1992 Legislative Session: 1st Session, 35th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

WEDNESDAY, DECEMBER 9, 1992

Afternoon Sitting

Volume 7, Number 11

[ Page 4533 ]

The House met at 2:06 p.m.

Prayers.

D. Symons: Hon. Speaker, it is my pleasure to tell you that with us today are approximately 90 grade 7 students and their teachers Mrs. Laurie Crosbie, Mrs. Margaret Newman and Mr. Doug May. They have spent part of the morning in the halls of the Legislature with the tour guides. Half of them are now seated in the gallery, along with several parents, to observe question period. Would the House please make them welcome.

S. O'Neill: We have with us in the House today Lyle MacWilliam, Member of Parliament for Okanagan-Shuswap -- of course Lyle was also a member of this House; Earl Shipmaker, chair of the North Okanagan Regional District; Wayne McGrath, mayor of the city of Vernon; Mike Kowaluk, a representative of the North Okanagan Regional District; and Peter Mackiewich, administrator of the North Okanagan Regional District. [Applause] Thank you for making them welcome.

F. Randall: In the visitors' gallery this afternoon are three long-time friends from the labour movement in British Columbia: Mr. Gary Kroeker, the business manager of the Operating Engineers Local 115; Mr. Greg Harris, the business manager of the Labourers' Local 602; and Don McGill, president of Teamsters Local 213. Would the House please make them welcome.

Oral Questions

MEETING WITH

GITANYOW-GITSKAN COALITION

G. Wilson: A question to the Premier. Will the Premier acknowledge the December 4 letter from the coalition of the Gitanyow-Gitskan people, signed by Gordon Sebastian and Glen Williams, requesting an urgent meeting in the Gitskan territories? Will he tell us if he intends to meet with the Gitskan and when he intends to make that meeting available to them?

Hon. A. Petter: I'm aware of the letter. I'm pleased to report that the negotiator in the Nisga'a claim has already arranged that, and I believe may, at this very moment, be meeting with Glen Williams on that matter.

GOVERNMENT AGREEMENT WITH NISGA'A

G. Wilson: I thank today's Premier for his response. The letter was specifically written to the hon. Premier of the province of British Columbia, and I acknowledge the answer that we won't get it.

To the Minister of Aboriginal Affairs. Will the minister tell us what action he is taking to try to mitigate against the great friction that is now going to be occurring with respect to the Nisga'a land claims settlement, the agreement signed in November, which the Gitksan people say is in violation of a previous agreement that this government made with the Gitksan people?

Hon. A. Petter: I'm pleased the Leader of the Opposition has asked this question. It prevents me from answering a question that was taken on notice yesterday.

The agreement was signed as an interim protection measures agreement with the Nisga'a. That agreement in no way prejudices the interests of other first nations. It in no way prejudices any other agreement, including agreements on joint stewardship that were reached with the Gitksan. It is true that throughout this province, as we negotiate with first nations, there are problems in respect of overlapping claims. When the Treaty Commission gets established, those problems will hopefully be resolved through the Treaty Commission process, by insisting that first nations resolve those problems in advance of negotiations.

But in the case of the Nisga'a claim, which has been ongoing for about 20 years, it's unrealistic to expect that that will be resolved immediately. My hope is that now, once the interim protection measures agreement has been signed without any prejudice to other first nations, the first nations in the area can now sit down and resolve this matter, as they must before any final agreement is reached. Let me reiterate; the agreement that was reached....

The Speaker: Order, please, hon. minister. I must ask you to conclude your reply.

G. Wilson: Let's get this correct, then. What the minister is saying.... [Applause.] I appreciate the applause from the government benches, because the Nisga'a and the Gitksan people want to get this correct. What the minister is saying, then, is that the agreement made with the Gitksan that was signed in the interim protection measures act with the Nisga'a.... What he's saying now is that the previous agreement is no longer in force, because in his judgment, he doesn't think that there can be a settlement between the Nisga'a and the Gitksan prior to the settlement of the Nisga'a agreement. Is that what the minister is telling the Gitksan people today?

Hon. A. Petter: No. The Leader of the Opposition is confused, hon. Speaker. There is one treaty negotiation going on in this province, and that is with the Nisga'a. One of the elements of a treaty negotiation is an interim protection measures agreement. The purpose of such an agreement is to protect the interests of the First Nation, and balance those interests against the interests of the community, while negotiations proceed. The agreement that was reached with the Nisga'a is a one-year agreement that simply preserves interests and does not prejudice any other agreements whatsoever with other First Nations.

[ Page 4534 ]

SPECIAL PROSECUTOR

FOR O'CONNOR CASE

J. Weisgerber: My question is to the Attorney General. Yesterday the Attorney General agreed that steps must be taken to instil a sense of confidence in the aboriginal community that our justice system is fair, impartial and beyond reproach; and indeed the decision to appoint a special prosecutor to review the O'Connor case is a welcome and important gesture. Would the Attorney General agree that confidence in the special prosecutor will be maximized if that individual has absolutely no connections with the people who made the decisions that led up to the decision that we're at today?

Hon. C. Gabelmann: I think I know where the member is going with his question, and let me just try to deal with all of it. The lawyer who was appointed to act as special prosecutor in this case, Mr. Malcolm Macaulay of Victoria, is appointed to review the decision made last Monday by Justice Thackray, to provide advice in respect of an appeal and, should an appeal be granted, then to take conduct of the case.

[2:15]

To answer the second question, Mr. Macaulay has represented the Crown -- the government of British Columbia -- in the past, during the Owen inquiry. I have carefully considered that question to see if there is any conflict between the role he played at that time and his current narrow and very specific role, and I am completely satisfied that there is no conflict there. The public can be very well satisfied that Mr. Macaulay's appointment is quite appropriate and will, I think, ensure that the best outcome possible is reached.

J. Weisgerber: Indeed, Mr. Macaulay is a lawyer of outstanding reputation, and certainly no one would question his qualifications. He did, in fact, act for senior members of the Attorney General's staff who may well have been involved in the decisions leading up to this case. The minister also recognizes the importance that the special prosecutor be seen to be totally independent. Has the Attorney General or his deputy consulted with the treasurer of the Law Society in the selection of the special prosecutor, as recommended on page 114 of the Owen report?

Hon. C. Gabelmann: Yes, in an indirect way, because the list of potential special prosecutors is drawn following consultation with the Law Society. There is an existing list of people from which we choose on occasion when special prosecutors are appointed, and Mr. Macaulay is on that list.

J. Weisgerber: A point of clarification, then. Neither the Attorney General nor his deputy consulted with the treasurer of the Law Society on the appointment of Mr. Macaulay in this specific case.

Hon. C. Gabelmann: The member knows, because he was a member of executive council at the time the legislation was amended, that the Crown Counsel Act has the Assistant Deputy Attorney General of the criminal justice branch make appointments of special prosecutors. That appointment was made by the Assistant Deputy Attorney General. As he is required to do by the act, he advised the deputy and myself of that appointment.

PROVINCIAL COMPETITIVENESS

F. Gingell: My question today is to the Minister of Economic Development, Small Business and Trade. In a report released yesterday by the Business Council of B.C., it was concluded that British Columbia is rated as poorer than the U.S. Pacific Northwest on ten out of 16 key factors affecting competitiveness. This would appear to be in direct contradiction of the minister's recent comments on reports issued by his ministry. Could the minister please tell this House whether he manipulated his survey to hide the anti-business climate this government has created, or is he going to attempt to discredit Price Waterhouse, who he endorsed in one of his ministry's recent reports?

Hon. D. Zirnhelt: Yes, well, it's good to be back, and I'll tell you about it if I have time. I've been dealing with....

Interjection.

Hon. D. Zirnhelt: I'll stay on the question, if you please.

The issue of B.C.'s competitiveness is something that we take seriously. In fact, I have just returned from meeting with western Economic Development ministers, Internal Trade ministers and some of my colleagues in the northwest states in order to assess trends in competitiveness. I'm happy to say that B.C. fares well. The study that you report on is based on perceptions. If you read the report, it talks about perceptions, and I would encourage the opposition to build up the confidence of people with the facts.

This is not based on facts. When you look at the facts in this study, the recent report that's put out is admittedly based on perception; they're not dealing with facts. I'm happy to meet with Mr. Matkin to discuss their methodology. They talked to 36 firms that were expanding into the United States, and not one of them says they're going to pull out of B.C. In fact, they're expanding into Washington from a base in B.C. So if you want to deal with the facts rather than perceptions, I think we're all right.

F. Gingell: Hon. Speaker, members of the House on all sides are concerned with the economic vitality of British Columbia. Will this minister lobby his cabinet colleagues to: (1) repeal the corporate capital tax; and (2) withdraw Bill 84 and redress the imbalance that it creates, so you can send out a believable message to investors that British Columbia is truly open for business?

Hon. D. Zirnhelt: Hon. Speaker, that's a very general question. I'm always lobbying my colleagues in

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the interests of the competitiveness of B.C. business -- sometimes very successfully. But I think you need to know that this survey was done in September, before the labour code came out. One of the things that was identified was sectoral bargaining, and that wasn't in there. If you do the survey now, based on what's in the code, it would probably be even better.

Just in fairness, I think I should respond fully to the question. You know, when dealing with competitiveness and competitive advantage....

The Speaker: Order, please. If the minister would conclude his comments quickly, please.

Hon. D. Zirnhelt: I would be happy to do that.

When evaluating competitive advantage, no one region, no one country or no one province can out-compete everybody else. In fact, we fare well in the Pacific Northwest. Just to prove that to you, this morning on CBC radio the Whatcom County economic development commissioner said, when comparing the facts and running through business plans with companies that want to locate in Whatcom County: "There have been companies, and we've gone through the numbers with them and they've said...."

Interjections.

Hon. D. Zirnhelt: Do you want more?

The Speaker: Order, please. I must ask the minister to take his seat.

F. Gingell: Words are not enough. Will you commit to ensure that your ministry staff carefully studies this report, which is based on real people, to ensure that your government comes out with an economic strategy that will create economic growth that is so desperately needed in British Columbia?

Hon. D. Zirnhelt: There is an open invitation for anyone to dispute the numbers in our competitiveness study which shows that by 21 percent B.C. is a better place to invest than across the line. If anyone wants to produce facts, we'll discuss facts. I said as I started that they're basing their comment on perceptions, not on facts. When you deal with the facts, you go through real companies with real business plans.

Let me read to you what the economic development officer from across the line has said.

The Speaker: Order, please. Please continue, hon. minister.

Hon. D. Zirnhelt: I think you should listen, because we're talking about facts now. Mr. Bell said on CBC this morning at 7:30:

"There have been companies, and we've gone through the numbers with them, and they've said that there's not enough of an economic advantage to come here. For certain kinds of companies there may be costs that are less here, and I would submit to you that we are very competitive in the value-added manufacturing business, in resource industries and electronic manufacturing."

These are two of the areas where we must grow and will grow in British Columbia.

ECONOMIC DEVELOPMENT

MINISTRY REORGANIZATION

W. Hurd: I have a question for the Minister of Economic Development. I'm sure the public will be interested to know how much extra it will cost to eliminate 22 deputy government agents and replace them with five regional offices staffed by 50 full-time employees, all, by the way, in ridings held by the New Democratic Party. Since we assume the minister is aware that 50 FTEs are twice as many as 22, can the minister put a price tag on this latest patronage payoff -- given that most of these 50 FTEs will probably be patronage appointments -- in the longstanding tradition of this government?

Hon. D. Zirnhelt: I think the member should be careful about slandering the civil service. In fact, competitive processes will be used.

I don't know where to start. You've got some of your facts wrong. First of all, we have removed 17 deputy government agent positions -- he said 22. As a matter of fact, if you looked at the price tag for the ministry reorganization, we will be reducing costs and making efficiency gains in our reorganization. If you want, I'm happy to take it on notice and bring those small facts to you.

MUNICIPAL TAXATION EFFECTS

OF NATIVE LAND CLAIMS

Hon. A. Petter: I rise to respond to a question from the Leader of the Opposition taken on notice last week by the Premier on my behalf. The question was: "Now that the policy of the government is to include municipal governments and regional districts at the table," why are local governments "not permitted to discuss the detail of the land claims under consideration with their constituents, in order to get feedback on the end result?" As is frequently the case, I'm afraid, the question is a tad confused, hon. Speaker, and I thought it would be helpful if I informed the House of the efforts that my ministry is making on consultation.

First of all, let me reiterate that we are absolutely committed to ensuring that third parties in local governments are consulted at all stages of the treaty negotiation process. I am pleased to inform the House and the Leader of the Opposition that my ministry is in the final stages of completing a protocol agreement with the Union of B.C. Municipalities, which sets out how municipalities will be consulted about land and other issues concerning future treaty negotiations that affect them.

The agreement recognizes the legitimate and special interest that local governments have in the land claims process and the implementation of certain aspects of negotiated agreements, and commits the province to prior consultation with local governments about specific areas of treaty negotiations that affect them.

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In addition, it gives the UBCM a role in public consultation and education in future claim areas. I can inform you as well that we have also told municipalities that it is our intention to seek a role for them as observers during the course of treaty negotiations. While acting as observers during the course of treaty negotiations. While acting as observers, local government representatives will be expected to keep certain aspects of discussions confidential, as is conventional within such negotiations.

However, there will certainly be opportunities for observers to not only discuss the negotiation process with their constituents but to also keep them informed on the range of topics under discussion.

In terms of the Nisga'a negotiations, I think this is where the confusion comes in. The Nisga'a negotiations are subject to a different set of rules, established by the framework agreement signed by previous governments. There is a confidentiality clause in that agreement that restricts the ability to consult. However, I'm again pleased to report that due to the efforts of this government, agreements have been secured around the Nisga'a table to greatly expand third-party consultation and consultation with municipalities. It is for that reason that the interim protection measures agreement consultations were able to take place and the agreement subsequently released.

We are moving on all fronts to improve consultation not only with municipalities but with all sectors and with all people in the province. I'm very proud of the initiatives we've taken, hon. Speaker.

Ministerial Statement

INTERNATIONAL YEAR OF

THE WORLD'S INDIGENOUS PEOPLE

Hon. A. Petter: Tomorrow is a significant day for indigenous people in British Columbia and throughout the world. Two years ago the United Nations General Assembly proclaimed 1993 the International Year of the World's Indigenous People, with the theme "Indigenous People: A New Partnership." The goal of this year is to strengthen international cooperation and solve problems faced by indigenous communities on issues such as human rights, the environment, development, education and health.

The official opening ceremony for the 1993 international year takes place tomorrow at the United Nations' headquarters in New York. The day is also significant because December 10 marks International Human Rights Day.

The government of British Columbia wishes to join the United Nations in formally recognizing 1993 as the International Year of the Worlds' Indigenous People. My ministry in particular supports the UN goals and initiatives for this international year. We recognize this year as an opportunity to celebrate and advance the progress that is being made on aboriginal issues in British Columbia, in Canada and around the world.

[2:30]

The partnership theme of the International Year of the World's Indigenous People is particularly relevant in British Columbia. We are striving to promote a new and positive relationship between governments and first nations peoples which will enable aboriginal peoples to achieve greater self-determination and self-reliance. Our government has formally recognized, for the first time in British Columbia's history, the inherent right of aboriginal peoples to aboriginal title and self-government.

Last December we took the major step toward this goal when we accepted all 19 recommendations of the B.C. Claims Task Force to establish a process to move land claim negotiations forward. In September representatives of first nations in British Columbia and Canada signed a historic agreement to establish the B.C. Treaty Commission, which will enable first nations to negotiate modern-day treaties with the federal and provincial governments.

Just last month the Nisga'a Tribal Council, B.C. and Canada, signed a one-year interim protection measures agreement to balance land use and resource interests of all parties during current and future Nisga'a treaty negotiations -- a major step forward and a major accomplishment in the Nisga'a negotiation process.

Hon. Speaker, the aboriginal peoples of British Columbia have a rich and powerful heritage. For at least 5,000 years before the arrival of Europeans, aboriginal societies in B.C. lived as distinct and self-sufficient nations in stable settlements. We are committed to working with aboriginal societies to make their future as strong as their proud past. The time has come for change, for understanding and for greater cooperation between aboriginal and non-aboriginal peoples in British Columbia.

My colleagues and I will work with aboriginal organizations and first nations in planning programs and activities that will advance aboriginal issues during this very special year. Working together, British Columbians can contribute toward achieving the goals of the 1993 International Year of the World's Indigenous People, and I very much look forward to this year.

G. Wilson: On behalf of the official opposition for the province of British Columbia, we recognize that tomorrow will indeed be a significant day, with the United Nations general assembly proclaiming 1993 as International Year of the World's Indigenous People and with the theme: "Indigenous People: A New Partnership."

Regrettably, hon. Speaker, it is our view that there is a lot of rhetoric in this line and very little action being taken. In the province of British Columbia, tomorrow is also a significant day because in the letter of December 4, December 10 is the day on which the coalition of the Gitanyow and Gitksan people suggested that they wished to meet with the first minister, the Premier of this province, to discuss overlapping claims, which they believe are intrinsically part of a settlement.

In the minister's statement, he acknowledged this historic interim agreement, the protection measures agreement, with the Nisga'a people. It is that part which is the subject of a great deal of concern. We wonder what the minister means when he talks about this historic agreement that he has made, given that there are still a great number of problems resulting with the Gitskan people as well.

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During this year that is going to be dedicated to a greater enhancement of understanding and work among the world's indigenous people, we wonder what steps we will be taking in the province with respect to the justice system, which was so badly tarnished in the last few days because of the ineptness that we witnessed of the prosecution and the kind of insult that has been felt among aboriginal people in British Columbia.

We recognize that there is a need to move forward as one people. We in the Liberal opposition look forward to the day when the United Nations will embrace a concept that says there is no such thing as a first world, second world or Third World -- there is but one world; and when we no longer divide people into indigenous peoples or peoples of various ethnic, religious and linguistic groups but start to recognize that we, as a global human society, must all work together and acknowledge that our differences are there but our strengths are within our differences, and that we don't continue to embrace that notion.

While we recognize that there has been great injustice done to many indigenous peoples because of the pursuit of wealth, power and the richness that very few in the world have, we acknowledge that the only solution to that problem is not the identification of individual groups to work toward partnerships but an understanding that we must break down the barriers and the divisions among peoples and acknowledge that all people are equal -- every individual equal with every other. Only through that level of equality and the provision of it will we meet the true partnership, a human partnership, in one world -- not three worlds divided, in the minds of people, between the haves and have-nots.

In recognizing this historic day, we would like to celebrate. We would like to believe that there is something to celebrate. But the level of cynicism that exists among the public today, not only in British Columbia but right across Canada, is echoed in the cynicism of people in other countries of the world. Today as we acknowledge the indigenous peoples of Somalia, we have the first world power -- if we could call them that -- sending their troops to try and guard against the indigenous people of Somalia. No one asks who provided the wealth for the arms and ammunition that created the problem in the first place.

It is very hard for us to celebrate when we hear the rhetoric coming out of so many politicians. They say that we will embrace in a new partnership, but when we recognize that the existing divisions are so wide and entrenched, we will simply put rhetoric and words into the actions of some politicians who have control and guidance and exercise power over people rather than acknowledging the empowerment of people which is so desperately needed if we are to have equality among all human races.

We would like to celebrate this in a notion that says we are indeed moving forward, as the minister has suggested. In the view of the Liberal opposition, the only way we can make that progress is when we lift the level of human understanding to such a degree that we can put away our prejudices and differences and acknowledge the fact that, on an individual and collective basis, all people must recognize equality and the knowledge that we want to move toward one world in which equality among the human races is equal and unparalleled.

We will acknowledge and accept this year as a time to embrace the concept of greater roles for the aboriginal people with respect to the provision of power in government. We hope that in acknowledging this we will also have transcended the rhetoric and moved to tangible action that provides for the equalities that I referred to, not simply the vision of some equality that makes those of us in positions of power comfortable.

J. Weisgerber: I'm delighted to join the minister in recognizing 1993 as the Year of Indigenous People. I think aboriginal issues in British Columbia are particularly important. As we work toward self-reliance and self-determination, those are important, long overdue steps in this province.

In addition to the undertakings the minister acknowledged, the unparalleled degree of involvement of aboriginal people in our Commonwealth Games next year is an indication of the sensitivity of British Columbians to aboriginal people in this province. The involvement of aboriginal people at UNBC with the protection of language and culture is again another small indication of the very real interest and commitment there is in British Columbia.

I share with the minister his enthusiasm for the resolution of land claims. There has been significant progress made in British Columbia over the last few years. There is a great deal more to be done, but we are moving in the right direction.

On perhaps a more contradictory note, the minister indicates that his government recognizes the inherent right to aboriginal title. This has been an issue of contention between my party, Social Credit, and the NDP for some time. I find it somewhat schizophrenic that this government stands up at every opportunity and recognizes that it supports the inherent right to aboriginal title, but that it continues in the courts to battle the McEachern decision; in fact, to argue -- although without much enthusiasm or vigour -- the proposition that aboriginal title does not exist.

I think it would be nice if the government were to decide which side of the fence it's on on this issue, because you can't have it both ways. You can't go around telling people that you recognize one thing, and then go to the courts and argue another or pretend to argue another. So in what is a very good statement and on what is a very good issue, it's unfortunate that the minister saw the need to bring forward this issue,

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because it was not mundane to the issue that was in front of us. Again I want to commend him....

Some Hon. Members: You mean germane, not mundane.

J. Weisgerber: Well, it was mundane, but perhaps not germane.

Let me say this. This issue of aboriginal issues generally is the most important one facing British Columbians today. It is probably one of the most important facing Canadians, but over the next decade or so aboriginal kinds of issues will be paramount in this province, and we have to deal with them sensitively, sensibly and realistically. I hope all members of the House will move in that direction over this decade.

The Speaker: The hon. member for Richmond Centre is rising on what matter?

D. Symons: Hon. Speaker, I'm asking leave of the House to make an introduction.

Leave granted.

D. Symons: You may remember that earlier in this sitting I made an introduction of students from Cambie Junior High School in Richmond. I would like the House to welcome the other half of that group of students here.

Orders of the Day

Hon. C. Gabelmann: I call committee on Bill 84.

LABOUR RELATIONS CODE

(continued)

The House in committee on Bill 84; E. Barnes in the chair.

section 55.

Hon. M. Sihota: So far we've had a fairly enjoyable debate, with its appropriate rough moments as inevitably happens in this House. Just before we do get started, I want to first of all thank both critics for their patience yesterday, and also to apologize. I did not think that I would be outside the House for more than 15 minutes, but I got myself involved in an issue that ended up taking the better part of an hour and a half. I know that it impeded our ability to deal with the sections in the House, and I just want to let both critics know that it was a situation I did not expect to occur, and it did occur. I know it had an impact on the debate, and I apologize for that.

G. Farrell-Collins: I understand the minister's comments. I would hope that the next time something like that arises, we can at least have a member of the executive council to deal with -- not to state anything against the acting parliamentary secretary for the Minister of Labour, who did a good job, along with the hon. member for Vancouver-Hastings. We had a good debate on

section 55, but it's always nice to know what the executive council is thinking, as opposed to just the government.

[2:45]

We did spend some time yesterday on

section 55, which deals with the first contract and the first collective agreement. I don't know if the minister has had a chance to review the Hansard of yesterday afternoon, but I would hope that he has. I'll try not to re-cover ground that was already covered, except for the purposes of clarification and explanations and to see if some of the statements that were made are statements that he would support.

We spent some time on

section 55(1) in particular. We looked at parallel process and the access to provisions under

section 55 that is available to labour and management. I was doing that in order to draw a parallel between labour's ability to use this

section and that of management and to state that they are not balanced.

If you read the

section carefully, it's clear that there are a number of tests that must be gone through in that first collective agreement and in the bargaining process before we end up implementing

section 55. The first step, of course, is that both sides must be bargaining in good faith, and we assume that this has taken place. Then we reach the point where despite bargaining in good faith, talks have reached an impasse, and we need to go somewhat further.

There were two issues that we canvassed there. One had to do with the strike vote and the parallel recourse that was left for the management side. Perhaps the minister can comment. In my opinion, this

section is unbalanced in that it doesn't apply a parallel process for management to trigger in order to speed up the process. We did speak at some length. We are aware that in most cases it's likely that the bargaining unit itself would seek to trigger the provisions of

section 55. The members opposite agreed -- including the member for Vancouver-Hastings, who indicated her experience -- that there were a number of cases where the employer would be eager to engage in this process.

Perhaps the minister can explain the imbalance. Why not give equal access to this provision to both management and labour?

Hon. M. Sihota: It was felt that a union had to demonstrate that it had a mandate, and hence the requirement that it have a strike vote in hand. The concern was that the parties would simply proceed to first-contract negotiations and go straight to arbitration without having some kind of mandate that would require them to be there. Hence there is that provision with regard to a union. That would bring the employer into it. That was the thinking, hon. member.

G. Farrell-Collins: We did spend some time yesterday on that

section -- not a great deal of time, but some time -- as to how that strike vote, according to the members opposite, would be the test of confidence that employees in the bargaining unit would express to the union that was negotiating on their behalf. Because the

[ Page 4539 ]

certification vote, of course, doesn't exist anymore, that in fact this would be the test. This would be much like a vote on a collective agreement. We discussed to some small extent whether or not, if that vote was decided against the union -- if the union asked for the bargaining unit to go on strike with a strike vote and failed to receive that support -- it would in fact be the vote of confidence or non-confidence that would be required.

Hon. M. Sihota: If they fail.... I'm trying to get caught up on what was discussed yesterday, so that's the hesitation. Neither one of us was here yesterday, of course, so it's a bit of a problem.

G. Farrell-Collins: And neither one of you has read Hansard .

Hon. M. Sihota: And neither one of us read Hansard . I had cabinet this morning, and my deputy was looking after the affairs of the ministry. Mind you, he did read Hansard . That's why he can bring me up to date on it.

If a union does not get a strike vote, then negotiations continue.

G. Farrell-Collins: I understand, of course, that this is the process that takes place. Perhaps it is an aside, and I won't spend a great deal of time on it, but the minister has said a number of times in the House that there's no need for a certification vote, because that vote of confidence comes later. The member for Vancouver-Hastings made some presentation that this is a situation where that is in fact the vote of confidence. My response was: what if they don't get that vote of confidence? Then what? Would they have the right to have a decertification vote immediately? Or what would be the process, if that's the intent?

Hon. M. Sihota: Now I understand where you're going and what you're asking, and you're talking about comments that I made earlier on. If there was no strike vote then, yes, that the union might take that as a sign of non-confidence; or it might not. But it would not, of course, automatically trigger a decertification vote. The employees have their rights under the legislation -- as prescribed in legislation we've already dealt with -- to do that when and if they want to. The union also has the right to test that confidence again by a subsequent vote.

The point that I think I made earlier in debate was that the real vote is the vote in terms of the ratification of that first contract, which could happen under these provisions -- but it might not necessarily happen under these provisions, as I said at that time.

G. Farrell-Collins: It's perhaps a subtle point. It's not something I want to spend a great deal of time on. It's just that we did previously spend a great deal of time on the certification

section and the vote, and it seems that the argument we had at the time was that the first collective agreement -- in this case this would be a vote of confidence.... Fine. If the union holds these votes on the collective agreement or on the strike vote, and wins, then it's obviously some test of confidence. But I guess the question is: what happens if they fail? Do they just come back at some later time for another vote of confidence? Are there no real repercussions? I guess it's more of a philosophical question than perhaps applyies to this section, so I won't go into it very long.

If we have the statements that those provisions provide a vote of confidence, what happens when that vote of confidence doesn't occur?

Hon. M. Sihota: I take the hon. member's point, and he's right: this is a philosophical point. It's consistent with the debate we had earlier and consistent with the position he took at the time, and he's driving the point home now -- which is fair enough. All I would say is that if the employees lose confidence in their union, they do have the right of decertification, which they could exercise when they wish to exercise it, and that would be the final verdict on the matter of confidence or the lack of it. But I understand your point, and I take the point.

G. Farrell-Collins: The next angle -- we started to touch on it with regard to

section 52(1), but I'd like to come back to it briefly -- is the parallel process and the access to this process, if we can dwell on that for just a minute.

The minister stated that the reason for the strike vote was to test the support of the unions within the bargaining unit, to ensure that the bargaining unit felt that the union was representing them fairly, that they had come to an impasse and that now it was appropriate to go to mediation and possibly arbitration somewhere down the line. They now have access to all the provisions that are laid out very clearly and concisely in

section 55. My question is, as it was yesterday: why does the employer not have some mechanism on their own to trigger the provisions of

section 55? When we discussed that a little bit yesterday, the member for Vancouver-Hastings and the member for North Vancouver-Lonsdale stated that the employer had the right to request mediation in other provisions of the bill, and there was no need for

section 55. In this case also, prior to the strike vote, certainly the employees could ask for outside mediation. There's a parallel there. Why is it that only the employee group can determine when

section 55 kicks in and when they have access to it? Why would an employer not also have the right to do that?

Hon. M. Sihota: Let me sort of sidestep the question, then come back to it. Let's not forget that either party may apply under the legislation, and let's not forget that once a strike vote has taken place, there is the parallel -- to use the hon. member's word -- with regard to application. Let's also not forget that in subsequent provisions of the legislation there is a parallel process that both parties can trigger with regard to mediation. So in all those areas there is an element of parallelism.

At the front end, with regard to this

section -- let me now come squarely to your point -- there isn't that parallelism, for this reason: you don't want to make it too easy for people to get into the arbitration process; rather, you want to force them to negotiate. So what

[ Page 4540 ]

we've done is place a significant impediment in their way, which tries to meet the other theme of the legislation, which is to try to get them to work out their differences -- and that impediment is the strike vote. For all the reasons I've mentioned, from the union perspective -- i.e., mandate -- it's there. We don't want to make it possible to sort of squeeze out of the legislation and go straight into arbitration; we want them to work it through. So that impediment works both ways for both parties. The union has to work to get the strike vote; the employer....

In a peculiar way, you could make the argument in the same vein.... But more importantly, the employer has an obligation to try to work things through with his own employees first. What you're doing is corralling the situation so as to force the parties to work together. That meets the other tenet, or theme, of the legislation.

G. Farrell-Collins: I see the direction that the minister is headed. Clearly you don't want this to become a fast-track process whereby -- and we'll probably get into that in a few minutes -- all you do is certify and then immediately flow into mediation and arbitration, and get a contract without having to go through a process of bargaining. But I guess we're going to have to differ on that one. I believe that there should be some process whereby the employer also can trigger this provision in cases where they feel it's necessary.

Certainly there are cases where an employer may have no problem with a union certifying their workplace -- not at all; they may be relatively supportive of having a union in the workplace. It may, in their view, be an improvement to the labour relations climate in that business. It may well happen that the employer is not opposed to a union. They may be opposed to some of the demands of the union at the bargaining table, which is fair game. That's the way the game is played.

However, they may not want to end up in a protracted, ongoing dispute, with long mediation, discussions that go on for months and months, the legal costs, the time required, and the management costs incurred. Rather, they may say: "Look, I agree. I don't have any problem with you people certifying and bargaining collectively, but I'm not willing to go on forever with this dispute. I want a reasonable contract. Therefore I would like access to these provisions and the mediation, with subsequent arbitration, in a process that is perhaps more reasonable." I see what the minister is saying.

We need some impediments so that they work their problems out on their own. Yes, there's an impediment for the labour side by having to acquire support for a strike vote. That would be fairly ominous to a new bargaining unit, but it's not an ironclad obstacle;

whereas on the employer's side it's a brick wall. There is no provision whatsoever for the employer to trigger this section. After a certain period of time an employer in a difficult situation should be able to trigger the provisions in this

section -- for all the reasons the minister, I am sure, will get to in the other sections.

Hon. M. Sihota: By the way, am I led to believe that the member from Richmond -- the justice critic -- is now in a new seat in the House? I wanted to know whether the heckling coming from there was going to be official or not.

D. Jarvis: We don't heckle.

Hon. M. Sihota: I wanted to establish that point, but of course, he has never been known to heckle.

[3:00]

The points you make are interesting, hon. member, because when the Coalition of B.C. Businesses met with us, one of their concerns was that the

section would be triggered by the practice of surface bargaining on the part of either the trade union or the employer under that allegation. They wanted some mechanism to ensure that bargaining would occur in good faith. The structure of the

section with this provision pretty well assures that that would happen, because it forces the parties to negotiate in good faith. That also has to be considered in the equation. I think, when you look at it from that perspective. it's a good section.

You should also be mindful of the provisions in

section 59, which I guess we can talk about later. You could tie that into what's in

section 55 as well.

G. Farrell-Collins: I have one last comment on that issue. I couldn't agree more with the coalition: there should be an incentive for both sides to work things out on their own. But I still fail to see the parallel access to the provisions in this section. I guess we will have to leave it at that. Obviously the minister doesn't feel it's as necessary for the employer to have access to this as it is for the union, and on that we disagree.

We did spend some time yesterday on the process itself. If we can shift gears and come at this from another angle, we would have some discussion.... I won't go into it again, but I read a quote from Paul Weiler on past experiences in this jurisdiction, in British Columbia, on first-contract arbitration. In his opinion, that was a less than happy experience. In the vast majority of cases where the first contract was imposed, the second contracts never came about; the bargaining unit decertified and they went their separate ways, because it was an unsatisfactory agreement, probably for both sides. That was part of the reason I thought it would be important to ensure that this

section was crystal-clear and squeaky-clean, so to speak, as far as fairness and access on both sides is concerned. It deals with the initial process whereby that first collective agreement is struck.

I know the reasons the minister is going to argue in favour of this provision. If you bring in this type of provision, you should ensure it is seen to be fair right from the start, so that once both sides have gone through the arbitration process, they can't look back in history and say: "It was rigged against us right from square one." That's a problem. Again, it's not a huge issue, but I think it's something that would certainly send a clear signal to both sides that the government is intent on being fair and balanced, particularly in this section. I would hope we could make some minor change to allow that.

Some of the other provisions and questions -- and if we take a slightly different tack on it.... The minister

[ Page 4541 ]

touched on it a little bit in his concern that this

section may be used as a process to bypass the collective bargaining process and sort of fast-track into mediation and then arbitration, and the risk of either party not bargaining in good faith. I guess what could happen with this type of section, of course, is that a bargaining unit could be certified, they could go into negotiations, there would be surface bargaining, but -- as I said a couple of times before; I don't know if it was in the House or not -- determining what's good faith is sort of like nailing Jell-O to the wall.

It's pretty hard to prove that somebody's not bargaining in good faith; it's a difficult thing to measure. So you could have surface bargaining take place deliberately, do the strike vote, trigger the fast-track process for arbitration and get a contract that's going to be similar to other ones in that sector. It's sort of a roundabout, long-drawn-out way, where there's a possibility that organizers could go into a unit and say: "Look, sign the cards. We'll sign you up. This is the process that it's going to go through.

Within three or four months we're going to get you the contract that these people have over here. It's guaranteed, because it's right in the section. Or something similar; it's going to be arbitrated and we're going to get a very similar contract." So that is another concern. If surface bargaining exists and you don't have people bargaining in good faith, which is of course difficult to prove, you may end up in a situation where this

section is used to do just those types of things that the minister said he didn't want to achieve.

Hon. M. Sihota: None of those are unreasonable concerns on the part of the hon. member. In particular, the comments he makes about Paul Weiler are very accurate in terms of life experience of first contracts. You see, under the old provision, basically, if you failed, it went straight to arbitration. Under these provisions, we've tried to deal with the situation in terms of massaging it along appropriately and adequately. So I think we've improved that area of law. If your point is that it could always stand further improvement, I'll accept that, and we'll obviously take a look and see how this

section works in the years ahead.

D. Symons: Hon. Chair, I ask leave to make an introduction.

Leave granted.

D. Symons: I notice in the gallery Mr. Ron Dickson, who is from my riding in Richmond. Ron has had a good number of years of working on the public behalf, in the interest of people, and he's on Richmond City Council. He's also a legal counsel for the B.C. trades and labour council association. So I do welcome him here and I wish you'd all join me in welcoming him.

L. Hanson:

Section 55, I believe, is motivated by.... First of all, let me say to the minister: I appreciate your remarks at the start of the session.

This

section has some understandable and -- with some reservation -- probably some good intentions. The situation as I saw it and experienced it in my short time with those responsibilities was that the tenor the atmosphere of the labour-management relationship that was established when the first contract was negotiated usually had some lasting effect on the negotiating that went on, and quite often the attitude that was developed there affected the bargaining atmosphere for years. I know of some circumstances, as I'm sure the minister does, where there were some pretty radical reactions to certification and the negotiations for a first contract.

But what I have difficulty in understanding -- maybe the minister can help me with this -- is how he sees this particular

section as helping that atmosphere develop. While I have little difficulty with the mediation process and with either party being able to ask for the mediation services that are offered later in the bill, I do have a lot of difficulty with the ability of one side or the other -- and they definitely are sides -- to ask for the imposition of a contract. It's not that simple; I know there are some steps to go through first. But the end result is that there is an imposition of the first contract.

When you consider that the original relationship of the two parties is a very suspicious one -- and I don't lean that suspicion on any one of the two parties; it probably exists in the eyes of both.... The minister and his government have removed the requirement for a vote in the original certification process. It seems to me that, while there may still have been some arguments or differences in the relationship between the two, the employer did get some comfort from the secret ballot, in that it truly was the wishes of his or her employees.

If you combine those two issues with the imposition of the first contract, which appears to be much more readily available, it seems to me that it is not going to be of benefit to the two parties in the settlement of a first contract.

Someone mentioned the other day that you can lead a horse to water, but you can't make him drink. Well, the imposition of a contract, I think, fits that expression very aptly. It seems to me that the relationship could be better served if the two parties were required to make a joint application for the imposition of the first contract. The minister said the other day that they were changing the wording in one of the sections relating to technological change, simply because the result of the wording in the old bill was that it wasn't applied for or wasn't used.

I suspect that under these circumstances, this would be triggered very often, but it would be triggered by only one party to the negotiations. I believe that would be the labour side. In my experience and opinion, it would lead to further difficulties and worse relations between the two parties than with the process that was in place before. Maybe the minister could comment on that.

Hon. M. Sihota: Somewhere, long ago in the past, we had a debate about vetoes and whether or not any particular party should have a veto with respect to certain issues. I think it would be wrong and contrary to the intention of this

section if we were to have a provision for a joint application, which is the tenor of the hon. member's arguments.

[ Page 4542 ]

He's right in that there are suspicious elements to the relationship. He is very polite when he says it has a lasting effect. Often it has a negative lasting effect. We are trying to remove as many of the indicia of suspicion and negative lasting effects as we can in this very delicate and difficult area of labour negotiations, and I think that you would heighten the potential for a lasting negative effect if it was by way of joint application.

I think, firstly, you should leave it to either party once the strike vote has been taken to be able to make the application and have them make the argument that they have been bargaining in good faith -- I am sure the hon. member knows from his experience, and I know from my experience, that everybody always says that they have been -- and secondly, to be able to go there and press their case in front of someone who is neutral and can bring the parties, with professional assistance, to the dispute so as to minimize the potential for a lasting negative effect.

So I think the way we've got it framed is superior to the way in which you are structuring your argument.

[3:15]

L. Hanson: I understand the minister's remarks. I have an amendment sitting on the order paper which I would like to move officially. I would also like to speak to that amendment.

[SECTION 55(1), by the deletion of the words: "Either party may apply" and by the substitution therefor of the words: "The parties may jointly apply".]

The Chair: I have looked at your amendment, and it does appear to be in order. Please proceed, hon. member.

On the amendment.

L. Hanson: Again we are talking about not two parties but one party in particular, I guess, who probably doesn't have a whole bunch of experience in labour relations or in dealing with a negotiated contract, quite simply because it's the first certification. There may be some past experience or whatever on the part of the employer, but generally speaking, there is very little experience.

We now have the removal of the secret ballot, so the employer is less than absolutely convinced. Whether he or she is right or wrong I guess is a question that nobody will ever determine, but I think it's reasonable and fair to say that the suspicion may cross the mind of the employer that some of that 55 percent membership necessary for certification was not obtained in the most sincere way. Rightly or wrongly I think it's fair to say that that suspicion might exist. We've taken away that question to be tested by a supervised secret ballot.

In the bill further on, we have also taken away the employer's right to hire anyone under these circumstances if a lockout or strike should occur. We've also narrowed the

interpretation of exempt management. We've also said that any exempt person could not do the job of a striking employee without their consent.

If you take all of these things -- and I thank you for the leniency, Mr. Chairman, because I am trying to deal with this

section -- I think there's a pretty good reason to expect that the employer may have some suspicions about the whole process being totally fair and totally acceptable.

I certainly have no difficulty.... As a matter of fact, I would encourage and totally support the ability for either party to ask for the assistance of professionals in the labour relations community to help them reach that first contract. There is nothing wrong with that; it just makes good practical sense, I think, for the future relationship. But then to extend that to say that through the initiative of one party they can arrive at that forced situation where a first contract is imposed....

I think the minister would agree that under these circumstances, because of a lack of knowledge on the part of the employer about the bargaining process and conditions that are and are not reasonable in a contract, that mediator could be of great assistance. I think he would also admit that that employer is probably less professional than the people negotiating on the other side. With that in mind, the suspicion that is going to be there is going to be emphasized. Then that employer will be faced with the imposition of a contract that really has not been part of the discussion.

If it is in a particular segment of industry that doesn't have a lot of contract precedents to use, all of a sudden this person will be faced with a document that may be pretty hard to understand and to make any common sense of.

On top of that, I suspect that there might be a fairly good possibility that the contract imposed would likely be one that exists somewhere else, or a number of the conditions in it would likely relate to a contract that has been negotiated and accepted in other circumstances. Then all of a sudden the employer is faced with a totally foreign document that he wasn't part of authoring, as well as having it imposed on him by a third party.

Therefore, in my opinion, if there were a request or demand for the imposition of a contract, it would be to the benefit of public relations and the future relations of the two parties if it was a joint imposition. Under those circumstances, I'm sure it would work quite well. Maybe I can have the minister comment.

The Chair: We are on the amendment.

Hon. M. Sihota: I think I've basically already stated my case in terms of why we're not open to this amendment proceeding. I don't think this is a sharp political or philosophical difference. But if you take a look at it from the point of view of sensible labour relations, it's best to give either party the option. If an employer has some of the difficulties that the hon. member referred to, there are mediation provisions and other provisions that he can seek the assistance of to try to bring an end to the dispute.

For all of the reasons that I've amplified on, and the fact that never again would I agree to any provision that could possibly grant anybody a veto for anything, we're just not in a position to accept the amendment as proposed.

[ Page 4543 ]

H. De Jong: I attended the B.C. Federation of Agriculture meeting yesterday. There is certainly a strong concern among farmers, in particular, about how Bill 84, and particularly this section, will affect the farming industry. Bill 84 allows for one person to organize. Many farms fall into the category of having one employee. They may have had an employee for a long time or different employees over a period of time, and it has been very satisfactory -- no problems. All of a sudden there may be a controversy arising between the farmer and his employee. The farmers see this

section as a cop-out. Therefore I fully agree with the amendment. It should be by a joint application and not by a single application. I would hope that the minister would seriously consider that, because unionization is not the way to solve a dispute between two people. I don't think it is, the farming community doesn't think it is and I don't think this government really thinks it is. Perhaps the minister will want to comment.

Hon. M. Sihota: I appreciate those comments. I regret that because of my duties here with respect to this legislation, I was unable to attend the B.C. Federation of Agriculture convention. The did ask me to come. I appreciate being made aware of their concerns, and I thank the hon. member for bringing some of those concerns before the House today. My colleagues the Minister of Aboriginal Affairs and the Minister of Agriculture were there. I also know of some of the motions that they passed, including motions making reference to labour legislation.

I should let the hon. member know that I met privately with representatives of their group to discuss some of their concerns, both in regard to this code and other issues. I think it was about a week ago. I know they have concerns, which I'm sure the hon. member will be bringing to the floor during the debate on subsequent sections. I'll leave it for him to take that initiative, rather than occupy the field myself and talk about some of the things that are of concern to him.

With respect to joint applications, let's not forget that all of the provisions in

section 55 give equal rights to employers and employees after a strike vote has been taken. I said that earlier, but I know you weren't in the House. Equality also exists with regard to mediation provisions, so there's equal access to the provisions after the strike vote is taken.

We placed the strike vote in there to try to encourage the parties to engage in good-faith bargaining. If one party is not engaged in good-faith bargaining and the provision requires a joint application, the party engaged in bad-faith bargaining would prevent an employer or an employee association from using this

section to help bring about an end to a dispute. That was the wrong we wanted to guard against; hence this provision. I would hope, therefore, that the farm community -- and the hon. member has always done a good job raising their concerns in the House -- would recognize that the joint application route may result in an additional hurdle that may not be in their best interest should they find themselves facing a first-contract situation.

The hon. member knows there has been very little unionization in the agriculture industry historically, and it remains to be seen whether this legislation results in any material change in that regard.

W. Hurd: I'd like to speak in favour of the amendment. I'd just like to say that I think this idea of compulsory first-contract arbitration is one that strikes fear into the heart of small business. The opposition wouldn't want to do that.

There are some points that have to be raised here. In connection with compulsory first contracts, the point has been made by my colleague and Labour critic, the hon. member for Fort Langley-Aldergrove, that second contracts are very rarely negotiated. One of the great fears of small business is that when you turn over the responsibility to a third party to impose a contract, it may not be as sensitive to the economic conditions of the business that the two initial parties trying to negotiate the contract might have been able to hold.

I think it's significant that in other jurisdictions in Canada the success rate on second contracts has been dismal precisely for that reason. However earnest the third party may be in mediating the dispute, the contract is not as sensitive to the economic reality of the business or enterprise that the union and management side or owners of the business would be as they plow through the issues en route to a first collective agreement.

I want to support the amendment by saying that there is a great deal of concern in the business community about the idea of compulsory first contract arbitration. There is concern that the contract is one the company in particular may not be able to live with. As a consequence, we would certainly welcome clarification from the minister -- as he has done research in labour relations in other jurisdictions -- that the lack of economic considerations in the arbitration process was not the reason the second contract never happened.

H. De Jong: I've had a little bit of time to think over the answer the minister gave me. I don't quite agree with him, because I think he was mixing up strikes with first-time agreements. As I said earlier, a dispute could force the organization of a union, even if there was only one employee on that farm. The farming community distinctly expressed their opinion on unionization and the effects of Bill 84 yesterday, at least on those sections we have already gone through that apply to a property that has been unionized always being unionized.

If a dispute arises between an employer and a single employee, surely this act should not take the place of the Employment Standards Act, which is there to allow for those discussions and situations to be brought to justice.

Hon. M. Sihota: I thank the hon. member for his comments. I guess we'll have to agree to disagree. The Employment Standards Act, of course, applies to the non-unionized sector and this act to the unionized sector. I know he always takes care in making his comments with respect to the agriculture industry, and I thank him for it. I met with the agriculture industry. I

[ Page 4544 ]

told them we would be watching carefully for the impact of this legislation on that industry. As I've said on several other occasions, if there are any unintended consequences, we would not hesitate to deal with the legislation.

[3:30]

H. De Jong: I was not told by just one farmer or the association, as such, yesterday. It was a general comment. The minister said he met with the farming community a week ago, and they appreciated that visit. At the same time, the farming community within the agricultural framework had not been consulted prior to Bill 84 being put together.

L. Hanson: I won't spend a long time on this, but I think what we're talking about is becoming quite apparent. The request for this sort of change to the legislation came from the labour community, not the management community. Those people about to face the consequences of this

section have not been talked to and have not had a chance to provide any input. I know the minister doesn't believe this himself, but it is suggested that the difficulty is that the two parties sitting at the table have bargained honestly and sincerely at some length and can't reach an agreement, and that the solution is for someone to come along and impose an agreement.

I suspect that in that atmosphere it would not be as detrimental to their future relations as in the true case of just about all these circumstances, where the employer is probably opposed to certification to start with and may be negotiating in good faith, or it's not provable that it isn't in good faith. As a result of that, the minister is suggesting that it is better for their future relationship to have a contract imposed on them.

Mr. Chairman, I would suggest -- and only for the record -- that the facts will be that this

section of the act will never be applied for by one side of the equation. It's going to be used only by the other side of the equation, and the result will be further acrimony, distrust and poor relationships between the two parties, which will be made much worse by the imposition of the contract. I know the minister recognizes what I'm saying, and that that is a possibility. While he said he's opposed to the amendment, he might commit to monitoring that very closely. From the management side, this clause of the bill is going to be like the Maytag repairman: it's never going to be used. From the other side, it's going to be used all the time.

Hon. M. Sihota: We will do the appropriate monitoring, hon. member.

Amendment negatived on the following division:

YEAS -- 16

Mitchell

Dueck

Serwa

Weisgerber

Hanson

Gingell

Farrell-Collins

Cowie

Warnke

De Jong

Neufeld

Fox

Symons

Anderson

Hurd

Jarvis

NAYS -- 37

Petter

Marzari

Sihota

Priddy

Cashore

Barlee

Charbonneau

Pement

Beattie

Schreck

Lali

Giesbrecht

Farnworth

Hammell

Lovick

B. Jones

Pullinger

Perry

Blencoe

Zirnhelt

Cull

Gabelmann

Harcourt

Hagen

Dosanjh

O'Neill

Hartley

Streifel

Krog

Randall

Garden

Kasper

Simpson

Brewin

Janssen

Miller

Lord

Section 55 approved on the following division:

YEAS -- 37

Petter

Marzari

Sihota

Priddy

Cashore

Barlee

Charbonneau

Pement

Beattie

Schreck

Lali

Giesbrecht

Hagen

Harcourt

Gabelmann

Cull

Zirnhelt

Blencoe

Perry

Pullinger

B. Jones

Lovick

Hammell

Farnworth

Dosanjh

O'Neill

Hartley

Streifel

Lord

Krog

Randall

Garden

Kasper

Simpson

Brewin

Janssen

Miller

NAYS -- 14

Warnke

Cowie

Farrell-Collins

Gingell

Hanson

Weisgerber

Serwa

De Jong

Neufeld

Fox

Symons

Anderson

Hurd

Jarvis

Sections 56 to 58 inclusive approved.

section 59.

G. Farrell-Collins: I have a quick question for the minister. I see he has urgent business he has to run away on. I don't want to spend a lot of time on this section; I just want to ask the minister a brief question.

Section 59 has a provision whereby if an employer locked out the employees for one day or some period of time, the employees, or rather the union -- I should make that distinction, because it's important -- could continue in a strike position without going back to the employees for a strike vote in order to test their support. I'm wondering if that is an intended provision of this

section or if it's an oversight. If it's not an oversight, what is the reason for it?

Hon. M. Sihota: You're saying that once you've had a strike vote.... Am I correct on that? Can you run it by me again?

[3:45]

[ Page 4545 ]

G. Farrell-Collins: My understanding of

section 59 is that if an employer locks out the employees during a dispute -- for example, for one day -- it would then be the prerogative of the union to continue in a strike position if that lockout ended at the end of the first day and they were in fact inviting people back to work.

Hon. M. Sihota: That's true.

G. Farrell-Collins: That's correct. That's my understanding. Aren't we going around that test we talked about earlier that requires the union to go to its members for support to strike? In this situation you have a lockout -- maybe it only lasts one day -- immediately followed by a strike, and there has been no going back to the employees to determine whether or not they wish to be on strike. It's really left up to the union to determine, and not the employees in the bargaining unit itself.

Hon. M. Sihota: But the point is this: the union always has the right to call a vote if it wishes to call a vote, first of all. Secondly, with regard to the strike, the strike will work only if they've got the support of the employees.

G. Farrell-Collins: Not with this legislation.

Hon. M. Sihota: You can make that point, but that's how strikes work. You can't just call a strike and not have support. Only if you've got support will you even consider calling a strike, and only then will the strike be effective.

G. Farrell-Collins: I'm clear on the fact that you need support to have a strike. But under this bill and in the

section we're going to deal with on the ban on replacement workers, it will preclude those employees from crossing the picket line if they don't support the strike. There's really no option. Under this legislation and particularly this section, if the union calls a strike without going to the members for a vote....

I assume they go to the members for a vote in other conditions, because that's the only test to determine whether there really is support. Here we have a provision where a strike can be called without that test being made. Combined with

section 68, where the employees aren't allowed to cross the line and go back to work if they so choose -- if they don't support the strike -- we have a position where the union executive can call the strike without even checking on the support of the members in the bargaining unit.

Hon. M. Sihota: Except that employees are entitled to cross the picket line, even under the replacement worker provisions in the legislation.

Section 59 approved.

section 60.

H. De Jong: I would like to speak for a bit on

section 60, particularly in relation to perishable property.

I believe that in this bill and particularly this

section -- even though it is probably the same as it was in Bill 19, but because of the many other changes that have been made to this bill compared to the previous legislation -- the implications on perishable products will be greater. This applies, of course, to the total chain -- from the producer to the processor to the chain stores to the consumer.

While 72 hours in subsection (4) gives a fair amount of latitude, in the area of production, 72 hours is very little. On a long weekend, a strike notice on Friday will take place on Tuesday, which could be immediately after a holiday. Quite often -- not always -- these dates are strategically chosen by those who wish to go on strike. I think that should be recognized. Because of that and those situations in general -- I will speak more specifically on this amendment later on

-- I would like to submit an amendment to

section 60(4) by deleting from the first line after the words "the board may" and substituting that with "shall" and by deleting "or on its own motion"; and further, by deleting the words in the bottom line "more than 72 hours" and substituting therefor the words "a minimum of five working days."

The Chair: May I have a copy of your amendment, hon. member.

Hon. members, the Chair should remind you that: "It is usual, though not obligatory, to give notice of an amendment to a bill in committee." I'm quoting from Sir Erskine May, 21st edition, page 488:

"Notice should be given whenever possible of every amendment, as the moving of any amendment without notice causes obvious difficulty and inconvenience to the committee. Amendments of which notice has been given only on the previous day are marked on the notice paper with a star, and chairmen regularly decline to select such amendments; amendments of which no notice has been given until the day itself (manuscript amendments) are rarely selected."

I read this into the record for your consideration. As all members know, we have customarily accepted manuscript amendments as a practice. However, you can appreciate the difficulty the Chair has in trying to judge the admissibility of amendments when there's no opportunity to study them beforehand. If the member wishes to proceed, we will review the amendment.

On the amendment.

H. De Jong: Thank you, hon. Chair. I apologize for not having had the opportunity to submit that amendment yesterday, since I was away from the Legislature.

One of the reasons that I have chosen to put in this amendment specifically regarding the 72 hours' notice is that, as I have already explained, in many situations it is too short and certainly doesn't give the processing plant in particular much leeway to make alternative arrangements.

I also believe that in the processing community, particularly when you have a plant that works year-round.... It's not a seasonal product; it's a year-round

[ Page 4546 ]

product -- for instance, dairy products. From the time the farm produces the milk to the time the milk is picked up, it's already two days on its way. It will take a further day or two at the pasteurization plant for homogenization, packaging and getting ready for shipment. In many outlying areas of the province, it takes at least a good half-day if not a whole day to get these products to the supermarket within those various delivery places. It's impossible for a farmer having to face a shutdown of the processing plant within 72 hours.

I realize that the board has discretion under the current

section as it is. However, the farming community feels very insecure with that discretion, and quite often that decision is made at the very end of the 72 hours, which leaves a lot of uncertainty for the producers as well as the processors. Perhaps the minister will wish to comment.

Hon. M. Sihota: There is protection, as we both acknowledge, with regard to perishable property under 60(4). As I understand 60(4), the application can be brought forward prior to the 72-hour notice having expired, to protect perishable property. I don't think that's a problem. You could conceivably have something in terms of protection that goes as far as five days, to use your language. I suppose that would be a matter of discretion for the board.

The use of the word "may" is to allow them to exercise that discretion, as opposed to "shall," which would mandate it so they would have no choice -- five days. What if there was a period greater than five? I guess you could say "for no less than five" to give them discretion. We felt it was better to let the board deal with individual facts on perishable property than to deny them the opportunity to exercise some discretion. One would have to make that case, but I would expect -- if this may help the hon. member -- the board to be sensitive to farming issues as they relate to perishable property.

I emphasize that. I have some sympathy for the arguments the farmers made to me with regard to some of these issues. I'm purposely and consciously putting that on the record so that they can make the arguments should the issue arise. I would expect the board to show sensitivity to the concern and plight of farmers.

[4:00]

H. De Jong: I appreciate the minister's answer. However, the initial reason I asked for five days was simply that the board does have the authority to extend that five days. The 72 hours, as I mentioned while the minister was out for a little while.... While strikes are often planned by the union in a strategic way, these things will often happen when a long weekend is coming up or a heavy flow of produce, be it of one crop or another, is occurring and needs processing. The 72 hours is certainly not enough time for the industry to work with or the farmers to feel comfortable with.

I don't think extending the initial period to five workings days -- generally, working days are Monday through Friday -- is asking for anything out of the ordinary. With the dairy processors in particular, they generally do not have a full staff on hand for weekends or long weekends. As a result, there is quite an accumulation of milk at the plant, and they would have a double problem dealing with that situation on Tuesday morning, when the board may in fact -- and I would think that they would -- make an exemption for perishable products in this case. But it would still leave a lot of uncertainty.

In some cases it could in fact force the processor to hire staff on the weekend just to make sure that stockpiling of the product is not occurring at the deadline of the 72 hours.

Hon. M. Sihota: I'm trying to determine the best way to react to the hon. member's question. We do have a

section here that allows for the protection of perishable property. It allows the board to extend a protection beyond the 72 hours' notice. It gives the board discretion to look at the facts and make a determination. I'm not aware of a fact pattern -- we're trying to think of one -- where something has gone awry that would warrant an amendment to the

section to meet the hon. member's concerns. Maybe he's got an example of someone who was injured as a consequence of this type of provision.

Bill 19 said: "Notwithstanding subsection (3)(b), the council may, on application or on its own motion, for the protection of (

a) perishable property or (

b) other property or persons affected by perishable property, direct a trade union to give more than 72 hours' notice of a strike." That's what Bill 19 has. This

section says virtually the same: "...the board may, on application or on its own motion, for the protection of (

a) perishable property, or (

b) other property or persons affected by perishable property, direct a trade union to give more than 72 hours' notice of a strike."

With all respect, I'm sure that the hon. member voted for the old

section 81(4), which seems to have the same language as this section. I'm not too sure what wrongs happened under the previous

section that would warrant a change to this section.

H. De Jong: I voted for Bill 19 when it was introduced. However, I know that many sincere concerns have been expressed by the farming community about the perishable products section. Granted, there may not have been any major problems. I think it would be just as foolish for the government, when putting together a labour act, not to look at potential problems that could arise as not to put a speed limit sign on a sharp curve in the highway. This is precisely one of the areas where farmers and processors.... The farming community, in particular, is going to be more involved because of Bill 84.

The other implications in Bill 84 will have a definite effect on the agricultural community -- and not a positive effect, I should say.

We talk about farmers being more competitive. The government can say that farmers have to be more competitive, but surely to goodness it's up to the government to provide the climate so that competitiveness can at least be established, accommodated and accomplished.

Again, I ask the minister to consider this amendment very seriously. It does not change the act, but it does

[ Page 4547 ]

provide a little more leeway when it comes to dealing with perishable products.

Hon. M. Sihota: I would love to debate with the hon. member the matter of the application of this legislation to the agricultural industry, because I would take issue with the fact that it would have a devastating effect on that industry. In fact, our view is exactly to the contrary. But that would be out of order at this stage of the debate.

Secondly, let me say this. To use your analogy of a curve on the road, the speed limit sign is up and the warning is there, by virtue of this provision, which allows the board to take notice of that corner in the road -- i.e., perishable property -- and gives it the power to direct a trade union to give more than 72 hours' notice of a strike. I have added to that warning, which is no different from what was in Bill 19, by going further in my very consciously given statements in this House.

Where there is a matter of perishable property in an agriculture situation, I would expect them to deal with that issue not only with dispatch but with the appropriate level of sensitivity, because I do have -- and I said this to the representative of the B.C. Federation of Agriculture when I met with him -- sympathy for the argument that they put forward. But I think the protection is there in the legislation before the House.

Amendment negatived.

Sections 60 and 61 approved.

section 62.

L. Hanson: Mr. Chairman, 62 deals with a new clause, which will give employees during a strike or a lockout the right to benefits they had enjoyed. The question I have for the minister is: does this apply also if the employees have gone on to other jobs or other occupations? Would they still be able to take advantage of that? And also, is there any method under those circumstances...? There could be a test, the same as there is with an employee at work, of the need for that protection if it were claimed. A concern that was raised with me, for the minister's benefit, is two things.

If the individual finds another occupation or another job, are they still entitled to it? Secondly, if there is less than a responsible use of those benefits, is there some protection for the plan? Because the results of that would live with the employer on his record. Most of these plans are based on experience, if the minister can appreciate that.

Hon. M. Sihota: First of all, I guess it would depend on the wording of the insurance coverage or the benefit coverage. There are situations where you're covered even though you're not employed. Sometimes people do acquire insurance that goes way beyond.... I'm trying to think of a good example; I just can't. Let me give you an example. When I was maintaining a law practice -- this is in opposition -- although my primary source of income was from here, I had a source of income from my law practice.

And if I were injured, let's say here in the Legislature, I still had disability coverage that would allow me to continue a stream of income from my law practice. I guess people can buy that kind of coverage. So that's why I won't categorically give you an answer. Let's take the example of someone leaving a pulp mill during a strike and driving a cab and getting involved in a motor vehicle accident while they're driving a cab. My reading of the

section is that the cab company would have to bear the responsibility of that experience, not the pulp company. The person was not in the employ of the pulp company, but of the cab company. So it would not reflect back in the clean sense that I referred to, assuming that there isn't a policy to cover that eventuality.

L. Hanson: I think I understand that. I have some difficulty in relating the circumstances of the minister's law practice and his tenure as an MLA to the same circumstances. I think what the minister said is that if the policy, whatever the wording is, precludes that coverage.... Most policies that I'm aware of -- maybe the minister can enlighten me -- have disability insurance, regardless of the cause of the disability.

When someone in the circumstances that we're talking about seeks other employment to supplement their income -- and reasonably so; I have no difficulty in understanding that -- usually it's on a very temporary basis, and coverage under a policy from that employer is very unlikely.

It seems to me that this would say that the employer must extend that benefit, regardless of the circumstances. I can understand why the clause is put in and the thinking behind it in the first place. Those people who are walking the picket line want to enjoy the benefits of the protection they had while they were employed by that employer, and there is a provision where it must be paid for. I understand all of that, but it does seem that there's an unfairness under the circumstance that I suggested.

Section 62 approved.

section 63.

G. Farrell-Collins: I have a quick question on

section 63. I have read the comments by the three members of the panel as stated in their report, where it deals with references to construction unions and non-affiliation clauses, etc. It states: "We've also recommended the deletion of reference to construction work in

section 83 of the act. In so doing, we do not intend to alter the legal scope and legality of non-affiliation clauses, etc., as it relates to the construction industry..." And it goes on to some extent.

I guess the panel has told us what they've tried to not do by deleting that. Perhaps the minister can tell us why it was deleted. Was it similar to other places in the bill, where construction has been deleted until such time as they have a chance to look at the construction industry as a separate entity?

Hon. M. Sihota: Yes, you're correct in your assumption. It also deals with the

section 73(1)

provi-

[ Page 4548 ]

sion, which was brought in for economic development in the construction industry for Expo 86.

[4:15]

Sections 63 and 64 approved.

section 65.

G. Farrell-Collins: I wanted to spend a minute or so on

section 65. The

section itself, of course, deals with picketing -- for those people who are listening -- and the rules around picketing. There is a problem or perhaps a perceived imbalance -- one of those other instances where there's a bit of imbalance -- under

section 65(3). If we relate that to

section 68, which I know we're going to have a somewhat protracted debate on later in the day -- probably fairly soon.... The second line of

section 65(3) says: "A trade union, a member or members of which are lawfully on strike or locked out, or a person authorized by the trade union, may picket at or near a site or place...." Why is it that we have provisions under

section 68 that ban the use of replacement workers, yet under 65 we have provisions that allow the use of hired people or others to be authorized by the trade union to work the picket line during a strike? I see a bit of an imbalance there as to why that's allowed.

Hon. M. Sihota: We were just discussing that section. First of all, it's no different than current provisions in Bill 19. Secondly, that kind of language has been in the legislation for some time in B.C. I guess the hon. member is right that it could potentially allow someone who is not a member of the workforce to be there. I can tell the hon. member that during the course of submissions we did not receive any representations with respect to 65(3) being a concern.

Concerns were raised during the review process about the onus required in subsection (5) to ensure that no impacts on third parties meant that primary-site picketing might be totally eliminated in some instances. Employers who generally did not want to see changes to the picketing laws expressed relative support for this

section with that language in place.

G. Farrell-Collins: I guess the employers were presented with what could have happened to the picketing provisions under this bill. This probably wasn't near the top of their list of concerns, but I'm sure it was there, particularly with respect to

section 68. Once again we come to a point where we can't really take a

section in isolation but have to look at the overall impact as we go through this.

Section 68 -- which, as I said, we will be spending some time on -- is the

section on replacement workers. It's important that the minister and the government ensure that the bill is as fair and as balanced as possible. If it's nothing more than a symbolic move at the lowest level -- and it's certainly more than that -- this type of provision should be included in the bill in order to provide some parallel between what appears in

section 68 and what appears in

section 65.

It would be my feeling as an employer that if I didn't have the right to use replacement workers in the event of a strike, then the striking union workers should be the ones to man the picket line. That would be the balance. It would be only fair. It would be inappropriate if people were hired to come in and work on the picket line -- professional picketers or whatever you want to call them. I don't know if the member for Nelson-Creston ever worked for the post office or not. I'm not clear; I didn't see it on his CV. But he gave some examples of cases where he worked and helped out with strikes.

I'm concerned about the provisions in

section 68, which the government has passed through the House in principle. We should look very carefully at

section 65 and make that slight change. All that would be required would be to delete five words -- half a sentence. It would send a signal to the labour relations community out there that the minister is making an effort to make this bill fair and balanced. If the employer doesn't have access to replacement workers, then the union shouldn't have access to other people to man the picket line during a strike.

F. Randall: I want to mention, for information, that this practice has gone on for as long as I can remember. People on a picket line often have their spouse with them. There are operations that have to be picketed 24 hours a day. If you've got a unit of two or three people who are on strike, and they have to maintain a picket line, there is always help available to them from that labour organization. That's what goes on now. It's the practice for workers to help each other maintain a presence on the picket line.

There are some practical cases where it would be impossible for two or three people to maintain a picket line. The employer could very easily be moving out products through the night, and there are no pickets there. So it's a practice that is going on now, and it makes sense.

G. Farrell-Collins: I suppose it may be the case that it's difficult to maintain a picket line during a strike, but it's also difficult to maintain a business during a strike. There is some parallel there. Although it's not identical, there's certainly a parallel. Hardships exist on both sides. While that argument is a legitimate one, I could argue the same sort of argument under

section 68: that business has to keep operating in order to pay their bills -- and they're going to try their best to do so. I suppose if I wanted to make that type of argument, I could say: well, the employer should have the right to have spouses and relatives and other support people come in to help out with the business. In fact, I intend to make that argument under

section 68.

So if the government wanted to give a commitment that they'd be willing to pass that amendment under

section 68, then I would be glad to let this

section stand as it is. But if they're not willing to make the change under

section 68 to allow family members -- spouses -- to come in and help in the event of a strike, then I don't think we should be allowing it under

section 65. I think that what's good for the goose is good for the gander, so to speak.

[ Page 4549 ]

Hon. M. Sihota: I can't help but reflect on debate earlier in the House -- or maybe it was question period -- when your Education critic, during the Langara strike, talked about how he spent some time on the picket line. I guess this

section would make that possible. I'm sure that you wouldn't want to be denied that right on those infrequent occasions that we have a labour disruption in British Columbia.

Let me also say this. If there are problems.... Some of this imagery really does come out of movies. Let's face facts here. If there is a problem, and there is thuggery -- which may or may not be part of the hon. member's concern -- or unnecessary stacking of a picket line going on, remember that there are remedies and rights available to people through the courts. So if there is an abuse of that section.... We haven't found that to be the case. We've found the experience of the member for Burnaby-Edmonds to be more reflective of the realities in the province.

Certainly we had no submissions from employers arguing for these changes -- and I think that's evidence of the fact that it's not a major problem.

G. Farrell-Collins: I agree that it's not a major problem. I don't have people banging down my door. But I have heard comments, and I have had people make representations that for the reason of fairness, if you're going to do this under

section 68 -- which they don't agree with -- let's make changes under

section 65, to at least provide some fairness and balance. As I said, if the government is willing to agree that spouses and support people should be allowed to come and help man a picket line during a strike and support the union during a strike, then an employer should be allowed to have spouses and immediate family members come in and help during a strike. I think the parallel is realistic, and I don't think having a few members of the family in there to help out as best they can is going to have a huge impact or cause huge problems, either.

The balance is quite clear, and I offer this comment in the spirit of fairness and balance, which the minister certainly talks about a lot. I would just say that either we remove those few sentences that state, "or a person authorized by the trade union," or we leave them in, and when we come to the amendment on

section 68 that will deal with those types of provisions where immediate family members, spouses, etc., can come in and help out, the government would be willing to support that amendment when it comes through. Because I think it's got to be either all one way or all the other way, and no special treatment given to one side as opposed to treatment guaranteed to another side. I think it's only balanced and only fair, so I would ask the minister to consider that. And perhaps, if he can signal to us his willingness to accept that amendment in

section 68, we can move off

section 65 fairly quickly and leave it as it stands.

A. Warnke: It's interesting to try out the new seat that I have, and indeed the vantage point is quite interesting as well. At any rate, I assure the minister that it is also more difficult for me to heckle, but I've been restraining my heckling, as you maybe alluded to earlier.

Interjection.

A. Warnke: I'm glad to hear that the minister is impressed with my conduct thus far.

On a more serious note, hon. Chair, just a couple of questions. They are not really intended to cast any negative light on

section 65, but there are concerns that certainly have been brought to my attention by a few members of the public.

It's based on a perception that over some time we've had some problems in this province with sympathy strikes. That's how they are defined by members of the public. I'm sure the minister knows the term "sympathy strikes." Essentially, what many members of the public would like to see is.... When a dispute breaks out -- sometimes even a wildcat dispute breaks out -- it doesn't just involve a problem concerning service provided to the public on that one particular site or in that one particular area, but it has a tendency to spill over in other areas.

I'll give a couple of examples that I think really illustrate the point. I remember -- several years ago now, but it does illustrate the point -- that at Simon Fraser University there was a strike concerning cafeteria workers. Indeed, it was interesting that a number of people, whether they were faculty, staff, students and so forth, were actually quite sympathetic to the staff engaged in the strike. But the particular place of picketing many people found inappropriate.

The picketing was set up in a particular area, actually quite a way away from the location of the university itself, which meant that transit bus drivers couldn't get through and students would walk actually a couple of miles, or hitchhike or whatever was necessary. Even that could be construed as breaking picketing, and so forth.

[4:30]

In other words, that is an illustration where the picketing actually took place a considerable distance away, a couple of miles from the actual location of the dispute, which was particular, isolated in the context of the university itself.

Another illustration is perhaps the recent strike affecting one branch of the ferry system between Long Harbour and Swartz Bay. Where the picketing was placed, obviously other ferry workers would quite correctly honour that particular picketing locale and not want to cross the picket, and as a result the ferry wildcat strike that occurred in just one link actually affected Tsawwassen, then Swartz Bay. Then other picketing was put up, and that in turn would affect Departure Bay, then Horseshoe Bay, and so forth. So we can see how the location of the picket itself could have some sort of ramification throughout the system.

I'm just using these two illustrations, but it depicts what actually has happened quite frequently in this province. Therefore many members of the public have suggested that there is nothing wrong with putting up pickets. Contrary to some of those that I suppose would

[ Page 4550 ]

be deemed anti-unionist and all the rest of it, people have a right to bargain collectively and to put up pickets. The one place where perhaps we should draw the line is in the area of sympathy strikes, where through the particular location of the picket -- which may actually be away from the site where the picketing should take place, as far as the consumer or the people who are trying to use those services are concerned -- they suggest that maybe there should be a re-examination of where the picketing should take place. Obviously if the intention is to spread the strike, it's very strategic for people to put up picketing in such a way that the strike can spread very easily.

But I'm wondering -- and this is what I want to put to the Minister of Labour -- whether in fact this whole area of sympathy strikes and location of picketing has actually been examined by his ministry. I'm wondering about not only the extent to which this has been examined by the ministry, but the conclusions. Maybe down the road the minister could provide us some insight as to the response to this concern of the public. It seems to be a reasonable view put by the public, who are obviously more and more dependent on the services being offered throughout our society by government or the private sector.

Hon. M. Sihota: The hon. member may have changed his locale or seat in the House, but his manner of delivering his well-based arguments hasn't changed, and I noticed while he was speaking that at least three people left the gallery.

Interjection.

Hon. M. Sihota: That's right. They'll all leave now.

Interjections.

Hon. M. Sihota: That's right. They're all coming back now.

Let me just deal with those issues. The Simon Fraser example you referred to occurred prior to these changes being brought forward. I don't mean just in terms of our legislation, but also in terms of Bill 19. Secondly, let's not forget -- and I'll come back to that point in a minute -- that there can be an application brought to change the location of the picket line to prevent undue disruption. Third, let's not forget that in the ferry situation there was an illegal wildcat strike, so none of these sections would apply.

Returning to my first point, let me remind the hon. member that the changes were designed to deal with that kind of situation, and employers were generally happy with the provisions that were then brought in. We've kept them, despite some criticism from the trade union movement, largely because of some sympathy around the arguments that you raised, and the fact that we felt, as a matter of public policy, that we did not want to draw neutral third parties into a dispute. I think we've guarded against the concerns you have, hon. member. If we haven't done so adequately in the language, certainly the practice has dealt with the situation.

A. Warnke: Yes, I recognize that the first example I used was to illustrate a particular point. I also recognize that it was quite some time ago, and that there has been legislation brought in. Basically what I was seeking was some clarification as to whether the ministry has examined those kinds of situations in some detail, and whether there is some recognition of changes.

In regard to the second example that I gave here a few moments ago about the ferry strike at Long Harbour, I agree with the minister that there have been changes. But that was not reassuring to the public, which has a long memory of these things. It's another example of a sympathy strike, and it's in that context that I really want to put it to the minister.

The minister, in putting forward this legislation.... It so happened that it coincided with a strike at Long Harbour. I'm curious as to whether there was any reflection that perhaps we have to re-examine the sympathy strike. I'm basically looking for clarification on that second minor point, if the minister would care to elaborate.

Hon. M. Sihota: We don't allow, under this legislation, sympathy strikes, as they happen in other jurisdictions. So we guard against that in legislation. We obviously frown upon illegal strikes, in terms of the other provisions that we've already dealt with in this legislation.

L. Hanson: Mr. Chairman, as you know, I have two amendments on the order paper dealing with the issue of allies and the right to picket those allies. If the Chair agrees, I would like to combine the two under one amendment -- instead of both -- because they are literally dealing with the same issue. I would move them both at the same time.

[SECTION 65(2), by adding thereto the following: "but shall not be so presumed for simply continuing to supply goods or furnish services of the same or similar kinds as were being supplied to the struck employer prior to the strike."]

[SECTION 65(6), by deleting the portion of the subsection following the words: "or an operation of an ally of that employer".]

The Chair: That's agreeable with the Chair, if the member wishes to proceed.

On the amendment.

L. Hanson: Mr. Chairman, it seems to me that there are circumstances where a corporation, a company or an individual supplies goods to a struck entity, which is supplied for a lot of reasons -- contractual reasons and possibly safety reasons. Those are not necessarily safety reasons in the sense of the health of people, but safety for equipment investment, which I'm sure the employees are very interested in maintaining also. When the strike or lockout is over, I suspect there

[ Page 4551 ]

is a desire to go back to their jobs. If the assets are not protected, then there may not be jobs.

It seems to me that with the way this

section is worded, anyone who supplies anything could be construed to be an ally even though there may be a long history of supplying those goods and services, and they would be subject to picketing if that were done.

I suppose it's stretching the imagination.... I know the minister doesn't like to deal with hypothetical situations, but let's suggest that the continual supply of water for a sprinkler system by a preconceived contract could be considered an ally under these circumstances. It seems to me that there should be some tempering of that definition and direction to the Labour Relations Board, and that's the reason the two amendments are there.

Hon. M. Sihota: A couple of points. First of all, let me say this. The Labour Relations Board and the Industrial Relations Council, both prior to and since the change of the vice-chairs that we had -- which of course is another movie -- I think have generally done a reasonable job of dealing through the intricacies of picketing and allies and all of the complexities which tie in with that experience, and I would leave it up to them to deal with individual situations where there may or may not be the need to provide benefit of relaxation of these provisions. That's my first point.

My second point is that I note that this provision is identical to that in Bill 19, so there must have been a good reason why you were not able to persuade your colleagues to put it in in 1986. If there isn't, I just think that.... I can see some situations that you're trying to colour that I would leave to the board to deal with. I'm confident they could deal with them in the appropriate way.

L. Hanson: I recognize that the same wording was in Bill 19, and I notice that the minister has referred to that on a number of occasions. What the minister neglects to refer to are all the other changes in the bill that affect the board's decision on a number of these things. It goes right from the start of the bill in the

definitions to the objectives of the bill, and even though the wording may be the same, certainly in my opinion, it is going to change the board's

interpretation of that wording when it comes before it.

I think the minister, who has a law degree, is far better able to judge what the result will be, but in my opinion, the result of decisions made in the past by the Industrial Relations Council and the Labour Relations Board preceding them may in fact be changed drastically as a result of some of the other changes in the bill. As a matter of fact, I suspect that that's exactly what is going to happen. As I am sure the minister knows, while decisions made in the courts are subject to using precedents in other decisions, when you change the laws, sometimes those precedents are thrown out -- and that's our concern with this section.

While I suspect that the minister may not support this amendment, I want to have it clearly understood that I think it's a good amendment for the labour relations climate in British Columbia, in which the minister so often says the bill is intended to create a cooperative atmosphere. Some recognition of that problem in this bill would be beneficial to our labour relations climate.

Hon. M. Sihota: I just have a number of quick points. I agree with what you said at the outset. It is true that there are other changes to the section. There's a new purposes section. There is, effectively, new legislation, and that may invite new

interpretations. That's a point well taken.

[4:45]

Remember that you can only picket an ally with prior Labour Relations Board permission. The member's point would also be canvassed by the board at that time. The point I was trying to make at the outset was that they would have to give some consideration. But you're right, it would have to be in the context of the changes in the legislation. We'll see how it evolves.

The Chair: Hon. members, there are two amendments to

section 65. It has been agreed by the committee that both subamendments, (2) and (6), be put at the same time.

Amendments negatived on the following division:

YEAS -- 18

Warnke

Wilson

Tyabji

Farrell-Collins

Gingell

Stephens

Hanson

Weisgerber

Serwa

Dueck

Mitchell

De Jong

Neufeld

Fox

Symons

Anderson

Hurd

Jarvis

NAYS -- 40

Petter

Marzari

Sihota

Priddy

Cashore

Barlee

Charbonneau

Pement

Beattie

Schreck

Lali

Giesbrecht

Conroy

Hagen

Harcourt

Gabelmann

Cull

Zirnhelt

Blencoe

Perry

Pullinger

B. Jones

Lovick

Hammell

Farnworth

Evans

Dosanjh

O'Neill

Doyle

Hartley

Streifel

Lord

Krog

Randall

Garden

Kasper

Simpson

Brewin

Janssen

Miller

section 65.

G. Farrell-Collins: Back to the main

section and discussion on the requirements for a parallel on one side of the

section as opposed to another side. As I stated, we have the provisions under

section 68, which we'll get to, that deal with the appropriateness of family members or volunteers coming in to help the employer during a strike, yet in

section 65 we have a provision under subsection (6) that states that the trade union can bring in other people to the picket line. The comments

[ Page 4552 ]

made by the hon. member for Burnaby-Edmonds illustrated that the intention here is for family members, spouses and other people to come in and help out with the picket line. I would argue, as I did earlier, that there's an imbalance there.

I asked the minister if he was willing to entertain our amendment which we are putting forward. I believe he has a copy of it. If he doesn't, I'd be glad to send it to him in advance. The amendment would allow family members to participate in the workplace without being considered a replacement worker. If he is, then I would be glad to leave this

section as it stands, because I think the balance would be maintained. But if he's not willing to do that, then I would propose an amendment to this section. I'll wait to hear his response.

[M. Lord in the chair.]

Hon. M. Sihota: I'm sure that nothing I will say will surprise the hon. member. I will take the very position that he expects me to take on this issue, so as not to catch him off guard. I invite him, therefore, to move his amendment.

G. Farrell-Collins: I apologize to the Chair for not giving advance notice of this amendment. It's a fairly short one, so I'll just read it. Under

section 65(3) I would propose that we delete the words "or a person authorized by the trade union."

On the amendment.

Hon. M. Sihota: For the reasons that I amplified on earlier during the course of this debate, we will be opposing this provision. But let me just quickly recap. It was not identified as a concern during the course of the hearings. Employers never identified it as a concern in some very vigorous representations that they made with regard to this section. It has not been a problem. If it is indeed a problem and if there are any unintended consequences, we will deal with those in the future. We have not found that to be a provision that causes us concern, and hence there is no need to remove those words.

For all the reasons that the member for Burnaby-Edmonds articulated, there might be value in having these kinds of provisions in this section.

G. Farrell-Collins: I too listened to the comments made by the member for Burnaby-Edmonds, and I can understand his arguments. I would merely suggest that if we were to hold that his arguments are valid, the arguments that will be brought forward under

section 68 are just as valid. Therefore I assume that the minister will be supporting the amendment to

section 68, in order to provide the same guarantees to the employer that are provided to the employee.

[5:00]

Hon. M. Sihota: I think the opposition will recognize that I've been a model of consistency throughout the debate.

Amendment negatived on the following division:

YEAS -- 17

Warnke

Wilson

Tyabji

Farrell-Collins

Gingell

Stephens

Hanson

Weisgerber

Serwa

Dueck

Mitchell

De Jong

Fox

Symons

Anderson

Hurd

Jarvis

NAYS -- 40

Petter

Marzari

Sihota

Priddy

Cashore

Barlee

Charbonneau

Pement

Beattie

Schreck

Lortie

MacPhail

Lali

Giesbrecht

Conroy

Hagen

Gabelmann

Cull

Zirnhelt

Blencoe

Perry

Barnes

Pullinger

B. Jones

Lovick

Hammell

Farnworth

Evans

Dosanjh

O'Neill

Doyle

Hartley

Streifel

Janssen

Miller

Simpson

Kasper

Garden

Randall

Krog

Sections 65 to 67 inclusive approved.

section 68.

G. Farrell-Collins: I yield to the member for Okanagan-Vernon.

L. Hanson: This, as the minister can appreciate, is one of the sections that may take some lengthy discussion. While I'm sure there are all sorts of issues that we will raise, I do have a motion sitting on the order paper in my name, which would add to subsection (1) of

section 68: "unless such persons are hired or used on a temporary basis only, fully subordinate to all of the seniority rights, and prior right to employment or promotion of the striking employees upon cessation of the strike."

On the amendment.

L. Hanson: This would allow, I guess, in some circumstances replacement workers, but would in fact ensure that replacement workers were subject to the employees who had gained seniority, and so on, as a result of having worked for the employer prior to that. And I suspect the Chairman of the committee may have some comments on the.... No? Maybe the minister.

Hon. M. Sihota: Point of order. I would argue, hon. Speaker, for your consideration of the appropriateness of this amendment, that the amendment is entirely out of order for the simple reason that

section 68 prohibits the use of replacement workers. This proposed amendment would allow replacement workers. I draw your attention to the words "unless such persons

[ Page 4553 ]

are hired," and then it goes on from there. So it allows for the hiring of people, and therefore would totally negate the effect of this

section and the intent of it. For that reason I would argue that it's out of order.

L. Hanson: I suspect that you may want to discuss the minister's position with your advisers. Maybe I can make a few other comments while we're awaiting that.

The Chair: Thank you, member.

L. Hanson: I'm sure the minister will agree -- and I think he has said earlier in his comments -- that the intent of this legislation is.... Well, maybe he won't agree. But I'm going to suggest that the intent of this legislation is to put the arsenal or the methods of dispute clearly in the hands of organized labour. The ability of the employer to withstand labour disruption is going to be very seriously affected by this.

I think the minister would agree that in most cases where we have seen violence on the picket line as a result of replacement workers, it was under the federal jurisdiction. I think the minister would also agree that the use of replacement workers in British Columbia has not been very predominant. The employers in British Columbia haven't used replacement workers, recognizing the difficulties that creates with violence on the picket lines and other peripheral problems.

But it was a weapon in the arsenal, if you will, that gave the employer some semblance of equality in a labour dispute. It has long been a recognized right of employees, when there is a dispute over working conditions, wages or whatever, to withdraw their services and put economic pressure on the employer as a result of that. That is recognized, and all is well and good.

It has also long been recognized that the balancing arsenal that the employer has is the ability -- or at least the threat of the ability -- to hire replacement workers. We have seen in some other provinces where that has been a real labour relations problem and has caused serious violence on the picket line. We in British Columbia....

The Chair: Excuse me, hon. member. You are speaking to the point of order at this time, and the Chair has made a decision on your amendment.

L. Hanson: I await your decision.

The Chair: I appreciate your input into the decision. It is the decision of the Chair that the amendment does negate the intent of this

section of the code. You will have an opportunity to make the kinds of arguments that you have made during debate of the actual clause.

L. Hanson: The ruling of the Chair is not subject to argument. So with that in mind, I'll continue along the route that I was originally on.

[5:15]

The Chair: Thank you. On the original section.

L. Hanson: As I said, the threat of replacement workers has long been a recognized factor in the dispute as one of the weapons that management can use in trying to balance the economic impact of labour withdrawing its services. While it hasn't been used in British Columbia, I was about to suggest that in a couple of cases that a member -- I forget who -- mentioned, there was some picket line violence as a result of replacement workers. But generally speaking, it hasn't been a serious problem.

More of the picket line violence has probably been as a result of contractors, who had had prior arrangements with the employer, crossing the picket line and endeavouring to continue the service they had contracted for. I don't think that it was a really difficult issue. I suspect again that the minister will comment on what the report says, and I suspect, as in almost every clause that has serious implications for the employer, that they were initiated by presentations to the committee by one sector of the community.

I think that that might have been the organized labour sector of the community, but I'm sure the minister will enlighten us, when he has an opportunity, as to where most of the initiative to develop this

section came from.

I know that the minister will refer to Quebec and that they outlawed replacement workers. But in fairness, Mr. Minister, before you get to use that in your rebuttal, the Quebec legislation expanded the scope of essential services to a great degree and even recognized such things as garbage collection. So much more of the community was covered by the essential service designation that the effect of outlawing replacement workers was less than it will be here in British Columbia.

As an example, I know that the minister will recognize in this

section some of the other things, even though this

section deals specifically with replacement workers: that the narrowing of the definition of management or exempt personnel will have a further narrowing effect on the employer's ability to withstand withdrawal of labour; and that the further prohibition against using exempt people without specific agreement to do a striking worker's job, and the prohibition against transfer in of employees from other operations will really bring about a situation where there is withdrawal of labour in the case of a strike or a lockout and the company simply closes down.

There really aren't any options of any kind, and that's a vast change from what we have seen happening in the past and in the practice that has been relatively acceptable.

School trustees have expressed some serious concerns about these particular proposed sections in the new act -- and people like B.C. Gas. I suppose that B.C. Tel, although they're under federal jurisdiction, would have some concerns with this section. Maybe the minister can give us some comments as to how he sees the background and the initiative that brought this particular

section forward.

Hon. M. Sihota: Let me make a number of points. The first is that the replacement worker provisions in this legislation are bein