Manitoba Committee Hansard — Intergovernmental Affairs Committee, Sitting 6 (34th Legislature, 2nd Session)

34-2-ir6

Manitoba — Debates (Hansard)

lEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMMITTEE ON INDUSTRIAL RELATIONS Thursday , Febru ary 22, 1990 TIME- 8 p.m. lOCATION - Winnipeg, Man itoba CHAIRMAN - Mr. Parker Burrell (Swan River ) ATTENDANCE - 9 - QUORUM - 6 Members of the Committee present: Hon. Mrs. Hammond, Hon. Messrs. Enns, Driedger (Emerson), Duc harme Messrs. Ashton, Burrell, Ms. Gra y, Messrs. Ha rapiak, Patterson WITNESSES: Mr. Grant Mitchell, Private Citizen Mr. Ross Martin, Brandon and District Labour Council Mr. Peter Olfert, Ma nitoba Go vernment Employees' Association Mr. David Newman, Manitoba Chamber of Commerce Mr.

Frank Goldspink, Manitoba Communist Party Mr. Bill Ga rdner Jr ., Winnipeg Chamber of Commerce APPEARING: Mr. Kevin Lamoureux (Member for lnkster) MATTERS UNDER DISCUSSION: Bill No. 31 - The Labour Rela tions Amendment Act Clerk of Commit tees (Ms. Patricia Ch ay chuk Fitzpat rick): Will the Standing Committee on Indu strial Relations please come to order? I have before me the resignation of the Chairperson; therefore this evening we must elect a new Chairperson for the Standing Committee on In dus trial Relations. Are there any nominations for the position? Mr.

Ailan Patter son {Radisson): I move the Member for Swan River, Mr. Burrell. Madam Clerk: Mr. Burre!l has been nominated. Are there any further nominations? If not, Mr. Burre!l you are elected Chairperson. Mr. Chai rman: The Standing Committee on Industrial Relations will, this evening, resume public presentations to Bill No. 31. Prior to hearing witnesses this evening, did the committee wish to set a time for adjournment, so that the public presenters will know how late we 92 will be sitting this evening?

Well, it is to the will of the committee, but what they want to do is so the people waiting to speak- what is the will of the committee? Mr. Ashton. Mr. Steve Ashton (Thom pson): I am not sure we want to set an exact time because it is obvious there are people who cannot be back again or people who are halfway through their presentation. We would certai nly want to hear them out, but I would hope that we would adjourn prior to midnight, so that we are not keeping people waiting here too long. An Honourable Mem ber: Let us look again at eleven o'clock. Mr.

Ch airman: Well, fine, we can play it by ear, if that is the will of the comm ittee, that is fine. We shall now resume public presentations to Bill No. 31. The first presenter that we will hear from this evening is Mr. Gr ant Mitchel l. I would like to remind members of the public that if they want to know if they are registered to speak to the Bill, or if they want to know what number they are on the list of presenters, the list of presenters is posted outside the committee room.

If there are any members of the public who are not on the list and wish to give a presentation to the committee, they can talk to the Clerk of Committees, and she will see that they are included on the list Mr. Gr ant Mitchell. (interjec tion)- Mr. Ashton. Mr. Ashton: At this morning's committee meeting the chairman asked if there was anybody from out of town who had time concerns. I was just wondering, I am not suggesting we not hear Mr.

Mitchell now, but perhaps if you could make that announcement again, so that anybody who is from out of town or else has other time constraints to prevent them from coming back, can get on the list tonight and make their presentation tonight. *

(2005) Mr. Chairman: We already have some names from out- of-town presenters and we will certai nly acco mmodate them. Mr. Gr ant Mitchell. Mr. Grant Mitchell (P rivate Citi zen): Mr. Chairman, Madam Minister and Honourable Members, I appreciate the opportunity to add ress you tonight. I should first announce that the Jets are leading 2-0 early in the second period, 3-0, Mr. Newman informs me. I welcome the opportunity to speak on Bill No. 31 and on the subject of interest arbitration altogether. I have prepared a brief which I hope has been circulated to the Members.

As ind icated , I am a labour lawyer here in the city with Taylor, McC affrey, Chapman, Sigurdson law firm and I am a sessional lectu rer-h ave been for the last seven

Thursday , Februar y 22, 1990 years-a t the Faculty of Law at the University of Manitoba, but I would like to warn you that the views that I express tonight are entirely my own and should not be attributed to my firm, my cl ients, or to the Faculty of Law. The brief that I have prepared essentially sets out some positions and principles and also some anecdotes of experience with the legislation.

I am not proposing any magic moves that are going to solve everyone's problems, but I think it might be useful to put some history and some context on the legislation and to give some indication of some experienc e with it. The Bill was brought in, perhaps coincide ntally, the day after the Westfair Foods strike began in 19 87. lt was right in the middl e of a consulta tive process between labour and management groups within the com munity who were attempting to put forward some proposals and suggestions as to how a final offer select ion or interest arbitration Bill might be framed.

That process was just sudd enly cut off and the legislation was introduc ed at that point in time. The division .within the Federat ion of Labour became immediately and acutely evident after the Bill was introduc ed. Many unions filed briefs in opposition to the Bill, but employers in the province seemed to be united against it. The factors that I have set out in the brief in terms of why people seem to oppose it and why others favoured it, I have highlighted a few in point form.

The unions who were opposed, their first principle was they believed that whether the employees would or would not choose a process in colle ctive bargaining is normally left up to the union to control. The idea of having this process that their emplo yer could make an application for was almost like legislating an unfair labour practice, that an employer could get access to the employees in this fashion if only on the process and not the substance of the negotiations.

The second major compl aint among the unions was that what they really wanted was anti-scab legislation, that is that an employer could not continue to operate during a strike or lockout and that this was a poor substitute for that kind of legislation. The employers had a number of comp laints. I am saying on page 1 that these complai nts were primarily from their point of view, that the process was slanted heavily in favour of the union, that FOS would be a protect ion for weak unions.

If a union did not have enough support to sustain its position dur ing a strike then it would give a union an opportunity to protect its own position even against a move by another union to take them over, because it would give them the sec urity of a new contract. Thirdly, providing for an employee vote on the use of the process -and I am sure you are all appreciativ e that that is the process - effect ively gave the union a veto on the use of the process. The time limits or "windows" that were established for the use of the legislation worked against the interests of coll ective bargai ning.

The first window expired 30 93 days before the expiry of the collectiv e agreement. Rarely does bargai ning even begin at that point. So wha t happened was tha t when appli cati ons were brought within that time frame bargaining had not even begun, and the Labour Board found itself throwing out final offer select ion applic ations, because there was not yet a dispute between the parties. They had not even exc hanged proposals when, 30 days before the agreement, expiry had come.

So that window was obviously inappropriate. * (2010 ) The other window-which I will speak about in a moment-6 0 days into a strike, was probably equally ill-advised and created another problem, and that was you had to have a work stoppage of 60 days before you would had further access to the process. lt also became kind of a fall-back or reduc ed risk position for the union in the event of an unsuccessful strike. So rather than reducing strikes with the 60-day window it would reduce the risk in ca lling a strike and therefore would encourage strikes.

You cann ot tell from the statistics tha t occu rred in the la st three years whether in fact there have been more strikes as a result of final offer selection. The whole principle of the strike-lockout remedy in colle ctive bargaining is that it is such a dire result for both sides that each side will expose its true position rather than take a strike or lockout to occur. What this legislation does is, you do not have to expose your true position. You can just take your cha nces in the arbitration pro cess instead of exposing your tr ue position.

What happens, and the history if you study the literature conc erning interest arbitration, is that where parties have access to interest arbitration they tend to do the opposite, not to disclose their real position but to protect it and give themselves something to give away during the litigation process. So that was another criticism. The concern also was that the same Government that had introd uced the legislation would be the one appointing the selectors and that therefore there would be an imbalance or partiality in the process. The criteria for select ion which are set out in the legislation in

Section 94.3(8) were heavily weighted in favour of the union, at least from the point of view of employers. The introduction of FOS would in many circums tanc es create or aggravate an imbalance in bargaining power rather than cor rect it. So those are the type of crit icisms that employers had for the legislation. The unions tha t op posed the legi sla tion and employers who opposed it agreed on some points. There was not a problem with work stoppages in Manitoba.

Statistically, comparative with the rest of Canada, Manitoba enjoyed very good labour relations, very few work stoppages, and why were you going to tinker with something that was not broken? Second, and everyone who was opposed to this uniformly raised this object ion, it unduly interfered with the process of free col lective bargaining. I will get into some of the principles involved there a little later. With out identif ied need, FOS would offend the principle that the best and most effective agreement

Thursday, February 22, 1990 is one made and ratified by the parties themselves rather than one imposed upon them. It is another principle of something that is missing from FOS. The agreement that the employees end up with, and if you want to look at it from the point of view of the employees, is one that they never ratify. The union puts forward the position. The normal process of collective bargaining is, there can be no agreement without ratification by the employees. They have to approve it. They have to live with it so they should have to approve it. Under final offer selection, they do not approve it.

They never get a chance to ratify it. The selector makes a choice , and they are stuck. There is no process even for a ratification of the union 's position in final offer selection . That is left up to the union . Certainly , the usual complaint about legal processes as opposed to marketplace involvement , it would add cost, technicality and delay to the bargaining process. I almost hesitate to say that since it runs counter to my ability to make a living, but in fact those are probably legitimate complaints about any form of interest arbitration .

Collective bargaining issues were too important to be gambled away in a process which, with its "all to one side or all to the other" approach, resemb led flipping a coin . Conventional interest arbitration , the arbitrator has the right to choose what he or she thinks is the fair agreement. This process , you just choose the one you disl ike the least, as came out in the Unicity Taxi case as an example.

A collective agreement which could be imposed upon the employees in a bargaining unit which would never have to be rat ified or agreed to, I have mentioned that point already, and a complaint that this joint consultative process ought to have been concluded before FOS became law. Now I would like to talk about some of the things that were considered to be positive about FOS . Those who favour the introduction of the legislation said that anything that would substitute for strikes would be an improvement. There is much to be said for that position.

FOS, as opposed to conventional interest arbitration, would be so risky that if used by either party it would compel the party to expose its true or ultimate position just the way a strike or lockout remedy does, so that it would be an arbitration process which would simulate the effec t of the strike/lo ckou t rem edy. *

(2015) The use of coercive compa rison s, that is, under the criteria for deciding whose proposal you have to select , the selector is guided to look at what similar employers are offering in the marketplace . That has a kind of equitable effect of bringi ng everyon e who does simi lar types of work to a simi lar level, and there seems to be some virtue in that. Making the first window so early in the process would get the bargaining under way faster. Instead of waiting , say, we have been without a contract for eight months or wh ate ver it is, try to get the bargaining resolved before the agreement expires.

That seemed to be a positive step from those who viewed it that way. Having a window , again, 60 days after a strike or lockout would 94 give the parties a chance to resolve a dispute which seemed to be destined to remain unresolved maybe foreve r, to get them out of entrenched positions and to resolve the impasse and to prevent the adverse consequences of a poorly chosen strike from being so dire to employees and to unions .

FOS had been tried successfully in some other jurisdictions , and I should qualify that by saying that where it has been successful it has usually been limited to monetary issues or to issue-by-issue selection as opposed to whole package selection, as we have. There had been some positive experience with it. Finally , it was said in support of it that this was sim ply an alternative method . Parties were not bound to use it, but if they chose to use it, it was an alternative to the conventional means . On page 3 I have set out some of the political history of the introduction of the Bill and where it went.

I skip over that and go to -a third of the way down the page what the experience with FOS has been. Here I would like to get into a few anecdotes of some experience I am aware of that has occurred under the legislation . First of all, I think it is self-evident to anyone who is familiar with what has happened that the same unions which supported the enactment of FOS have been the principal users. There are many unions which have never used it. Second , although it is provided under the legislation that either union or employer can apply for FOS, in fact there has only been one employer who applied for FOS.

Maybe this was the test of whether having an employee vote was truly a democracy of a choice by the employees or whether it was really the union dictating the result . In this particular case, when the employer did apply for FOS, and a b argaining unit of over 100 employees, it was nearly unanimously rejected by the employees on the recommendation of the union. Several months later, 60 days into a strike , when the strike was not going well, the union applied for FOS with the same employees who had nearly unanimously voted against FOS. They unanimously voted in favour of FOS.

Is it the employees who are making the decision? Is it the union? Does that indicate - well, it indicates whatever you inte rpret it to indicate, I suppose . Third , there were a number of situations, and I was involved in some of them, where unions and employers , with very willing readiness, bargained clauses into their collective agreements which prohibited the use by either of them of FOS . I h ave just given you one example there.

There were a number of those where the parties put a clause in their agreement that says, each side agrees that it will never use the legislated FOS , to indicat e how they felt about it. Fourth , some unions and employers bargained clauses into their collective agreements which, without totally rejecting the FOS process , mod ified a process . They chose their own FOS that would fit into the legislated scheme but would suit their own particular purpose-tailor-made for their own needs . One of the examples ironically wa s the Manitoba Food and

Thursday , February 22, 1990 Commercial Workers and Westfair Foods, who seemed to have prompted the introd uction of the legislation to begin with. The next item is the matter I have raised before, that where applications were made before the bargaining process had really begun, the Labour Board found itself dismissing those applications because there was at that time no dispute between the parties. So the first window became totally ineffect ive, because there had been no bargaining more than 30 days before the expiry of the agreement.

The Unicity Taxi case is the next one I mentioned. lt was a case where the arbi trator said in the strongest possible terms that the position brought by the union was terrible, but the position brought by the employer was even worse.

Though he disagreed totally with both positions, having to make a select ion, he found himself bound to accept the position of the union, because he said it was slightly less terrible than the one brought by the empl oyer. lt does not sound like a very good way to produce a colle ctive agreement on that example. * (2020 ) A positive experience, I would say, is the next one, and this relates to the same dispute that involved the initial reject ion and then adoption of FOS and the only one that occurr ed after a 60-day strike.

When Fison's Western and the UFCW Local 111 finally did get to final offer selection, the selector took it upon himself instead of simply saying, what is your position, what is your position, why, why, and making a choice, he said, well, let us talk about this, let us mediate this dispute. What about this? Could you live with that? By the time he had finished mediating for a couple of days, he took two parties, one of whom was seeking greater labour costs and the other one was seeking much lesser costs, he actually brought them together to a consensual agreement within the space of a few days.

I think it shows the advanta ge of incorpor ating mediation into any sort of interest arbitration process that a Legislature might adopt. I have some statistics at the bottom. I am sure you are going to be inundated with statistics. Out of all the contracts revised or renewed since January 1,' 88, when the legislation came in, by August of 19 89 only 59 had been referred to the Manitoba Labour Board for final offer select ion. Of those, only five had actual ly ended in the select ion being imposed and almost as many, four, had been dismissed.

At the top of page 4, I have quoted some comments of Martin Freedman, who sat as a selector in the Dominion Stores and MFCW case. I think he is a very well respected arbitra tor, and I think an experienced interest arbitrator. I think one whose comments bear consider ation. I quote from his award in that case: "Inter est arbitr ations are difficult proces ses for all concern ed. lt is almost always the case that the parties to the process would prefer to have their colle ctive agreement decided by themselves rather than by the intervention, whether statutorily imposed or otherwise, of a third party.

The process of colle ctive bargaining and labour relations is obviously more satisfactory in circums tances where the parties engage in the give 95 and take of bargai ning and ultima tely reach a com promise which they are both able to acc ept." The principle that, if parties have made their bargain they are co mmitted to make it work. If somebody else has imposed it on them, they will find ways to show that it does not work.

". . . the final offer select ion process cr eates even more of an artificial framework than does the ordina ry interest arbitr ation process." These are the words of someone who is gaining from the process, I suppose one might say.

"W hile trying to simulate collective bargaining results, I am req uired to accept one position entirely, and reject the other, which rarely is the result of actual bargaining<" My last anecdote here is that, since FOS came in, Manitoba has continued to enjoy the relatively low instance of work stoppages, which it experienc ed prior to FOS and only one of all of the applications was filed 60 days into a strike and that again was the Fison's matter. Now I have drawn some of my own conclusions, and I say everyone will draw his own conclusions from this experience that we have had since January of 19 88.

I raised some questions in (a), the object was to red uce strikes. The results were inconclus ive, but if this were truly the object, why have the 60-day window at all? Why decr ease risk involved in going on strike? If you are going to ch oose this process, then choose it before you go on strike. Once you have gone on strike, do not have a fall-back, or else you are inevitably going to have strikes you would not otherwise have. lt is risk which makes the strike-lockout remedy effective in getting parties to settle. Why not allow the employer to invoke FOS during the strike without an employee vote?

That is, if you are going to allow a fall-back, should not both sides have the right to go to arbitr ation instead of having the strike run its course. Under the present scheme, if the employees and the union are losing a strike they can go back to work and take arbitration. If they are winning the strike, they can veto arbitra tion. One could hardly describe this as a level playing field. The results so far, out of the five select ions, the employers have won two and the unions have won three.

Whether anybody can dr aw any conclusions from that, I would say probably not. lt may simply be a reflection of the quality of positions advanced , or maybe a sample of five cases is simply too small to make any conclusions from it. *

(2025) Are the agreements that are being settled working and if they are, by whose measure? How are we to know whether they would work better or worse if the parties had been forced to bargain? Is meaningful bargaining even taking place under FOS, because the usual criticism of interest arbitration is that when you are going to go, you know you are going lo end up in arbitra tion, such as the teachers. Teac hers can not go on strike, so they know they are going to end up, if they do not agree, in arbitra tion. They tend to hide

Thursday , Februar y 22, 1990 their true positions rather than discl ose them, which has the chilling effect , is ther e meaningful bargai ning tak ing pl ace? One wond ers, when some of these applica tions have been filed before there was any dispute. On the other hand, the voluntary settlement of 44 agreements out of 59 referred to FOS suggests that most parties continue to bargain even after the process is invoked . From the point of view of ind ustrial democ racy, FOS is clearly a dismal failure. The statutory right of employees affected to ratify the agreements under which they must work is removed .

All they get is to approve the process and not the content, which is contrary to the ratification provisions of the legislation. Labour relations has already, and with good reason, in most cases removed the individual employee from the decis ion-making process in many areas. I have set them out on page 5. There is a large list of areas where the employee used to be able to speak, to have his own voice heard ; he has been removed from the process. There may be very good reasons for that, but there should be good reasons for conti nuing to do that, or exacerbat ing that situation.

And here is another example where the individual employee loses his voice. These examples can all be justified, I say, as necessary limitations on the independent role of the employee with the employer. The infringements on individual and employee rights do, however, cr eate their own tensions and ought not to be extended unless demonstrably justified. An informed and involved group of employees is more likely to enjoy harmonious relations with its employer than one which simply works under a regime framed by a union or an employer and selected by a third party.

The issue that is at the bottom of page 5 is one which is maybe more of acade mic interest than of practi cal concern to most people, but when you have final offer select ion where language in the colle ctive agreement can be determined by the selector rather than just numbers or dollars, then you have the problem of, what do those words mean? One party brings forward its language, this is what we want to have in the agreement; the other side says no, the clause should read this way. Now the selector chooses one claus e or the other. How are you going to interpret what the real meaning of that is?

The usual process is to try to deter mine the mutua l intent of the

part ies when they agree on language. How are you going to interpret a clause that was chosen by a third party? Are you going to choose what the party that was successful in getting it acce pted thought it meant? Do you get what the selector thought, and if so, how do you find out? lt creates a problem of

interpretation in terms of the administration of the collectiv e agreements, which I do not think has really been grappled with yet, but it may emerge as time goes on. lt appears now, I say on page 6, that the political will is to abolish statutory FOS. Those parties who felt it was a valuable mechan ism, those who think that FOS has worked successfu lly, employers and union, will presumably negotiate it into their collective agreements. lt will be interesting to track these developments and 96 to see what modifications to the statutory process are developed. Those who have already devised their own alterna tiv e, as some of the

partie s have, should presumably be permitted to try such methodology out even after the repeal of the legislation. The current draft of the repeal Bill does not add ress such situations and may req uire amendment to do justice in this respect .

What I am saying here is that if the parties have drafted their own method of interest arbitration as an alternative to the statutory scheme, there should be something in the Bill which says that that scheme survives the repeal of the BilL They have conc luded their deal on the basis of the legislation as it was, and there should be something in the Bill that preserves the contract that was made between those kinds of parties. I say it would be ironic if the repeal of the Bill again had the effect of undoing a bargain made in good faith by colle ctive bargaining parties. *

(2030) So I offer the following rec ommendations for the future in the event the Government of the Day considers imposing final offer selection or some other method of reso lving inter est di sputes between unions and employers. First, consider cl osely the literature on the adverse impact that interest arbitration has had on the bargaining process and consult fully with the labour rela tions com munity before implementin g such a procedure.

Secondly, preserve to employees in any such scheme the right to approve or reject their terms and con ditions of emp loyment, as is curr ently provided in the ratification sections of The Labour Relations Act. Thirdly, build mediation into any such scheme as an integral part, in order to achi eve the purpose stated by selector Freedman as set out above, of achieving consensual agreements wherever pract icable. Fourthly, do not put interest arbitrators in the position of having to adopt as their reward, positions with which they are unable to ag ree, tha t is, pr eserve the arbitrator's right to compromise.

Fifthly, do not give one party , either party, the employer or the union, the exclusi ve right to opt out of a work stoppage. Make any arbitration scheme an alternative to a work stoppage, not a tailback. Otherwise the scheme makes a strike or lockout more and not less attractiv e as an option. Finally, make the time window for application to interest arbitration some time after bargai ning has had a chance to work. lt is almost inconceivable that this would be prior to the expiry of the collective agreement, based on cu rrent practices. Thank you for giving me the chance to speak to you this evening.

I hope I have not taken too much of your time. If anybody has any questions, I would be pleased to answer them. Mr. Ch airman: Are there any questions? Mr. Ashton. Mr. Ashton: I wanted to ask a question on your comme nts in terms of the 60-day window. On page 4

Thu rsday, Febru ary 22, 1990 of the brief yo u say that the 60-day window, and I qu ote, "decreases the risk involved in going on strike." You further elaborate what you mean by risk here. I am just wondering, looking at the experience with final offer sele ction, you ind icated tha t only one application was filed 60 days into a strike. Actually, there have been two others where there has been an application made so there are about three, to be fair in that sense. The strike involving USWA, Local 8144, and the Unic ity Taxi dispute.

I am just wondering, with your concern about the 60-day window, given there have only been three situations, given the fact that 19 89, last year, there was not a single case where there was any application into a strike, but there were only seven strikes to begin with in Manitoba, none of which had in volved FOS at any stage in the discussions. Would you not say that the evidenc e tends to suggest that the 60-day window has not in fact led to the kind of conc erns that were expressed at the time, the kind of concerns you talked about in practice?

In other words, having the 60-day window has not increased the number of strikes because of any inc rease in the risk as borne out by the experienc e of 1988-89? Mr. Mitchell: With respect - Mr. Chai rman: Mr. Mitchell, would you wait until you are recogn ized so I can get you on the Hans ard ? Mr. Ashton, we can not hear you here; you should pull your mike up a little cl oser. Order for the rest of you there. We can hardly hear the exchange here. Mr. Mitchell. Mr. Mitchell: With respect, Mr. Ashton, I would say that the experience of the two years would be difficult to make any general ization from.

I think it is just a funda mental principle that if the reason why the strike lockout remedy is effective is because it is so cataclysm ic. lt is so risky. lt is so dangerous to either party to sustain that kind of a risk. If you say, well, it is not as risky as it was, you can go on strike. If the strike is not all tha t success ful, you can come back and get arbitration instead . I would say, well, if we did not have that option, I proba bly would not recommend a strike. But here is a situation where we can go on strike, and if that works, great. If it does not work, we still get arbitra tion.

We can control whether we ge t arbitration. Without trying to make too much out of the statistics, I think just a logical approach would lead you to the conclusion that strikes are likely to occur that would not otherwise occu r, because the risk is reduced. Mr. Ashton: The statistics do not show that, but I just want to perhaps put it in a more direct situation. I do not mean to personalize this discussion. I do not know if you ever had to make that decision by having to vote to go on strike. I have. I have twice, and I tell you it was not an easy decision when I voted in both particular cases.

I was single at the time. I did not have a family to support which I do now. I can tell you, it was not an easy decision, and if I had been put in the situation 97 of someone coming to me and saying: do not worry, you will only be on strike for 60 days. I would have said to them: only, be on strike for 60 days! At the time that was enough to wipe out whatever savings I had. In fact in the 19 81 strike, in which I was involved, I had the for tune act ually to be elected to this Legislature, so I did not have to sit for three months, which everybody else in the bargai ning unit did.

I am just asking you, since the statistics do not bear out the argument, do you really seriously believe that someone would go on strike for 60 days to obtain the option of final offer select ion given all the risks that are still involved with a 60-day loss of wages, the potential loss of one's savings, the potential loss of one's house, even? Do you seriously believe that is the case, logically? Do you believe anyone would take that risk? If you do believe that, I just really wonder why it has not happened in the two years of experience here in Manitoba. Mr.

Mitchell: I guess I would just repeat that I do not agree that the statistics prove anything. lt is impossible to say, on the basis of a handful of situations, what parties would have done otherwise.

In answer to your own personal experience, I have been involved as a member of a bargaining unit, although there was not a strike decision. lt seems to me that it is not a question of whether or not a person will or will not lose his house in 60 days, it is a question of whether a person is making a decision because he is committed to it, because he believes it is the only fair alternative, because the position being put forward by the other party is so unaccept able, or whether a party is saying, for 60 days, we can sustain ourselves based on our strike fund, we can survive, we can continue as long as we know that after 60 days we can still go to arbitration.

Why go to arbitration now? Maybe we can soften up the employer and get something better in the meantime, and if they do not soften, then we will get our selector appointed after 60 days and we will get it that way. The whole princi ple, the reason we have had strike lockout remedy for the last 80 years I suppose used frequently anyway, or 70 years since the 1919 strike, the reason why it has been an effective process is because people have rather settled than take that chance. If you make it less of a chance to take, then I say to you, sir, it is illogical to think there would not be more strikes. Mr.

Ashton: I do not want to discuss or debate it in academic terms, but I am just asking you to put yourself in the situation of somebody facing a strike vote. I faced that incidentally in the strikes in Thompson. lnco has never hired strikebreakers. In many areas, many fields, particul arly in the service sector, it is standa rd, one ends up with strikebr eakers being hired . So one faces the problem to begin with that you may be on strike and the company may still be operating.

I am just saying, given the level of risk that is involved, do you not think it is reasonable, and we are talking about people here, not in abstract terms, that there is still plenty enough of a risk involved ? In fact, I will ask a further question as a follow-up to that, and that is,

Thursday, February 22, 1990 do you not think, and you mention in terms of the Fison's situation, would it have been better if the employees there would have still been out on the picke t line, past the 60-day window? They might still be on the pick et line, for all we know, in terms of what has happened. I mention that because in the case of the lnco strike in Thompson in 19 81, which I have personal experience with, that strike went three months. There have been strikes in Sudbury with the same company and the same union that have gone nine and 10 months.

The one thing that people have said to me, and they said it in the case of Thompson, one of the most difficult things sometimes, when you are on strike, is for both sides to get back to the bargai ning table and even begi n the process of getting a resolution. *

(2040) Now I ask even in that situation, do you not think that having some way of doing that, having the 60-day period is preferable to the three-month, or the nine month situation, or do you believe in the name of the type of princi ples you are talking about in the paper, and I respect that. I am not trying to say anything in terms of your views.

I respect your views on this matter, but are you saying, for example, in the Fison's strike, it would have been better if that strike had continued, rather than in this particular case having that 60-day window, or in the case of the Unicity Taxi, another one that was mentioned, or in the one involving Leaf Rapids Local Steelworkers, should go to final offer selection, but was resolved in a matter of days. Mr. Mi tchell: To use Fison's as an example, the first thing I would say is that if you had final offer select ion on the books, I think it would have been better for ever ybody . I think Mr.

Mc Meel, who is here and experienced it, would say the same. In retrospect it would have been better for everybody if the final offer select ion process had been the same as the first contr act process, which gives either side the right to refer the matter to arbitra tion without a work stoppage. The very fact of the application puts an end to a work stoppage. In that case, Fison's would have come to the same re sult, pr esu mably , without any work stoppage, without any risk of loss of a home, without having any of the ugly incid ents that took place out in eastern Manitoba when that happened.

Seco ndly, I say that if there were no 60-day window the chance that there would have been a strike at all if there had been no FOS, the chance that there would have been a st rike at all is much less, because those people who go to the strike vote meeting and have to make a decision between going on strike and making a settlement would not have in their minds the chance that they have a tailback position. They would make a final decision based on the proposal and the risk of a strike that might never end. Mr. Ashton: lt seems we are going to have a continuing disagreement on that.

I, as I said, having been through it, and know a lot of people who have been through a lot more than I have. I do not think this decision is every made lightly. 98 I just want to deal with another point. I do give you cred it to the extent of having put in some of the arguments on both sides of the issues.

I think that is fairly positive, but in reading through, the indications that have been given in terms of final offer selection, the views that have been expressed in terms of why there should be final offer selection, I had diffic ulty even from your own arguments of seeing the arguments that you had rejected out of hand. Even on the 60-day window, for example, and others, you said the statistics are not clear. The experience has not been clear enough. I just put this question.

This law was brought in with the sunset clause to begin with recog nizing that it is new and innovative at this level. lt is not a new process. Obviously it has been used in other North American ju risdictions and other contr acts, but wha t I am sug gesting is, one of our arguments, one of our conc erns in the New Democratic Party is that an effort is being made now to dismantle that force, not based on the evidence, in fact there has been no research done by the Depart ment of Labour into what has happened, no one has taken the time to talk to people that have been involved with final offer selection.

Our suggestion is, given one of our major points, Mr. Chairperson- -(interject ion)- if I might continue-i s that we feel the evidence is position, but some evidence is clearly not definitive. We can discuss back and forth the

interpretation of what happened last year with only seven strikes, the lowest incide nce of lost days in 17 years, whether that is related to FOS. I would certai nly argue it is not, no evidence that FOS has harmed the situation. I am just wondering, do you really believe that the evidence is conclu sive on final offer select ion? You , yourself, have talked about some examples you have seen, and I respect that, you have a direct role, you are dealing with it on a day-to-day basis, it is a field that you are knowledgeable of.

Ha s there been any clear evi dence tha t many of the fears that were expressed have taken place, because when I read through some of the arguments that were used against final offer select ion at the time, there is no statistical evidence, there is no empirical evidence, no evidence at all in terms of any of the contracts that that has been the case. I am just wondering what your comments are in terms of how concl usive the record is in terms of final offer selection. Mr. Mitchell: In fact, I share some of your feelings about the statistics, Mr. Ashton. I think it is difficult to say at this point.

I do not think that the statistics tell us anything about it. I think we have to rely on our own intuitions about it, to say whether it is a good or bad thing. I am not even sure that another two and a half years from now we are going to have any clearer idea from statistics whether it is a good or bad thing. That is something that is going to be much of a matter of perspective. I guess from our own point of view I might say that on balance I come to bury FOS not to praise it. I think it has some things that are praiseworthy about it. I do not think it is totally a negative piece of legislation. Mr.

Ch airman: Thank you. Mr. Ashton.

Thursd ay, Februa ry 22, 1990 Mr. Ashtoh: I have just one final question. I apprecia te your candor on that. We have been saying one of our concerns has been the fact that this legislation has proceeded , and I mentioned it earlier, without any real study, without any contact with people in the labour relations field, without any real contact with the 72 bargaining units that were involved. As I said, our caucus took the time to call people in some of the bargai ning units. In fact , the Member for Churchill (Mr. Cowan) personally got involved, developed a survey, and it was a very quick survey.

The interesting thing is that no one had asked the people who have been involved. I know you made some recommendations in terms of final offer selec tion or other type of interest arbitra tion in the future, but I am wondering if you would agree that perhaps regard less of which view one has of final offer select ion, it would be logical if one is dealing either with this Bill or further such Bills in the future to at least talk to the people who are involved. We may have our differences of opinion even at that point, but at least we presumably have a better data base.

I am wondering if you feel that might be added to your list of suggestions in terms of what the Government should be doing. Mr. Mitchell: Well, I guess at a couple of places in my brief I have said that I felt that the co nsultation that had been begun by your Government should have been conclude d before the legislation was rushed in as I kn ow it was. I would say, yes , th ere should be consultation. lt should not be limited to members of bargaining units, it should involve the entire community, management and labour.

I think that process was under way and I am still not exactly clear as to why it was aborted at the time. I guess if I was going to give any sort of endorsement to final offer select ion as an exper iment, it would be subject to the recommendations in the last page of my brief, which I think would be improvements, maybe most importantly of all the media tion element, because I think that is a very posit ive factor in labour management relations generall y, and also the principle of giving the employees a ch ance to say yes or no to what they end up with. Mr. Chairman: Are there any more questions? Mr.

Patterson. Mr. Patterson: Thank you, Mr. Chairperson, not so much questions, I just would like to echo the comments of the Member for Thompson (Mr. Ashton) in that you have given a good balanced representation, Mr. Mitchell, and I commend you on it. I think your final conclusions are creative and well worthwhile. You have touched on what I have felt have been a couple of the main problems with FOS, first and I guess foremost that it was pushed through before the Labour Management Review Committee had had opportunities to fully study and consult on it and come up with some reco mmendation on the matter.

Again I think final offer lends itself best to monetary items, but if the whole, all cl auses are going to be thrown into it, it cert ainly is not a good process in that 99 the selector has to choose one package or another. I certai nly think with other than monetary causes in FOS the selector should at least have the option of choosing cla use-by-clause. Again I would lik e to thank you for your presentation. lt has been very useful. Mr. Chairman: Are there any other questions? Thank you very much, Mr. Mitchell. I have just been informed tha t we have two presenters with out-of-town commitme nts, Mr.

Ross Martin and Mr. Peter Olfert. Did the comm ittee wish to hear from these gentlemen next? I do not know all the details here. Okay, then we will- Mr. Da vid Newman (Manitoba Ch amber of Commerce): Mr. Chairman, if I may, I was hear for two and one-half hours this morning and I cer tainly hope that I can get on this evening so that I can share what I have prepared to share. I was third on the list and have been there for many months. Mr. Chairman: Yes, it is up to the committee. AI Patterson, please. Mr. Patterson: Mr. Chairperson, I cer tainly agree that Mr.

Newman should be very definitely heard this evening because he was promised, after Mr. Mitc hell it was comm itted that he would be the next presenter this morning. *

(2050) Mr. Ashton: I am sure we as a committee can assure Mr. Newman that we will be dealing with his presentation tonight. In fact , I would recommend we deal with the two out-of-town presentations and then go to Mr. Newman. I do not know if Mr. Ryzebol is here, but perhaps if we could ask him if he would not mind going after Mr. Newman. I raise this because it is nine o'clock now. I know in the case of Mr. Martin, who is from Brandon, it is a good two-and-one-half hour drive back to Brandon. I would not want to delay it unnecessarily. An Hono urable Member: Find out how long his presentation is. How long is it?

Mr. Ch airman: The length of the pres enta tion is probably no problem. lt would be the length of the questioning, so we are going on good will tonight. We will cert ainly let you have free reign, but if we keep this in mind it might-O kay, could we tiear from Mr. Ross Martin and then followed by Peter Olfert and then Mr. Newman? How would that be? Mr. Ross Martin. Mr. Ross Martin (Brandon and District Labour Council): Mr.

Chairperson, I would like to thank the Standing Committee on Ind ustrial Relations for allowing me to come forward. lt is kind of mean weather in Brandon with a lot of cars off the road and I do appreci ate this so I can get back tonight. Mr. Chairman, Hon ourable Mem bers, I am not planning to deal a great deal with statistics. I am sure you will get them all. In fact you should already have those, and I have got them here if you do not have

Thursday, Februar y 22, 1990 them. I did not put them in my brief. I tried to keep my brief fairly short. What I am dealing with mainly in my brief is the political process and the reasons for it. That is the part that bothers me most about this whole process in that we are cutting off this right in the midd le, prior to the 19 93 review date. Mr. Chairperson, I am the President of the Brandon District Labour Council. The Brandon District Labour Council represents approximately 4,000 workers in western Manitoba, with the majority in and around the City of Brandon. lt is regretful that we find ourselves here before you today to speak against Bill No. 31,

an Act to repeal final offer selec tion. Bill No. 31 has only one purpose. That is to deny workers of this province another peaceful avenue to settle disputes with their employer.

The Conservative minority Government, propped up by the Liberal Opposition, both propped up by business interests, have once again decided that the welfare of workers and the public is second ary to the interests of business. lt is evident to us that the Conservative Liberal Party prefers strikes and lockouts rather than negotiated settlements. it is apparent to us that the Conservat ive-Liberal Pa rty prefers violenc e on the picket lines rather than meaningful negotiations at the bargaining table.

Ho w can this Party argue dif fe rently when the statistics from this very Government shows that 85 percent of the cases finalized by the Manitoba Labour Board were selected by the two parties prior to a selector decisi on? How can the Conservative-Liberal Party say that final offer select ion does not work when only five cases that resulted in selector decisions were split three for the union and two for the employer?

The success of this legislation is not how many times it is enacted and followed through to the selector decision but rather how many times a negotiated settlement was reac hed between the two parties prior to a selector decision. This important point seems to be lost on this unholy alliance of Conservative, Liberal and business interests. Perhaps the point is not lost. Perhaps this alliance will make up any excuse whether true or not to impose Bill No. 3 i on the citizens of Manitoba. Is this an election debt to business supporters? While this is conjectu re, ii certai nly does fit the sce nario.

How else can you explain Bill No. 31? Why else would the Government of Conservatives and Liberals be so insistent on the repeal of final offer selection? lt is certainly not because they have the workers' interests at heart. lt is cert ainly not because they have the public interest at heart. lt is certai nly not because the legislation is not working. All the facts show that it is. Therefore, why is it so crit ical to repeal final offer sele ction after just two years? Is it because the legislation is working?

Is it because the Conservative Liberal business interests feel that they can more easily break unions without this legislation? Is it because the Conservative-Libe ral Party does not want to represent the interests of working men and women but only the wealthy business interests? 100 The reasons put forward by the Conservative-Liberal Party in support of Bill No. 31 are very shallow and deceivi ng. When fina l offer sele ction was fi rst introduced , the Conservatives were totally opposed to this legislation although they could not come up with one honest reason why.

We would suggest that the same is true today for the Conservative-Liberal Party. The Brandon and District Labour Council urges this Leg islature Law Amend ments Comm ittee to recommend to the Government that Bill No. 31 be withdrawn and that the legislation be reviewed in 19 93 as contained in the legislation. Thank you. Mr. Chairman: Mr. Lamoureux, Kevin. An Honourable Member: I am taking it first as the critic. Mr. Chairman: No, he beat you, Al. He was ahead of you.- (in terject ion)- okay, if you want to give him seniority. Mr. Patterson. Mr. Patterson: Thank you, Mr.

Chairperson, and my honourable friend, the Mem ber for lnkster. I have no questions, Mr. Martin, but I just want to get something on the record . I take very serious issue with the sta tements you have made about the Liberal Party. You are welcome to your own views, but I am here to state that I, personally, in the Liberal Party am not out against the interest of the working people of Manitoba or of Canada . So let that very clearly be on the rec ord . To be against this particular piece of legislation does not imply that in any, way, shape or form.

I mighi point out that final offer arbitration arose largely from the public sector. In the United States, in most of the Civil Services, the right to strike is not there, and, ther efore, arbitr ation has been used , mandatory arbitration.

Due to the chilling effect of interest arbitration, other methods were sought to make it more effective, so the final offer scheme came about and has been used consid erabl y in most types of jurisdictions. it does not exist in any other jurisdictions in Canada and in the private sector, and to be for the repeal of this particular Bill does not necessarily follow that a party or an individual or any organization is against the interests of the workers or is out to break unions so I just want to make that very, very clear. Thank you. Mr. Chairman: Thank you . Are there any other questions? Mr. Lamoureux. Mr.

Kevin lamoureux (lnkster): Mr. Chairperson, the Member for Rad isson (Mr. Patterson) I think has put it qu ite well. I have sat on many different committees since being elected , and I must say I am very surprised and shocked . When I came to this committee I was hoping that when Bill 31 came before a committee that we would be hearing arguments from the public to the deg ree in which why this particular legislation should be changed, amended or withdrawn. The amount of information that was given through this presentation, I would have anticipated from the

Thursday, Feb ruar y 22, 1990 thir d Party in this Chamber . I feel bad for tho se tha t this particula r Mr. Martin represents. I think he is doing an inj ustice. The Liberal Party does represent the worker ju st as much as the thir d Party in this Cham ber. Thank you , Mr. Chai rpers on. Mr. Ashton: Mr. Chair pers on, I am am azed at the Li berals. The y have said the y are vot ing with the Cons ervat ives on this which I bel ieve is agains t the int erests of work ing people in this province. The y have the ner ve to critic ize Mr. Martin for pointing that allia nce out.

I would say tha t the Li berals who came into this comm ittee are the ones tha t have a lot of apologizing to do, not Mr. Martin. I would hope the y wou ld ha ve the cou rtesy to ask him qu estions rather than in tryi ng to engage in a one-sided de bate. I would point out, Mr. Chai rperson, too that the Liberal Party has only put up two speakers on this Bill thus far, so they are good at debating with Mr. Martin iri this comm ittee when only one person is speak ing, but th ey seem to have some dif ficult y in the Leg islatur e.

I digr ess; I still have some hope for the Li berals tha t maybe they will come to their sen ses arid vote agains t the Cons ervatives on this Bill. We shall see. I do want to ask Mr. Martin a que stion and ask him very, very specifical ly. One of the argume nts used by the Li beral Party in terms of their supp ort for this Bill which wou ld repeal final offer sele ction, is tha t the y feel that final offer select ion has not been in the interests of the labour movement. They have tried to sugge st that somehow the unions are suffering because of final offer sele ction.

I will not get into the detail of the arguments. We dis cussed some of th ose this morning. I would jus t like to ask you in your opinion, in your role here tonight repres enting the Brandon Distric t Labour Counci l, what is the view of people in the labour movement in Brandon? Do th ey agree with the Li berals tha t final offer select ion is not in the in ter ests of the labour movement? What is their posit ion? * (2 10 0) Mr. Martin : The Brandon District Labour Council dis agrees with the Li berals. I mu st apolog ize if the y are shocked , but it was not my doing tha t caused them to vote the way the y are.

The people in Brandon feel tha t th ere are benefits to final offer selec tion. Sp eakers who say tha t workers demand the right to stay on strike forever and ever, I am afraid are sad ly mi staken. No one lik es to go out on strike and neither do worker s in any plants tha t I have talked to. In addition , we bel ieve tha t final offer sele ction gets the two parties together to negotia te a sett lement.

I am sorry I poi nted it out in the brief once, and I do not want to keep on going over it sinc e some people seem so dis satisfied with it, but I explained tha t the success of the legislation is not how many ti mes it was ena cted and foll owed thr ough to the selector decis ion, but rather how many ti mes a nego tia ted settlement was reached between the two parties prior to a selector decisi on. That is the point. The point is to get the two parties together , not to separate them. This is an avenue tha t helps tha t 101 process.

Rather than going through the prob lems of a strike or a lockout, why can we not have some process that tries to get the emp loyer and the workers together so the y can reach an agreement, one that the y can li ve with? lt is not too di ffi cult to un ders tand. One of the problems I really have is, and the previ ous presenter mentioned it about the statistics, we have only been in it for a couple of years. What is wrong with letting it go through until 19 93 so we do ha ve the stats on it, so we can see whether or not it is really work ing? I agree that you cannot do it over night. You do not have enough stats.

You putit in one day and say we do no t have the stats tod ay. Why not five years? Why not let it run its cou rse? lt has been work ing up to now. Why not leave it alone? Mr. Chairman: Mr. Patterso n, do you have a qu estion for the presenter? Mr. Patterson: Thank you , not a specific que stion, Mr. Chai rpers on- Mr. Chairman: We pretty well have to stick to que stions. We are gett ing off on- Mr. Patterson: I want to cla rify the reco rd - ***** Mr. Ashton: On a point of order , Mr. Chai rperso n, I am sure as a comm ittee we can allo w the Li berals to make statements if the y wish.

I have no ob jec tions - (i nterject ion) -or the Cons ervatives. I am looking forward to a genuine de bate on this. In the ent ire time this Bill has been before the Leg islature-for the in formation of Mr. Martin who I am sure mu st be wondering what the heck is going on here-w e have had one Cons ervat ive speak er, two Lib erals speak and all 12 New Democ rats put their position on the Order Papers. I am qu ite willing to allo w the Liberals to start deba ting this, or the Cons ervat ives- Mr. Chairman: Order , order . ***** Mr. Chairman: Mr. Patter son. The Chair recogn izes Mr. Patter son. Mr.

Patterson: Thank you , Mr. Chair person. I might mention that any tim e I might take is going to be an infini tesi mal percentage of tha t taken by the thir d Par ty and the Mem bers opposite. I jus t want to make the record clear that in my pre vious com ments I was in no way castigating Mr. Ma rtin or his position. I was just pointing out th at I take issue with the comme nts he is making about the Li beral Party bei ng out to break unions and not having the int erest of workers at hea;t. Whe never leg islation comes up, Mr. Chairp erson, we have this commit tee, and in deed every body in this

Thursday , February 22, 1990 Cham ber is looking at a bal ance in the in ter est of all Manitoba. Neither empl oyers nor emplo yees are going to get every thing the y think th ey wou ld like. Jus t the fact tha t the y do not get it at some particular time is unr easonable to dr aw some conclusion or in ference tha t the Party is agains t the in ter ests of labour and is out to break unio ns. Thank you , Mr. Chairp erson. Mr. Ashton: Mr. Chair pers on, onc e again I hope the Li berals will change their minds and maybe put some su bstance to their words. I do take their in tent seriously- Mr. Chairman: Mr.

Asht on, do you have a qu estion for the presenter? Mr. Ashton: Mr. Chair perso n, I am ju st doing what Mr. Patterson was doing. I am saying to the Liberals dir ectly tha t I hope th ey will, with their votes on this Bill, vote with the working people of Mani toba. I wanted to get back to ques tioning Mr. Martin very brie fly, becaus e I real ize you have to go to Brandon.

There have been suggestions made earlier tonight tha t someho w final offer selec tion- I am not tryi ng to pick on one presenter , but this has been raised as a argument consistently , and by both the Li berals and Cons ervatives, tha t the 60-day windo w redu ces the risk of a strike and th erefore the people are going to -1 assume the analogy is- have their cake and eat it too, vote for a strike, go out for 60 days and then come back in on final offer selec tion.

I kno w the re have been a numb er of strikes in Brandon recentl y. ! am wondering if you can ind icate, from your perspectiv e out in Bran don, if you belie ve tha t has ever been the case or is ever lik ely to be the case, that people will vote to go on strike, to sit out for two months with no wages, only strike pay, so the y can take advantage of final offer sele ction which un der the exis ting legislation th ey can take advantage of prior to the work stoppage. Mr. Martin: Well, Mr. Cha irperson, I have really heard of noth ing so silly in my life.

I canno t remember anybody saying, ge ez, let us go out and have a strike so I can stay out on strike for 60 days and colle ct strike pay. I really wonder who we are talking about here and I want to join tha t union if their strike pay is tha t gr eat, because I am telling you my strike pay is no t going to co ver very much. I really obje ct to the premise that is behind all this, tha t workers do not have enough intell igenc e to make up their mind whether to go out on strike or not and tha t somebody has to tell them that they have to go out or the y do not have to go out. That is the mo st ridiculous thing.

Workers have enough brai ns to make their own dec ision. If the y are going to go out on strike and they are going to vote on it th rough a dem ocratic pr ocess, and I hope nobody has any object ion arou nd the table about that, because it is democra tic, then I belie ve the y have the right. That is the ch ance the y take. If it sits out for 60 days then that is the time the y are out, and tha t is a long time when you are out on strike.

I kn ow one perso n at least arou nd this table 102 tha t has been out on strike, I do not know about the rest, but try staying out for 60 days and you will find out it is no t a ball of roses or anything; it is terri ble. So I would sugge st that the re is no basis whatsoever for tha t state ment tha t the y want to go out for 60 days; it is asinin e; it is ridiculous. Mr. Ashton: I jus t want to ind icate that the Mem ber for The Pas ( Mr. Harapiak) was on a nin e-month strike, so he has been th ere. I have ju st one final que stion.

We are deal ing with final offer select ion of cou rse, a matter before us, a Bill that would repeal it in its enti rety. I take it from your brief tha t your basic message, mo re to the Li berals and Cons ervativ es on the commit tee, but to this commit tee generally , is that final offer selec tion should be gi ven a ch ance. You are sugge sting tha t we look at the experienc e over the next period of years and then assess it at that point and not kill it now before it has had a chance. * (2 1 10 ) Mr. Martin: That is dir ectly our position. Do not touch it, do no t screw it up, it is work ing right now.

Let it go for the five years; it does have a sunset claus e in 19 93. Review it at that time when you have more in formation about it. You will have a much better idea of how it is work ing and then at tha t time perhaps you can make adjus tme nts if necessary. To kill it now really bogg les my mind and that is why I think ther e are other reasons why it is being kill ed now. I stand by th ose con jectu res, and the y are conjectures. I am not saying that there is a lo t of proof, although I am sure that I could get some proof. I tried to make this brief fairly shor t and get right to the point.

The point is, we wou ld li ke to see this legis lation left as is until it runs its course. Mr. Chairman: Thank you. Are ther e any further qu estions? Thank you very much, Mr. Martin. Mr. Martin: Thank you , Mr. Chairp erson. Mr. Chairman: We will now hear from Peter Ol fert. Mr. Peter Oifert (Manitoba Government Employees' Association): Thank you, Mr. Chair perso n, Mem bers of the Leg islativ e Assembly . I would like to thank the comm ittee for an opportun ity to come and present a brie f on the issue of final offer selec tion.

The Mani toba Government Empl oyees' Associ ation represents some 24,000 Mani tobans covered by over 10 0 colle ctive agreements. Our mem bers are emplo yed in a numb er of widely div erse occu pations. Just un der half of our mem bers li ve and work in the City of Winnip eg with approxi mately 54 perce nt living and working in rural Mani toba and northern parts of the pro vinc e.

The Man itoba Government Emplo yees' Associa tion stro ngly oppo ses Bill No. 31 and sup ports the retention of final offer select ion as a work ing alternative to strikes and lock outs and as a sound means of promo ting good faith bargai ning in the colle ctive bargai ning area. We sup port final offer selection for a num ber of specific reasons. We belie ve it sup ports and aids the

Thur sday, Februar y 22, 1990 col lectiv e b!lrgaining process. We belie ve it is a valuable contri butor to a healthy and stable labour rela tions clima te. We belie ve it is an acceptable alternative to stri kes and lockouts. In short, Mr. Chai rpers on, final offer select ion is good for the people of Man itoba, for workers, for busine ss, for consumers and for invest ors. I bel ieve any ob ject analysis of the record will show that final offer select ion is wor king.

At worst, I would say tha t nothing has hap pened in this area other than an elect ion promis e tha t would in any way sup port not allo wing the legislation to run thr ough its legisla ti ve review. The re is no objective reason to stop the trial peri od. In fact, I belie ve quite the op posite is true. The goals of any labour rela tions legislation mu st be to help facil itate colle ctive bargaining, arri ve at fair settlements and avo id strik es and lockouts while pro tect ing the fu nda mental rights of workers, management and the com munit y.

FOS ha s, accord ing to ob ject ive statistics and analysis, proven to be a val uable tool in ach ievi ng each of th ese goals. FOS has fir st and forem ost proven to be a means of facil itating good faith bargaining. According to the Go vernment's own statistics 85 percent of appl ications have been resolved at the bar gaining table. No select or was ne cessa ry. No cont ract was im posed . Perhaps mo st imp ortant ly, no strike or lo ckout occurred . FOS has been a fair way to reso lve dif ferences. Both sides, as a resu lt of the process, are forced to be mo re reaso nable in their offe rs.

Because of this the process favour s neither workers nor management but is fair and balanc ed . This is evident by the fact tha t of the 5 cases that have gone to a selector , th ree decisions have favoured the emplo yees and two decisions have favou red the empl oyer. As a means of faci litating good faith barga ining and arrivi ng at a fair sett lement final offer select ion is wor king. As a means of avoiding strike s and lockouts th ere can be no qu estion but that it is wo rking.

Never in the his tor y of this province have unions and emplo yers, and I empha size empl oyers, had the right or the means to go dir ectly to emplo yees and say we can settle this without a strike, and we can sett le this without a lockout and we can sett le this in a way tha t will be fair. FOS is an in cred ible tool for un ions. lt is an incr ed ible tool for emplo yers and final offer select ion is a right I beli eve emplo yees should have. FOS do es reduce the ne ed for strikes and lockouts. FOS is a work ing altern ative to work stoppages.

By the Go ver nment's own statistics, the Province of Man itoba has the fewest work days lost to strikes and lockouts of any province in Canada. Final offer select ion is working. Final offer select ion is proving to do what it was in tended to do. I remember the deba te that occurred when Final Offer Selecti on' was fi rst propo sed as an amendment to the Manitoba Labour Rela tions Act. I remem ber the fears and thr eats from th ose that op posed it. FOS was a dr amatically new idea and people had a right to be conc erned . I un derstand tha t. I shared some of th ose concerns.

Wha t I do not un ders tand and wha t is di sappo inting is tha t despite the fact FOS has ob jectively proven successful th ere are still th ose using the same thr eats and promo ting the same fears. What is particul arly out rageous is that some Mem bers of this Assembly want to ign ore the facts and for no reason other than an ill-conc eived elect ion promis e to the Cham ber of Comm erce to take away this right before its trial has even run its cou rse.

Let us look at some of the fears and th reats exp ressed in 19 87 and still being promoted toda y by the Cham ber of Commer ce and some Li beral and Cons ervat ive Mem bers of this Ho use. FOS will encou rage stri kes. The crit ics of FOS say tha t workers in volv ed in a contra ct di spute will not bargain seriously , choosing ins tead to go on strike for 60 days knowing tha t at the end of that period they can apply for final offer selection. This is a rid iculous argume nt th at ign ores the financial, moral and family obliga tions of work ing people. Workers do not go on strike because the y want to.

Workers do not play game s with their jobs and their fam ili es' securi ty. FOS do es not cause strikes. FOS gi ves workers a much needed option. With FOS th ey have a sho t at a fair cont ract without putting their fam il ies' homes at risk. The y have a shot at a fair cont ract without ex plaining to their kids why th ere will be no Chr istmas or birthda y presents this year. The y have a shot at a fair cont ract without put ting their job s and their famil ies' future on the line.

They have a choic e. lt do es not mean th ey are going to get what th ey want, but it do es mean the y have a shot at a fair deal without going on strike or being locked out. 103 Wha t do es tha t hur t? Does it hur t the commun ity? Does it hur t the worker? Does it hur t the emplo yer who wants to avoid a strike or a lockout barga ining in good fait h? FOS hur ts none of the se people.

FOS hur ts onl y the emplo yers who for wh atever reason want their emplo yees on strike or locked out, emplo yers who have been able in the past to use this threat of a lockout or a forced strike to keep wages and benefits unne cessarily low or to keep their workers from even joining a union. When people say FOS gi ves unions an advantage what the y are really saying is tha t FOS go es a long way to take the we apon of fear away from the emplo yers. That is not an advantage to unio ns. Tha t is fairne ss for working people and for their familie s.

Wha t of the critic s tha t argued FOS wou ld tilt the col lectiv e bargaining balanc e heavily in favour of the workers? The y too have been proven wrong. Acco rding to Statistics Canada, wage inc reases in Mani toba sinc e 19 86 lag well behind the national average and the cost of li vi ng. FOS will lead to longer stri kes. Again th ere is not evidence to supp ort thi s. In fact the evidence is qu ite the contrar y. FOS has stop ped strikes. lt has stopped them from starting, and it has stopped some from

Thur sday , February 22, 1990 dragging on endle ssly. FOS offers a fair, non-violent, face-saving way out of entr enched , some time s unr esolvable di sput es, dis put es tha t can ruin compan ies, destroy famil ies and kill com muni ties. Why anyone who says the y belie ve in harmonio us labour relations, tha t th ey bel ieve in alternativ es to strike s and lockouts, tha t they belie ve in fairnes s and in a sound economic environment would advocate removing this option to strike s and lockouts before it has even comp leted its trial period, I do not und erstand.

There are tho se, the Leader of the Li beral Party (Mr s. Carstai rs), in particul ar, who say that one of the reasons the y oppo se FOS is tha t labour is di vided on the issue. That is no nsense. Over two-thirds of the MF L mem bers suppor ted FOS when it was fi rst introduc ed . The overwh elming majority of labour groups were and are behind FOS. Wha t is perhaps more relevant is tha t not only do the se same groups continue to suppor t FOS, but many of the ini tial opponents are now in full sup port of FOS or are op posed to the repeal of FOS.

The building trad es, the Canadian Federa tion of Labour , the auto workers, the com mun ication workers and the Can adian Union of Publi c Emplo yees, to name a few, are joining us to ask tha t FOS not be repe aled. * (2 12 0) To the Mem bers of this comm ittee and in particular to the Li beral Mem bers, I can tel l you labour is uni ted in opposition to Bill 31. The MGE A and its 24,000 mem bers stro ngly urge all mem bers of the Leg islature to vote agai nst Bill 31. We do so as trade union ists, as consumers, as voters and as citizens of Man itoba.

The MGE A belie ves sound alternativ es to strikes, lockouts and legislation tha t encou rages good faith barg aining are good for our provinc e. Mr. Chairman: Thank you . Are th ere any qu estions? Mr. Ashton. Mr. Ashton: Mr. Chai rperso n, in your brief you dealt with one of the arguments tha t has been made in terms of final offer selec tion, tha t the labour mo vement is not fully behind the fig ht to stop this Bill, Bill 31, by pointing out to comm ittee the many unions tha t supp orted FOS right from the beginning, or have now joined the fight to stop its repe al.

One other thing tha t has been sugg ested , and has been suggested by both the Li berals and Con servatives is, alm ost the y do conce de-and I have yet to hear them publ icly say it- that unions have changed their mind. The Li beral Labour Critic (Mr . Edwards), for example, said tha t he bel ieves final offer sele ction weakens unions. lt is a di rect quo te: I belie ve -this is him speaking -tha t final offer select ion weakens uni ons. lt is to the point where even if unions thems elves in sup port of FOS are oppos ed to this Bill, someho w th ere is some concern that it weakens unions.

You rep resent a union tha t has 24,0 00 mem bers. Do you feel in any way, shape or form tha t final offer selec tion has weakened your union since it was in trod uced and proclaimed just over two years ago? 104 Mr. Olfert: To answer that, no, it has not. Our feeling is tha t it has not weakened us. Our perc eption of what has hap pened sinc e this legislation has been on the books is tha t it has not weakened any other unions in this provi nce.

To answer your other qu estion, the Mani toba Go vernment Empl oyees' Association was one of the fi rst uni ons to take a position in favour of the le gisla tion when it was first prop osed . Our conve ntion has adop ted tha t. lt is conv ention pol icy that we do suppor t final offer select ion as an option in the bargai ning pro cess. Mr. Ashton: When is the cont ract, the MGE A cont ract up, the next contra ct? Mr . Olfert: Our col lective agreement expi res in Septem ber of this year. Mr.

Ashton: Perhaps I might ask this qu estion, and this tim e it is not going to be perhaps as hypothetical as previ ous presenters I have asked. Will you be going to your mem bership, if final offer sele ction is still in pla ce, and recommen ding they go on strike for 60 days so that they can take advantage of this 60-day windo w of final offer selec tion? I am asking that because I have put it in hypothetical terms.

I am won dering if you wou ld even seriously ever consider recommending your member ship go on strike for 60 days so that the y could take advantage of this 60-day windo w that people have been so conc erned about? Mr. Olfert: I mentioned on page 7 on my brief that I think that sort of an argument is qu ite ridiculo us, to think that people are going to go out on stri ke and wait for the FOS windo w to appear 60 days in to a strike.

I think tha t it ignor es the financial, mor al and family obl igations of working people, that people canno t afford to be out on strike for th ose kinds of dur ations just in the hope that the y can tag onto tha t 60-day wind ow. Then of cou rse you are into a situation wher e your posit ion may not be sele cted ul tima tely in the end. Absolutely not; I wou ld not go recommending tha t to our mem bers. Mr.

Ashton: Another ob jec tion to final offer selec tion has been tha t-this is a quo te again from the Li beral Labour Cri tic-it erodes the fundamental accou ntabil ity of the union leader ship to their mem bers, because the y can end up being not ultima tely respo nsible for nego tiating a contract. We have had final offer selection for more than two years. Do you belie ve in any way, shape or form that it has eroded your accou ntabi li ty to your mem bers in any way, shape or form in the two years it has been in pla ce in Manitoba? Mr. Olfert: Absol utely not. Mr.

Ashton: Another sugge stion has been -t hese are di rect quo tes again-th at it di srupts the workpla ce. "lt creates unr est in the workpla ce and will continue to do so." Have you, with your mem bers, had final offer selec tion, which has been in pla ce for two years, in any way, shape or form , create any un rest in the workpla ce that you are aware of?

Thursday, Februar y 22, 1990 PE!rh& gs, I will broaden the ques tion. In any other unions in Man itoba, ha s it cr eated un rest in the work pla ce in the two years it has been in pla ce? Mr. Olfert: I can only speak of our own situa tion. Our union has not gone the FQS route since it has been legisla ted. However, we feel strongly tha t it wou ld be an option for us if we got into th ose kinds of situa tions. I do not bel ieve tha t what you are talking about I can respond to in terms of other un ions, in terms of the mor ale in the work pla ce. Mr.

Ashton: In other words, within MGE A, nothing of the sort has occu rred . None of the fears. I was at the commit tee. I remember wel l when the Bill was in troduced. There were some fears, and there were some legitima te concerns. Wha t I am tryi ng to deal with is both the fears and legiti mate concerns. This fear that was exp ressed , and this is, by the way, on Septe mb er of 19 89, this is a recent argument that has been put forw ard, jn this case by the Li berals, although I do bel ieve the Cons erva,tives have made the same sugge stion.

You do not belie ve tha t it has created this kind of di fficulty wit hin the memb ership of which you are the president. Mr. Olfert: Not with in our mem bersh ip. No. Mr. Ashton: Just one final que stion . I do belie ve it is in your brief, but I jus t want to make sure it was cl ear. You are sugge sting to Mem bers of this comm ittee tha t exis ting legislation in terms of final offer select ion be contin ued until the suns et cla use takes pl ace, in this case, 19 93.

You are sugges ting essentially , I unde rstand it, tha t the position of the Manitoba Go ve rnment Emplo yees' Associa tion is tha t it should at le ast be gi ven tha t opportun ity before it wou ld automa tically lapse from the Order Pap er. You are s�tying basically to giv e it a chance. Mr. Olfert: Yes, tha t is our position. We think tha t it has onl y been in leg islation for two years. The re are some statistics to date, but our position is tha t the suns et clause is there and tha t it should be reviewed after the five-year period . Mr . Chairman: Thank you. Are ther e any mo re qu estions?

Thank you very much, Mr. Olf ert , for your presenta tion. We will now hear next from Mr. David Newm an. Mr. Newm an. Mr . Newman: Mr . Chairman, Mem bers of the Comm ittee, I am ap peari ng here as Pre sident of the Manitoba Cham ber of Comm erce, speaking on their behalf this even ing. The supp ort of the repeal of final offer selec tion was a decision made at the last annua l mee ting in May in Por tage la Prairie, so I am carryi ng out the manda te of the mem ber ship. I do happen to have a considerable amount of per sonal experience as a person inv olved in the labour rela tions field in excess of 20 years.

I have had a considerable amount of in vo lvement in the process of col lec tiv e bargai ning and also with respect to fiJ1CII offer select ion sinc e its ini tiation in February of 19 88. 105 * (2 13 0) Just by way of pre lim ina ry comment, I have fou nd this to be an extrao rdinar y time in our hi sto ry, and I have heard a considerable amount of emotion from behind me and a considerable amount of emotion exp ressed at the Table about an is sue.

The extrao rdin ary natur e of what is happen ing here and thr ough this pr ocess is that the union movement appears to be, through its vocal leader ship, exp ressing a wish to have stri kes repla ced by an alternative. I think that it is a very int eresting situation. Certa inl y some thing tha t is cont rary to what I thought was the phi losophy of the union movement which fought so long and hard for the right to strike.

They seem to treat it as some thing to be feared, some thing that hur ts very bad ly, some thing tha t is not heroic any more, some thing where heroism grew out of the sacrifices made by fam il ies as the y took on some thing that was based on principle, and the y fought for th ose rights through the col lect ive bargai ning process. (Ms.

Avis Gr ay, Acting Chairman, in the Chair) I find tha t an in teresting point in their hi sto ry, and I am not qu ite sure why in Man itoba this perspectiv e is being exp ressed cont rary to anywhere else in North America. lt is a very interes ting thing, and I do not have the answers to it, but it causes me somewhat a bit of distur bance. · I am going to try and take this out of the realm of emotion, because this issue do es provoke strong feelin gs.

Un fortun ately, I think, to a certain exten t, tho se feel ings, nega ti ve feel ings, are being encou raged by our Membe rs of the Leg islatur e who are propo nents of this and are def ending it. lt is a pie ce of legislation tha t was put into effect in a real hurr y. lt was some thing tha t was no t gi ven a broad amount of suppo rt. lt was never suppor ted by the busi ness commun ity. In fact , when it was first sugge sted, going back to 19 84- actually the White Paper came out in'83- there was no suppor t for this, and th ere has not been througho ut tha t period of time.

Tha t was conv eyed , yet in a hu rry they went ahead with it. That is very dis turbing. Now they appear to be sugge sting that thought should be given to revoking some thing tha t never had though t gi ven to it in the fir st pla ce and is not accepted by the busi ness commun ity. I have heard attac ks on the busi ness commun ity generally , almo st as if busine ss is bad, almo st as if profits are bad . Those are an essential part of our com mun ity, reg ardle ss of your phi losop hy. Jobs depend on it. Jobs depend on profits; jobs depend on an effectiv e pri vate sector busine ss.

In fact , an effect ive public sector , as we all kno w, depends on effect ive priv ate sect or busine ss.

If we take th at emotion out, and we real ize tha t we are in a com mun ity, we are all in it together , and we are looking at a technique which has been put forward and is rejected by the busine ss commun ity general ly, we sho ul d-i f there is a wish to repl ace the strike mechanism, if th ere is a fear of the strike mech anism, if the re is not a willing ness to invoke that in the heroic way it has been in the past, then, sure, after this is repe aled , let us come together and let us work out alterna tives. You kno w the way you do that, you work

Thu rsday, February 22, 1990 them out at the bargaining table. In fact, some unio ns and emplo yers have. The pol ice did it with the city; the teachers have done it with school di visions. lt is not some thing that is forei gn to us. Winnip eg Association of Public Service Officers did it with the city. If someone wants to custom tailor a solution other than stri kes by mutua l agreement, the col lectiv e bargai ning encou rages tha t, lends itself to that. Tha t is the way the world goes rou nd.

If you can make a mor e success ful job secu rity program , and if you are get ting better ben efits tha t way, from the emplo yee perspective, then do it. If you can persuade the emplo yer tha t it is to the emplo yer 's benefit as well, the emp loyer will do it. Now in to the paper . Int roduction In May of 19 84 the NDP Go vernm ent app roved the con cept of automa tic access manda tor y final offer selection, which for convenie nce I will refer to as "forced FOS," in a White Paper . The concept was imp lemented in The Labour Rela tions Act by the same Govern ment effec tiv e Febru ary 1, 19 88.

This forced FOS is unique in Nor th America. lt is like wise inc onsis tent with the rationale of free colle ctiv e bargai ning. What Is Forced FOS Manitoba Style? If a party negotia ting a renewal col lective agreement wants to rem ove the possi bil ity of a strike or lockout he simpl y appl ies to the Labour Board and then mus t win a secret ballo t of emplo yees in the bargai ning uni t sup porting this method. For obvious reaso ns, a union is more li kel y to apply and win the suppor t than an emplo yer. That appl ication mu st be made between 30 and 60 days before the coll ective agre ement expi res.

The pro cess may also be used to end a strike or lockout after it has lasted for 60 days. A secret ballo t vote supporting forced FOS acco mp anied by an application with in three days after tha t 60 days will end the work stoppage and su bstitute forced FQS . Onc e again for ob vious reasons it is unl ik ely tha t an emplo yer would win sup port of emplo yees to end a strike called by the union. * (2 14 0) The board has no right to refuse an appl ication tha t is ti mely and app roved by secret ballo t vote.

The process invo lves the appointment of a single "sele ctor," which I will call "the tribuna l," agreed to by the parties, or failing agreem ent, from a li st of individua ls kept by the Board . A tribu nal appoi nted from this list may not be app roved of by either party. The role of the Tribuna l is to cho ose the final offer of the union or the final offer of the empl oyer. No "cherr y pic king" is allo wed . The Trib unal can no t revise either posit ion-he mu st ch oose one or the other .

The rationale is that the th reat of the Tribuna l reject ing an unr ea sonable offer and choosing the mo re reaso nable offer of the other party will cause both parties to mod erate demands and ac hie ve an agreement voluntari ly. This thr eat impli cit in forced FOS is a substitute for the th reat of the eco nomic sanctions, the strike or the lockout. 106 Values and Theory Offende d by Fo rced FOS A question of "values" and "the ory" is whether forced FOS is an accepta ble supple men tar y method -1 empha size the word "supp lementa ry" -o f inducing volu ntary col lectiv e agreements.

In our opinion it is not. lt sup por ts the concept of forced relationships and th ird party auth orsh ip of terms of tha t rela tionship without agreement between the parties to the rela tionsh ip. This conc ept and this situation is una cceptable in a free and democratic socie ty and viola tes the funda mental principle which is the very essence of free colle ctive bargaining, namely, the freedom not to agree, the freed om not to be bound by terms not agreed to by an exer cise of free will. Years ago, this sort of forc ed rela tionship concept was called slavery.

If you put it in do mestic terms, we often use an anal ogy of do mestic rela tions for the colle ctive bargaining rela tionships. How wou ld one feel if one were a wife or a husband and kne w that some thir d party unkno wn to both of them was going to im pose a rela tionship equ ivalent to marria ge on them ? How would one like that? But mor e than that, what this do es, this does mor e than im pose tha t relationship. This im poses the terms of the rela tionship as wel l.

I mean, when I heard female voices and male voices heck ling this sort of situation of a forced agreemen t and it is not an agreement at all, it is an order-w e apply it to real li fe and real rela tionship s. lt is offensiv e. We, in Manitoba do not buy that, I say. Forced FOS appl ies to all collective bargai ning situati ons in Mani toba after a first colle ctive agreement. lt can result in one party in effect di ctating unila teral ly the wages, terms and conditions of emplo yment he wants on the other , not only without any agreement, but without any comprom ise.

To illus trate, consider the following situa tion. In the opinion of the tribunal, one term on tech nological change is appropria te and 14 other terms including wages are inap propria te in the union's fina l offer. The tribuna l feels stro ngly tha t the emplo ye r's new reorganiza tion plan, requir ing new tech nolog ical change provi sions and several other new provisions is too dr amatic a change for him to app rove, yet he might agree with the 14 other emplo yer positions respecti ng the 14 other union demands.

The tribu nal chooses the union final offer resulting in 14 una ccept able provi sions being im po sed and a reorg anization being frustrated. Imp osed terms pur suant to forced FOS is a crude substitute for volu ntary agreem ent. lt is so crude and risky tha t the th reat will not either ind uce the emplo yer to enter in to in appr opria te agreements to avoid the risk of an even worse result through forced FOS, or resu lt in the tribun al im posi ng the terms author ed by the other party and rejected during barga ining.

What chance is there to use an economic sanction effect ively if ther e is an arbitr ary time limi t restricting its use? Imp osing a 60-day limi t is to, in some circums tances, emasculate the sanction so tha t it is ine ffective. (Mr. Chairman in the Chair ) The use of forced FOS to end a lockout or strike is of no advantage to the emplo yer given the uni on control

Thur sday, Februar y 22, 1990 over its mem bers and the fact tha t only emplo yees vote to decide whether to in voke forced FOS. The emplo yer has no equ ivalent oppor tun ity to invoke it if he wishes. lt is one thing to use FOS by mutual consent in antici pation of certain circu mstances as an agreed method of di spute resolution. lt is qu ite another to use forced FOS unila terally in kn own cir cu mstanc es as a su bstitut e me thod of di spute res olution after the colle ctiv e bar gaining method and work stoppage sanctions, whet her thr eatened only or used , have not ach ieved the bargaining ob jective.

FOS by mutual consent is accepta ble and consi stent with free col lective bargai ning. Forced FOS is the antit hesis of free col lectiv e bargai ning. The creat ion of automatic access manda tor y fi rst cont ract was the thin edge of the we dge. Tha t method simpl y post poned realistic bargaining until the renewal agreement stage. Forced FOS postpones real istic bargai nin g forever in ever y col lectiv e bar gaining rela tionship in Manitoba. Colle ctive bargai ning will succeed in spite of it, not because of it.

When all the camou flage is stripp ed away, forced FOS can be seen as another th reat to the capacity of management to make appropria te decisions sensit ive to and respec tful of marke t conditions. To maxim ize tha t capacity and mini mi ze interference with their decisions, emplo yers will agree to demands the y wo uld oth erwise reject and avoid change s they would other wise demand, or worst of all, the tribunal ch ooses the un ion terms which have been rejected by the emplo yer as inappr op riate. Th ese consequ ences are not beneficial to the Mani toba economy or its people.

In our opinion, forced FOS is affecting adversely more or less every col lective barg aining situation in Manitoba whether simply a latent thr eat, actually invoked , or both inv oked and resulting in a selec tion. In our opinion such a constraint on and deterrent to bold and inno vative emplo yer decision making, is not bene ficial to Manitoba ns, especially at this time. There is no evidence subm itted of any real need for forced FOS. Wha t is the need for forced FOS in Manitoba?

In our subm ission no case has been made to jus tif y this far-reaching intrusion into and un derm ining of effect ive colle ctiv e bargai ning in Man itoba, let alone anywhere else in Canada. The purpor ted pu rpose of this law is to encou rage colle ctive bargaining. Its suppor ters argue tha t it is a pressu re or creativ e th reat which causes emplo yers to make a deal rather than risk the tribunal im posing a worse one. This thr eat repl aces the potential strike or lockout as the means of ind ucing the parties to be reasonable.

The generally acce pted ratio nale just ifyi ng the avai labili ty of th ose economic sanct ions is tha t they will cause the parties to respect the realiti es of the marketpl ace and the pric es for labour dic tated by supply and dema nd. If others are willing to work for the wages offered then this sugge sts th ose wages offe red are reasonabl e. If th ose replacements do not do so, do as effective a job as th ose replaced or at hi gher cost , then the emp loyer should be get ting the message tha t perhaps the wages and terms offered should be impr oved .

As harsh a method as this may be to det ermine what is an appropria te col lect ive agreement, the qu estion is 107 do es experience jus tif y forced FOS being added as a supp lemen tary method. lt is easy to li st any numb er of ex ample s of the hardships associ ated with a strike or lockout and argue tha t society has spared them because of this law. This raises two issues. How often do stri kes or lockouts occur in Manitoba in the absence of forced FOS? Even more imp ortant than that question is what pric e do Mani tobans pay for this law? The first qu estion can be answered relatively easily .

Statistics reveal tha t absent this law only a very small percentage of colle ctiv e agreements in volv e a strike or lockout. lt is arguable that this· percentage would red uce even further , because Manitoba law has since 19 72 in creased the numb er of pr ov isions which dis courage emplo yers from beco ming in volv ed in a strike or lockout situa tion. The second qu estion is mo re complex. In our opinion the following are some of the hardships of this law to Man itobans: 1. The expen ses of the Department of Labour in admin istering this law all paid by the taxpa yers. 2.

The costs, risks and cons eq ue nces to the parties and tho se dependent on them such as shareholde rs, cred itors, customers and emplo yees of litigating under this law. The se parties ha ve rec ently include d rural muni cipal it ies and other public sector emplo yers. 3. The expens e to the parties of the sett lement impo sed by a tribunal as com pared to wha t the y wou ld have sett led for thems elves. 4. The conseq ue nces of pot ential busine sses choosing not to do busi ness in Manitoba because the y do not want to gi ve up control over their Ma nitoba labour costs to a tribunal. 5.

The conseq uences of un ions not barga ining reali stically and rather relyi ng on a tribunal to bail them out and gi ve them mor e than the y wou ld have achie ved through col lective bargai ning. 6. The consequenc es of union organ izers inflating expecta tions by gu arante eing pr ospective mem bers a col lective agreem ent. We heard Mr. Peter Olf ert say now th ey can guar antee a fair agreement, wh atever tha t means. This di scourages making the ne cessary com prom ises to ach ieve a col lective agreeme nt.

Co nseq uently ac hie vi ng a voluntar y colle ctiv e agreement under this law is mor e di fficult than it used to be. 7. The cons eq uenc es of the

partie s kn owi ng that an appl ication for fo rced FOS wi ll pr event a strike or lockout. This la w effe ctively remov es th ose sanct ions as creativ e tensions in the colle ctive bargai ning pro cess. Unions espec ially have no pressure to settle or agree to anything inno vative. This

Thursd ay, Febr uary 22, 1990 leads to inappropr iate cont racts being agreed to or imposed at the expense of the business and all dependent on its success. 8. The consequences of negotiating corrections to an inappropria te forced fina l offer select ion dur ing bargai ning for a new colle ctive agreement. 9. The extra di ffi culties and expense of administering, interpreting and arbitrating terms of a col lective agreement never agreed to but imposed by a tribunal. 10.

The cons eq uences of unions developing the habit of relying on tribu nals to ach ieve "c oll ective agreements" for them. lt is subm itted tha t repe ated tribunal involv ement, ins tead of coll ective agreements, will be a predictable result of this relianc e. I submit the evidence is cl ear. If you take manda tory firs t contr act it inevitably leads to final offer selection; that is why we have final offer selection. You get dependent on it.

Ha ving achie ved an imposed cont ract without earning it through the crucible of real col lective bargaining, is a union and the bargai ning unit likely to be ready to achieve the next renewal agreement voluntarily? 11 . The consequenc es of employers agreeing to terms which are not appropriate simply to avoid the risks and expenses of the process under this law. 12 . The consequ ences of the union or employer blaming the board for imposed terms, rather than being acc ountable i md responsible for all terms in the col lective agre ement.

In our view it is essential to an effect ive coll ective bargaining process that the parties be accou ntable. They should not be encou raged by the law to abd icate responsibility for their act ions and decisions by simply passing them on to another. If this law means that responsibility can be avoided on req uest then the law should be changed .

No jus ti fica tion for FOS based on purported antici pated need: If forced FOS is just a crude method designed to preserve the status quo and guarantee unions more control over business management decisions, and more power to resist adjustments affecting workers req uired by market pressures, it has no place in the globally com petitiv e and dynamic 19 90s. 1t is another impediment to successful and profitable business in Manitoba for the benefit of all Manitobans. lt jeopardizes jobs. lt is respectfu lly submitted that the present Manitoba Government, with the support of the Liberals, should not hesitate to repeal this harmful and unacc eptable law in the public interest.

Thank you very much for you r atten tion, Mr. Chairman, Members of the Committee. Mr. Chairman: Thank you, Mr. Newman. Are there any questions? Mr. Ashton. 108 Mr. Ashton: I just wanted to indic ate that one of the objects that is listed in the paper of the Manitoba Chamber of Commerce is the progress development of Manitoba communities. lt states that in order to make them better places in which to work- Mr. Chairman: Mr. Ashton, we cannot hear you, would you pull your mike up, please. * (2 15 0) Mr. Ashton: Yes, Mr. Chairperson.

I was just reading the objects of the Chamber of Commerce which were to promote the development of Manitoba communities in order to make them better places in which to live and work. I realize we have a difference on this issue, but I just want to assure you, and I am sure I am speak ing not just for myself, but many people in Manitoba, when we want to fight to maintain this Bill it is because we believe it makes Manitoba a better place in which to live and work. I find your com ments to be interesting in terms of strikes, but I think you misread what people are saying.

No one is saying that there is anything necessarily wrong in going on strike. What they are saying is that they should not have to, in every ci rcumstance, have to go on strike. They should not have to go on strike, for example, to maintain any ability to have a col lective agreement because that is what many strikes are for. I am sure you are aware of that. A dispute is not over the terms of a col lective agreement, but whether a union can be formed , whether the people in the workplace have the right to organize.

So when we are talking about the right to str ike I think it is only fair to put it on the reco rd, because I know I have made comments on that, that we believe that the right to strike is important, but that there should be alternatives as well, and that is why we have supported final offer selection. I wanted to ask you some questions on your brief to get some idea of what we are looking at in terms of the Chamber of Commerce's position.

I note, perhaps it is positive, that you have not used that term, that I remember from other committee meetings, that having final offer select ion was somehow going to be a dark cloud over Manitoba. I sat here as a committee Member, I believe the first term of the Pawley Government, and that was used as an argument at the time why we should not have first contract legislation. lt was also one of the basic themes of why we should not have final offer selection when it was introduc ed in 19 87.

I want to deal with the suggestion that somehow improvements in The Labour Relations Act have been a dark cloud over Manitoba. I could go back to 19 72 by the way. I find it interesting that you mention in your brief the year 19 72. I assume that was because that was the year in which the series of major chan ges to The Labour Relations Act were introduced by the then Schreyer Government.

I find it interesting that you state since 19 72, since those changes were brought in-and the quo te here is, "incr ease the number of provisions which discourage employers from bec oming involved in a strike or lockout situation." At the time the same

Thursday, February 22, 1990 arguments were used. lt was a dark clo ud. I believe the Chamber of Commerce opposed the change s in 19 72, and you can corr ect me if I am wrong on that. You, yourself, have said that since 19 72 there has been a dec reased number of strikes and lockouts because of provisions which discourage employers from- An Honourable Member: On a point of order. Mr. Chairman: Who is on the point of order? Mr. Enns. Hon. Harry Enns (Minister of Natural Resources): I hold the Member for Thompson in high esteem.

He knows that, but on this 12 0th plus day of this Legislature at ten o'clock , I do remind the Honour able Member that the purpose of engaging discussion with a presenter is to ask questions, to clarif y his presentations that would help Members of the comm ittee. I have listened to the Honourable Member now recite some history. We are now in 19 72. I remind him it is now 19 90. Could we perhaps, Mr. Chairman, proceed with questioning the presenter? Mr. Chairman: A dispute over the facts is not a point of order, although I will remind Mr. Ashton that we are to be asking questions, not making statements.

Thank you, Mr. Ashton. Mr. Ashton: My apologies for referring to 19 72. lt was on page 8 of the brief. I apolog ize for quoting from the brief as part of the premise to my question, and that is: in the final page of the brief, I do see some wording here that perhaps brings back some of the spirit, the intent of the arguments that were used by the Chamber of Commerce previously, the dark clo ud, by suggesting that- Mr. Chairman: Mr. Ashton, do we have a question in here somewhere? Mr. Ashton: Yes, I do.

I am asking - -(interject ion) Read the brief, and I am just pointing -(interjec tion) Well, I was asked to- Mr. Chairman: Would other comm ittee Members quit badgering Mr. Ashton, and we will get on with this. Mr. Ashton: Thank you, Mr. Chairperson. I was asking what the change s you are ta lkin g about, the adjustments -a nd this is a direct quote. What are the adjustments you talk about affec ting workers req uired by market pressures? In the globally com petitive and dynamic 19 90s, you say that final offer select ion is impediment to that. Is that by any chanc e free trade?

Are you suggesting that we should now get rid of final offer selection because it works against this glob ally com petitive and dynamic 19 90s, the market pressure that free trade has presumably brought to Manitoba? Mr. Newman: In response to your first portion of your leading questions, I will answer the la st one last. The first one was you say that forced FOS is designed to protect organizing. If that is so, I do not understand how any single one of the applic ations leading to an imposed select ion was designed to protect organizing. 109 I do not understand that at all.

You might be talking about mandatory first contr act, and that is entirely a different thing. That is not before us today, but I just do not understand that. I do not think that is accu rate or relevant. With respect to the dark cloud over Manitoba which was a headline-and we all know what people can do in cr eating headlines-and probably tha t was descriptive of the percept ion of a period of 20 years in Manitoba where labour legislation has not been designed in any way to serve private sector business interests in this province. 1t indeed is a handicap that we face in this province as a result.

This forced FOS goes a step which is patently too far, and that leads to the next part of this, I guess a bit of sleet, or hail, or something from a dark cloud. What we are talking about you say, is a simplistic concept , you treat free trade. Free trade is simply a symptom of a much larger marketpla ce reality we have in the world, and different count ries are making different adjustments. The Free Trade Agreement is an example of one step to make that adjustment between our countries. Some people think it is wrong. Some people think it is right.

I am not going to enter into that deba te even though I think it is positive for Manitoba, and I wish people like you would exam ine it intelligently and look at it and say, we have to bite the bullet intelligently in Manitoba. We have to work hard if we are going to survive as an effect ive provincial entity. I wish you were to take that sort of approach, Mr. Ashton. I noted throughout this event that you sort of chuckle and ch ortle every time someone raises a serious view contr ary to what you bel ieve based on your life's experience as an activ e union person in Thompson, Manitoba. This is a serious issue.

We are deal ing with an issue here which is going to ha ve an impact on all Manitobans. We believe as a Chamber of Commerce, and you do not have to agree to this, we are not going to impose any agreement on you, we are not going impose any terms on you, we do not think that this is beneficial for Manitoba. We say emphaticaliy, speaking for the business commun ity, it is not beneficial to business, it is harmful to business. I suggest to you that what is harmful to business is not going to be helpful to people who depend on jobs in this province. *

(2200) Mr. Ashton: Well, we disagree obviously on free trade. When you talk about biting the bullet I believe a lot of Manitoba workers have bitten the bullet, and more wiil bite the bullet in the future. That is another issue and I respect that. In terms by the way of my comme nts on people attaining the right to organize, that was in reference to your comments in regard to strikes primarily. You are corr ect, we are not dealing with first cont ract legislation, although I do know your position on that.

You also do op pose first contract legislation which was put in also because of the fact that in many situations people are fighting for the right to organize. I want to deai with the question, the quote, the dark cloud was

Thursday, February 22, 1990 from an advert isement that had been taken out. I assume that was part of the tax that had been put forward at the time. If it was not I look forward to your retract ing that because I thought it was rather, to use your terms, emotional, rather overreactive.

I just want to ask you if you agree, given your concerns about the business environment, our labour cli mate here in Manitoba, with the following statement that Manitoba has a skilled and stable work force, and I quo te, "A re liable, produc tive work force, plus consistently good labour management relations have given Manitoba one of North America's best labour reputations.

You think that is an accu rate statement of what is happening in Manitoba with the cha nges in 19 72 to The Labour Relations Act, which I know the Chamber of Commerce opposed, the changes in the early 19 80s, the change in 19 87 for final offer select ion or do you believe that in fact it is the opposite, we do not have a good labour reputation? Mr.

Newman: With no attempt to underestimate the role the lawmakers in this province play, I believe that the laws like forced FOS, and forced FOS in particul ar, is an impediment What has been achieved , and is set out in whatever you read from, has been done in spite of this sort of law which has been thrust upon us without a whole bunch of thought and without acce ptance by a major player in this province, namely, the business community.

I think, and the business com munity here would support it without hesitation, that we do have an exce llent work force; we do have excel lent motivated mana gement in this pr ovince rela tive to other jurisdictions in this country. We are also ded icated, in most cases, to improving the lot of Manitobans.

If law makers would leave this issue more in the hands of the parties to resolve, I would submit to you that they would be a lot better off, and we would get better solutions to the sorts of problems which this legislation may be in some instances, in the eyes of some people, trying to add ress. lt does not, I submit; it is an impediment, it does not contribute to what is there that has been done because of the quali ty of the people and their commitment to the provinc e, not in any way because of the law. Mr. Ashton: The document I am quoting from, by the way for your information, Mr.

Newman, is a document cal led The Manitoba Advantage, that was issued by the Honourable Jim Ernst, Minister of In dustry, Trade and Tourism and was published in a number of business publications. I know this one was published i n a business publication that reaches western Canad a. I raise this because I remember the concerns that were expressed. I remember the dark cloud.

I remember the concerns that were expressed in terms of final offer selec tion, and while I was not in this Legislature, obviously in 19 72, I have heard people say that much the same kind of concern was expressed , that if you bring in this labour legislation, we are not going to get new businesses opening. lt is going to be a da rk cloud; it is going to prevent jobs.

Yet in each and every case, even tonight I hear you saying, well, things are working despite the legislation. 11 0 Now from what 1 am hearing, being able to live up to the dir e predictions of a few years ago and the suggestions tha t somehow we will be having major problems in Manitoba in terms of labour reputations. In fact , as I said, the Minister responsible for Ind ustry, Trade and Tourism (Mr. Ernst) says we have one of North America's best labour reputations.

I really ask you, perhaps in this context, just to focus in on something that is very relevant to this Bill, what we are asking for is final offer select ion be given a chance; it is on a sunset cla use. Are you suggesting that if final offer selection stays in place, since it clearly has not affected our labour reputation-e ven you have said that we have a good labour reputa tion -do you see this having di re consequenc es? Is there going to be a dark cloud if once again we have this type of legislation in Manitoba?

Is that what you are suggesting tonight, the dark cloud that we did not see after 19 72 or after 19 83 or 19 87- Mr. Ch airman: Mr. Ashton, you cou ld not be arguing with the presenter, could you? Is there a question in there somewhere? Mr.

Ashton: Yes, I was asking, is it the position of the Chamber of Commerce that even though we have not seen real ly that dark cloud, the dire predictions, that if we do not pass this Bill, if we allow this Bill to stay in place, final offer selection, for three more years, that finally the dark cloud will appear in Manitoba and all these statements, all the facts that show we have a good labour reputation will no longer be the case. Is that the position of the Chamber? Mr. illewman: I think we have grey skies in Manitoba, and we have had them for a long time.

If someone who is an author of an advertisement or a writer of a headline, whatever it was- I do not know who paid for it- but if that was the descri ption of it, we do have clouds, and they are storm clouds. If we do not come to grips with them, we have a problem in this province. I will tell you, they are com ing to gr ips with them in Minnesota, they are coming to grips with them in North Dakota, in Alberta, in B.C. and Ontario, in Que bec.

You talk about, yes, we do have wonder ful people here, and I can tell you, I see in this room some of the finest union negotiators in the province, and I count them as friends, and I count them as exc ellent pro fes sionals in terms of nego tiating colle ctive agreements. I think we need more professionalism in negotiating collective agreements.

We need some of these people in this room to get rid of tha t law so that they can do a better job without that being in the way because that makes life more difficult for them, it makes life more difficult for management. it makes life more difficult for management, it makes life more difficult for unions, it makes it more difficult to achieve collective agreements in this province. That is perceiv ed, Mr. Ashton, around the world- that law is perceiv ed as bad law for business in Manitoba.

Manitoba is getting that reputation because of the sorts of laws that were put in which caused to be cal led the grey cloud in Manitoba. We have a grey cloud in Manitoba. This is

Thu rsday , Februar y 22, 1990 the greyest portion of it right now. lt is perceived around the world as being a place which is anti-business because of legislation like that. Mr. Chairman: I think you have compe tition, Mr. Ashton. Mr. Ashton. Mr. Ash ton: Mr. Chairperson, I am pleased to see that Mr. Newman now is only opposed to the final offer selection because of his concern for the union members and the union negotiators. lt is an interesting twist, it has been an interesting discus sion back and forth. Mr. Newman: They know, Mr.

Ashton, they have beaten the hell out of me at the barga ining table many times, but we have always achieved collectiv e agreements which make good sense and happen to work well. Mr. Ash ton: I hope that conti nues and that is one of the reasons that we want to see final offer select ion continue to be in place. I want to deal with it once again, this whole suggestion that we have anti-business legislation.

In your own statement, you said that one of the impacts of legislation going back to 19 72, the cumula tive impacts, this is why, I apologize to the Members of the committee before for having read this-s ince 19 72, and this includ es final offer select ion, so I am not just dealing with history it has incr eased the numb er of pr ovisi ons which discourage employers from becom ing involved in a strike or lockout situation. Are you suggesting that is negative for Manitoba?

Are you suggesting that we should return to the pre- 19 87 days or the pre-1 983 days or even the pre- 19 72 days because a logical conclusion of what you are saying, as I understand it, and the Chamber's position throughout this period is we would be better off with strikes and lockouts. I am sorry to juxtapose what you are saying, but in terms of the way I read that, is that what you are implying, that we would be better off with the situation that existed prior to 19 72 in which there were no more strikes and lockouts? Mr.

Newman: All we are add ressing is pre-Februa ry 19 88. lt was then that final offer selection came in. lt is that which we are add ressing. lt is that which is the biggest problem. lt is that which must be add ressed, we submit; it must be and should be repealed. Mr. Ashton: Perhaps I misunderstood it then, so essentially the Chamber of Commerce accepted the ch anges brought in 19 72 and in 19 83 and'84 and that really the main conc ern in Manitoba is just final offer select ion? · Mr. Newman: The answer is, there is no question, the main concern right now is final offer select ion.

There are other problems which we have gone on the record of dealing with in the past, and we have not secu red any commitment or agreement from the Liberals or the Conservatives or anybody that there will be any other cha nges from that. We did get a com mitment 111 from the Liberals and the Conservatives in speeches that were made publicly with respect to FOS. * (22 10 ) Mr. Ashton: Regard less of commitments that have been made and obviously we are dealing with a minority Government situation where it is more difficult to implement it.

Are you saying that you still oppose other provisions, not just final offer select ion, that is still the position of the Chamber of Commerce? Mr. Newman: Our position is on the record . We have made it very clear that we not only oppose final offer select ion, we also oppo se manda tory access fi rst contr act which is the same concept but a narrower use. This is more pervasive and more harmful than that law. As a result, it is No. 1 on our priority list for improvements to the legislation.

We believe that rather than dealing with matters through legislation like this, that these matters should be better add ressed by enhanc ed conc ilia tion, media tion, trai ning of professionals in collective bargaining, so we can develop more people who are capable of achieving a wonderful creation called a collective agreement through effective, intelligent, courageous negotiating. I submit there is no need for this. lt is an impediment. Mr. Ash ton: I appreciate you for stating the Chamb er of Commerce's position clearly. Obviously we have a disagreement on that.

One more question, though, and I am read ing from the brief again on point 6, where you indicate your concern that union organizers can infla te expecta tions by gua rante eing prospectiv e members a colle ct ive agreement. One of the reasons for first cont ract legislation was because many workers could not obtain a col lective agreement. They were faced with a situation of being denied that, of having to go on strike, in many cases companies having the right to hire replacement employees. There has been the concern expressed earlier today in terms of final offer select ion that that raised a continuation of it.

Are you suggesting, and I do not mean to misread the comments, but are you suggesting that there is some problem with union organizers being able to say to people that you can become organized, you can have a col lective agreement? No one is saying what the form of that col lect ive agreement is.- (inaudible) have object ion to people having the right to organize and being allowed the opportunity to have a- Mr. Chairman: Mr. Ashton, the question has been put. Mr. Newman. Mr. Newman: Mr.

Chairman, I will just deal with a specific part of your question, which I think you intended to put to me, and that is whether or not inflating expecta tions in that manner is right or wrong in my view. First of all, if the expectation is that this will guarantee a "col

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Collection	Manitoba — Debates (Hansard)
Citation	34-2-ir6
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