1987 Legislative Session: 1st Session, 34th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, JUNE 2, 1987

Afternoon Sitting

[ Page

1513 ]

CONTENTS

Routine Proceedings

Oral Questions

Drafting of Bill 19. Mr. Williams –– 1513

Mr. Clark

Mr. Sihota

Mr. Gabelmann

Mr. Rose

Industrial Relations Reform Act, 1987 (Bill 19). Committee stage. (Hon. L. Hanson) –– 1515

Mr. Clark

Mr. Gabelmann

Mr. Miller

Mr. Sihota

Mr. Lovick

Hon. Mr. Richmond

Hon. Mr. Brummet

Mr. D'Arcy

Appendix –– 1537

The House met at 2:07 p.m.

HON. MR. STRACHAN: I just noticed a couple of good friends

from the great riding of Prince George South in the gallery. Would the

members please welcome Burke Purdon and Lawrence Coyik to Victoria.

MR. JONES: I would like to introduce to the House some

constituents of mine from Simon Fraser University: Dr. Allen Seager and

Joanne Ray, from the history department there. They're here today, and

are very interested in labour history and in the discussions on Bill

19. I'd like the House to join me in welcoming them.

MR. PELTON: Today I'd like to introduce to the House a group

of people from what we call the Rainbow Club out in Maple Ridge. The

Rainbow Club is sponsored by our local community council and provides

services in social, recreational and vocational programs. I would

appreciate very much if the House would make them welcome.

MR. JACOBSEN: Visiting us today from Mission, we have two

ladies: Bonnie Pyplacz, manager of the North Fraser Investment Corp.,

and her assistant, Jane Hayhoe. I'd appreciate it if the House would

welcome them, please.

MR. RABBITT: Mr. Speaker, it's my pleasure today to have a

long time friend in the gallery. Bob and Judy moved to Victoria a few

years ago to retire and now are returning home to Merritt. I would like

the House to offer a hearty, warm welcome to Judy Turko.

Oral Questions

DRAFTING OF BILL 19

MR. WILLIAMS: To the Minister of Labour. Mr. Leslie said

there were two entirely separate processes underway since last year

with regard to the drafting of Bill 19. The minister told us yesterday

that that's just not true. Is the minister suggesting that Mr. Leslie

is not telling the truth?

HON. L. HANSON: First of all, I'm not suggesting that Mr.

Leslie is not telling the truth; I'm suggesting that Mr. Leslie's

interpretation of what happened is not my understanding, and I was very

close to it. As a matter of fact, I think that the member opposite is

suggesting that there were two very distinct and isolated processes

going on. There is no question that there was a drafting process going

on during the hearing, but they weren't isolated, nor were they

isolated from Mr. Leslie.

MR. WILLIAMS: But the minister said yesterday in question

period: "That is just not true," with respect to these entirely

separate processes. Is the minister saying this is just a matter of

interpretation, or is he saying that Mr. Leslie is lying? How can you

say it's a matter of

interpretation, in view of Mr. Leslie's statements?

HON. L. HANSON: Again, Mr. Speaker, I thought that we had spent enough

time on this particular subject. I'm not suggesting that Mr. Leslie's

opinion is anything but his opinion. That's up to him. He's welcome

to his opinion. All I'm saying is that it is not true that there were two

processes going on in total isolation.

MR. WILLIAMS: Mr. Speaker, in his letter to the Premier, Mr.

Leslie said regarding the Minister of Labour: "Little did he know that

this process was indeed under-way." So the minister then is saying that

Mr. Leslie is not telling the truth in that regard?

HON. L. HANSON: Again, Mr. Speaker, whatever Mr. Leslie says

is up to him. I'm simply saying that I did know that that was going on,

and I was very much a part of it.

MR. WILLIAMS: Mr. Speaker, Mr. Leslie said in his letter to

the Premier, before the first draft of the minister's report had been

written, that changes in Bill 19 had already been drafted. The minister

said that's not true. Is the minister saying Mr. Leslie was lying?

Interjection.

MR. WILLIAMS: Okay, the minister, in responding to a question

yesterday, which asked if the minister knew that the legislation for

all intents and purposes had been finalized before his hearings were

finalized, said: "That's not true." I think we've canvassed that. And

yesterday, the Premier said Mr. Leslie was present for discussions with

the minister and the Premier, during which the bill was gone over

clause by clause. Mr. Leslie insists: "At no time did I ever, ever have

any complete discussion, or was there even approaching a

clause-by-clause discussion with him and myself about Bill 19. The

minister was there." To the minister's knowledge, is Mr. Leslie lying

about that?

HON. L. HANSON: Mr. Speaker, you know there were discussions

going on, and Mr. Leslie was present. There were clause-by-clause

discussions going on and Mr. Leslie was present. Mr. Leslie's

interpretation of what went on at those meetings is Mr. Leslie's

personal opinion. I just say that I was there, and there was that

discussion that did go on.

MR. WILLIAMS: Can the minister advise us how many clauses were gone over clause by clause at that meeting?

Interjections.

MR. WILLIAMS: No. You cannot advise us? Was it one, was it

two, was it three? We're talking about an 80-clause bill. Who's telling

the truth? That's the issue.

MR. CLARK: In introducing Bill 19 in this House, the Minister

of Labour claimed, and I quote: "The bill . Is tangible proof of this

administration's commitment to open government." Then he said: "It is

based on the views my committee heard at our public meetings around the

province." Why did the minister neglect to inform the assembly that it

was also based on another process going on here in Victoria?

HON. L. HANSON: Well, I really am not sure that I understand

that as being a question, but by the same token, during the process

that went on that was started in early

[ Page 1514 ]

November, the presentations that were being made

were being analyzed and possible legislation as a result of those

presentations was being prepared. And as each suggestion was prepared,

some were accepted and some were rejected. So both processes were going

on in tandem.

[2:15]

MR. CLARK: Before the public hearings, you said that this was

the basis of the bill. In this House, you said it was the basis of the

bill. Now you've confirmed that there are other people in the back

rooms writing this legislation. Why did you not inform the House that

there were two tracks, that there were two different processes going on

to develop this labour legislation?

HON. L. HANSON: I really find it difficult to understand that

the members on the opposite side would not understand that there is a

requirement for more than myself sitting in isolation in a room making

up my mind what to do. There's a requirement to put together a

committee to generate this sort of thing, and the information that was

coming in as a result of those briefs was being fed to that committee.

MR. CLARK: The question is simply: why did you not inform

this House, why did you not inform the public, that there were other

processes going on? Let me phrase this very carefully: will the

minister outline how it was that he was not deliberately misleading the

assembly by neglecting to inform us, here in this House, about the

other process going on?

HON. L. HANSON: Again, Mr. Speaker, I fail to understand why

anyone on that side would even suggest that there isn't a requirement

that drafting go on during that process, because the information being

gathered as a result of that process was being fed into that. If

members on the opposite side feel that when legislation is brought

forward there isn't a drafting process going on, then I'm surprised at

them.

MR. SIHOTA: Supplementary to the Minister of Labour. Could he

then tell us who specifically was involved in drafting Bill 19? Who

were these draftspeople the minister refers to?

Is the minister refusing to tell this House who composed this select group that was drafting this legislation?

HON. L. HANSON: First of all, all sorts of people are

involved in the drafting of any legislation. There always will be, and

I don't know why that never comes up as an issue in drafting. We have

members on staff who provide legalistic wording when, as it relates to

legislation, we develop a philosophy within government. Those are the

people, and I'm not here to mention to the other side all the

individual names, because those people are part of a committee and they

should remain that way.

MR. SIHOTA: Supplementary again — so the minister understands

exactly which group I'm talking about. Mr. Leslie has revealed that the

Premier had "a select group of draftsmen who had little or no

accountability to the process." Who was involved in drafting Bill 19?

Who specifically were these draftspeople referred to in that quote?

I'll put it another way. The minister refers to a committee. Perhaps he

could tell the House who composed that committee that he refers to? Or does

he not know?

HON. L. HANSON: Mr. Speaker, the whole legislative committee

of cabinet was involved in that. Members of the staff and all sorts of

consultants were involved after the hearings and during the hearings.

MR. SIHOTA: A question again to the Minister of Labour. Were

any of these draftspeople private solicitors and barristers who acted

on behalf of employers? Yes or no?

HON. L. HANSON: Well, Mr. Speaker, I think it is quite common

practice for the government to use outside counsel and advice. We've

done it in the past, and we will continue to do it in the future.

MR. SIHOTA: If the minister can't remember today — if he's

had a momentary lapse of memory — will he agree to table in this House

a list of those people who worked privately in the back rooms drafting

this legislation while the hearings were going on?

MR. GABELMANN: In his letter to the Premier dated February

28, the Labour minister's recommendation No –– 43 says: "The often

unique problems of the construction industry should not be addressed by

legislation at this time." What events transpired that made the

Minister of Labour change his mind to — in the words of Graham Leslie —

enact proposals which would deunionize the construction industry?

HON. L. HANSON: Mr. Speaker, are we debating Bill 19 here, or is this question period?

MR. GABELMANN: We are not debating anything. We are talking

about the serious economic consequences to the future of this province.

I would simply like the minister to tell us, because we're talking

about important legislative processes here....

The minister recommended to the Premier that no legislative

initiatives be undertaken in respect of the construction industry. Mr.

Leslie suggested that if those initiatives were taken, it would

deunionize the construction industry. What happened between February 28

and April I or 2 to cause the minister to change his mind and in fact

to embark upon a process which would deunionize the construction

industry?

HON. L. HANSON: Quite frankly, Mr. Speaker, I don't agree with the assumption that the legislation does deunionize the construction industry.

MR. ROSE: To the Minister of Labour. The respected voice of

Mr. Leslie, who has implored the Premier to withdraw the bill, has now

been joined by Mr. William Hamilton, former head of the B.C. Employers'

Council and former Postmaster-General in the Diefenbaker government.

Will the government listen to these implorings, or has the Minister of

Labour decided to take advantage of the option under standing order

78A, in which he can refer this matter of Leslie and other controversy

surrounding this legislation to a parliamentary committee, at which

time Mr. Leslie and any other interested party could come before the

House — maybe Mr. Hamilton and perhaps others. This would give the

House an opportunity to cross-examine Mr. Leslie and any other persons,

so that we could get to the root of this matter.

[ Page

1515 ]

HON. L. HANSON: Yes, I think that has been considered, but that's

a subject of future policy, and I'm not going to commit that recommendation

here today.

MR. ROSE: Supplementary. I'd like the minister to tell us

whether or not he understands that he is the only one who can do it

under 78(a), and has he considered it? Has this been discussed? And

when can the House expect an answer?

HON. L. HANSON: As I understand that rule, it allows the

discussion of the bill but not the process of the drafting. And yes,

I've given it consideration, but I'm not about to commit myself one way

or the other at this point.

MR. ROSE: Supplementary, Mr. Speaker. The rule says: "At any

stage after introduction a bill may be referred to a Select Standing

Committee upon motion without notice made by the member in charge of

the Bill." It has nothing to do with drafting; it's an opportunity for

the committee to call and hear witnesses and get to the bottom of some

of these controversies. It might even improve the bill.

MR. SIHOTA: A question to the Minister of Labour. Is it not

true that in rejecting the suggestion made by my friend, the minister

is afraid to hear evidence from the former Deputy Minister of Labour

because he may indeed expose the phony consultation process that went

on before this bill was introduced? Is it not true that the minister is

rejecting it because he is afraid to hear from experts in this field

who may reveal what happened?

HON. L. HANSON: First of all, Mr. Speaker, I resent the

allegation that it's phony. I do believe that Bill 19 is a good bill,

and I'm not concerned with the allegations made by the former deputy

minister. There are a number of people who are just as expert in labour

relations who consider the bill an excellent one.

MR. SPEAKER: I'd like to ask members if they could read their

rule books this evening, especially 47A. I think they would agree with

the Chair that some of the questions today may have been a little bit

too argumentative and opinionated and not direct questions.

Orders of the Day

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

INDUSTRIAL RELATIONS REFORM ACT, 1987

(continued)

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

MR. CHAIRMAN: The table has been notified the second member for Richmond would like to make an introduction. Shall leave be granted?

Leave granted.

MR. LOENEN: I would like to introduce our daughter Marianne with two

of her friends from Alberta, Liz Salomons and Bruce Voogd. Please make them

welcome.

On the amendment to

section 19.

MR. ROSE: This may take some time, because it really is a

point of order, Mr. Chairman, but my reading of standing order 72 is

that "witnesses may be summoned to attend before any committee of the

House upon a motion to that effect being passed by the committee." Mr.

Speaker, we are in Committee of the Whole, and this is a committee of

the House.

So my argument is that this is a very appropriate time to bring

before this committee of the House — or the bar of the House, if you

like that language better.... I use for my citation Sir Erskine May's

twentieth edition, page 746: "In Committee of the Whole House any

Member may put questions...to the witness." I think that people such as

Mr. Hamilton — anybody with an opinion whom the House decides to call —

could be brought before the House for this purpose.

This is not a revolutionary idea in this committee. I don't expect

to get your ruling on it immediately, Mr. Chairman, but it has happened

before. In 1892 a motion was passed that called two citizens to the bar

of this assembly to answer for newspaper articles which contained

so-called scandalous libels about a certain member of the House. That

might apply to what Mr. Leslie has said in being contradicted by the

Minister of Labour. Mr. Leslie's statements about the actions of the

minister, according to the minister and the Premier, are just not true.

[2:30]

If the Minister of Labour doesn't have the courage to move a

standing order 78A, which he just turned down upon my representation,

then maybe we should move in the committee a motion to invite Mr.

Leslie — who, by the way, is not in charge here or on charge or on

trial — to come and give us his version of what really happened, which

seems to be extra parliamentary, unusual and perhaps not quite proper.

MR. CHAIRMAN: Hon. member, the Chair has got the message loud

and clear. As you suggested yourself at the outset, the Chair is

prepared to take your motion under advisement, and we will come back

with a resolution on it as quickly as possible.

MR. ROSE: Thank you, Mr. Chairman. I wonder if I might be permitted to move the motion before you take it under advisement.

MR. CHAIRMAN: All right, but it appeared that we were getting into debate, hon. member, before we had the motion on the floor.

MR. ROSE: I was justifying my motion. The motion is that the

Committee of the Whole House summon Mr. Graham Leslie of Vancouver to

attend before the committee on Wednesday, June 3, at 2:45 p.m.

MR. CHAIRMAN: The Chair will decide whether the motion is in

order in due course, and will report back. In the meantime, we will get

back to the amendment to

section 19 of Bill 19.

MR. CLARK: This is a very serious amendment. It could really

be called the boycott amendment, because the original intent of the

section was to allow the council to issue interim

[ Page 1516 ]

orders but not ex parte injunctions. In other

words, both sides had to be heard. Now we have an amendment before us

that says both parties don't have to be heard or present, but there has

to be an opportunity for both parties to be heard. It is a very

significant amendment.

There are full-page ads that say: "You talked and we listened."

There's all kinds of propaganda around saying: "We are listening to the

labour movement." This amendment did not come from the labour movement.

This amendment didn't come from anybody except the government. It is

trying to deal with the threatened boycott of this legislation by the

labour movement.

It is very serious because it allows interim orders to be issued

without hearing one party, which comes very close to an ex parte

injunction, although it's admittedly not the same thing, because ex

parte injunctions don't require any notice. This simply requires

notice, and then it can be acted upon. It is very serious because the

whole question of ex parte injunctions is the main reason for the

Labour Code in the first place. Everybody knows that a lot of the

turmoil in British Columbia, the jailings that went on in British

Columbia in the late sixties and early seventies — sometimes as much as

a year in jail was given labour leaders and other people who defied ex

parte injunctions.... That was the turmoil that led to the creation of

the Labour Code. Now this very simple amendment we have here allows

this council to issue interim orders on an emergency basis without the

requirement that both parties be present. This will have a very serious

impact on labour relations. The Labour Relations Board avoided issuing

interim orders because the problem with them is that both parties are

not fully heard. This legislation allows interim orders and says that

both parties don't even have to be present. This is very, very serious.

Once there is an interim order down, then the danger is that it becomes

an excuse, really, for treating the main application as not urgent. So

this is the history of interim orders.

What happens is that there is a wildcat or something because of a

legitimate issue, perhaps, and the board or the courts would order an

injunction, send them back to work, and then the reason for the wildcat

is never dealt with in an expeditious manner because the immediate

impact, the economic threat, has been dealt with through an interim

order. So it has serious implications, it seems to me.

I have a couple of questions and they have to do with the issuing of

an injunction. They have to do with the next

section and I can ask them

under this section, but I think they're properly under this section.

The next

section allows for all decisions of the council to be filed in

Supreme Court. Can an interim order that would be allowed under this

amendment without both parties being present be filed in Supreme Court,

assuming the next

section passes?

HON. L. HANSON: I really fail to see where the member of the

opposition gets the impression that the interim order can be made

without giving both parties an opportunity to be heard. It says that

very clearly in there. The doom and gloom that is being predicted from

these various parts of Bill 19 is really hard for me to understand,

quite frankly.

It's certainly not my nature to get into personal attacks or

character assassinations, as has been going on this morning. My

relative silence this morning I don't want to be misunderstood –– I

resent the inferences that were made which say that I am a liar, or it

was inferred that I was a liar, and that this legislation is a product

of fascist thinking.

The suggestion that Bill 19 was drawn up as a result of isolated

people drafting a bill is just totally false. As a matter of fact, I

think there is demonstrated unprecedented consultation with unions and

management, and all the other kinds of British Columbians who had an

interest and work here and pay their taxes and are interested in

rights, in what happens in our province and are interested in making

their views heard.

It is being alleged under

section 19 that I have introduced an

amendment in order to deal with threatened boycott of the Industrial

Relations Council. I don't think anything could be further from the

truth. The amendment was introduced because unions — and I say unions —

told me that, as originally worded, the IRC would have been able to

issue interim orders without the necessity for the other party to be

heard.

We've responded to that by saying that it's a requirement that the

opportunity be given to the other party to be heard. And I ask you:

what can be fairer? You know, all of this talk about a hidden agenda —

what's going on? I don't understand you. The opposition has

demonstrated that it is incapable of objectivity. Instead it prefers to

twist and bend

interpretations further even than this side of House

thought capable.

I think it's a dangerous game of Chicken Little predicting that only

the most negative consequences are a result of this bill. I think

British Columbians are generally positive; I think they prefer the

optimism of the government to the pessimism that's characteristically

demonstrated by the opposition. I believe that we'll achieve our goal

of an improved labour relations environment with an improved economic

environment.

I request now that we get on with the debating of the substance of

this bill without looking for hidden meanings and without getting into

personal attacks.

MR. CHAIRMAN: Hon. members, if you will bear with me for a

moment, the second member for Cariboo has asked for leave to make an

introduction. Shall leave be granted?

Leave granted.

MR. VANT: I just became aware that in the precincts two very

significant people from the great Cariboo constituency are with us this

afternoon. We have Her Worship Mayor Donna Barnett of the village of

100 Mile House, home of the largest cross-country ski marathon in

western Canada.

Also, I'm pleased to introduce Mr. Joe Katchmar, a road builder who

for many years has helped improve our public road system in the Cariboo

constituency. It's a job that is far from completed, since, as you all

know and have heard many times, only one-third of our roads in the

Cariboo are paved. I know the House will join me in welcoming these two

people to our precincts.

MR. CLARK: Mr. Chairman, it's very tempting to respond to the

minister's speech, which he read and which I don't think had much to do

with this section, but I'm going to try to deal with it differently.

Consistently, in the first 19 sections, the minister has stood up

and said,"This is the intent of the section," and we've stood up and

said: "Even if that's the intent, there are other consequences as a

result of legal

interpretations that we've had by labour relations

experts in the field, and by some of us on this side who have some

expertise in these matters. Even if that's your intent, this clause

doesn't do that;

[ Page 1517 ]

it does these other things." That's consistently been the case, and we're seeing that again here now.

If it's the minister's intention to do what he has intended, then

surely it should say no interim orders should be granted without both

parties having been heard. If that's what it said, then you wouldn't

have as vigorous an objection. I might have an objection because I have

a problem with interim orders — I think they don't work — but it

wouldn't be the debate on this amendment if it said: "Without both

parties having been heard, no interim orders shall be granted."

Would the minister consider that wording, if that's his intent?

HON. L. HANSON: Mr. Chairman, I don't know who the opposition

has consulted, but to me, the council may give an order that it

considers is of an urgent nature, but it's a requirement, in my

opinion, after each party to the matter is given an opportunity to be

heard. I think that covers what the member opposite is suggesting. If

the member disagrees with me. I guess we have a disagreement, but I

think it amply ensures, in the amendment to the bill, that both parties

are heard. If one of the parties suggests that they don't want to be

heard, they've been given the opportunity. I don't think you can force

them to be heard if they don't want to be heard.

MR. GABELMANN: Mr. Chairman, we're into some fairly technical

stuff here, and that perhaps leads to some of the misapprehension that

exists across the House.

The original wording was of concern to many people, including

members on this side of the House, because it allowed for interim

orders. The principle of interim orders was what was being addressed,

for a whole variety of reasons which we'll talk about when we get to

the main motion.

The response of the government to the expressions of concern about

interim orders was to take out the ex parte application wording and to

insert wording that says: "The council may, after giving each party to

the matter an opportunity to be heard...." I argued this morning, and I

don't back down from this for a moment, that the government took

advantage of the request for change to this

section by inserting

wording that would deal with a boycott.

If the minister says no, that wasn't their intention, I don't have

any evidence to the contrary, so I have to believe him. But I find it

highly doubtful, I must tell you, when it's so obviously an intent to

find a way to allow for interim orders to be made, in effect, ex parte;

there's only one side being heard.

I don't think we're going to pursue the debate on the amendment any

further on this; we will go on to the main motion. But it needs to be

said: whether or not the government intended this — and I don't have

any evidence on that one way or the other — to be a mechanism by which

interim orders could be made in the face of a boycott of the

legislation and of the IRC, that's what they've accomplished by this

particular wording. This wording does not deal with the complaints

raised by the people the minister was alleged to have listened to for

the last month or so.

[2:45]

Amendment approved.

section 19 as amended.

MR. GABELMANN: Mr. Chairman, we're talking about interim

orders. This process existed in different forms during the sixties, and

there was a consensus across the entire spectrum of our society that

this process is an inappropriate one; that hearings should take place

prior to orders, We're debating

section 28 of the Code, which is

entitled "Hearing of complaint." The amended amendment that we're now

debating is the opposite of a hearing of a complaint; it is no hearing.

No hearing is allowed under an interim order. Both parties can make a

presentation, but no hearing is allowed. If it's a hearing, then it's a

different process; you don't have an interim order. You have an order,

not an interim order. The word "interim" means: "This is temporary

until we have a hearing."

Applications will be made, and without an opportunity for people who

have arguments to make on each side, by calling witnesses or by

whatever process they wish to follow.... Without an opportunity for

them to have that debate in front of the council, an order can be made,

and the effect of that order could be to wipe out the entire efficacy

of the activity that's being questioned, and a hearing may then be held

later which would be entirely irrelevant, because the timing of the

activity is all that matters. And when you do that, you have denied

people a fundamental right of natural justice which was denied to them

during the sixties under the old process, and which led to all kinds of

anger and bitterness because people felt they didn't have their day in

court, When you have interim orders, you have a situation where people

don't have their day in court.

I'm not going to take a long time on this. Everybody agreed in the

bad old days that interim orders were bad news. Everybody agreed — not

just labour, not just neutrals, but management too. And I hate to think

that in two or three years we're going to reread the Hansard of

this time and be able to say that we pointed all these things out to

the government but they refused to listen, but that's in effect what's

going to happen.

The Premier's chief assistant, the gentleman to whom deputy

ministers have to report, David Poole, was interviewed on television

last night, and he said the Premier would willingly consider any

changes that had merit. I don't know how he's hearing these arguments

from where he is at the moment, or how he heard them last week when he

wasn't in the chamber, but nevertheless we have the word from David

Poole that the Premier will seriously consider any suggestions that the

opposition makes that have merit. Here is a suggestion that has merit.

Let's not return to the bad old days of labour relations. You have to

tie this together with all the rest of it, too, in terms of all the

other changes, but I'm not going to make that argument now; we'll be

getting into some other sections that deal with this issue in a more

significant way than even this one does.

But this is a reasonable suggestion. Get rid of this idea that

orders can be issued on an interim basis and, particularly, issued

without a full hearing of the matters at hand. And if there's a concern

that a decision won't be made quickly enough, require that the hearing

be held immediately. It seems, from the composition of the IRC, that

there are going to be enough people there to be able to, in one way or

another, have hearings on any matter that's brought before them —

immediately, if that's the need in a particular situation. But the

introduction of interim orders without full hearings will lead to more

bitterness and more distrust, and is yet another reason why this

legislation will fail miserably in practice,

[ Page 1518 ]

HON. L. HANSON: I think that inherent in the concern being

expressed by the member opposite is a suggestion that, on application,

an interim order is going to be made. I'd like to point out that the

board has the discretion to make an interim order, and I'm sure that

the board, seeing a situation that may evolve that causes long-term

harm, would structure a hearing very quickly as opposed to making an

interim order. It simply says that they have the ability to, and I

don't think that from having the ability to, it follows completely that

that is going to be a fact upon application — and I'd like to point

that out.

MR. GABELMANN: I've made this point before as well. We cannot

debate what the IRC is likely to do, or might do, or should do. We have

to debate the words in front of us, and the words in front of us allow

for a situation as I've described. If the IRC shouldn't do it, then

don't give them the power to do it. Remember, Mr. Chairman, this is

going to be a council made up entirely of management and government

appointees. It will have no labour representatives on it — not

legitimate ones, anyway. And what confidence will there be in this kind

of process? None.

MR. MILLER: First of all, I'm really tempted to respond to

what the minister said just a few moments ago in respect, particularly,

to the kind of debate that we've had in this House since it started in

March. In my opinion, the debate has been reasonable, and I think the

opposition has been entirely reasonable in terms of the measures

introduced by this government. Certainly it is not us who introduced a

labour bill that sparked more controversy than many things we've seen

in this province in some years, and in my opinion we're doing our job

in a fair and responsible manner.

Going back to this section, to me it seems just one more thing that

has been piled on in the bill. I'm really quite surprised, in fact,

even from a philosophical point of view. The drafters of this bill seem

to have decided to write a rule to cover every situation, and I think

that's a fundamentally flawed way to approach anything. I don't think

you can do it.

The basis of the Labour Code was to establish a body that had the

trust and the faith of the parties that had to use it so that the

employees or the unions did not, over a period of time, feel that the

board had a bias against them. And equally so for the companies: that

the board didn't exist simply to protect unions at the expense of

companies, and that's a fundamental and an important principle. Given

the other language in

section 28, I don't see the need to include this.

I was active in trade unions in the old days of ex parte injunctions,

and believe me, the feeling at that time among trade union people was

that the courts were clearly on the side of the employers. Any time an

employer needed an ex parte injunction, they came up with it; whether

in the middle of the night or whatever, they always got it.

The Code changed things. It turned a corner in terms of the

relationship between labour and management. And when I say that, it

doesn't mean that all of a sudden all the disputes in the world were

easily solved; that there were no more strikes or lockouts — or

walkouts, for that matter — but that it provided a mechanism which over

the long haul was a workable one. Now we've seen the inclusion of

another clause that, given the preceding stuff and the stuff we will be

dealing with, indicates a bias against labour. An order can be written

and, given the kind of convoluted wording that we see in the bill,

presumably that order can be issued without the discussion or at least

the participation of both parties, and it can be done on an interim

basis.

Again, getting back to some of the things that happened in the real

world with respect to industrial disputes, sometimes they take the form

of an overtime ban. I'll relate one that took the form of certain

classes of tradesmen refusing to do a job. A new piece of machinery was

brought into a plant. The company at the time ordered the machinists to

use this piece of machinery. There was no history of this happening; in

fact, it was the opposite. The machinists said: "We're not going to use

it; the welders have claimed that job. We thought our contract

contained some pretty strong language and that it was a clear-cut

matter." If that matter had been decided on an interim basis, it would

have been a festering sore in terms of that particular issue, and in my

opinion would have gone on much longer than necessary. As it was, there

was a hearing of the board, the matter was decided — and not to the

union's satisfaction. Quite the contrary. A few eyes were opened in

terms of exactly what strength there was under that particular

section

of the contract. Nonetheless, the issue was settled. We went down to

the Labour Board in Vancouver. We sat there and had our eyes opened and

actually got quite upset at one point about the thing, but nonetheless

it was resolved.

So we've got one more clause that allows a distortion, if you like,

in a very important principle in labour relations, and in terms of any

board or council or whatever you want to call it that deals with it,

and that's the principle of objectivity. If that isn't there — if that

goes out the window — then labour relations goes out the window. We go

back to those old days. We go back to the ex parte injunctions, and

believe, me, ex parte injunctions didn't stop wildcats. There was a

pretty clear law there, you know, and they'd go into the courts every

time. We ended up negotiating some pretty big dollar figures across the

bargaining table as a result of some of those things, but it didn't

stop it. I think it's one more, and I'll continue to make the argument

— and I hope I'll make it reasonably.

I have yet to hear a cogent argument from the minister as to why

we're getting more and more interventionist and why you're stacking the

new bill with all of these kinds of clauses. It seems to me that you're

anticipating the worst scenario that could possibly be in terms of the

activities of labour, and trying to cover it with a rule. Well, it

won't work. Now that isn't really a question; it's a statement. But if

the minister wants to respond, I'll listen.

HON. L. HANSON: First of all, I have to disagree with the

member opposite, or I wouldn't have introduced the legislation. I think

it will work. But I'd like to point out something in this clause that I

think has been overlooked, and I think it's an important factor.

It says that the council may make an interim order, which is

permissive but not mandatory. It also says that they must recognize

that there is an urgency or an urgent situation. I think those two

things are very important. I think that the suggestion that because the

clause is there there is going to be a proliferation of interim orders

is unlikely.

MR. MILLER: I am struck, Mr. Minister, by the illogicality of you saying that you've brought in a clause....

AN HON. MEMBER: Illogicality?

MR. MILLER: You can look it up. I will consult with my colleague for Nanaimo.

[ Page 1519 ]

First of all, you have introduced a clause that you say should only

be used in an emergency situation. On the other hand, a short time ago

you said: "Well, if it was an emergency situation, like a serious

situation, it would be better to have a full hearing and not issue an

interim order."

I mean, I am a little bit puzzled. You are also saying, in effect:

"Sure, we have introduced this clause, but we don't have to use it."

Mr. Minister, why put it in at all? Surely we deal in some logic in

this House in terms of questions and answers, in terms of why things

are contained in a particular piece of legislation. I am not able to

follow it.

[3:00]

MR. CLARK: The member for Prince Rupert and the Charlottes made a good point, but I want to just follow it up.

Just for the minister's edification, what happens now is that if

there is a wildcat strike or something of that nature, then there is

very quickly a hearing before the Labour Relations Board and everybody

goes back to work. They are ordered to, and there is a hearing. But if

a number of employees are fired because of a union certification drive,

and the union files unfair labour practices against the employer, then

that's set down for hearing about six months hence.

That is a great concern I have with the existing system. Now this

section says that they may make an interim order if it is urgent. Could

the minister give us some assurance that these interim orders will also

apply if a union files unfair labour practices against an employer?

Would he give us that assurance on record?

HON. L. HANSON: Yes, I think I can give that assurance quite

comfortably, because the clause is not meant, as the other side may

suggest, that it is strictly an employer clause. I think that there are

a number of cases where it could be a situation that an employee is

fired, for example, for union activities, organizational activities. In

that case, an unfair practice could be filed and an interim order could

be issued that the employee goes back to work. Then a hearing is held

later to decide on the facts of the case,

Section 19 as amended approved on the following division:

YEAS — 35

Brummet

Savage

Rogers

L. Hanson

Dueck

Richmond

Michael

Parker

Loenen

Crandall

De Jong

Rabbitt

Dirks

Peterson

Veitch

McCarthy

S. Hagen

Strachan

Couvelier

Davis

R. Fraser

Weisgerber

Jansen

Hewitt

Gran

Chalmers

Mowat

Ree

Serwa

Vant

S. D. Smith

Jacobsen

Messmer

Huberts

Long

NAYS — 19

Barnes

Marzari

Rose

Stupich

Skelly

Boone

D'Arcy

Gabelmann

Blencoe

Cashore

Guno

Smallwood

Lovick

Williams

Sihota

Miller

A. Hagen

Jones

Clark

MR. CHAIRMAN: Just before we proceed, hon. members, the Ministers of

Transportation and Highways and Health have some introductions to make. Shall

leave be granted?

Leave granted.

HON. MR. MICHAEL: Thank you, Mr. Chairman and fellow members

of the House. I would like you to make welcome Doug Abel, a constituent

of mine from the community of Grindrod, as well as the class from

Grindrod Elementary School. Grindrod is located in the north end of the

Okanagan Valley, and it's a very lovely agriculture and logging

community. Please make them all welcome.

HON. MR. DUECK: I'd like this House to offer a warm welcome

to friends and supporters of ours from the central Fraser Valley, Mr.

and Mrs. Peter Warkentin.

section 20.

MR. GABELMANN:

Section 20 allows for orders of the Industrial

Relations Council to be filed in the Supreme Court whether or not the

Industrial Relations Council wants those orders filed or even prefers

that they not be filed. Any person, as defined in the act — any

employer, any trade union and, in some readings, perhaps any trade

union member — will be able to make an application to the Industrial

Relations Council that an order of that council be filed in the Supreme

Court, At that point, the Industrial Relations Council has no

discretion. The Industrial Relations Council must file the order in the

court.

This is major stuff, Mr. Chairman, because we have talked throughout

the last nine weeks less two days about the significant sections of

this legislation, and we have said that injecting the courts back into

labour relations in a major way is a fundamental error. This

section

and the next three or four sections inject the courts into labour

relations in a way that does not help labour relations; rather, it not

only has the potential to inflame but will inflame the relationship

between employers and their employees.

Once an order is filed in the court, any violation or almost any

disrespect for that order becomes a contempt-of-court issue. It is no

longer simply a question of not obeying the collective agreement that

the board has interpreted should be obeyed in a certain way it's a

civil issue. You take it out of the relaxed problem-solving

jurisdiction of the Labour Relations Board, or hopefully this new

council, and inject it into the courts, and make any violation a

contempt-of-court issue, which is unquestionably.... Everyone would

agree, except, I guess, some members of the special, select group who

wrote this legislation, that the simple, automatic filing of orders —

because this is what, in effect, it is; it will become automatic — will

inflame labour relations almost as much as

[ Page 1520 ]

any other provision of this act, short of

section 62 and short of the double-breasting and successor rights sections.

Why would the government want to deny this wonderful council, which

it is establishing, this council which is going to play superman in

this province...? I might say, without stretching it too far, this

wonderful council that will play Superman to the government's Lois

Lane. Why would they want this wonderful body, with this magnificent

superman, Mr. Peck, to be denied the right to govern labour relations

themselves rather than taking it out of their hands, taking away their

discretion and giving no discretion and allowing the courts to become

the agent of authority in these matters?

I think it's necessary to take a couple of minutes to review a few

cases that have come before the Labour Relations Board in recent years

on this very question of whether or not an order should be filed. The

board has the power now, as I think I've indicated, to file orders on

its own motion. That power continues in the amendment. On its own

motion the board can file. I don't like it particularly, but I think

that on occasion the board probably should have authority of that kind.

What the amendment does is to say — and I think it's important to read

this before I review these cases — "The council shall on request by any

person or may on its own motion, file in a Supreme Court registry at

any time a copy of a decision or order made by the council under this

Act...." That includes interim orders, because it's not just a decision

that comes from a process that includes a hearing, but also an interim

order or collective agreement or whatever. That's unchanged. The

essential change is that the discretion is denied to the board. They

have discretion, but somebody else can usurp that discretion by making

application.

[3:15]

I don't know the history well enough to be able to cite all the

instances when the labour board has in fact filed an order with the

Supreme Court, and I don't know whether this is the last one that they

did. I doubt it; no doubt there have been others and my memory fails me

on this issue, and I haven't done the research. But on March 16, 1984,

there was a decision — a famous one, in fact. You wouldn't know it was

famous by reading the dry legal language of the

summary of that case,

but it was a very significant one in the history of this province. It

was J.C. Kerkhoff and Sons Contracting Ltd., and on the other side, the

B.C. and Yukon Territory Building and Construction Trades Council. The

applicants, Kerkhoff, asked the board to file in the registry of the

Supreme Court the board's order dated March 12, pursuant to

section 30

of the Code, which is the

section we're now talking about.

In response to a complaint alleging unlawful picketing by the B.C.

and Yukon Territory Building and Construction Trades Council and the

carpenters' union, the board had issued a cease-and-desist order. I

won't give the numbers. That order had been disobeyed. Since the

decision, large numbers of persons had been picketing and access to the

site in question had been impeded. It was argued by the BCYT and the

carpenters that the order should not be filed until the reconsideration

application had been heard. They also argued that this case was

extraordinary. It had attracted much media attention. The building

trades were treating this case as having much significance. The

evidence did not establish that the applicants were suffering any

particular loss by the delay. The board was asked to consider whether

one of the applicants had scheduled this confrontation to ensure that

any legal proceedings took place before construction was underway.

The decision of the board was that the order should be filed in the

registry. The board took advantage of the discretion it had under the

existing Code and decided that the order should be filed. The reasons

for that, quoting the

summary of the board decision:

"The first consideration in deciding whether to

exercise power under

section 30 was whether the order was being obeyed.

Here there was complete lack of compliance with the order. That was not

the end of the matter. The board had to be satisfied that it was

consistent with the purposes of the Code as set out in

section 27 (l) "

— we had that debate this morning — "to file the order.

"As a general proposition, it made little sense to

wait until a reconsideration application had been heard before filing

the order. The expedited procedures under

part 5 of the Code would be

seriously undermined if the board's orders could be ignored pending

appeal. In fact, precisely the opposite seemed more consistent with

Code principles. The board should be most reluctant to give

consideration to an application for reconsideration where the party

seeking the reconsideration was in violation of the board's order.

"As for the special aspects of this case, there was

not sufficient evidence to permit a finding that one of the applicants

had deliberately scheduled this confrontation. There was an explanation

for the strong stand being taken by the building trades, but it could

not be accepted that the sensitive, labour relations response to this

reality was for the board to turn a blind eye to the fact that its

order was being ignored by a large number of persons even as the

argument was being advanced to the board. The interests of the Code

demanded that the order be filed."

Mr. Chairman, this is an important case; this was a watershed event

in B.C. labour history. This was the Pennyfarthing-Stevenson case. This

was the pre-Expo skirmishing that took place between the Bennett

government and the building trades council. This was — I'm convinced

historians will decide — a turning-point in whether or not British

Columbia was to have an organized construction industry. From that day

on, from the day that this order was filed in the Supreme Court — and

further action would have been viewed as contempt of court — the

building trades in this province began to lose whatever ability they

had to have their companies, the organized companies, win major

construction projects. You could argue that the Kamloops courthouse was

in fact the first item in this process, the beginning of the death

knell of the building trades. I would argue that the Pennyfarthing case

was the beginning of the death knell.

Many in the trade union movement argued that even though this was

filed in the courts, the building trades should have defied the order.

If they didn't, the prediction was that it would be the end of the

building trades. Many others counselled: "No, you cannot disobey a

court order. The consequences are such...and given the nature of

penalties these days, assets of both unions and their members would be

seized to the point that they would be rendered insolvent." The voices

of reason prevailed at the time, and no serious violation of the court

order was embarked upon — and I emphasize "no serious violation of the

court order." As a result, no contempt-of-court proceedings developed.

[ Page 1521 ]

Many people who argued for restraint in the response to that order

at that time now kick themselves. They say there would have been no

difference to them whether they disobeyed or obeyed the court order.

Either way they were being driven out of business, and the finality of

that became clear with the introduction of this legislation. Many would

argue that we might not even need the legislation to ensure the

destruction of the organized sector in the building trades in this

province, that it was happening in any event as a result of a series of

decisions and the policy of the government to not — if I can split an

infinitive — impose a fair wage

schedule on this province, despite the

fact that we have a fair wage law in place. That's by the by.

For the purposes of this debate, I would argue that the board had an

appropriate discretion as to whether to file or not to file. I think

the evidence in this particular case is that persons and perhaps trade

unions were violating an order of the board, and continued to violate

that order while the consideration of whether to file in the courts was

being considered, and that the board had very little alternative but to

take advantage of the existing

section 30 and to file. My friends in

the labour movement won't like me saying that, but I think that the

facts of the case are such that they had little choice. Stephen

Kelleher chaired that panel, and Mr. Bell and Nora Paton sat on the

commission. Despite the fact that they took a real roasting from a lot

of people in the labour movement, you could argue that the board did

the appropriate thing.

Given the existing wording of the law, this new Industrial Relations

Council would have the same opportunity and the same option. But not

with the changes. With the changes, any person, Mr. Kerkhoff himself or

anybody working for that company, any trade union member, because under

this act the definition of a person includes a trade union member....

Oh, the light already?

MR. CLARK: I'm appreciating so much the comments of the member for North Island that I would like to hear him continue.

MR. GABELMANN: We do make a farce of the 15minute rule, don't

we? It was not my intention to.... I had no idea I had taken as long as

that, Mr. Chairman.

Any person — and person is defined under the act — can make an

application to the Industrial Relations Council, when and if this is

passed and proclaimed, and the council must file that order. Let's look

at some cases where they chose not to file orders and see whether or

not it is an appropriate discretionary power that should be maintained.

October 1984: B.C. Transit and MTOC on the one hand, and ICTU Locals

1, 2 and 3 on the other. The facts of the case: B.C. Transit applied on

August 17, 1984, pursuant to

section 30, etc., requesting the board to

file an order dated August 16, 1984 in the Supreme Court registry. In

the latter part of August 17, 1984, the prohibited picketing had ceased.

Let's just repeat the dates. Transit applied on August 17 requesting

the board to file an order of the previous day. The board had made an

order the previous day, so the application is one day later. In the

latter part of that next day, August 17, the day that the request to

file was made, the prohibited picketing had ceased. So what do we have?

On August 16, we had an order that certain picketing had to stop. On

the morning of August 17, B.C. Transit said: "This picketing hasn't

stopped. We are going to go to the board and request that the order be

filed in Supreme Court." By the afternoon of the same day, August 17,

the picketing had stopped.

Continuing the

summary of the facts, the board said: "Since that

time, the labour dispute that had generated the picketing had stopped

due to the enactment of legislation." Some of us in this House will

remember that, because we had fun with the current Minister of Tourism

about that particular legislation. But that's another issue. In the

summary, the reasons for the refusal to file this order are as follows:

"In these circumstances, the board was not prepared to file

the order. Where the processes of the board had not achieved a cessation of

the legal activity, the court's processes could assist. Here, hours after

the board's reasons had been published and its order had been issued, the

picketing had ceased and had not resumed. With no continued disobedience of

the order, there was no need for the order to be filed."

As a result, what could have been an ugly situation was cooled out. It was

cooled out in this particular case for a variety of reasons, but nevertheless

it was cooled out. If, on the morning of August 17 — or perhaps even in the

late afternoon of August 16 if time had allowed — NITC had gone to the board

and asked that its order of August 16 be filed, that order would have been filed

automatically. The council would have been required, under this change, to file

that order. Midday on August 17, the picketing was continuing. Those persons

would have been in contempt of court. Is that an appropriate "criminal

activity" for those persons who hours later ceased their picketing? I suggest

that it is not appropriate for that kind of activity to be made what is in effect

a criminal matter: contempt of court.

What was easily and properly and civilly dealt with by the Labour

Relations Board under the existing law of the day could not be dealt

with in that way under this new legislation, and there are countless

cases of a similar nature. One of the best is Trofast Construction and

the carpenters' union. The facts and reasons here are lengthy, and if I

was attempting to delay the House I would read all of the

summary. In

fact, probably I would read the whole decision. But I am not into that

mode. I am not wanting to do that. But it is important to understand

that in its decision the board said it would not give consent to sue or

file an order prohibiting strike by unknown persons in view of the

subsequent specific order giving the union the right to picket. That's

the brief

summary of the decision. Again, in this particular instance,

and maybe it's necessary to go through all the facts in order to....

Well, I'll leave it for now.

[3:30]

Maybe

the minister will concede the point we're making, without me having to

take that much time. But given the situation in this kind, the minister

I'm sure should agree — or must agree; I can't understand why he

wouldn't agree — that no good labour relations purposes are served or

achieved by this automatic filing. He may argue that it's not automatic

filing, that somebody has to apply. Well, you can bet that the

employers are going to apply in virtually every case. Fortunately,

there are still quite a few enlightened employers out there, but not

many in some of these industries that we're talking about.

[Mrs. Gran in the chair.]

[ Page 1522 ]

I want to read the other side of this case — from an employer's

point of view. And this is the Muckamuck Restaurant case. Members from

Vancouver in particular will remember the Muckamuck Restaurant; many of

us enjoyed eating in that restaurant. It's a famous matter in labour

relations in B.C. history. The board said:

"In this decision, the board fashioned a remedy for the

unfair labour practices found to have been committed by the employer; a significant

consideration was the fact that the employer had gone out of business as the

result of 'losing' this labour dispute."

Here is a case where union members could have requested that the unfair labour

practice declaration be filed. The board argued that that should not be filed.

It's a page and a half so I won't read it all, but I'll take a short

sentence or two out of the middle:

"...the employer had essentially gone out of business

as the result of 'losing' this dispute. That being so, an order that

it now provide the union with many thousands of dollars of compensation would

give the remedy a distinctly penal favour. The board's remedial power did

not, of course, extend to the imposition of penalties."

So in this case, if a union member wanted to have penalties achieved

on its former employer — technically still its employer — it could have

gone under the new law to the Industrial Relations Council, asked that

that order be filed, the employer would then have been in contempt of

court, and there would then have been a penal flavour to the

resolution. How does that assist industrial relations in this province?

What the board is saying in both of these kinds of cases — and I have

others, and if necessary I'll use them — is that the law of contempt of

court, or the law as administered by the Supreme Court, is not

appropriate in industrial relations. What you need in a situation where

you have an activity that is illegal, whether it is Muckamuck running

muckamuck through the collective agreement....

Interjections.

AN HON. MEMBER: Amok.

MR. GABELMANN: Amok. Whether you have the employer violating

the collective agreement or whether you have the union violating the

collective agreement, as was apparently the case in both of these

instances — Muckamuck Restaurant, B.C. Transit — the board suggested,

and every practitioner of labour relations that I have ever heard would

agree, that what is important in that situation is that a resolution be

achieved while maintaining the best possible relationship between the

parties, because normally — not in Muckamuck, but normally — they have

to continue to live with each other and to work together.

So how do you do that? You do that by having a dispute mechanism —

contract dispute or unfair labour practices or whatever else it might

happen to be — that is outside the courts, that is discretionary, that

allows for consultation and for saving face, and that allows for good

industrial relations. That is now no longer possible. Under the new law

— and I've said it already, but just to summarize this point, and then

I'll let another member pick it up from there, unless the minister

wants to agree that the argument is compelling and he's been thinking

about this issue anyway, over the last few weeks, and wants to make

further amendments.... If that's the case we'll move on to the next

section. But if he doesn't want to agree with that, I just want to say

in conclusion that here are two cases where industrial relations were

well served by not having the courts involved, and where if the courts

had been involved the relationship between the parties, in terms of

MTOC — Metro Transit Operating Company — and the ICTU, would have been

inflamed to a point where their continued relationship would have been

impaired as a result of their act becoming contempt hours after an

order had been made; and on the other hand, from the employers'

perspective, a situation where an employer could have been fined

thousands upon thousands of dollars for contempt of court for violating

an unfair labour practices charge. The discretion allowed to the Labour

Board in those kinds of cases and many others is appropriate.

If they feel that their order is not being followed, they have a

discretion: they can file. No matter how badly I feel about the

Industrial Relations Council, no matter how badly I feel about all of

the additional powers it now will hold, which is a subject of a later

debate, I think the argument is overwhelming and compelling that they

should have that discretionary right to say no, we will not file this

order. Even if they decide a day or two days later, whatever, that they

will file it, they should have the right to say no, it will not be

filed. That right does not now exist with the IRC.

HON. L. HANSON: I certainly understand the point that my

critic has made, and I must say that I do appreciate the tenor of the

debate. I do understand what he's saying. I would assure the member

that in the discussions that went on among the people that I was

associated with in the drafting of this, that was a concern that was

considered. We felt very seriously that the integrity of the board and

its decision-making process should be protected to the degree that

those orders carried the importance of a court order, as it relates to

its enforcement. While I understand the member's concerns, I did decide

that that was the most appropriate approach to take; but I would say

that certainly that is an area that would be watched very closely as to

its operation. But that was considered. We did consider the arguments

that the member advances.

MR. MILLER: Would the minister agree with the statement that

it's preferable that labour relations disputes be resolved at the

earliest stage? For example, my philosophy as a shop steward was, to

the foreman: "If you and I can solve it here, we've done a service to

everybody, rather than sending it through the process." Would the

minister agree — we're talking now about the board, or what will be the

council that it's preferable that matters be resolved at that level?

HON. L. HANSON: I think I would even go further. I think that

it's preferable that matters be settled before they ever reach the

board by the two individual parties that have the dispute. I don't

think that the member would argue that at times there just isn't a

resolution, and there is a requirement for a legally constituted body

to make a decision, listening to all of the facts. But I would suggest

that the people who are making those decisions will be very aware that

the decisions they are making are in effect court orders.

MR. MILLER: If the minister agrees — and I take that lengthy

answer to really be agreement with my statement — that it's preferable

that matters be resolved at the board level, why would you possibly

want to introduce an amendment

[ Page 1523 ]

that would allow either party in dispute to frustrate that process? Because that's exactly what would happen.

Rather than the issue being settled at the board level, either party to the

dispute, whether it's union or company, can say to the board,"We want

that filed in the Supreme Court," and therefore it becomes a matter for

the courts.

Either side can frustrate the board resolving the dispute. Why then

would you want to include that in there? You're saying you want to put

it in there because the parties would know that a decision of the board

is backed up by the courts.

But the board surely is in a better position to determine when they

feel it's necessary that the decision be backed up by the courts. When

one party or the other is not complying, then the board has the power,

and the parties know that. But as it stands, your amendment would, in

fact, frustrate the very process that you say is preferable.

Would the minister respond to that?

HON. L. HANSON: You know, I don't agree with that assumption.

First of all, as I understand the situation, the parties try to resolve

their differences, and not being able to resolve their differences, as

a last resort — because they obviously haven't been able to resolve it

through negotiations between the two — they appeal to the council for a

decision, giving the council all of the facts. I know that there is a

provision for an interim order giving both parties the chance to be

heard, and that interim order would effectively become a court order in

the same manner.

But by the same token, the interim order is discretional on the part

of the council, and I am sure the council, realizing the importance of

the order that they are making, will take all of those facts into

consideration before a decision is made to issue an interim order or

another order, because the division of the council that makes these

decisions is a court that they appeal to when they are not able to

resolve their own dif ferences. They go there with an issue as it

relates to their difference between the two parties.

MR. MILLER: Mr. Minister, going back to the decisions of December 3, 1982, I'll just read part of the reasons:

"To date, the board has refrained from using its authority

under

section 30 of the Code for any purpose other than securing compliance

with its orders. The B.C. Supreme Court has expressed a similar view of its

role under

section 30. The application of the complainant was not supported

by a persuasive argument that the board should ignore the policies that had

been developed in relation to

section 30 of the Code."

I repeat that by allowing either party to request — and that

therefore becoming a mandatory request — that an order of the board be

filed in the court, the board has lost part of its ability to resolve

disputes.

I mean, this is not an argument that pits me as being only on the

side of labour, or someone else only on the side of companies; this is

an argument about the mechanism that's in place to resolve disputes.

Surely the minister can see what I am saying, that by allowing

either party to frustrate the process by demanding that the order be

filed, you've taken away the ability of the board to actually do its

job.

[3:45]

HON. L. HANSON: I don't agree with that. I think that he

board, before it makes an order, has all sorts of flexibility to

attempt to resolve the dispute between the two parties.

Again, the orders of the board that are required to be filed with

the court are simply a compliance measure, and when he board reaches

the decision that it is necessary to issue an order, then we believe

that order should be obeyed.

MR. CLARK: I think the minister is incorrect in that

statement, because he is saying when the board "considers" that there

is an option to enforce it. That's not what this

section says. It says:

"It shall be filed on an application by any party." Isn't that correct?

HON. L. HANSON: No, I think that's a misunderstandng. I said that when the board makes a decision to make an order.

MR. CLARK: Well, I don't want to belabour the point, because

there is clearly a simple.... This is a very important section, and

these are very simple arguments, and the minister seems to disagree.

Consistently labour legislation in Canada and British Columbia has been

designed to remove those kinds of matters from the courts, and in a

series of amendments, this one is the major one. It simply allows

parties to seek relief from the courts, and there is no discretion on

the part of labour relations practitioners or the adjudicator, in this

case the Industrial Relations Council.

It seems to me to be an extremely backward step, because what we

have seen is that there is discretion now by the board, and that

discretion is very rarely exercised because of the consequences. What

labour relations purpose is served by allowing employers, for example,

to sue their employees for damages? If a pulp mill has a wildcat on the

basis of strongly felt feelings — obviously, wildcats don't just occur

— on the part of the employees, and if it allows that employer to sue

the trade union for that wildcat, which this bill does — this removes

any discretion on the part of the board to simply allow that — then how

does that improve the relationship between employees and employers? How

does that assist the parties in the future to enjoy a meaningful

relationship in terms of the kind of day-to-day things that take place?

What it does is that it hammers the trade union, so therefore it

impacts on the trade union. It may, for a time, limit wildcat strikes.

It may make them not happen. But the wildcat strikes happen for a

reason. They happen because of pent-up frustration. What this will do,

if it caps it now because of the threat of being sued, is that

eventually it will just blow up anyway. Then when the employer goes to

court and sues, it will flare up again and we're back to the same

ituation we were back in before, where the courts are issuing orders

and suing unions and making them stick; and it just ours the whole

industrial relations climate that took us years, after the late sixties

and early seventies, to get out of to some extent. So it drags more and

more of these kinds of things into he court.

The minister is appointing the chief executive officer, if you will,

of this operation. He is appointing Mr. Peck. He is making government

appointments. He has designed the law. He has designed what we think is

really not a very good law at all, in fact terrible. Then he is saying

that even though he is in complete control of this operation — he is

making all of the appointments — he is going to remove any discretion

on the part of his appointments and on the part of this organization to

[ Page 1524 ]

not allow an employer to seek relief in the courts;

he is going to remove any discretion from the participants, from the

adjudicators of the dispute, to allow that employer to seek relief in

the court. It will be used extensively, as consistently employers have

applied for the right to go to court, and most of the time, I think

probably about 90 percent of the time, they are refused by the Labour

Relations Board.

This opens the door and removes the discretion from

an act that

already was clearly stacked against trade unions in virtually every

clause. Already the minister has made all his appointments, and yet

even though they are all his appointments, even though the act is

clearly structured in this manner, still that discretion is removed.

I think if you look at it historically, the courts are not good

adjudicators of labour relations matters. What they do is effectively

punitive. They enforce decisions of the Labour Board, in this case, in

a punitive manner, because usually it is to seek damages, or those

kinds of orders. Any order is enforceable by the court now. I think

consistently with this kind of clause you are going to see more and

more the court involved in labour relations, and you are going to see

clearly more disruption because of it. It really runs counter to the

trend of labour relations all across North America, and clearly the

major legislative initiative in this province, the Labour Code of 1973.

This completely reverses the trend of every other jurisdiction in a

series of amendments, like weakening the privative clause of the board;

like the next

section — not to get into it — that limits the

jurisdiction of the board.

All of these things combined, particularly this

section that removes

any discretion, will have the impact of the courts becoming more and

more involved in labour relations. That clearly is not a trend anywhere

else, it clearly has not worked historically, and it doesn't make any

sense at all.

MR. SIHOTA: Actually, Madam Chairman, I was hoping the minister would respond to those comments by the second member for Vancouver East.

Let me ask the minister this question. Responding to what the member

for North Island (Mr. Gabelmann) had to say after his opening comments

with respect to this section, the minister, if I heard him correctly,

said that he wanted to preserve the integrity of the IRC.

As a function of that, the minister, as I understood it, decided to

have this

section read in the way that it does. It struck me as a

somewhat unusual comment, in that it would seem to me that the council

itself is the best arbitrator of its integrity. If it has concerns

about its own credibility, if it has concerns about the extent to which

its orders are going to be complied with, and if it has concerns about

the amount of spine it is seen to have on these types of matters, then

it ought clearly to be the one that decides whether or not it has a

concern, and hence decides to green-light an application to the Supreme

Court or to red-light it, if it sees other more compelling reasons. The

question to the minister is this: does he not agree that the council

itself is best able to determine and adjudicate on matters affecting

its own integrity?

HON. L. HANSON: Well, Madam Chairman, I do agree, as a matter of fact,

but I believe that that integrity or that decision-making process lies at the

level where the board makes the order. They know the results of making an order.

All of the facts of the case are considered, and all their abilities are considered,

before they in fact make that order, and that's where I feel the discretionary

powers should lie.

MR. SIHOTA: Well, that invites all sorts of comments, and I'm

sort of deciding which one I want to pick on first. But I'll take it

from this angle: if one is to embrace the minister's

interpretation and

to say that discretion ought to be made before the order is granted,

the council would in all likelihood be far more hesitant about making

those orders, because it knows that one can proceed to the courts with

that order, as opposed to knowing that it has discretion afterwards.

Does the minister not agree that the net effect of this, then, would be

to have the council become far more hesitant?

HON. L. HANSON: No, I don't think that's the case at all,

Madam Chairman. I believe that the IRC adjudication division has

confidence in their ability to make those sorts of decisions, and I

think they're going to take their responsibilities very seriously. You

know, something that I sort of don't agree with.... I guess it's

obvious that the philosophy of the two sides is quite different, but I

don't think we can say that there aren't an awful lot of intelligent

people out there, both on the employer and the employee side.... that

the requirement to file an order, or the requests to file an order, is

going to be rampant. I think that will be treated very rationally and

very responsibly, and I think the board will treat its responsibilities

very responsibly. I think that's a confidence-builder, if you will, as

opposed to a deterrent.

MR. SIHOTA: Well, if the minister thinks that the board is

quite capable of making rational decisions and operating in a rational

way, and if he's quite sure of the fact that the board will operate in

a competent way, then why not provide them with the ability to exercise

that type of rationale and discretion prior to providing a green light

to go to the Supreme Court?

HON. L. HANSON: Obviously we have a difference of opinion. We

feel again that the IRC will act responsibly. We don't feel that we're

taking away any of the discretionary authority that should responsibly

lie with them. I think what we're trying to do is to underline the

importance we place on compliance with decisions of that adjudication

board.

MR. LOVICK: Madam Chairman, I guess the question is, if I

might just pursue the point started by my colleague.... If indeed we

are trying to demonstrate our faith in the council, if indeed we

believe in the integrity of that body, then why are we in effect

creating a structure that is automatically in place above and beyond

that council to start with? In other words, we're removing the

discretion of the council to decide what shall be referred upward.

We're taking that away from the council, in effect, by saying that any

of these parties can make that request, and it will be granted.

HON. L. HANSON: Madam Chairman, I can do nothing but repeat

that we definitely have a difference in philosophy. We feel that making

the effectiveness of a council order that of a court order will in fact

reinforce their authority, and also the integrity of their decisions.

MR. LOVICK: I thank the minister for his response to the

question. I am not going to repeat the question. Instead, I am going to

ask a question suggested by a comment made earlier about this

particular issue. The minister said a while ago, in response to my

colleague from North Island on this very question, that this would be —

and I believe I am quoting the

[ Page 1525 ]

minister's statement — "an area to be watched very

closely." What does that mean? What kinds of remedies are we talking

about? What is the procedure of watching closely? I don't understand

that.

[4:00]

HON. L. HANSON: Well, I think there is no question that the

monitoring of the process that we are putting in place will go on by me

and my deputy minister. I was suggesting that the critic, the member

for North Island, had raised.... That was a discussion that we did

hold. We did recognize those, but have decided to advance the bill the

way it is, if you understand. In other words, I am trying to say that

we didn't do it unaware of some of the concerns that have been raised.

But the policy decision.... Obviously we disagree on the philosophy.

MR. LOVICK: If the minister is saying that yes indeed, he and

his ministry officials will be watching closely, the question is: what

can he do by watching activities of the Supreme Court? Once you have

given over that power to the Supreme Court, you have effectively washed

your hands of it. What are you going to do? Are you then going to say:

"Well, we don't like the way the court is behaving. Therefore we are

going to get involved, and suggest to the court that it will receive a

slap on the wrist" — or something? That's the point. We are suggesting

that by, in effect, giving up this, if you like, discretionary power,

the minister has effectively backed himself and his department into a

corner. Don't you recognize that that is the predicament?

HON. L. HANSON: I am not suggesting that when we are

monitoring something, we are monitoring the actions of the Supreme

Court. I am suggesting that it is a responsibility of the minister in

any portfolio, as well as his deputy, to monitor the working of

different legislation that is put in place. I am not suggesting a

monitoring of the Supreme Court and its actions. I am simply suggesting

that as minister I have a responsibility to monitor everything that

goes on within the ministry.

MR. LOVICK: A direct question. Given what discretionary power

is now removed and what role the Supreme Court now plays in this, what

then will the minister and his staff be monitoring under the provisions

of this section? What will be left to monitor?

HON. L. HANSON: I guess I just have to repeat that there is a

responsibility in any ministry to monitor everything that goes on

within its purview. I think that if the member is looking for the

answer, there is a requirement to monitor the actions of the board, of

the commissioner, of all those things. That is an understood thing that

happens in any commission. I am not embarrassed by the fact that I

continue to monitor the situation in the Workers' Compensation Board,

the Insurance Corporation of British Columbia and so on. But that is

not to say that it isn't a process with everything that goes on in the

ministry.

MR. SIHOTA: I don't understand what the minister is talking

about when it comes to monitoring. I mean, who is he trying to fool? He

is trying to tell us that he is going to monitor something that is

outside his jurisdiction, namely the courts. Do we realistically expect

the minister to sit there and monitor every labour relations type of

decision that goes through the courts, and then decide at some time in

the future that it would be appropriate to make amendments to

section

20? Quite frankly, I don't buy that line. If the minister is really

concerned about monitoring and watching and making sure that

appropriate matters are dealt with appropriately by the courts and so

on, then he ought to put a control mechanism in the hands of the

council, so it can decide as a monitoring agency within his

jurisdiction whether or not matters ought to be allowed to go to court.

The minister knows, and I know, and his advisers know, that the

implications of allowing this

section to stand and allowing these

matters to go to court carte blanche are enormous, because the courts

possess enormous powers and they can do all sorts of things.

Once you've got a Supreme Court order in your hand, you can take all

sorts of action that you want to take to execute on that order. There's

a whole area of remedies that opens up. The powers are enormous, and it

shouldn't be a carte blanche approval on to the next step. We all know,

and the minister knows, that the history of these types of matters has

been that there's been appreciation of the fact that labour relations

matters are specialty matters, that they're best left in the hands of a

tribunal known as the Labour Relations Board or the council that have

expertise on labour relations matters. They're the ones who can make

the decisions. The idea is to keep it out of the courts, hence

privative clauses and hence the type of power that used to be in the

hands of the Labour Relations Board to limit the cases that go before

the courts.

The courts didn't want them. The courts didn't want a labour

relations mess on their hands. The courts didn't want them, because at

times they lacked the expertise to deal with labour relations matters.

That's why we moved in this province to a form of tribunals; that's why

we should stay that way, and that's why we should try to give those

tribunals as much power as is necessary to make fair decisions on

matters of labour relations.

The next comment is going to launch me into a general diatribe on

the act, so I won't make that comment. But I think it stands to reason

what I was going to say, in any event, in terms of how the act fails on

that point. But the fact of the matter is that we've created specialty

boards to deal with these types of matters, and it makes sense to allow

those specialty boards to decide when it is that the escape hatch

should be opened to allow matters before it to go before a higher

level. It should be the board or the council — to use the language of

this legislation — that has its hands on that escape hatch, so it can

open it up and allow certain matters to proceed and others not.

I'll tell you why that ought to be the case, and I'll just quote

from

section 18 of this act.

Section 18 says that one of the objectives

is: "Securing and maintaining industrial peace and furthering

harmonious relations between employers and employees." That's clearly

the intent of the legislation, as far as the minister sees it, and we

won't get into an argument as to whether or not it achieves that or

not, whether it maintains a balanced field or not. The point is that if

that's your intention, then you ought to give this board some

discretion as to the matters that may go to the courts. Because in the

past, as I understand it, the Labour Relations Board exercised its

powers to open that escape hatch and allow matters to go to the courts

only when it felt that it could no longer do its job in terms of

maintaining harmonious labour relations in the province. You just don't

whittle away the jurisdiction and

[ Page 1526 ]

slice it up and allow for ease of the matters to go

before the courts, given the history of these types of situations and

the history of the Labour Relations Act.

It's profoundly inane, in my view, to have injected

section 20 in

the mandatory language that's contained. It's totally oblivious to the

history of labour relations and the whole concept that we've embraced

in this country of having specialty tribunals. It's totally crazy, and

I'm a little bit amazed that the minister himself doesn't understand

that. But so much for those biting words. Maybe it's because I have

been in the House for two or three days and have allowed these matters

to simmer in my mind.

Let me just ask the minister a very simple question. Is it not true

that this

section was drafted at the behest of employers who were upset

over the powers of the Labour Relations Board as they exist now, before

the amendment? Is it not true that the employers requested this? Yes or

no.

The minister says no. Can I ask the minister to indicate to me which employee organizations requested this change?

HON. L. HANSON: The number of briefs is sort of staggering in

its total. The discussion that went on with myself and my people

involved certainly was, you know, taking into consideration all of the

concerns that the members have issued, and I think that government has

a responsibility to provide legislation. I don't think there's a

requirement that every piece of legislation that comes forward is as a

result of a request, but there were a number of individual requests,

and quite frankly, maybe I can find a brief for the member that would

suggest who suggested this, but it's very difficult to remember every

individual one.

MR. SIHOTA: Well, that's garbage. Let me ask another question

then. Did the minister discuss with the Supreme Court of British

Columbia as to whether or not it wanted this type of an amendment?

HON. L. HANSON: Could you repeat that?

MR. SIHOTA: Did the minister discuss this with anybody — for

example, the Chief Justice of the Supreme Court of the province of

British Columbia? Did you ask them what they thought of this section;

if they wanted to have the jurisdiction to deal with these types of

labour matters? Did you consult with them?

HON. L. HANSON: I have some difficulty in relating the

concern of the member that we should address the Supreme Court when

we're providing legislation. All we're saying here is that the labour

matters which are dealt with by the adjudication division of the new

council...that when those orders are issued, they will be filed with

the Supreme Court. We're not suggesting that the courts have a working

role in labour relations; we're simply suggesting that the authority of

the act under the Labour Relations Council will in fact become an order

of the Supreme Court for purposes of not only its impact, but its

enforcement.

MR. SIHOTA: I'll put the minister on notice. When we get to

later sections, I'll bring out that quote from the Blues in terms of

what the minister has had to say now of an increased role within the

Supreme Court on labour relations matters. If the minister is true to

his words, I think it will come back to haunt him later on.

This legislation is a radical departure from what we've got right

now, introduced by a radical Premier and a minister who obviously

strives to be as radical in his approach. What you're doing by virtue

of this

section is giving the courts greater powers in these types of

matters, greater room to play with these types of matters, without

asking whether or not they want to enter into the playing field —

whether they want to get involved in labour relations matters. It seems

to me somewhat obtuse not to talk to the courts about it. Given the

history in this province of the courts wanting to get out of these

kinds of situations, it's strange indeed that you would involve the

courts more directly in these types of matters. But fine, I'll accept

the minister's response at this stage, and maybe come back when we get

to another section.

The existing Code was debated in this House about 12 years ago, and

there's been no change to this provision over the last 12 years

recognizing that the Labour Relations Board ought to have these powers.

What has happened since October 22, 1986 to persuade the government

that the board's discretion should be removed? What decisions have come

down which have caused all sorts of concern to bring about this

amendment? What philosophical change has happened within the

government? It's the same party that was in power over the last few

years and had the opportunity to make changes. What's happened that

would warrant this type of an intrusion and a change, if I'm wrong on

the matter of employers not requesting it? Can the minister point to

any cases, any decisions of the board that caused him concern

sufficient to bring about this type of radical change?

Interjection.

MR. SIHOTA: The minister says no, there haven't been any cases. Will the minister explain then if...?

HON. L. HANSON: I'm not going to respond.

[4:15]

MR. SIHOTA: The minister chooses not to respond. Perhaps he can explain why he doesn't want to respond.

Interjection.

MR. SIHOTA: The member for Richmond is quite correct. It was a good try.

You know, it's absolutely frustrating. You're sitting here, Mr.

Minister, proposing changes to legislation, and you're not adequately

explaining the reasoning behind it. That's why you're inviting this

type of frustrated response from this side of the House. I want you to

understand that. It's not a case of our wanting to continue delaying

the passage of this section.

Interjection.

MR. SIHOTA: I'm sure all of you would love to believe that.

There are members on the other side of the House who say: "You know,

it's not our intention to deunionize the province." Some of us have

actually said that we believe you there, and I wish you would believe

me on this provision. It makes for great rumour and gossip and innuendo

to suggest that the members of the NDP want to rag the puck, so to

speak, on this stuff. Well, that's not the case; we just want some

clear answers. What prompted these changes, Mr. Minister?

[ Page 1527 ]

Well, if the minister doesn't want to answer the question, then I'll

keep on talking and maybe we will rag the puck a bit, if that's what he

wants. But I think the people of this province deserve an answer. You

say, Mr. Minister, that you are concerned about the integrity of the

board. Well, could you tell the House what made you adopt that concern

about the integrity of the board? Did the board come to you and say..

"We're worried about our own integrity, and therefore we want this

mandatory provision"? Did you introduce this because of the board

coming to you?

The minister doesn't want to answer that question either. If it

wasn't employers and if it wasn't the board and if it wasn't the courts

and if it wasn't trade unions that asked for this section, who did? Did

the minister want it, and if so, could the minister explain why he

wanted this change?

HON. L. HANSON: First of all, to the member opposite let me

point out that under the Human Rights Act, which does set a bit of a

precedent, where an order is made under subsection (2) or (3) or

section 4(d), the council or the person who was discriminated against

and in whose favour the order is made may file a certified copy of the

order with the Supreme Court or with the county court, etc.

So I think there are some precedents. But by the same token, we

obviously disagree with the member on the other side on the philosophy

behind reinforcing the order of the IRC as with the courts. We on this

side feel — and I've discussed it with the cabinet and the members in

caucus and my staff members — that the philosophy of reinforcing the

orders of the council by the application, or at least by the filing in

the Supreme Court, is a good philosophy. We think that it reinforces

that, and we think that it preserves the integrity of those decisions

as the adjudication division comes up with them.

MR. SIHOTA: The human rights legislation is a good example,

but we're comparing apples and oranges there. Let me say right off the

bat that I think it's a good idea for the government to allow for these

orders to be made law and to be applied in the courts of the province.

There is nothing wrong with that philosophy at all, except that perhaps

the jurisdiction — who is making the order — ought to have the

discretion to pass judgment on whether or not these provisions ought to

be filed. I think that's the difference of opinion on this side of the

House.

Madam Chairman, I notice that the minister is out of the House, so

maybe for the record let me make the following comments, because I dare

say that if the minister is unwilling to respond to three-quarters of

my questions, I hate to guess whether or not anybody else in the House

is willing to take on the matter as well.

AN HON. MEMBER: It's the quality of the questions.

MR. SIHOTA: The member makes a comment about the quality of

questions. I don't think there is anything wrong with asking: whom did

you consult? Did you consult employer groups? Did they want it? No. Did

you consult trade unions? Did they want it? No.

MR. S.D. SMITH: Is it normal to ask judges?

MR. SIHOTA: The second member for Kamloops says: is it normal

to ask judges? I am saying that this legislation is a radical departure

from what we had before. The member knows that. He also knows that the

courts have said in the past that they don't want to deal with labour

matters, that they prefer that some specialty board deal with it; and

now this amendment wants to give some powers back to the courts. A

quick phone call to the Chief Justice I am sure would have given an

answer the minister didn't want to hear. Maybe that's why there was no

consultation. But fair enough; I'll accept what the second member for

Kamloops has to say in fairness and say okay, maybe it's not wholly

appropriate to go to the courts and ask them: "Well, what do you think

of this type of change; what do you think of us giving you more power?"

I'll concede that, but surely it makes sense that somebody be

consulted. Surely it makes sense that somebody must have requested this

section. If the minister is to be believed that the employers didn't,

then the question still remains: is it employees or trade unions or

organizations or cabinet or caucus? Who was it that asked for this

change? I'll withdraw my comment gladly on the matter of the Supreme

Court, because I think the second member for Kamloops will understand

as well as I do that it is a radical departure. If he thinks it's

improper to ask judges, well, that's fine; I'm not going to argue that

point and I'll concede that.

I can make all sorts of comments about this government and its

playing around with courts, but as I wait for the Minister of Labour to

come back into the House, Madam Chairman, let me say this. In this

legislation this government is putting its faith in this new Industrial

Relations Council on a number of grounds. It's saying to it, as it

stands right now, that people attached to this council can make

decisions to determine what is not in the public interest. It's saying

to it that you can make decisions about the defining of a term such as

"competitive market economy." And it's placing all sorts of

discretionary powers with respect to defining those types of words and

phrases; it's giving to it all sorts of discretionary powers in terms

of making decisions; on the other hand, it will not give it a

discretionary power to further cool down a heated dispute.

In the past — if you read the decisions of the Labour Relations

Board — when exercising its discretionary powers, the Labour Relations

Board has often said that it does not think that a particular order

ought to go to the Supreme Court and be registered with the Supreme

Court. It said this because it felt that it was timely for it to make

an order in the first place. It said this because it was confident that

there would be compliance with the order. Thirdly, it reserved power

with respect to the Supreme Court — to answer the member who raised the

issue. It recognized that events changed between the granting of the

order and its filing in the Supreme Court and that certain events can

be deemed to inflame the situation. As a consequence of that, it has

wanted to have the discretionary power, and there's absolutely nothing

wrong with a board being allowed a second sober look. I may say that

this government would be well advised to have a sober second look on

this legislation and not go any further.

Interjection.

MR. SIHOTA: That's true. It would be nice for the government to demonstrate a level of sobriety on this.

Interjection.

[ Page 1528 ]

MR. SIHOTA: Here I am again stuck waiting for the minister to

return, wanting to ask him questions, but I understand that he is

otherwise engaged, as my friend has pointed out. So I'll wait for the

minister to come back, and I'll look forward to comments from the other

side to see if anybody else wants to defend this

section and explain to

us on this side of the House why discretion ought to be removed from

the order. I don't know where the first member for Vancouver South (Mr.

R. Fraser) is, but usually he's pretty good at doing it.

HON. MR. RICHMOND: The people over there sound so surprised

that dear old dad's going to get up and say something. I did want to

make the observation, regarding the comments I've heard from that

member for Esquimalt–Port Renfrew since I've been here, that it really

made little difference if the minister was here or not, because — talk

about tedious and repetitious, Madam Chairman — in the 20 minutes I've

been in the House, I've heard him just repeat the same things over and

over and over. I do promise.... I don't have to, now that the minister

is back, but I would gladly take any questions on notice for the

minister so that he can take a break.

But I do have some comments here on some of the background material

that I find interesting, and I think, Madam Chairman, that it should

probably be read into the record for purposes of balancing the scales

on this debate. The LRB currently has a discretion to refuse to file

its decisions or orders in the Supreme Court registry. This amendment

will require the council to file a decision or order in the Supreme

Court registry if someone requests it do so. The implication of filing

an order in the Supreme Court registry is that the order becomes a

court order and can be enforced just as a Supreme Court order can be

enforced. This means that if someone disobeys the order, they can be

cited for contempt of court — for some reason, the member for

Esquimalt–Port Renfrew doesn't like that. Fines and/or a jail term can

result.

For example, an employer whose union employees have illegally walked

out, and who has obtained a council decision declaring the strike to be

illegal and ordering the employees back to work, will now be able to

require that the council file its decision in the Supreme Court

registry. Council will not be able to refuse if someone makes the

request. Once council's decision is filed in the registry, it can be

enforced as though it were a court order. Thus, if an employee

continues to defy the order and refuses to go back to work, or if a

trade union officer encourages the members to defy the order, they

leave themselves open to the consequences of a Supreme Court judge

ordering fines or a jail term. I think that it's very important, Madam

Chairman, that people understand just what this does, especially in

light of some of the remarks that have been made in the last few days

regarding Bill 19.

Similarly, if council had ordered an employer to reinstate an

employee in his job and the employer refused to do so — this is for the

protection of the employee — the employee could request the council to

file its order in the Supreme Court registry. Council could not refuse.

If the employer continued to disobey the decision even after it was

filed in the registry, he would be in contempt of court and subject to

the same consequences.

Now I ask the member for Esquimalt–Port Renfrew to tell me what is

so wrong with that when it provides protection for both the employer

and the employee, so that people must obey what the council says. I

would like the member to tell me what is so wrong with that.

[4:30]

MR. SIHOTA: I want to thank the minister for his question.

It's just amazing. I'm going to leave it to my other members here who

are also itching to get up and deal with the matter, but I'm going to

make a couple of comments.

The minister's worried a little bit about contempt of court. In

fact, if anybody right now is showing contempt of court, it's the

Attorney-General (Hon. B.R. Smith) with the matter that he's filed

before the courts right now — total contempt for the courts. Let me

start off by....

MADAM CHAIRMAN: Hon. member, I think perhaps that might not be a proper statement for the House. Would you...?

MR. SIHOTA: Well, going back within the confines of the

section and dealing with it....

MADAM CHAIRMAN: But we don't accuse members in the House. I would ask you to withdraw the statement.

MR. SIHOTA: Sorry. I'll withdraw it, Madam Chairman.

This government seems to have a fix on wanting to throw people in

jail and a real fix on being able to operate with the heavy-handed

instruments that are available to us. It seems to me that those

instruments and those powers ought to be used on limited occasions.

Interjections.

MR. SIHOTA: Look, the answer's very simple. This

section is

in place to expedite intervention by the courts. That's the sole

purpose of this section. Nobody is going to stand up here and suggest

that contempt of court ought to just be allowed to go by the way. If

the board had a concern and felt that its orders were not being

complied with, then it can make an order that the matter go to court

and an order be made. But at the same time the board used to have the

discretionary power to say no and red-light it. It wanted to provide a

red light in cases where it was appropriate to allow the situation to

cool down for a while, to let the boiling dispute simmer for a while,

to allow the parties to talk it out, and as a way of trying to keep the

matter outside of the courts. The board recognized, rightfully, that it

wasn't appropriate for all these types of matters to automatically go

to the courts, so it played a significant role in harmonizing labour

relations in this province and played a significant role in cooling

things down. So it wasn't an automatic right to go to court. Now what

you're doing by this

section is you're taking away that discretionary

power in the hands of the board. If the board had a hang-up, it would

green-light it. If it felt that it was appropriate to cool the

situation down, it would red-light it.

I want to ask the minister, in response to his question, what's

wrong with discretion? What's wrong with providing the Labour Relations

Board with a little bit of discretion? Is he against discretion?

HON. MR. RICHMOND: Nobody on this side of the House, of

course, is against discretion at all. But I think if the member had

been listening when I quoted, this

section is also

[ Page 1529 ]

there for the protection of the employee — the

employee who feels he or she has been wrongly treated — not just

employers. Any party who deems him or herself to be injured can now

request that it be filed with the Supreme Court. Note that although a

council decision or order, when filed with the court registry, becomes

an order of the court, there is one exception to its status as a court

order: no one can appeal it to the B. C. Court of Appeal. That's one

thing that should be added.

But of course, Mr. Member, nobody over here is against discretion in

these things. This doesn't mean, because this

section is in there, that

everything that comes before the council is going to be filed in the

Supreme Court; that will happen only if someone feels they've been

wronged. I think it is time the individual employee in these cases did

have some discretion, so that he or she could feel protected and could

ask that it be filed with the Supreme Court. Not just big management

and big unions have this discretion; now the individual employee will

have some discretion.

MR. MILLER: You know, these little breaks that the Minister

of Labour takes are quite illustrative. In fact, it seems to me to

point out the need for the full cabinet to come in and sit in their

places and take

part in this clause-by-clause debate, because it is

obvious that there is some misunderstanding, at least about how the

Labour Code operates now and why this

section can in fact be an

impediment.

Can the minister not understand that the board having the discretion

is in fact a tool that the board can use to make sure that matters are

resolved at the board level? If the minister can understand that, then

presumably he would be opposed to this clause, because it allows either

party, for whatever purpose, to move the matter away from the board,

which presumably would try to get the two parties to resolve their

differences. It allows either party to move the matter into the courts.

That, quite simply, frustrates the board. The very fact that the board

has the discretion now is a tool in the board's favour and is in fact

an incentive for the parties to resolve the matter at the board level.

You know, simply coming in here and reading the

section out doesn't

display any understanding of the

section or its implications for labour

relations matters at the board level. There has to be a deeper

understanding of what you are doing. I would like to see the full

cabinet here. I would like to see people stand up and take

part in this

debate, as the Minister of Social Services and Housing has just done,

because to me it illustrates one of the fundamental problems we are

facing in debating this legislation with this cabinet. Quite frankly, I

think there is a lack of understanding.

HON. MR. RICHMOND: Well, Madam Chairman, I don't intend to go

on ad nauseam on this, as is done so often from the other side of the

House, but it never fails. That member has fallen back on the same line

as always over there: if we happen to disagree with their stance, then

we simply don't understand. You trot that out every session: "You just

don't understand."

MR. MILLER: Prove me wrong.

HON. MR. RICHMOND: You prove me wrong. "You just don't understand," he says. If we happen to disagree, we just don't understand.

Interjection.

HON. MR. RICHMOND: I understand the clause, Mr. Member. I

have gone through this bill word by word, as part of the legislative

committee and a member of cabinet. I have had it gone over by experts

in the labour field, and I think I understand it probably not as well

as the Minister of Labour, who has lived with it for a long time, but

as well as anyone else in this House.

I resent that being trotted out every time we have a disagreement on

the philosophy of the labour bill: that we just don't understand,

because we happen to disagree with the way you interpret it. I am

telling you that this

section provides for discretion, especially on

the part of the individual. The individual now has some say in what

goes on in a labour dispute, where he or she had precious little before.

MR. LOVICK: Well, there were a number of us on this side of the House

who were anxious to get involved in this debate, but clearly enough time has

been devoted to it. I am not going to prolong matters unduly, however tempting

it might be.

Let me see if I can't just outline for you the concerns. We hear in

this clause and, indeed, in many clauses in this bill, as we have tried

to demonstrate, the sound of marching feet. And the sound of marching

feet is in danger of drowning out the sound of voices.

The predicament here is that once more we have deferred to somebody

else to make the decision as a matter of course. We have invited the

law courts to become a major participant in the scheme as a matter of

course, rather than as — if you'll pardon the pun — a court of last

resort. Recognize, once more, that what this does is effectively tell

organized labour that we are going to have at our disposal, the state

or the authorities or whatever other terminology you care to offer —

recourse to the courts, so that we can make matters that ought to be

negotiated, that ought to be in the realm of industrial relations,

matters that come under the heading of contempt of court.

Recognize that that has the capacity to scare people. Recognize, if

I may use the phrase again, that it is analogous to waving the

proverbial red flag in front of the proverbial bull. Please, please,

please, I would implore this government, finally listen to just that

issue, to just that case we have been presenting to you. We're not

suggesting that there is any necessary point on the part of government

to defer everything to the courts, or something. But recognize how this

kind of provision will be construed. Perception matters a great deal in

this area, as I am sure members opposite know. Sadly, however, they

won't listen to the perceptions we continue to report to them.

My colleagues and I are obviously going to vote against this. We

think we have demonstrated to you good reasons for doing so. Sadly, I

think you are more concerned with, dare I say, scoring debating points

and trying — at least certain members opposite — to personalize issues

and say,"That member opposite never listens to me when I speak," and so

forth, than you are in listening to the concerns we present. I hope

that we will have, if nothing else, a cumulative effect on you, so that

in the other sections of the bill that also talk about directly

involving the courts you will perhaps be predisposed to listen. Sadly,

you have not thus far.

[4:45]

[ Page 1530 ]

Section 20 approved on the following division:

YEAS — 35

Brummet

Savage

Rogers

L. Hanson

Dueck

Richmond

Michael

Parker

Pelton

Loenen

Crandall

De Jong

Rabbitt

Dirks

Peterson

Witch

McCarthy

S. Hagen

Strachan

Couvelier

Davis

R. Fraser

Weisgerber

Jansen

Hewitt

Chalmers

Mowat

Ree

Serwa

Vant

Long

Huberts

Messmer

Jacobsen

S.D. Smith

NAYS — 14

G. Hanson

Barnes

Marzari

Rose

Stupich

Boone

D'Arcy

Gabelmann

Cashore

Smallwood

Lovick

Miller

A. Hagen

Jones

section 21.

MR. GABELMANN: Briefly on

section 21, I'd like the minister's

explanation of the reasons for this change. They may have to do with

the privative clause later on, or they may have to do with a view

relating to what the courts would do with this clause, and I'm curious

if it's either of those or something else.

HON. L. HANSON: We have in this clause limited the power of

the council to determine its own jurisdiction by these amendments. It

will mean that it may exercise only such powers as are given to it by

this statute. The example that I could use is that I think there has

been a case where the LRB has ruled that federally regulated employees

picketing federal undertakings, by provincially regulated employees....

They've assumed jurisdiction for that. We want to make it amply sure

that the jurisdiction of the council is limited to the jurisdictions

outlined in this statute.

MR. GABELMANN: Is the minister then saying that it has no connection whatsoever with the privative clause section?

HON. L. HANSON: I couldn't argue that assumption, Madam

Chairman. Certainly it does have a relationship to the re-enactment of

section 33, and it is a consequential amendment to that section.

MR. MILLER: Could the minister expand on the example he

cited? What was the nature of the problem? What was the problem created

by the board making the ruling it did? You cited an example when you

explained the reason for the amendment; I believe it was the board

ruling on a federally regulated company that was being picketed by a

provincially regulated union. Could the minister explain what serious

problem flowed from that that caused him to bring in the amendment?

HON. L. HANSON: I think the member opposite, my official

critic on the labour bill, is right that it is a consequential

amendment, as it relates to

section 33. But to expand on what I said

earlier, we want to make very clear that the jurisdiction of the board

remains within the confines explicitly outlined in this statute. I

don't know how I can make that much clearer. That's a philosophy that

we have adopted in the legislation. How do you want me to make it

clearer? I think that's a fairly clear statement of the intent.

MR. MILLER: I'm really not talking philosophy here; I'm

seeking the problem that arose. Was it a problem just on paper, or was

it an actual problem that had to be resolved by doing this? What

happened in this dispute? What was wrong with the board doing what it

did, in other words? Not just the fact that they did it — what was

really wrong with it? What brought about the need for a change?

HON. L. HANSON: I can express that quite well in one word:

there was an inconsistency in some of the jurisdictions that the board

had assumed under its ability to determine its own jurisdiction. We as

the government have enacted

section 21 of the bill to ensure that the

jurisdiction is very clear, explicit and simple.

Section 21 approved on division.

section 22.

MR. GABELMANN: This

section gives a party the opportunity as

a right to sue for damages under

part 5, as I read it. This part of the

explanation is really the minister's job, but he hasn't seemed to take

responsibility for telling us what the sections mean. I gather the

minister can't hear me, and I'm sorry. I'm just suggesting that at the

beginning of each of these sections it would be more appropriate if the

minister would tell us what it means, but that responsibility seems to

have fallen on the opposition's shoulders.

What we're debating here is another important element in the

discretion that heretofore was granted to the labour board to effect

appropriate, positive and harmonious industrial relations. The council

will no longer have the discretion to prohibit lawsuits even when the

council feels it is appropriate to prohibit such a lawsuit. Until now,

the labour board was able to consider the industrial relations effect

of such an activity and make a decision in the best interests of

industrial relations. Now, parties will be able, as a matter of right —

without approval from the council — to sue for damages, and there would

be no discretion at all.

In a sense, I guess we have to repeat the arguments of

section 20,

and I don't intend to do that. I don't want us to take that long with

this stuff. But the same arguments apply. By taking away the power of

discretion, the right of discretion on the part of the agency which

governs labour relations, and by putting it into another form where the

participants have no knowledge of the best way of resolving industrial

relations — they're not involved in it at the Supreme Court level — you

leave the potential to poison the relationship between employers and

their employees.

[Mr. Pelton in the chair.]

Until now, the board has had the opportunity to say no; that that matter will not be referred to the courts or allowed to

[ Page 1531 ]

go to the courts for a suit. The whole purpose of

establishing a labour board back in the early 1970s was simply to give

an agency outside of the court structure this kind of authority. When

you take that authority away from them, you may as well not even bother

having that board. The whole purpose of the board in the original Code

was to do just this: to prevent these things from ending up in court,

which poisoned the relationship between employers and employees.

Therefore, we made a conscious decision, by unanimous vote of this

Legislature, that we would take away from the courts the right to

govern labour relations. Now we're putting it right back in, and in

this

section giving parties the right to sue without permission.

All that will happen is that labour relations between parties will

be poisoned and affected badly, in the way they once were, and the

whole justification.... I can understand people not learning from

history when the history was 100 years ago, or even 50 years ago.

Sometimes people can't learn from history if they didn't live it. But

what really baffles me is that we don't seem able to learn from history

that most of us lived through, those of us who lived in this province

in the 1960s and 1970s. Without going into a long to-do about that,

it's unbelievable that we can't learn lessons that are as recent as

that. Given even that the Code's new

section 27, "Purposes and

objects," is not to our liking, the Supreme Court of British Columbia

will not be required to make reference to

section 27 of the Code when

they consider suits for damages. Even with that weakened purposes and

objects clause — weakened in the sense of promoting industrial

relations — which now provides more rights of individuals, th