "attempt."

I'm not going to go

through all of the evidence on this issue, but just state again

something we have stated before. The word "attempt" is defined in law

as being deliberate. Therefore the adjective "deliberate" modifying

"attempt" makes no difference. The word is redundant. It makes, in law,

no difference in terms of the test that needs to be proven. I guess

it's a cute political effort — to put it kindly —

to make an amendment of that kind. But it has no practical effect

whatsoever in respect of decisions that will have to be made by the

Industrial Relations Council as far as proving an attempt is concerned.

I haven't put that in the best way by a long shot. What I'm saying is

that an attempt is defined as being deliberate. Therefore there is no

difference between a deliberate attempt and an attempt. There have

been, I'm told — I don't practise law, so I don't know —

repeated decisions that make that point, and I accept the advice I've

been given on that. We need to make that point. I suppose we don't need

to have a long debate about it, because we've had that debate before

under

section 25, and there appears to be some difference of opinion

about it.

I just want to quote from a lawyer who practises — not exclusively, but primarily — in the field of 37 and 53 of the

[ Page 1590 ]

Code;

that's where he makes his living. He says that the amendment to delete

"deliberate" from

section 29 of Bill 19 is supposed to be ameliorative

of labour's concerns. It's my advice that it is not a significant

change, because the word "deliberate" qualifies the word "attempt."

Inherent in the notion of attempt is intent. To show an attempt in law

you would have to prove intent. In order to prove intent you have to

prove deliberateness. I'll just say it and leave it at that. It doesn't

make a heck of a lot of difference as far as that's concerned.

Rather

than asserting anything or suggesting anything, I just want to ask the

minister if he would like to comment on his substitution of (1.1) and

give us some explanation of what it was that went into the thinking on

that?

HON. L. HANSON : If I'm correct, we're talking

about the first amendment to 29. Are you referring to (1.1)? When we

originally drafted it, the provision was to prevent a successorship

where only the skills and abilities of an individual, or I guess in

more common phraseology the key man, were transferred. But when we

eliminated that key man test, the provision completely excludes the

skills and abilities of an individual from the list of factors which

may be used in determining whether a business, or a substantial part of

it, has been transferred. Those factors would include transfer of

employees, customer lists, goodwill, inventory, other assets, existing

contracts, accounts receivable — the list is quite long here.

The

intention was only that the skills and abilities are not to be the only

factor resulting in a declaration of successorship. We believe that

this amendment provides that they may still be considered as one of the

factors, as they should be, for determining whether successorship

should apply. It seemed to be that in eliminating that key man test,

again we were completely excluding the fact that skills and abilities

of an individual would be removed from the list of factors that are

part of the determination of successorship.

Amendment approved.

section 29 as amended.

MR. GABELMANN :

Mr. Chairman, the amended section, as I said before, is a devastating

section in terms of the ability to escape from collective agreements.

We could — we won't but we could — make many of the arguments that we made in debate on

section 25, because many of them apply.

The

significant difference, in my understanding of this, is that small and

medium contractors particularly will be able to escape their collective

agreement with these changes very simply. First of all, a small or

medium-sized contractor doesn't really need any assets. He might have a

pickup, he might have a $2,000 or $3,000 computer, but that's really

it. He rents his office and the assets really are very limited. The

contractor can work from home, rent all of the equipment, and the

changes that were just debated go some way to dealing with that point.

now escape your contract, all you have to do as a small- or

medium-sized contractor is sell your assets, this truck or this

computer or whatever else you might have, and incorporate under another

name and you're home free. It's as simple as that. You sell your

limited assets, you establish another company and you go into business.

Again, in this new business you can lease all of your equipment. It's

no big deal to start up a new business. It's just a question of meeting

the provisions of the Company Act and whatever minor legal requirements

there are for that. That's all you have to do. This won't allow people

who have significant assets to very easily escape their collective

agreement, but anybody in construction who has few assets, as I have

described, will simply escape that collective agreement. I don't know

whether that's the intention of the government.

I'm

fumbling a bit at the moment, Mr. Chairman, because I can't decide

whether to stop here and solicit some view from the minister about his

intention or to make a big speech about it. I don't want to make a big

speech about it, frankly, for several reasons. One is that I'm tired of

making speeches and I'd rather get on with it. Secondly, I'm not sure

it's productive. It might be more useful for us to hear the minister's

view of the impact of these changes to

section 53 — what intent he had when drafting these changes, and what effect he thinks will come from it.

HON. L. HANSON :

Just an observation. I firmly believe that the selling of the assets,

as my critic described, would be caught under

section 25, I guess,

where it's loss of the collective agreement rights that have been

bargained. But of course, again we have a difference of opinion on

that. There are a number of sections to this, as the member does

appreciate, and I guess we're dealing with all of them in a sort of

broad scope at this moment. Is that the intent of my critic?

[4:45]

Successor rights. It's the

government's philosophy or intent that when a union or whatever has

obtained some bargaining rights for the group of employees it

represents, they should in fact be protected. But we also have to

recognize that there are circumstances that are harmful, I guess, to

the economy as a whole — for example, successorship in the case of bankruptcy, which is one of the sections we talked about —

or at least, it's in one of these sections. We've said that if a firm

honestly and legitimately goes bankrupt and is sold under those

circumstances, then there is every right for the union, I guess, to

reorganize the operation. But by the same token —

and I think the opposition member is going to give me some argument

about this - unless there is a deliberate attempt through the process

of bankruptcy to avoid their collective responsibilities, we don't feel

that that is an appropriate case for successorship.

I guess

the very recent case of Safeway and Thrifty's.... I don't know if

that's still before the Labour Relations Board or not. It is? Well,

maybe I shouldn't talk about it. In any case, the fact that a building

occupied by a certain kind of a business effectively goes out and there

isn't a sale or a transfer of tangible things; there isn't goodwill;

there aren't accounts receivable.... In fact, there is a brand-new

business started, and it may be the same kind of business. I am not

suggesting that it has to be a different kind of business, or whatever.

But it may be the same kind of business.

But if you start a

business, you decide to get out of it and you sell off your assets, and

I see that building as an appropriate building for me to start a new

one in, I am not buying your customers and your equipment, and I am not

buying your goodwill and all of the other things.... You have simply

gone off in isolation and closed down your business. I have come along

and said: "Hey, I am going to start something, and this is what I am

going to start." We don't think the successorship should automatically

apply to that.

[ Page 1591 ]

But

again, as I have said before, we certainly don't have any argument that

labour organizations have the right to certify that new operation. The

test, of course, will be: have I, in starting my new business, assumed

your business? You know I haven't. I have gone out and bought, in the

case of a bakery, new ovens and all of those things. I am going to open

a new operation.

There are a number of sections, of course,

to the act. We think that we have clarified the circumstances in this

bill where successor rights should apply. I guess what I just said is

that we don't think successorship should apply only because the

performance of a similar function occurs at the same location.

I dealt a little bit with bankruptcy. We don't believe that in the case of legitimate bankruptcies —

and I guess we will get an argument on what the

interpretation of a

legitimate bankruptcy is.... I think that it is fairly clearly spelled

out. I think that with the way the act is written we will get good

jurisprudence from the Industrial Relations Council.

What

we are saying is that they shouldn't be allowed, through the guise of a

bankruptcy, to evade their responsibilities under the collective

bargaining that their employees have attained through that process. We

think that the fundamental principle remains intact. We think that when

a business changes hands, the collective agreement rights that those

people have bargained for should continue, and the obligation should

continue to bind the new owner.

The intent is that we have

tried to delineate in this bill where those rights should be

transferred forward to the new owner or the replacement owner, or

whatever. I think that everyone here has some knowledge of cases where

bankruptcy was manipulated. We think that the jurisprudence of the IRC

will catch those cases. I know that this is one of great interest to

the members opposite, so I would like to hear their debate and concerns.

MR. GABELMANN :

I will in a few minutes outline what I think are the four significant

changes in terms of what is captured and what isn't in respect of the

legislation. But I have to reflect, first of all, that it is amusing, I

guess, that for the first time in this debate we have had a full, and I

think fairly clear, explanation from the minister about a particular

situation that he wanted to be sure was covered by the wording.

Ironically,

when this is really the first time we've had it, it really touches on a

case that is sitting in front of the LRB at the present time, a case

that I wasn't going to talk about: Thrifty's-Safeway down the street.

It may be that because Thrifty's-Safeway in James Bay is a classic

case; it may be because the minister is aware of it — it's happened, in large measure anyway, during his term of office — that he's familiar with it and feels comfortable about it and therefore feels free to talk about it.

It's

a wee bit ironic that that's the one case that we perhaps shouldn't be

reflecting upon too much, although I have enough confidence in the

board that they're not going to be influenced by us, whatever we say

one way or another. They will make their decision based on the law as

they see it, and if the minister comes down hard on one side and I come

down hard on the other side, it's not going to matter a damn to the

board. Sub judice in these cases isn't really significant, but I just

must say in passing that it's interesting that we get a fairly clear

and specific comment from the minister on this subject.

I guess it would be useful to identify what I think are the areas of concern.

The

first area of concern relates to sale of part of the business and

whether or not successor rights follow parts as they are spun off. It's

our view clearly and specifically, and we need to make argument about

it, although I'd prefer not to have to go through all of that.... It's

clear in our view that successor rights will not apply to parts of a

certified business that are sold; particularly, I suspect, if those

parts are less than a significant part of the business — less than half or some other such percentage, although I don't know how that will be done.

The

concern on this is widespread, particularly when there is discussion

about selling off Crown corporations, for example. If B.C. Rail were to

be broken up and sold off and you were to sell off the yard in Prince

George and offer it up for sale on the basis that all the work done in

the Prince George yard would be done by somebody else and B.C. Rail

would buy the service.... Or it's similar to the yard in North

Vancouver or the shop in Squamish or whatever. Or you might take other

components: many of the accounting services that are done at head

office, or a whole variety of things. I don't want to go into all the

possible combinations. What you do is just sell off bits and pieces of

the company. The certification, I believe, in the advice I'm given,

will not follow with this new law, and you have effectively done two

things: you've accomplished a privatization objective, which is another

debate, and you've also accomplished the objective of deunionizing. So

that is a real concern, in terms of successor rights, and we may well

get into a lengthier debate on that issue.

Another concern — and we've had a bit of a discussion on this already —

relates to the fact that the business does not include the skill and

ability of an individual. I'm just looking for the amendments that

we've been debating. "For the purposes of this section, the skills or

abilities of an individual do not of themselves constitute a business."

This is particularly true in construction, and I made this point

earlier in starting off the debate. Since the skills or abilities do

not constitute a business, you can therefore escape certification

simply by taking your skills or abilities elsewhere and establishing

another business. So that's a second area of concern.

The

third is location, and I guess this is the Thrifty's issue. You have a

grocery store, it's fully operating, it's unionized, and you close it

down. If you sold the business as an operating business, the successor

rights would, I think, still go on. If Safeway in James Bay had sold

its store with all of its stock to Thrifty's and the sign changed, and

the next day the business continued, then the rights of the employees

under their certification would follow. But if you're more clever than

that, and you sell the business, you shut her down and you have this

little deal with this company that's going to buy it. You close her

down, you sell the stock and you lay off the employees. You do all of

that and then, after a reasonable period of time....

Interjection.

MR. GABELMANN :

It disappears. The former minister is helping me. He knows what I'm

talking about. It closes down, and after some reasonable period of

time, presto! A new grocery store suddenly emerges. Thrifty's comes in.

[ Page 1592 ]

had decided earlier not to talk about Thrifty's and Safeway, because

it's in front of the board, but we are. I think we all agree it's not

going to affect the decision.

Interjection.

MR. GABELMANN :

Well, the minister and I were discussing this earlier, and we agreed it

is, but we also agreed that what we say isn't going to matter a heck of

a lot.

You have a situation where the law requires that if

the business is sold intact and continues to operate, the successor

rights apply. The contract is in place and the certification holds. But

if you close it down for a while, and then re-open and conduct the same

kind of business — selling groceries — it's

a different company, and the successor rights don't apply. It seems to

me that that is wide open for abuse. It seems to me that any company

who purchased a business will make as a condition of purchase a

closure, first of all, and a gap between the operations. There's a

downside for businesses doing that.

Interjections.

MR. GABELMANN :

Well, the first member for Boundary-Similkameen (Mr. Hewitt) is saying:

"The council will find them out. That's an evasion of the law." The

problem is, you have to prove beyond a reasonable doubt that there was

intent — deliberate or otherwise. You have to prove that there was intent.

[5:00]

Interjection.

MR. GABELMANN :

I'm sure you do, under this section. You just have to prove that in

fact that mechanism was being used to avoid legal responsibilities.

That's what the case will be about. You can't prove what's in people's

minds. There won't be any legal documents saying: "We're doing this."

It'll just be an arrangement. We know how it works.

MR. BLENCOE : Yes. It's like that residential tenancy bill you introduced.

MR. GABELMANN : Oh, let's not get into that.

MR. BLENCOE : Do you remember that crazy bill?

MR. GABELMANN :

Mr. Chairman, I have a suggestion for the House. I think the second

member for Victoria (Mr. Blencoe) should buy the first member for

Boundary-Similkameen a cup of tea in the dining room.

MR. CHAIRMAN : That's an excellent point of order, hon. member. [Laughter.]

AN HON. MEMBER : Make it a motion.

MR. GABELMANN : We'll get a 67 to 2 vote, won't we?

Interjections.

MR. GABELMANN : I'll buy. Put it on my bill.

any event, the problem with this issue, in terms of demonstrating

whether or not this was a ruse to avoid the certification following, is

that the union, presumably, who applies for a declaration that the

certification continue, has to prove that in fact there was an evasion.

Otherwise it's clear. Under this new law the Thrifty's situation is

wide open. And the minister, I think, quite candidly said that's what

he wanted. He wanted the new law to be clear, that if Thrifty's

continues Safeway's business under a new name and new ownership, and

everything else, they should be able to do it with new employees as

well. That's the minister's position. I don't agree with it. I think

it's wrong. I think that when you buy the building you buy everything

that goes with it, and that includes the certification.

Interjections.

MR. GABELMANN :

However, if you buy that building to open a furniture manufacturing

shop, then I think you've got a case. If that is what is happening, I'd

be hard-pressed to argue that the retail clerks' certification should

continue. So I think what we're talking about here is that when in fact

the business that continues is the same business; it's just under a new

name. Safeway decided it didn't want that many stores. I guess Safeway

would argue that they can't compete with non-union Thrifty's in

Victoria; they can't compete in this supermarket climate in greater

Victoria, because the climate here is very different. But I'm not sure

that....

Interjection.

MR. GABELMANN :

Well, we disagree about that. I'm not sure that the law should allow

for that kind of evasion of legal responsibilities, because that's

really what it is. If there are back taxes owed by Safeway, you can bet

the city will make sure Thrifty's pays them. Thrifty's won't be able to

argue: "Oh, well, we didn't buy the back taxes owed." They will have to

pay. I think they should be required to accept all legal obligations.

Anyway,

that's the third of the four issues. I'm going to talk about the

fourth, and then I'm going to sit down and I'm going to buy a few

people a cup of tea. No, I'm not, actually; I'm going to stay for this

debate, because I think it's an important one.

The fourth

issue is bankruptcy. If you attempt to evade your collective agreement

or your certification responsibilities by declaring bankruptcy, and it

can be proven by the union, then you can't use bankruptcy as a

mechanism to evade. But the fact is that you are going to find it

absolutely impossible to prove why the firm went into bankruptcy. The

union will not be able to produce evidence of what was going on in the

minds of the owner.

This isn't true in big companies —

particularly in publicly traded companies or in large enterprises. This

is true in the small area, where the books of the company are run in

the study of the person's home. Accounting services may be purchased on

occasion, but usually the spouse ends up doing the accounting, or the

owner him- or herself ends up doing it. In those cases nobody, except

in very rare instances, is ever going to be able to prove intent to

avoid the responsibilities of the collective agreement. It's

self-evident; I think the law is clear, and we can cite cases on that.

Later

I want to talk about a few cases, and I'll just mention them ahead of

time. I think it's fair that the minister know what they're going to

be: Frank Browne Acoustics and Gibraltar Development. Frank Browne

Acoustics is 158-84; Gibraltar is 29-82; and I'll make reference again

to this Concerned Contractors' Action Group, 32-86, because

[ Page 1593 ]

there's some stuff in there that I think is relevant to this debate. But we'll get to that a bit later.

just want to say in conclusion of this part of the debate: we think

that because of these four areas of escapement, these four areas where

the certification can be avoided.... I've outlined the four, the third

of which was the Thrifty's case. We think that the door will now be

wide open for businesses, medium and small, to do what we have been

warning this bill will do, w