1995 Legislative Session: 4th Session, 35th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, JUNE 20, 1995

Afternoon Sitting (Part 2)

Volume 21, Number 9

[ Page 15827 ]

The House resumed at 6:36 p.m.

[The Speaker in the chair.]

Hon. G. Clark: I call continued debate in committee stage of Bill 29. In Committee A, I call Committee of Supply for the purposes of debating the estimates of the Ministry of Employment and Investment.

EMPLOYMENT STANDARDS ACT

(continued)

The House in committee on Bill 29; D. Lovick in the chair.

Sections 68 and 69 approved.

section 70.

Hon. D. Miller: I move the amendment to

section 70 standing in my name in Orders of the Day:

[SECTION 70, in the proposed

section 70 by deleting subsection (4) and substituting the following:

(

a) An amount received in trust by the director earns interest at the prescribed rate from the date the amount is deposited in a savings institution to the date of payment to the person entitled.]

The amendment is for clarification that interest is paid on money once it is deposited, not at the point of collection. Deposits must be made in a timely manner by the employment standards branch.

[B. Copping in the chair.]

Amendment approved.

Section 70 as amended approved.

Sections 71 and 72 approved.

section 73.

G. Farrell-Collins: With

section 73 we're now into the part on variances.

Section 73(1)(

a) says: "a majority of the employees who will be affected by the variance are aware of its effect and approve of the application...." Can the minister tell us how that's going to be determined, and what percentage is required to approve it? Is it 50 percent plus one? Is it 65 percent, as earlier? What are the requirements for that variance?

Hon. D. Miller: The question, I think, is how the branch would ensure that a majority of employees.... Upon investigation, they would simply have to be satisfied that in fact a majority of employees approve of the application, and that would be, as the term implies, over 50 percent.

G. Farrell-Collins: A majority is clear to me. I just wanted to make sure that that's where we're headed. The other

section requires 65 percent, and I'm glad this is 50 percent. I could go back to the other

section and make the argument again that if we're talking about a majority of 50 percent plus one in this case, it probably would have made sense to have done that earlier. We disagreed on that section; the minister felt strongly that it should be 65 percent. I think that to have the provision here be parallel, it would have made sense then to have brought that down to 50 percent plus one also. Can the minister tell us how this is going to be determined? What process is going to take place to determine whether or not 50 percent of the employees are in favour, and whether the employer is in favour?

Hon. D. Miller: It's a joint application, so the branch would investigate it and have to be satisfied that the majority exists.

I just want to make a very brief point with respect to the difference between the sections covered here and the nature of the other issue that required 65 percent, which is a shift schedule. These are typically onetime issues, if you like. In terms of good management, a shift

schedule is an enduring issue -- one that people have to deal with day after day after day. I would venture to say that most employers would want to be assured that they have a comfortable majority of employees who are satisfied with the variance to the hours of work, as opposed to some of the issues dealt with here -- special clothing, paydays, minimum daily hours, and those kinds of things, for example. While there may be a difference and members might want to continue to take the position that with respect to variance on the shift

schedule it should be 50 percent, I disagree. I think that for all concerned, everyone is better off with 65 percent in that particular section.

G. Farrell-Collins: Can the minister give me some examples of where these variances might be allowed and what situations would be approved? Obviously, these variances are contradictory to

section 4 and whatever else is in the act that says that you have to adhere to the act. This now says that you don't necessarily have to adhere to the act, if you can get some agreement. I'm just wondering what sort of parameters are going to be provided for that. How wide-ranging is this? Is it hours of work? What limits the amount or extent of the variances that can be put in place through this provision?

Hon. D. Miller: The variances are applicable to the sections listed in this section, subsections (

a) to (i).... Oh, sorry. I was reading from the wrong section.

I think that with any act of this type.... We talked earlier about -- and I tried to describe earlier -- how, in writing a piece of legislation that represents a minimum standard, it is virtually impossible to capture, if you like, every unique circumstance that might exist in terms of a workplace practice or the relationship between employers and employees.

[6:45]

Of necessity -- and obviously this is not new -- there needs to be an opportunity, where circumstances require it, for people to apply for a variance from the act. I think that's something that most people would agree with. Certainly I have not heard any complaints, either from employers or employees, about the opportunity to look at variances to reflect the perhaps unique circumstances that might exist and where it's mutually satisfactory to both the employer and the employees.

G. Farrell-Collins: There are provisions here for the director to put a time limit on a variance. Is there also a

[ Page 15828 ]

provision for this variance to be revisited, either at the instigation of the employer or a majority of employees? Can they kick in, as a group, and opt out at any particular time along the way? Or once it's done, is it done until such time as both parties agree?

Hon. D. Miller: It's under sections 73(3)(

b) and (c). Clearly, it's spelled out where there could be an expiry date for a variance or an attaching of conditions to a variance. I should also point out that these are issues that have heretofore been dealt with in regulations, and that by bringing them into legislation, they're there for all to see, which again is, I think, an improvement.

G. Farrell-Collins: I'm not questioning the minister's argument that it's probably better to put it in legislation; I think he's probably right. The question I had, though, was: once that variance has been decided upon and entered into by the two parties, is there any means by which those two parties -- either unilaterally or in concert -- can go about changing that variance and throwing it out? I suppose together they could just do another variance, but is there any way that one of those two parties -- either the majority of the employees or the employer -- could, by themselves, unilaterally back out of that variance?

Hon. D. Miller: I guess I have just a couple of points. One is that the employer could arbitrarily say: "I no longer wish to operate in that way." The employer's obligation, obviously, is to comply with the act. Let's say it was some of the provisions outlined in

section 72 that were the subject of a variance. As I say, the employer could do that.

The other is a situation that might arise as a result of a complaint that was filed. The branch would obviously have the responsibility to investigate. If, during the course of the investigation, it was determined that in fact the employer and the employees wish to continue with that variance, then that would be the result. Alternatively, if it was the opposite, presumably it would end.

G. Farrell-Collins: The minister has stated that the employer could unilaterally opt out of a variance once it had been entered into. That was my understanding of his comment. Could 50 percent plus one of the employees also opt out of a variance if at any time they felt that it wasn't working to their advantage? Or would they be required to go through a complaint process with the branch?

Hon. D. Miller: Again, it's hard to determine, because obviously we deal with real situations. For argument's sake, let's say that a majority of the employees determine that they don't like the particular variance, and they reach an agreement with the employer; then it would presumably end, with their mutual consent. Alternatively, if that were not successful, they may have the opportunity to file a complaint with the branch and have it dealt with that way.

G. Farrell-Collins: I'm trying to work through the scenarios here, and I think it's important that we do so before it's passed. If the employer can unilaterally opt out of a variance at their discretion but the employees must either seek an agreement with the employer or file a complaint with the branch in order to back out of a variance that they found, subsequent to an agreement, was not working in their best interests, then I would suggest that the bill is probably unbalanced in that regard, unless there's some principled reason one would give that unilateral clout to one side and not the other.

Perhaps we can deal with that. I have a couple of other questions, but perhaps we can try to sort that one out first.

Hon. D. Miller: The opportunity for a variance under the act must meet with the approval of both the employer and the employees -- depending on which section: some, 65 percent; some, a simple majority. In that sense, it deals with mutual interests and the branch being satisfied that those mutual interests in fact are real. But there is still the right, if you like, of management to say in an arbitrary fashion: "I do not want to have a flexible shift schedule. This is the only

schedule I'm prepared to accept, and that's the way things are." The employees can't, in those circumstances in a non-union setting, force the employer to adopt a

schedule that they might prefer.

I hope you appreciate what I'm trying to get at here: the thrust is that the act provides for change, and it provides the process to initiate that change and the requirements of support to be evidenced; but it nowhere compels an employer to agree to a request by employees, whether it's a variable shift

schedule or any of the other issues that can be dealt with under the variance section.

G. Farrell-Collins: Perhaps I'm not making myself clear. What I'm trying to understand is.... If we put in a system of variances where both parties must agree -- the employer and 50 percent plus one of the employees -- and they enter into a variance and decide that that's how they intend to operate, it would seem to me that it would require an agreement amongst the two parties to back out of that variance. There should be some guarantee that, once entered into, the other side will live up to it and won't just arbitrarily back out.

The minister has stated, contrary to that, that the employer may at any time opt out and go back to the standards that exist in this act. They may just arbitrarily say: "I know we had an agreement, but I don't like it anymore; I'm outta here, and we're going back to the old standard." However, the same right is not accorded to the employees. The employees cannot as a group -- 50 percent plus one -- say to the employer: "Look, we've tried this for three months, and it's not working; it's not what we thought we were getting ourselves into.

We don't want to do it anymore; we'd rather go back to what was there before."

I'm asking if, in the minister's mind, that is balanced -- if that's what we're doing. Or is the only recourse for employees who seek a change in that variance, or an elimination of a variance they've already agreed to, to go through a complaint process with the branch and have the director of the branch decide?

Hon. D. Miller: I know there has been a lot of discussion on this. Contrary to some opinion that's still afoot, the act is not a collective agreement for the unorganized, nor should it be looked at as a collective agreement for the unorganized. As I indicated previously, it is simply a set of minimum standards that contain provisions to vary from those minimum standards as set out in the bill by mutual agreement. That does not impinge on what have been determined as management rights, I would argue.

[ Page 15829 ]

For example, if management did not want to enter into a flexible shift schedule, nothing that the employees did could compel management to do so. They could not go to the branch and use the branch as a vehicle to, if you like, initiate a grievance or a complaint. There are issues of so-called management rights that prevail in terms of the operation of any business. Where there is a desire on both parts to change or to vary, then the act lays out the processes and the rules and the thresholds that must be followed.

Where a variance has been entered into, the branch is fairly cognizant.... It really does go back to the 50 percent; I mean, the threshold is 50 percent in this section. Good judgment will tell you that in areas that may be somewhat contentious, if all you've got is 50 percent plus one, you may not have the solid ground to make a change. In those kinds of circumstances the branch has the opportunity to say: "We'll allow this change to take place for a short, defined time to see how people like it, to see whether it works."

If the variance has been granted, and subsequent to that granting the employees determine that it's not something they like or desire, they can initiate a complaint to the branch. If the 50 percent threshold is reached, then presumably the variance would be rescinded.

G. Farrell-Collins: Just so we're clear, then, the employer may withdraw from the variance at any time; the employee group may not withdraw unilaterally but may follow a process whereby they file a complaint with the branch to state that they no longer wish to be part of this variance -- they would like it terminated because they don't think 50 percent plus one of them still agree to it. That would be the process through which they would go. As long as I understand that....

Second, I want to ask the minister.....

Section 73(3) talks about what the director may and may not do. Is there a provision for that to happen at the beginning of the variance? Or may the director enter at any time and append those requirements to that variance?

Is it something that's done up front -- when they sit down, you apply for a variance, and they say: "Here's the time limit we think you should have, and here are some other conditions -- e.g., that you advise me on a three-month basis how it's working?" I don't know what they might be, but whatever they are, are those requirements appended at the beginning, when the variance is initially applied for? Or is there opportunity for the director to step in at any time during that variance and append new restrictions, new requirements or a new expiry date to that variance?

Hon. D. Miller: The conditions that might be attached to the variance, whether they deal with the time or whatever, are really determined at the time the variance is issued. At any time, the director can, of his own volition, intervene if it's the opinion of the director that there's some inconsistency with the intent of the act. As to the conditions, they would apply when the variance was issued.

G. Farrell-Collins: I guess my last round of questions on this

section -- at this point, anyway -- deals with the propagation of these variances. If there becomes a pattern in a sector, or if there is a variance that's obtained by one or more members of an industry, is it more likely that variances will be accepted on an industrywide basis if they so wish?

[7:00]

For example, I'm looking at an employer who has a number of mines around the province, say three or four. There's a variance negotiated and entered into at one mine and then at a second mine, and they find that it's in their best interests to try and do that throughout the whole company, rather than just in one location or another. Is there a provision for that to occur? If so, would it have to be sought individually or could it be done as a collective throughout the whole organization? I guess it really comes down to how you measure the employees affected: are we going to take the broader view or the more narrow localized view?

Hon. D. Miller: In fact, that has been some of the experience of the branch in working with an employer that has employees in a number of jurisdictions all doing essentially the same kind of work. They could be considered as a whole with respect to variances.

G. Farrell-Collins: In this case, then, an employer -- or employee groups, for that matter, but it would most likely be the employer -- could go to the branch and say: "Rather than do this at one mine or another mine, we'd rather have this variance right across. It's much easier for us with regard to accounting purposes -- keeping track of holidays, those sorts of things." They could apply for that variance throughout the whole organization and then have that vote taken amongst the employees -- 50 percent plus one -- and it would be 50 percent plus one of the employees at all of the locations.

Hon. D. Miller: That's correct -- if we're talking about a single employer, not a multi-employer.

L. Fox: Subsection 73(1) states:

"The director may vary a time period or requirement specified in an application under

section 72 if the director is satisfied after an investigation, that (

a) a majority of the employees who will be affected by the variance are aware of its effect and approve of the application, and (

b) the variance is consistent with the intent of this Act."

Is the investigation referred to in the top paragraph based on only the conditions of sub-subsections (

a) and (b), or is it something more than that?

Hon. D. Miller: I think the two capture it. One deals with the majority; the second deals with the director's ability to determine whether the variance is consistent with the intent of the act.

L. Fox: With that in mind, I'd like to propose an amendment that I think would clear that up. The amendment I propose is to subsection (1): that we delete the words "after an investigation."

I'd just like to speak to that for a moment. It seems that if you read it without that in there.... "The director may vary a time period or requirement specified in an application under

section 72 if the director is satisfied...that..." and then it goes on to state the two specifics under (

a) and (b). It makes it very clear that in order to satisfy himself that (

a) and (

b) are being complied with, there would have to be some investigation for him to do that. But by specifying it, it points out that perhaps there's something more than just (

a) and (

b) that is going to be investigated. It reads a lot clearer with this amendment and is more specific and clear in its intent.

On the amendment.

[ Page 15830 ]

Hon. D. Miller: The deletion certainly doesn't, if you like, impair the director in carrying out his duties. But at the same time, you know, it's maybe a moot point here with respect to language -- neither does the current language, the current wording, describe in detail the type of investigation or how the director needs to be satisfied that the conditions under (

a) and (

b) are okay. So the current wording doesn't do any harm. In fact, some might say it gives a bit of comfort that at least there is an onus on the director to conduct some type of investigation; it can't simply be a matter of opinion.

So I don't see, in going through this, the need to pursue an amendment such as the one you've described. I don't think it adds or detracts in any way. I'm satisfied that the wording here is satisfactory.

L. Fox: I take it from this that the minister understands and respects the intent of it, but the concern I have has been given to me by a number of individuals -- not a lot, admittedly. They're somewhat concerned about what kind of investigation would be necessary. It leaves it a little more open and more confusing with that in there.

But if it's merely that the director is satisfied that (

a) and (

b) are complied with, it seems to me to be pretty explicit that in order for the director to satisfy himself or herself that those conditions are being met, they would have to do some kind of investigation to satisfy themselves of that. So I really think it's a redundant statement. It implies something more than what it's intended to do.

Interjection.

J. Tyabji: I'd like to speak in favour of the amendment, mainly because.... I should put a proviso on it. Later on, we're going to be talking about the arbitrary determinations of the director. But having said that, the act primarily, in talking about investigations, is quite clear that investigations are triggered by a complaint. That's probably where the member for Prince George-Omineca....

Hon. D. Miller: No, that's a different proposition.

J. Tyabji: The minister is saying no. But later on in the bill, everything we're talking about in investigation is about the director following up on something and investigating many, many different items. So it probably is a good idea, to make it consistent with the rest of the bill, to just have the director satisfied.

G. Farrell-Collins: I wouldn't take the minister's side on this one, and there's a reason why. I want to explain. It's as important as the two arguments that have been made already. It's that the whole act has to be read as a whole act. If one looks through the other sections, there are many occasions where the phrase.... I've just in the last 30 seconds flipped through here and found four. Here's another one,

section 37(3)(b): "the director is satisfied that the employer...." Another one was section.... I don't know; I had a whole bunch of them here. In just flipping through the act, one can see a whole bunch of places where it's merely required that the director be satisfied. By including this section, any decent lawyer could stand up and argue that in this case, by including "after an investigation," there must actually be a formal investigation. It's over and above that which is required in dozens of other places in the act, and therefore an actual, formal investigation must take place.

Aside from just getting submissions and maybe talking on the phone, something over and above what would normally be inspected is required just to satisfy him or her that these requirements have been met.

That is probably a more pressing argument for excluding the word "investigation." I hadn't thought of it, but I think it's a good comment by the member for Prince George-Omineca. Taken in the context of the argument made by the member for Okanagan East and the argument that I just made, the case can be made that by including the words "after an investigation," you are directing by legislation that a formal investigation take place before this variance exists.

The employee group could come back to you and state that it wasn't an accurate or real variance, because not all the criteria had been met. In fact, there could well be some liability accrued to the director, and through that to the government, for not actually performing a formal investigation. If the employees were to decide after a period of time that this wasn't working in their interests, and they were losing out on overtime pay because of what was included in this act, they may come back to the ministry.

A smart lawyer -- in fact, a smart union organizer -- may come back to the branch and say: "You did not do due diligence. This act specifies that you must do an investigation and be satisfied. Did you do an investigation?"

"Well, I looked at the submissions and made a phone call, but I didn't do a formal investigation as described elsewhere in the act."

The director could be found negligent and perhaps liable for any overtime pay or benefit that may have failed to accrue to the employees as a result of this variance. It's a significant issue to be discussed, and I'd like to hear how the minister responds to that.

Hon. D. Miller: I'm overwhelmed by the arguments being presented opposite, particularly one set of arguments that refers to decent and smart lawyers. I'm sure the two are not mutually exclusive -- nor are any of the other adjectives that might be used to describe lawyers.

I feel a little uneasy about taking this out. I'm a cautious, conservative type of person myself. Given the arguments made by members opposite, I should say that I'm satisfied that the removal of those three words will not impair the section. Perhaps I can go on record -- and I obviously will, because I'm talking and it's being written down -- that I am a touch reluctant. Nonetheless, having listened closely to the arguments of members opposite, I'm prepared to.... I can't recall. Was a formal amendment moved?

An Hon. Member: Yes.

Hon. D. Miller: It was? Okay. In that case, I'm prepared to accept the amendment put forward by the member for Prince George-Omineca to delete the words "after an investigation."

Amendment approved.

section 73 as amended.

G. Farrell-Collins: The minister warns us that he's not getting soft on this. I do want to say that the victories in

[ Page 15831 ]

opposition are often minuscule. The member for Prince George-Omineca should be happy with that. It is a small amendment, but I want to also say that the intent from the opposition's point of view is not to impair the

section in any way. I think we've, perhaps, headed off even one complaint three years down the road. I think that's probably a good decision.

J. Tyabji: On this amended section, we note that....

Interjection.

J. Tyabji: I haven't had a chance to speak to this

section yet. I'm certainly lucky I missed

section 71 on the adjustment committee; I had a few questions on that.

With respect to this section, we note that the powers of the director to specify variances are creeping in. Of course, later in the act, we get into

section 79, with sweeping powers of the director.

In subsection (3), where we talk about the specification of a variance, what I find interesting is that the minister may, by regulation, make exemptions to the act. And the minister may -- for example, in agriculture or with paper carriers, and all the different areas that the minister has chosen to exempt -- for the purposes of allowing that sector of the economy to function well, make exemptions or exceptions to certain parts of the act or to the act.

Under this section, we see the opportunity for the employer and the employee to do something similar to what the minister is doing, and that is to come together, come to an agreement and then make an application to the director. The director, as the minister's representative, is going to allow some form of exemption or variance -- exemption being too strong a word.

[7:15]

What I think is interesting about subsection (3) is that when you read subsections (1) and (2), you'll see that, first, the employer and the employee have to come together and come to an agreement on something. The director has to be satisfied that it's a majority and that it's consistent with the intent of the act, and then the director can accept that variance. But there's even more of a provision in here for the director. The director may not only do that but may also arbitrarily change it. And that's what I find interesting under subsection (3), where the director may specify that it "applies only to one or more of the employer's employees, (

b) specify an expiry date...and, (

c) attach any conditions...." We're saying that with the minimum amount of power that the employer and the employee have to come to an agreement that is consistent with the intent of the act, and that may, for the purposes of this act, need a little more flexibility, the director may still come and impose conditions.

I guess one question that comes up is, in the event of us having a director who may.... I brought this for the minister: Time magazine's "Welcome to Cyberspace" edition, for our comments from the last debate about the changing work environment. Reading through some of the changes in the work environment, I would note that there are going to be times when the director may not be that familiar with what's going on in the marketplace or the workplace.

In the event of the director specifying conditions to the applied variance that the employer and employee have come up with, and that becoming a determination -- which is under subsection (4); this is a determination of the director -- are any of these determinations eligible for a hearing in front of the Employment Standards Tribunal, which is created in

part 10?

Hon. D. Miller: Believe it or not, I occasionally get the feeling I'm in cyberspace in here.

If a complaint is filed and an order issued by the director, that is appealable to the tribunal that will be established under the act.

J. Tyabji: Just to make this clear, if there's an application for a variance, it's very specific; the director imposes conditions on that. The employer and employee may take that determination to the Employment Standards Tribunal and say: "This is what we asked for; this is what we got. We still want what we first asked for." They will get a hearing if the tribunal decides to hear it.

Hon. D. Miller: That's correct.

Section 73 as amended approved.

section 74.

G. Farrell-Collins: We're into

part 10 now, the "Complaints, Investigations and Determinations" portion of the act.

Section 74(1) states: "An employee, former employee or other person may complain to the director that a person has contravened..." essentially any portions of the act, or parts 2 to 8 of the act, or any requirements under.... Essentially, what's there is that it's not just up to an employee or a former employee to complain that something has been violated: it throws the doors open to others to complain also. Perhaps the minister can explain why that requirement is necessary.

I do know that history has shown that this tool has been used in other jurisdictions, fairly aggressively in some cases, by organizers as a form of harassment of an employer during an organization drive -- a certification drive. Can the minister tell me what rationale he has, other than that, for inclusion of this in the act, and if he is at all worried that that type of aggressive use of this provision may well occur in this province?

Hon. D. Miller: First of all, there's no prohibition in the existing act of third parties activating complaints, and it has not proven to be a particular problem. One circumstance that readily comes to mind is parents. If a parent thinks their child is being exploited unduly and the act is not being applied, they have the ability as parents to file complaints or to initiate a complaint to the director.

G. Farrell-Collins: Perhaps this is a better estimates question, because I doubt that you have the statistics here. But given the minister's comments that there is no prohibition in the current legislation that precludes any other individual from filing or making a complaint, do you have any idea of the number of other individuals, compared to employees, who would be complaining? In this province anyway, to the best knowledge of the minister or the deputy or any of the staff, has a complaint ever come forward as to the use of that provision as a harassment technique?

Hon. D. Miller: No, none of my staff are aware of any particular problems associated with the current wording of

[ Page 15832 ]

the act. As I say, we've rewritten it; it's a little clearer. The current wording has no prohibition on third parties, and we're not aware of any particular problems that have arisen as a result of that.

L. Fox: Just one follow-up question: I wonder if the employer could be considered under the category of "other persons" if he or she had difficulty with one of the employees contravening the conditions of the act.

Hon. D. Miller: I will draw the member's attention, hon. Chair, to an answer I gave previously. This is not a collective agreement; it is a set of minimum standards that prescribes, for example -- whether you're dealing with variances or whatever -- how the act is applied and administered. It's not

an act that will allow parties to use the branch or the director as an arbiter in terms of grievances or complaints that they may have between themselves on any particular issue.

G. Farrell-Collins: In the same vein as the last question.... There are numerous provisions within this act that require the employer to either not allow or to ensure that an employee does or does not do things -- i.e., does not work a certain number of hours, to ensure that.... It's not just that the employer can't ask the employee to work an excess number of hours but that they must ensure that the employee does not do that.

I can think of a number of more or less unsupervised workplaces -- the sales business and others -- where the employer isn't right there with the employee all the time to physically ensure that the employee goes home. We have all, I think, if we've been part of an organization or had employees.... There always seem to be those one or two people who think they're doing you a great service by working 16 hours a day, and you have to constantly go by and tell them to go home or to.... Well, the minister has never experienced that, but I have -- employees who are very diligent and really want to work hard and who, in many cases, give up their lives outside of work to try to....

Interjection.

G. Farrell-Collins: Sort of like this job, yeah. Constituents could hear from a number of MLAs, I think, with regard to putting in 20 hours on many days.

So there are often cases where an employer has to continually go back to an employee and say: "Look, I told you to go home. What do you want me to do, lock you out of your office?" It could happen that an employer is put at risk financially through this act. Is there any way -- aside from firing the person, which you obviously don't want to do -- that an employer can insulate themselves from that?

Certainly a complaint from a co-worker could happen: "This worker is working too hard; they think they are getting ahead. I don't want to work 16 hours a day, but this person is. They're getting ahead of me." The co-worker could file a complaint with the employment standards branch stating that the employer is letting this person work too many hours. Is there any way an employer can insulate themselves from that by dropping a note to the employment standards branch and saying: "Look, I have somebody here that I just can't send home; I don't want to end up in a difficult situation somewhere down the line"?

It's not a formal complaint, but at least it's an advisory note that they have an employee who is -- complaint of complaints -- working too hard.

Hon. D. Miller: I'm not sure it's a problem that is that widespread, but perhaps I'm wrong. In any event, employers are quite free to phone the branch to try to get some advice in terms of how they might handle that. But the relationship between the employer and the employee is really just that. In most cases, the act will not be applicable in those kinds of circumstances. It's up to the employer to try to resolve any particular problems he has with employees showing up and working endless hours.

J. Tyabji: Under 74(4), the minister has put a six-month time limit on a complaint, which is a good idea. We think we want to have some time limits. But what I find interesting is that when we look up sections 8, 10 and 11, we're talking about specific acts that may occur -- for example,

section 8: "No false representations";

section 10: "No charge for hiring or providing information"; and

section 11: "No fees to other persons."

This isn't going to be the main part of my questions on this section, but what I find interesting is what would happen in a case -- and sometimes this is the case -- where someone who contravenes the act.... An individual might encounter that and not realize that there are other people who have encountered that as well. It might take some time before they realize that it wasn't an isolated incident, that there has been more than one incident. Would there be consideration given to activities under sections 8, 10 or 11 that could be taken into account for a complaint?

There is a very specific expiry date, and I'm just curious to see what would happen if there were a series of actions that had occurred over a period of time.

Hon. D. Miller: Essentially, there is no extension of the time limit for filing complaints.

J. Tyabji: That wasn't quite my question, but that's fine; I'm not going to push it.

I note that under 74(1) we talk about "an employee, former employee or other person." I'm assuming that "other person" includes absolutely anyone in the province who "may complain to the director that a person has contravened" -- and then we say -- "a requirement of Parts 2 to 8." Well,

part 2, which is the "purposes" section, is absolutely wide-open. There is no consideration of the fact that the other person perhaps has less knowledge of how an employer could have contravened

part 2 than a former or current employee has. I find it interesting that we don't specify that there should be some direct knowledge, or something, that would justify the kind of investigation that would occur later on.

When we go through parts 2 through 8, there is a lot of latitude for complaint. I think it's important to raise a concern about this

section that basically anyone can make a complaint about almost anything. Obviously, we want to have some protection for workers, but at the same time, we have to remember that employers are going to end up on the hook if -- as happens in a minority of cases -- we have a squeaky wheel.

I think what I'd like to speak to for a second is that although we have had a very friendly debate so far, and I

[ Page 15833 ]

think we have commended.... The member for Fort Langley-Aldergrove has called division on some sections where we are all in agreement on good aspects of this bill. Notwithstanding that, there has to be a balance in this

section for the employer, and I note that although there is a time limit of six months for a complaint, there is no time limit for the investigation, the proceedings of the investigation and the reporting out of the investigation.

When we go through

part 10, there are some specifics about how the determination comes about, but there's no time limit. What we would have liked to see in

section 74 is some allowance to say, for example, that once it has been filed, notice will be given to the person who is the subject of the complaint within seven business days of a complaint being filed. So you couldn't have the director launch an investigation, for example -- which the director is under an obligation to do -- without some provision in law for the person who's the subject of that investigation to be notified. We know that in the next

section we talk about confidentiality. The minister has quite properly built in protection for people who want to be able to register a complaint without fear of retaliation. But for the employer, who may be the subject of this, there's no protection at all for notification or procedure. There may be something in regulation coming later, but it's....

[7:30]

Of course, we know that we don't debate the regulations, and I find it interesting that we have some very specific provisions in the bill, which is in legislation, for all the other protections. If the minister is going to say, "We may have time limits coming up by regulation," then why wasn't it in the bill? Why isn't there something in here that would say that the person involved will be notified if it's relevant? If it will be disclosed to the person and they will be notified of the nature of the complaint, then certainly the nature of the complaint should be provided within a certain time limit. With that being the

section on the time limit, I don't know why that hasn't been done.

Most importantly, I think that sometimes what happens when these things go on, as the minister may be aware, is that there will be a negative public relations campaign that will accompany it. Rightly or wrongly, unfortunately, sometimes the media will take one side or the other, and until the investigation is reported out, whichever side is taken in the popular press will be the side that will prevail. That could have very serious implications on the business person.

So that's what I'd like to speak to. Why were there no statutory time limits for the director notifying the person, providing the subject matter of the complaint and giving the person who is the subject of the complaint some idea about how the procedure will advance from there?

[D. Lovick in the chair.]

Hon. D. Miller: With all due respect, we are really covering, in a general sense, about three sections in this discussion. Under

section 74, the act says that a complaint must be filed within six months after the last day of employment. Those are hard-and-fast rules with respect to filing complaints. Other issues the member has canvassed are dealt with in succeeding sections -- sections 75, 76 and 77 -- and while the member may indeed feel that there should be the ability to extend the time when complaints can be made, we have not done it in the act. Obviously, there has to be a limit at some point. One has to draw the line, and six months seemed to be a reasonable period of time.

J. Tyabji: I don't know if the minister heard a word I said. Okay, two questions ago I put the question about the six-month situation. The last question was about this section, which is headed: "Complaint and time limit." There was a request for a time limit under which the person who is the subject of complaint would be notified that the director had received a complaint, notified about whether or not an investigation was going to proceed and given some idea of the subject matter of the complaint. So let's just keep it simple. Those are three things. Why were there no time limits for that?

Hon. D. Miller: With all due respect,

section 77 deals specifically with notification of a person under investigation. All I tried to point out was that the member was canvassing about three or four sections, and that I want to do it one at a time. So I think we should just deal with

section 74 and move on. I'm sure that the member's questions that are germane to succeeding sections will be answered.

J. Tyabji: I don't care which

section we ask it under; it's just that the heading of time limit....

Hon. D. Miller: There are rules, that's all.

J. Tyabji: The minister is not really being particularly truthful.

Section 77 is not about how long you have until you notify someone that they're under investigation. It talks about their response, and I'm assuming that's at the point where the investigator has already begun the investigation. What I'm asking is that under

section 74, where we talk about filing a complaint, there could easily have been a subsection (5), that upon receipt of a complaint by the director, the person who is the subject of the complaint shall be notified within seven days.

That's the sort of thing I'm talking about. It's the kind of protection that employers like to have so that they don't suddenly find that an investigation has been underway for three months, and they're suddenly asked to respond within four days, which has happened. When we get to the later sections and when we get to

part 12, we'll find out why it's really important to actually build in within the statute some protection for the employer. Otherwise, it's wide-open. The minister clearly doesn't understand that. I can get up and ask again under

section 77, but it isn't quite what I was asking.

Hon. D. Miller: I don't wish to jeopardize the ability of the branch to investigate complaints that are launched under the Employment Standards Act by restricting them in the manner the member has talked about. In fact, that might be the case. By putting limits, for example, when people have to be notified and others.... The branch operates -- and is a very hard-working branch that, in my view, is overworked.... There is a general notion afoot these days in British Columbia -- and it's occasionally raised in a political context -- that we have far too many civil servants, and that we should cut back on our expenditures and on the number of people we employ to conduct these issues.

If we tried to be too narrow in a bill, we could jeopardize investigations that the branch wanted to carry out, because it

[ Page 15834 ]

might not be able to meet the kinds of time limits that the member is suggesting. I wouldn't want to have that kind of situation. The current act talks about six months. This one is the same, and there are other provisions dealing with complainants requesting confidentiality, investigations after or without a complaint and opportunity to respond. It is all laid out. We have chosen six months. We have been consistent with the existing act, and we're not going to change.

J. Tyabji: The six-month issue is not what I'm talking about. I don't want to belabour the point, but I would like to say to the minister that I wasn't saying the investigation could not proceed until the person had been served with notice. That is a different request. It actually isn't a bad idea, but I understand that it would hamper the director.

What I was asking for was something as simple as electronic mail. It's a computer system that's set up; it's a form letter. They have it in every other branch of government, including this minister's. It just means that a complaint comes in and a letter is fired out, and there's no provision for that. It just means that the person who is the subject of the complaint is notified, and because there will probably be an investigation, if we wait for the director....

As the minister said, the directors are often overworked; they've got a lot on their plates. It provides the director with some protection that he's not going to end up with a really angry person on the end of the phone when he finally gives them a call and says: "By the way, I've been investigating this complaint for four months, and now it's your turn to answer some questions. I've given you a reasonable time -- you've got a few weeks." That's what this is about. I'm not going to belabour the point, but it's not about restricting the investigation, creating more work or halting the process of government. It's just about letting them know that a complaint has been received.

Section 74 approved.

section 75.

J. Tyabji: Subsection (1) says: "...the director must not disclose any identifying information about the complainant unless (

a) the disclosure is necessary for the purposes of a proceeding under this Act...." I'm curious. The minister has clearly written it so that unless otherwise necessary, there will not be disclosure of who has registered the complaint -- at least, that's the way I read it. Is there a reason for that? Would the identity of the complainant automatically be confidential unless the minister or a

section of the act requires disclosure?

Hon. D. Miller: The act says: "If requested in writing by a complainant, the director...."

Section 75 approved.

section 76.

J. Tyabji: I'm just being a squeaky wheel on the same time-limit provision I asked for under

section 74. Under

section 74, we were specifically asking for notification. In this one, there's no closed end for reporting out. So the question is: will there be specific time limits in a regulation for some method of reporting out, and some way of keeping the parties to the complaint or investigation informed about what the status is?

Hon. D. Miller: No.

J. Tyabji: Is there a reason why there's no time limit? If the minister feels this is somehow frivolous questioning, that's really unfortunate, because surely to goodness the minister has received the same letters we've received on the opposition side. I can't speak for the other members, but I've seen whom all the letters are copied to. My name isn't at the top of the list, given my status in this Legislature.

So if I'm getting this amount of letters about how closed things are in terms of process and how frustratingly slow government is, I would hope that the minister has some awareness about the frustration that business feels when anyone.... We have to have the protection that anyone can launch a complaint about anything. We need that protection. But where's the protection for the employer under

section 76? They need it so that they don't get tied up in court, they don't get bankrupted by legal proceedings or litigation and they don't feel like they're being harassed by a particularly vengeful former employee. To what extent is there any protection in

section 76 for employers so that they won't be left in limbo for three or four years?

Hon. D. Miller: My staff advise me that generally employers are fairly complimentary with respect to the timeliness of investigations by the branch. It has not been identified as a problem, and it wasn't identified as a problem during the Thompson review. So I'm satisfied that the

section deals with the situation adequately.

J. Tyabji: So the minister is saying that so far in the history of the director's work, there have not been significant complaints about the time limit for reporting out. Is that correct? He disagrees with me that there's been a problem.

Hon. D. Miller: That's correct, and in addition to that, there's a fundamental point that I think is very, very important. We do not want to lose the ability to investigate complaints, simply because we have not complied in the strictest sense with some arbitrarily imposed time limits about how long it should take to do an investigation. That would be contrary to the best interests of the individuals who use the act for their protection, whether they be employers or employees.

Speaking of mail, the last letter I received with respect to the Employment Standards Act was one I signed just earlier today to an individual who will now be in receipt of over $10,000 in unpaid wages as a result of work done by the branch. So I think they're doing a fairly good job.

G. Farrell-Collins: It was overtime for the last session.

Hon. D. Miller: My hon. critic says that it was overtime for the last session.

Hon. Speaker, I do believe we really have canvassed this quite thoroughly.

J. Tyabji: I guess the minister and I have to disagree about whether we've canvassed this thoroughly.

[ Page 15835 ]

The reason I'm pushing for this time limit is that there are a few things that are new in this bill. We have an Employment Standards Tribunal, and under

section 79, we have a very contentious

section on determination of the director. In addition to that, what I think the minister is missing -- and this could be just a philosophical difference -- is that the director is, in effect, the investigator, the judge and the jury. The director will be setting the

schedule of penalties and making the determinations, but those determinations shall have precedence over determinations in a court of law. In fact, when we go on in the bill, we'll find that the ruling of the tribunal is final. So unlike the court system system -- where it has to be a public process, where time limits are set, where there are methods of applying for extensions of those limits and where there is a system of justice -- this is completely closed. We have a government employee who's going to have full power over employers. That's basically what it is.

Later on, I'm sure we're going to come back to the philosophical difference that we in the Progressive Democratic Alliance have with adjudicating bodies that exist in the bureaucracy where there is no right of public input, public hearing or, in this case, appeal to a court of the public justice system. That's incredible power.

I'm not asking for the minister to suddenly say that if you don't make it within this narrow window, you're closed. What I'm saying is: let's apply the same standards that we have in our court system. It's not that people are out championing the court system as the perfect model of justice, but it's better than this. Let's look at the fact that our court system, which was set up to protect the greater interests of the people of British Columbia, is the last avenue of power in this province; it is more powerful than this assembly. We may provide guidance to the courts, but the courts will be the ones pronouncing the

interpretation and determination of the law. The court system has a very strict set of time limits.

[7:45]

When the minister stands up and says, "We don't want to set arbitrary standards; we don't want to be preventing justice," it's quite the opposite. The scales of justice will insist that there be protections in there for employers. The employers must have some confidence that within a certain period of time whatever worries or fears or concerns they have will be met. The minister can make it exactly the same model that we have in the justice system.

If you don't make it within this set period of time, you can apply for a longer period, provided that you have some reason: you say that your workload has been too long, or whatever. We know how slow the court system is. What the minister is saying is that they don't even have to meet that.

Even if this minister is satisfied that his staff are not having a problem in terms of time limits, he has no idea what the next government or the government after that may put in place. By that time, people may stand up and say: "It hasn't been a problem for ten years. Why should we try to introduce some sort of time limit now?" That's what I'm talking to.

It's obviously a philosophical difference. The minister, in the tradition of this government, doesn't mind a dictatorship, provided that they are the ones who are determining how that works. It may have worked fine up to this point; that doesn't mean it's going to work fine in the future. A time limit is a reasonable request to ensure that the employer's needs are met in the investigation process -- especially as we meet the tribunal later on and the determination under

section 79.

Hon. D. Miller: Just to advise you, hon, Chair, there are no time limits on court decisions.

I think we've canvassed the

section quite thoroughly.

L. Fox: In a slightly different vein, 76(3) says: "Without receiving a complaint, the director may conduct an investigation to ensure compliance with this Act." I can understand part of the rationale behind that. Perhaps, if there is a history within a corporation of non-compliance with employment standards, I can see that coming to be. Earlier we discussed the issue that I could see of more and more requirements in terms of paperwork for small business.

I'm wondering a couple of things. Would whether or not there were signed slips of paper in the payroll book around the variance issues be a consideration that this director would be investigating? If a corporation were found to be not fully in compliance with some of the requirements of the act, what authority does the director have, if any, given that no complaints have come out of that particular business?

Hon. D. Miller: This

section of the act has existed for decades. I can't recall that there has been any particular problem with it. In any event, if the director undertakes certain actions and issues certain directives, they are appealable. I don't think the member's fears are based on anything.

J. Tyabji: I just want to put on the record that I don't know where the minister got his information about the court system. Most clearly, there are very specific rules of court. There are two binders full of them. I'm sure the Attorney General would be happy to provide him with that information. In the court system, if you miss that time limit and you haven't made an application for an extension, you're out of luck.

In fact, we just debated some amendments to the Attorney General's statutes that would allow them to clean up the books if people didn't comply with the rules, and they wouldn't even have to make an application. So it is very specific. And it's a reasonable request for this model.

Hon. D. Miller: Gee, really. The member talked about wanting to change the language to ensure that the branch had to issue decisions in a timely way. The courts are not under any rules with respect to the timeliness of their decisions. There are court cases that have been heard years past...where the courts have still not rendered decisions.

Interjection.

Hon. D. Miller: We have gone around and around and around on this section, so I'm prepared to vote on it.

L. Fox: One more time. I understand it's getting late, and we've been debating a lot of clauses.

Hon. D. Miller: That's right. Everybody go somewhere else.

L. Fox: I'm not trying to delay the system.

The minister suggested that clause (3) has been in the existing act and has never been a problem. The only observation I make is the fact that there weren't the stringent requirements in terms of paperwork in the existing employment

[ Page 15836 ]

standards, so my concern was whether we'd see a resurgence. In fact, I've never seen this clause exercised, to be quite honest, in the old act.

I guess my concern is that, given the added responsibility of an employer to comply with written requests and all the rest of it, is that going to see more situations where under this

section we'd see a director enter a business -- which may never have had an employee complaint -- just to review payroll records and see whether they're complying with the standards of the act? That was the concern and the reason I asked the question.

Hon. D. Miller: The branch used to be, in the old days, much more proactive. They used to do routine audits, not because there was any cause to believe anything was wrong, but they simply as a matter of routine. That doesn't take place now. The resources are stretched pretty thin. So I repeat, the member's concerns with respect to the potential impact really are not grounded in anything that will happen as a result of this legislation and this section, which remains unchanged.

Sections 76 to 78 inclusive approved.

section 79.

J. Tyabji: Obviously,

section 79 is going to be a contentious

section for members of the opposition. We have a lot of powers being given to the director. I don't need to repeat myself from the previous

section about why we think there should be some safeguards built into this. Will there be some parameters of this so-called satisfaction, or the fact that the director has to be satisfied, built into the regulations? Or will it be at the full discretion of the director?

Hon. D. Miller: There are really only two new sections to this from the old act. They are subsection (3)(c), where the director can impose a penalty on a person under

section 98 -- that's a new provision discussed mostly in second reading, the penalty provisions that some employers supported -- and under subsection (5)(b), with respect to the issue of a flexible work

schedule under sections 37 and 38.

J. Tyabji: Perhaps the minister was consulting and didn't hear the question. The question is: in the regulations, will there be a provision or a definition of how the director will be satisfied for the purposes of this section? What will be the process to get to that, and to get to outlining the method of investigation?

Hon. D. Miller: It's the process of investigating complaints and making determinations that has been used by the branch for many years, and obviously those are appealable.

J. Tyabji: The minister has mentioned that under subsection (3) we have a provision now for the director to impose a penalty under

section 98, which obviously we'll get to later on. Why was that put in there? I think later on.... It's interesting, because the act is quite clear in trying to prevent the director from being in a conflict of interest with respect to the administration of penalties. Yet the director sets up the

schedule of penalties, and under

section 79 the director can impose the penalties. So why was this added to this

section of the bill? Why was this changed? I think that question will become more important as we move on in the bill.

Hon. D. Miller: Under the terms of the act, the only redress for a particular complaint that's found to be valid is to redress the situation -- if it's an unpaid wage issue, by paying those wages. There is nothing in the act that deals with people who are frequent abusers of the act. In submissions to Professor Thompson there was general agreement that penalty provisions could be used, if you like, where there have been repeat offenders. The employers generally supported that on the basis that they wanted to have those repeat offenders isolated and singled out. That's the purpose of the penalty section.

Sections 79 and 80 approved.

section 81.

J. Tyabji: With respect to notifying others, obviously this is similar to the concerns I raised earlier. Here we see a time limit and process for appealing determination. But at this point, in

section 81, is where the director clearly has completed an investigation, has come to a decision, has made a determination, and now must serve. Now we see the language that I'd asked for in the earlier sections: must serve the person with a copy of the determination. I don't see anything in here that would allow.... For example, if a very large determination has been done.... If the employer isn't planning to appeal but is planning to pay out the amount that's been adjudged against him or her, I suppose that would also include a penalty, if a penalty applied. Is there a negotiation process with the director to determine a

schedule of payment? How will that work in this section?

Hon. D. Miller: Yes, that is possible.

J. Tyabji: In this section, is it possible that that would be the first time the person would be aware that there is an investigation ongoing?

Hon. D. Miller: I refer the member back to

section 77.

J. Tyabji: I know

section 77 is the reference to "reasonable," so I'm assuming the minister is saying that it would not be reasonable for the person to not have been contacted prior to the determination being made.

Section 81 approved.

section 82.

J. Tyabji: Could the minister explain what "another proceeding" might be? Is this another proceeding under this act?

Hon. D. Miller: No, it's other avenues that may be available -- for example, the courts.

Section 82 approved.

section 83.

L. Fox: I would just make note that in

section 83, it would appear that.... Previously we discussed the clause in

section 74(2) that if an individual employee was frivolous in their process and found by the director to be such, this

section still

[ Page 15837 ]

allows that employee to maintain his or her job. But if, for instance, there were continuous actions by an employee, and the director constantly had to discard this because it was seen as frivolous or trivial but was causing a disruption in the workplace, shouldn't the employer have the right to fire that employee to deal with the overall better good of the workplace for the other employees? Subsection (1) says: "An employer must not (

a) refuse to employ or refuse to continue to employ a person...." But it makes no allowance under this legislation for a continual, frivolous or trivial pursuit under this legislation by an employee.

To that end, I would propose an amendment for the minister's consideration that would add (3) to

section 83. It would read: "Should a director determine that a complaint is frivolous, vexatious or trivial, as referred to in

section 76(2), then subsection (1) of this

section shall not apply."

On the amendment.

J. Tyabji: On a point of order, is it possible in committee to direct questions to the mover of an amendment?

The Chair: No.

J. Tyabji: Okay. Then perhaps if I speak to the amendment, my questions might become obvious.

It's my reading of this amendment that it would in effect empower the employer to refuse to employ, threaten to dismiss or basically discriminate against someone who may have filed a trivial or vexatious complaint. I would almost think that it would have to be the conclusion of the investigation that would determine if it were a vexatious complaint in the first place. If that were the case, then it would be after the fact, so I'm not sure how the amendment works.

[8:00]

The Chair: I think the minister has now had an opportunity to review the amendment, and therefore I'll turn to him.

Hon. D. Miller: The amendment is really not required. As I read it, it gives authorization to fire an employee and is not something that has a place in this act. If an employer has a problem with an employee, regardless of what the problem is -- whether it's dealing with complaints that the employee may have filed under this act or with attendance or any other matter -- that is an issue between employer and employee. This is not a collective agreement, as I have indicated on a number of occasions now. Under

section 76, the director is able to determine whether complaints fall under the frivolous, vexatious or trivial category.

With respect to somebody continually using the act for reasons of their own, this

section is not intended to deal with that at all. It simply says that where an employee uses the act to file a complaint about whatever it might be, the employer, in response to the employee doing this, cannot threaten them, use dismissal or refuse to employ, etc. In the event that an employer was sufficiently dissatisfied with an employee over whatever issue, I assume that is an issue they would deal with. On termination, in fact, it may even be an issue the branch might deal with, depending on the circumstances. I must reject the amendment. It has no place in this section.

J. Tyabji: I think I understand the nature of the amendment better, and I look forward to hearing from the member for Prince George-Omineca. But it sounded like the minister was saying that this

section of the act would actually save harmless someone who launched a complaint, even if that complaint were found to be frivolous or vexatious. The reason I mention that is that, notwithstanding the amendment.... If we had a subsection (3) that said, for example, "Subsections (1) and (2) will not apply after a determination of the director if the director has found that," which I guess is what the member was basically saying.... Is the minister saying that an employer couldn't fire someone if they had launched a frivolous complaint against them?

Hon. D. Miller: It may be that someone might actually file a complaint with the branch which, upon investigation, may be determined to be frivolous, vexatious or without foundation, but that person might have filed it in all good conscience, thinking that they had a reasonable case.

Interjection.

Hon. D. Miller: Well, if they didn't, they don't; they will be dismissed. What's the problem? The

section is pretty clear. It simply says that if people avail themselves of the protections offered in this act, their employer can't turn around and discipline them. Why do you think, for example, that most of the infractions of the Employment Standards Act...? There's never an application to the branch; there are never complaints filed. Why do you think that might be?

If people want to water down the only

section that protects employees, if they want to use this act that is the minimum protection in this province.... The response from the opposition is: "Let's make it weaker." We're not going to do it.

L. Fox: Once again, we see the minister get on his high horse and...

Interjection.

L. Fox: ...gallop off into the sunset -- exactly right. There was no attempt to water it down. Vexatious, in my understanding, is repetitive -- something would have to be of a repetitive nature in order to be classified as that. Frivolous and trivial -- I'll live with the minister's concerns. Each of us considers those two words differently. While an individual may, indeed, have what they consider a legitimate complaint, and it may be seen by the director to be frivolous or trivial.... I can understand it. But vexatious is a different issue. That kind of suggests to me that it would be of a repetitive nature -- a similar complaint in a repetitive nature. That was the issue I was speaking to.

If the minister doesn't want to accept the amendment, that's fine; I accept that. What I was trying to do was not take away anybody's opportunities or rights but put some balance into it to stop, for instance, a plant. We see in the retail business today where actual employees are planted with the competition. All you have to do is go in and talk to people in sales in the music business and those kinds of things. In actual fact, they hire people to disrupt the competition. That's a real fact out there. All I was looking at was whether or not.... If there was somebody that was planted in a competition's place.... They're doing it now, but not through employees at

[ Page 15838 ]

this point; they're doing it by sending false customers in. Who knows what the next step will be if we leave loopholes in legislation? That was the concern I was trying to address -- not legitimate employees. That's the reason I raised the question.

Hon. D. Miller: Fair enough. Perhaps I got a bit heated there. Certainly, if the marketplace has gotten that bizarre -- and I'll take the member's word for it -- I guess that might speak volumes about those who say that the marketplace is going to solve all our problems. But I don't think we should construct a bill to react and to compel resources of the province to deal with those kinds of bizarre situations. In practice there has not been a problem. Therefore I don't think we need the amendment.

J. Tyabji: I can never resist a good rant by the minister, and that last display of tilting at windmills was irresistible.

What the member for Prince George-Omineca has proposed with his amendment is to allow that in the event of someone who is a particular pain, and who is causing the employer grief to such extent that the director or the tribunal has said, "This complaint is trivial or vexatious," that person could actually be let go. Imagine that! Somebody who has filed a trivial or vexatious complaint could actually be let go. Do you know what I think is interesting? I actually would like to ask this question of the minister on this amendment, and I'll wait.

He's not listening. I'll just have to ask it twice. To the minister, on the amendment: how many times in the last year has the branch deemed a complaint to be vexatious or frivolous?

Hon. D. Miller: I don't know the answer to that, but perhaps the member might like to ponder and ruminate on this question: how many employees who are legitimately aggrieved under the provisions of the Employment Standards Act actually file complaints? Think about that one for a long time.

The Chair: Perhaps the rhetorical questions could be abandoned and we could focus on the amendment before us. Member for Okanagan East, I think we are close to the end of canvassing this thing in any reasonable and comprehensive way, and so....

J. Tyabji: That's a very moving question by the minister, and he's absolutely right; many employees are intimidated. At the same time, I wasn't asking a rhetorical question when I asked how many times a complaint has been deemed vexatious or frivolous. The reason I asked is that it is so difficult to have a complaint deemed as that, because a director will not want to come out with a heavy hand, rather than.... A director has the option; a director can just dismiss the complaint and say: "Well, I looked at it and there wasn't a lot there."

But to actually deem it frivolous and vexatious.... That's actually a term that is used in the courts quite often to shut down nuisance litigants. That's what it's for. Going back to that court model that we talked about earlier, the reason you have that provision for frivolous and vexatious complaints is to shut out those people who are just pests -- so the member for Prince George-Omineca obviously doesn't have any hope of getting his amendment passed.

The minister should realize that if someone is a pest, and if this minister's own director -- with all the protections for employees that this minister has put in place, and with all the wonderful things -- has still said: "This particular complainant is a real pest. This is a frivolous, vexatious person...." This minister is saying that the employer can't get rid of him; they're stuck with him. That's what the amendment is trying to do; it's saying that.... What the member for Prince George-Omineca is saying....

Interjection.

J. Tyabji: Let me just get this on the record. The member for Prince George-Omineca is saying that he would like to agree with the minister and his director, and to say: "You know what? You guys" -- this minister and his director -- "have said that this person is just so bad that we are going to give him this label." The member for Prince George-Omineca is saying: "Great! Let's let the employer have the same power to label this person and get rid of them." That's what the amendment does.

Hon. D. Miller: I can only say that I'm beginning to feel some empathy with that mythical employer described by the member for Prince George-Omineca.

L. Fox: It's probably too bad that vexatious is in with frivolous and trivial, because I see it as something totally different. Just for the record...

Interjections.

L. Fox: ...to be vexatious is to bring trouble, distress and harassment; that's what it suggests.

Interjections.

L. Fox: Just for the record, I don't see any legitimate employee concern coming under that category. What I see here is something which would be repetitive in nature and designed to harass the employer. But I accept the minister's argument....

Interjections.

L. Fox: Gee, the attitude of the Minister of Social Services is overwhelming this evening.

Amendment negatived on division.

Sections 83 and 84 approved.

section 85.

J. Tyabji: The new act is different from the old act in its construction. I wasn't able to cross-reference it adequately, but it seems as if there are a lot more powers in

section 85 of the new act than there were in the old act. If I'm wrong, then I beg the minister's indulgence. If not, I'd like to talk about the possibility of search and seizure without a warrant.

[ Page 15839 ]

Hon. D. Miller: The only new part here is subsection (2). That takes into account that the act has been extended to include work at home. The warrant has to be issued before the director can use the powers to search private residences.

Section 85 approved.

section 86.

J. Tyabji: With respect to the director's powers to vary or cancel, is there a process by which this would begin? Is this on application by one of the parties, at the full discretion of the director, or both?

Hon. D. Miller: Without beginning and without end. It's at the discretion of the director.

[8:15]

Section 86 approved.

section 87.

Hon. D. Miller: I move the amendment to

section 87 standing in my name on the order paper.

[SECTION 87, in the proposed

section 87 by deleting subsection (1) and substituting the following:

(1) Despite any other Act, unpaid wages constitute a lien, charge and secured debt in favour of the director, dating from the time the wages were earned, against all the real and personal property of the employer or other person named in a determination or order, including money due or accruing due to the employer or other person from any source.]

The reasons are that it reflects language in the current act. Unpaid wages constitute a lien from the time wages were earned. The language in Bill 29 changes the time period for the lien by adding that the lien was only relevant once a determination or order was issued. Court cases have upheld the language in the current act.

Amendment approved.

section 87 as amended.

J. Tyabji: With respect to this section, and just a point of clarification, I'm assuming that this would include, in the case of an unscrupulous employer who has declared bankruptcy, assets that would be secured first for the unpaid wages. I ask this because I've had a case like this. The employee tried for so long to get the unpaid wages, and because of the time it had taken to get to the judgment, the employer had declared bankruptcy at a certain point and had hidden some of the assets. The time limit was the problem, and it was actually the investigation that took up the time. In that case, does this also involve assets that were the subject of a bankruptcy action?

Hon. D. Miller: Once bankruptcy has occurred, that legislation takes precedence. It's under the Bankruptcy Act that the issues are determined.

J. Tyabji: When it says "despite any other Act" in both of these sections, would that not...?

Interjection.

J. Tyabji: Oh, I see. The Bankruptcy Act is a federal act. Okay. So it's impossible for the minister to secure some sort of lien against that property prior to it being secured in bankruptcy.

Section 87 as amended approved.

section 88.

Hon. D. Miller: I move the amendment standing in my name on the order paper.

[SECTION 88, in the proposed

section 88:

(

a) by deleting subsection (2) and substituting the following:

(2) No interest accumulates under subsection (1) from the date a determination is made under

section 79 requiring payment of the wages or other amount until 23 days after that date.

(

b) by deleting subsection (5) and substituting:

(5) An amount collected under this Part, or deposited under

section 113 earns interest at the prescribed rate, payable by the Minister of Finance and Corporate Relations, from the date the amount is deposited in a savings institution to the date of payment to the person entitled. , and

(

c) by adding the following subsection:

(6) Subsection (5) does not apply to any security provided or bond posted under

section 100.]

The reasons, very briefly, deal with interest. Interest will always be applied to unpaid wages. After a determination is made, a person will have 23 days to pay or appeal. Interest will not accrue during this time. Bill 29 now removes interest from the unpaid wages if payment is made within 23 days.

Under subsection (5), a clarification -- interest is paid on money once it is deposited, not at the point of collection. Deposits must be made in a timely way by the employment standards branch.

Under subsection (6), a bonding act does not require that interest be paid on securities or bonds. Section (3), too.... This addition makes all parties aware that interest will not be paid.

Amendment approved.

Section 88 as amended approved.

section 89.

J. Tyabji: On this section, notwithstanding the plain language, it's still a little difficult to understand. Could the minister explain the significance of this section?

Hon. D. Miller: The question actually struck me a little bit. It's really just standard process for third-party demands.

J. Tyabji: I'm not a lawyer. I'm sure the Clerks are probably having a good chuckle. But on this, I'm assuming that this is saying that in the event of somebody being liable under this act to pay unpaid wages, if that person is liable to become indebted to a third person, this act takes precedence, or the unpaid wages take precedence, over that. Is that what it's saying?

Hon. D. Miller: In the face of an order to pay by the branch, you can't avoid that payment by trying to give your money to, or park it with, a third party. Really, it's very simple.

[ Page 15840 ]

Sections 89 to 92 inclusive approved.

section 93.

J. Tyabji: Back to the same question that I asked on other sections: are there any time limits, or will there be any time limits by regulation? Because I'm assuming that this is....

Interjections.

J. Tyabji: Under this section, then, are there time limits to allow for the release of the assets that have been seized?

Hon. D. Miller: There are no time limits specified.

J. Tyabji: Is there a reason why there wasn't a provision at least for reasonability in release of the assets?

Hon. D. Miller: There never has been.

Sections 93 to 95 inclusive approved.

section 96.

G. Farrell-Collins:

Section 96 is the corporate officer's liability for unpaid wages. Without provoking the minister into another episode, I would like to canvass this somewhat without fighting the class war all over again. I want to ask some questions about it if I can.

Section 96, as I said, is the officer's liability for unpaid wages. There is an issue to be.... The Premier wasn't here for the earlier occurrences of the minister's comments, so trust me, I know of which I speak.

I do want to ask what measure there is here for due diligence to be done. If the directors have done what they can -- if they've tried their best to bring a company along, and haven't deliberately tried to make sure that the employees were the only victims of a bankruptcy, but rather have gone through what one could consider responsible leadership of a corporation or an organization -- is any measure of that to be taken into consideration here? Or is it pretty cut-and-dried?

I ask that because, as an issue, it does affect what happens to a corporation as they start to wind up. If it looks like the corporation is in difficult straits, the directors may well push the company into bankruptcy at an earlier stage -- and possibly a premature stage -- before various rescue plans could come into effect, including the job protection commissioner, who I'm sure the minister is very familiar with. There are often corporations that are rescuable, if I can put it that way.

There is a possibility of turning them around with discussion and with accommodation from the municipalities and the province in the form of taxation, from the workers in the form of a collective agreement, from suppliers in the form of rates on costs for supplies, credit amounts and credit criteria. There are all sorts of opportunities that can be provided to a struggling company to keep it going and to keep those jobs up and available.

I would like to ask the minister if there is some insurance of due diligence or some insurance of responsible action that would insure the directors from this type of personal liability and would stop them from prematurely pushing a company into bankruptcy to avoid that liability?

Hon. D. Miller: It's a very complex area, particularly the issue around due diligence and the definition of that. I recommend that members might perhaps want to look at pages 155 and 156 of Professor Mark Thompson's report, where he canvassed in a pretty good way the problems and the different tests, if you like, with respect to due diligence. The tests under the Company Act are somewhat different, in that the obligation is to the shareholders versus what we're trying to look at, which is the ability of employees in certain circumstances to collect wages or to have a way to pursue wages owing to them. We were mindful of those issues when we drafted this section.

The changes address a B.C. Supreme Court decision this year concerning Westar Mining Ltd. The court held that the current

section 19(1) of the Employment Standards Act provides a payable test rather than an accrued test in fixing liability for unpaid wages. The last three directors of Westar resigned on August 24, 1992,

whereas the company was not declared bankrupt until August 31, 1992 -- but by then, the directors were no longer directors and

section 19(1) did not apply. In other words, the bailout happened in a very, very short period of time. The situation the member has described was not there, in some respects. It was simply an attempt to jump to avoid the responsibility the existing act had defined. In other words, the act of resigning one week prior to the bankruptcy, even though the resignations left Westar with no directors, was sufficient to avoid any personal liability. We don't want that to happen either.

Changes are the adding of "were earned" to this section. This is the same wording that is in

section 99(1), in defining the point at which the lien arises for unpaid wages. In order not to capture the responsible director who leaves a company at the time some wages were earned -- that is, vacation pay or money in a time bank -- but the next set of directors, who do not pay this money, sections 2(

b) and 2(

c) have been added.

With respect to this, there is a body of opinion, and essentially two different opinions, about the desirability of trying to capture directors as being liable for some of the unpaid wages that may be owed to employees at the time a company shuts down.

G. Farrell-Collins: I guess what we've said with this

section is that the liability accrues to the corporate officer at the time the wages were earned, as opposed to when they may be payable or the end of the pay period, I guess we could say, which in this case would be up to two months of unpaid wages. If the company goes bankrupt at any time, those directors can be liable for up to two months' salaries, plus a few other things as far as holiday pay, banked time, etc., goes. But there is no test here whatsoever for due diligence. Is that deliberate? Is there no way that a director operating and doing their best...?

You would think that if somebody came into a company, the company wasn't doing very well and was on its way down, and the shareholders came in and fired the board of directors and brought in some new people -- some very skilled people who were trying to rescue the company, trying to bring it back up again to keep those jobs there -- which may well happen with the job protection commissioner.... That happens sometimes: you bring new people in, everybody gets together and you try to save those jobs; that's the whole idea behind it.

Isn't the result here that those very people who were brought in to try to rescue the company and save the jobs could end up carrying the load for the directors who were fired who actually put the company in that state, perhaps

[ Page 15841 ]

through negligence? I understand the intent of what the minister is trying to achieve here, and I agree with it to a great extent. However, I don't agree that there should be no test of diligence for the directors. If they've done their best, if they've worked their hardest, if they've made decisions that were in the best interests of the company and the employees, why should they be held personally liable for that? If they've done everything they possibly can and you can't see them as being negligent, why should they be punished, especially in the case where they may well be the sharpshooters who were brought in to try to turn the thing around?

I think we're going to end up in a situation with this section.... I think this is a very far-reaching

section and it has long-term effect. We may find that those companies that would normally go to the job protection commissioner for help to turn around and save those jobs will simply close up before we've had a chance to try to turn things around. I believe that you will find it very difficult to get new directors to come in to try and open that company again and put those jobs back into the market. That's my concern. By trying to achieve a good, I think we may, in effect, achieve a bad, and perhaps more far-reaching one.

[8:30]

Hon. D. Miller: I appreciate the comments of the member, and I just want to quote very briefly from Thompson's report, pages 155 and 156. I think he does essentially deal with the conflict -- the measure of due diligence. Maybe it's quite conceivable that.... Normally one thinks of directors operating a company in the best interests of the company, and de facto that becomes the best interests of everyone associated with it, including the employees of that company -- but not always. In some situations you could say that the best interests of the shareholders are in fact the worst interests of the employees.

Therefore it goes to the issue of due diligence and how one could define that. In terms of consistency, one obviously could look at the Company Act and conceivably come up with one definition and at the Employment Standards Act and come up with a different definition. I will quote very briefly from page 156 of the Thompson report:

"Adoption of the due diligence test would mean that officials of the ministry who have a background in employment relations would be put in the position of deciding the wisdom of business decisions. To guide them, it would be necessary to establish detailed standards for directors' conduct in the law or in ministry policy, a substantial intrusion into what are essentially the private affairs of business organizations."

Given the inherent conflict that could be in place -- obligations to shareholders or employees, and the difficulty of developing that definition of due diligence -- we tried to ensure that the liability of directors for certain things was there. I don't think that we'll have all that negative consequence in British Columbia for people to.... In other words, something to dissuade them from sitting as directors of corporations or companies. It really is consistent with the act's overall thrust, which is a minimum set of protections for employees.

I do recall, in the case of the Westar employees, that in fact it was pretty hard; it was pretty tough. A lot of those people ended up selling their houses, being on welfare and occasionally being castigated by those who don't like people on welfare. They had a very, very difficult time on the pension side; there were people who lost partial pension rights, which they had for all the time that they had worked and assumed they were going to collect. I think we have to consider the position that those people found themselves in. On balance, I think the

section does a good job of recognizing the role that directors have, the responsibility that directors have and the obligation to do the best that we can to protect the employees' opportunity to collect unpaid wages.

[L. Krog in the chair.]

G. Farrell-Collins: I would agree with the minister that -- and again I come back.... I think the intent of what we're trying to achieve here -- to protect workers, to provide some accountability at the senior levels not just for the shareholders but for the employees -- is something that is warranted. I don't argue that point with the minister at all. I do disagree, however, with the way this

section has been brought in and the implications that will, I believe, arise from it. The minister talks about the conflict that Mr. Thompson refers to in his report, which I have read several times -- that there is a conflict under the Company Act between the requirements and responsibilities of shareholders and a provision that would itemize, detail or direct some responsibilities towards the employees under this act. Well, I put to the minister that that happens all the time.

There are literally thousands of things that are perhaps in the best interests of shareholders that don't fall within a whole series of laws and other bits of legislation through this House, the federal House and municipal councils, for that matter.

I understand what Mr. Thompson is saying, but I don't buy that argument. I think we're taking the easy way out here. I think we're unloading it all and saying: "Let's just put that onus on the directors and leave it there." It will help to secure the employees, but it doesn't do much for the employers. It certainly puts the blinders on your own eyes and says: "Let's not even look at the impact that this type of

section may have on those corporations that are on the edge, and at whether or not we can keep those corporations, those companies, up and running and keep those jobs in the various communities." That's why I say I think we're taking the easy way out here.

Yes, it's more difficult to take this section, draft it and spend time on it to ensure that we have responsibility for directors; at the same time, we look at due diligence, and we try to prescribe it as best we can. And we don't have to restrict ourselves to the employment standards branch at all. There are people in government who could put that together, no problem; and if there aren't, then there certainly are people available who could come in and help with that type of drafting.

I just think that in this case, rather than step into that somewhat muddied water and perhaps even quicksand of actually drawing those arbitrary lines of what due diligence is, what it means -- what the responsibilities of the directors are to the employees, and dealing with those conflict issues.... We're choosing to ignore all of that and put in a fairly simplistic section, hoping to ignore or not have to deal with what the side effects of that may be. I'm concerned that that's where we're going.

I disagree with this section. I don't think we should be taking the easy way out on this section. I believe there is a better way to do this, probably a more difficult way -- I'm sure a more difficult way, and certainly more time-consuming -- but I think in the end probably more beneficial to both the employers and the employees in the long term. I disagree with the minister's assessment of this section. I will be voting against it and just put that on the record. I think there is a better way -- yes, more difficult, but I think better.

[ Page 15842 ]

Hon. D. Miller: Just very, very briefly, I appreciate the member's remarks. Number one, one should not assume that the directors -- in other words, companies that are folding -- would not have assets out of which employees' wages could be paid. We should not try to cast this in the light of some poor directors having to shell wages for employees out of their own pockets. But number two, really.... For 40 years federal legislation has denied workers the status that they should have in bankruptcies. Why shouldn't workers' wages be the number one priority ahead of everybody else's needs?

If they are not paid, the state ends up paying them through our income support systems. If people have worked and earned those wages, then they should be entitled to receive them. That's a fundamental principle, and if the federal legislation were changed, I think all of our problems would be...or not all of them, but certainly it would be a heck of a lot better than it is today.

So I appreciate the member's remarks. I think we have a difference of opinion. It's on the record, and we'll leave it at that.

C. Serwa: I have a couple of comments on that, because I also think this is probably not fair or balanced, but perhaps just a different philosophical viewpoint. One of the Deputy Attorneys General feels that anybody who has any money at all is either lucky or inherited it, and perhaps that's the socialist view. Perhaps the minister doesn't recognize that individuals who have acquired have worked hard for the money and have accepted risk with respect to the corporation.

But I might remind the minister that the concern here is not the shareholders' concern and we're not talking about multinational corporations; we're primarily talking about small businesses. During the devastation that occurred in British Columbia and in the rest of Canada during the early 1980s, a multitude of small corporations, small companies and small businesses went bankrupt.

They went bankrupt not because of inconsistencies or wrong decisions on the part of directors; they went down because interest rates went far beyond normal -- up to 24 or 25 percent -- and the businesses operating within normal parameters couldn't handle that. All of a sudden, in that type of climate, the assets aren't worth a great deal of money. There's no real opportunity.... We had inflation in a recession, as far as trade and commerce were concerned.

So you've got a situation where you're going to attack directors in a scenario where they're not responsible for an international situation that occurred in Canada. I think that's where the legislation really does fall short. In a normal situation, the minister is quite correct that there would be no cause for worry. Normally a corporation does have assets, and because of the bimonthly pay period that you're required to pay, you can't be all that much in arrears with employees' wages.

So when the minister is referring to people not getting their wages and then having to sell their homes and go on welfare, I don't know what state of affairs would have premised that; but it's certainly not missing two weeks of wages.

So the member who spoke before me spoke quite well and quite eloquently about the fact that this

section is not really fair or balanced or appropriate, considering all perspectives.

Hon. D. Miller: Hon. Chair, I always appreciate the observations of that member. I have a couple of brief observations. I think this legislation was originally brought in by W.A.C. Bennett, that great socialist. Even Bill Bennett at his worst -- throughout that terrible recession in the early eighties -- did not propose changes to this section. So I think the member's comments.... Perhaps he isn't aware of some of the history of his own party in this respect, and may be reacting to the fact that it's an NDP government that's dealing with this and bringing it into a more modern context.

But the principles were established many, many years ago by political leaders that I know that member holds in very high esteem. All of that, of course, leaves me extremely perplexed as people's positions shift from time to time.

Section 96 approved.

section 97.

G. Farrell-Collins: The member for Okanagan East has advised me that she has a couple of questions on this, and she's been meeting with a member of the executive council across the way. So I'm sure she is running back to her seat right now so that she can engage in the debate.

J. Tyabji: Who says there isn't a constructive atmosphere in this House?

I'd like to ask the minister a question on

section 97. For all intents and purposes,

section 97 reminds me of the debate we had in 1992 on the Labour Code. Under

section 35 of the Labour Code, which is entitled "Successor rights and obligations," subsection (1) reads.... I know the member for Fort Langley-Aldergrove spent quite a bit of time on this at that time -- on successor rights. It reads, in part: "If a business or a part of it is sold...or otherwise disposed of, the purchaser, lessee or transferee is bound by all proceedings...as if no change had occurred...." That was a very controversial provision at the time.

When I see

section 97 of this act, which reads: "If all or part of a business or a substantial part of the entire assets of a business is disposed of, the employment of an employee of the business is deemed, for the purposes of this Act, to be continuous and uninterrupted by the disposition." That sounds like successor rights to me. Could the minister clarify whether or not that's what

section 97 represents?

Hon. D. Miller: The act is unchanged. It simply provides that where a business or a part of it is sold and the employees of that business are retained by the new employer, for their purposes, their years of service and vacation entitlements are maintained.

[8:45]

J. Tyabji: Could the minister direct me to which part of the existing act

section 97 continues from?

Hon. D. Miller:

Section

Section 97 approved.

section 98.

G. Farrell-Collins:

Section 98, "Monetary penalties," is, I believe, a new section; at least, I couldn't find the old one, so I guess that's new. Can the minister tell us what sort of

schedule

[ Page 15843 ]

is going to be struck with regard to this

section as far as penalties go? Do we have any idea what form those regulations are going to take? I'm wondering what the

schedule of penalties may be and if he has some indication of where we're at on that, because it's done by regulation.

Hon. D. Miller: No. We've submitted proposals for a range of penalty levels to Treasury Board and ultimately for approval by cabinet, and we are looking at penalties ranging from about $150 to $500, depending on which offences.

G. Farrell-Collins: My understanding of this

section is that it allows for a penalty in addition to a fine. Why would there be both? Why would you be subject to a fine and a penalty in addition, I suppose, to paying back wages in the event of a dispute? There are really three things that an employer could get hit with as a result of a violation: payment of back wages or other benefits over and above wages, fines and penalties. I see a shaking head, so maybe the minister can explain it to me.

Hon. D. Miller: If there's an application or a complaint filed with the branch and it's found that an employer, for example, didn't pay wages, and they have to pay those as redress, they're not being hit with anything; they're being instructed by the branch to do what they should have done. It's not a penalty for them to pay wages that they ought to have paid. Let's take that one out. Secondly, the penalties are for violations of the act and can be applied by the branch. We're looking at escalating penalties -- in other words, first offence, second offence, etc.

Finally, with respect to fines, they would only be applicable if an issue ultimately wound up in court and a fine was levied as a result of that.

G. Farrell-Collins: Thank you for the explanation of the fines and the penalties. It wasn't something I was aware of, but it makes perfect sense now that I hear the explanation.

The issue about wages.... In probably 99 percent of cases, yes, those wages would have been owing anyway. But there is the example that I gave the minister earlier, where in the event of a strike, payments may come as a result of a termination. We parted ways on that

section and disagreed on how it may be applied, if I remember correctly. In that case, an individual could end up paying wages and paying penalties. That is perhaps not intended, but then I guess the payment of wages where not intended is not intended either, despite the fact that I think that will probably occur from time to time.

Subsection (3) of

section 98 is an interesting one. Perhaps the minister can walk me through it, because it sounds pretty arbitrary to me. It say: "A person on whom a penalty is imposed under this

section must pay the penalty whether or not the person (

a) has been convicted of an offence under this Act or the regulations, or (

b) is also liable to pay a fine for an offence under

section 125." How can we impose a penalty on someone when they haven't been found guilty of anything?

Hon. D. Miller: We can, in those circumstances, impose administrative penalties. The language says -- and I'll read it again -- "whether or not the person (

a) has been convicted of an offence under this Act," which is somewhat different than being found to have been in violation of some sections of the act by the director. The two are quite different. This simply separates them.

G. Farrell-Collins: The difference between the two being that the director could find someone in violation of the act and impose a penalty, or it could go to the courts and the employer could be found in violation of a

section of this act. That terminology means the finding of a court as opposed to a finding of the director, in which a penalty could also be applied. Is that correct?

Hon. D. Miller: Yes. Getting back to the fundamental principle for the penalties, as I explained earlier, for repeat violations of the act there really is no extraordinary penalty, if you like, or.... I just indicated that I didn't feel that redress of a particular circumstance was, in fact, a penalty. Employers want those repeat offenders to be dealt with in a little different way than someone who might occasionally, for whatever reason, violate the act or cause a breach of the act. So this gives the director the power to impose what will be escalating penalties.

Let's take, for example, someone who deliberately and quite consciously says: "Well, I'm not keeping records; I have no intention of keeping them." He doesn't do it. We have to investigate two or three complaints, and we find on every occasion that those records are not available. Under those circumstances the director has the opportunity to levy penalties. Those things can be appealed. But, as well, if there is a violation of the act, that can go all the way -- as, I think, with all legislation -- through to the courts, and the courts obviously can impose fines as prescribed in legislation.

J. Tyabji: It would appear, then, from the debate that has occurred between the member for Fort Langley-Aldergrove and the minister, that concurrent with a proceeding under this act, an employer could be in the courts for a potential offence under the act. It's quite possible that the same evidence could be presented in two separate proceedings, and the employer could be administered a penalty under this act by the director and, conceivably, be fined by a court. Is that correct?

Hon. D. Miller: Yes, that indeed is possible. I'd just like to read some information with respect to enforcement and encouraging compliance with orders:

"Enforcement of employment standards orders has been a significant problem in the case of a few chronic offenders. Some 18,000 claims were filed last year, worth approximately $8 million. Because there has been no penalty or interest payable on such orders, some employers have used the branch to effectively obtain an interest-free loan."

So I think it's needed.

J. Tyabji: Certainly I don't think anyone would object to a penalty against someone who's been found to be wilfully in contravention of the act, and there should be interest accruing, or there's no incentive to pay. Having said that, what I'm concerned about is that the minister has acknowledged that there could be two concurrent adjudication processes with the same evidence being presented against one employer. What that sounds like is double jeopardy.

What I think is interesting is that in this process, the director is judge, jury and jailer, in effect. The director will be the person who will be conducting or setting the terms of the investigation, setting the penalty schedule, administering the penalty, and setting the boundaries of evidence collection and what can or cannot be presented. This is a very closed system, and the person may be going through the same system in a

[ Page 15844 ]

court of law. For that purpose, I think it's.... No one would quarrel with the motives of the minister in setting up the penalty system, but in terms of how much power there is with the director and the fact that there's potential for the same process to be occurring in two different jurisdictions, I don't know why it would be exclusive to this act that that could happen.

Hon. D. Miller: I think I've tried to respond to the questions raised by the member.

Sections 98 to 101 inclusive approved.

section 102.

L. Fox: Moving right along, the only concern I had with this

section was around subsection (4): "The members of the tribunal hold office for the term set by the person who appointed them, and they may be reappointed for successive terms." I guess the first question I had with respect to this was: does the minister envision that to be in regulation -- as to how long those appointments would be? Is there going to be some consistency in terms of that? What is the intent of that clause?

Hon. D. Miller: Not really. The adjudicators are appointed by the chair, and they are on an as-needed basis. In other words, they're not full-time. Therefore it's conceivable that someone who performs that work in a very good way might be in place for a considerable period of time.

J. Tyabji: Under the establishment of the tribunal, is there a time frame set up for this? Does the minister foresee this as something that will be set up by this fall, or is it in the next fiscal year?

Hon. D. Miller: In the fall, I would expect, when the act is proclaimed.

J. Tyabji: Was there any consideration given, in setting up this tribunal, to having it cross-reference any of the other existing mechanisms for hearings, whether it's the Labour Relations Board or the...? There are so many different adjudication processes, but the one that comes to mind is the Labour Relations Board. There will be a lot of overlap in terms of the kinds of matters that will be before them.

Hon. D. Miller: No. In canvassing that issue, there was some rather vehement opposition to crossing over into the labour relations field, particularly from the employers.

J. Tyabji: When the minister says that there was vehement opposition from the employers to crossing over, is that because of the terms of reference of the Labour Relations Board? As I read this, in fact the Labour Relations Board has a more open system of hearing grievances, of accepting evidence and of setting down all the conditions of what comes before the board. Obviously, what goes before it is collective agreements, but if you're trying to streamline government and you have two different boards set up for roughly the same thing -- one collective agreements, one not -- why wouldn't there be some move to integrate them?

Hon. D. Miller: I think the process outlined in the bill is more appropriate for the clients who will be using the bill.

G. Farrell-Collins: I just want to put on the record our support of having the tribunal and the appeal under employment standards. There are inherently greater legal costs involved with the Labour Relations Board, and indeed a whole lot more legal bent and legal intent of mind before the Labour Relations Board that certainly isn't conducive to individual employees coming forward with complaints, given their limited resources in the vast majority of cases. This, I think, has been almost universally accepted -- if not universally, then pretty darned close -- as a good way to go. I'm glad to see it in here, and I hope it works well for both the employers and the employees.

[9:00]

Sections 102 to 104 inclusive approved.

section 105.

J. Tyabji: Could the minister describe whether or not there will be a registrar, and how this will be established in terms of the staffing for the tribunal?

Hon. D. Miller: In addition to the chair, the employees of the tribunal will be the registrar and two support staff.

J. Tyabji: I'm almost begging the question for the next section, but I'd just like to know if that would also apply if there were more than one panel sitting at the same time.

Hon. D. Miller: Yes.

Sections 105 and 106 approved.

section 107.

J. Tyabji: In looking over some of the similar legislation on tribunals and adjudication proceedings....

Section 107 says: "Subject to any rules made under

section 109(1)(c), the tribunal may conduct an appeal or other proceeding in the manner it considers necessary and is not required to hold an oral hearing." Why was that put in here, given the power of the tribunal and the fact that the tribunal is the last avenue of appeal for someone who objects to a determination of the director?

Hon. D. Miller: Practical reasons.

J. Tyabji: I'm not sure what practical reasons the minister is talking about, or why the.... In the event of the tribunal deeming an appeal application or complaint about a determination to be serious enough to actually continue with its proceedings, why wouldn't there be a mandatory oral hearing -- or some method, at least, for the person who has launched the process to be aware of what's going on? The reason I raise this is that it's the kind of

section that does tend to haunt an MLA afterwards. If someone is, for the purposes of this act, upset with the determination of the director, and their only course of appeal is the tribunal, and the tribunal has said that it's prepared to look at that determination to consider whether or not it should change it, why wouldn't there be an oral hearing? If it's valid enough to proceed, then there should be some public domain. Otherwise, it's extremely closed.

Hon. D. Miller: Written submissions, in many, many cases, are sufficient for the tribunal to make a determination.

[ Page 15845 ]

In any event, if people are not satisfied with the operation of the tribunal, they have access to a judicial review of that. It's simply a practical way of doing business.

If you want to go back to some of the earlier issues, one of the reasons that I suspect the business community -- particularly the small business community -- did not want this to become a type of Labour Relations Board process is that in some respects it can be time-consuming and expensive; it can require legal counsel. This is simply laying out a very practical way for the tribunal to proceed.

J. Tyabji: I'd like to put on the record that if the employer or the employee were upset with the determination of the director, took it to the point of taking it to the Employment Standards Tribunal and requested an oral hearing, that person should have every right to have that oral hearing take place. I don't think you'd need to have counsel; I don't think you'd have to get into any kind of litigation. The person would have a right to at least hear how the determination was being evaluated by the tribunal.

Section 107 approved on division.

Section 108 approved.

section 109.

G. Farrell-Collins:

Section 109(1)(

d) talks about the ability of the tribunal to enter.... If I can read it correctly from my notes, it allows the right of search. Is that correct? Can the minister tell me why the tribunal would need those powers when the investigators already have them? Is there a need to accrue those powers to both parties, or could they not just put something back to the investigators to go and find more information?

Hon. D. Miller: Actually, the answer is: similar powers to those of the director. It may be that the tribunal, in assessing the case before it, feels that it needs that.

G. Farrell-Collins: I would have thought that if the tribunal needed more information and needed to do this, they would ask the director to get that information. Those powers to do investigations would rest with the director. Is there some compelling reason to keep this separate from the director? You're tribuning his or her decision, so to speak. What would be the rationale for that?

Hon. D. Miller: Once an appeal is started, the tribunal sits to hear appeals of the decisions of the director. I presume that if more evidence were required or if the tribunal determined that they needed further investigation, to go back to the director to do that might somehow tinge the independence of the tribunal with respect to hearing appeals of the director.

Sections 109 to 111 inclusive approved.

section 112.

G. Farrell-Collins: My concern here is the time period for an appeal. It sometimes takes a small business -- or an individual, for that matter -- time to look at a case or maybe talk to somebody again. We're not trying to get a lot of lawyers involved here, but certainly somebody.... No offence intended, hon. Chair, but the intent of this whole portion of the bill is to try to keep it simple, straightforward and cost-effective.

And if you have an employee -- or indeed an employer, a small business person -- who has a decision under this tribunal they wish to appeal, I would think you would want to give them a little more time than 15 days or eight days to come up with a determination as to whether they even have grounds for an appeal, what the options are and what the process is. It's fairly intimidating -- particularly for an employee -- to have to go through this process at all, let alone to have to then decide whether or not they have grounds for an appeal and what the appeal process is.

How were these time frames arrived at? Does the...? I suppose the minister does think they're reasonable; he has put them in the bill. But perhaps we can get a justification as to why these are reasonable time limits. They seem fairly narrow to me, for an employee or even a small business person who doesn't have access to legal advice, to make a determination as to whether or not an appeal is warranted.

Hon. D. Miller: The time frames are drawn in some sense from the current act, and they're amplified with respect to the definition in

section 122(2), for example, which says: "If service is by registered mail, the determination or demand is deemed to be served 8 days after the determination or demand is deposited in a Canada Post Office."

G. Farrell-Collins: I guess that's the first part of my question: where do they come from? The second part of my question is: are they reasonable? Despite the fact that they exist in the current legislation, it seems to me that those time frames are fairly limited, given the level of legal knowledge -- and even, perhaps, knowledge of this bill -- that individual employees and small business employers may have. Is there no reason this couldn't be extended to three weeks -- or a month, as a nice round number -- so people would have a chance to review this and make a determination?

A month certainly doesn't appear to be unreasonable or to cause unnecessary delays, unless there's something the minister can advise me about. I would like to see it be a month, unless there's some reason why that's not appropriate.

Hon. D. Miller: The act provides a total of about 23 days for individuals affected by decisions of the tribunal or of the director to appeal, which I think is.... That's three weeks; that's not bad.

G. Farrell-Collins: Perhaps the minister can point out those 23 days to me; I don't see them. If my addition is incorrect or if I'm missing a section, perhaps he can advise me. But I see 15 days, and I see eight days, and that to me seems an unreasonably short period of time in which to react to a decision and determine whether or not an appeal is warranted.

Hon. D. Miller: There are two points. One, if it's service by mail, I have referred to

section 122(2) already. Combined with

section 112(2), which has the 15 days after the date of service, if you add the eight days under

section 122(2), it's 23 days. If the service was personal, then it's eight days after a personal service. I'm advised that most of the decisions are issued by mail.

Sections 112 and 113 approved.

[ Page 15846 ]

section 114.

J. Tyabji: This goes slightly to the conversation that we had earlier about the frivolous, vexatious or trivial determination. We were talking about the director having been through an investigation and making a determination that a complaint may be trivial and vexatious, and therefore could be dismissed. In this case,

section 114(1) says: "The tribunal may dismiss an appeal without a hearing of any kind if satisfied after examining the request that...(

c) the appeal is frivolous, vexatious or trivial or is not brought in good faith." Is there going to be anything to accompany this

section of the bill to help guide that tribunal in making that determination just from examining the complaint?

Hon. D. Miller: The tribunal will be establishing rules for appeals.

J. Tyabji: The minister mentioned earlier that there would be a