Manitoba Committee Hansard — 7 June 1976 (Intergovernmental Affairs Committee, Sitting 9, 30th Legislature, 3rd Session)

30-3-ir9

Manitoba — Debates (Hansard)

Legislative Assembly of Manitoba HEARINGS OF THE STANDING COMMITTEE ON INDUSTRIAL RELATIONS Chairman William Jenkins, M.L.A. Constituency of Logan 8:00p.m., Monday, June 7, 1976. Printed by P.N. Crosbie- Queen's Printer for the Province of Manitoba

THE LEGISLATIVE ASSEMBLY OF MANITOBA STANDING COMMI TTEE ON INDUSTRIAL RELATIONS 8 p.m., Monday, June 7, 1976 MR. CHAffiMAN: Mr. Williarn Jenki.ns. 227 MR. CHAIRMAN: Committee will come to order. Mr. John Huta. Bill No. 16. BILL NO. 16 -AN ACT TO AMEND THE WORKERS COMPENSATION ACT MR. JOHN HUTA: Mr. Chairman, honourable members of the Industrial Relations Committee, Honourable Mr. Paulley, and guests. We have on numerous occa sions presented briefs to this Committee on Workers Comper:sation Act, because we feel that drastic changes are required in order to update this Act.

This Act is long overdue and amendments to the Act are very very necessary to help alleviate the problems or the conditions that exist at the present time. The Injured Workers Association feel that the recommendations made in Bill 16 to amend The Workers Compensation Act have many merits. But with reference to

Section 31(2) it is felt that there is discrimination shown and the last paragraph of this

section which states: ''But this

section does not apply in respect of the person who is receiving compensation for a partial disability where the impairment of the workman is less than 10 percent." If I may add to that we feel that by having this

section not one claimant who is on rateable pension qualifies for any increases whatever. There have been increases in 1972, 1974, and now hopefully we'll have some increases in 1976, and these claimants do not qualify for any of the increases. We are of the opinion that this last paragraph as quoted should be deleted entirely,

Section 34(1) subsection 3, this

section is acceptable to us up to in respect of the pre existing or underlined condition and the balance which reads: "But no compensation may be paid for any period prior to July 11, 1972," should be deleted entirely. We feel having added the last line of this

section takes away what has been granted at the beginning of the section.

Section 52 of the WC Act states that medical reports are privileged communica tion of the person making or submitting the same and unless it is proved that it was made maliciously, it is not admissible as evidence or subject to production in any court. There fore, if the person does not see the report it is most difficult to prove that the report was made maliciously unless the claimant was permitted to see it.

This association strongly emphasizes to the Manitoba Government that legislation be introduced and passed to allow the claimant and his or her representative to have access to the complete file when pre paring appeals through unfair settlements and decisions of the board. We will quote Mr. McRuer' s recommendation on the administration of the Workmens' Compensation in Ontario on the right to know. He states: 'We believe it is a matter of basic right that each appellant", in the words of Mr. McRuer, "should be entitled to know on what material the decision and • is right is based.

The cur rent passage of keeping the appellant ignorant of relevant facts regarding the case cannot in our opinion be sustained on any justifiable grounds. We do not question the right of the professional men making their report to the board without negligence and in good faith to the protection the law affords him. But we ask the question: Why should a member of the enumerated professions be protected against actions based on negligence with respect to reports to the board while they are not protected and making a report to the patient for his insurance company? The exception in this

section unless it is proved that it was made maliciously is not very meaningful. It would be most difficult for a workman to prove that a report was made maliciously unless he was permitted to see it. We agree that it fails to affect the intention of the McGillvray report. Medical reports should be made available and the

section should be redrafted to give a protection to the authors of the reports that against vexacious claims but that otherwise they be made available to the affected parties. I would like to quote a small paragraph from the Tribune which was published by Mr. Lloyd Axworthy on Tuesday, February 25th, 1975 in regard to the right to know: "The right to information is a vital requirement for today's citizen. Many decisions are taken behind closed doors. Vital data is locked away. Actions are taken on the basis of knowledge that is not available to the ordinary citizen. As a result we are faced with a

228 June 7, 1976 (MR. HUTA Cont'd) • myriad of government activiti es that are explained only in self-con gratulatory press releases and yet the impact can become disastrous. In many cases our elected representatives are powerless in face of the closed bureaucratic shop." In 1972 legisla tion was introduc ed and passed changing the Medical Board of Reference to Medical Review Panel. This may be all right for cases that have already been established and are receivin g permanent partial disa biliti es or total permanent dis abil iti es. But undisputed cases this does not help to establish a claim.

In order to establish a disputed claim the real merit and justice of the case has to be used and the medical reports from Day One of the accident be revie wed and not new medical evidence. How else could you do it? You have to go to the first report of the accident and follow it up. The case has not yet been established, and by asking the doctor for new medical reports, in our opin ion, is the most ridiculous way of handling it. How can the doctor state the case? If he is a new doctor he will have ;to knowledge of the accident.

Therefore, it is most important to review the old medical evidence in order that a case may be established. The board instead of dealing with the original injury have formed the habit of assigning new claim numbers so that the worker, the attending physician, and everyone concerned is confused over the whole situation when recurrence of the injury occurs. In doing this the body corporate takes advantage of the situ ati on by claiming it has no bear ing on the original injury and claim it has stemmed from a pre-exist ing condition.

Cer tainly it is pre-existing as far as the recurrence or aggravation of the original injury is concerned, because it has arisen from the original injury whi ch the board has originally approved. In July 1972

Section 34(1) subsection (1) of the WC Act was introduced and passed covering pre-existing conditio ns, but only those after the said date, but those whi ch the board had ignored to recognize prior to July 1st, 1972, this

section does not cover those cases. Therefore, to correct a serious situation without disc riminat ing injuries prior to July 1st, 1972, the

section needs to be amended by inserting "retroactive to the date of the original compensable injury" and benefits be based upon potential earning capacity at the time of the original injury, taki ng into consi deration the present earnings of the in dividual . The fact remains that just because the doctor cannot find the cause of the pro blem, particularly in the area of back injurie s, does not mean that there is nothing wrong or there is no injury. Medicine as a profession does not have the answer to all the ail ments that people bring before them.

Advances are being made in medicine , as in other fields , every day and some day they may have the answer and find the causes of the medical problems that the injured workers come to them but only to be told they could find nothing wrong, or that it is all in your head. What really dist resses us is the fact that the worker can produce a W1ole body of evidenc e and yet he cannot prove it. So he's like the other unfortunate gentleman in that his diagnosis will be proved on the autopsy table.

We contend that the mental, emotional and physical ailments are so closely connected that we are sure that most doctors would find it difficult to be able to separate them and these three factors have a relation to the injury. We feel that neurosis, psycho-neurosis, and emotional dist ress, usually result after an injury affecting the worker, and family problems result because the board denies the claimant compensation benefi ts.

Unable to find or even hold a job due to physical disability, which is all contributed by the accident and the three factors mentioned above play a very large role in the claimant's life. We feel that provisions within the Act should include neurosis and psycho-neurosis as dia gnosed caused by the anxi ety of being physically injured, unemployed and unable to support the family. That should also apply to situations where the mental disorder has been caused by job tensions, family problems, and the inability to obtain or maintai n employment due to physical dis ability.

There should also be consideration given to a worker's life expectancy, general damages, pain, suffering, loss of wages, chances of advancement he would normally have had he not been inj ured, disru pti ng his normal every-day activiti es. Mental, emotional and physical ailments are so closely interrelated and it is very difficult to differ entiate among them. Such claims should be made retroactiv e to the date of the original compens able injury and the compensable rate based upon potential earning capacity of the present time.

June 7, 1976 229 (MR. HUTA cont'd)

Section 51(1) of the WC Act gives the board exclusive to restriction and action or de cision of the board thereon is final and conclusive and it's not open to question or review in any court. We feel that the decision of the board thereon should not be final and conclusive, but should be open to question or review in any court, and the proceedings by or before the board should be restrained by injunction, prohibition, or other process or proceedings in any court, and is removable by criteria or otherwise into any court, Mr. McClure says.

Admini strative tribunals are clearly effective on low cost delivery mechanism but equally clearly their power should not be absolute. We believe the courts should play a role in the areas of law and jurisdiction, that laymen should have the right to apply to the court for an order directing the board to state the case if it refuses to do so. If I may clarify at this point that we don't mean when say "court", take a case to "court", we don't expect any measly little case to take to court. All we are concerned with are those that are old cases and have been under dispute for many years now.

We feel that these cases if the board cannot prove them selves on it, then this is where the court should come in on the point of law and jurisdic- tion. In Great Britain under Industrial Injuries Supplements to the Workmen's Compen sation of October 1973 it is stated: ''You and your employer settle your compensation in the way laid down by The Workmen's Compensation Act. Firstly, by agreement or failing that by arbitration or utlimately by decisionof the courts. This covers as far back as January 1, 1924, retroactively and if you are suffering the loss of earnings allowance will be paid.

For this purpose your loss of earnings will be calculated by comparing earnings in your pre-accident job with your own earnings during a corresponding period iu some suitable employment or business. If you had reasonable prospects of advancement at the time of the accident this will be taken into account. Generally any dispute about whether a workman has a right to weeldy compensation benefits must be decided in the manner laid down by the Workmen's Compensation Act. That is, normally by arbitration, proceedings in the county or sheriff's court, or medical practice are involved by the medical referee.

The benefits are not liable to income tax and they need not be declared in your return of income. The rates of benefit are now reviewed annually, the weeldy rate of the allowance is that of the lOO percent disablement pension payable under the Industrial Injuries Act you are being paid.'' This is a form of an insurance scheme where an employee is paying his share of the premium as well as the employer. Where here in Canada the Workers Compensa tion Board treat the claimants as welfare cases which makes it very difficult to receive benefits from the body corporate.

There are five different Acts dealing with Industrial Injuries. They are: 1. The Workmens' Compensation Acts 1897, 1900, 1906, 1925 to 1938, or any contrasting out scheme duly certified under any of the above Acts. entitled. 2. The Workmens' Compensation Act, war editions, Acts, 1917 and 1919. 3. The Workmen's Compensation Supplementary Allowance Act, 1940. 4. The Workmens' Compensation Temporary Increases Act, 1943. 5. The Industrial Injuries and Diseases, (Old Cases) Act, 1967.

There are other benefits for people with low incomes to which you may be Furthermore, during the court procedure Ml compensation benefits are paid to the claimant if a decision was based on the mistake the decision on your claim may be reviewed. In March of 1972 the Parliament of Ontario introduced and passed new civil rights to protect all people of Ontario and that they may appeal any decision of any board, tribunal or commission in any court of law. There are eight rights listed but we are concerned with the eighth because we want the right to a written decision with reasons. It states: No. 8.

The right to a written decision with reasons upon request. This is the most important • we feel that every citizen cannot know whether he has been dealt with fairly by a tribunal until he knows the reasons for its decision. Also if there is the right of appeal to the divisional court or another body, a citizen has a difficult time in deciding whether to appeal or not, if he does not have the tribunal's reasons for its decision.

230 June 7, 1976 (MR. HUTA cont'

d) These bills are not designed for lawyers but are designed to establish and ensure the rights of individuals wherever they come into contact with the many adminis trative processes of modern day government within the jurisdiction of the Legislature.

The approach which we have taken when ensured that the individual will not have to main tain his rights but that the system itself will maintain those rights and permit the type of fair administration which will not make any defence upon the individual himself, but it must be clearly understood that the citizen does not lose his civil rights protection before the tribunal if he does not have a lawyer with himself.

The purpose of the review is to make the status conform as far as practicable with the recommendations of the McRuer Report which essentially sought to protect civil rights of citizens in their dealings with tribunals. In New Zealand under The Accident Compe nsation Act, the claimant has a chance to appeal the decision of the board, tribunal or commissi on to independent authorities. No. 1.

Any person who is dissatisfied with the decision of the commission or of any member, officer, employee or agent thereof, or of any committee appointed by the commission, may apply to the commission for a review of that decision in any case. No. 2. The commission may from time to time appoint suitable persons to be hearing officers for the purpose of hearing applications for review that are made to the commissi on. No. 3.

On the completion of the hearing officer of any hearing, he shall for ward to the commission a written report of his findings together with his recommendations and shall at the same time send a copy thereof to the applicant. No. 4. Every notice shall contain information as to the applicant's right of appeal under this Act. No. 5. There is hereby established an appeal authority to be called the Accident Compensation Appeal Authority, who shall be a barrister, or solicitor of the Supreme Court vf not less than seven years practice.

This person shall be appointed by the Governor-General on the recommendation of the Minister of Justice and shall hold office for a term of three years. The Secretary for Justice shall designate an officer of the Department of Justice to be registrar of the authority and shall provide such secretarial recordings and clerical services as may be necessary to enable the authority to discharge his function. Every appeal against a decision of the commission, or a hearing officer, shall be by way of rehearing.

Where any party is dissatisfied with any order or decision of the Accident Compensation Appeal Authority, that party may with leave of the authority appeal to the Supreme Court against an order or decision. If the administrative division refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to their appeal. The decision of the Court of Appeal on any appeal under this

section or on any application for leave of appeal, shall be final. Subject to the provisions of this action the case shall be dealt with in accordance with the rules of the court. Therefore we have outlined the provisions under which the cases are dealt with in other countries, and we feel the Manitoba Government should follow same and update their WC Act and the civil rights program to meet the needs of our modern day society, ensuring that every citizen of all the countries is justly treated. If it requires that our laws have to be changed well then that is what should be done.

The WC Act and the civil rights are so far outdated that there is no way in which the citizens of our country can be protected against malicious acts of the boards, tribunals or commissions. Let us forget the dark ages of 1916, we have to face up to the modern day society. In our opinion most injured workers are unable to return to their former jobs, former type of employment after an accident due to physical impair ment. They lack the skill, education and command of the English language which would enable them to function effectively in a less manual job.

This association supports the right of each injured worker to be truly rehabilitated so that they can obtain employment wherein they can function at their maximum capacity. We hereby request the Manitoba Government to approach the Research Depart ment of the Department of Education together with the Rehabilitation Department of the

Jrme 7, 1976 231 (MR. HUTA cont'd) • '• Workers Compensation Board to study the educational needs of the injured workers with a view to recommending if deemed advisable the creation of practical jobs and language training programs which wruld upgrade the skills of injured workers and enable them to function effectively in our society. This program is presently very effect ive in Ontario. The trade labour unions are in full support that the handicapped be encouraged to organize and bargain for themselves.

In order to organize properly and work efficiently we need financial assistance to help those who depend on our services, which are rmique and not done by any other organization. We feel that the Manitoba Government should help us organize properly and work efficiently by supporting us financially in order that we may fulfill our endeavours by help ing those who depend so much on our service. We also feel that

section 31. 1 of the WC Act should be amended and changed to read: ''that payment on permanent and partial disabilities where the impairment of the work man does not exceed ten percent is also entitled to any increases granted rmder this Act, and updated to pensions and increases granted accordingly. These claimants have been completely forgotten, where their standards of living are getting smaller and smaller. We feel that their pensions should be increased on the same scale as others, All pensions should be updated and reviewed annually.

Upon conclusion this association feels and requests the Manitoba Government to update the WC Act and the civil rights program to ensure the citizens of this province their full protection in our modern day society. ''Furthermore we feel that the Manitoba Government is responsible for the injured workers of this province and therefore should endeavour to help them financially to organize and bargain for themselves in order they may face up to the problems placed on them by the Workers Compensation Board. 11 Just as Mr.

Paulley said in an interview on Monday, March 1st, 1976 and I quote: ''But to go back to the laws of the jrmgle, in all due respect to my colleagues, is not the answer. 11 We're only asking for justice, nothing else, Is it too difficult to give justice to the cases rmder dispute and deal with them on real merit and justice of the case ?

Section 51. 4 of the WC Act - a notation to the above. I haven't got copies made of this but if need be I can produce them. In addition to the above, Mr. Chairman, I wish to express my disappointment in Bill 16, that it does not provide or does not make any provision for a better appeal system. Under the present appeal system the WC Act is judge, jury and prosecutor in their own cause, We always have to go before the same people who perpetrated the Act in the first instance and there is no way these people are going to reverse their decision.

I feel, and I strongly recommend that we should have an independent body that we may appeal to if the decision is not favourable. Mr. Chairman, my case is 17 years old and I have explored all possible avenues of appeal open to me without success.

Therefore I feel it is extremely important that we have an independent body that we may appeal to, The Board will not hear my case any more unless I present new medical evidence, I have presented new medical evidence on many many occasions but the body corporate ove'!"rules all medical evidence, Mr, Chairman, I feel that in my own case it is not the question of new medical evidence the Board has all medical, chiropractic and even efficiency reports from work, letters from Public Service Commission, all in my favour, but it is the question of establishing an old disputed case, and in order to establish my case the old medical evidence from Day One has to be taken into consideration.

This is where the independent appeal body would come in and they would have the opportunity of reviewing the old medical reports and unless we do review and take the old medical reports, an old disputed case can never be established. Mr. Chairman, I was asked to take my case to Mr. A. R. Wright, Mr. Paulley's assistant, which I did, and I have taken new evidence from a medical doctor; Dr. Broder on January 29th, 197 4, had stated low back pain and systems first appeared in 1959. On August 28th, 1974, Mr. Art E.

Wright, Assistant to the Minister of Labour stated: ''You keep repeatedly referring to new medical evidence placed before the Board on your behalf which suggests that your present back problem is related to your original

232 June 7, 1976 (MR� HUTA cont'd) ••••• injury of 1959. If you are referr ing to the statement signed by Dr. Broder on January 28th, 1974, I would point out that Dr. Broder did not state that your present condition was related to your accident in 1959. In answering the ques tion shown on No. 11 on the form, Attending Physician's statement. No. 11. Symptoms first appeared or accident happened - the doctor filled in the date as approximately 1959. I suggest to you that Dr. Broder was simply reporting the history of your ai lment as you described it to him. 11 This is true, Mr.

Chairman, I have described it to the doctor as the date I suff ered original inju ry. I, Mr. Chairman, am not going to lie about it, I am not going to • • • pardon me. I am not going to lie about it nor am I going to • • • I'll start over again. I have described it to thedoctor as to the date I suffered the original injury. I, Mr. Chairman, am not going to lie about it, I am not going to nor have I any intentions of covering up for the Board or anybody else. I have told the doctor the truth and fur thermore, Mr.

Chairman, if the doctor did not have any substantiating evid ence to support it, he would not put it down, but because he had full lmowledge of the injury, and that is why he had filled it at 1959. I believe, Mr. Chairman, that Mr. Art Wright is insinuating that Dr. Broder would falsify his statement that my condition was the result of my 1959 injury, and that is ridic ulous on behalf of Mr. Wrig ht. I believe, Mr. Chairman, Dr. Broder and myself deserve a public apology from Mr. Wright . He is in no position to make such a statement as he did.

In other words he made a statement that I twisted the doctor's arm to put down 1959, and that is very very wrong because I had no intentions of doing it, nor did I do it, because I did not twist his arm. He had the company file from Dr. Ellis and therefore he just followed what the file had, and therefore I feel that he had no business to put that in a letter. And if anybody cares, here's the letter, if anybody cares to read it. Furthermore, Mr.

Chairman, the Board repeatedly states they have reviewed my fil e and that there is no medical or chiropractic evidence to have the Board change their previous decision, and I want to tell the Board that they are not reviewing my file, they are only passing a decision which was gi ven some 17 years ago by someone who did not review the file, only passed on a decision which was originally made. On Feb ruary 7th, 1969, Mr. W.

Elliott Wilson, Chairman of the WCB stated: ''Inquiries have been received on his behalf from interested parties , both political and non-political at the municipal., provincial and federal levels. This has led to a build up in material. which does not readily lend itself to synoptic review. '' Mr. Chairman, this statement only proves my point, that they do not or did they ever review when I asked for a re vie w, that they reviewed my case. Mr. Chairman, I'd like to quote a paragraph from a letter which I had re ceived from Mr. A. R. Paulley on July 24, 1963.

He himself felt that the Board was short of the responsibility, and this only further supports the need of an independent appeal body to examine into these caseiii. He stated: 'This is a case on which I had correspondence with the Board last year. At that time it appeared no further action could be taken regardin g fue accident of Mr. Huta in 1959. However, I am now in receipt of new information which would indicate that this case should be reconsidered ." Furthermore, on February 21, 1969, Mr.

Sidney Green, who is now an MLA stated: "Although no reasons were given we would presume that the decision was based on the fact that the incident giv ing rise to the recurrence of your back problems was not reported as quickly as the board thought it should be. Needless to say> this decision is in our opinion highly unjustified but there appears to be no recourse." I believe, Mr. Chairman, the quotations stated above proves the fact that a different appeal system is drastically needed so that we can appeal to an inde pendent body which will sit down and review all medical evidence on file.

I would like to go a little further, Mr. Chairman, and say a few words as to the attitude of the admin istr ative staff of the Board which is another area that should be explored and new legislation passed. I had gone to the Board on different occasions because I was sent by my doctor to have the Board's medical doctors see me and the condition I was in, which I did. I had intr oduced myself at the reception desk and I had asked to see Dr. McNichol . I sat in the waiting room a couple of hours waiting for Dr. McNichol to see me. Dr. Corrigan came up to me and wanted to lmow who I was

June 7, 1976 233 (MR. HUTA cont'd) ••••• waiting for. I told him I'm waiting for Dr. McNichol. And these are the exact words Dr. Corrigan told roe, I should go home because Dr. McNichol, nor I, nor anybody else wants to see you. You better go home. I was sent home without being examined by any doctor at the Board. Furthermore the abrupt attitude of Mr. Mike Miles, Assistant Rehab. Officer is unbelievable. He will not stand to listen what I have to tell him but hangs up on you. Mr.

Chairman, I believe that some new legislation in this bill has to be intro duced to improve the inhumane attitude of the existing WCB. The board will not hear my case any further unless medical evidence is produced. The doctors are fed up with giving new evidence. They have simply ran out of patience with the Board. I believe, and I am of the firm opinion that the Medical Department of the Board are falsifying the reports that come to the Board.

I would like to quote from a doctor's report which states, "Onset of pain and paralysis was in 1959 following an accident at work, and the patient reported that this condition had grown progressively worse since that time. He reported that he had seen several orthopedic specialists but obtained no relief. In my opinion this patient is unable to work as prolonged sitting or standing and light manual labour only serves to aggra vate his condition.

I seriously doubt that he will ever be able to engage in any type of occupation since the problem is getting progressively worse." The present government has introduced and passed two new Acts, the Autopac and the Criminal Compensation Injuries Act, and under both these Acts the provisions have been made that decisions could be appealed to an independent body if the decision is unfavourable and only under the Workers Compensation Act that the injured people are denied the right of Canadian citizens. Under any (?) other Act of the Legislature are the citizens of Manitoba denied the right of appeal.

I am denied this right as a Canadian citizen and I feel that I am being discriminated in exercising my right as a Canadian citizen. The Board will not reopen my case; I have nowhere to turn to; what do I do? Where do I turn? All I ask is for justice and have the right to exercise my right as a Canadian citizen. Thank you. MR. CHAIRMAN: Thank you, Mr. Huta. There may be some questions some members of the committee may wish to ask. Hearing none, thank you very much. Mr. Bob Douglas. MR. BOB DOUGLAS: Mr. Chairman, there are copies of the submission available. If I may, Mr. Chairman, I'll go ahead. MR.

CHAIRMAN: You may proceed, Mr. Douglas. MR. DOUGLAS: Mr. Chairman and members of the Committee: The Manitoba Farm Bureau welcomes the opportunity to appear before your Committee to present the following brief statement which contains certain observations and recommendations concerning Bill 16. As you are aware, under the current Workers Compensation Act, the coverage of farm labourers under Workers Compensation is not compulsory but may be made available upon application by a farmer employer.

The Manitoba Farm Bureau has pre viously expressed the opinion that farm people generally are not opposed to the provision of insurance coverage of farm workers against possible accidents at work either through the provision of Workers Compensation scheme or equivalent insurance plan. However, in many situations it may not be the intention of any given farmer to hire any labour at all (luring the year. However, through a variety of circumstances it may be necessary for him to do so.

It would appear to us that it would be unrealistic and perhaps unfair to expect farmers who do not generally have employees and then un expectedly need to hire a neighbour or a retired person for a few days to apply for Workers Compensation for coverage of such persons. We would suggest that such a situation contains the potential for monumental headaches in terms of the administration involved, both for the Workers Compensation Board and for that group of farmers who do not have established payroll procedures.

In this regard we strongly recommend to you that consideration be given to making the coverage of farm labourers under Workers Compensation an optional choice up to a limit of 25 days or $1, 000. 00 of salary, which ever is reached first. We feel very strongly that if Workers Compensation is made

234 June 7, 1976 (MR� DOUGLAS cont'd). • • • • mandatory even on very casual farm labour, many farmers will eit her risk operati ng outside of the law or will simply make arrangements which will make the casual uninsurable. If Workers Compensation coverage of farm labourers is made compulsory through the adoption of Bill 16, it will be vitally important that adequate informa tion regarding the regulations and procedures be brought to the attention of farmer employers over a fairly extended period of time .

Under the Workers Compensation Act as it now exists, coverage for farm labourers is provided at two cost levels depending upon the type of operation involv ed. The rate of $2.7 5 per $lOO payroll for general farming, livestock and feed lot operation, production of sugar beets, potatoes and special crops, dairy farming, custom harvesting and P. M. U. production. The rate of $1.1 0 per $100 of payroll for poultry farming, fur farming, landscaping, hatchery operation, beekeeping, mushroom production, green house, nursery and market gardening operatio n.

We are of the opin ion that if Workers Compensation coverage is made mandatory for farm workers, a review should be made concerning the premium rates with the objective of lowering such rates to reflect the much broadened base in the number being covered. If mandatory coverage of farm workers under Workers Compensation becomes a reality through the adoption of Bill 16, it is vitally important that the appropriate mechan ism be put in place to ensure effective representation of the interests of farm employers relevant to decisions which affect them.

We again appreciate being given the opportunity to express some of the vie ws of farm people relative to proposed Bill 16. All of which is respectfully submitted by the Manitoba Farm Bureau. MR. CHAIRMAN: Thank you, Mr. Douglas. There may be some questions that members of the Committee may wish to ask. Are there any members wishing to ask questions. Mr. Graham. MR. GRAHAM: Mr. Chairman, through you to Mr. Douglas, has the Farm Bureau had ample opportunity to discuss this at several meetings or was it just the result of one meeting of the Farm Bureau? MR. DOUGLAS: No, Mr. Chairman, we've had plenty of opportunity.

We had an indication it was coming and in fact through the office, last year we prepared a memorandum and did a

summary of all the workers compensation legislation in all the provi nces and did a

summary and provided that for the member groups, the various commo::lity groups, and so from September last year it' s been under considerati on. The thing we are a little bit disappointed in is, particularly since it received second reading and went to committee on March 23rd, it took this long to get to commit tee and the way the committ ee went on Saturday and today, it was difficult to get a farmer representative to come in and be here not knowing when he might get on to speak to the committee. MR. GRAHAM: A second question, Mr. Chairman, through you to Mr. Douglas.

On your Manitoba Farm Bureau, how many of the comments that have been submitted to your commi ttee have come from actual farmers themselves, and how many from others that are closely associated with the farm industry? MR. DOUGLAS: Mr. Chairman, I'm not sure I understand the question but if I do correctly • comments were retained about December last year and that we have had two drafts of this brief before every commodity group in the province, and the result here is the result of the fe edback that's come from those two draft submissions. MR. GRAHAM: Mr.

Chairman, I know that the Farm Bureau represents many aspects of the farming industry; I just wondered if Mr. Douglas could give us some broad figures on the_ percentage of comments that were made by actual farmers themselves. JI.!J:R. DOUGLAS: Well the majority were, Mr. Graham. The question is that some of the compani es with us, Manitoba Pool and the United Grain Growers, and so on, some of their staff were involved at times to consult about the policy position we should adopt but basically all the decisions are really made by farmers . There is no one on our board who is ]lOt a farmer.

MR� GRAHAM: I realize that but we also know that the various organization s, such as Manitoba Pool and United Grain Growers, which you mentioned, have also

J1me 7, 1976 235 (MR. GRAHAM cont'd) ••••• circulated similar pamphlets amongst their membership trying to elicit the information there. Now is that collected and brought forward as representing their groups or has it been more or less individual submissions? MR. DOUGLAS: Mr.

Chairman, it's difficult for me to tell but as far as I know they have and I don't know of anything -w e had some direct representation from some farmers in the province who were concerned and raised a number of questions, even up as late as two weeks ago, with me about the safety aspect in the workers compen sation and I think there's a process being going on that is helpful, and that is that farmers really haven't 1mderstood what workers' compensation is all about and I have had a diffi cult time working on their behalf trying to explain what it's all about and how it operates, and a great many mis1mderstandings, and I just shudder a little bit about what is going to happen when this is going to be put into place by the government.

And it's primarily that group of farmers who don't generally hire employees and then all of a sudden find themselves with the basis of having to have a man hired because they are sick or their crop came on quicker than they expected, and so on, and they need help, then they really, to be within the law as we see the amendments, have to then apply for workers' compen sation and get it into being, and they are the people that become annoyed at the kind of red tape, and so on, and we said, well maybe the way to work it is make some minor provision that you don't have to be covered up to a certain extent, and so on, and that's why we were suggesting the $1, 000 was an easy way to check it.

We are not suggesting they should be out as long as they intend to stay as employers, we just say that kind of provisional ba,_sis. MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: Mr. Chairman, through you to Mr. Douglas. Mr. Douglas, has the Farm Bureau had any consultations with the Department of Labour on ihis sub ject? MR� DOUGLAS: No. Consultation with the Department of Agriculture. MR. SHERMAN: The Department of Agriculture. Was the Farm Bureau asked for any comments or input into this concept before the proposed legislation was prepared by the Department of Labour or the Department of Agriculture? MR.

DOUGLAS: Well there was some discussion with the Department of Agriculture and I can't always be sure, Mr. Sherman, when my president or one of our board might have talked to someone. You can't really tell. But in terms of an official communication from the organization, no, except the informal discussion with the Depart ment of Agriculture, I know that went on. MR. SHERMAN: How long would that have gone on? MR. DOUGLAS: Most of it was last November and December. And we did have another meeting with Mr.

Uskiw on April 19th of this year when we raised this question, our problem of administration, he suggested to us it wasn't a problem because the government didn't intend to bring the Act into being even if they adopted it in this session and we were trying to to explain to him that wasn't the issue and tried to impress upon him the problem of the one. The person with the full payroll procedures, there's really no difficulty in workers' compensation bringing into being; it's that person that doesn't generally have employees that we feel the problem is. Mr. Sherman, can I make this other comment.

You see the only province that has workers' compensation for all farm employees is the Province of Newfo1mdland, and it's really no issue in Newfoundland because there's really no farm workers. MR. PAULLEY: Joey Smallwood. MR. DOUGLAS: Well only the fellows who worked on Joe Smallwood's hog and poultry operation, but it really isn't applicable.

The difficulty is that here we did have one discussion, or I did, with Workers Compensation people themselves and I think I disagreed with them on it, the fact that in the Province of Ontario that workers' compen sation applies_ to farm workers only in the harvesting sector, not in the total sector. MR. SHERMAN: Well just a question arising out of your preceding answer, Mr. Douglas, through you Mr. Chairman.

Did I 1mderstand you to say that in your consultations, your latest consultations with the Minister of Agriculture, you were given to believe, or you got the very clear impression that the provision contained in this legislation, on this particular point was not going to be proceeded with at this time or

236 June 7, 1976 (1\ffi. SHER�N cont'd) ••••• would not be enacted in the legislation this year. MR. DOUGLAS: Well I t hink Mr. Uskiw was trying to make the point that - now he didn't say it was not proceeding in this session, he was making the point that even if it was passed in this session it wouldn't come into effect for some time, and that's the reference we make in here in the submission, that we think we have to take a period of time for farmers to understand what it is and how they get into it. They are all hung up, Mr.

Sherman, on the fact that they think there is going to be a monthly deduction the same as there is for the Canada Pension Plan, and they are very annoyed about that. They don't want to get involved in that and I have spent I don't know how long trying to say no, no we don't work that way in Workers Compensation. MR. SHERMAN: Well did you get any ••• MR. DOUGLAS : Mr. Uskiw was misunderstanding what we were concerned a bout and when we got through to him I think he was sympathetic and understanding of what we were trying to get. But you know I'm not sure he convinced his colleagues in this case. MR.

SHERMAN: Well did what you were trying to get include the $1, 000 or a minimum 25 working days request that is contained in your brief here? MR. DOUGLAS: Yes. MR. SHERMAN: Okay, thanks very much. MR. CHAIRMAN: Mr . Paulley. MR. PAULLEY: Mr. Chairman, to Mr. Dou glas . Are you not aware, Mr.

Douglas, that despite your suggestion that the Farm Bureau has only been talking with the Minister of Agriculture, that talks also have been taking place with the Minister of Labour, which Minister is charged with the responsibility of the conduct of the Workers Compensation Board of Manitoba and the reporting of the same to the Legislature? Are you not aware? MR. DOUGLAS: Yes I am, Mr. Paulley. MR.

PAULLEY: That some consultation together with representatives of the fu.rming industry have been taking place, that we did have a meeting here, I would suggest, within the last two or three • • • no it wasn't the last two or three weeks because something happened to me after that but prior to going into hospital for an operation we had a meeting in the Cabinet room to discuss the problems of fu.rm labour, the application of The Employment Standards Act --(Interjection)-- Pardon ? MR. EINARSON: I thought you were going to say Farm Workers Association. MR. PAULLEY: No, no that came up slightly later, Henry.

The question of the application of The Employment Standards Act and also Workers Compensation, to the agricultural industry of Manitoba and that after a discussion of about an hour or an hour and a half or so, that it was agreed that following the session, if indeed this session ever terminates, that there will be consultation with the various farm groups in the Province of Manitoba, the Department of Agriculture and the Department of Labour.

That at that particular meeting it was pointed out that under the present Workers Com pensation Act there is a provision for voluntary coverage by a farmer for himself or herself and the workers of that farm, at their cost on an assessment basis, and that before we could proceed to apply the principle of Workers Compensation to the whole of the agriculture industry in the province, that a study had to be made by actuaries as to the cost and the methodology of the assessing of the costs of Workers Compensation to the workers in the agricultural industry.

And further to that, in our discussion it was agreed in the lack of this information that at this particular session of the Legislature tl1at there would be clause in the bill - eventually turned out I believe to be Bill 16 - that there would be a

section pertaining to the application of Wo rkers Compensation to the agricultural industry in the province to come into effect on proclamation, and that the reason of that particular

section in the Act only coming into effect on proclamation was to give an opportunity to a joint statement made by Mr. Uskiw, the Minister of Agri culture and Mr. Paulley the Minister of Labour, an oppo rtunity to meet with representa tives of the farming industry in order to consider difficulties in the application of Workers Compensation to the farming industry and in addition to that, and aside at the present time because we're dealing with Workers Compensation and not employment stand ards, but because of the points raised which came after our discussion, the points

June 7, 1976 237 (MR. PAULLEY cont'd) ••••• raised by the Farm Workers Association, that we would also take into consideration in our deliberations a methodology of applying or an appli cation of the basic principles of The Employment Standards Act to agriculture. But I'll leave that aside for the time being, Mr. Douglas. I go back to my main question: Are you not aware of such a meeting taking place in the Cabinet room, with the attendance of the Premier, Mr.

Uskiw, myself and one or two others of our colleagues, dealing with this important matter and that eventually Cabinet, with the approval of caucus, decided and agreed that the clause that is in this piece of legislation under the consideration of the Industrial Relations Committee, was subject to proclamation in order that the agricultural industry and those of us responsible for the operation of government, in this case particularly The Workers Compensation Act, can sit down and discuss reasonable ways and proper methodology of having coverage for those engaged i.n the agricultural industry? MR. DOUGLAS: Mr.

Chairman, can I respond to Mr. Paulley's question? (Yes) Well first of all the Department of Agriculture were in touch with us on July 23rd last year, asking us to comment and give recommendations on labour standards including Workers Compensation, and we begged the question then and asked for some months to spend some time and I think it was about the last week in November we wrote to Mr. Uskiw suggesting to him that we were now ready, we had a submission drafted and we suggested that rather than meet with him himself we were recommending that he include Mr. Paulley �d the Premier if he was available.

MR� PAULLEY: We were both available and there. MR. DOUGLAS: But that letter went to Mr. Uskiw and we've never had a response to that. In regard to the meeting that you referred to in your office, my representation of any of the organizations in the Farm Bureau, if they were there, did not report to me that they were there, we know nothing about it, except that Mr. Uskiw did say to us on one occasion that he was going to a government meeting, a meeting of his own group, to talk about this area, and you, Mr. Paulley, suggest it's consultation.

I'm wondering if you're confusing the Farm Bureau, a group outside as representing farmers and the Department of Agriculture staff who may have been there giving advice. I'm not suggesting anything incorrect but if there was such a meeting that you refer to as consultation with the farm groups, then I would be very interested to know who was there representing the farmers. MR. PAULLEY: Mr. Chairman, for my friend Mr. Douglas I'll try and get that infornation.

The only major point that I'm attempting to raise at this particular time is that there was a meeting took place in respect of the matter of Workers Com pensation and one of the reasons that there is a clause - and the clause you, of course, are here because of, Mr. Douglas, - dealing with an investigation into how it can operate to the satisfaction of all concerned. MR. DOUGLAS: No, I wasn't aware, Mr. Paulley. MR.

PAULLEY: So if there happens to be, in my mind, confusion, I'm sure you will accept it , confusion because of names of organizations or groups of organi zations, I'm sure you will accept it, that we did meet I would say about two or three months ago, possibly a little less than three months ago, with a group to deal with the very points that you're raising in your brief and it is our intention - and I say this not in any propaganda sense - that it is our intention, providing of course the committee passes the legislation, to have consultation with representatives of the farm groups respecting the application of Workers Compensation which as you know at the present time is voluntary, but to have consultation as to its further application.

And that is the rea son that that particular

section - there may be others - but that that particular

section only comes i.Jlto effect on proclamation so that we may have those meetings. MR. CHAffiMAN: Mr. Banman. MR. BANMAN: Yes , Mr. Chairman, just a word or two of Mr. Douglas with regards to the payroll rates. Would your idea of creating sort of blend prices, is this what you've got in mind as far as the rates charged? In other words, I appreciate that once all the farmers are brought under this umbrella there will have to be an assess ment done as far as the rate structures, but you mention 2 . 75 per hundred on certain farming operations and $1. 10 for others. Is it your contention that you'd like to have

238 June 7, 1976 (MR� BANMAN cont'd) ••••• sort of a blend price between the two or MR. DOUGLAS: No, no, we'd like to have at least three or four but I don't think we can convince Workers Compensation of that. I've been with many farmers to Workers Compensation and one of the difficulties we had over the years is we got farmers that fit into both and therefore about ten years ago I took a group of farmers and we negotiated With the Board.

Although the Board wouldn't change the regulation, we did get an agreement with them, and I've helped many farmers set up on this basis, that they kept two payrolls, one payroll for one operation and one payroll for the other and they paid 1.10 on one basis and 2.75 on the other. We :lidn't make that too generally known but we've been doing that for a long time. But it was confusing to the farmers until you got them on it, showed them how to do it and so on, it was difficult and so on. We'd like to have three or four. We think there's a wide range on the risk incidentally. MR.

BANMAN: So that you feel that certain farming operations that are, should we say, in the high risk category should be paying more and that there shouldn't be a general straight price across the board. MR.

DOUGLAS: I must confess though you must see the other side of it from the Workers Compensation point of view, they're insuring an industry and if they can keep the rate lower on the overall - of course if it's compsulsory it doesn't matter - but we think a big job has got to be done to bring safe practices in and make the farm employe r and the employee aware of what they've got to do to prevent accidents, otherwise these rates are just going to go right out of the sky. MR.

BANMAN: And you see one of your biggest jobs is trying to educate the farming populace to administrate their own affairs properly and probably accept the concept, eh? MR. DOUGLAS: I'm optimistic enough to think we've got to keep trying though. MR. BANMAN: Yes. MR. CHAIRMAN: Mr. Sherman. MR. SHERMAN: Mr. Chairman, through you to Mr. Douglas. Mr.

Douglas, with respect to the recommended optional choice up to a limit of 25 working days or $1, 000 of salary, whichever is first reached, have you established any specific parameters as to what that would be measured against in terms of time and in terms of the number of employers? For example, I presume you're talking about within a calendar year. you? MR. DOUGLAS: Yes. MR. SHERMAN: And I presume you're talking about one employer. Or are MR. DOUGLAS : That's right, one employer. MR. SHERMAN: One employer. MR. DOUGLAS: We didn't want to limit it to one employee.

If there was a man who got sick and had to have two employees for five days work, we think that still could be exempt. We debated long bel:ween the days and the dollars and we liked the dollar thing but we felt we had to put both in because we think it's easier to administrate from Workers Compensation. See, ftmdamentally as I see it, Workers Compensation can only be enforced in the farm population basically on investigation of accidents. It's totally impractical to try to put enough people on to be calling at all the farms to see they're signed up and so on.

It's so costly I just don't see how it can be worked, unless there's some random checking and so on going on. MR. SHERMAN: Thank you. MR. CHAIRMAN: Mr. Grabam. MR. GBAHAM: Well, Mr. Chairman, I would just like to know if Mr. Paulley could also provide me with the information on who he was talking to in the farm industry, because I'm vitally concerned, so if he could provide me with that information as well as Mr. Douglas I would greatly appreciate it. MR. PAULLEY: I would only suggest, Mr. Chairman, that I presumed that Mr.

Douglas was still deeply involved in the farming industry as such and the group that met with us didn't have on their brochure the name of Mr. Grabam, but if I can sort of ferret it all out, I have no objections, because it is our hope, particularly in view of the ever-increasing incident of accident on the farm, to bring about some semblance of protection and compensation for injured farmers, Mr. Chairman, and if we can have the

June 7, 1976 239 (MR. Paulley cont'd) ••••• benefit of the aid of Mr. Graham and his group, then I'm sure the Mi nister of Agriculture and the Minister of Labour will be all the happier. So I'll try and fi!ld that information for you, Harry. MR. CHAIRMAN: Any further questions? Mr. McKenz ie. MR. McKENZIE: Mr. Douglas, how many farm workers are there in Manitoba? Have you got any record of them or are they registered with you or the Department of Agriculture or Manpower, can you give me. • • What is a farm worker? MR. DOUGLAS: Mr.

Chairman, that's what I wanted to ask him because if he told me that definition then you can giv e some idea. We've done some checking and the best is going back to 1971 census and I did look it up but I wouldn't want to venture a guess here because I'm just guessing. And what 171 is, Mr. McKenzie, I think you realize is the number of people that get identified as farm labourers varies greatly depending on the buoyancy of the farm community.

We went through a period in the early 70s there that the farm employee number was down pretty low but now that it is somewhat more buoyant, and I talked to the Farm Labour Pool's managers and they tell me that the payment being made to farm labour is going up, that's really not the problem, now it's to get the right kind of a person into that. And the other kind of reason we don't know is that you get into farms, and I have a number of people on our board who - one has five full-time men, another fellow has had the same man for sixteen years , and that kind of thing, he isn't recorded anywhere as a farm labourer.

MR. McKENZIE: One more question. Of course naturally the Committee is concerned in improving the safety conditio ns. In my constituency basically if a farmer runs short he brings his neighbour in, or his father-in-law puts the rocking chair to one side and goes out and works on the farm in many cases. Now are we going to have to categorize them or how - I don't understand how we can put it together but maybe you have some suggestions for the committee. Like the neig hbour, would he be classed then as a worker while he's a farmer himself, because in many cases that's what happens. MR.

DOUGLAS: This is the way I read the legislation. He'd be classified if he was working on a payroll, and that's what we suggest here, is that if you don't make this change in provision what we find them doing is already talking about how they're going to trade time and all kinds of things , and they won't be covered anyway. MR. McKENZIE: That's right , when there's no money changes hands, they. MR. DOUGLAS: Well, they'll find a way around it, Mr. Chairman. MR. McKENZIE: Thank you, Mr. Chairm an. MR. PAULLEY: Mr.

Chai rman, ••• cover them for compensation as a farm worker if he was inj ured punching a typewriter or a cash register behind Mr. McKenzie's store barrica de, but if we found Mr. McKenzie on the other hand on the top of a threshing machine and got his :mrtd caught in the piece of machinery we could consider him for that purpose of being employed in the agricultural ind ustry. MR. CHAIRMAN: Any further questions of the Committee? MR. McKENZIE: Mr. Chairm an, I'd like to let the Minister know, I do go out and drive trucks and combines every year. MR. PAULLEY: That's what I meant, exactly what I said. MR.

CHAIRMAN: Order please. We're not here to question members of the committee, we're here to question Mr. Douglas. Any further questions to the Committee or Mr. Douglas ? Hearing none, thank you, Mr. Douglas. Mr. Grant Nerbas. MR. GRANT NERBAS: Thank you, Mr. Chair man, Mr. Minister and members of the Commi ttee. I have in hand printed form - well, I have to say it represents the best I could do with an hour and a half late Friday nig ht; I make an apology in that it's not typed, but it' s printed and it' s the best I could do. I won't apologize further.

I'm here on behalf of Canadian National, I am an employee of the railway , and what I intend to do in these three short pages is to look at the amendments from 1972 to date, and most of that is very familiar to you so I wontt dwell on it. Previous submissio ns, that's previous submissions by the railways, have em phasized that Workers Compensation is a form of protection against in dustrial accide nts. Amendments in 1972 and 1974, like those proposed in 1976, broaden coverage, increas e benefits, upgrade existing pensions and rai se minimum and ma.'Ci.mum levels.

Dealing with 1972, in that year in respect of the retroactive amendments of

240 JWle 7, 1976 (MR. GRANT NERBAS cont'd) ••••• that year, the Minister of Labour said, and I'm quoting now: "Another provision contained within the Act", that's the 1972 amend ments, ''Mr. Speaker, is the provision that fro m the Consolidated Revenues of the Pro vince of Manitoba a contribution to the Reserve FWld of the Workm en's Compensation Act to the degree of $1 million will be paid. ''By this, Mr.

Speaker," and I'm continuing the quotation, "we recognize a point raised by the industry on a number of occasions that the whole of the cost of past pensions or past accidents should not be charged to industries operating today. Govern ment in its consideration felt that it would be reasonably fair to accept at least part of costs of the provision in respect of past pensions to injured workmen, their widows and the children to the degree of a million dollars. " And I give you the citation of that speech. And we submit that the Minister was right in 1972 for reasons even more fo rce ful in 1976. MR.

PAULLEY: You caught him at a weak moment. MR. NERBAS: Well 1972 was a vintage year then. Does anyone have any trou ble fo llowing the printing? All right. The Minister was right in 1972 for reasons even more fo rceful in 1976, namely that Workers Compensation is protection against industrial accidents, not protection against the shrinking value of the dollar or protection against inflation, or protection against yesterday's accidents, it's today 's problems that should be covered in a for m of protection against industrial accidents. Turning now to 1974. Legislative changes in 1974 were substantial.

In addition to increasing future benefits and upgrading past awards, the ceiling fo r earnings was raised to $10, 000 with an indexing provision permitting automatic adjustment in step with salary increases. Under the 1974 self-adjusting fo rmula the ceiling for earnings now stands in 1976. at $15, 000. Turning to funding. In respect of the 1974 retroactive, that is the upgrading of existing pensions amendments alone, costs to Canadian National exceed $50 0, 000 with no contributions from General Revenues of the province. That's 1974.

What is proposed in 1976 is a further increase in benefits and a further upgrading of existing pensions, and CN can expect, in respect of the upgrading provisions alone, to pay at least double the amoWlt incurred in 1974. The Minister was correct in 1972. We request that the Minister return to the principles that he foll owed in 1972 and place responsibility for retroactive upgrading costs where he said they belonged, namely, by way of contributions from General Revenues.

All of which is respectfully submitted, Canadian National Railways, and I'm told that Canadian Pacific Railways and Air Canada join in this submission. A MEMBER: They don' t mind this? MR. NERBAS: They don't mind that at all. MR. CHAIRMAN: Thank you Mr. Nerbas, there may be some questions, members are • • • MR. PAULLEY: Hearing that, Mr. Nerbas, of course they saved solicitor's fees. MR. NERBAS: Well, they think they may have saved solicit or's fees. They may not have.

But while waiting my turn I went to the Library and I foWld a book called Financial Statements of Boards, Commissions and Government Agencies, which on Page 460 and 461 has certain comments by the Auditors and it is very interesting reading. I commend it to the committee, and if I may just take a mome nt, Mr. Chairman, I'll read a few of_ them. MR. CHAIRMAN: How long will it take? MR. NERBAS: Five lines. "Amendments to the Workers' Compensation Act in 1974 provided for increases to pension benefits effective July 1, 1974.

The cost of these benefit increases amoWlted to $10, 197, 573 chargeable against the fo llowing funds: The most important fund of course is the Class Fund and that received $9, 940, 500 ; the Equalization FWld had $52, 000 and some; Second Injury FWld $51, 000 and some; and the Silicosis Fund $143, 000 and some; total $10, 197, 000. The charge of $9, 940, 50 0, $9 million, to Class FWldS is to be recovered from the general body of employers by July 1, 198 1. " And this is the 1974 amendment: ''Under the provisions of

Section 36

June 7, 1976 241 (MR. GRANT NERBAS cont'd) ••••• of

Chapter 49 of the Statutes of Manitoba (1974), in 1974 $1, 138, 701 of this amount was charged against Class Funds, leaving an amount of $8, 801, 799 outstanding at the end of the year. " And that, gentlemen, is an indication of where the charges go when amendments are passed through your committee and through the House. And in my short submission I've indicated where $500, 000 of that amount came to rest, namely with the Canadian National Railways. MR. CHAffiMAN: Thank you, Mr. Nerbas. Are there any questions members of the Committee may have? Hearing none, thank you. MR. NERBAS: Thank you very much. MR.

CHAffiMAN: Mr. Ron Habldrk. MR. RON HABKIRK: Thank you, Mr. Chairman, members of the Committee, Mr. Paulley. I'm here today on behalf of the United steel Workers of America, the Winnipeg Area Council, on Bill 83. We welcome the chance to come here and comment on Bill 83, The Workplace Safety and Health Act. We'd like to point out to you, gentlemen, that we concur with the objectives of that bill and would like to thank Mr. Paulley for his bringing the bill into being at this session of the Legislature. We've had a very short time to study the bill, delegations before me have all had the same complaint.

However, we would like to point out some of the areas that we believe should be given some further thought. In

Section 15(2) we believe that health and safety problems at the plant site or at the workplace are really problems of work ers. We believethat these are a workers' problem, the workers are the people who come down with industrial diseases, they come down with all sorts of diseases that no one else seems to get. Also they're the ones who suffer the physical injuries. However, we believe that the Honourable Minister and the Committee would give a chuckle if I came here today and asked that workers be the only ones represented on the Advisory Council, although I believe that they should be.

How ever, I ask you to look very closely at why technical people are on this Council, I believe that this should be basically a labour-management orientated Council and that if technical people are needed to advi se they should be hired as consultants to the Advisory Council. In

Section 26(2), we would point out to the committee that it is our opinion that if a situation existed which was of a nature as to involve a serious risk to the safety and health of a person, that a stop-work order should be issued forthwith and not just the threat of bringing one in; if such a condition existed that was any risk at all of the safety and health of the workers, then the officers should immediately put in a stop-wo rk order and let's forget about this warning system.

Section 38(1). I've been told that perhaps I'm whistling in the wind on this one. We've taken note that in the bill there seems to be a great deal of leeway for employers to appeal decisions of safety to the health officers or to th e director of the division on matters concerning improvement orders and stop-work orders,

whereas a work order can only appeal if he has lost his job or a stop-work order would affect him in his work or he received an order from the officer. It is our belief that there should be provisions made to allow a worker, when an officer has been called to the workplace by that worker to investigate a problem, and if no action is taken by the officer, we believe that the worker should have a right, it should be a basic right, that that worker have to be able to appeal to the director and appeal to the Labour Board if necessary to have his griev ance heard. We say this with all candour.

I've been told that legally you cannot appeal anything that hasn't happened, but we suggest that the omission of a stop-work order or the omission of an improvement order is something that has happened to the worker, therefore he should be able to appeal it. And we would ask you as a committee to look seriously at this problem before passage of the bill. Sections 40 and 41. It is our belief that the best way to make a workplace a safe and healthy place to work is to involve workers in the responsibility for maldng that workplace a dec ent place to work.

We note that Saskatchewan has taken the step by making it mandatory for Safety and Health Committee in all places of employment with 10 employees or more. We believe this is good. No matter how good the place of work accident record seems to be, we believe that Safety and Health Committees should be mandatory at all places of work. We also believe that a training program should be set

242 Jru1e 7, 1976 (MR. HABKffiK cont'd) ••••• up for said committees to become knowledgeable in their job. And this should be paid out of government funds, by the way, or from the fund that's set up Wider the Act. And vve'd ask this committee to take the necessary steps to ensure that this bill will give the workers of Manitoba the same rights as the workers in Saskatchewan now enjoy.

Section 42. We were taken aback by this

section of the Act. We've been told by members who work in the mines of Manitoba that the wording of this

section is simi lar to the wording foWld in the Mines Act of Manitoba, and that this wording in their opinion has not given the protection that it should to the miners because it leaves too much time for an employer to attempt to intimidate a worker not to use his rights to refuse to do work. MR. BARROW: • explain? MR. HABKffiK: Pardon? MR. CHAIRMAN: Just a moment , Mr. Barrow. MR.

HABKffiK: During the time that a worker goes to his foreman or his shift boss, or whatever you want to call him, and tells him that there's a problem here - you know, the way they explained it to me, they tell him there's a problem - there's many ways of intimidation, it doesn't have to be, say, I 'm going to fire you or anything likethat, the foreman very slyly can say to a worker, ''Y ou're going to get the dirtiest rotten jobs that I can find for you, " and that is intimidation.

And I am saying that the way the Act is written now, it leaves too much time for a foreman to be able to do this, because first off the worker must ask the foreman to look at the situation, he then must ask the foreman for permission to fill out the forms. Now forms, that's a good one, I've always felt that forms were a way of the bureaucracy to continue itself, because as long as there's paper work there'll be a bureaucracy.

We note that in Saskatchewan, instead of having to call an Accident Prevention Officer or Safety and Health Officer to the workplace to investigate a problem or a complaint of a worker, because there is mandatory Safety and Health Committees they ask that the Safety and Health Committee of the workplace come and investigate the prob lem - and that includes the time when a worker would refuse to do work which he thought was a danger to himself, to his health - and the committee being on the worksite are able to investigate and make decisions on the spot.

Well, Wider the wording of this Act it might take a number of days before an inspector was able to make it to the worksite to make an investigation. We believe that it would be far more workable if a Safety and Health Committee at each worksite would be able to at least take a look at the prob lem.

Perhaps the labour-management might not be able to come to a decision, but I would suggest to you that in a large number of the cases that would come before our committee they would be able to make some sort of a decision to rectify the situation right at the time and ri ght on the spot without having to bring an inspector into the plant. Because I believe the solution to safety and health problems in the workplace must be done by the workers at the workplace, I cannot see a government inspector coming in being able to solve all the problems.

We've had that situation in Manitoba for a number of years and it hasn't seemed to work, and that is why we suggest that the wording in this

section will not work. I would like to read to you the

section from the Labour standards Act of Saskatchewan - 68(

c) is the main problem, I won't bore you with the complete 68 section, but 68(c): "An employee may refuse to do any particular act or series of acts at his place of employment where he has reasonable groWldS for believing the act or series of acts is or are WlUSually dangerous to his health or safety Wltil an Occupational Health Officer Wider the Occupational Act of 1972 or an Occupational Health Committee established under the Act", and this is the main point I want to make, ''has investigated the matter and advises that the act or series of acts is or are not WlUSually dangerous Wltil sufficient steps have been taken so as that the employee has reasonable grotmds to believe that the act or series of acts is or are not WlUSually dangerous to his health and safety".

We believe that type of wording is superior. Now if I can just find my spot, we'll be away. We would like to continue on on this section, in particular,

Section 43(7). Workers in the Province of Manitoba do not consider matters which affect their health and safety as being a frivolous matter and

June 7, 1976 243 (MR. HABKJRK cont'd) ••••• it is an insult to the workers of Manitoba that wording along these lines is put into any law affecting workers' rights in the Province of Mani toba. We suggest to you also, even though the wording of

Section 43 is not to our liking, 43(7) endeavours to take all ofthe rights given to him in the rest of this

section away from the worker, and we would ask at a minimum that this committee consider the withdrawal of this

Section 43(7) from the Act. In conclusion, I would like to leave a thought with this Committee on this very important bill to the workers of Manitoba, that they are not just dealing with another bill or

an Act in the Legislature, but you are dealing with the safety and the health of connt less numbers of Manitoba workers, and you, by your action can go a long way to stop the slaughter that is going on in industry in the workplace today. I would like to thank you for the time you've given me. MR. CHAffiMAN: Thank you, Mr. Habkirk. There may be some questions. Mr. Paulley. MR. PAULLEY: Mr. Chairman, if I may, to Mr. Habkirk before he leaves. It's not a que:;;tion. Have you a copy of your statement, Mr. Habkirk, that I might have? MR._ HABKJRK: I ad libbed a lot, Mr. Paulley. MR. PAULLEY: Pardon? MR.

HABKJRK: I ad libbed a lot. I was working from notes, Mr. Paulley, I'm sorry. MR. PAULLEY: You ad libbed a lot. Well, we can get it of course from the tape recorded. I was quite interested, a:; you can well imagine - not the complimentary parts , the parts dealing with the legislation, but as Mr. Green says, we can get it. Mr. Green, if we can have a guarantee of having it before we deal with the clause sections, I would appreciate it. MR. CHAffiMAN: The Chair will attempt to get at least one copy for each caucus room and one for the Minister. MR . PAULLEY: Okay, that's fine. Then I have no questions. MR.

CHAmMAN: Mr. Sherman. MR. SHERMAN: Mr. Chairman, through you to Mr. Habkirk. Mr. Habkirk, could you tell me why you think that 43(7) takes away everything that the rest of the legislation would give in terms of workplace safety; is it because you think there would be different applications or

interpretations of the term "frivolous"? MR. HABKJRK: Yes, I believe so. I would point out that perhaps what might happen is that a worker who is perhaps overzealous in his wanting to clean up his work place would perhaps pull this once or twice and the officer or the committee might back him up, you know, say they backed him up.

Now I suggest to you, Sir, that perhaps at one time an officer or his safety committee did not back him up, that the employer was sort of getting uptight about his pulling this situation, even though the man was right he might decide to get rid of him and say, "Well due to the fact that the officer or the safety committee do not back you up this time, we believe that you have been doing this sort of thing in a frivolous manner", even though the worker might not be meaning it in a frivolous way, that he was really serious and really believed that the situation he reported and refused to do work which was of a dangerous nature and was a threat to his health.

MR. SHERMAN: Well would you be satisfied with legislation that, say, elimi nated that provision in 43(7) ? You say you'd like to see that deleted from the bill. Say that provision as it's worded at the present time were eliminated, would you be satisfied with legislation that somewhere in it, under another section, pos sibly under 53, Offences, provided two-way protection for the worker and for the employer against the kinds of activity, the kinds of res entment and resentful activities that almost every human being is liable at one time or another to be subject to, and some human beings are disposed to .?

What I'm getting at is, I accept what you say about the particular wording of 43(7). I'm a little concerned that what we're looking at here is a situation where we want safety in the workplace, but people are only people, and there can be individuals who for one reason or another are res entful of other individuals because they misinterpret the way that certain actions have been carried out, or certain instructions have been followed, or certain orders have been given, and there's a possibility that an employer

244 June 7, 1976 (MR. SHERMAN cont'd) ••••• could try to implicate a worker unfairly in a situation, there's a possibility that a worker - I think we've got to admit that. I mean, it's not a perfect society, there's no protection built into this bill at the present time for that kind of thing. So would you be satisfied with a change in the legislation along that line ? MR. HABKIRK: Now I've got to really think about this one. If there was pro vision made that the worker - I'm talking about the person - would not be put out of his job until some sort of a ruling perhaps by the Labour Board.

I mean, the worst thing and the biggest disaster that can happen to a worker is one of two things. MR. GREEN: This would have to be through arbitration. MR. HABKIRK: Yes, but I'm suggesting, Mr. Green, that perhaps if there was some means of protecting the worker to this extent, that until some arbitration board - or in the case of a worker without a union, some sort of other board set up by the Labour Labour Board - had heard the employee's case, then no action could be taken against the employee.

I would suggest to you that would be the fairest way, as sort of a third party situation, because I point out to you again that the biggest disaster that can happen to a worker is an industrial accident - I should say there's three, also industrial disease or in this time of high unemployment, or at any time, when that employee loses his job, even, for instance, if an employer could fire at any time any employee for any reason.

But I point out to you, if there's a union involved, of course he has to prove that he was fired with just cause, then I would suggest to you that in this area of safety and health where it's so important that the employee's job be protected until such time that, in the case of a union, an arbitration board has had a chance to hear the case; or in the area of an employee without a union, the Labour Board or some other appeal body has had a chance to listen to the case and to make a decision as to whether or not that person had acted wrongly. MR.

SHERMAN: Well I read that as implicit in the legislation the way it's pre sently worded, Mr. Chairman, but that's obviously a difference of

interpretation. MR. HABKIRK: Only when there's a collective agreement. MR. SHERMAN: When there's a collective agreement. That still wouldn't get around the term "frivolous", even if we did it the second way you s� gest. MR. HABKIRK: Well, I'm suggesting that if it could be proved that a worker misused this clause in the Act, actually somebody was able to prove that it was misused, then I would suggest to you that perhaps that man should be fired. This Act is to protect workers and if someone is misusing the Act for personal reasons, it must be proved before the person is let go.

It should read in such a way - and I'm not a lawyer, per haps Mr. Green could help me. MR. GREEN: I haven't helped you up to now. MR. SHERMAN: He can't help you Mr. Habkirk, let me tell • MR. HABKIRK: You know, until such a time that the worker has been proved to have used the Act for his own personal reasons, not the way the Act is meant to be used to protect the worker, then I would suggest that it could be done in this way. MR. SHERMAN: Okay. Thank you, Mr. Chairman. MR. CHAIRMAN: Mr. Barrow. MR. BARROW: Thank you, Mr. Chairman.

You mentioned during your brief with respect to mines, you mentioned an accident report, just casually, very briefly, do you place any validity on accident records ? Pardon me, not reports, accident records, kept by corporations to show the miners • • Do you place any validity on that ? MR. HABKIRK: Not too much. MR. BARROW: Not much? MR. HABKIRK: No. MR. BARROW: You bring in Saskatchewan legislation versus Manitoba Legislation, do you think there's a vast difference or medium difference, or the same, or do we surpass it, or what? MR.

HABKIRK: When I brought it up I said I believed that there should be com mittees in every workplace, and there should be a connection, for instance, between the committees as such, and the whole aspect of the safety at the workplace including that point I tried to bring up that the committee are the best people to handle any case, for instance, when a man believes that there is a problem.

June 7, 1976 245 MR. BARROW: Is the committee comprised of both staff and labour? MR. HABKIRK: That's right, evenly. MR. BARROW: Evenly. You would trust in their judgment to judge whether a place is safe or unsafe? MR. HABKIRK: I would still leave the man a right to appeal or go to an officer. But in the first instance I would give the committee the chance to deal with the problem. I believe I can trust my fellow workers if, as I said before, some sort of training has been given to them to be able to sort of have an idea if something is safe or unsafe. MR.

BARROW: It's very interesting and I'm interested in the mining element because I've spent a lot of time in a mine. MR. HABKIRK: Well I believe a miner would be more able to judge if something was safe or unsafe, Mr. Barrow, than some inspector who perhaps has not ever worked in the mine in his life. MR. BARROW: This is the crunch. This is what I am getting at. Do you realize miners are just ordinary people, they are not a superior race. A person who is very nervous or high strung would think a place is unsafe; a person who is very placid and easy-going would say this place is not bad.

You are going to have a variation of opinion on a place whether it is safe or unsafe. You go to a place that's unsafe and work for a week before something happens that pertains to use, pertaining to gas or smoke. It could be a pure time. Well who should judge whether this place is safe or unsafe? You are going to have staff people on this committee. Right? And labour people. Evenly? So what if they have an even division - the staff people say it's safe and the union saying it's unsafe - then what happens? MR. HABKIRK: Then you have to call in the officer, I'm afraid. MR.

BARROW: He makes the decision regardless if he's a miner or inexperi- enced or not, he still makes his own • MR. HABKIRK: I guess so. MR. BARROW: Do you see any difficulty in this? MR. HABKIRK: Not if the workers have a right to appeal further on as I men tioned elsewhere in my brief. I believe that there should be a right for an appeal to go higher if that officer comes in • MR. BARROW: It intrigues me, this appeal. We get this every day. I've had it where with appeal boards , if you appeal to an appeal board you go on and on and on. It has to be a basic thing.

What would you say would be the fairest way to do it? You're talking about safety. When you are talking about safety and even though you are on staff, and you want that place to go, you're hesitant in making it go if there's any doubt whether the place is safe or unsafe. Because if something happened after he said it was safe, of course, you're in real trouble, aren't you? MR. HABKIRK: I believe, and I believe this to be a true statement, Mr.

Barrow, that under the Saskatchewan Act, the wording of the Act, there is hardly any cases - maybe there might be one or two - where a man refused to do work because he believed it to be unsafe. I believe in most of the cases in Saskatchewan the committee is able to make decisions and usually management and the labour members of the committee get to gether and come to some means of rect ifying the situation that the worker is complaining about. MR. BARROW : They can make you do that on its own. MR. HABKIRK: On its own. MR. BARROW: Right. Thank you. MR. CHAIRMAN: Mr. Dillen. MR. DILLE�: Mr.

Habkirk, I think you will agree, and I want to be sure of my ground, that what this legislation attempts to do is to recognize the sickness in the work place and correct the sickness of the workplace rather than waiting until the individual becomes ill or injured and try to deal with the injuries or illnesses that occur as a result of a workpl�ce that is unsafe or sick. MR. HABKIRK: That's right. MR.

DILLEN: Now I want you to tell me, if it' s possible, if you know of any areas in and around the City of Winnipeg for example that may pose a threat of heavy metal contaminants to people in workplaces in the City of Winnipeg.

246 June 7, 1976 MR. HABKmK: Heavy metal contaminants. Well I can name you all of the battery plants, etc. These are very dangerous in that area because of the lead. All of our foundries are very dangerous. There should be a thorough investigation of these type of places as working with mol ten metal and mo lten metal gives off lead fumes and zinc fumes and all types of fumes which do very nasty things to the human body. We're find ing out to our sadness that workers are dying far before the. time that they should and are crippled for life in other cases.

So these are the types of things we hope that this Act will help to alleviate. We in the Area Council, at least, believe that we must have committees in the shops with certain rights and certain responsibilities for the simple reason there is not and cannot be enough inspectors to ever come near inspecting every place of work. The formation of committees at these places of work will allow the workers to finally start having some rights and some responsibility in the workplace for the working conditions found therein. MR.

DILLEN: You mention in one part of your presentation that, particularly as it applies to the mines, we appear to be concentrating on conditions that exist under ground. I wonder if your group has considered the hazardous conditions that exist in the milling, smelting and refining process and the number of contaminants that exist in those areas as well. MR. HABKmK: Well our committee has had all the study materials that have come out. We find that doctors are now beginning to realize that there are some areas in smelters that men should not even be working in.

Some of the contaminants that they are getting are causing them to come down, for instance, with certain types of cancer within 20 years and this sort of thing. We believe that these areas, if the workers have a right to have an equal say in how they are to be cleaned up, we would suggest to you this is the only way to go about it. MR. DILLEN: Then your position is that the committees should be comp ulsory ? MR. HABKmK: I do. MR. DILLEN: Let me see if I get this straight now.

You are saying that the worker should have the right to remo ve himself from what he considers to be unsafe conditions, and we've sort of zeroed in on mining, the underground operations of a mine rather than the surface operations of a mine. MR. HABKmK: Not really, Mr. Dillen. It's just that I suggested I have been talking to the miners from the north. I never mentioned that we have also been in con tact with the surface workers in the north. There are some very obvious places that are just completely unhealthy to work in.

I believe The Pas, and I forget what they call it, the operation up there, I think it's called "the tank house". We understand, although even myself I find it hard to believe, that no one has ever lived long enough to retire. You know when you stop to consider that for a minute --(Interjection)-- Thank you, that's correct, wasn't it ? --(Interjection)-- No, I think I got that from one of our staff safety representatives who was up there. MR.

DILLEN: Now what you're referring to is then in-plant environmental con ditions that the worker should have the right to remove himself from if he considers it unsafe rather than an obv ious hazardous condition as it applies to underground mining operat ions. I'll use this as an example. Where the sulphur level for example increases beyond the recognized threshhold limit value, that a worker then should have the right to remove himself from that condition until it is corrected. MR. HABKmK: That's right. Mr.

Dillen, I also say that if there is an obvious, physical hazard then a worker should be able to remove himself from that situation also, whether it be in the mine or above the ground, in any type of a shop. MR. DILLEN: Thank you. No more questions. MR. CHAIRMAN: Any further questions? Mr. Barrow. MR. BARROW: My colleague brought up the tank house and what he is referring to is the tank house in the Flin Flon area. The tank house is a place that's way outdated. Thirty years ago it wasn't a bad place but now it' s an ou tdated place. What's happened is that sulphuric acid is coming from the fumes • MR.

CHAIRMAN: Question please, Mr. Barrow. MR. BARROW: Mr. Chairman, it's a hazard and it's obvious because it rots

June 7, 1976 247 (MR. BARROW cont'd) • teeth. Now if it rots teeth then evid ently it does something to a person's system. So I'll say what you said in the House, I've said it publicly and we got quite a bit of coverage on it, because the condition exists. What happens is the company ignored this until recently. Now the first issue that they made was that they could clear up the conditions but it would be expensive. MR. CHAmMAN: Order please, Mr. Barrow. You' re making a speech now. We're not hE)re to make speeches; we're here to ask questions. MR.

BARROW: Well my question is this, we had a pollution problem and how we cured it was: cure the problem in two years or else we shut you down. MR. CHAffiMAN: Order please. You are again making a speech. MR. BARROW: Mr. Chairman, there's no one out of order more than me and Harry Enns. Thank you. MR. CHAmMAN: Are there any further questions ? Mr. Paulley. MR. PAULLEY: Mr. Chairm an, I have one further question of Mr. Habkirk.

Despite the descriptions of situations that are prevailing and have prevailed in the past, are you and your organization convinced or reasonably convinced that the suggested com ponents within this legislation is an endeavour to overcome the deficiencies of the past and is a step in the right direction despite some deficien cies. MR. HABKIRK: Yes, Mr. Paulley, we do. But as I said, however - I would like to go back, I've thought of something else on 43.

We had people before us, and I was sitting here today and on Saturday, who had a lot of trouble getting their point across even verbally yet they did a fine job verbally. I would suggest to you that they just forget about the whole thing and go back and get themselves killed if they have to start filling out damn forms just for the bureaucrats to study. I really do and I feel very strongly about that point. MR. PAULLEY: But you're still convinced, notwithstanding that, this is a step in the right _direction. MR. HABKIRK: Oh, absolutely and we've waited a long time.

I beli eve some body on Saturday said that there was a lot of agitati on going on and something would cause a lot of agitation and I think I can truthfully say that the organized labour in this province has done a tot of agitating for this bill and we're happy to see it at long last. MR. CHAffiMAN: Mr. Patrick. MR. PATRICK: Mr. Chairman , I have a question for the witness. You indicated that thi s legis lation cannot be enforced from the top because you don't have enough inspec tors. It would have to be by safety committees within the workplace.

I think your points are well taken, I agree because there is nobody who takes more pride in a place af work than an employee when it has a safety record. My question to you is on the point where you indicated that you did not wish to have technical people on the committees. My concern would be where you have such things as high frequency motors, loud nois es and so on, wouldn't these people be of value because it' s during the period of a long time that the effect takes place on the person. Wouldn't these people be of some help? MR.

HABKmK: What I was suggesting is that basically, you have in the plant - I was talking of safety and health committees made up of equal numbers. I'm talking of this committee also as a committee made up of equal numbers, labour-management people, workers and employers, however you select them. I also suggested that if technical ex pertise was needed this could be hired. If the committee needed the expertise for in stance of an audiologist or some other science say to come in and act as a consultant to the committee, these people could be hired. But we're saying why should these people have a say?

I suggested this committee would have some sort of voting procedure with a chair man, if there would happen to be a tie. I've worked on jo int labour-management commit tees by the way and I found that usually we didn't have a tie but after much debate in say 80 percent of the cases you came to an acceptable decision both of management side and the labour side on the joint committee. MR. PATRICK: Your view is then that techanical people would be more unbiased if they were not on the committee, if they were just consulted on a consulting basis. MR._ HABKIRK: I think so. MR. PATRICK: Okay.

Then in a workplace who would do such things as moni toring the high frequency motors and the loud noi ses and the ligh ts and so on ?

248 June 7, 1976 MR. HABKmK: Maybe I should explain. Your committee, if they ascertained that there perhaps was a noi se problem within the plant and the committee decided that they should first find what the noise levels were and they found that they were running at 110 decibels and they decided they had to set up a noi se conserva tion program to do two things ; No. 1, to bring the nois e level down and while they were bringing the nois e level down, protect the employees. The obvious thing would be to hire an expert.

They would have to look around and find some experts and I would hope that the new division would have people of this type of expertise to come out and be able to help the committee in doing what they wanted to do and giving them the informati on. MR. CHAffiMAN: Thank you. Mr. Barrow. MR. BARROW: One question you have not asked. And I'm going to ask you the question why you haven't asked the question . Who will pay this committee? Who do you think should pay it? How should it be financed ? MR. HABKmK: The Joint Safety and Health Commission. The employer. MR. BARROW: Right, right, thank you. MR.

CHAffiMAN: Any further questions ? Thank you, Mr. Habkirk. Mr. Art Coulter. Order please. Do you want to make representation on all bills, Mr. Coulter? MR. COULTER: Yes, would you like me to start on the • MR. CHAIRMAN: Start on 14. MR. COULTER: It doesn't matter? MR. CHAffiMAN: Well I don't care where you start really, it makes no differ ence to me. BILL NO. 14 -

AN ACT TO AMEND THE EMPLOYMENT STANDARDS ACT and EMPLOYMENT STANDARDS ACT

(2) MR� COULTER: Or if I start. Well, I think we'll be brief on the Employment Standards Bill 14, that this is just an update of the legislation . It's deleting a couple of old sections pertaining to

Section 32, the work schedules and hours of work to be permit ted, that type of thing. We agree that it's about time that it was streamlined, and that's what's happening. With respect to

Section 34(17) , we agree that this is now in line with what's appropriate to pay for statutory holidays, 4 percent within the construction industry . And that's been some time in coming but we appreciate the fact that it's here. The other one with respect to

Section 35. 1(2)(

c) that would appear to be an obvious mistake in the initial drafting, so that there's nothing in that legislation that we do not concur with. I think I should, while I'm on that Act refer to Bill 85 and that legislation. Item No. 3 exten ding the coverage to a numb er of new jobs, operations , charita ble, religious, philanthropi c, political, so and so, they're all good, and we're suggesting here that rather than ha ving an exception for the farm workers that they should be like wise inclu ded, or they should be includ ed to some extent .

I think we're all starting to appreciate the fact that there has to be some further regulation brought in for farm workers. We appreciated coming in, as far as accidents are conc erned, the compensa tion but I think some other jurisdictions are bringing in legislation with respect to farm workers and particularly with minimum wages for farm workers, that type of thing. We raise that point here so that hopefully the Minister of Labour at some time in the future will consider more attention to that with respect to the employment standar ds. Item No. 5.

We notice that the Crown was included before and now you are taking it out, or at least the regulations will be able to withdraw some function of govern ment or Crown corporations from a coverage of the legislation. We don't think that that is in the right direction. We wonder why that has been introduc ed. --(Int erjection) -- MR. PAULLEY: They were never in there before and they're going to be inc luded. MR. COULTER: Beg your pardon ? MR. PAULLEY: It's the other way around , Art. There are two Employment Standards Acts, Art, I think you have them sort of mixed up.

We are bringing in for the first time coverage of Crown employees under the Employment Standards Act with the provision whereby there may be exceptions by the Lieutenan t-Governor-in-Council for certain managerial or supervisory staff that was not there before. But previously, no one but no one in the Civil Service was cove red under the Employment Standards Act.

June 7, 1976 (MR. PAULLEY cont'

d) So there's that change . MR. COULTER: Well I can stand corrected on that. The fact that you're not going all the way I guess • MR. PA ULLEY: Well maybe you criticize us for that, Art. There are two 249 se parate Employment with Wages Acts, one contains some part, Mr. Coulter, • • so maybe that causes the confusion. MR. COULTER: Yes. Well that probably brings us around to the point that we' ve been advocating for some time complete re-arranging of the legislation into a single labour code so that they wouldn't ••• MR. PAULLEY: That wasn't even included in the - let's not get into an argument ••• MR.

COULTER: No, no, but I think we need consolidation where they're all under one Labour Code in different se ctions so that we can follow them. I think we're still in a jungle here as far as the different parts and the different Acts that are still in vogue with regard to vacations with pay, etc. Th e next is

Section 6 to 9 included, is tidying up of maternity provisions, appear to be good and obviously needed. MR. PA ULLEY: The girls will like me for that, Art. MR. CHAffiMAN: Order please. MR. PAULLEY: I' m sorry, Mr. Chairman. MR. COULTER: In respect to 34(16) I suggest that it should be out. That hasn't been attended to and that is the one in which time and a half for working on statutory holidays is not extended to those working in gas stations, hospitals and continuous operations. W e•ve advocated that time and time again but that is still outstanding and has not been attended to in this legislation. Well I think with respect to that

section of a group of operations that many of these people under our working agreements do get time and a half but it's the unorganized se ction that is not and we think that they're still being abused, being considered as second class citiz ens, and sugges t that they should be brought under the Act at some time. BILL NO. 15 -A N ACT TO AMEND THE VACATIONS WITH PAY ACT_ MR.

COULTER: Now, with respect to Bill 15, Vacations with Pa y, we realiz e that this amendment is here because of some agitation by employers indicating that they may have students employed for a few weeks in a year and eventually they get five years se rvice in and for this reason that it should be stated that they have to work more time, and it's 50 percent in this bill.

We' re just suggesting on this thing - we haven' t any great objections to it although we think it's going in the wrong direction - at the same time in bringing this amendment in, I think it was about time that the three weeks vacation should come in at less than five years of service, sa y three weeks after three years of service, and would be more in keeping with modern standards. Do you want to pass those off now, Mr. Chairman, or is there any questions relative to them? MR. CHAffiMAN: Relative to Bills 14, 15 and 85.

Are there any questions mem bers of the Committee may have with regard to those bills before we proceed with the others? There don't seem to be any, Mr. Coulter. Would you proceed then to the next bill. BILL NO. 57 -A N ACT TO AMEND THE LABOUR RELATIONS ACT MR. COULTER: Next then is Bill 57, the Labour Relations Act, and here again we appreciate very much the many amendments that are being brought in at this time to correct some of the situations that we haven' t been that happy with. We wis h though to bring a few matters to your attention. The

Section 6(2) is a new

section and should be able to deal with many problems. We took note of the comment the other day of Mr. Newman and the complementary

section to

Section 6(2) of

Section 16 where a union cannot, or a person and an employer cannot solicit membershi p on an employer's place of business during working hours, and we think that that's the balancing one.

250 June 7, 1976 (MR. COULTER cont'

d) However, in

Section 6(3) is one in which we find great difficulty in accepting the logic of it. We know the original purpo se of the section, and it's one in which the rela tionship between labour and management once an agreement has been signed and to be able to function that there is an acceptance of time to be served by committee men, that type of thing, to function as shop stewards and to deal with grievances, and that type of thing, and this way the employer is allowed to do those things without it being recognized as an unfair labour practice.

But we suggest that by putting it in the way it is without the qualification that these things are fine but only after a certification has been granted, where a union has obtained bargaining rights, that's the only time that those things should be allowed. And we think that by having it in in a general state the way it is, that it sort of contradicts the other sections of the Act that deal with the employer carrying on any of these functions, particularly in the formation of a union he's not permitted to become in volved.

We appreciate some of the new sections in this regard that this should help the Board in deciding cases as to whether there has been interference. But we suggest that it would be an improvement - as a matter of fact it's most necessary, and we've been making this point every year since 1972, that that there allows the employer to influence a union of his choice and not necessarily that of the employees. And therefore it is un fair because a union or a person employed cannot by Section, I just referred to,

Section 16 cannot sol icit membership or speak to another emplo yee while he's on the job. But yet this allows the employer to do just that to satisfy himself, favour a . union or to favour a group of employees to contest an application for certification, and that type of thing, and therefore we think it is wrong the way it is in its present form. We recommend very seriously that consideration be given to amending that, and I have supplied Mr. Paulley and the Chairman with the wording that would be necessary there to make those qualifica tions.

Section s. We question again the extent in which this

section can interfere with the democratic process that must go on in administering a union, particularly with regard to membership and discipline. And we recognize that this has been in the legislation and at the same time it can hinder a union from taking proper democratic processes in disci plining members during the term of an agreement. No. 9. We are wondering here, and we appreciate the fact that the word "on ly" is applied here but there is no mention of the reverse onus being applied to this

section as it is done in others. 10(3) is the new extension that after the 90 :lays, a provision subsequent to the certification, the Board may extend this on an application of either party, and we only have to wait and see just how this is going to be administered, but we hope that the Board will take into consideration that extension will not be given for purposes to frustrate and to not bargain in good faith. So that that's something we're going to have to live with and find out, but I think the intent of it there where both parties agree is a good thing. 12(1) is our perennial, that we have been asking time and again that this

section be changed to instead of "another" employer to "any" employer which would include the same employer providing it was a different bargaining unit and we think here that the whole exercise that was gone through with regard to the Seagrams case, the boycott on the Liquor Commission was an exercise really in futility. When they were through with it they wond ered why they dealt with it and it all revolved around as to whether the opera tion of Seagrams in B. c. was the same as the operation in Winnipeg or Gimli or in the east and that one there we suggest would be much improved if the word "any" was sup planted for another.

Section 16, I mentioned this before, that this

section should come out altogether if you' re going to leave number 6(3) in, because if the employer has the right to allow people to confer with him and him to assist them to form a union, that that gives a one sided approach to it. And

Section 16 prohibits the union or any person in the employ of the employer mentioning a union or solic iting membership on the company premises. We're suggesting what's good for the goose should be good for the gander and either, if you're going to leave 6(3) in then you should take 16 out. We suggest that it might be better to amend 6(3) in the way we have suggested.

June 7, 1976 251 (MR. COULTER cont'

d) Section 21. And here we deal with the in vestig ator and it's the same fairly well. The only difficulty we have here and we just don't lmow how this is going to work but we do lmow that the use of the investigator in the present legislation provided a pretty fair function and did as a matter of fact have the authority to investig ate , interrogate people and bring evidence that could be used in preparing a case before the courts.

At the same time, for some reason, the Labour Board would not or could not have that same evidence given to it to deal with an unfair labour practice or an application for certification when this is mentioned, and now that the resolve of these things are going to be before the Labour Board, we're wondering whether the investigator is in fact now going to be able to bring that evidence before the Board. And we look at 21(2)(

a) for and on behalf of any person affected by an alleged unfair labour practice initiate any proceedings before the Board that is authorized by law. Now that is the same wording as the

section had before and for some reason or other the in vestig ator's report could not be used before the Labour Board and we suggest that this whole operation is not going to work very well unless that investiga tor's report and evidence is produced to the Board who are now going to deal with these matters. That' s a matter of vital concern to us at the present time. And we find in (

c) again as authorized by law , and we never did get the reason that the Board would not be allowed to accept or receive the information from the investi gator, but we suggest that if the y're going to be prosecuting these cases and dealing with them , it's the same as any other prosecution, it would be a pretty funny law if the po lice man was investigating a crime and when it come to be heard before the court or the magistrate that he couldn't report any of the findings and that the court then would have to allow or expect the witnesses before the court to bring forth the evidence.

That is completely ridiculous and we suggest that that's what has happened so far with regard to the Labour Board and investig ator and we can't accept that same procedure following under this new situation. I don't lmow if anybody here has got the answer to that so far but I'm sure that we have real serious problems unless that is allowed.

Section 22(4) documents to be filed, investiga tors' reports, I have question marks here as to whether that will allow an investigator to file them. One would think that this would have that application but here again we refer back to the other as to whether it will in fact take place. 22(6) the remedies, here again the $500 is a new feature. We'll just have to wait and see how it works out. One would hope that it doesn't initiate a number of frivolous and vexatious charges on a prospect of getting some reward for so doing. But we'll have to live with that for awhile just to see how that' s going to work.

Section 25(1) changes the opportunity to apply for certification with 35 percent up to 50 percent. We have no great objection to that , could have remained. Our difficulty was where a union had a majority and had been certified, that a dissident group could apply with 35 percent ignoring the 65 or 51 to 65 percent having been certified and just to frustrate. But we're prepared to accept that and see how that works with regard to that . Now I guess we shouldn't step over

Section 23(1) Freedom of Speech, which has been of a concern to some of the people represented here before the committee, and that's pretty clear as it's set out providing one is not intimidating or using it for some object that is not permitted by the legislation.

Section 26(2), I guess it's (4) of the old Act, should be deleted and here we have some difficulty in trying to accept the number of opportunities that are now going to be available for contesting a certification and we suggest that the best way to deal with this is - we have no quarrel with moving ahead the open period to three months immediately preceding any termination date of the contract.

I think that's going to be an improvement, there will not be that type of disturbance during a period of time that the party should be negotiating a new contract , but we have it with respect to an agreement for 18 months or less then there's only one open period. We suggest that even if there's an agreement for two or three years that there should be just the one open period instead of a number of opportunities during that period of time that that is open.

If the majority of the union and the employer enter into a two or three year contract then surely that contract should be lived up to and should not be open to challenge by anoth er union or a dissident group, that there should be one open period. The Act now provides for the Board to consider an

252 June 7, 1976 (MR. COULTER cont'd) • application at any time if there is some untoward situation that is not fair to the parties and that should be suffi ci ent to deal with that. So we suggest that serious consideration be given to reducing the number of open periods as I've suggested.

Section 34(3) is a good section, we appreciate it. This is going to be a question of degree and the Labour Board will have less to contend with.

Section 36 are all okay.

Section 44. We have the same comments here as in

Section 26, that there should be just the one open period during the term of a contract whether it' s for one year, 18 months, two years or three years. That is a like clause to 26 and we suggest it be given the same consideration.

Section 47. We suggest that this is one in which we have had considerable dif ficulty. It may be though that the changes in the legislation may provide through investi gation and the powers of the Board to find as to whether there has been employer inter ference, but we can't understand at all why, where an employee just claiming to represent a majority if the employees in a unit can make an application and the Board must direct that a vote be taken.

We think that the employee should be required to prove in a manner similar to that required for certification before the Board will entertain such an applica tion, that it just can't be on hearsay or a list of names that he has, Without any proper documentation. We even suggest that if there is a requirement for $1. 00 to be paid to sign into a union there should be similar monetary consideration given to a petition or a claim to decertify. That would balance it up in a more proper fashion. So we suggest that that likewise be given conside ration in dealing with this particular bill.

Section 50, Subsection (4), probably I should have had more time to study this over the weekend sinc e we had such time given to us, but I haven't - and that is with regard to the voting procedures as to the maj ority of those voting will determine a result. I just raise that in comment now, whether somebody else has the time to look that up or somebody knows whether that is the way it 's going to apply.

Section 62. This is something that we have advocated with a recommendation through the Woods Committee and we think it' s a good one. It sure will get the parties together and the prospect of res olving disputes will no doubt be enhanced by having the power in the hands of the conciliation officer to make the parties meet and bargain. That's a considerable improvement I think we'll find.

Section 65 is another one of the better improvements and we appreciate that very much. 68. 1 similarly , because there are dues levied now weekly or on a percentage of inco me, there's different ways of doing it now and that leaves it open now with that word stricken from it.

Section 68(3) is the question that you have had here before you by a number of delegations in trying to get relief from the requirement of becoming a member of a union and more particularly, I suspect, of paying union dues.

We were not that happy to see this get into the Act last time although we did appreciate very much the representations that were made by the Plymouth Brethren and I think in a moment of softness the Minister and ourselves sort of agreed that there should be something done to allow people with a serious conscience to get out from under and I still believe that the Plymouth Brethren are sincere and they make it pretty plain that they can't belong to any association at all.

I don't know how they can be accommodated, I think that they have been making certain suggestions to the Minister on this in the last day or two. I don't know whether they can be accommodated without opening the floodgates as has now happened, and we had the demonstration here the other day from the Mennonite representative that they just wanted to get away from paying dues to unions other than what they would want to have for them selves, in other words a Mennonite Christian Union, and naturally we can't agree to that and therefore it would appear that the whole

section should be thrown out. But here again we find the hand of experts to withdraw the requirement to become a union member in a closed shop by making it mandatory to pay dues, which is the Rand Formula, which has stood up in a fundamental principle I think that is pretty impo rtant to uphold, so that the amendment as it is now structured we agree to, we accept, and with regard to the people that we spoke about of having a sincere conscience, we'll have to leave that to the Minister and those here as to whether they can be accommodated specifically in the legis lation as a specific group or not and that may not be that acceptable to legis lators,

June 7, 1976 253 (MR. COULTER cont'd) • but we would not want it to be opened again the way it has been.

Section 75, a Code of Employment - this is a new section. It has a certain amount of intrigue to it. I can see the hand of a certain person behind this , and I don't need to mention his name, everybody knows who it is. But, you know, I think we'll just have to wait and see how this works out. Really what it is going to do, it's going to fix the status quo for a further - yes, for 18 months from the date of certification, which really doesn't do anything for a number of people that may be caught in that situation. So that I do not see this preventing the necessity to strike.

I see the necessity though, or the use of it where - and we've had some - where an employer has bargained so far and not been prepared to go nearly all the way and after the 90 -day period he's prepared to buy the employees off with a pretty generous wage hike and there nullify and cut the feet out from underneath the union's effort, that that situation will no doubt be caught up in this particular piece of legislation. And therefore I think in those situations this will cover it adequately.

The others where there is no real bargaining strength, it's not going to help them at all other than to assure that they will be in that situation for 18 months. But here again we will live with it, we will see how it works out, and hopefully it will do what is expected to be done. It makes mention of a list of arbitrators to be kept by the Minister. I would imagine that he will appreciate the necessity of having such individuals acceptable to both labour and management, and this would be a step in the ri ght direction.

I think we have to look more and more toward the use of single arbitrators instead of arbitration boards. I think we can have a list where it is generally accepted that they are somewhat unbiased, labour and management accept them as such. --(Interjection)-- Well there are some individuals that come to mind. It all depends on who you're dealing with though, if you get them to accept or not. But through a list they mi ght find such a person, but I think that it's very important that single arbitrators be use:i to a greater extent.

The other is just a costly procedure and more time consuming and I know wherever I have the opportunity I try to get that into a working agreement, that if they have that as a right initially and if they can't find a satisfactory individual between them then they have to resort to the three-person, the nominee section. But we appreciate that section. The other is

Section 27, the item 27 in the legislation, Asso ciated Businesses, Spin-off Companies, we recognize the importance of this and I think we've had that demon strated pretty clearly by employer representatives that have been here before me speaking opposed to this particular legislation. It's obvious that there are goings-on that have to be covered and this is a good piece of legislation to do that. The limit on appeals again are good and some of the things that have been asked for previously. I think that generally covers what we have to say about the legislation.

I say again that we appreciate very much the content of the bill . We know that there was a lot of thought going into it, there were a lot of repres entations made, adequate opportunity for everybody to make those representations, and I think this is a pretty fair representa tion of the opinions that were derived from those investigations, and therefore we must commend thl:;l Minister for bringing this bill forward at this time. MR. CHAIRMAN: Before you procee:i to the next bill, Mr. Coulter, I have Mr. Patrick who would like to ask a few questions on the brief that you've made on 57. Mr. Patrick. MR.

PATRICK: Mr. Chairman, to Mr. Coulter, on the code of employment. Is it conceivable that employees could go

Document details

Collection	Manitoba — Debates (Hansard)
Citation	30-3-ir9
Type	hansard
Volume / chapter	30th 3rd hansardpdf ir9.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	fd26f96456fc102b9807fc7c194d5e7f50bf0f35

Source file is stored in the law ingest library (pdf).