1987 Legislative Session: 1st Session, 34th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, JUNE 16, 1987

Afternoon Sitting

[ Page

1797 ]

CONTENTS

Routine Proceedings

Oral Questions

Proposed South Moresby Park. Ms. Smallwood –– 1797

Mr. Williams

Mr. Guno

WCB surplus. Mr. Gabelmann –– 1798

Contract of B.C. Games director. Ms. Edwards –– 1798

Letters of chief electoral officer. Mr. G. Hanson –– 1798

Ministerial Statement

Distribution of income assistance cheques. Hon. Mr. Richmond –– 1799

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

Hanson) –– 1799

Mr. Gabelmann

Mr. Long

Mr. Sihota

Ms. Edwards

Ms. A. Hagen

Mr. Rose

Mr. Huberts

Mrs. Boone

Mr. Hewitt

Mr. Clark

Mr. Lovick

Mr. Miller

Mr. Guno

The House met at 2:05 p.m.

HON. MR. VEITCH: In the members' gallery today we have a most

distinguished visitor. Visiting us is Her Excellency Dr. Hedwig

Wolfram, the ambassador of Austria to Canada. I would ask the House to

please bid her welcome.

MR. LONG: I have two very important people from my riding

here with me. They're in Victoria on their honeymoon: my son Phillip

and his new bride, Melody.

HON. MR. SAVAGE: Mr. Speaker, it gives me a great deal of

pleasure to recognize in your gallery the general manager of the B.C.

Federation of Agriculture and his good wife, Jack Wessel and Geraldine

Wessel, and my wife, Margaret. Would the House please make them welcome.

Oral Questions

PROPOSED SOUTH MORESBY PARK

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

and Parks. The federal Minister of the Environment told the House of

Commons today that the federal offer is still on the table, and that

negotiations could continue regarding South Moresby. My question is: is

your government, Mr. Minister, so lacking in vision that it is unable

to compromise with anybody about anything? Will you not go back to the

table and negotiate in good faith?

MR. SPEAKER: The first part of the question is out of order, but the minister can answer the second part.

HON. MR. STRACHAN: The decision to abandon negotiations came

as a result yesterday of a conversation between the Deputy Prime

Minister and the Premier. We have agreed in our government that our

position will be to not issue cutting permits, and to not make any

formal statement towards a park area until a cabinet meeting one week

hence. So really, the negotiations can continue until June 24. However,

I should also advise the Legislative Assembly that my recommendation is

going to be for the Wilderness Advisory Committee recommendation for a

provincial park. This recommendation is endorsed by the Moresby Island

Concerned Citizens, and by letter of January 6, 1987, endorsed by the

Leader of the Opposition. We got the letter.

MR. WILLIAMS: To the Minister of Forests, Mr. Speaker. The

compensation proposed initially and discussed with respect to South

Moresby is as high as that for any national park we're aware of, and

more generous, in a sense, in terms of sharing, which wasn't required.

The question is with respect to timber values. Can the minister

advise the House if his ministry made a tentative estimate with respect

to timber values in the park boundary area?

HON. MR. PARKER: Yes, we did, Mr. Speaker.

MR. WILLIAMS: Will the minister advise the House what that number is?

HON. MR. PARKER: Mr. Speaker, that number is a basic number of $200 per cubic metre for economic activity to the province of British Columbia.

MR. WILLIAMS: If the minister could clarify, can he give us the capitalized value with respect to the timber in those licences?

HON. MR. PARKER: No, I can't at this time, Mr. Speaker.

MR. WILLIAMS: Can the minister report to the House with

respect to the proposals for stumpage changes? These were free Crown

grants to the timber company; the timber they received from the Crown

was free. Huge numbers are now applied to that, which would not be

there if we had a proper stumpage appraisal system. Can the minister

advise us when that mess will be cleaned up, so that we won't have to

pay again for our own free Crown land?

HON. MR. PARKER: Mr. Speaker. the stumpage appraisal system

is essentially the same one that was in place when the hon. member was

Minister of Forests.

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

The minister just referred to the wilderness committee report. Can the

minister tell us whether or not he'll be accepting the committee's

report for compensation in this regard?

HON. MR. STRACHAN: Yes, I gave that answer a few moments ago,

Mr. Speaker. I said I would be recommending to cabinet on June 24 that

the Wilderness Advisory Committee report be considered for a provincial

park. Again, that is a position that's endorsed by your leader.

MS. SMALLWOOD: My understanding is that the Wilderness

Advisory Committee report's compensation package is much less than what

the federal government has already agreed to. Will the minister agree

with that?

HON. MR. STRACHAN: The Wilderness Advisory Committee report

contains some numbers with respect to stumpage value, but essentially

points out the land loss or land alienation for a park. One can then

extrapolate the cubic metres lost on an annual allowable cut basis.

Multiply that by the cost per cubic metre, and you'll have the answer.

MR. GUNO: A supplementary to the Premier, who I see is just

entering the chamber. The Haida people are the traditional custodians

of this land, and they have indicated that they will continue to

protect it. The Premier has indicated that he has faced intense

pressure from 70-odd loggers. Is the Premier prepared to deal in good

faith with the legitimate interests of the Haida people, or is he

prepared to have another confrontation with those people on this matter?

HON. MR. VANDER ZALM: Mr. Speaker, I obviously don't have the

advantage of the questioning that took place before the supplementary,

but let me say this. We have those who are legitimately entitled to log

on Lyell Island. They were granted a licence some time back. We also

have 75 people potentially employed on Lyell Island. They have their

homes. Some have their families there. All of this is legal: all

[ Page 1798 ]

of this is proper. Frankly, while cabinet will be

discussing the whole matter soon, and while obviously we would want to

have talks with the Haida people if they so wish it, we definitely do

not want to interfere with the rights and the entitlements of those

people employed on Lyell Island now.

WCB SURPLUS

MR. GABELMANN:

Section 67.2 of the Workers Compensation Act —

this is a question to the Minister of Labour and Consumer Services; my

apologies — requires that all surpluses be reinvested in trust funds.

Has the minister decided to instruct the board to comply with the law

by rescinding its decision to give $99 million of surplus to the

employers?

HON. L. HANSON: I think that the announcement made by the

chairman of the WCB was in the form of credits to future assessments,

as opposed to actual dollar rebate to the members in terms of cash out

of the till.

[2:15]

MR. GABELMANN: Yesterday in the House the minister said, and

I quote: "...only a distribution of a portion of the surplus." Those

are the words he used to describe this $99 million, that it was only a

distribution of a portion of the surplus. Is the minister saying today

that he didn't know yesterday what this issue was all about?

HON. L. HANSON: No, I'm not saying that at all. The form of

distribution happens to be a credit to future assessments against the

payroll; that, in my

interpretation, is a distribution of, or a

reflection — I guess that's maybe a better term — of fees that were

assessed against the payroll that were in excess of the actual

experience.

I think I'd like to say at this time, since the question has been

raised, Mr. Speaker, that British Columbia's workers' compensation plan

is by far the best in Canada; the levels of compensation are certainly

reflective of that. Most provinces have come to British Columbia,

looking at our workers' compensation plan, to understand why it does

work so well.

MR. GABELMANN: In the last two years the board has written

down close to half a billion dollars in unfunded liability. In addition

to that, it is making a gift of $99 million to the employers. At the

same time, the standard of service to workers who are injured on the

job in this province has gone downhill in a very dramatic fashion. Why

is it that the government can't insist that the board use some of this

surplus and some of this money that has obviously been generated in the

last few years to assist workers in this province who are going without

as a result of these punitive policies?

HON. L. HANSON: Mr. Speaker, again I say that British

Columbia's workers' compensation plan is second to none, and the rates

that we assess against the payroll are reflective of the experience in

the workplace. Those industries that have been recognized have a good

record of improving their safety record and a good record of improving

safety in the workplace.

The instance of claims in those industries that have been recognized

because of safety programs, because of safety committees and other

things that they have put in place, are as a result. The record of

lesser accidents and improvement in accidents in the workplace has to

be recognized, because the whole system is predicated on that

recognition.

CONTRACT OF B.C. GAMES DIRECTOR

MS. EDWARDS: My question is to the Minister of Tourism,

Recreation and Culture. I wonder if the minister could tell me what the

departure of Ron Butlin, former director of the Winter and Summer Games

and the B.C. Festival of Arts, cost the government in terms of buying

out his recently signed contract.

HON. MR. REID: Inasmuch as that's a personnel matter with my ministry, I refuse to answer.

MS. EDWARDS: I have another question for the minister. What

mechanism is being used to administer the Delta Summer Games, for which

Mr. Butlin is simply a consultant? In fact, whose staff will be

working? Will Mr. Butlin's staff be working for ministry staff? Could

you explain the mechanism that is in place?

HON. MR. REID: I'm pleased to answer that question. Currently

the contractor's staff is working on the Delta games, under the

advisement of my deputy minister and my staff on sports and recreation

in the province. Beyond that, we have close to 3,000 volunteers in

Delta who have volunteered to put on the best games ever held in the

province of British Columbia.

Inasmuch as we needed to retain the morale within the volunteers,

which is the major impact in the community, we've offered to continue

the contract of Mr. Butlin until the completion of the Delta games.

LETTERS OF CHIEF ELECTORAL OFFICER

MR. G. HANSON: Mr. Speaker, a question to the Provincial

Secretary with respect to letters written recently by the chief

electoral officer which might more appropriately have come under the

signature of the Provincial Secretary. Mr. Goldberg is writing letters

defending the government's right to take away voter-day registration

and talking about the inability of the government to meet its

obligation in full enumeration when a writ is dropped, when that

statute has not even been debated in this House. The chief electoral

officer should be a non-partisan employee; is this activity with the

knowledge and consent of the Provincial Secretary?

HON. MR. VEITCH: If you're referring to a letter that I believe appeared in the Province

this morning, the chief electoral officer is responsible for the

elections branch. Several allegations were made that certain things did

not occur, which apparently he must have taken umbrage to. I think he's

merely setting the record straight, and the hon. member would do well

to read the letter.

MR. G. HANSON: I think the Provincial Secretary should have

the courage of his convictions and sign those letters himself, rather

than have the chief electoral officer running political errands for

him. Has the Provincial Secretary decided to bring a proposal to this

House that the chief electoral officer should be appointed by an

all-party committee of this House and not be in the partisan position

that he has been taking?

[ Page

1799 ]

HON. MR. VEITCH: As the hon. member knows, Mr. Speaker, that would be

future policy. But also as the hon. member knows, we do have a proposal before

this House by way of a bill, and I'd be very pleased to debate that when

the time comes.

Ministerial Statement

DISTRIBUTION OF INCOME

ASSISTANCE CHEQUES

HON. MR. RICHMOND: I rise to make a brief statement regarding GAIN cheques and the current postal strike affecting various parts of the country.

To ensure that persons eligible for GAIN for the handicapped and

basic income assistance receive their cheques on time, plans are in

place to distribute Guaranteed Available Income for Need cheques —

that's GAIN — from the ministry's district offices throughout the

province if the postal strike is not resolved by Thursday. Distribution

of July income assistance cheques is scheduled to begin June 24.

Announcements regarding where and when cheques will be distributed will

be placed in the local media for the guidance of income assistance

recipients. Wherever necessary, cheques will be delivered — for

example, to the disabled. Payments to foster parents and child care

resources were mailed last week and have been received.

If the postal workers' strike continues to the end of June, plans

are in place to distribute other ministry cheques, such as payment to

recipients of Shelter Aid for Elderly Renters — that's SAFER — day care

operators and residential care operators. Details of the distribution

of these cheques will be announced later.

Mr. Speaker, I wonder if I could have leave to make an introduction?

Leave granted.

HON. MR. RICHMOND: Mr. Speaker, in the precincts today are

about 33 grade 7 students from the Aberdeen Elementary School in

Kamloops, accompanied by their teacher Mr. Gustafson; and I would like

the House to make them welcome.

Orders of the Day

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

INDUSTRIAL RELATIONS REFORM ACT, 1987

(continued)

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

section 62 as amended.

MR. GABELMANN: Mr. Chairman, when we adjourned this morning at 12 o'clock

we were discussing the question of essential services. It's my impression,

having listened to members of the government caucus, both on the record and

off the record, that there's some misunderstanding about the nature of this

particular issue, the whole question of essential services. I think it's

important for us to just briefly review the issue.

Essential services historically were just that — services which were

essential to life and limb. In every case that I've ever known about in

the history of this province, during the course of a strike or a

lockout those kinds of essential services were provided by agreement

between employer and employee. We have drifted in the last 15 years to

a definition of essential services which now includes anything —

anything that can "have an impact on the economy of the province." The

actual words were "poses a threat to the economy of the province."

Well, as I said this morning, Mr. Chairman. with every strike in

which workers have some power there can be some threat to the economy.

Every strike where workers have no power, such as the ones that are

being scabbed, is not a threat to the economy. So the intervention

comes in in places where in fact workers have power and employers may

have only a relatively equal amount of power. Intervention does not

come into play where the employer has all the power and where the

workers have none — the places where the job is being scabbed — because

there is no threat to the economy there. So this whole issue,

apparently catering to the ill-informed views of some people in our

society, about this being fair to all of society is simply wrong: it's

simply a misreading of how industrial relations works. That's the first

point. It's probably too complex for most people to follow. It

shouldn't be too complex for members of this House, but, based on the

comments from the member for Richmond and comments by other members of

the House, clearly they do not understand this essential issue.

I think it's important also to spend a few more minutes on what is a

fundamental issue here that does not appear to be understood. That is

that the simple declaration that makes something illegal does not

prevent it from happening. If you want something not to happen, you

enlist the cooperation of the people working together to find a way

that they can achieve reasonable objectives without causing a service

to be lost, without causing a disruption. and without, therefore,

making it difficult for people who live on islands to get to their

neighbouring community, for example. What you do is try to minimize the

number of days that are going to be lost as a result of some

disruption. That's the clear objective. That's what we want to do. So

how did we deal with that? And I wouldn't accept for a moment that

police services are the same as ferry services, but Socreds say they

are and that it's just as important to have a ferry running as it is to

have a police officer functioning. Okay. Let's accept that. The

Minister of Tourism (Hon. Mr. Reid) is nodding his head and I can

sense, looking at the government members, that there would be a general

agreement that each is as essential as the other: the cop protecting

our lives and the ferry worker making sure we can go to a movie. Equal

service, equally essential. Let's assume that that's the case, and

let's have the rest of this debate on the argument that they are the

same.

MR. REE: Do you agree? Do you think it's the same?

MR. GABELMANN: No, I don't agree. If you'd been listening to

me, you'd know I don't agree that it's exactly the same. But let's say

that it is. I want to go back to the issue that I raised this morning

in that respect. In British Columbia, police officers, firefighters and

others delivering services that are perceived to be essential and have

always been

[ Page 1800 ]

partially declared essential have had the right to

strike in this province, and particularly under the original Labour

Code they had that right. How often do people in this province hear

about the Nelson police force going out on strike, the Delta police

force going out on strike, the Saanich police force going out on

strike, the New Westminster police force, the Vancouver police force,

or any other provincial or municipal police force in this province,

leaving aside the RCMP? How often do we hear of all of these police

forces going on strike? Not very often, if at all. These people have

the right to strike; have had the right to strike. You don't hear about

them going out on strike.

In New Brunswick and in the other Maritime provinces, and some years

ago in Quebec, police officers were prohibited from going out on

strike. They did not have the right to go out on strike. The law said

no, you cannot strike. How many of us have heard of the police force in

Moncton, the police force in Fredericton, the police force in Bathurst

— town after town after town of police strikes?

[2:30]

[Mr. Weisgerber in the chair.]

Doesn't anybody on that side of the House have the ability to

understand the logical reasoning that's behind this? If there it's

illegal to go out on strike and they go on strike, and here it is legal

to go out on strike and they don't go out on strike, doesn't some

glimmer of light begin to emerge about why'? The why is: there is a

process and a trust — there has been — in this province in respect of

how essential services would be delivered. Given that the absolute

essential services would be delivered and would be guaranteed to be

delivered by members of the group that's on strike, there was the

ability to release the tension, the pressure valve on this pressure

cooker. And because of that there was a better relationship between the

parties, and because there was a better relationship we didn't have any

strikes. It's so simple, so elemental and so obvious that I can't

understand why people on that side of the House don't see it. In the

Maritime provinces, they didn't have the right, and essentially under

this

section we are effectively denying them the right to strike,

except the essential service issue goes far beyond just police officers.

So we're saying we're going to emulate the Maritimes experience. We

want to do here what they did there, and what they still do in some

parts of the Maritimes — make it illegal. And can't you see that it

will be the same result? Eventually, not this year and probably not

next but over the course of a few years, industrial relations patterns

will be developed in a way that will lead us into the same results,

which is exactly the opposite of the declared intention of the

government. The declared intention of the government is to minimize

disruption to the public, a goal which we share 100 percent. Let's find

ways of minimizing the impact to the public while at the same time

protecting basic democratic rights. Let's find a way of doing that. The

evidence is in about how to do it, but the evidence is ignored. It's

absolutely ignored, and it's baffling to understand that.

Now what the government is saying by extension is that any dispute

that poses a threat to the economy of the province will be declared an

essential service. We are extending that maritime principle where

people went on strike illegally to the whole of our industrial

relations society, except those areas where unions are weak and

employers can scab. It doesn't apply there, because there's no threat

to the economy if production is maintained. So everywhere else in

society where unions might have some bargaining power, we're expanding

the principle of making illegal a strike or a lockout; and when you do

that you create a situation akin to the one I talked about in terms of

Bathurst and Moncton and Fredericton and on and on.

It's puzzling, to say the least, that members on the government side

can't understand it. It's not just New Democrats saying this. It's not

just trade unionists saying this. It's industrial relations neutrals

and it's industrial relations practitioners on management side who are

saying this. We don't have to quote

chapter and verse; it's well known.

No one who has any experience in industrial relations would

fundamentally disagree with the premise upon which my last five minutes

have been based — no one. Even the more rightwing, rabid industrial

relations practitioners would acknowledge the fundamental truth of what

I'm saying. Yet we have a government that is prepared to totally ignore

the advice of experts. It would be like me, Mr. Chairman, going on the

radio, instead of the Premier, and having me offer advice on gardening.

We can't have the Premier's advice on gardening because he's an expert,

and you know you can't trust experts; so we shouldn't listen to the

Premier's advice on gardening, you should listen to mine, because I'm

about as knowledgeable in gardening as most of the members of the

Socred caucus are about industrial relations. Or maybe more. Given the

state of my garden this year, maybe more.

Interjections.

MR. GABELMANN: Given the events of the last few days, Mr.

Chairman, I would have thought that the Minister of Tourism would have

been muzzled by now, but clearly that job hasn't quite been

accomplished by the Premier.

HON. MR. REID: Talk about essential services for Vancouver Island.

MR. CHAIRMAN: Order, please, members.

MR. GABELMANN: Mr. Chairman, the Minister of Tourism says:

"Talk about cutting off the ferries." I have talked about how we can

make sure that those services are provided. The government is proposing

legislation which will ensure that the opposite happens, When is the

last time in British Columbia that we had a ferry strike? Eight years

ago at least. We had one for a day a few weeks ago. Why? As a result of

this legislation. Doesn't there appear any correlation? Don't members

understand?

Interjections.

MR. CHAIRMAN: Hon. members, order, please.

Interjections.

MR. GABELMANN: Mr. Chairman, I hope that the Minister of Tourism is allowed to continue to spout forth.

HON. MR. REID: Don't talk to your constituents on Vancouver Island; just leave it to me.

MR. GABELMANN: Well, you come to Cortes Island and Quadra Island and some of the other islands with me, and I'll be delighted.

[ Page 1801 ]

MR. CHAIRMAN: Order, please, members.

MR. GABELMANN: Mr. Chairman, I have tried for 11 weeks to be

in order and to be polite and to be rational, and it's only when the

Minister of Tourism is in place that I am tempted to depart from that

pattern.

Seriously, though, the point we're wanting to make....

AN HON. MEMBER: You mean you're not serious?

MR. GABELMANN: Well, no, in dealing with the Minister of Tourism, one is never serious.

Interjections.

MR. CHAIRMAN: Hon. members, please.

MR. GABELMANN: Thank you for your help. Mr. Chairman. I think if you put that in the singular, it would solve all the problems.

I just want to make the point quietly and simply that the direction

the government is working in — and not in 137.8(l)(a), as the member

for Kamloops talked about, but essentially in 137.8(l)(b), where

strikes and lockouts can be declared to be a threat to the economy of

this province, thereby making it impossible to prosecute a strike or a

lockout because people are directed back to work — will have the

absolutely opposite effect of what the government says it wants to

achieve.

The government seriously wants to promote a system whereby there are

very few industrial days lost, where there are almost no days lost in

terms of services like ferries and other transportation services that

are regulated provincially. I think the minister and his colleagues

should take a few hours off and take the time to read the history of

industrial relations in police in the Maritimes and in both police and

firefighters in the province of Quebec during the sixties and early

seventies in particular. I think they would then discover that what I

am saying is true, and that the heavy-handed, intrusive state

intervention that is called for in this particular

section will have

exactly the opposite effect of what it is the government says it wants.

For that reason, this particular section, which now makes virtually

everything in this province an essential service, is counterproductive

to the stated goals — and I can't believe they are the real, honest

goals of the government — which are to try to improve, they say,

industrial relations. This will not work.

MR. LONG: Mr. Chairman, I think the member for North Island

should be aware.... I imagine that he is in an area that needs ferries,

and I think he is in a position himself....

MR. GABELMANN: That's why I take the position I do.

MR. LONG: I guess he would like to see all of his constituency out on a limb when they can't get to the services they need.

I think in light of the statement made by the member for North

Island that NDP policy says that ferry service should not be deemed

essential for Vancouver Island, the Sunshine Coast, the Queen

Charlottes or any part of British Columbia.... I think that possibly

section 137.8 should be called the ferries essential service protection

section, because this is what the people in my riding in Mackenzie,

where we have.... The biggest part of my riding, in Gibsons, Sechelt

and Powell River, is totally dependent on the ferries. The whim of the

B.C. Fed can knock them out of service for a day, put everybody out,

and they sanction this kind of stuff.

They say this is fine: everybody can go out and strike when they

want to and put down the ferries, and the rest of the province will

suffer. I find it hard to believe that most of the members in this

comer of the House who are dependent on ferries — and I include the two

members for Victoria as well as North Island — think that ferries are

not essential to their ridings.

I've got to bring to the House's attention that in Mackenzie we

don't have the service centre like North Island does, possibly — a

bigger service centre like Victoria. I think they are being very

shortsighted when they can take their northern riding in Prince Rupert

and tell one of their fellow members that the ferry to the Queen

Charlottes is not essential. It is the only link there, but it is not

essential. It is the only link to Mackenzie, but it's not essential. I

mean, you can fly in, and you can fly your freight trucks, and you can

do all kinds of neat things.

I find it hard to believe that he would use the example of Read

Island and Cortes Island. I think if he checks it out he will find

there are more like 900 people on Cortes Island, if that is in your

riding. You should check that out. I don't think there are 500; I think

it's around 900.

As far as Read Island, there never has been a link established to

Read Island: they've always had either a water taxi or their own boats.

When the links are there and the people depend on them for their

commerce and their livelihood, then they become an essential service.

You don't pick an area you don't need to use and say it's going to be

essential — go to a logging camp in Bute Inlet when you have no

connection there to start with. So I think it's time that the NDP and

the member for North Island possibly changed their policy where the

ferries are essential. I think they should consider the people in their

own ridings and take a good hard look at what they're doing here.

MR. SIHOTA: It's an interesting debate. Of course, the

members opposite, who cannot defend this legislation on just about any

other issue and who have been incredibly silent during the course of

this entire debate not only with respect to

section 62 but all of the

sections that preceded it, finally jump up on one issue that they can

seize upon to deliver political rhetoric. That's all that's going on

here. Here's an issue involving ferries, and I stand up as a

representative of an Island seat, Esquimalt–Port Renfrew, that in many

ways is no different than Mackenzie or Saanich and the Islands or some

of the other findings in that it relies on that ferry service linkage

to the mainland. It's strange, the silence....

[2:45]

I'll come back to the ferry dispute, because I want to point out

that there's another way, consistent with what the member for North

Island has been arguing, to remedy this problem without the necessity

to get trigger-happy with essential services legislation. The problem

is that there's a one-dimensional outlook from that side of the House:

that the only option in dealing with this very difficult problem of

ferries is the essential services dispute mechanism, or invoking the

[ Page 1802 ]

essential services portion of the legislation. I'll

come to another option, another way of resolving this problem, which to

me makes just as much sense, but before I do that I want to talk a

little bit about essential services, with a promise that we'll come

back to the matter of the ferries. If I preface my comments with a few

things that I want to say, I think it will make more sense...the

alternative that I want to put on the floor makes a lot more sense than

the trigger-happy approach of essential services disputes. That is, I

think, the crux of the matter that the member for Mackenzie is raising.

I'm glad to see that the Premier is here, and the Minister of

Finance (Hon. Mr. Couvelier). In the case of the Premier, I hope he'll

add to his one minute and fifty seconds worth of debate at committee

stage, the 270 words that he has uttered so far. So maybe we might hear

some more from the Premier on this matter of essential services.

The essential services provision here clearly is broad; it clearly

is far removed from what we've had before. We had, I think, what can be

fairly put forward as relatively narrow and, in my view, appropriate

essential services dispute language within the Labour Code. I've made

this point in other portions of this debate, but I think it's worth

repeating in this instance.

Section 137.8 talks about a dispute that

"poses a threat to the economy of the Province or to the health, safety

or welfare of its residents." The words "poses a threat to the economy"

are so far removed from what we already have in the legislation that it

boggles the mind, because they incorporate just about any industrial

conflict that can occur in this province. Potentially any industrial

conflict can pose a threat to the economy.

There is no doubt in my mind that the words "poses a threat to the

economy" have been put in after the Premier's failure to deal with the

IWA strike last October; that he could not frame any other type of

language to deal with essential services disputes; that his ego was so

frustrated with his failure to deal with the IWA strike that we saw the

words "poses a threat to the economy" incorporated into the

legislation. History has demonstrated that words and phrases put into

legislation to deal with a specific situation boomerang and blow up in

your face later on down the line. This

section represents a gross

departure from what we've had before. It's inappropriate to use that

type of language in essential services dispute provisions.

I took the opportunity a few minutes ago again to refer to a book

that I refer to over and over again, which is Paul Weiler's book. He

talks about this trigger-happy approach to essential services. If you

come from the philosophy that is not only reflected in this legislation

but the philosophy that members opposite have been articulating during

the course of this debate, mostly indirectly and from time to time

directly — and that philosophy is that you want to take away the right

to strike, despite all of the assurances from the Premier on the matter

of the teachers that we gave them what they want — and you want to take

away the right of various organizations to use their economic clout to

bring about an end to industrial conflict — and of course we have on

the other side of the fence lockouts.... But if you want to bring an

end to the ability of unions to use that strike mechanism, you can do a

couple of things. You can do what this legislation does, which is

essentially take it away.

I don't want to repeat some of the things that we've said earlier on

about how that impairs the free collective bargaining process. I add

the caveat that nobody, whether it's members of the Social Credit

Party, members of the New Democratic Party, in terms of this House, or

employers and employees in the case of labour relations parlance, wants

to see strikes. Everyone realizes — and I talked about that this

morning — that it is a very difficult and calculated decision to have a

strike, or a lockout in the case of an employer. No one wants to see

that. But we also know from experience that if you begin to take that

away from people, you invite more conflict.

I don't want to repeat what the member for North Island (Mr.

Gabelmann) had to say with respect to those points, but it's a valid

point. History has demonstrated that over and over again, and that's

why we've allowed the ability to strike to remain in legislation. One

way to deal with it is essentially to take away the ability to strike.

Another way is to frame it within essential services legislation, which

gets me back to this provision that we're talking about in the context

of this section.

That's what the government is trying to do here; they're trying to

take it away. If you can't do it directly through the language earlier

on in the sections that we've debated, you can do it indirectly through

the posing of a threat to the economy argument that appears in this

section. You can begin to label everything to be essential services.

Those words can capture just about any dispute, and especially so when

you combine the language that appears in this section. Paul Weiler,

when he was writing.... Once again, fortunately or unfortunately,

depending on who is debating it, I guess, his text is the book on

labour relations in this province, perhaps the most thoughtful analysis

written on the issue. He talks about essential services. He says:

"This is a step which should not be taken lightly and

only with full recognition of all its costs. Every instance of

back-to-work legislation establishes another precedent relied on by

those who want it used again. If these precedents accumulate, if that

step is taken too early and too often, then the immediate parties will

anticipate it better than anyone else. The same sense of

irresponsibility can develop at the bargaining table as occurs when

there is an explicit regime of compulsory arbitration. Indeed, the

atmosphere can be even worse. The basic law holds out the right to

strike, but ad hoc laws are regularly passed to foreclose that right as

soon as it is exercised. In recent years, some governments — I will not

name names — will have become trigger-happy with back to-work

legislation. Undue familiarity may breed contempt, especially among the

workers. There will come a time when the law is disobeyed."

Paul Weiler. His quote — and I'm not taking it out of context —

directs its mind to the very situation that the member for North Island

(Mr. Gabelmann) talked about when he talked about the ongoing police

difficulties that they have in New Brunswick as opposed to the ongoing

police difficulties that they have in this province.

If I may step back a bit to my own experience, I sat on a municipal

council in Esquimalt when there was a strike vote, when the police were

literally hours away from walking out and engaging in strike action. I

must say in retrospect, because I was on the negotiating side for the

municipality, that they had taken adequate provisions, in my view, to

safeguard the interests of the community.

But that aside, the point still remains that they had that right,

and it worked in exactly the way the member for North Island talked

about. They had the ability to strike, Mr. Minister, if you're

wondering about that. They had that. In fact,

[ Page 1803 ]

most recently they just took another vote, and I

think they took the same vote in Saanich as well. So they always had

that right — and they still do. But I can venture to say that, given

the wording of this legislation, in essence that's been neutered.

There are options available, in the case of the municipal council

and the provincial government, to invoke the essential services

legislation. There are no two ways about that. I'll concede to the

minister that that option was always there, but it came down to a

question of obedience or disobedience of the law. We were able in that

instance to put away the type of situation we've seen in New Brunswick.

But if you don't allow them that option, if you don't provide for that

option, then I'll tell you what happens: the very situation that

happened in New Brunswick and the very situation that the scholar, this

former chairperson of the Labour Relations Board, a current academic at

Harvard University with a tremendous amount of experience on labour

relations matters.... That clearly will happen; there will be

disobedience of the law.

You don't want to create that type of situation; you don't want to

bring about that type of conflict. You don't want to stretch out the

situation to this extreme, and that's what you're doing by inviting

this type of very broad language, in terms of essential services. It's

so broad that when we hear the Premier talk about teachers: "Well, I

don't know what they're complaining about. We've given them the right

to strike....." Well, if you read this legislation, they never really

got it. That's a great public relations propaganda line on the part of

the Premier, because when that supposed right is melted into this

legislation and everything's boiled off at the end of the day, very

little remains in the crucible. Perhaps the right to engage in strikes

on weekends or during the summer recess or at Christmas break, but not

while school is in session — which essentially takes away the very

thing the Premier says they were given.

The ferries. There is clearly another approach. Weiler talks about

that later on in his book. But if you start from the opening premise,

that you want to have narrow limits to essential services

legislation.... If you accept the premise that if you broaden it you're

simply inviting disobedience of the law, and you don't want to do that,

then there's the other option. That other option — for those members

who raised it earlier on and who may still be interested — is to

negotiate an agreement with the parties across the table, where they

themselves agree to the provision of those ferry services as a part of

their contractual obligations and essentially agree across the table,

in an agreement that's enforceable, to essential services — if you want

to put it that way, to use that type of broad language. But essentially

they agree within the contract to continue to provide those services —

that they themselves recognize that.

And that's possible. The position we've always taken is that that's

the first thing that government ought to be doing: negotiating in the

agreement the provision of those services during industrial conflict,

not imposing it through trigger-happy essential services legislation;

not imposing it in the same way and inviting the same type of result

that Weiler talks about in his book.

Keeping in mind what he said, keeping in mind those two principles

that I've outlined, that's the other way. It may be a little bit too

complex in terms of political salesmanship to try to inject those types

of concepts into agreements when you've got essential services

legislation sitting there. But surely it makes more sense to try to

bring about consensus through a document than to force people to take

actions against their will by legislation. Surely that consensus

approach, through negotiating openly across the table, is preferable to

the process that involves disobedience of the law. That's the way to

go, the way that we're putting forward. It's another alternative,

perhaps not as simplistic, perhaps not as blunt, perhaps not as brutal.

That's the other option, Mr. Chairman.

I realize my time is up. Let's see what the other members of the House have to say on that as being the other alternative.

MR. REE: Mr. Chairman, may I ask leave to make an introduction?

Leave granted.

MR. REE: Mr. Chairman, it's my pleasure today to ask the

House to welcome 32 young people from my riding. There are 32 grade 7

students from Cleveland Elementary School in the gallery, together with

their teacher Mr. Jarvis. Would you please welcome them to Victoria and

the chamber.

[3:00]

MS. EDWARDS: I'd like to ask the minister a question about the wording

in this particular

section of 137. I think it's interesting to notice, Mr.

Minister, that in the general wording for subsection (1) it says the minister

may do — whatever — if he "considers that the dispute poses a threat to

the economy...the health, safety or welfare of its residents or to the provision

of educational services...."

section 137.8 (l)(b). the wording is different:

"... that the council considers necessary or essential

to prevent immediate and serious danger to the economy of the province or to

the health, safety or welfare of its residents or to the provision of educational

services...."

It seems to me, Mr. Minister, that the wording in subsection (

b) is

considerably more precise and more limiting — in other words, more

narrow — than the wording in the general subsection (1). I would like

him to answer as to whether he considers that to be so and whether it

was intended to be.

HON. L. HANSON: Yes, I think it was definitely intended to

be. One is the consideration that there's a dispute that's posing a

threat to the economy, health, welfare, etc., etc., but in subsection

(1)(b), which the member refers to, the direction is to the council to

designate those facilities, production and service that council

considers necessary or essential to prevent immediate and serious

danger to the health, safety or welfare of its residents in the

particular situation. I think it's very clear that it's meant to be

more specific as it relates to the particular dispute.

MS. EDWARDS: What I'm interested in, then, is why you would

limit or make more narrow the

interpretation of that wording for

subsection (b). What it means, I suppose, is that we have some

protection from that broad statement "threat to the economy" that we,

on this side of the House, object to very strenuously and at

considerable length, as you've noticed. Of course, any action in

industrial relations is a threat to the economy. In (

b) you are

eliminating that phrase, I presume. What worries me is that there is no

similar limitation in subsection (a). Again, we're back to the broad

[ Page 1804 ]

sense that any threat to the economy, health,

safety, welfare or provision of educational services can draw the

ordering of a cooling-off period not exceeding 40 days, but it has to

be more serious in order to have a designation. Is that what was

intended by subsection (1)?

HON. L. HANSON: Mr. Chairman, I think I'll adopt the same

procedure I was suggesting this morning: keeping track of these

questions and then answering them in a group.

Subsection (

b) involves determining what occupations will be

required to work during a controlled work stoppage. Subsection (

a) is a

cooling-off period where everyone is required to work, and it may be

for a lot of purposes. It may be that there is an opportunity to settle

the dispute in that time, or it may be that there is a certain amount

of time required to designate those essential services. They both have

very different objectives.

MS. EDWARDS: You would agree, then, that there is less of a

requirement to call a cooling-off period than there is to make a

designation, and that the requirements, the threat, the presumed danger

is less in that case?

MR. SIHOTA: I'd like to ask a question to the minister as

well, although I'm still thinking about the ferry situation, because I

was thinking somebody else would stand up. I can't remember the last

time we even had a ferry dispute in this province. But I see the member

from Saanich may well take me on on that issue, in terms of the other

alternative.

Given the language of posing a threat to the economy — he can answer

it later if he doesn't want to answer it now — can the minister give me

one example of a situation where one cannot argue that? Or is my

submission quite correct in that it captures every potential dispute

that's going to come up in the province?

MS. A. HAGEN: I have a comment and then a question too. I understand the minister is gathering some of these for answering.

One of the areas that we looked at just briefly this morning was

education, and the fact that it is encompassed by this essential

services legislation. I want to put this in the context of the very new

situation that exists for teachers, coming out of Bill 20. Instead of

there being a compulsory arbitration, which is the only dispute

mechanism that is available to them, they now may have, by virtue of

the choices that they take through establishing themselves through a

collective agreement and certification, the right to strike as a means

of arriving at a reconciliation for a dispute that has not been able to

be negotiated.

I want to ask the minister two things. First of all, this clause has

been amended. Originally the person who is going to make a decision

about the threat that any dispute poses, and the imposition of

essential services mechanisms, was to be the commissioner. In the old

act it was the Lieutenant-Governor-in-Council. It is now the minister.

I want to ask the minister what criteria he would use to determine

whether a dispute is in fact one that would be dealt with under this

clause.

How would he feel about teachers taking strike action? In the

inclusion of education services under the powers that go to the

minister in this clause, is there implicit a ruling or decision that

would assume that all strikes involving teachers come under this

essential services legislation? Would the minister regard those

particular services that are to be withdrawn as so essential in all

circumstances? In some circumstances? In a very few circumstances? What

would be some of the criteria that he would use? Teachers are seeing

this clause as one that precludes them from using the strike mechanism

as a means, if it were necessary, to use in a dispute. I want to have

some idea in this area, where there are clearly new practices that

people are going to be working with, what the minister's criteria will

be.

The other area that's new, as far as the essential services are

concerned, is the private sector. Up until now all of us have agreed

that the parties should be responsible for reaching their own

decisions. There's no question that on a number of occasions last fall

and in earlier times, long and serious disputes have reached the

Minister of Labour's door. The minister has acted both through

legislation and through his good offices to try to assist the parties

in the resolution of disputes, and on rare occasions this House has

been called into session and has taken action where it was deemed that

the economy of the province was so affected that there had to be

interference in that collective bargaining process. Now all of that

rests at the minister's door. It is the minister who will have to make

those decisions.

We know, again looking at the interventions that occurred last fall,

again by a person who I think sincerely wanted to achieve resolution,

that it was not effective in dealing with the dispute. What will be the

criteria that the minister uses in this particular area in the private

sector to determine when the essential services clause of the act will

come into effect?

Finally, how does this fit into the convoluted picture of all of the

other mechanisms that are a part of

section 62 which this bill has

developed, presumably to deal with disputes and intervention in

disputes to achieve their resolution? There are fact-finders,

mediators, public interest inquiry boards. There are unlimited powers

that belong with Mr. Peck. How does this particular clause and the

minister's discretion fit into all of those areas?

Sir, you have in this legislation a bag of tricks that I think would

confound the most sincere and well-meaning of people, and it would be

helpful for us to have some idea how you are going to deal with that

new mantle that is on your shoulders. Perhaps you could start by

talking about the mantle that is very specifically with you in the

amended part of this clause that says that you will be the person who

is making those decisions.

HON. L. HANSON: I just get up to stop the vote from going

through. In all of the discussions I have heard, and they have all been

very similar, various members have posed questions to me. Each one

seems to be predicated by, or part of, an assumption that every time

there is a dispute of any kind, immediately there is an essential

services or 40-day cooling-off period ordered, that that is just an

automatic given.

I think the member for Esquimalt–Port Renfrew (Mr. Sihota) quoted

from Mr. Weiler's book. I don't have the exact wording because I don't

have the book here, but I think it was something along the lines that

these steps must not be taken lightly and that you must be aware of the

costs of those steps if they are taken.

Anyone who would suggest that those steps would be taken lightly and

that there would not be an awareness of the cost that is attributable

to that, or the possible cost.... I think the words that were used were

"trigger-happy," if I

[ Page 1805 ]

remember correctly. Again, I think that points to

the assumption that this is going to happen every time there is any

kind of an opportunity; that is what is going to happen. I guess if you

want to take that position that somehow.... If you really wanted to

take a perverse

interpretation of it, you could suggest that every

labour dispute in the province will have a 40-day cooling-off period.

Well, that is just so far from reality that it is hard to even think

of that. It won't encompass every dispute, there is no question about

that. There is nothing mysterious or anything. It simply says, exactly

as you read it, that in some cases there is a necessity and a

responsibility on the part of government, a duty to protect the public,

a duty to protect their safety, a duty to have regard to the threat of

some particular dispute to the economy of the province. But each

circumstance or each one has to be dealt with as compared to the

circumstances of the dispute.

[3:15]

I think another member asked about teachers. Teachers' strikes

probably will happen, but I think at some point in time there will be a

need to protect the rights of the students, and thereby the rights of

the public. That's what this legislation will allow to happen. There's

just no doubt that each situation will have to be dealt with in

accordance with the circumstances of the situation, and that I would

suggest is exactly the manner by which the Essential Service Disputes

Act and the Labour Code provisions have been administered up to this

point.

As the Minister of Labour, I am certainly accountable to the

Legislature. No one would dispute that. Somebody mentioned earlier,

just at the start of today or before lunch, something about "threat to

the economy" being new wording. It isn't new. It was in the Essential

Service Disputes Act, and now it's in the Labour Code — or at least in

this proposed Industrial Relations Act. It's not new wording.

MR. ROSE: I'm always intrigued by this question about

societal rights versus individual rights, because I think it's plagued

with contradictions. It seems to me that in here we're talking about

various societal rights — protection of society from the depredations

of some group that's irresponsible, whether it's management or a trade

union group, and we want to protect society. We want to make sure that

they get the proper services or the proper education or the proper what

not. So that is a big thrust in this.

We mustn't let some irresponsible group or individuals run riot and

destroy — as it says here "pose a threat to the economy." We're very

interested in that as a group right, but we very seldom think about it

on the other side of it: the societal right, say, for decent housing;

society's right — and I know the minister comes from Vernon — for clean

water and decent sewage disposal. We talk about societal rights for

employment, for housing, or against hunger. We waffle on those — to use

a social democratic term. We really come out for the individual,

though, when it comes to property rights and individual rights to

withdraw from a trade union or something like that. Oh, we're all for

individual rights in those cases, and it seems to me that that's the

really fundamental contradiction that runs through this whole thing.

What we're trying to do here is to solve some things, in my view, of

those people who are privileged in many cases, and so that their

interests and their property and their welfare — those who are often

very highly placed — are not interfered with.

See, I don't look upon this legislation as determined to settle

industrial disputes. I don't think it's for that purpose at all. I

think it's to drive down wages. Quite frankly, that's what I think it's

for. And as someone mentioned in the Sun

paper tonight, with all this talk about illegality and illegal action,

what gains have been made by working people within the law? Mostly the

law is slanted against working people in our society, and everything

they've got they fought for, sometimes within the law but more often

outside it. Is this a big hammer, an oppressive tool used mischievously

or irresponsibly by the government? It has that kind of mindset. After

every depression in the last 50 to 75 years we've had a call for less

societal spending, and "get governments off the backs of the people."

It's the Herbert Hoover solution to our problems. So this is really

what bothers me here.

On the other hand, in certain societies that have done far better

than our own — France, Germany, places like Denmark and certainly

places like Japan — the society rests on consensus. There's a good deal

more said about security, consensus, cooperation and community welfare

than the welfare of certain entrepreneurial groups. And the proof of

that pudding is that the economies of Britain and of the United States

are in decline, whether you're looking at the debt, the balance of

payments, the number of unemployed, or whatever. Oh, yes, there may be

some more wealthy people. But the range in North America is much

broader than it is in many places, including Japan, whose workers, by

the way, in spite of lifetime security on the job, cooperation, paid

vacations, social insurance of all kinds, and health insurance, are

outperforming our own in terms of productivity.

Now if I wanted to be flippant, and I often do, I would want to know

what this.... I could go on with that kind of second reading speech for

a long time, to probably nobody's particular benefit.

Interjection.

MR. ROSE: No. I don't think I've abused the House. I don't

think we've abused the House over here in terms of this kind of thing.

What we want to do most of the time is examine this legislation in

detail.

But if I wanted to be flippant, and if I were listening to Graham

Leslie, I might say something like this: "Where the minister, after

receiving a report of the commissioner respecting a dispute, considers

that the dispute poses a threat to the economy of the province or the

health, safety and welfare of its residents or to the provision of

educational services in the province, the minister may do either or

both of the following.... " All right? He can order a cooling-off

period for 40 days. Well, I and a lot of my colleagues happen to think

that this very legislation poses a threat to the economy of the

province. I would like to know if the minister would be prepared to

take Mr. Leslie's analysis and recommendation, if Mr. Leslie were a

commissioner, and order himself to have a cooling-off period of some 40

days. I think that would do a great deal for everybody, because I don't

think that continued heightening of this tension....

You may say: 'All right, we're going to have to fight it through.

We're going to get a few brickbats, and the Premier's going to get

booed at for a while, but after a while it'll all go away." I don't

think it will go away, because if it's fundamentally unjust, it's not

going to go away. So I think the minister should take the advice that

he's given to others when there's a threat to the economy of the

province, or its health

[ Page 1806 ]

and welfare, or its investment climate, or a lot of

other things. I think he should order a cooling-off period for himself

and hoist this thing for a while so that people who are affected by it

— the employers and the employees — can get together and see if they

cannot come up with a better solution than this one.

I'm not suggesting patchworking up this mess, because it's just not

going to work. I think, though, the fundamental flaw of the whole

legislation is the assumption that the American marketplace

entrepreneurial model is the successful one and the one we should be

emulating. I just disagree with that, because the nations that are

coming up in their economies are doing things that this kind of

concept, the U.S. market economy, neoclassical approach.... They've

rejected that. So the nations that are coming up and doing well — and

I'm not talking about the Third World now; I'm talking about the

industrialized nations — are doing it quite differently than the North

American model that this emulates.

So I think it's wrong-headed, because it's based on a faulty

assumption, even though the minister may say that in his mind this kind

of societal structure, with the goals of our society and the

assumptions that lie behind it, maybe makes a half-heartedly decent

attempt to solve some of the problems. I just don't think it does. It

may solve some of the problems in the short run; I don't know. But the

long-term problems require a change in the whole attitudinal base that

is behind much of our manufacturing, much of our industrial complex,

which is being outpaced and outperformed constantly by societies that

have a different attitude, not only to people but to how they should be

rewarded and what their rights are.

Sure, we're for societal rights, but we want them not just in the

freedom for some buccaneer to do anything they like — or, if they

protest, put them back to work — but to ensure decent health, a job,

clean air, clean water, and all these things that are important to the

whole societal base, not to just one sector of it.

MR. HUBERTS: I just want to get back to that theory of essential service.

I want to be on record as saying that I believe that the ferries should be essential

services. I'm surprised that the two members for Victoria wouldn't speak

up on behalf of that as well, and certainly the member for Esquimalt–Port Renfrew

(Mr. Sihota).

For a minute there we were listening to the member for North Island

(Mr. Gabelmann), and he was saying that historically, essential

services meant life and limb. But that's precisely what we're talking

about for Vancouver Island. When those ferries aren't running.... They

are our lifeblood; they are. Without them we can't breathe, and without

them we truly can't function. So I'm surprised that he couldn't see

that, on a larger scale, we're not talking about just one individual;

we're talking about every individual on Vancouver Island.

The other argument that has been used all the time is that they've

made things essential in New Brunswick or Nova Scotia and it has

backfired on them. You're going to need about 50 of these conditions to

prove that sort of argument. We don't know what the conditions were; we

don't know what the issues were; we don't know what the people were

concerned about. You can't use that argument to back up one statement

that you might have made, and then say that's a sound argument. It's

not a sound argument.

I think that there's also something else in the question of

leadership. That's probably the difference in the way we're brought up.

We can all have different philosophies here. When I was 18 my father

made a point that I had to be in at 12 o'clock on Saturday nights. I

could have easily argued and said: "Dad, all my friends don't have to

come in until 1 o'clock." I could be disobedient, and then say that my

father was wrong. No, my father had every right to make that judgment

for his family, and if it didn't work, it wasn't because my father made

the law; the question was that I didn't obey. In many cases in

legality, it's not always the government which shows leadership

qualities and then everyone reacts and says the government's all wrong.

No, there's also an element of obedience that we require from the

people of British Columbia. That's the point I want to make.

But, again, I agree that the essential services should definitely apply to the ferries.

MR. CHAIRMAN: The chair recognizes the member for Prince George North.

MRS. BOONE: This is the disobedient member for Prince George

North, I guess. I came in at 12 o'clock, too. My father told me when to

come in. I was a good girl, yes. So it's not just members from the

other side that have that ability of obeying their parents. But I did

get my socialistic tendencies not from my father but from my good

mother; she passed this on to me.

I'd like to touch briefly on the essential services. I find it

interesting that members from the Island here — some of the members

from the Island, at least — are so concerned about essential services

with regard to the ferries. I can understand their concern about that,

but essential services really vary according to who you are and where

you are. Last week I was in, as you know, places called Ingenika and

Fort Ware, which have virtually none of the essential services that any

of the people here have been talking about. In fact, to get into their

area.... Well, they had their essential services cut off by B.C. Hydro.

Fort Ware essentially had their transportation route, which was a barge

route down the Finlay, cut off when they flooded that out. There was

nobody saying that you can't flood this area of land here because

you're cutting off essential services to the Fort Ware Indian band. In

fact, nobody has even said that, probably, up until now. But they are

totally cut off. They have a plane that comes in once in a while. They

sometimes may go without milk. They have occasions during the winter

months when they run out of milk. This is essential services to them.

So for everyone here to say that the ferries are essential services,

that this is essential services.... It all depends on who you are and

where you are. I believe that that's something that should be

negotiated through a contract, and that the various unions have that

ability to sit down and do so.

[3:30]

As a government employee, I can tell you that when the government

employees were on strike several times, essential services were

provided to the people of British Columbia. And that was done through

negotiations with the BCGEU and the government. People did receive

their welfare cheque; they did have their various areas kept up.

HON. MR. RICHMOND: Excluded employees.

MRS. BOONE: There were excluded employees, but essential services were maintained. And that is something

[ Page 1807 ]

that must done on a consensus basis, with agreement between the parties.

I find the business that it can be a threat to the economy a very

strange idea. Who is to say what is a threat to the economy? I

certainly find a threat to the economy the impending strike with the

postal unions right now, where they are asking that people coming on

take a cut in pay, that people be employed. I find that a threat to the

economy, when people are being asked to work for wages lower than what

people are working for in the same area. I find that a threat to this

economy of the people. How do you expect that to happen? How do you

expect our economy to thrive when people are taking lower wages?

When you talk in terms of your revenues being down, that of course

is going to affect the government, and that is going to be a threat to

anything. And virtually any strike.... The minister was unable to

answer my colleague from Esquimalt–Port Renfrew when he asked him to

name one dispute that would not be considered a threat to the economy.

The minister was unable to do that, because any dispute can be labelled

a threat to the economy if it goes on for a long time. But you have to

look beyond that; you have to look beyond it to see what the threat to

the economy is going to be if people are not able to negotiate freely,

if they are not able to negotiate in a manner so that people will have

reasonable wages, that they can have good living conditions, that they

can expand. And they can't do that.

What you are meaning here is that, as I see it, no dispute will ever

take place without being a threat, and eventually the entire unionized

sector will have their whole ability to strike taken away. I think the

members on the opposite side really believe that is good, and I really

think that that is the bottom line of this, that they do not want

anyone to have the ability to strike.

That is not the way this system has worked. We have worked for many

years on the basis of bargaining, on the basis of negotiations, and we

have not had a history of imposing long strikes. The majority of our

labour issues are solved, and they are solved properly, at the

negotiation table, bargaining in good faith. There are a few that go on

for a long time, and for that reason we seem to come in with this

hammer that is just knocking every single, solitary union in this

position. We will not have this ability. There is no push, then, to

negotiate, no push to come to an agreement, when you do not have that

ability to strike at the end. It is not something that anybody wants to

do.

The difference in areas I think you have to understand. I think you

have to understand that some people will be seeing things as an

impending strike.... Or what it says here is a possible threat; not

even a necessary threat — a threat to the economy.

If it is a threat to the economy of the province — and that's the

line there; a threat to the economy of the province, not necessarily a

threat to the economy of a community or the economy of a particular

family. As my colleague pointed out, the rights of the individual

certainly do not seem to be paramount in this area here. When you're

talking in terms of strictly the economy of the province, what would

happen, Mr. Minister, as I pointed out to you once before with the

strike that took place in Mackenzie where they were striking on the

basis of contracting out, an issue that the entire community of

Mackenzie accepted.... They were hurting by it, but they accepted it, a

majority of them, because they knew that if contracting out was allowed

to take place in that community, that community would literally die

because the contracts would go outside that area to Prince George, to

Fort St. John, to any of those areas.

What you're talking about here is the welfare of the province. Would

the welfare of the province, because they were losing the income,

because they were losing the revenues derived from that company, take

precedence over the welfare of that community?

How can the council decide what is an essential area? How can the

council decide what is a threat to the economy of the province, what is

a threat to the economy of the community and when it's going to be

necessary to step in? You have that ability right now, through the

Legislature, to intercede, to step in when it is a real threat. But

right now this legislation makes it possible to step in at any point.

I can't stand here without mentioning the business of the

educational services, which I was called out of order on once before.

When I was talking about Bill 20 I mentioned that this particular

section took away the entire right that you've been talking about. The

Minister of Education (Hon. Mr. Brummet) has been saying and the

Premier has been saying that the teachers have been given the right to

strike. This very part here takes it away: "...a threat to the economy

of the province, or to the health, safety or welfare of its residents

or to the provision of educational services in the province...." That

very line just takes away everything that was given in Bill 20, so to

even pretend that at any time the teachers are going to have the right

to strike is absolutely ridiculous. It is just ridiculous to even

consider it, and yet time and time again the government gets up and

says: "We've given the teachers everything they want. They have the

right to strike." Yet this

section here takes that very right away. Mr.

Minister, surely if you're going to introduce legislation like this you

should at least be honest about what you're introducing, and you should

at least tell the public what you have.

HON. MR. RICHMOND: Point of order.

MR. CHAIRMAN: State your point of order, please.

HON. MR. RICHMOND: Mr. Chairman, the member opposite clearly

has impugned the reputation of the Minister of Labour by saying that he

was not honest, and I ask that she withdraw that remark.

MRS. BOONE: Mr. Chairman, I'll withdraw that remark.

MR. CHAIRMAN: Thank you, Madam Member. Please continue.

AN HON. MEMBER: They're awake over there.

MRS. BOONE: Yes, they are awake. I'm glad. I guess they were listening to me.

I'm just trying to think of a way that I can rephrase this in such a

way that it wouldn't be considered improper, but I guess I can't,

because there is no proper way to say what I am trying to say here.

There is no proper way to put this down. But you understand what I'm

saving, Mr. Minister, and you know what my intent is here. You know the

intent of this legislation, and you know what this part does to Bill 20

and to the teachers. So I really hope that you and the Minister of

[ Page 1808 ]

Education will tell the people exactly what this legislation means to them.

I find it interesting too, when you're talking in terms of essential

services, that people never mention any of the essential services that

I think are really necessary. That's what I find really amazing. You're

talking about the provision of health, safety or welfare, and yet in

many parts of this province people aren't getting proper health, safety

or welfare. You would consider it essential in some parts and would

legislate people to maintain those services, when in other areas they

aren't even getting the very essential and very basic services required

in a society.

This legislation is disastrous. This particular

section eliminates

the ability of any union to strike. It is a disastrous situation, and a

situation that is not necessary, because the legislation right now

gives the government the ability to deal with the situation. You do not

need to come in with a sledgehammer at this point just because we had a

long labour/management dispute in the fall. That is the only reason

we're seeing this legislation now.

MR. HEWITT: I'd like to try to bring a commonsense approach

to the

section on essential services, after hearing the member opposite

express concern about the impact of this

section on the rights of

employers and employees to bargain.

There are a lot of checks and balances in this section, and I think

the members opposite have ignored them or just overlooked them. You

will recall that originally we had just the commissioner making these

decisions, and after negotiation or consultation with union members,

with union leaders, it was changed to where the onus was placed on the

minister to make these decisions. I agree with that concept, because it

is an elected official who in the end has to make that tough decision —

because it is a tough decision — as opposed to an appointed official.

What the minister has before him, when he has to deal with that

tough decision, is a report from the commissioner, the person in charge

of the Industrial Relations Council; the person who has done the

in-depth research or study, if you will, regarding the dispute and

comes to the conclusion that it goes beyond the normal situation, and

then reports to the minister. That's our first check and balance: the

study, the research that is done by the commissioner. Then he moves to

the elected official — the Minister of Labour — and leaves it to him to

make the decision. I think that step — that check and balance, as I

mentioned — is something the opposition members have forgotten.

Whether it poses a threat to the economy of the province: a number

of situations could develop which could impact on the economy of the

province. A few come to mind. A major dock strike in the port of

Vancouver could impact not just on the province but on Canada as a

whole. A rail strike or a port strike in regard to the movement of coal

could impact considerably on the economy of British Columbia; not just

Vancouver, but all the way through in the communities that are

involved. I just give those as two examples that come to my mind.

Whether or not you would consider them to be fair examples of impacting

on the provincial economy, I'm not sure. But they would be monumental

in size, in my opinion, in the impact they would have on the financial

and economic well-being of the province.

[3:45]

When we talk about the safety, health and welfare of its residents,

I think the members opposite also would have to recognize that first

the commissioner reviews the situation; secondly, the minister would

look at that and accept it as his role, as Minister of Labour, to step

in where the health, welfare or safety of the people is involved. I

guess a dispute we could look at might be a hospital employees dispute

where hospital workers walk off the job and patients are put at risk.

I know in the past we have had strikes in hospitals, and there

always has been that "essential service." But this is looking at what

could happen in the future, and these are the rules and regulations, if

you will, that guide the minister in making his decision to make sure

that the people of the province, whether they are management, labour,

politicians, young people or old, are not in jeopardy, whether it be

with regard to their health, their welfare or their safety. I don't see

that as being draconian. I see that as being a sound, reasonable rule

or regulation or legislation of the province that ensures that our

people can rest easy, knowing that they won't be put at risk.

What do we do after we make that decision? Well, we do this terrible

thing, I guess, of saying: "Hey, wait a minute. We are going to bring

into effect a cooling-off period of 40 days. Sit down at the bargaining

table, management and labour, think it out, reason it out, resolve the

issue within that 40 days. Let common sense prevail, rather than walk

away from the bargaining table." That's really what this

section says.

It doesn't say that you cannot go on strike. It says: "Let's have a

cooling-off period here." It does then direct the council to designate

facilities etc. that will prevent immediate or serious danger to the

economy.

There is another phrase that the opposition members have not touched

on: "immediate and serious danger to the economy." That is what we want

to prevent, and the commissioner and the minister will determine

whether it does present an immediate or serious danger to the economy.

So the cooling-off period is there and allows for people to sit down

and reconsider. But when the member opposite says that we've taken away

the right of the teachers to strike, it's not necessarily so. If the

member opposite would look down at subsection (2) of

section 137.8,

which I am looking at, there can be a strike in existence at the time a

decision is made to bring in force the cooling-off period.

MR. SIHOTA: One day.

MR. HEWITT: The member opposite says one day. So he is saying

that we go on strike for one day and then we bring in the cooling-off

period. That may well be. If it happened to be right at examination

time, and after looking at the situation the minister felt that the

students' whole year was at risk, I would hope that after one day he

may determine that that is long enough and go back to the bargaining

table and have a cooling-off period. If it is a longer term than that,

whether it was five days or ten days or whatever, that decision will be

made at the time. The members opposite always look at this from the

point of view that there is no flexibility in this legislation. But I

am sure they can recognize that it does allow the minister to take

action where action is deemed necessary, where the health, safety and

welfare or the education of our young people is at risk.

Mr. Chairman, I think the

section is most important, and I am more

than pleased to see the protection there with regard to education

services.

I would make one last comment to the members opposite. When the 40-day cooling-off period is there, the minister, as I

[ Page 1809 ]

read this section, cannot automatically drop into

place another 40-day cooling-off period. It has to be determined from

that point on what happens with regard to the management/labour dispute

and whether or not the people are deemed to be able to walk off the job

one more time.

[Mr. Pelton in the chair.]

Mr. Chairman, the only reason I am standing in my place is to try to

offset some of the comment made opposite about how terrible the

legislation is, and yet when you take the time to read it and read it

as the words set it out, I think the members opposite do realize that

it is there for the protection of the people of British Columbia and is

not looking at an attack on the teachers or on the labour unions. It is

concern that has been expressed by this government to ensure that we

have an economy that is attractive to investors, that our people have

individual rights and freedoms, and they have opportunity in this

province to find a job, to keep a job and also to make sure our young

people have an education.

Mr. Chairman, I see nothing wrong with this section.

MR. SIHOTA: Let me say this from the outset, listening to

what the previous speaker.... Before I proceed, I am glad to see the

member from Columbia Bay — is it? — here. Columbia River. Sorry. That

was a bit of an inside one for the member, who wasn't here before.

In light of what the former minister had to say, I have never met

anyone in this House who isn't for jobs, education and investment. I've

never met anybody in this House who isn't for....

Interjection.

MR. SIHOTA: Someone makes a good point about never knowing

it, but I won't repeat that comment. So, you know, it's not apt to say:

"Well, this legislation is the key to jobs and education and investment

in this province." That's an extreme hyperbole. It's too bad the second

member for Saanich and the Islands (Mr. Huberts) left, because I noted

with intrigue that he did not comment on my alternative to deal with

the vexing problem of ferries and other transportation systems. I was

going to stand up and challenge him to do that, but he's gone now.

The member for Prince George North (Mrs. Boone) spoke from our side

and pointed out that there are inevitably a number of situations where

employees maintain those types of services, which reinforces my point

that through contractual language you can assure the provision of those

services, and for those who think that's a bit of a naive position, the

example lies exactly in what the member for Prince George had to say

with respect to the provision of those types of services during strikes.

But the real reason I stood up is to deal with the minister's

comments in response not only to what I said but what others had to

say. He said that he agreed with what Paul Weiler had to say about not

using these powers lightly, and he went on to suggest that the

government would not use them lightly either. That would be comforting,

I think, in most circumstances, but in the backdrop of this

legislation, which is a hysterical response to a situation that existed

in October with respect to the IWA strike, the minister will have upon

him political pressures that will invite hysterical response in my view

similar to what happened last October. They will result in the

utilization of these powers because they are there, and given the fact

that they are easily accessible, with far more gravity than what Mr.

Weiler says in his book, which he says ought to be taken only lightly.

I don't agree with the minister's conclusion on that.

Let's just do an incubator test on some of these concerns. The

Cominco strike is currently on. We are talking about posing a threat to

the economy. Does that strike, which has an effect on the regional

economy for sure, in the minister's view fall within the provisions of

this section?

HON. L. HANSON: Mr. Chairman, I suppose that it would have to

be looked at. I wouldn't tell you now, without spending a lot of time

and thought and getting a lot of information, whether it would be

considered a threat. My initial reaction would be no, but without

knowing the full circumstances and without having all of the

information that would be available, I wouldn't make any final decision.

You know, there's something here that is being forgotten in most of

the discussions. The fact is that most of the disputes that do occur in

British Columbia are settled, and I'm certain that that trend will

continue. People will sit down across from each other and bargain their

relative requests in a responsible manner, and continue to settle their

disputes.

I believe the member for North Island (Mr. Gabelmann) referred to

the strikes that were happening in eastern Canada — I guess Nova Scotia

— as it relates to some of the police forces where they were....

MR. GABELMANN: Past tense.

HON. L. HANSON: That had occurred. He was suggesting that was

because they didn't have the right to strike, and therefore that was

one of the reasons. Certainly I accept the fact that there must have

been a dispute between the two, or they wouldn't have gone on strike.

But strikes in British Columbia, as far as they relate to the police,

which was the specific one mentioned, could still be.... They are not

illegal. There is nothing that has changed the circumstance as it

relates to the police and their ability to strike.... There are some

changes in the arbitration procedures and so on, but it is possible

that a strike in the police area could happen in British Columbia.

It was interesting to hear the member for Prince George North (Mrs.

Boone) making the point that what is essential to the Indian people,

who are in such great difficulty in northern British Columbia, is not

necessarily what is essential to all people. I think her point is well

made, that what is considered essential will vary with each case, so

each one has to be dealt with on its own merits, considering all the

facts and the relationship to the circumstances.

I don't think there is anyone sitting here in the House who would

dispute the fact that in some perverse way, or using some kind of logic

— and I don't suggest it would be perverse logic, but some kind of

logic that there is not any dispute on — whether it be between two

employees and an employer, or 2,000 employees and an employer, or

whatever the circumstances, there is not some degree or other to which

it does have an effect on the economy. Then you could continue with

that line of thought and eventually come to the point that it is a

threat to the economy.

But the discretionary power that is here to make those

determinations is on the basis of the severity of the dispute, and what

threat it poses to the public. whether it is in health,

[ Page 1810 ]

safety or the economy. There is no question that as

time goes on, that judgment in various circumstances will be assessed

here in this House and through the electoral procedure that we all live

under.

I would just like to spend one moment on the concerns of the member

for Prince George North that the teachers have the right to strike.

Well, I think we have been a little more positive about that and about

the teachers, as it relates to Bill 20. I think we would like to say

that the teachers have been given the right to bargain collectively,

and I would like to suggest that that will lead to many voluntary

agreements; that teachers do in fact have the right to strike. I

suppose the circumstances that that strike would be under will make a

determination eventually about what decisions will have to be made.

I suppose that members of this House may at some time be

required.... I am not sure this relates to this particular section, but

all members on both sides of this House may at some time be required to

look at the effect of a teachers' strike. I am sure we will all deal

with that with great respect and responsibility.

[4:00]

MR. CLARK: Mr. Chairman, moving along to

section 137.9,

return to work. All through the bill, there are clearly a number of

sections which impact on what might be called free collective

bargaining.

There is a fundamental philosophical thrust of the bill that reduces

the freedom of parties to bargain collectively and imposes third-party

intervention in all different ranges. This

section deals with the

return to work as a result of the Essential Service Disputes Act. I

just want to read you a

section from Gavin Hume — and I think the

member for North Island has referred to him before — who is a

management lawyer and has never represented a trade union. He says:

"Section 8(e)(vii) of the Essential Service Disputes Act required the

employer and union to continue collective bargaining and to make every

reasonable effort to conclude a collective agreement. Such an

obligation is not spelled out in the new legislation. Rather, the

expectation of the legislation appears to be that one of the dispute

resolution mechanisms ordered by the commissioner will result in a

collective agreement."

So the question is simply this:

whereas the previous Essential

Service Disputes Act stated that if a group of workers or a unit was

ordered back to work, there was a compulsion on the part of government

to require collective bargaining to take place. That is specifically

removed from this section, and Mr. Hume implies — and I agree — that

there's an implicit recognition that if they're ordered back to work,

the settlement will be determined by other than collective bargaining

mechanisms; in other words, by the mediator or fact-finder or imposed

final offer selection, or any of those other range of mechanisms that

can be utilized. Could the minister explain to the House why that

wording, which was in the Essential Service Disputes Act to promote

collective bargaining after being ordered back to work, is removed?

HON. L. HANSON: The specific wording was removed, but I don't

think there's anything in here that precludes or that doesn't encourage

the two parties from continuing the bargaining process. The mandate of

the disputes resolution division of the Industrial Relations Council is

to assist and enhance bargaining, and if they can provide any method or

assistance, I just couldn't perceive them refusing to do that. I'd

think that would be an automatic reaction, because that is their

mandate.

MR. GABELMANN: It's not a big point, but it's an interesting

one. Until now the parties were encouraged by legislation to continue

bargaining while the cooling-off period was in effect, and now the

encouragement to continue bargaining is the fear that Ed Peck might do

something. He's certainly not asked to do anything in terms of

continuing bargaining by legislation. It's not the end of the world.

Any parties who respect each other are going to attempt to continue to

bargain if possible during that cooling-off period anyway, particularly

given the options that might face them at the end of the many roads

that are envisioned in this legislation.

I want to talk about subsection (7), which was amended the other

day. Had it been left in its original form, it would have been

absolutely outrageous, but clearly the government has recognized this.

I'll just repeat that briefly: subsection (7), the final sub-subsection

of this subsection — the last one in this part — is the whole question

of discipline by the employer. The initial proposal was that the

employer could act as the enforcement agent. The state wouldn't any

longer be the enforcer of its laws; the employer would. It has been

modified to take into account that objection, and I think we should

acknowledge that the government did respond to this objection.

But there is still an objection to this particular section, because

if two parties agree through collective bargaining and sign an

agreement, and then there is a violation of that agreement, it is

appropriate under labour law — and under common law too — that the

employer have the right of discipline if the contract is violated. The

discipline can be modified through the grievance process and finally by

an arbitrator or arbitration board, if it gets that far. That's

appropriate, where there's a freely signed collective agreement reached

and it's then violated.

We're not talking about that in this section, because this now

allows the employer to fire or to discipline someone — subject to

arbitration, nevertheless, but he can take discipline — for an

employee's refusal to follow the dictates of a politically imposed

settlement, as opposed to a voluntarily reached agreement. If the

return to work is ordered by the commissioner or the council under this

section, and the political decision of the worker is to not obey that

political act, then he, the worker, is perceived to have been in

violation of a duly signed collective agreement. Therefore the normal

ability of discipline would apply.

What you do here in this situation is wrong in principle, and that

is to make the employer the enforcer of a politically imposed

settlement. The politics of the settlement are that it comes out of Ed

Peck's office; and that's the most political agency in this province,

once it's in place. The discipline, or the penalty, or the authority

for the penalty, is given to the employer. When the employer is

simply.... He is in one sense neutral, yes, but is not a party to this

decision of the government to make a worker go back to work. If the

employer gets the right to say,"I'm going to exact discipline on you

for refusing this political directive. For breaking this law of the

province, I as the employer am going to discipline you...." It's

subject to arbitration and everything, but it's wrong in principle to

have the employer act as the enforcer.

[ Page 1811 ]

The government's argument, I suppose, if it were made, would be that

there's an order and therefore there is, in effect, a collective

agreement in place. Or at least there's an obligation on the part of

the parties to act as if there were a collective agreement in place.

Therefore, if people don't, then they are in violation. But that's not

an argument that holds any water at all. The fact is that the employer

is given the right to exact a penalty.

If people in society were breaking the law, Crown counsel would not

have the opportunity to pick and choose which lawbreakers should be

charged. Crown counsel would be obliged to apply the law equally to

every lawbreaker. Where they felt they had a case, they would be

required to proceed.

The employer has no such obligation. The employer who decides that

people have not "returned to work" can pick and choose which employees

will be disciplined under this section. Clearly, the employer then can

have the right to say: "Okay, I'm going to take the union bargaining

committee and fire them, because I'm tired of having to deal with

them." Or he might have some biases toward individuals for other moves

and fire them. He can pick and choose, or exact other kinds of

discipline which may not be quite as dramatic as firing. But there's no

obligation to act lawfully on the employer — and I use the word

"lawfully" in quotation marks. There's no obligation to act evenly, nor

should there be. There should be no obligation on the employer

whatsoever to act as the state's enforcer.

If there's a refusal to return to work, it is not an agreement

between the employee and the employer that is being violated; it is an

order of the law or an order of the government or an order of an agent

of the government. Therefore, if you break a law imposed by the

government, then the penalty should be reached through the court

process, not by giving the employer the right to discipline.

If I break a law, if I drive down the highway too fast, I can't lose

my job. Perhaps I could if I was a truck driver and that was one of the

issues in my contract. If it was an issue in my contract, then it would

be appropriate. But if it's not an issue covered by my contract, then

it's up to the state to prosecute. It may be a fine point and I'm not

going to belabour it, but I think it's an important issue; the employer

is now going to be in a position where he will be able to pick and

choose as to which of his employees who violated the return to work are

going to be disciplined. That's wrong in principle, in my view, in

terms of fundamental rights in law.

Having said all of that, I acknowledge that this new subsection

(7) is a heck of a lot better than the original proposal. If the original

proposal had still been in place, we would have been many days debating

that particular section.

HON. L. HANSON: I just wanted to make a couple of comments on

the member for North Island's remarks. First of all, it does say that

in the case of an order or whatever, and there's a failure to obey that

order to return to work, there is a reasonable cause for disciplinary

action. I don't think that that necessarily means there has to be

disciplinary action; it's a discretionary thing. I could see

circumstances where there may be a requirement for some disciplinary

action within the union side, although it's referred to here as the

"employee."

Let's say there are ten people ordered back to work; the union

leaders order everyone back to work and one of them refuses to go.

There could be a requirement for some disciplinary action there. The

situation where there were three.... I think that was the one where the

member suggested there could be an opportunity for unfair treatment, or

not a standard penalty applied to all of the people who had effectively

broken the same rule. I would suggest that that would be seen and dealt

with under the arbitration process, as it rightly should be if there is

unfair treatment.

[4:15]

In

summary, there's no question in my mind that if there's a

requirement in

an act, it needs to be backed by some kind of sanction.

That's the purpose of this: there is some requirement for some kind of

disciplinary action if an order is refused.

MR. LOVICK: Mr. Chairman, regarding

section 137.91, let me

start by going to the end of that section. I would make a very brief

preamble to the question: namely, this question is posed in the spirit

and in search of consistency.

What I'm concerned about is the fact that, according to 137.91(11):

"The chairman is not obliged to make public the report of the

fact-finder, but may make it public if he considers it desirable to do

so." We've seen a number of other sections within Bill 19. a number of

other amendments, in which it would seem that as a matter of course

there is disclosure; there is a mechanism whereby matters must be made

public.

My first question.... If the minister would be good enough to

respond to this I'd appreciate it, before I pursue matters. Why in this

case are we giving that kind of discretion to the commissioner when in

so many other cases it seems that we are using the avenue or the

mechanism of full public disclosure as a solution to problems? Here, we

apparently leave it as arbitrary and up to the designs and desires of

the commissioner.

HON. L. HANSON: Mr. Chairman, I think it's a question of what

the chairman of the dispute resolution division sees as the most

appropriate action to help achieve a settlement of the dispute. If

there's no value in achieving a settlement of the dispute by making it

public, there's no purpose in doing it.

MR. LOVICK: Just to pursue that for a moment, Mr. Chairman,

if we work on the assumption that this individual we are calling the

fact-finder does indeed do what his title suggests — that is, elucidate

and adjudicate the facts in a particular case — why would we not make

that information public? How can that be a matter of strategy? Or is

the minister suggesting to me that what the fact-finder does may in

fact have something to do with the respective strategies of the two

parties in a debate or a dispute resolution?

Is my question clear? I think it's an important one. Okay, we shall rewind the tape, as the saying goes.

MR. ROSE: Amplify and elucidate.

MR. LOVICK: My colleague from Mission–Port Moody suggests

that I should amplify and elucidate. I suspect that's a phrase that

comes from the House of Commons; I'm not sure.

What I'm getting at is this. If in fact we are simply getting

facts.... Pardon the play on words. If all the fact-finder is doing is

assembling facts that are germane and relevant to a case, then surely

that individual ought to be able to divulge those facts to the public.

Surely nothing would be served by keeping those things secret. So far,

so good, I ask rhetorically. The question is, if it is not the case

that the facts are

[ Page 1812 ]

to be divulged as a matter of course, then it seems

to me to be clear — or perhaps it is the case, I should say — that the

fact finder really is going to be presenting or assembling information

that has to do with matters loosely called strategic — matters that

concern helping or hindering the case of one of the two parties in the

dispute. Which one is it, I would ask of the minister? Are we dealing

with facts, or are we dealing with matters that more properly belong to

the strategic case of either of the two parties?

HON. L. HANSON: Mr. Chairman, I think the very name of the

individual is that he is a fact-finder, and I suppose part of those

facts could be some of the strategies of both sides that have led up to

the dispute. At that point they would be a fact that caused it. What

we're doing there is giving the chairman of the disputes resolution

division a discretionary ability to release the fact-finder's report,

keeping in mind that his goal should be to achieve a settlement between

the two parties — and the public. I should say making the facts public

of the fact-finder's report may have — and you know the circumstances

of each case have to be considered — no relevancy at all to encourage

the parties to resolve their differences.

The traditions that have always been followed where fact-finders

have been used are, I think, in the old Essential Service Disputes Act,

which is being repealed. It says that no person shall publish or

distribute the report of a fact-finder, but the minister may publish

and distribute the report in any manner he considers advisable. Again

there's that discretionary power, where the publication of the facts

will assist in resolution. Then I'm sure that they can and will be

published, but in cases where that fact-finder's report could be one of

two things — detrimental, or have no effect, in the chairman's opinion,

to help resolve a dispute — then there wouldn't be any requirement. If

they didn't have any one way or the other, I suppose he could publish

them or not publish them, but his mandate is still to achieve a

settlement between the two parties.

MR. LOVICK: I'm a little concerned when I hear the regular

reference to discretionary ability or discretionary power on the part

of the commissioner. That's a theme, of course, that we have spoken to

before this time. It seems to me that we are asking the wisdom of

Solomon from this person who has to somehow differentiate between

matters of fact versus matters of strategy and whether indeed something

should or should not be released.

For instance, suppose that one of the things under the heading

"strategy" that the fact-finder discerns and determines is that the

trade union is arguing a case that says,"We're going to fight this to

the bitter end," but what is determined very clearly by the fact-finder

— because, after all, the trade union is obligated by this bill to give

accurate and honest information — is that the trade union is running a

bluff? Suppose they don't have any money in their strike fund to speak

of, and suppose also the great majority of the members who are out

there hitting the bricks are starting to wear a little bit thin in

their resolve and their determination to carry on waging their war, to

fight their fight. Given the rather loose requirements that surround

this particular

section of the bill, is it not entirely conceivable

that precisely that kind of information could be released in order to

solve this particular dispute? Again, I would emphasize, as I have

before, that apparently the criterion is to solve the dispute without

too many other guiding forces or guiding restrictions such as fairness

or equity. Instead we say: "Give us a good pragmatic solution. Solve

the problem." And if somebody gets hurt in the process, we're

apparently mute on that.

Certainly I don't see anywhere else in the clauses we have looked at

recently where we are in fact told that this must be under the

guidelines of fairness, equity and so forth. Rather, it seems the

conclusion is an entirely pragmatic and practical one: solve the

dispute. Given that, surely the scenario I sketch out here is credible.

A particular commissioner could in fact say: "I know how we can solve

this dispute. All we have to do is blow the cover" — if I can use that

rather trite expression — "of one side in the dispute, because that

side is not as powerful and well-entrenched as we might have thought."

Is that not credible? I don't think I'm making it up. I think that's a

perfectly legitimate scenario. Would the minister care to respond?

HON. L. HANSON: I suppose that what the member on the other

side suggested is a very bizarre possibility. I would sure have some

difficulty in.... I think you can go on to suggest that the fact-finder

is getting the information from both sides and releasing it to both

sides, so that nobody has any secrets anymore. But we're talking about

professional people in the labour relations field. The fact-finder is

not acting responsibly, if you will, if he suggests: "Hey, I know the

chief negotiator's wife is pregnant and that he must leave later today.

If you continue negotiating tonight, they'll be forced to reach a

settlement." I mean, be a little realistic with the situation.

MR. LOVICK: Just a couple of quick points on this. This is

obviously not a major bone of contention in the bill, and there are

other things that are more important, so I certainly shan't drag this

out beyond what I think is absolutely necessary.

Let me, however, make a point that I think is germane and relevant.

The minister says that the scenario I paint is bizarre. Indeed it is.

So, however, many would argue, is this bill. That's not the point. I'm

not standing up here to make cheap debating points. Rather my concern

is this: what I said a day or two ago in talking about Bill 19 — and

section 62, as it happens — was that one of the things built into this

is an incredible amount of discretionary ability and authority on the

part of the commissioner to hire people who are not connected to the

ministry but are private consultants. We can certainly say that there

is some measure of professionalism in the field that will protect us,

etc. But I'm wondering about that, Mr. Minister, or whether in fact it

is not the case that the commissioner, in response to pressure from a

particular group, in response to a whole chorus of voices talking about

"the public interest," might well not decide to very particularly

choose a very particular person, somebody who may indeed have the

professional expertise, but who may also be an ideologue, convinced and

minded to believe that one side of the dispute is being unfair or

unreasonable or some such thing, and who may therefore, quite

understandably, quite characteristically, proceed to divulge,

information which would benefit one side more than the other.

[4:30]

Of course it's bizarre, of course it's hypothetical, but there is

nothing, I would submit, in this bill, in any clause of

section 62, to

prevent and preclude that kind of thing from happening. That causes me

concern, and I suspect others of

[ Page 1813 ]

my colleagues feel the same way. Again, I simply

make that point. I think it's a reasonable conclusion to derive. I

don't think I am being alarmist.

I want to touch briefly on one other subsection of 137.91 — namely,

subsection (5). This

section is one that moves me to argue the kind of

hypothesis that the minister referred to as bizarre. Have a look at

subsection (5), which says: "The fact-finder may include in his report

his findings in respect of any matter that he considers relevant to the

making of a collective agreement between the parties." That doesn't

exactly circumscribe and delimit, does it, Mr. Minister? What we are

looking at, in fact, is an incredibly broad, wide-open invitation for

the fact-finder to determine what constitutes evidence, to determine

what kinds of information might solve an agreement even if that might

be under duress, even if that might be with one of the parties in the

dispute screaming and crying misery and saying that this is indeed the

end of their integrity and their identity as an organization.

I'm concerned in subsection (5), as I have been in a number of other

concerns, that the language is so inclusive, so enabling, that it is

precisely the kind of language that makes it possible for members on

this side of the House to sketch scenarios that are understandably

referred to as bizarre. If there aren't any limits on those kinds of

powers, if we don't define things somewhat more rigorously and

carefully than in this bill, then it is inevitably — and predictably —

going to be the case that members on this side of the House and a whole

bunch of others outside this House are going to look at this bill and

say: "Aha, what is the hidden agenda? What then is the reason for

leaving it that broad?"

That's the other concern that I had about 137.91(5). I'm not sure

whether any of my colleagues want to speak on this, Mr. Minister, but

for the record those are my concerns.

MR. MILLER: Of course, it's pretty hard to find the facts. We

have to get Joe Friday on the job here, reporting to General Peck. I

want all the facts, and just the facts, ma'am.

Interjection.

AN HON. MEMBER: He looks younger than he is.

MR. MILLER: I'm getting all these compliments from my colleagues, who think I'm younger than I look, or older than I look.

MR. JANSEN: No comment.

MR. MILLER: And no comment from the member for Chilliwack,

who also had no comment when I pointed out the error of his ways last

week during debate.

Going back.... I understand this is in order, although we agreed to

do these — there is a Latin term here — seriatim. I missed the

opportunity to ask a question on 137.9 with respect to discipline and

the penalty, if any, that would be imposed on an employer for refusal

to comply with an order under this section, and any penalties or any

discipline that could be imposed on the agent of an employer under the

same section. It seems to me that employees are easily identified as

being subject to discipline for their failure to comply, and yet given

the complexities of starting up an industrial operation, there may be

violations on the other side. The

section does not spell out what

penalties would be imposed. Presumably there are some, and the minister

will advise me of that.

In addition, if a person acting on behalf of the employer, whether

that's a foreman or a supervisor, or whatever agent of the company

involved, does something that violates the intent of the order, would

they be subject to discipline? Would the employer be compelled to levy

some discipline on those individuals, the same as on the employees? I

assume, when we're talking about employees under this section, that

we're talking about those members of the trade union. Perhaps the

minister might respond to that question.

You should keep that mike up, Mr. Minister. It makes the whole thing go a little quicker.

HON. L. HANSON: I guess we are moving back slightly in some

of the sections. But there is a penalty under

Part 9: "A person who

refuses or neglects to observe or carry out an order made under this

act is liable...if an individual, to a fine not exceeding $1,000, or if

a corporation, trade union or employers' organization, to a fine not

exceeding $10,000." So we've actually gone back a little way in it. But

there is a penalty for that sort of action.

MR. MILLER: So there's a financial penalty to the employer.

MR. CLARK: Ten thousand dollars.

MR. MILLER: Ten thousand dollars? It's not much to Mac-Blo, eh?

Interjection.

MR. MILLER: The Provincial Secretary (Hon. Mr. Veitch) wants to enter the debate from his chair.

With respect to my question regarding an employee of the employer —

that may sound a bit convoluted, but what I'm getting at is someone who

is acting in a capacity for the employer — the minister did not

respond. Would they be subject to the fine on an individual basis?

Would the company be subject to the fine because of their actions? Or

would these individuals be subject to discipline under the

section

137.9?

HON. L. HANSON: Are you suggesting that there is more than

one foreman, or something, involved in it — a number of people

representative of the employer?

MR. MILLER: Could be one.

HON. L. HANSON: Well, I suppose the determination would be by

the council. There might also be a union grievance against those before

the board. There could also be a request to file the order in the

courts for penalties or damages.

MR. MILLER: First of all, it's automatic under this section,

where an employee who fails to respond to the order could be subject to

discipline; and of course that, presumably — the minister shakes his

head — would be the kind of discipline that the employer may wish to

impose; and that would be, of course, subject to the grievance

procedure. If I'm wrong in that premise, I'll stop, but I don't think I

am. An employee would be subject to discipline of the employer's

choosing.

[ Page 1814 ]

On the other side of that.... And I recall previous legislation,

directing the pulp industry back to work in 1975, where it was very

carefully spelled out that employers had to comply with a number of

very detailed steps. For example, if in a return to work a foreman did

not call an individual to come back on their particular shift, I would

take that as a violation of the order; and yet there is no particular

penalty attached to that foreman. I'm not trying to malign any foremen

by using this example. There's no particular penalty attached. In fact,

if the union wants to pursue it, they have to do it through the

grievance procedure, to try to get some recompense for the employee who

wasn't called back, and there's a body of jurisprudence that says

employers don't have to pay for work not performed.

So you can see the scenario I'm painting, where an individual agent

of an employer — whether you want to call him a foreman or a

supervisor, or whatever the designation might be — fails to live up

completely to the order, and there's really no penalty, unless in the

unlikely event, I would think, that the council would see that as a

violation. They'd probably see it as an oversight, and say: "We're not

going to deal with that." The end result of that could be that an

employee loses out on a day's pay. And I've seen those kinds of

situations happen; they're very real. They happen in the workplace.

So I wonder why the minister did not — instead of singling out

employees, which, I repeat, are very easy to single out — use some

creativity in designing some disciplinary sections for employers, over

and above the fine that would result from non-compliance.

HON. L. HANSON: Mr. Chairman, I think I have already

explained this, but if that is the determination, there could be a

filing of the order in the courts, and you know what that would lead

to. There can be a grievance procedure and there can be penalty under

certain sections of the Code.

I would also suggest that under subsection (7), which the member was

referring to as the reciprocal side of this as it relates to an

employee, there may be a lot of reasons why an employee does not return

to work other than failure or refusal. I think it is without reasonable

excuse, and that applies there too to the employee.

The other thing that should be kept in mind is that under this

section it does say that it shall be deemed just and reasonable cause

for disciplinary action; but it nowhere reads that there has to be

disciplinary action, that I know of.

[4:45]

MR. MILLER: Well, the minister is right when he says that

they are not compelled to take, but that in itself is not sufficient

indication that they won't.

Would the minister consider something of this order. Where an

employee is not recalled to work as a result of actions taken under

this

section and loses pay as a result, would the minister agree that

it would be desirable and suitable for the employer to have to

reimburse that employee for wages lost as a result of the employer not

calling him back to work? Would that be an appropriate device under

this

section not only to protect the rights of employees, but to

provide some onus for the employer or the employer's agent to comply?

That would be a suitable thing. I am sure that if they know they can be

disciplined for not going back, if the employer by some oversight or

for some reason does not call them back, then they should get paid.

MR. GUNO: I just have a couple of questions. They may have been canvassed, but I would like to hear the minister's response to them.

Unlike the conditions placed on the member of the public interest

inquiry board under

section 137.92 — that is that no person shall be

appointed who is directly affected by the dispute — in this case there

is no similar condition placed on a fact-finder. Can the minister

explain the omission?

My next question is the matter of.... In 137.91(2) it states that

seven days after the receipt of the notice of the appointment of the

fact-finder, each party shall give written notice to the fact-finder.

However, it says in subsection (3): "Where a party fails to comply with

subsection (2), the fact-finder may make a determination of the matters

mentioned in subsection (2)."

In light of the fact that this whole process, which you can

characterize as some kind of a quasi-legal process which then under our

administrative law requires that each party has the right to be

heard.... Would this not in some ways put in jeopardy the rights of the

party if they are not able to make it within that seven days?

HON. L. HANSON: As it relates to a member of a public

interest inquiry board.... I think the question was something along the

lines that it directs here in the act that any individual who is

directly affected by the dispute in question should not be asked to sit

on a tribunal. I think there's the difference — by the very nature of

the appointment of a fact finder. He is