1998 Legislative Session: 3rd Session, 36th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

WEDNESDAY, JULY 15, 1998

Afternoon

Volume 11, Number 21

[ Page 10085 ]

The House met at 2:07 p.m.

Prayers.

L. Reid: I have a very dear friend visiting in the gallery today. She is Karen Legeer, from the riding of Surrey-White Rock. I would ask the House to please make her welcome.

Hon. H. Lali: Visiting us today in the precinct is Chuck Brewer and his family. They are from Merritt. Chuck is working on a justice centre for the Nicola Valley. Would the House please welcome Chuck Brewer and his family to Victoria.

J. Weisgerber: In the members' gallery is Sharlene Gevatkoff, my constituency assistant. She is joined by Louise Denis, my legislative assistant. Would everyone give them both a warm welcome.

R. Thorpe: Visiting today from Summerland is a student who goes to university at Royal Roads, Bryan Matthews. Would the House please make him welcome.

J. Sawicki: Today in the gallery I have two very special guests who are members of my family. They are my sister Anita and brother-in-law Ron Fownes. Anita is on a two-day holiday from her work with the Ministry of Municipal Affairs, and Ron recently retired from the Ministry of Finance. It's great to see that they're still motivated to come down to the Legislature to listen to question period. Would the House please make them very welcome.

Oral Questions

COMPETITIVENESS OF FOREST INDUSTRY AND FOREST SECTOR JOBS

G. Abbott: West Fraser Timber has consistently been among the strongest performers in B.C.'s troubled forest industry. Even the Forests minister likes to cite West Fraser as evidence that there can still be profitability in the industry. Today we learned that West Fraser suffered a $15 million loss in their second quarter. We know that thousands and thousands of forest jobs have been lost in this province in the last three months. Can the Minister of Forests tell us, in light of West Fraser's losses in the second quarter, how much money he expects the B.C. forest industry to lose in the second quarter of 1998?

Hon. D. Zirnhelt: I've said before publicly that we expect at least the first two quarters of 1998 to be worse than 1997 -- no secret. It is unfortunate that West Fraser has experienced a loss. Their loss has been, in part, exacerbated by fires in Alberta, by the pulp markets and generally by the Asian markets. So there are reasons why West Fraser has been . . . . It is an indication of the state of the industry, and we have taken steps to do that, working with industry. You'll notice that the press release that West Fraser put out lauded the efforts of government and the companies working together to reduce costs.

The Speaker: The member for Shuswap on a first supplementary.

G. Abbott: The real cause of the current turmoil in the B.C. forest industry is the reckless policy adventures of this NDP government in the past seven years. Everything this government has done has undermined the competitive position of the B.C. forest industry: stumpage rates up to three times higher than any other province, a process-oriented Forest Practices Code -- which, by the minister's own admission, has unnecessarily penalized the forest industry by at least $1 billion in the past three years -- and the unadulterated ideological nonsense embodied in the jobs and timber accord.

Back in April, First Marathon Securities stated that B.C. companies trade at a 26 percent discount in relation to eastern companies on the basis of their price over book value. What does the Minister of Forests estimate the B.C. discount to be today?

Hon. D. Zirnhelt: The question is not whether or not the B.C. industry is having difficulties. It is. We admit that, and we've been working constructively to do what we can within our responsibility to take care of that. To suggest that the Forest Practices Code and the environmental values in there, which are supported by industry, are a reckless policy is irresponsible. For that member to suggest that it is irresponsible for us to increase stumpage rates and to collect it here in British Columbia, instead of letting Americans collect it, is irresponsible of that member.

I would submit that both policies -- our stumpage policies and our Forest Practices Code policies -- are responsible in that they protect British Columbians' income, they protect us from countervailing duties, and they protect us from international market boycotts.

R. Neufeld: Well, if there's anything irresponsible, it's this government's policies that have driven the forest industry right into the tank. That's the problem.

Hon. Speaker, it never rains but it pours. To the Minister of Forests: StatsCan has released . . . .

Interjections.

R. Neufeld: Just a minute, folks. StatsCan has released its April number for unemployment . . .

Interjections.

The Speaker: Order, hon. members.

[2:15]

R. Neufeld: . . . in the forest industry. It states that 2,600 more forest workers lost their jobs in April -- absolutely dismal. This brings your government's record, since the jobs and timber accord, to 15,480 jobs lost in the forest industry since last June. What does the minister have to say to those families, those men and women, who have lost their jobs in the forest industry? What kind of comfort does he have to give those families?

Hon. D. Zirnhelt: Hon. Speaker, we were told by industry that we had to take out some $600 million in costs -- $1 billion in total. They had responsibility for some. We took action jointly with industry to work on making changes in two areas that we can affect. One is unnecessary regulatory burden, which is the Forest Practices Code. We've done that; we've delivered on that. And we've delivered on the stumpage changes, which will bring about considerable savings, and that has been recognized by industry.

[ Page 10086 ]

To those families, it is difficult at the bottom of the forest cycle to replace all those jobs, extremely difficult. Yes, there is job loss; we've admitted that. We can say that we have to do what we can to be poised for the recovery. When the market recovers, the jobs will recover.

The Speaker: First supplementary, the member for Peace River North.

R. Neufeld: The recovery, hon. Speaker, will happen right after the next election. That's when the recovery is going to start.

This past May 27, the Minister of Forests . . .

Interjections.

The Speaker: Hon. members, order, please.

R. Neufeld: . . . promised to release to this House a copy of the report on mill closure and job losses. Seven weeks later, we still do not have a copy of that report. When will the minister table a copy of that report in this House for the official opposition, as he promised to do?

Hon. D. Zirnhelt: These members should be careful of what they quote back. I said I would consider releasing it. I explained to you . . . .

Interjections.

The Speaker: Order!

Hon. D. Zirnhelt: Listen, and you might get it right. I explained to you that there are privacy considerations and that the information was collected on the understanding that it wouldn't be public information. I'm saying to you that the evidence is there. The StatsCan index is the one that we will measure job loss by. The members have information there.

Just the other day we gave a private briefing to the opposition Forests critic and the deputy critic, showed them the reports and said that this will not come out, because we can't release it; it's private information. So there's no dispute over the numbers. Unemployment is going up as the crisis in the forest industry and its markets deepens -- no problem.

C. Clark: There is a problem, a big problem in the forest industry. If the Forests minister would let the business community try and create jobs in the forest industry, there wouldn't be so many people out of work in British Columbia. On July 7 this minister received a letter from Graham Lea of the Truck Loggers Association, with some good suggestions. He asked the minister why, when he offered stumpage relief for the major licensees, he didn't extend that also to the small business licence holders.

He said in his letter, quite rightly, that if they extend that stumpage relief to the small business loggers, they will create jobs in British Columbia. Can the minister tell us why he has ignored that advice and why he doesn't extend the relief to small business loggers, so that they can go out there and try and create the jobs that this government has failed to deliver on?

Interjections.

The Speaker: Order, members.

Hon. D. Zirnhelt: The letter from Mr. Lea was asking for a change in policy, which is to extend the stumpage relief to those people who are on fixed rates. The policy we brought in was such that we extended the relief to those people who were on the variable rate, whether they were big operators or small operators. So every small operator who was on the variable rate got the relief.

The Speaker: First supplementary, member for Port Moody-Burnaby Mountain.

C. Clark: I also have the letter from Mr. Lea, and it's not quite the way the minister likes to present Mr. Lea's views. I think, to be fair to Mr. Lea, that maybe I should quote from his letter. In it he says that: If the stumpage reduction is not extended to the small business program, there will be business hardship, breach of contract, reduced harvest levels, increased administrative costs, reduced economic activity and -- guess what -- reduced Crown revenue. Does the Minister of Forests plan to continue to ignore this advice?

Does he plan to continue to preclude these small business loggers from being able to go out and create the jobs in the forest industry that he's promised to British Columbians and that he has consistently failed to deliver on?

Hon. D. Zirnhelt: Every new small business licence that comes out monthly will have the reduction in stumpage attached to it. The jobs will come from people bidding realistically, knowing what they know about the market, when we offer them. What I said is perfectly consistent. When we brought in stumpage increases, we didn't make those people that Mr. Lea is talking about pay the increase in stumpage. We didn't do that. We gave them the break and let their licences run out. What we said is fair: when we bring in a decrease, if you've opted for the fixed rate, you're stuck with it.

You bid, and you opted for a variable rate or a fixed rate when you bid on it. So the policy is fair. We are taking additional steps to help the small business operators, in terms of making more wood available to them so they can create the jobs that we believe are possible under the accord.

EFFICACY OF PHOTO RADAR

G. Plant: My question is for the Attorney General.

Interjections.

The Speaker: Hon. members, order.

G. Plant: Today we learned that a second justice of the peace suspended photo radar ticket hearings because the law may be unconstitutional. The result has thrown thousands of tickets into limbo. My question is: will the Attorney General agree that now at last is the time to scrap photo radar?

Hon. U. Dosanjh: First of all, let me advise the House that the criminal justice branch has decided to appeal that particular case. The other justices of the peace are not bound by that decision. The justice of the peace that made that decision ignored the Supreme Court of British Columbia and higher authorities, and we are quite convinced that we will be successful in the appeal.

However, coming to the real issue of whether or not photo radar should be scrapped, it saves lives, it avoids crashes, it saves money. What is the hon. member's objection?

The Speaker: First supplementary, member for Richmond-Steveston.

[ Page 10087 ]

G. Plant: Well, here are a few of my objections: a two-year record of failure, costs spiralling out of control, photo radar vans that sit on the side of the road waiting for a tow truck, maintenance problems with the cameras and $400,000 spent for an instruction manual that tells people not to take pictures of the sky. Story after story, and now justices of the peace have told us that the law is probably unconstitutional. My question is this: when will the Attorney General put photo radar out of its misery and throw it on the scrap heap?

Hon. U. Dosanjh: I'm appalled that an hon. member of this House would say that a tool of law enforcement and public safety should be scrapped because they have some political-ideological objections to it.

Interjections.

The Speaker: Order, members.

RCMP COASTAL PATROL VESSEL

M. de Jong: Let's talk about another supposed tool of law enforcement in the province of B.C. This Attorney General's ministry is supposed to fund the operation of four RCMP patrol vessels. They police small communities up and down the coast of British Columbia. One of those vessels -- the Naden , we're advised -- has been sitting in drydock in Sidney since April because there's no money to repair its aluminum hull. As a result, the RCMP are now obliged to patrol an area from Nanaimo to the north end of Vancouver Island with a rubber boat, with a rubber dinghy.

Will the Attorney General tell us why . . .

Interjections.

The Speaker: Order. Hon. members, we have to hear the question.

An Hon. Member: Faster than the ferries.

M. de Jong: Faster than the new ferry, perhaps.

. . . his ministry has decided not to fund the repairs to the Naden , which means that literally thousands of British Columbians are denied the policing services they deserve?

Hon. U. Dosanjh: I'll take that particular question on notice, because I'm not fully familiar with the details.

Tabling Documents

Hon. C. McGregor: I have the honour to present the annual report of the Ministry of Environment, Lands and Parks for the period of April 1, 1996, to March 31, 1997.

Petitions

M. Coell: I rise to table a petition from 60 residents of my riding, calling for mandatory assessment and rehabilitation of drug- and alcohol-impaired drivers.

A. Sanders: I rise to present a petition signed by 285 signatories from the riding of Okanagan-Vernon.

Orders of the Day

Hon. J. MacPhail: I call Committee of the Whole to debate Bill 26.

LABOUR RELATIONS CODE AMENDMENT ACT, 1998

The House in committee on Bill 26; W. Hartley in the chair.

[2:30]

The Chair: Members, we'll call the committee to order on Bill 26. We'll start, of course, with the first two sections, and then we'll go seriatim throughout.

section 1.

Hon. D. Lovick: Mr. Chairman -- as my colleague opposite certainly knows, from some experience now, how the bill is structured -- there are two discrete sections. There is, however, a preliminary short section, which is largely a correction of past omissions. That's the first section. I suspect the meat of our debate will, of course, occur once we get past that first section.

I will simply note that the first

section of the bill that stands outside the two predominant sections simply amends the current

section 21 of the code to allow for a single-person bargaining unit of employees for a craft unit. That change is consistent with

section 18 -- i.e., the "Acquisition of bargaining rights" -- which allows for the certification of a single-person bargaining unit of employees. The purpose, then, is simply to make this

section of the code consistent with the other sections of the code. Indeed, it is the practice that there are a number of single-person bargaining units out there and significant numbers of those, also, within the craft union sector. Again, I think it's a fairly straightforward one.

I might just add one other comment that perhaps the members might appreciate knowing -- namely, that the code definition of a unit was changed originally in 1993 to allow for that certification.

Section 21, however -- and this is our problem -- still requires "a group of employees" to be present before craft certification can be granted. This change, as I have indicated, simply makes the two sections of the code compatible and consistent.

The Chair: Before we get going, members, there's a steady hum in the room. Perhaps private conversations could be lightened or moved outside the chamber.

C. Hansen: I don't intend to dwell on this

section at all, but I do want to clarify the ramifications for a single employee within a workplace who decides to try to form a certification for that one employee. Let's say you have a facility where you may have one janitor, for example, but now they're in a larger bargaining unit. Is there the potential that we could be setting up a fragmentation of some existing workplaces with single employees who decide that they should become an entity unto themselves?

Hon. D. Lovick: I'm advised that it's highly unlikely that there would be many people who would decide they wanted to be certified as a member of a single-person bargaining unit. It is perhaps more unlikely that unions would want to get people like that, simply because the cost of servicing a one-

[ Page 10088 ]

person bargaining unit is probably significantly in excess of whatever would be derived from that individual by way of fees and support for the union.

What I think is worth noting, perhaps, is that there are . . . . I can give the member some historical definition. Since the definition was changed in 1993, the board has granted 79 single-person certifications. That covers the period, by the way, from 1993 to '97. Twenty-five of those certifications were in 1997, and 20 of those were in health care -- i.e., nursing units. So that may be the preponderant one.

C. Hansen: Actually, the minister anticipated my next question somewhat, which is in regard to what types of industries are applying for this. I'm curious, in the case of health care. What it is about health care that drives single-person certifications? What are the particular employees within health care that are seeking these types of certifications?

Hon. D. Lovick: I gather that the new health regulations are the primary explanation. Various bodies will be created as part of the new health regime, as well, and those organizations' employers will have, say, one nurse working for them. That nurse, rather than having no protection or nobody to represent her, will therefore wish to be recognized, so she can then affiliate with the B.C. Nurses Union. That's the way it typically works, I gather.

C. Hansen: In terms of the other 54 certifications that have been granted over this time period, is there any commonality to those? I'm curious in particular about how many of those might come out of the craft unions that we have. I'll throw my next question into the same pot here, and that's whether or not the non-affiliation clauses drive some of these single-person certifications in the craft sector.

Hon. D. Lovick: I'm not sure that there is a common pattern, but I am advised that a number of these go back to '92-93, and they apparently came from employees of the teachers' union who obviously fell outside of any other bargaining unit, or something.

Regarding the member's question about craft unions, the answer is none -- simply because until we make this change, they didn't have any legal right to get organized that way.

C. Hansen: I gather, then, that most of these single-person certifications have involved public sector employees. Is that what we can conclude from that response?

Hon. D. Lovick: I am advised that that is probably not the case.

Section 1 approved.

section 2,

section 55.1.

C. Hansen: I seek some guidance from the Chair on this. I would like to approach this

section by first of all talking about the

section as a whole and about the need to have a

section embedded in the Labour Relations Code to deal specifically with the construction industry, which is what

section 2 is. Secondly, without going into the details of any of the particular clauses that are being added, I'll go from there to a clause-by-clause review of

section 2. I seek the guidance of the Chair on whether that's appropriate.

The Chair: Member, unfortunately, I have said that we will go seriatim on this process. What you're suggesting is contrary to normal practice. We're starting with

section 55.1.

C. Hansen: I seek your guidance, then, in terms of what we are doing in

section 2. It is introducing a total of 17 new sections that will be added to the Labour Relations Code, and this

section constitutes a whole new part of the Labour Relations Code to deal with the construction industry. I'm seeking guidance in terms of when the appropriate time would be to discuss the advisability of entrenching that whole

section into the Labour Relations Code. That's the guidance I'm seeking.

The Chair: Yes, member, that goes to the heart of the bill. That was decided at second reading. So we could go seriatim from

section 55.1.

C. Hansen: In that case, I accept that ruling, and we can certainly plunge into some of the

definitions in a direct way.

I want to start out by asking the minister about the second definition, and that's regarding the building trades employer. I'm just wondering if the minister intends to let the wording of that particular definition stand as it currently reads.

Hon. D. Lovick: I want to congratulate my colleague for his acumen and perspicacity, because he's absolutely correct: there is an error there. There's an amendment on the order paper in my name . . . . I'm sorry. It isn't on the order paper. My apologies.

Interjection.

Hon. D. Lovick: Somebody says: "Another secret deal." I guess we were slow to catch it, but I want to table an amendment, if I might, Mr. Chairman. I'll simply read it into the record. I want to table and move this amendment -- namely, to amend the Labour Relations Code Amendment Act, 1998, to amend as follows:

[SECTION 2, in the proposed

section 55.1, in the definition of "building trades employer" by deleting "employers in craft bargaining units" and substituting "employees in craft bargaining units."]

Obviously it's a typographical error. It was meant to be "employees", and instead it became "employers". I think it's fairly straightforward. I don't imagine there will be great debate on this, but one can never tell.

[2:45]

On the amendment.

C. Hansen: This particular amendment is obviously one that's needed, and it's obviously one that we'll support, because the particular

section doesn't make sense otherwise. But I must say that I know the time line that the authors of the initial report had in putting together their report, never mind the draft legislation that they attached to it. I was certainly very surprised when we saw Bill 26 tabled and I realized that the wording was virtually identical to the draft legislation that the authors of the report had tabled.

I just want to put on the record at this time that I am surprised that there wasn't a more . . . . Let me phrase this carefully; I certainly don't want to discredit the very fine legislative draftsmen that we have working for the provincial government. I was surprised that there wasn't a bit more work done on this legislation before it was tabled as Bill 26. I'm wondering if this is an appropriate question to ask the minister: why was it so important to go with the exact wording of the legislation as was drafted in the initial construction

[ Page 10089 ]

industry review panel report, rather than the kind of massaging that we are more familiar with from those who are hired by the provincial government to do drafting?

Hon. D. Lovick: Well, as I think the member knows, the wording is very close indeed; it isn't exact. Obviously there have been some minor changes, which we will see as we go through. I think it's worth noting that the construction industry review panel did excellent work. As the member knows full well, they're both highly trained, skilled lawyers with considerable experience in this area. They did, I think, good service by providing us with draft legislation. Ultimately, however, it becomes the ministry's responsibility, in working with legislative counsel, to make changes and do fine tuning to legislation.

That's the explanation, if one . . . . I don't think there's anything more elaborate than that required. I think it's fairly straightforward.

If the member wants me to say mea culpa for the fact of two letters being misplaced and therefore requiring this amendment, that's fine. I will say mea culpa, but I don't think it's a large issue, nor do I think it's an indicator of any extra haste or a cavalier attitude toward the drafting of legislation. It's one of those things that you wouldn't even pick up in a computer word scan. You obviously wouldn't catch it, because "employers" and "employees" are both perfectly acceptable usages. I hope we'll all be gracious and say: "Right, we understand the need for the amendment" -- and move on.

C. Hansen: I'll allow the amendment to go, and then we can get back to the main section.

Amendment approved.

section 2,

section 55.1 as amended.

C. Hansen: Rather than going through these in alphabetical order as they're presented, I hope the minister won't mind if we jump around a bit. I'd like to plunge into the definition of ICI. Of all the

definitions, I think this is the one that causes the most anxiety. I know that yesterday the minister, in his closing remarks on second reading, made some comments about defining the parameters of what ICI construction is. I'm wondering if the minister could elaborate on that definition for the benefit of the record.

Hon. D. Lovick: Let me start by simply giving a more extended answer, then, in fairness to the member. I think his question is indeed an enabling one that opens a necessary door. ICI construction is, as the member knows, defined as work performed in the industrial, commercial and institutional part of the construction industry. That much we're all clear on. The scope of this work is not defined in the legislation but is generally understood within the industry.

I understand that my colleagues here with me today . . . . I'm remiss, by the way -- my apologies. Mr. Pat Stanton is the principal person responsible for working on this legislation, and Mr. Don Cott, whom the members have met before, is Assistant Deputy Minister of Labour.

I'm advised by the experts and the people in my ministry, who know this full well, that ICI is also not defined in any other jurisdiction in the country in any more rigorous a way than we're doing here. The reason for that, I gather, is essentially a matter of saying that they would rather err on the side of there being some confusion in leaving it to the discretion of the boards. They would rather fetter the discrimination and, dare I say, the flexibility and the possibility for changing, as circumstances dictate over time, than try to provide some absolute and rigorous definition that will work for all time.

The board, then, in this approach . . . . Again I emphasize that in this approach and the approach taken by, I believe, every other jurisdiction in Canada, it is, rather, given the discretion and the authority to resolve any definitional concerns that might arise.

Let me, however, pick up where I began -- namely, that I think the member's question deserves a broader answer than just that. Let me just elaborate a little bit, if I might. Let me illustrate industrial, commercial and institutional first by means of examples. In industrial, what is meant, for example, is a minesite, a pulp mill, a warehouse. Commercial, for example, would be an office complex or a retail store. Institutional: the examples that come to mind would be schools, hospitals, courthouses.

The big question, as the member has hinted already in his query, is simply: what happens in mixed sites? How do you nail it down? And the more specific concern certainly registered by business -- and legitimately -- is residential versus commercial . . . . Their concern, as I read from what the public campaign has been -- and it's based on my conversations with representatives of the UDI and other business interests -- is simply whether this bill in fact provides a backdoor means to organize residential construction, to impose a master agreement and all of that on residential construction.

We have, of course, said no. The argument is simply that this is intended for industrial, commercial and institutional. Residential is not included. The obvious question then becomes: "Well, what if there is a mixture?" I gave a brief answer to that yesterday, and I would just elaborate a little more by saying that as a general rule, common sense would prevail. The parties involved in building the project, I think, would more than likely have a consensus, a common view of what kind of project this is -- that is to say, whether the project was better defined as residential or as commercial.

If you've got two storeys of commercial and 18 storeys of residential, the common sense rendition, would certainly be that it's residential; it's not commercial.

Where a dispute arises in the system that we are presenting here, of course, the Labour Relations Board would have to make a determination as to which collective agreement should be utilized for the particular project. That, as I say, seems to be the standard approach across the country. I think it works fairly well. I have no illusions, by the way -- and this is an answer I'll be giving in other parts of the bill too -- that past practices and history and knowledge of the industry will obviously have something to do with that.

I think everybody knows that condominiums, for example, are residential, even if they have two storeys of commercial development. I don't think anybody should have any illusions that this is a way to suddenly say: "Aha! That kind of construction will now be considered ICI, because it's two storeys."

Does the member want me to repeat, for the record, the answer I gave yesterday in terms of my wrap-up about that kind of trigger point -- what I see as a necessary trigger point for the board?

Interjection.

Hon. D. Lovick: Sure, I would be happy to do that. What I said yesterday . . . . I'm sorry, I don't have the note. I think I was quoting some document that had been given to me by the ministry. What I said, essentially, was that the determinant is

[ Page 10090 ]

simply primary. What is the building primarily? If it is primarily residential, then it would fall outside the master agreement and the rest of the things that we're doing for ICI construction. If, on the other hand, it is primarily commercial, then clearly the agreements and the structures we're presenting in this legislation would obtain. There is a fairly broad answer. I hope I've covered the central points that the member wanted to raise.

G. Plant: I want to join in, for a moment, the debate around this term "ICI construction". The minister admitted, in what I thought was a fairly startling admission to make, that the language is confusing. I can't imagine a better place to fix confusing language, when it has made it this far, than right here. It's not a good tenet of legislative craftsmanship to create confusion and then say that we will trust the common sense of people who are in adversarial positions to resolve the issue.

It's not good legislative drafting, nor is it good public policy, with respect to this issue -- about which there is, admittedly, uncertainty and about which the minister admits that his current attempt at draftsmanship is confusing -- to say that it's all right because out there in the industry everybody knows what the answer to the problem is; everybody will know whether a project is commercial or residential. Of course, I am primarily speaking about mixed-use projects, which I think the minister quite rightly identifies as the primary source of the problem.

We have, in this definition, very open-ended and general language which is intended to describe something that is otherwise unknown to the law. It may be a term that exists in other jurisdictions. Other jurisdictions probably have their own approach, a different approach, to these issues, and they have presumably resolved the challenges that have arisen over time. It may be, to be fair to the minister, that some answers to this problem may be found when the Labour Relations Board has to wrestle with the problem and decides to look at the jurisprudence in other jurisdictions and says: "Here's how it has worked in other jurisdictions. We'll apply the same test here."

To deliberately embark on an exercise in draftsmanship, which the minister admits has elements of confusion about it . . . . To say, "What we're really doing is being vague; we are being deliberately open-ended, and we're going to let the Labour Relations Board resolve the problem," seems to me to be wrong-headed. I must admit, for a moment, that I'm a little bit sensitive.

When I dared to suggest, in a piece of correspondence, that a residential construction project that had a substantial commercial component might fall under a master agreement, the minister took the time and trouble to say that I was deliberately and systemically misrepresenting this bill. Yet he stands up, talking about this definition, and says: "It's confusing." He says he doesn't want to solve the problem here. He says he's going to let the Labour Relations Board solve the problem.

I'll tell you what I'm being told: almost any instance of mixed use will in fact give rise to arguments about whether the project falls in this sector.

I'm not comfortable with the idea that we should deliberately create problems in order to allow some tribunal to solve them. What that does is make good work for the lawyers, and it creates all kinds of uncertainty. Investors want to know ahead of time whether the rules are going to apply to this project: "Am I going to be under this collective agreement or not under it?" Here we are, deliberately setting out to draft a provision that is supposed to be open-ended and supposed to create problems for somebody else to solve. In that context, it's interesting to hear what the minister says near the conclusion of his remarks.

Interjection.

G. Plant: Is there an introduction or . . . ?

An Hon. Member: No, he's just trying to get you to sit down. Can you imagine?

G. Plant: I'll sit down -- after I say this. I want to make this other point.

During the course of his answer to my colleague's question a moment ago, he talked about a test for ICI, which he says enjoys some general currency. The test is whether the project is primarily residential, institutional or commercial. That might actually make some progress. I haven't thought about it much more than a minute or two, but that would be a step forward.

When we are creating a provision in the statute that is deliberately open-ended and the government is saying that it has an idea of what the provision is intended to achieve -- that is, there is a test that people will use, and the test for determining whether or not something is an ICI project is to ask the question of whether it is primarily institutional, commercial or industrial -- why don't we change the definition?

Why don't we incorporate that test into the definition and add some of the certainty that I think even the minister -- and, heaven knows, even the Minister Responsible for Northern Development -- would probably think is a good thing? Certainty would be a good thing here. It seems to me that a provision which is deliberately open-ended will foster uncertainty, and that's unfortunate. I wonder if the minister -- whichever minister -- might comment further on those problems.

Hon. D. Miller: My understanding is that the definition is one that will suit the purposes of the bill. If there are issues that arise, normally with labour legislation . . . . Of course, the member is a lawyer, so he understands this. In fact, I think that has probably given rise to one of the biggest industries in Canada, which is lawyers interpreting legislation.

The principles in labour legislation are somewhat different in that these issues generally aren't determined in courts; they're determined, if there are differences, by the board. That system has served British Columbia and other jurisdictions fairly well.

[3:00]

C. Hansen: Could the minister explain to us the definition of industrial? What we talk about is that ICI construction means construction work performed within the industrial, commercial and institutional components. Could we narrow down a definition of what industrial is considered to be in this context?

Hon. D. Miller: Again, these terms are fairly common. We talk about, for example, the delivery of energy to various clusters, and we roughly define that as industrial, commercial or residential. If you want my exact definition of everything . . . . I worked in an industrial setting in a pulp mill for 17 years, so that's one example.

C. Hansen: The minister made the comment that . . . . He talked about the delivery of energy services. I think that was the only specific that he gave. That certainly isn't very far-reaching. Would he, for example, include hydro lines in this kind of thing -- high-power electrical? Is that what he would consider to be industrial?

[ Page 10091 ]

Hon. D. Miller: It could well be. I cited a pulp mill. There are minesites obviously -- those kinds of projects.

C. Hansen: We're certainly looking for a lot more detail as to how this term is going to be defined. I think those are rather vague words that the minister used to respond. To say that they could or could not . . . . I think what we're talking about is entrenching a whole new

section into the Labour Relations Code to deal with the construction industry -- a whole new

section to deal with ICI construction. There are some very, very big decisions that are going to weigh on whether or not projects are in this particular definition. In fact, even today I am aware of projects that are not being financed. They're projects that are ready to go ahead, but they are not being financed today because of the uncertainty as to what this definition entails. So I think it would be incumbent upon the minister to give us a more specific response when it comes to what constitutes industrial construction.

Hon. D. Miller: Again, as I indicated in a previous answer, it there are disputes . . . . I suppose it may be virtually impossible to sort of catalogue, if you like, everything that might fall within the industrial. Undoubtedly there would still be areas that you might miss. So in the normal course of events -- and I think this is the practice in other jurisdictions as well -- if there's a dispute with respect to the classification, the board would determine that.

C. Hansen: Therein lies part of the problem that we've got. Because there is so much uncertainty -- I think the Minister of Labour himself used the word "confusion" -- I think it would be irresponsible for us as a Legislature to go forward with a piece of legislation and then say: "Well, we're going to leave it the Labour Relations Board to give definition to this." Certainly, if we want to be able to allow some of these projects to go ahead and to secure financing, there's going to have to be a degree of certainty. I would perhaps ask the minister if he sees the industrial construction being . . . .

Are we talking about the traditional definition of construction, which is essentially vertical construction? Could we at least sort out that one?

Hon. D. Miller: Again, I don't think it's fitting that I, standing in for the minister, try to identify every conceivable project that may fall into the industrial category, but rather to suggest that there is a common understanding in the construction sector with respect to what "industrial" means. Beyond that, if there are issues or disputes around particular projects, then that's the role of the board. While occasionally, throughout the history of labour relations and issues being referred to the board, disputes have arisen that sort of spill over into the public or the press, if you like, that system has worked quite well. I anticipate that it will work well in the future too.

C. Hansen: I wonder if we could get some indication as to when the Minister of Labour will be back in the chamber and available to answer some of these questions.

Hon. D. Miller: Well, I don't know if it's dissatisfaction with the quality of the answers, Mr. Chair, but I don't know that the answers the minister would give would be any different. We're trying to get through the bill. The minister has some other issues. I'm not certain exactly when he'll be back.

C. Hansen: I move that we rise, report progress and ask leave to sit again.

Motion negatived on the following division:

YEAS -- 27

Sanders

C. Clark

Farrell-Collins

Abbott

Reid

Neufeld

Coell

Chong

Whittred

Jarvis

Anderson

Nettleton

Penner

Weisbeck

Nebbeling

Coleman

Stephens

Hansen

Thorpe

Symons

van Dongen

Barisoff

Dalton

Masi

McKinnon

J. Wilson

Weisgerber

NAYS -- 34

Evans

Zirnhelt

McGregor

Kwan

Hammell

Boone

Streifel

Pullinger

Lali

Orcherton

Stevenson

Calendino

Walsh

Randall

Gillespie

Robertson

Cashore

Conroy

Priddy

Petter

Miller

Dosanjh

MacPhail

Lovick

Farnworth

Waddell

Sihota

Smallwood

Sawicki

Bowbrick

Kasper

Doyle

Giesbrecht

Janssen

Hon. D. Lovick: Let me just offer my apologies to members opposite for the misunderstanding here. I had to run out of the House. I was trying to signal to my colleague across the way who had the floor, but I had to depart for a moment to take a call. I'm sure it's no secret -- everybody knows -- that we're hopeful of making great progress on Nisga'a today, and therefore I had to go and talk with the Premier. At some point I will probably have to leave again, one hopes. But if so, I will certainly make sure that I advise.

What I'd like to do, if members are agreeable . . . . I chatted briefly with the Opposition House Leader and suggested that what we could do is perhaps carry on with the committee for the ten minutes that I will be away. Then we could come back and perhaps recess the House and have a ministerial statement or something like that. I'm not asking members to necessarily agree, but I do want them to know what happened. I want to offer my apologies that I wasn't able to make that clear.

I see the member for Richmond-Steveston here. If he wishes, I could respond to his points now or to the member for Vancouver-Quilchena's, if he prefers. What's the member's preference? I could do either.

Interjection.

[3:15]

Hon. D. Lovick: Well, then let me deal with the member for Richmond-Steveston, if I might. First of all, let me make . . . . I don't want to be confrontational, but I do not believe I said that the language is confusing. I did not say that. I said, rather, that to judge from responses, it would appear that people are confused by it. With all due respect, I think there's a difference.

Our position is essentially that the approach we are taking, which is consistent with other jurisdictions across the country, is the right one. I don't think it's a matter -- with the greatest deference, Mr. Chairman -- of being afraid to define

[ Page 10092 ]

it more rigorously. It is, rather, a conscious and deliberate decision, simply because we concluded that etching it permanently in stone, as it were, would probably cause us more problems than it would solve in effect. One doesn't want to fetter the jurisdiction and the discretion of the board too rigorously. I would add another couple of points to that -- namely, that there are other jurisdictions, we have other examples. I think an absolutely reasonable conclusion to draw is that the Labour Relations Board is going to look at how it's done and how it works in other jurisdictions.

In Ontario, for instance, I understand that there are a couple of things that they take into account. For example, they look at zoning, square-footage and probably some other things as well. That will just give some indication.

My point, then, is that we don't spell it out in the legislation; we quite deliberately don't do so -- it's on purpose. In most cases the industry does indeed have a clear understanding of what ICI is. In my mind and from the advice I've been given, it's not likely to be a major issue. Where issues may arise, as in over mixed sites, like construction-residential -- I think I answered that question already -- or over whether bridges belong to ICI or to roadbuilding, then the Labour Relations Board will have to determine where the work does properly belong. I gave the guideline yesterday.

I stand by the commitment that the key determinant -- the trigger point, if you like -- is primary: is it primarily X or primarily Y? Depending on the answer to that question, everything else follows.

The board would very likely call a hearing in the event of a dispute, a disagreement, and may well look at the experience elsewhere -- but, more particularly, in the area of our historical experience in roadbuilding in B.C. For instance, roadbuilding has never been part of ICI construction in this province. I know that what I'm saying now will become part of any Labour Relations Board judgment in the future; I'm very cognizant of that. Frankly, I would be absolutely amazed if anybody would take what some might regard as an ambiguity here and say: "Aha!

That means a radical transformation is intended." It's absolutely the opposite. It would seem to me that what we now do with regard to roadbuilding and its relationship with ICI would be predominantly and essentially what would happen after this legislation.

I hope that clarification helps members opposite. I look forward to other questions.

G. Plant: I'm glad we've had the minister's response to my previous comments. Let me make two points about why the minister's approach is wrong. The minister says that the path they've chosen is deliberate. That, of course, is not an argument in favour of it; it's merely a statement that what we have here is not an accident. They have deliberately chosen to use terms which are general and may arguably, at least in some respects, be ambiguous. I would say they are potentially confusing. But let's put that to one side for a moment and say that I think that everyone reading this

section would realize that the term "industrial" is a pretty open-ended term, the term "institutional" is probably even more open-ended, and the term "commercial" is pretty open-ended also.

My first point is this. The provisions of this bill that make special collective agreement arrangements for the ICI sector are going to change the law for a certain group of people, companies, organizations and activities. They are, one might say, at the heart of this bill. They are the subset of the total scheme of human society in British Columbia, which is the subject matter of this bill. Yet we don't really know, with any kind of precision, what they are. So we don't really know what we're legislating, in my respectful view, with the kind of clarify and certainty that you ought to have before you make laws.

I don't think we actually know, with the requisite level of certainty, who we're talking about when we talk about the people who are affected by this bill. We don't know with any real certainty how big a group or how small a group of people it is. I think that's unfortunate.

I don't think that's the right way to legislate, particularly when we know, I think, that with a reasonable amount of goodwill and intelligence we could do better than that. To take the minister on good faith . . . . I think we could do better than that without tripping over the hurdle that he doesn't want to trip over, which is to create an artificial straitjacket that's too narrow, that's too tight. I agree that there are times and places where there has to be a little bit of give and take.

Circumstances may change, and in some cases there needs to be, over time, just enough flexibility to allow the statute to grow and develop in some respects, rather than to become antiquated and outdated. It's a question of balance. I think that in this case the balance is struck far too much in the wrong direction.

Let me make this second point about why this is important. I've said this before in this Legislature when I've looked at bills and asked questions. The answers come back from the government -- a variation of the answer the minister gave: "Well, you know, generally speaking, we kind of know what we're talking about here. Everybody knows what the ICI sector is. Except, yeah, there may be some problems in this area called the mixed-use sector. But generally speaking, most people out there in the labour relations community know what we're talking about when we talk about ICI." Here's my answer to that.

It's not an inflexible answer, but I think it's the right answer for this problem. We shouldn't make laws that way. Laws become important when people are at friction points; laws become important when people are disagreeing about what the law is; laws become important at the margins of certainty. If the minister were right that everybody knows what this group is . . . .

I'll say something that is slightly unfair, but I'll take that argument a few steps further. There is a certain group of people out there in society who build buildings, who without any legislation at all, might well be quite prepared to enter into collective agreements with the people who work for them, negotiated on their behalf by trade unions. We don't need the Labour Relations Code at all for a lot of people, because they're quite happy to regulate their affairs, as between employer and employee, in a way that gives effect to the broad consensus of society about the purpose of collective bargaining.

But that's not what we're here for. We're here because there are in fact some people out there who wouldn't live their lives that way, so we need to have a Labour Relations Code in order to make law which gives certainty about rights, responsibilities and obligations. If we're going to do that, then I say you should try to make the law as clear and precise as is reasonable in the circumstances.

My point here is: it is no answer at all to the complaint about the definition to say: "It will be generally understood; trust me. Everybody out there knows." First of all, as the minister probably well knows, his answer is, in a legal sense -- and I say this with respect -- virtually irrelevant, as is my argument. It will ultimately be the Labour Relations Board that will decide these things, and I frankly doubt that they'll spend much time . . . .

An Hon. Member: Not just in a legal sense.

[ Page 10093 ]

G. Plant: That's true. But that's different from the Minister of Northern Development, who is, in every sense I can think of, entirely irrelevant. But I don't want to be confrontational.

I don't want to be confrontational about this point, because I want to come back and say that I listened as seriously as I could to the minister's attempt, which I think was a serious attempt, to respond to my concerns. He has left me with these problems. First of all, I still don't know who we're talking about when we're talking about the subject matter of this legislation. I suppose, to be precise, we are talking about the parts of the legislation that are specifically directed to ICI construction and collective bargaining.

I still don't think I know, with the amount of certainty I should have, who it is we're talking about and what it is we're talking about. So I say, with respect, that to set out on a deliberate course of being uncertain is to take the wrong course. Lastly, his answer that, "Well, there is general broad consensus," is, with respect, the wrong answer.

Before I sit down, let me give one example of why I think it's the wrong answer. Earlier in this session we passed a bill introduced by the Minister of Environment, and it had to do with outdoor trails. It made changes to the law of occupier's liability for people who use trails in the wilderness that may happen to be on privately owned land. Now, there was a need to make those changes, because it's good public policy to try to encourage responsible use of the lands of British Columbia.

In that bill there was a provision that specifically dealt with what happens when people trespass for criminal purposes and what happens when people go on others' property for criminal purposes. In fact, there's a whole body of common law around that; the courts have had to deal with these issues for many years. Yet what this act did was say that there may be some doubt out there. There may be some debate in the courts about what those rules are, so let's make it clearer in the act.

I think that is the way you go about it. I don't think you go about it by deliberately setting out to be unclear. So I invite the minister to tell me, for example, when he knows that there is a test out there for determining what is and what is not ICI, why it isn't in the bill. Surely the test, if the test is primarily one thing or the other, is hardly going to put the labour relations community of British Columbia into the kind of straitjacket that he wants to avoid.

[3:30]

Hon. D. Lovick: Mr. Chairman, I'm going to try to be reasonably brief, because however fascinating this discussion might be on what the ultimate purpose and meaning of the law is -- and I am fascinated by the subject, by the way -- I don't know if this is the appropriate venue. Let me just say this. The member has two contentions. First, I certainly don't wish to misquote, but I think he said something like that we the ministry don't really know what we're legislating or who we're talking about. I think that's a fair construction of the point.

Second, he said that what the law ought to do is provide clarification and a greater degree of certainty. The law should, in the member's words again, be "as clear and precise as is reasonable in the circumstances." My contention would be that this law being presented here is just that; it is as clear and precise as is reasonable in the circumstances. That's the issue.

The issue is that in this industry . . . . It's a mature, grown-up industry; it has huge experience. I think, quite frankly, that we treat it with less than the respect it deserves when we suggest that it perhaps doesn't have the ability to sort out these problems. I think it does. That's one.

Second, let me remind the member of the nature of an LRB hearing. An LRB hearing is designed to give all of those who come before it an opportunity to say: "Here's what our concerns are. These are the problems we perceive with the definition. This is why we believe, in the case of a definitional hearing, that this should or shouldn't be ICI." I made the point already that the board obviously will be guided by precedent, past practice, history and all of that.

Regarding the issue of the law, I'm not a lawyer. I have, however, had the benefit of some education. I've read my Montesquieu, among other things and other theorists, in terms of what the law ought to be. I accept the member's conclusion about being as clear and precise as possible in the circumstances. But one of the reasons we have courts and advocates and that dynamism of law is simply because nobody has ever been able to figure out precisely and with certainty what the answers are to difficult questions. That's the nature of law in our country and our society. I, for one, am tempted to say: "Thank goodness."

We have a disagreement perhaps, the member and I, and so be it. But it seems to me that in terms of our definition of ICI construction, we have done what is clear and reasonable with as much clarity as is reasonable in the circumstances. I've explained that. I don't know if I can do any more to give the member any greater comfort. But I appreciate the points he's making, just as I hope he appreciates my effort to clarify.

G. Plant: I'm going to pursue it one further time, because I think the minister has made another good point, but it's not good enough. Yes, we have courts because we can't ever get it absolutely right for all contingencies and all circumstances when we are drafting legislation. We need courts to work those things out. But what we don't need courts for, I'm convinced, or what we should use courts less for -- let me put it that way -- is as a place to make the hard decisions that we don't have the courage to make here.

[E. Walsh in the chair.]

The minister talks about the fact that we have courts out there because we can't resolve or foresee all of the problems. But that's not a reason for us not to try to do that here. It would, among other things, lighten the workload of the courts if, instead of creating empty vessels for the courts to fill, we said this is what we actually think the policy is, stated it as clearly and precisely as we can and then recognized that we will not be perfect.

What I don't get is why we would deliberately set out on a strategy where we know that most of the content of this definition will be decided by a tribunal. Let me say this, because I see the minister shaking his head. In part, I'm given conviction in my view in that regard by what the minister himself has said on a number of occasions about this point. To take the minister again at face value, I think that is the deliberate strategy -- that is, to take this very general term and let the Labour Relations Board figure out what it means. So I think that probably is the essence of our disagreement in this respect.

If that is the intention, then I don't see why that is good public policy, when we can in fact give that direction here. We ought to, because if we don't, then what we're doing is consigning a whole bunch of individuals -- workers and employers -- to the fate of having to hire their lawyers to go off and make arguments before the Labour Relations Board. We don't know the outcome of those disputes. When we have an opportunity here to avoid that problem, I think we should

[ Page 10094 ]

do that. We have that opportunity now. Once again, I think it's unfortunate that we are not in fact achieving the purpose that the minister and I have described, which is making the law as clear and precise as is reasonably possible.

What we are doing instead is being asked to accept a definition which is deliberately open-ended, with the express purpose in mind of letting somebody else make the decisions. I won't go on at some length. The minister, even though he's not a lawyer, is knowledgable about politics and the law and, without any difficulty, could think of a range of judicial decisions -- very recent ones, including one affecting his ministry -- where the constitution-makers handed a very empty vessel to the courts. They have taken that vessel and made all kinds of decisions that have in fact limited our ability to make public policy in another important area.

Interjection.

G. Plant: Exactly.

Hon. D. Lovick: I think I knew, given the time, Madam Chair, that eventually the member opposite and I would start to say yes, we agree. The short answer to the member's question or to the concerns he expressed is essentially to say that we have a disagreement. We do, and I don't think there's any point in pretending otherwise. Let me offer le dernier cri -- you know, my last word -- on the subject of this particular definitional conundrum, at least as the member sees it.

The intention in the legislation is to give the guidelines, the public policy guidelines. Some will argue that they're too broad; others will probably argue that they're too specific. I don't agree at all that they're open-ended. I think, rather, that there is a huge degree of specificity. I think "industrial" means something, I think "commercial" means something, and I think "institutional" means something.

Moreover, what the guidelines effectively say to the industry is: "Within these guidelines, you guys go out and figure it out -- sort it out. If you can't do that, then go to the board. The board will adjudicate and make the decisions for you." That, I think, is a pretty tried and true model in our system, in our society. Quite frankly, I am not persuaded at all that it's deficient or inadequate. Therefore I'm quite comfortable standing with this approach to the definition. I hope that at least clarifies my position.

C. Hansen: I want to outline for the minister why it is so important that we get as much specificity as possible in this definition. If you take a company that is engaging in construction work that could possibly be defined or not defined as ICI . . . . Where you've got a company that's going to have to make that kind of judgment call at the start of a project, it's going to have to engage its employees on the basis of the collective agreement that applies to ICI or the collective agreement -- or lack of collective agreement -- that will apply to other sectors of construction.

So if you have a company that proceeds down the route of saying that the project is not ICI or that the component of the work involved is not ICI, then what they would be faced with is a case before the LRB that would be brought against them -- perhaps brought by the building trades unions, perhaps a specific craft union or possibly another party. They would find themselves before the LRB. That would be after the project has started. They're into the project, and they're already engaging their employees under a certain relationship.

They get into the project, and then they find out that it's being challenged as to whether or not this is ICI work. They wind up before the Labour Relations Board -- a process that can take some time, as we know, because there is a backlog at the LRB.

But regardless of whether the backlog is cleaned up or not, you're going to wind up with an organization that's going to be faced with some very significant costs in terms of going before the LRB to defend the definition that they used and the action that they had taken. In the end, many months down the road, after they have incurred many dollars in terms of pay and benefits to their workers under what they had perceived to be the appropriate arrangement, they may find out sometime later that the LRB may rule that in fact it should have been ICI.

Then you wind up that the company would have to retroactively make all those adjustments based on the master agreement that should have applied to ICI. We're talking about some months later, given the way that cases before the LRB are handled. I guess my question to the minister is: is this the scenario the construction industry in B.C. has to go through in developing a definition for ICI that is more specific than what we have in front of us today?

Hon. D. Lovick: I'm taking a little extra time on this to consult with officials, because I think it's a contentious issue. I therefore want to be very careful in how I answer, and I don't want to dismiss too casually the concerns the member is raising.

My personal feeling is that the case as outlined by the member opposite is somewhat overstated. However, in fairness, I would acknowledge that that could be so in a first case -- in the first one. The first time that the board has to grapple with this problem because of new legislation, it may be problematic in just that kind of way. That's a possibility. Once that's been adjudicated, however, two things happen.

The first is that it becomes part of case law, obviously, and second, in that construction universe and the world of LRB decisions, other people in the industry will be looking very quickly at what happened there. They will say: "Wait a minute. So that's essentially the board's ruling. That's the way they look upon these problems."

Interjection.

Hon. D. Lovick: A colleague offers me some good advice -- namely, that would be as well as taking into account the experience with jurisdictions in other parts of the country.

In fairness to the member, yes, I think it's possible that there could be a problem there, but it will be a problem that is very much at the front of the process, it seems to me, and will become a much diminished problem as the process unfolds.

[3:45]

C. Hansen: I think our responsibility in this chamber is to prevent problems, not to allow them to manifest themselves and solve them after the fact. Whether we solve them up front or at the end of the process is irrelevant. Our job is to mitigate the problems before they materialize. I don't have an amendment to suggest to the minister to clarify this definition, but I was hoping we could come out of this process with some clarification, in the minister's words, that gives some comfort to those who will have to appear before the Labour Relations Board down the road.

The minister talks about the case that I presented and says that yes, this may well have to happen up front and that there have to be defining cases. I would like to ask the minis-

[ Page 10095 ]

ter who he thinks should pay for those defining cases. Our inability in this chamber to do our work . . . . Our responsibility as legislators is to give definition, to give specifics. Who should pay for that whole process of coming up with some specific definition somewhere down the line?

Hon. D. Lovick: I'm beginning to say to myself: "Don't be so kind. Don't be so willing to acknowledge that there may be validity to something somebody else says, because suddenly that tiny little piece becomes the thin edge of a very large wedge and -- ta-da -- the sky may soon be falling." I don't mean to be unkind, but I think there's that danger.

It's a highly unlikely scenario that the member presents. I'm willing to acknowledge it; I don't want to dismiss it categorically out of hand. That would be inconsiderate. What I will say, though, is that if there is anything like the kinds of problems with this legislation that the members opposite perceive there might be, then the board -- because it is not made up of intellectually challenged people -- will recognize that. Among its various abilities, the board has the power to publish materials, put on conferences, hold workshops and do those sorts of things.

If indeed they are saying: "Look, there is a tremor going through the industry, and people aren't sure what the rules are . . . . " If the board perceives that, then I for one would be, frankly, very surprised if the board didn't rather quickly say: "Let's address this before it becomes a major problem. Let's put together some kind of policy paper. Let's maybe put on a conference for the ICI sector and grapple with the six major questions that the sector has."

But back to the point that we're really on -- namely, the definition -- I think I have been pretty fulsome in my descriptions and explanations of why we have deliberately chosen this definition and this approach. It seems to me that enough has been said on that subject. But, of course, that's for the members to decide.

C. Hansen: In a comment he made a few minutes ago, the minister said that industrial means something, and he said that commercial means something. Could the minister explain to us what industrial means when he says it means something?

Hon. D. Lovick: The tautological response is: having to do with industry, of course. But I think the member means something else. Again, let me simply say to him what I did in the beginning. I gave the examples. I said, "Here are typical industrial projects," and I talked about a mine, a pulp mill and a warehouse. Those things qualify as industrial. I did the same for commercial. I said that an office complex or a new retail store is what we think of as commercial. I said that institutional refers to things like schools, courthouses and hospitals.

I also gave him the extended example of roadbuilding and how that wasn't traditionally part of ICI. It seems to me that if you put all those things together, you're getting a pretty good definitional sense of just what ICI means. Beyond telling the member to leap into the lexicon, I don't know if I can do much more.

C. Hansen: If I can get to a specific example, would industrial include energy distribution?

Hon. D. Lovick: As I hear the member ask the question, Madam Chair, I am all the more convinced that our approach to the definition is the right one. This is where you have to rely on the expertise, knowledge and background of the industry and the board to make those determinations. Let me give him a little comfort, though. I can tell him that energy projects have not historically been ICI, nor have water mains, sewers and projects of that sort.

But again, there is a history. There is a corpus of material out there that everybody in the industry understands, though you and I may not because we don't work in the industry. As I said, I for one take considerable comfort that we don't need, frankly, to be condescending and say that they're a bunch of yokels and they can't sort these things out. These are sophisticated people, and they work with these issues all the time. I think they will be quite capable of sorting out those differences.

C. Hansen: The minister said earlier that common sense would prevail, that there are broad understandings as to what these terms mean. Now he says that as we understand ICI, generally they would not apply to energy, pipelines, sewers. So in putting those two thoughts together, I gather that ICI does not cover these sectors. Is that a fair

interpretation?

Hon. D. Lovick: That is a fair

interpretation of what I have said. I would emphasize again that what I was talking about is the historical record. That has been the record in British Columbia. As I also said earlier, it would seem to me that the board is obviously going to be guided very much by the fact of what the historical record is what the historical practice is, as well as perhaps looking at some other jurisdictions.

C. Hansen: I want to be careful not to put words in the minister's mouth. If I can draw a conclusion from what he has said, we are going to be driven by the traditional

definitions of ICI. Traditionally, energy, pipe and sewer are not part of that. In fact, he also mentioned that roadbuilding is not part of that traditional definition. Therefore, when it comes to the LRB, they should rely on those kinds of traditional

definitions, which would be exclusive of these sectors. Am I interpreting his comments fairly?

Hon. D. Lovick: The answer is yes.

C. Hansen: Earlier the minister said that bridge construction was in a somewhat grey area. I can't recall his exact words, but he said that it was debatable whether that fell under roadbuilding, which would not be ICI, or whether it fell under industrial. That's a pretty significant area. I wonder if the minister could give more clarity to those who subsequently have to interpret this.

Hon. D. Lovick: My colleague from Burnaby-Edmonds, who, as some members may know, is very knowledgable in the industry, was indeed a business agent for the operating engineers and therefore probably knows construction on the ground as well as most people in the province. He advises me that the pattern in roadbuilding and bridge construction in this province has always been that roadbuilding is excluded from the industrial but that the bridges, at least the big ones, have always in fact been considered to be part of industrial.

I would point out again that that's nice, as far as it goes. However, the question then becomes . . . . Given new construction developments and the modularized bridge construction and those tiny little things that you see on Island Highway projects and other places, where it's a span of maybe 40 feet or something like that, they seem to put them up in a matter of days. Who can say? I wouldn't presume to say that if it's 27 feet, it's going to be this, and if it's 32 feet, it will be something else.

[ Page 10096 ]

Again, that's where you need to count on the expertise of the industry, the LRB and past experience. I don't think that's problematic. It's problematic only to those of us who are virginal in this area. People who know what the industry is about aren't going to be having the same problems. They will understand that this is the way the industry works.

Again, we're still on definition. I come back to my point -- and I think this may be my last word for a wee while on this, at least on this piece of definition -- that we have deliberately chosen this definition. I have explained the reasons why. I think there is no better approach available to us. Point made.

C. Hansen: The minister said that the lack of definition is not problematic. I believe it is problematic. If you take the example of the construction of a bridge -- whether it's 40 feet or 400 feet or 27 feet or whatever that converts to in metric, if we want to be in the 1990s -- clearly you have companies that have to quote on those. You've got a tender call that goes out for the construction of a bridge, and the first question that gets asked is: what master collective agreement does this fall under? What are the wage rates that are going to have to be paid?

If you're in a company and you're an estimator and you have to quote the construction costs for projects so that the company can bid on the project, it's clear that there have to be some fairly specific

definitions. Maybe the minister could give us some indication as to what kind of a time line we're looking at that would result in some of the clarification for this type of issue that's going to come forward.

Hon. D. Lovick: I think I've answered the question already. That's why the board is given the discretion it has. That's why the board, as I said, would probably hold a policy conference or something to answer and to deal with those questions.

C. Hansen: If I can pursue that, is the minister anticipating that the Labour Relations Board will be proactive in coming up with a definition, or are they going to wait for a case to come before them that will become the basis upon which they give the ruling? Is the Labour Relations Board going to set out, at a very early opportunity to define this, without waiting for some company to come into the cross-hairs on a particular issue?

Hon. D. Lovick: It seems to me that it would make sense for the board to do that.

C. Hansen: We're talking about an issue that I think is of major concern. It's a question as to whether the minister is going to show some leadership in this area. Is the minister prepared to ask the Labour Relations Board to be proactive and to go out and seek clarification on this, rather than the situation that exists today -- that some company has to get caught in a case that may take some time and expense before there's a determination by the LRB?

Hon. D. Lovick: The board has the capacity to deal with problematic issues such as this. I've already said that I think they would be proactive. I also suspect that the board would be mindful of what has been said in the course of the debates surrounding Bill 26. They're certainly going to be looking at what extra responsibility it might confer on them.

But I want to emphasis that the board is not a piece of the government; it's not like a line ministry. It isn't the case that I would call the board the way I would a deputy minister and say: "I want you to do the following." It is at arm's length; it has quasi-judicial powers; it is separate and distinct from government -- as it should be because it makes rulings on difficult issues. It's supposed to be accurately and fairly representing the interests of both management and workers. Therefore for government to suddenly be in the process of saying to the board on a regular basis, "Do this; do that," is inappropriate, I think.

[4:00]

C. Hansen: To go back to the comments made by my colleague from Richmond-Steveston, we talk about the responsibility of the Legislature and the responsibility of either a judicial body or a quasi-judicial body. Certainly it's the Legislature's responsibility to put in place the legislation, and it is those bodies' responsibility to interpret it. I guess I have a real concern if we start moving to an American system, whereby the courts and the quasi-judicial bodies are given fairly broad-reaching responsibility when it comes to the

interpretation of legislation -- where you start expanding the parameters of legislation based on the rulings of those bodies rather than the political wishes as expressed by a Legislature.

I don't want to get into a broad philosophical discussion on this, but does the minister not feel that it is more the responsibility of the Legislature to give direction and certainty than it is for the Labour Relations Board to try to anticipate what was meant by this chamber when passing wording that is as loose as what we have before us?

Hon. D. Lovick: I think we've already explored the notion of achieving certainty in legislation and have realized that that's somewhat illusory. The notion that somehow, by drafting legislation, the issue will be solved for all time is, frankly, a bit of a canard. It just isn't going to happen -- never has.

Secondly, creeping Americanism -- or whatever my colleague alludes to -- has been the status quo in this province for a long time and indeed in every province in Canada. All commissions and boards have been doing that kind of thing for years. That's their function; that's their role. Every jurisdiction in this country has said that that's a preferable method rather than presume that legislators have all the answers. Legislators give broad policy direction. Bureaucrats and professionals carry out those directions and refine, fine-tune and clarify them so that they are indeed workable.

C. Hansen: I want to refer back to Bill 44 from last year. Again, in the

definitions section, we came up with some of the terms. In this particular bill there was a lack of definition of these sectors as well. If nothing else, I guess there are full marks for consistency. In Bill 44, the Labour Statutes Amendment Act, 1997, it had broken down the construction industry into seven subsectors.

We talked earlier about the pipeline subsector and the fact that it's distinct from ICI. We talked about the sewer and water main sector being distinct from ICI. We talked about the roadbuilding sector as being distinct. The one that I had not touched on, which I want to get the minister's assurance on, is the electrical power subsector. I gather from the minister's earlier comments that this is also not part of ICI. I am wondering if I can get that clarification from the minister.

Hon. D. Lovick: If the member is talking, Madam Chair, about Allied Hydro, then he's quite correct.

C. Hansen: No, what I'm talking about is the broad electrical power subsector, as was envisioned in the bill that was presented last year.

[ Page 10097 ]

Hon. D. Lovick: I'm struggling a little bit. The member is asking me, essentially, about a bill that isn't before this Legislature and that we're not debating, and he's asking me about

definitions based on another list of categories. I'm struggling with that. Would he like to perhaps be a little more precise and tell me what . . . ? Is he suggesting that the definition we have presented for ICI construction is unsatisfactory or confusing because of something? And if so, would he explain that for me again?

C. Hansen: What we have been trying to do is get a more concise definition of what ICI is. Since we haven't been able to do that in a positive way of the minister telling us in specific terms what it is, what I'm trying to find out is what it is not. Last year the minister talked about these commonly understood, historical

definitions as to how the construction industry is broken up. Last year we had a bill presented that took the entire construction industry and divided it into seven sectors, one of which was the electrical power subsector. That was, at that time, distinct from ICI. I'm assuming, given the minister's reference to us using these historical

definitions, that electrical power is still excluded from ICI in the bill that has been presented to us this year.

Hon. D. Lovick: I am advised that the list the member refers to was developed largely in order that the bill, given its purposes, could capture what was referred to as the Allied Hydro projects. That was the purpose of it.

C. Hansen: I want to get the minister to give more clarity to how this ICI definition will be applied. If we start talking about . . . . The minister said that a building, for example, that is primarily residential would be considered residential. A building that is primarily commercial would be considered commercial. I'm wondering what he sees as the components of the building. If we start to think about a block in downtown Vancouver where they're going to come in and dig a parking lot and build it up, it's easy to see that that is in fact a project -- that is, one building. But in many other forms of construction we start to see various projects that in fact come together.

I'm wondering if the minister could give us some definition as to how this definition gets applied from project to project when they're perhaps adjacent to each other -- or components of projects.

Hon. D. Lovick: I think the question is best answered by saying that those are the kinds of curious and, dare I say, peculiar circumstances which we can all envisage, we can all imagine, which will never be dealt with by having a one or two sentence definition or a concise definition, as the member was asking for. It just won't happen. It seems to me that the question the member asks is precisely the kind of question that would be addressed by the LRB being a bit proactive and saying: "Okay, how do we look at these things? Do we define a project as all on one lot?

Or do we say that there are two or three bits and pieces of it -- components, to use the member's word -- that might be on different lots or might be staged in at different times?" You know, six months or a year later, all of those . . . . Again, we can think of a hundred variations on a theme.

Again, I think the member makes my point about why we're using the definition we are, why I think it's appropriate and why at some point we have to defer to the wisdom and the expertise of the board.

C. Hansen: Perhaps to clarify where I'm coming from on this, I'm not arguing that the definition, as it is contained in the act, is inappropriate. What I'm arguing is that I think it is a responsibility of the minister, during the course of this discussion, to give more specific definition to what it is. That's what I'm trying to get at. As I mentioned earlier, I'm not trying to move an amendment to this. In fact, quite frankly, I agree that it would be very difficult to entrench in statute a very precise definition of what ICI entails. But I do believe that it is important for the minister to give more direction to those who have to subsequently interpret this particular wording.

I know that last year, during the discussions that evolved around Bill 44 at the time, there was some concern about how the marine construction industry would be impacted by what was in Bill 44. I'm wondering if the minister could give us some explanation as to how marine construction might be impacted. It's my understanding that marine construction is in fact seen within the industry -- and has traditionally been seen -- as being its own separate subsector. And at the time of the Bill 44 discussion, there was some debate as to whether it should or should not be a separate subsector in the context of what was presented last year. So I'm wondering if the minister could enlighten us on that.

Hon. D. Lovick: I don't think it's the case that the components of industry, which the member referred to, represent a separate and distinct subsector. Rather, they saw themselves as being unique within the industrial sector. I think that's a more accurate characterization of how that works -- not a separate sector; but rather, they consider themselves to be unique within that subsector and therefore thought that they should be allowed the opportunity. And they did indeed go out on their own and have their own separate bargaining structures for a period of time.

C. Hansen: By that, is the minister saying that the marine trades are clearly within this ICI definition, then, as we have it before us? Is marine construction clearly within ICI construction? Is that what he was telling me in his previous comments? Or maybe I've misinterpreted it.

Hon. D. Lovick: No, we aren't saying that, Madam Chair, because we are not starting from the proposition that there is a separate sector called marine construction. Instead, we're saying that there's something called industrial and something called institutional, and that we think those would in fact cover the questions regarding marine as well as on land.

C. Hansen: I want to come back to this issue of roadbuilding. The minister was quite clear in stating that roadbuilding would be excluded. I want to get some certainty. Maybe that's wishful thinking, but at least some clear . . . .

Interjection.

C. Hansen: I know the minister has been dealing a lot with issues of certainty, wearing his other hat.

In terms of roadbuilding and bridge construction, I think we've got that clarified. But if we have a project that involves road construction and bridge construction . . . . Let's say it's a large bridge, not this 27-foot bridge we were talking about earlier. Is the work that is traditionally done by roadbuilders in this province separate from ICI? Can we, for example, single out the bridge construction in a highway construction project? Would bridge construction be a stand-alone project? Or would it be deemed to be part of one project? I guess the other question is . . . . I'll let the minister deal with that one, and I'll try to be more precise in the second one.

[ Page 10098 ]

Hon. D. Lovick: The short answer to the question is that it would be how the project was tendered.

C. Hansen: So in other words, if you had . . . . If we're thinking about construction that's being done by the province of British Columbia, that may be easy to do. Certainly the provincial government has control over how the tendering language is used. But if we start seeing the construction of a private road in B.C., is the minister saying that that depends on how it's tendered? If the tender goes out as a road construction project with all of its components, then it would fall under this roadbuilding definition. Is that appropriate? The minister is nodding his head, but I'll give him a chance to answer.

[4:15]

Hon. D. Lovick: I should never have paused. I was about to answer the member's question with a clear affirmative, but then I listened to some advice here. I'm sorry, I got it mixed up. Now I'm afraid to answer in the clear affirmative. With apologies, I'll ask the member if he would mind repeating the question. I think it is a clear affirmative, but before I say that, I'll make sure I've got the question right.

C. Hansen: We do want to be clear on this; we do want clarity. That's what this whole exercise is about.

The example I used was the construction of a private road, which would have a significant bridge as part of that. There are lots of examples in this province of the construction of private roads. The minister stated earlier, I gather -- or at least I drew from it -- that that depends on how the project is tendered. If it's tendered as just a bridge construction, then it may or may not fall under ICI as per our earlier conversation. If it is tendered as a road construction which may include a bridge as one project, then it does not fall under ICI construction. That's the clarification I'm looking for.

Hon. D. Lovick: If it is predominantly road, it would be outside ICI -- yes.

C. Hansen: I just wanted clarification in terms of . . . . Perhaps the minister could explain to us what other possible forms of horizontal construction, other than major bridge work that is a separate project unto itself . . . . In fact, I'm not even sure if you could argue that construction of major bridges is a horizontal project. I'm sure some would argue that that's a vertical project. But is there any other form of horizontal construction in British Columbia that would be captured under the definition of ICI?

Hon. D. Lovick: My officials, with their expertise, say that they can't think of any offhand, but they are reluctant to say that there is no such thing -- because there might be. But intuitively, the answer is no, we can't think of any.

C. Hansen: Some of my colleagues or I may come back to ICI construction -- specifically that definition. But I do want to move on to some of the other issues that we have before us.

In the act there are some areas for which there are no

definitions presented. I want to raise them now. Procedurally, hon. Chair, I'm not sure, when it comes to

definitions that are not presented, whether this is the

section under which they should be discussed or if they should be discussed under the

section in which the term is actually used. I'll just give an example, which may help the Chair in giving some advice on this -- or the minister. I'm not sure who to ask in this case. In

section 2,

section 55.17, the word "enabling" is used. To the best of my knowledge, enabling is not -- in this context, at least; in the context of construction -- used in any other labour code in Canada, if not in North America. It's a word that I'm not sure has a definition that is commonly understood. I'm wondering if the minister could explain why this particular

section does not include a definition of enabling.

Hon. D. Lovick: The member's question, I take it, is asking why this legislation doesn't include a definition of enabling. Is that correct? The assumption, I am advised, is that the industry (

a) does indeed understand it and (

b) has been carrying out what are called enabling practices for a very long time. Therefore it was perceived that we didn't really require that definitional component here.

Madam Chair, I wonder -- with the indulgence of the member opposite -- if we might perhaps declare a brief recess. I would rather do that than vacate to go take a phone call. So if the member is willing, I would ask for a recess of ten minutes.

The Chair: If it's agreeable to the committee, we will recess for ten minutes and reconvene at 4:30 p.m.

The committee recessed from 4:20 p.m. to 4:33 p.m.

[E. Walsh in the chair.]

C. Hansen: As I mentioned before our break, we may well want to come back to ICI. We went on to talk about enabling. I was asking the minister why we don't see a definition for enabling in here, given that it is something that is really quite new and quite unique.

Hon. D. Lovick: I thank the member for the courtesy of allowing that recess.

The argument -- and I think I just touched on it briefly -- is essentially that we don't do it because it is a well-established practice in British Columbia. Everybody is indeed familiar with it; everybody in the industry is familiar with it. Therefore it was perceived that we simply didn't require that definition. I think that when we look at that particular

section of the bill, one will discover that what it says is sufficient to remove any ambiguity or doubt; that's my hope, at least. Of course, as we know, that more properly belongs to that

section of the bill rather than to a definition. But I hope that answer is helpful.

C. Hansen: Certainly we will, of course, deal with that in more detail when we get to that section.

I'd like to turn to the definition of "bargaining council." I've got no particular problem with the definition as it's worded, because it doesn't really say much other than " 'bargaining council' means the bargaining council established under

section 55.18" -- which, of course, is the provision that says: "

(1) Trade unions representing employees in craft bargaining units . . . must establish a bargaining council . . . . " I'm not sure whether this is the appropriate place to raise this or perhaps under

section 55.18, but I'll take the minister's answer wherever in the debate he wishes to give it -- that is, why is it that we are spelling out a very specific organization on the employers' side, the Construction Labour Relations Association, but we are not specifying a very specific organization on the trade union side? I'm wondering if the minister could

[ Page 10099 ]

explain: why is it in here that we're defining bargaining council rather than the specific organization known as the Bargaining Council of British Columbia Building Trades Unions?

Hon. D. Lovick: I think the short answer to the question, Madam Chair, is: because that definition is indeed provided under

section 41 of the code. It says that this is deemed to be a council of trade unions. In terms of more specifics, I think the member is quite right that we could look at that when we get to that

section rather than the

definitions one.

C. Hansen: Certainly, as the minister indicated, we will pursue that when that time comes. But I think it does beg the question in terms of how labour codes have been implemented in other provinces. And it also indicates, under our existing Labour Code, that we do have a process by which bargaining councils can come together. But, of course, that's another whole argument that we have pursued in the hours that have passed, so there's no use revisiting that.

If I can turn to the definition of "construction industry" now, I understand that this is a definition that has been used for some time. In fact, I don't believe it's changed at all. If the minister was . . . . I have better wording to suggest. I'm not going to move it as an amendment, but I want to put it on the record as something that I think the ministry should consider in the future, because the definition as it is worded is somewhat confusing. It has been around for a long time, and I appreciate that there's probably some jurisprudence that has been built up around it.

But in my opinion, this particular definition would be much clearer to those who are trying to read it -- in the interests of plain language, perhaps -- if it said: " 'construction industry' means the employers and employees engaged in construction work." Then give us a second definition for construction work, meaning the alteration, decoration, repair, demolition . . . . I think it's something that I would like to put on the record for the ministry to consider in case we are looking at a similar definition to be included in future regulations or whatever. I believe that has some merit.

The minister may want to respond to that.

The other area that I'd like to talk about is . . . . When we talk about those, it does not include those employers and employees engaged in (

a) delivering supplies and materials to a construction project or (

b) routine maintenance work. Again, I appreciate the fact that there are some longstanding

definitions as to where this is divided. My concern is whether or not there is any initiative underway at this time to change the jurisprudence that may be around those particular terms, specifically with regard to (b), in terms of routine maintenance work.

The specific case that I would like to ask the minister to comment on is highway maintenance. Highway maintenance in British Columbia is something that is done quite differently today that it was when this definition was implemented. I would just like the minister's assurance that that continues to be considered routine maintenance work for the purposes of this definition.

Hon. D. Lovick: I'm familiar with the issue. Indeed, I met with the roadbuilders, just as I suspect my colleague across the way did. Therefore I know where the concern comes from. Our conclusion is essentially that what the highways maintenance contractors are worried about is simply whether this apparently new terminology for maintenance might in fact mean that work that they now do as roadbuilders would be considered industrial. Our answer to that is no.

Routine maintenance is routine maintenance, whether it's done by the maintenance contractors under slightly different terms or whether it's the terminology we're using here. We've given them that assurance, just as I'm giving that to the member opposite. I don't think there's a problem.

C. Hansen: Maybe the minister was assuming that that came from the employers' side, but it is certainly of major interest to the B.C. Government Employees Union, which has most of these maintenance contracts. I'm sure they will be reassured by the minister's comments.

If I could move on to "craft bargaining unit," as we have it, it talks about . . . . I think the first part of this definition is quite clear. Then you get down to the last line, and it sort of throws an open-ended aspect into it at the very end of this definition. If I can just read this briefly: " 'craft bargaining unit' means a craft unit of employees recognized by the board under this Code or a unit or units in which employees, in the opinion of the board, belong to a craft . . . . " I think that is clear, although there are some other issues that I'll be raising there.

Then it goes on to say: " . . . or group exercising technical or professional skills." I think that makes it much more open-ended than it might otherwise be perceived. I'm wondering if the minister could explain why that definition ends with this broadening to include just groups exercising technical or professional skills.

Hon. D. Lovick: The member's question has to do with what some would refer to as a two-pronged definition. Let me, if I can, clarify. The definition uses the two-pronged definition simply to ensure that the board has sufficient powers to make sure that all the contractors in union bargaining units get brought into the newly created ICI bargaining structure. That's the primary purpose. This would not have been needed if the board's approach on issuing "craft" certifications had been more consistent in the past. However, what can happen now -- and the member asked appropriately about jurisprudence -- is that a union can either apply for a craft certification under

section 2, or apply for an "all-employee unit" under

section 18. What can happen, then, is that a unit which is essentially composed of a single craft -- say, carpenters -- can be certified as an all-employee unit, since that is the only type of worker the contractor employs. Hence this definition, which simply allows the board to look at the "substance," or what I would call the reality of the bargaining unit. I think that probably clarifies it.

C. Hansen: Again, I don't want to put words in the minister's mouth, but I'm trying to understand his explanation. So what we're dealing with in terms of a craft bargaining unit is a craft as we now know it. We're not talking about a great expansion of crafts, but we're talking about the 15 craft units as we know them today. The sole purpose of these final words is to allow the board to designate a unit as a craft unit if all of the employees in that unit are members of what we currently know as one of the crafts.

Hon. D. Lovick: The short answer adds: "or a number of the crafts." I would also point out that in

section 21 of the existing code there is a definition of craft union, which in fact picks up that phraseology the member expressed a concern about: " . . . belong to a craft or group exercising technical or professional skills that distinguish it from the employees as a whole . . . . " So the same concept is, if you like, picked up here.

[4:45]

[ Page 10100 ]

C. Hansen: In other words, if you had a company that employed only bricklayers, and they were certified to a union other than one of the bargaining council members as we currently know it -- let's say they were certified to the IWA, but the company only employs bricklayers -- that company could in fact be caught in this definition of a craft bargaining unit and therefore be brought under these bargaining provisions. The minister is shaking his head, so I would welcome his clarification.

Hon. D. Lovick: The short answer to the question is no.

C. Hansen: Thank you. Now I'm looking for the long answer, because again, if you come back to . . . . Okay, you have a union other than one of the traditional craft unions as we now know them. There are 15 craft unions today. There's certainly some speculation that in the future we may see a reduction in the number of unions within the building trades and that there may be some mergers and consolidations that are going to take place in the future. Certainly that's something that I think would be in the best interests of all concerned, especially the workers involved.

But if we have bricklayers who are certified to a union other than the 15 unions as we now know them -- all they do is bricklaying -- they still have the prerogative of being certified as an industrial-style union. Is that what the minister is saying?

Hon. D. Lovick: The member is correct, yes. But he should also understand that the bricklayers could raid them to try to get them to become bricklayers rather than, you know, a wall-to-wall union. You won't even talk about internal politics, eh?

C. Hansen: Okay, I appreciate that clarification. Just to expand on that, if you had a worksite, an employer that has more than one trade involved -- so they are wall-to-wall, as we commonly refer to it -- the union has the opportunity to seek that certification. So if you have more than one trade, as we know it today, existing in that union, it is the provision by which it could be raided. Again, the minister may want to leave this to another section. I'm going down a road that's going to take us . . . . Actually, I'll do that; I'll save that for a later section.

But just to come back to this very specific definition of a craft bargaining unit, does the minister anticipate that this definition of craft bargaining unit would expand to include trades other than the 15 trades as we know them today?

Hon. D. Lovick: The answer to the question is yes, that is conceivable. It's worth noting, however, that this would be created by ITAC, the Industry Training and Apprenticeship Commission, and then the determination would have to be that that is indeed a craft connected with construction. So there would be, if you like, a two-stage . . . . But, yes, it's quite conceivable that there could be another craft.

C. Hansen: In other words, ITAC would come forward with a recommendation to the minister, I assume, to say that for the purposes of this

section of the Labour Relations Code, a new craft would be added. I'm just wondering what they . . . . Certainly ITAC is going to wind up designating new crafts or new trades in all kinds of areas. But the fact that a new craft is developed for the purposes of this

section of the Labour Code -- is that up to ITAC, or is that the minister's prerogative or the LRB's prerogative? If the minister could explain that.

Hon. D. Lovick: The member's correct that ITAC would make a recommendation, and their recommendation would be simply that job X would be designated as a trade or a craft or whatever. Then the minister's responsibility, of course, is to take that to cabinet and get the appropriate order-in-council or other mechanism to make it law.

C. Hansen: Do I take it from that, that it will include, as part of the

interpretation -- the regs that may come out of this particular

section of the LRB -- a listing of very specific crafts that would be included? Is that a fair assumption? If the minister says that by something that's going to get taken to cabinet in the future to add a craft through order-in-council . . . . Is that to amend a regulation that we will wind up seeing come forth as a result of this legislation being implemented?

Hon. D. Lovick: I was just afraid that I was once again getting more information than one needs and was going to be miles away from the question that the member was asking.

The legislation that we're discussing is not designating any crafts or anything like that. That's quite separate and distinct from what we're doing. It is conceivable, however, that ITAC may do so, and the determination, of course, has to be whether that craft fits into the industrial sector. In terms of whether it would be a new craft and therefore a new union, what would more likely happen is that the new craft, something brand-new, would probably affiliate with an existing union -- plumbers, pipefitters, whatever -- that seems to be in that trade but is somewhat different. I think that is the more likely scenario rather than it being a brand-new, authentic and different craft.

C. Hansen: It's my understanding that the Labour Relations Board has been quite reluctant to expand the number of crafts that we currently have. I think I referred to the 15 craft unions that we have, but I understand that within those 15 craft unions there are about 21 crafts per se. I gather that for ITAC to designate a new craft is not something that's anticipated at that point. Is that a fair question? It's something that would be quite unusual and perhaps unforeseen.

Hon. D. Lovick: With all due respect, Madam Chair, I don't think it's related to this legislation, but I don't mind saying that in my opinion, no, it isn't anticipated.

C. Hansen: That's helpful. As the minister well knows, there are lots of people who will read language into this and feel threatened by it, and I think the minister's words are reassuring in that regard.

If I can move on to another

section here, and that's . . . . I see again, with regard to a

section that's not included, a definition that's not included in here: a contract administration fee, which we find in

section 55.24. It's the contract administration fees that can be assessed by the CLRA against companies that fall within ICI craft bargaining but choose not to be members of the CLRA. I wonder if the minister feels that there is currently a definition that is commonly understood as to what a contract administration fee entails.

Hon. D. Lovick: I am not sure that I can give the member the answer that, yes indeed, there is a standard workable

[ Page 10101 ]

definition. But I think I can give him some comfort by simply saying that the contract administration fee will become part of the constitution that the CLRA, in this instance, would use and, further, that that constitution would have to be approved by the Labour Relations Board. I think that will probably address the concerns that animate that particular question.

C. Hansen: At some point I do want to deal with the kinds of

interpretations that are left to the board. Perhaps I'll come back to that after we've covered a couple of these other examples of things that are going to have to go to the board.

Under "project collective agreement," it actually develops a tripartite collective agreement. Traditionally, what we have seen is that collective agreements are between trade unions and the employers, or groups of unions and employer bargaining groups. In this definition we've brought a third party into this collective agreement, and that's the project owner or owners. I'm wondering if the minister could explain why we are coming up with this brand-new approach to collective bargaining as a tripartite arrangement rather than a bipartite arrangement.

Hon. D. Lovick: I'm advised that the answer to that is simply that in a number of particular projects, there is ample evidence and experience to show that sometimes the owner wants to stay in the management of the project. For example, they may become anxious about costs that they perceive to be skyrocketing or if things aren't . . . . I guess it's like building a house. As the work unfolds, we all say, "Wait a minute; that's not quite what I had in mind," even though we thought the blueprints were clear. That's an anecdotal example, but that may clarify it somewhat.

An example in ICI would be something like the convention centre, where a number of people are building the thing. I don't imagine that the people involved in that project are willing to effectively sign over all those -- for want of a better term -- management responsibilities or opportunities to their general contractor or whoever. That's essentially why this is here.

C. Hansen: This is going down a very different road from any that we have travelled before in this province in terms of collective bargaining. I wonder if the minister could give us any examples -- outside of British Columbia, perhaps -- of where there is this kind of tripartite agreement in place.

Hon. D. Lovick: It's not a well-travelled road perhaps, but it isn't unique and different. This is what happened in Expo 86, I gather; that's the way it was done. I understand, moreover, that other jurisdictions . . . . Ontario, for example, has recently established a mechanism very similar to this.

C. Hansen: Isn't the more logical route for the project owner to have a contract with the employer, the companies that are employing the workforce, and then the employer in turn has the contract with the employees? Through this wording, you're going to wind up with this tripartite arrangement that's going to wind up with a relationship -- in a labour context, an industrial relations context -- between the trade union and the project owner, as a direct relationship in that three-way partnership. That sounds quite bizarre. I'm wondering if the minister could explain how the Labour Relations Board, for example, might deal with a collective agreement of that nature.

Hon. D. Lovick: I don't think, Madam Chair, I can presume to answer the question of how the LRB might deal with that kind of agreement or arrangement. I suspect that they will do so adroitly and effectively and all of that.

I just want to make one point, though, in answer to the member's query -- namely, I think we should not lose sight of the fact that this definition is in here to talk about a very particular field of construction. When we talk about project agreements, I want to remind the member -- I'm sure that he knows this -- that we are talking about major projects, projects that are deemed to be unique, projects having significant economic importance that are therefore governed by particular and unique arrangements and structures, for want of a better term.

I don't think it's a case of saying: "My gosh, because we accommodate that very special and distinct piece of the industry, then all the rules governing labour relations in the province are somehow going to change," or "We're embarking on dangerous territory." I don't think he meant to say that, but I'm saying it just to give him the reassurance that that isn't indeed the intention.

[5:00]

C. Hansen: I think the sad reality is that any construction project in this province today is unique, and any construction project is in fact major. But I know that the minister probably doesn't want to revisit the whole debate we had in second reading, so I won't go there.

I do want to ask about the definition of unionized construction employer. In here, under subsection (a), we have a change from what we saw last year. In fact, this is a definition that appeared last year in Bill 44, the bill that was not proceeded with. In Bill 44 there was one very significant difference in what constituted a unionized construction employer. Subsection (

a) said " . . . under an order of the board made under this Part or

Part 3." What we have in Bill 26, which is presented to us today, is exactly the same definition that was presented last year, except that the words "under an order of the board" have been removed. I'm wondering if the minister could tell us the significance of that.

Hon. D. Lovick: My eyes light up when I discover something here that I knew nothing about.

Interjection.

Hon. D. Lovick: Not a nice thing to say.

Interjection.

Hon. D. Lovick: Look, I haven't even responded to the member's comment about the absence of construction activity, because the answer is pretty obvious. All one needs to do is really look around a bit, and they'll see a great deal going on even where the member lives -- downtown Vancouver, for heaven's sake. But we'll let that slide.

The answer to the question . . . . It's a fair question, but it's difficult to grapple with questions that say, "Well, there was old legislation here which isn't on the table anymore, so why is the new legislation not using what was in the old legislation?" -- especially when the old legislation is something that members opposite said: "Sure glad you got rid of that."

Having said that, I'll now answer the question. The orders referred to in the old legislation, it's worth noting, were creations of the board at that time. That particular language was required, given the context of Bill 44. If you take away the

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context of Bill 44, then you no longer, therefore, need the language. In other words, Bill 44 created a set of circumstances in which that language was required. We don't require it now, because this is a different bill.

C. Hansen: I want to ask the minister about the two

definitions together: the unionized construction employee and the unionized construction employer. The concern I have is that you have a circular definition. First of all, a unionized construction employee means "an employee who is employed by a unionized construction employer," etc. Then if you come down to unionized construction employer, it means "an employer with respect to whom a trade union has established the right to bargain collectively on behalf of unionized construction employees . . . .

" I don't pretend to be a legal draftsperson, but my understanding is that that can become problematic in that each definition is dependent on the other definition. You can never come to a conclusive definition with regard to what one of them is, because it's always dependent on the other definition. I'm wondering if the minister shares my concern that this could become problematic in the future.

Hon. D. Lovick: The

definitions, as in all

definitions, are offered with a view to essentially creating a code to simplify the text, so that one doesn't have to repeat everything over and over again. That's the nature of a definition, and

definitions are always in code. Perhaps indeed -- and this is more semantic than legal, semantics is something I used to know something about in another life -- you can argue convincingly that all

definitions are circular, that they ultimately define the world in terms of themselves.

Let me just offer a suggestion and give a counterexample. If you were asked to define "Canadian flag," how could you not define it except in terms of Canada and Canadian? And it's so with this. If you're talking about a unionized construction employee, to understand that you have to make reference to employers. An employee doesn't function unless there's an employer to relate to. No, I don't share the member's concerns, and I hope that in that slightly less than articulate presentation, I may have explained why.

[W. Hartley in the chair.]

C. Hansen: The term that's defined in here, unionized construction employer, does not appear anywhere in the legislation. I'm wondering if the minister could explain to us why we have this definition here.

Hon. D. Lovick: The short answer is that it is contained in the legislation. It's contained in the other definition, but that's rather childish so I won't say that.

I'm not sure the member is right; he may be right. But again, to round out and give clarification to one definition, you need the other. That's probably the short answer.

C. Hansen: Certainly if the minister can come up with another place where it is used . . . . It may have been my reading; I was trying to read over this too quickly. In fact, going back to the amendment we put through earlier that talked about the trade union representing employers, I must confess that I read that many times before it jumped out at me. It may well be that the definition is in fact used somewhere, but I didn't read it in my review.

Interjection.

C. Hansen: Oh, the minister says he has an example, so I would be pleased to accept that.

Hon. D. Lovick: It's

section 55.2(1): "CLRA is authorized to bargain on behalf of all unionized construction employers," etc., etc. I'm sure the member will take comfort from knowing that's there.

C. Hansen: If I could move back to the definition of building trades employer, I'm wondering if the minister could explain to us how an employer deals with being both a building trades employer and a non-building trades employer. If you start looking at the definition of building trades employer as we have it, it says it means "a unionized construction employer that has a bargaining relationship with a trade union representing employees in craft bargaining units in ICI construction." Hon.

Chair, I wonder if the minister could explain where that definition gets limited, because you will have an employer who potentially -- in many cases, in fact -- will be both a building trades employer and a non-building trades employer perhaps on the same day and perhaps with the same employee. I wonder if the minister could give some parameters to that.

Hon. D. Lovick: We're perplexed, because I'm not sure what the problem is that the member is addressing. I'd ask him if he would mind perhaps elucidating.

C. Hansen: Maybe I'll approach that from a different direction. If the minister could clarify that it is in fact only employers that have to have a craft certification with the building trades union that get caught under this definition . . . . If he could give us that assurance, that might help clarify this for us.

Hon. D. Lovick: I believe that's precisely what the definition says, it seems to me. Indeed, that's the one we amended because we had employers mixed up with employees. So yes, I think I can give the member that assurance.

Hon. Chair, noting the hour, I would like to move, by agreement, that the committee rise, report progress and ask leave to sit again.

Motion approved.

The House resumed; the Speaker in the chair.

The committee, having reported progress, was granted leave to sit again.

Ministerial Statement

NISGA'A NEGOTIATIONS AGREEMENT

Hon. D. Lovick: It is a great pleasure and a great honour to inform members that negotiators for British Columbia, Canada and the Nisga'a tribal council have today reached a significant milestone in negotiations to resolve the Nisga'a land claim. Only minutes ago in the community of Terrace, negotiators for the three parties reached an agreement on the text of a final agreement, a document that we are optimistic will become the first modern-day treaty in British Columbia.

Hon. Speaker, I think it's very clear that British Columbians want us to get on with the job of resolving land claims. In the history of our province, this event today is our most significant step forward and the clearest proof of our determination to end a history of injustice and divided communities. It shows that we can build a future of certainty and a future of opportunity from a past of uncertainty and dependency.

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A Nisga'a final agreement will be the result of 25 years of negotiations, which sends a powerful, simple message to our citizens, to Canadians and indeed to the world -- namely, this generation of Br