[ Page 2593 ]

CONTENTS

Routine Proceedings

Employment Standards Amendment Act, 1983 (Bill 26). Committee stage. (Hon. Mr. McClelland)

On the amendments to section 2 –– 2593

Mr. Gabelmann

On section as amended –– 2594

Mr. Gabelmann

Ms. Brown

Division

On section 4 — 2596

Mr. Gabelmann

On section 5 –– 2596

Ms. Brown

On section 6 –– 2597

Mr. Gabelmann

On section 8 –– 2598

Ms. Brown

Mrs. Wallace

On section 12 –– 2599

Ms. Brown

Mr. Gabelmann

On section 26 –– 2599

Mr. Gabelmann

On section 27 –– 2599

Ms. Brown

Division

On section 31 –– 2601

Mr. Gabelmann

Miscellaneous Statutes Amendment Act, 1983 (Bill 35). Committee stage. (Hon. Mr. Smith)

On section 3 –– 2603

Ms. Brown

Mr. Blencoe

Mr. Cocke

Division

On section 5 –– 2605

Mr. Cocke

Mr. Lea

Mrs. Wallace

Mr. Rose

Committee of Supply: Ministry of Tourism estimates. (Hon. Mr. Richmond)

On vote 73: minister's office –– 2607

Hon. Mr. Richmond

Appendix –– 2608

FRIDAY, OCTOBER 7, 1983

The House met at 10:08 a.m.

Prayers.

HON. MR. RICHMOND: In the gallery this morning is an old friend and a constituent from Kamloops. I would like the House to welcome Mr. Larry Campbell, who is with the B.C. Cattlemen's Association.

MR. CAMPBELL: In the gallery today are four people from Vernon — Olive and Eric Reich, Dave Morris, the clerk of Coldstream, and Claudette Everitt, the president of the Vernon Chamber of Commerce. I'd like you to give them a welcome.

MR. HOWARD: Mr. Speaker, I rise to give notice of a question of privilege and this is the first opportunity available to me to do that. Very briefly the question of privilege relates to events that involve the Leader of Her Majesty's Loyal Opposition and the necessity of having a very clear and precise exposition of the information to Your Honour. It is a complex situation and may involve a very complex and involved solution. We will have that available as soon as we can later today.

MR. SPEAKER: Hon. members, the Chair has observed that in the past few days two or three notices of privilege have been sought on the floor. While that is a proper procedure, I must clarify the fact that simply applying for such notice does not in itself exclude the finding — should it be — that the earliest opportunity must occur, and simply giving notice does not, in itself, obviate that necessity for the matter of privilege.

[10:15]

Orders of the Day

HON. MR. GARDOM: I call committee on Bill 26, Mr. Speaker.

EMPLOYMENT STANDARDS AMENDMENT ACT,
1983

The House in committee on Bill 26; Mr. Strachan in the chair.

On section 1.

MR. COCKE: Apparently there are a number of amendments. I see one before me.

AN HON. MEMBER: On the order paper.

MR. COCKE: They're all on the order paper? Okay.

MR. CHAIRMAN: Hon. members, there is also one circulated to the table which is not on the order paper. Do all hon. members have that?

Section 1 approved.

On section 2.

HON. MR. McCLELLAND: I move the first amendment standing in my name on the order paper. [See appendix.]

On the amendment.

MR. GABELMANN: As there are a number of amendments and because some are on the order paper and some aren't, I want to be really clear that this is the hours of work or overtime, deleting the special apparel.

MR. CHAIRMAN: Correct. That is the amendment to section 2(2), which has been proposed by the minister.

Amendment approved.

On section 2 as amended.

HON. MR. McCLELLAND: Mr. Chairman, I move the second amendment to section 2 standing in my name on the order paper. [See appendix.] Is it appropriate to comment at this time?

MR. CHAIRMAN: Yes.

On the amendment.

HON. MR. McCLELLAND: During the debate in the Legislature during second reading of this bill, a number of concerns were raised regarding the reason for this section and whether or not an employer could stall his negotiations in order that he might get a better contract for him. This amendment will help to clarify, first of all, that that is not the nature of this amendment. What it really means is that we want to be able to step in if an employer stalls or if a union stalls in developing a new contract, when a contract has expired but it has within its terms a provision that that contract continues in force until a new contract is reached. What we are saying is that quite often a bad union might leave its employees out to dry and not bargain new provisions, or a bad employer might leave the employees out to dry by not bargaining in good faith. So we are saying that when it becomes obvious that negotiations have stalled and the director feels that employees are not receiving the protections they deserve, we can come in and affect that contract only as it pertains to the items on the table: hours of work, annual vacation, termination, maternity and pregnancy leave — not wages, Mr. Chairman. They would then revert to the Employment Standards Act.

This may be a little out of order, but the new amendment that I will be laying on the table next takes care of the other question where the opposition asked me whether the employer could in fact delay negotiations. This amendment will make it very clear than an employer cannot be an "interested person," only an employee.

MR. GABELMANN: Yesterday was the first opportunity that I had to examine in any detail the amendments that are on the order paper and the amendment that we are talking about. Subsection (5) certainly deals with the concerns that I and a lot of other people had about the section. I believe — and this is with a lack of time, and I regret that — that the way the amendment is worded deals with the concern about the implications of the ability of the director to suspend those certain provisions of a collective agreement.

[ Page 2594 ]

On further review, there is no question in my mind at all that the original section would have allowed the director of the employment standards branch to make null and void an entire collective agreement, and this amendment....

HON. MR. McCLELLAND: That's not right.

MR. GABELMANN: The minister shakes his head, but since we had the debate on second reading I've had even more lawyers tell me that that is the case. Nevertheless, the amendment satisfies me in that respect. There will, however, be more debate on section 2, once we get to that.

Amendment approved.

On section 2.

HON. MR. McCLELLAND: Mr. Chairman, I would like to move an amendment to section 2, adding subsection (7): "In this section 'interested person' means an employee whose terms and conditions of employment are, or were, governed by the collective agreement referred to in subsection 5."

MR. CHAIRMAN: I presume all hon. members have a copy of this.

MR. GABELMANN: Mr. Chairman, I've had this copy now for a total of about three minutes. I see it says "(7)." In the course of all these amendments, have we deleted another subsection, and that's why this is (7) and not (8)?

HON. MR. McCLELLAND: Mr. Chairman, you have to go back and forth from the original bill to the amendment. In the amendment, which is on the order paper, there is no subsection (7). So this will add a subsection (7) to the amendment which you find on your order paper.

Amendment approved.

On section 2 as amended.

MR. GABELMANN: We still have the situation in section 2 where minimum standards that are referred to in a collective agreement but not as strong — to use that word — as contained in the employment standards.... It leaves us with a situation where workers in this province face the possibility of having standards lower than those standards which are applied by law to everybody else, both in the unorganized sector and also in the organized sector where stronger provisions obtain in the contract.

As I said in second reading.... I won't get into a second reading debate, but it seems to me that that principle is arguable. I must admit, quite candidly, that I have mixed views on the question of whether or not the collective agreement should be superior to the minimum employment standards. I think there is a reasonable argument, but committee is not the place to have that argument; I think I expressed my views clearly enough in second reading. But what we haven't dealt with is the fact that this applies, presumably, immediately. Unless there is a delay in proclamation this would apply immediately, and it would leave a large number of employees, whose collective agreements have not yet expired and who do not have the opportunity to negotiate collective agreements that will cover them for the deficiencies that might exist in their agreement, in respect of those kinds of provisions, particularly relating to maternity leave.... Before I say anything more, I wonder if I could get the minister's reaction to that concern.

HON. MR. McCLELLAND: Mr. Chairman, I have a staff member coming down who may have some information for me, but as far as the maternity leave benefits go, about 50 percent of the contracts in the province have maternity benefits in them, and my understanding is that they are quite superior to anything which is contained in the Employment Standards Act. For others they are not contained, so the Employment Standards Act would then prevail. I don't really see that as a major problem. It is true that there may be some benefits which have not yet been bargained at the passing of this act, but if they haven't been bargained at all, they will not be affected. There may be some. I can think of a couple of industries where layoff provisions, for instance, are far less restrictive than in the Employment Standards Act, but they have been bargained because of the nature of those industries. I'm thinking of the forest industry for one, with their recall provisions, and the fishing industry. They have bargained the kind of layoff provisions that they think they need to meet the needs of their industry, and they have probably gained something somewhere else. That's the nature of collective bargaining. I don't think that we should allow someone first of all to bargain the best deal they can get, because of the nature of their industry, and then, if they think that something is a little better in the Employment Standards Act, say: "We're not going to pay any attention to that part of our collective agreement, because there is something better for us over here." That's really all we're saying. There will also be some people caught in the cracks between the expiry of their collective agreement and the passing of this bill. Some of the further amendments will pick up those people and make sure they're always covered, one way or another.

[10:30]

MR. GABELMANN: "Some further amendments" — presumably not in the course of this.... I'm going to wait until the minister gets his advice; that might be useful. The concern is that if the amendments were here, even if they were not on the order paper but were presented during the course of discussion and debate in committee, then we could deal with it. But otherwise, it might be a year or so from now before we get an opportunity to have legislative amendments. You've got them here?

HON. MR. McCLELLAND: They're on the order paper.

MR. GABELMANN: Not dealing with this question, though.

HON. MR. McCLELLAND: No.

MR. GABELMANN: Let's clarify what the problem is. The minister says that 50 percent of the collective agreements in this province have provisions that are stronger than the Employment Standards Act: 50 percent or better, in that range.

HON. MR. McCLELLAND: Just for maternity benefits.

[ Page 2595 ]

MR. GABELMANN: Yes, we're talking about maternity benefits. We should recognize that we are also talking about the other issues that are on the table. I agree that even the majority of collective agreements have provisions that are in excess of or better than the provisions in the Employment Standards Act. We're not worried about those people, nor are we concerned about those people who have collective agreements in which the agreements are silent on those matters, because if the agreement is silent, as the minister has said, and I agree, the Employment Standards Act applies.

The group that I have been expressing some concern about — and I don't think the minister has dealt with this — is the group that falls in the middle of those two categories. It's a small number, no question about that. I don't know what percentage it might be; it's certainly a small number, but it is undoubtedly thousands of people. Most are women in newly organized fields, whose agreements do make some mention of maternity leave or the other issues, but who have provisions in those agreements that are less than are contained in the employment standards legislation. Because there is some mention in their collective agreement, then the collective agreement applies, even though those provisions may be less than they have been enjoying, because the Employment Standards Act has been the floor. I must say I give the minister credit for responding to the concerns that were expressed in second reading by bringing in the other amendments, but there is one amendment yet to come.

Interjection.

MR. GABELMANN: I am saying that those people whose collective agreements have provisions that mention these items but that aren't as strong as this legislation should have the opportunity to be covered by the legislation until they have the opportunity to go into bargaining, because they can't obtain any redress. There is no way for them to obtain redress until they go into bargaining. I want them to be maintained at their present level, which they have enjoyed for as long as we have had employment standards legislation. I want them to be not up, not down, but the same.

The problem is that there is a crack here. It doesn't apply to hundreds of thousands. It applies to probably less than 10,000, mostly women in newly organized fields. The minister says there are further amendments, but I don't think he was talking about this particular concern.

HON. MR. McCLELLAND: No.

MR. GABELMANN: He agrees with me. I think the concern is a legitimate one. It's not a huge philosophical question. There's no reason that I can imagine why the minister couldn't take some time to consider that aspect of section 2. Perhaps we could delay the discussion of this committee until later, while the minister prepares some amendments.

MS. BROWN: I want to give the minister the statistics to follow up from my colleague. Sixteen percent of the collective agreements in existence provide less maternity benefits than the statute does. Those are the latest statistics we have. They usually have a rider about when maternity leave comes into effect: that is, they say an employee would have had to work for the company for a minimum of a year or two years. Also, 18.6 percent of collective agreements in existence have no seniority accumulation in them during the time that a person is off on maternity leave. Those are the statistics to fill out what my colleague from North Island was saying.

HON. MR. McCLELLAND: I don't understand the significance of the seniority accumulation. The Employment Standards Act doesn't deal with that, anyway. That is only a matter for a collective agreement. It always would be. I don't have the figure of 16 percent. That could be correct, I guess, but that also means that 84 percent have either as good or better benefits.

MS. BROWN: That's why he said it's just a few.

HON. MR. McCLELLAND: Yes. And I'll just tell you how some of the unions have dealt with this matter. It's interesting that some of the largest unions, and the ones which are considered to be the strongest unions in the province, have not dealt with maternity benefits at all. So the employment standards act will prevail. The BCGEU have dealt with it, but generally they are the same as the employment standards. The Teamsters haven't dealt with it at all. CAIMAW hasn't dealt with it at all. So our employment standards would apply, and they are very large unions covering a lot of people. A number of unions — the Garment Workers, the Union of Bank Employees, the Canadian Farmworkers' Union — have generally just bargained into their collective agreements that our standards will apply. So they will continue to apply on that basis.

I don't think it is as big a problem as the member might believe. I would not entertain any further amendments at this time, but I would make a commitment to the member that we will watch it very carefully. If there are some problems, we can deal with them reasonably quickly. There might be a small period of time during which we cannot, but we could deal with it under the other provisions of section 2, whereby at the expiry of that collective agreement, at least the director can then step in, if he believes that there are benefits which are substandard, and then make the provisions of the Employment Standards Act apply.

MR. GABELMANN: I appreciate the tone and tenor of the minister's response, but not the words. There is no disagreement about the fact that what we're talking about applies to only a few people. There is no disagreement about that at all. But it seems to me that a provision such as the one we are calling for does not in any serious way detract from the direction in which the minister wants to go with this particular legislation. It fills a minor loophole, but it is a major loophole for those people who are in it. There can be cases where redress cannot be obtained for a considerable period of time — if they are in a lengthy agreement, or have just concluded an agreement and haven't bargained provisions that meet the employment standards level, yet do have some provision in the collective agreement. For me that's enough to suggest that we can't, despite the many improvements in section 2, approve section 2 in its present form.

Section 2 as amended approved on the following division:

[ Page 2596 ]

YEAS — 27

NAYS — 11

An hon. member requested that leave be asked to record the division in the Journals of the House.

Section 3 approved.

[10:45]

On section 4.

MR. GABELMANN: I assume that section 4 — and I would like to have the minister's comment — is just a continuation of his philosophy that collective agreements and employment standards should be more separated than they are now, and that if provisions are in a collective agreement, then the employment standards in respect of the employer's duty in paying over aren't required. Is that a fair assessment of the philosophy behind this section? The minister nods his head. I'm not going to pursue it, Mr. Chairman, other than to say that there is some real opportunity here for a debate about whether or not employment standards should form a basic floor for all of society. I've made that argument during debate on the principle of the bill, and we had a touch of it on section 2. I think the best thing is to avoid any further comment on that particular philosophical debate, unless the minister wants to get into it. It would be an interesting one, but I'm not sure we'd get very far with it at this stage.

Section 4 approved.

On section 5.

MS. BROWN: I am just a little bit concerned, Mr. Chairman, about the enforcement and issuance of orders for non-payment of wages no longer being mandatory. Is my assessment of that correct?

HON. MR. McCLELLAND: No.

MS. BROWN: Well, maybe the minister would reassure me about that.

HON. MR. McCLELLAND: Mr. Chairman, the enforcement of all orders made under this act are mandatory, and the payment of wages, once an order has been issued, is mandatory. All the provisions that prevail, no matter what an infraction might have been, will be mandatory.

MS. BROWN: I think it is the discretionary powers of the officer that are creating my insecurity around this area. It seems that an individual could be subject to the whims of whichever industrial relations officer is assigned to his or her case. I want the minister, in responding to me on this one, to think specifically of domestic workers. The non-payment of wages, and going before the board and that kind of thing, is a real problem with this particular group of workers in our society. As the minister knows, these workers have less protection than most, and really depend on this particular piece of legislation to protect them.

HON. MR. McCLELLAND: Mr. Chairman, as the member will know, domestic workers were brought under the act in 1981, and it would be difficult for us to have them treated — under the terms of the act, at least — differently than other workers. It has always been possible — this act doesn't change that — for an industrial relations officer to, first of all, attempt to make an arrangement between the parties to get back wages paid on a voluntary basis — between the industrial relations officer and the employer, not between the worker.... That's always been the case, and it will still be the case. But if they can't make those arrangements, then the director will issue an order that those back wages be paid. We're not really changing that aspect of the act, Mr. Chairman.

MS. BROWN: Except you're going from a board to a director; you're going to one head rather than a number of heads. I'm just saying that I want to express some concern about being able to protect those workers, because they haven't got a trade union with any clout behind them to fight for them. They really could be victimized by the whims and fancies of....

HON. MR. McCLELLAND: Mr. Chairman, I think that's an extreme position. Our industrial relations officers have a pretty good record, and their job is to take the part of the worker, not the employer. But at the same time, I think they have to understand and sympathize with what may be an employer's difficult situation, if there is one, and make the best arrangements possible to make sure that worker gets what that worker is owed. I believe that the record will show that that has happened.

I agree that the matter of the board versus the director is a change. That didn't exist, though, until there was an appeal to the board. There was a pretty heavy backlog, and we're attempting to speed that process up so that the worker will have the opportunity to get justice more quickly.

MS. BROWN: What we're dealing with are two changes. We're not just going from the board to the director; we're going from a board which was compelled — "the board shall" — to a director who "may." So two things are happening here, Mr. Chairman. That's the basis of my insecurity around this particular section. Whereas the orders of the board were compulsory — and, as I said before, with a board you had more than one person to deal with — we now go to a director who is one person, and the compulsion is taken out of that; we're going to "may" instead of "shall."

HON. MR. McCLELLAND: With respect, Mr. Chairman, I believe the member is at least partly misunderstanding what's happening here. It is correct that the board will no

[ Page 2597 ]

longer be in place, and that the director will take the powers of the board, but those powers will remain the same. It's the officer who "may" issue an order, but if it comes to the director, I think you'll find later that the director doesn't have that discretionary power at that point. If he finds that there's been a violation he "shall" then issue orders. But there is no difference, in the long run, to the employee, except that the employee will, I agree, be dealt with by the director, who has the ultimate responsibility rather than the board. But there is no change in the discretionary powers. First of all, the officers will investigate complaints, and they may be able to make an arrangement for payment of back wages. If they do, that's great; it would presumably be an arrangement which would be in everybody's best interest. If he can't make that arrangement, he may issue an order; or he may not, if he finds, for instance, that there are no back wages payable. Then there would be an appeal line to the director and he would then adjudicate the case. But there's no change in the mandatory provisions.

MS. BROWN: Mr. Chairman, subsection (2) says: "Where an officer is unable to resolve a complaint...he may issue an order...requiring the obligor to pay forthwith...." That's the area that I'm expressing my concern around. The previous compulsion, which was embodied in the word "shall" has now been softened to "may."

HON. MR. McCLELLAND: No. The officers always had the opportunity to make an order or not. It has never said that that officer must make an order in all cases, because for one thing the case may not be proved. I have difficulty referring to another section of the bill, but I think it's important, Mr. Chairman. The officer has a couple of opportunities if he's having difficulty with the complaint, and you might look at section 34 of the amendments as well. Where the officer is unable to resolve a complaint, he may, as well as doing some of the other things which are in this section — making the order, for instance — also refer directly to the director for an immediate hearing. And the director, if that hearing proves that the complainant is correct, will then issue an order. It has to be "may"; it can't be "shall" at that stage.

MS. BROWN: I'm going to accept this for the time being.

Section 5 approved.

On section 6.

MR. GABELMANN: Mr. Chairman, I don't think we should let section 6 pass, because it basically makes it clear that powers that were formerly held by the board are now held by the director. That's the essential provision, as I understand it. I think we're embarking in the wrong direction with this particular change. I understand the minister's concern about efficacy and the delays that have occurred because appeals back up and what not. But when you have a board making decisions of this nature, the board, theoretically at least, has some representation on it from various components of our society. Theoretically the board would have someone sitting on it representing workers or labour, or that side, someone representing the employer, and also people who have a more neutral perspective. When you turn those powers over to a director, you then say that someone who works for the minister, as opposed to someone sitting on a semi-independent board — I say "semi" because the board obviously is appointed by the minister.... But when you have someone who works directly in the bureaucracy of government and for the minister, you potentially politicize the decision-making process too much. You give adjudicative functions to an individual who isn't a judge, and isn't set up in the way that a board or an independent judge might be. You give, not awesome powers, because I don't think we're dealing with awesome issues in this bill, but extraordinary powers to a public servant. I object to that on principle. I understand that it will probably speed up the process, but I don't know what recourse individuals will have, short of going to the ombudsman, if they feel they've been dealt with....

HON. MR. McCLELLAND: County court.

MR. GABELMANN: County court? Have I not read this properly? They can go to county court. Well, here we have another example of plugging up the courts, which are already a little bit full. I can't deal with it, but it's the same way as with a lot of other things that are being changed by legislation right now, where we have had adjudicative boards or tribunals, or functions like the rentalsman, and on and on.... We more and more are moving away from that to a system where the only recourse people have is to go to court, if a decision is made that is contrary to their interests. When you're dealing with a worker who — and the most common cases deal with non-payment of wages.... Just the day before yesterday I had a woman in my office who worked all summer, earned $1,300, has gone to UVic for her first year, is unable to get her $1,300 from her employer, has spent weeks trying to get redress on that. If in the course of proceeding through the procedures she had an order issued by the director that was against what she thinks is her interest and, in her view, wrong, she would have to go to county court. Well, she wouldn't be able to do that. There's no financial assistance for legal aid, so she just couldn't afford to do that. Having a board allows her, in my view, to go and argue her case and, hopefully, at least have someone in there helping her to argue her case. I just think that this whole direction that is contained here and elsewhere is wrong. It's wrong philosophically and it's also wrong, in my view, from the government's point of view, because it's going to cost us more in the long run if we count up all of the different costs. And that doesn't make any sense, either.

HON. MR. McCLELLAND: I would like to make one comment, Mr. Chairman. I think the comments that the member for North Island made are, from his point of view, well taken, and there is probably a philosophical disagreement contained in here. I just wanted to bring to his attention a couple of things that happen in the system. I can't resist making one comment — and I'm going to keep track of your debate on some other bills, when you accuse us of politicizing the system when we have politically appointed boards in place, because you have taken the opposite argument here: you said that a board appointed by the minister is now somehow more clean than the public service. So I'll just wait until I can catch you in that argument some time later.

[11:00]

MR. GABELMANN: You will.

[ Page 2598 ]

HON. MR. McCLELLAND: And I will, sure.

There will be, we believe, quicker hearings for the employees. In terms of the board hearing cases and being evenly balanced, the director advises me that in most cases it is not the board which holds the hearings; it would be a single member of the board. Generally, these are very small cases — as you pointed out, it's a waitress who can't get her back pay, or someone else — and it's generally small amounts. So the full board has not been sitting on most of the hearings. It would be one member who would hear the review and make the order. At present we are about 90 days behind. That's not a good situation for the employee.

Secondly, should the case just.... We can recover costs under our legislation, so it would not be a direct cost to the government. It does not necessarily have to be a direct cost to the government.

The final point I want to make is that should it go to county court, and there has been an order issued, our officer would represent the employee in court. Under the act we take the employee's position, and that will continue under the amendments.

Sections 6 and 7 approved.

On section 8.

MS. BROWN: Mr. Chairman, the story I'm about to relate actually ties in both 8 and 12. I know I can't do that, so I'm going to discuss it under 8, but ask the minister to keep 12 in mind while I'm doing it so that I won't have to get up on 12 again. I received a letter from a student who was hired to work on a fishing boat over the holidays, the school vacation, so as to earn sufficient money to return to university in the fall. The understanding was that this student would be paid wages. But the wages wouldn't be paid until the end of the fishing season, because the owner of the fishing boat wouldn't have any money until after he had sold his catch. Well, he sold all of his catch to a company which went bankrupt — Cassiar Packing. So now we have this student who put in June, July, August — I guess it was three months — went to collect his wages, and the owner of the fishing boat said: "Go to the company and I will phone and tell them to pay you your wage." When this kid showed up at the company, the doors were locked and they had gone out of business; they had declared bankruptcy. Then we discover — and this is where section 12 comes in, which I can't discuss because I'm under section 7 — that the first people who get to call on the assets of the company are the banks.

There wasn't any money to pay the owner of the fishing boat, who then couldn't pay the student. The student was employed by the owner of the fishing boat, and the owner of the fishing boat owes that student wages. But the owner of the fishing boat didn't get a penny. This section deals with unpaid wages. What recourse does that student have, either under section 7 or 12?

MR. CHAIRMAN: We're on section 8.

HON. MR. McCLELLAND: I think there's a misunderstanding about what 12 does, but we can come to that. Under section 8, I believe the problem you describe does not lie with provincial legislation. It's a problem with the Bankruptcy Act. The Bankruptcy Act is very deficient and takes, as I understand it, precedence over how far we can go in a case such as you have described. I am advised that before I took this job my predecessor in the ministry had made some very strong pleas to the federal minister to change the Bankruptcy Act and to bring it up to date to allow us to handle situations like you've described. But I am told that that is the major problem. It is not a deficiency in our legislation; rather it's a deficiency in federal legislation.

MR. CHAIRMAN: Just before allowing further debate on section 8, I regret I'm going to have to go back to section 7 for an amendment.

On section 7.

HON. MR. McCLELLAND: My apologies, Mr. Chairman; I was so interested in the debate. I move the amendment standing in my name on the order paper. [See appendix.]

Amendment approved.

Section 7 as amended approved.

On section 8.

MS. BROWN: The plight of the student is provincial, because the student was hired by the owner of the fishing boat. His unpaid wages are a provincial concern.

MRS. WALLACE: On that same section and on the same issue, while the minister is discussing with his aide, certainly it relates to a lot more than a student. There are crews on those fishing boats who were hired on the basis of wage payment, as opposed to the sale of fish. There are shore workers involved in this as well. We have a situation now where the fishermen themselves are being promised they may sometime down the road get 20 cents on the dollar if in fact they continue to supply fish, which is a bit beside this particular section, but there are a lot of people in there that are really involved in the payment of wages, as opposed to a contractual arrangement for the sale of fish. It all depends upon that. I realize the Bankruptcy Act is a federal act. But surely there has to be some provision and some assistance from the provincial level for those people who are actually awaiting payment of wages.

HON. MR. McCLELLAND: There are two separate questions here — probably more than that, because there is a jurisdictional problem, I'm told, not only in the Bankruptcy Act but whether we have jurisdiction in the whole area of fisheries, or whether it's the federal labour code or federal standards which apply. I am advised that we have just taken that jurisdiction, in the case of applying our act to unpaid wages and other problems in the fishing industry. I am also told that the federal minister of labour has cooperated with us and so far we have been able to help a lot of people in the fishing industry where we may not have any business being involved.

Nevertheless, that is not the important part. The important part is to attempt to help the workers. It doesn't matter whether they are onshore or offshore. We have been applying our act. Again, the problem in a bankruptcy is a difficult one, and there is a serious jurisdiction problem. I am also advised that we do make the charges under our act against the assets that are available, but we do run into problems with the

[ Page 2599 ]

jurisdiction. I would again give the assurance to the members that I wasn't aware of this until this debate came up, that we had made representations to the federal government before. But I will take it upon myself to make immediate representations again in as strong a way as I can.

Section 8 approved.

On section 9.

HON. MR. McCLELLAND: I move the amendment standing in my name on the order paper. [See appendix.]

Amendment approved.

Section 9 as amended approved.

Sections 10 and 11 approved.

On section 12.

MS. BROWN: I have a letter from some workers in a company which is not going bankrupt but leaving the country. It has decided to pull up roots and go elsewhere. According to this section, the only thing that those workers who haven't been paid for some time are liable for is two months' wages. I need to know why the decision to hold the company responsible for only two months' wages. I wish I had the letter, but I had been waiting for this bill to come up for some time, and now it is here but the letter is somewhere else.

But the case remains the same. This company is doing business in the United States, but in the meantime they owe more than two months' back wages to their workers. I need to know why the decision under this bill that they are going to be held liable for only two months' wages.

HON. MR. McCLELLAND: First of all, the question of severance pay. Two months is in the existing act. But if there are unpaid wages, then that corporation should be responsible for those unpaid wages, and I would suggest to the member that she make sure I get a copy of that letter. We'll discuss it with the branch. There are two separate questions here. I am happy you brought this to my attention, but I don't think section 12 covers it at all. It should be covered. The company should be liable for those unpaid wages, whether it's leaving the country or not. The two months' severance pay is covered under the act.

MS. BROWN: I wanted to add that this is not the first time this particular company has done that. It is closing all of its branches around the province. It's just that this is the Burnaby branch which they are shutting down. They are pulling their horns in. They're in trouble like everybody else and returning to their parent company in the States. I will get the letter to you.

HON. MR. McCLELLAND: You should tell them to move to Alberta. It gives me a chance to remind the member, who may not have seen our press release, that we have just signed a reciprocal agreement with Alberta, so that orders issued in British Columbia are collectable in Alberta, and vice versa.

MR. GABELMANN: I wonder if the minister would tell me why he wanted the provision in the legislation that directors and officers are not responsible for severance play. I understand they still are for two months of back pay or unpaid wages, but what's the reason?

HON. MR. McCLELLAND: We have had some very serious problems, particularly in this difficult economic time. It's the corporation or the company that is still liable. It's simply that the individual directors, as individuals, are not liable for the severance pay. We have had some very serious problems of causing damage to individuals as a result of a bankruptcy — and it is only in case of a bankruptcy. The corporation is still fully liable, however, and we would attack that problem at the corporation level with the same vigour as we have in the past.

Sections 12 to 25 inclusive approved.

[11:15]

On section 26.

MR. GABELMANN: As I understand section 26, it repeals in its entirety section 49 of the act. One of the implications is that the director wouldn't have the power to remedy a termination of an employee. Because it is a fairly technical bill and complicated, I may have missed another section that replaces this, and if that is the case, we don't need to pursue it. But I would appreciate the minister telling us where the power that existed in section 49 of the act now resides.

HON. MR. McCLELLAND: I am advised again that part 5 deals only with pay in lieu of notice. The board no longer exists, so this will transfer the same powers of carrying out the application of part 5 of the act when it is passed to the director.

MR. GABELMANN: But if the power was in the hands of the board.... I would agree that there would need to be a change to the hands of the director to have that power, to be consistent with other changes, but this amendment doesn't do that. This amendment wipes out section 49.

HON. MR. McCLELLAND: The director will have the responsibility for enforcing the act. You'd have to go back to section 42, which is very clear in its terminology. "An employer shall not terminate an employee without giving the employee...two weeks' notice" or pay in lieu of. The director would have full authority that he is given in other sections to make the order, to make the employer comply with the sections of the act, including this section.

Section 26 approved.

On section 27.

MS. BROWN: That's the section, Mr. Chairman, that deals with maternity leave. Specifically I want to speak about clause (e), "by repealing paragraph (e)." According to my notes, this is the section which states that when an employer contravenes part 7, the maternity leave provision, he could be ordered to pay damages — to pay an employee compensation for financial loss or damages caused by the contravention. However, there are still some sections, some loss, that would

[ Page 2600 ]

not be covered. Specifically, a loss could be incurred by an employer's failure to keep up his portion of payment to pension plans, to medical plans, dental plans, or other benefit plans as required by the act. Also, loss of seniority upon reinstatement, change of employment conditions under reinstatement — those things are still not covered.

I want to ask the minister why he specifically singled out the maternity section of this particular section, to have that repealed.

HON. MR. McCLELLAND: Mr. Chairman, first of all let me say that we believe that our responsibilities are to ensure that people are treated fairly at all times and that no one should lose her job or lose wages or benefits owed to her because of having taken some maternity leave. We attempted, I believe, to make that clear. She must be reinstated, there must be repayment of wages — or compensation if the employee agrees to that. So we've tried to make it extremely clear that those are the benefits that we believe should be paramount in this act. I agree that we have not dealt with seniority provisions in this act — anywhere, not only with regard to pregnancy leave. We just believe that's a matter between the employer and employee. Maybe someday, if we find some serious abuse, we may want to do that.

On the deletion of paragraph (e), Mr. Chairman, we believe there is a serious conflict with the common law and that those kinds of civil damages should not be awarded by a ministry, regardless of who that ministry is. If there are civil damages, they should have access to the courts and the courts should award those things. Common law should prevail.

MS. BROWN: There are a couple of things. I want to deal with the last statement first. We're putting too many things into the courts. Every day we are hearing tales of woe about the backlog in the courts. They can't handle the stuff they have now. You know, we're being forced to cut back the legal assistance for people on fixed or low incomes, most of whom would be these people — in terms of having legal representation in the courts. We shouldn't be putting anything else in the courts. This section has been in existence for some time, and suddenly we discover it contravenes the civil law, or something of that nature.

There are other damages that a person on maternity leave loses, other than wages, and I just pointed them out. If the employer fails to keep up his contribution to the pension plan or the medical plan, that goes down the drain. So I think it's wonderful that you protected wages and insisted on reinstatement, but there is still a penalty.

One of the things I have never been able to understand is why on one breath we penalize women who start a family and turn around and celebrate Mother's Day on the next. We say one of the best contributions that women make to this society is to have a family, and then we turn around and penalize them every time they try to do so. This is what this section does. I can't speak too strongly about wiping out a person's pension. We've got far too many poor old women in this world as it is, and they're going to continue being poor if the pensions aren't protected. If an employer does not keep up his contribution to the pension plan, she loses it when she takes time for maternity leave. That ensures that when she's old, she is going to be poor because she's lost her pension. It's in the act; why take it out?

HON. MR. McCLELLAND: The difficulty again is dealing with that section by itself, Mr. Chairman. I would have to refer the member back to section 53 of the existing act. I'll read it for her, because she may not have it in front of her:

"The services of an employee who is absent from work in accordance with this Part shall be considered continuous...and any pension, medical or other plan beneficial to the employee, and the employer shall continue to make payment to the plan in the same manner as if the employee were not absent where (a) the employer pays the total cost...or (b) the employee elects to continue to pay her share of the cost of the plan that is paid for jointly...."

I am advised that if in one way or another an employee loses those benefits as a result of having been absent by reason of maternity leave, then it would be our practice to write an order having that considered as back wages. She will not lose her benefits, Mr. Chairman.

MS. BROWN: But you will not enshrine it in the legislation.

HON. MR. McCLELLAND: It is in the legislation.

MS. BROWN: So what do you lose when you delete (e)?

HON. MR. McCLELLAND: Frankly, I don't think you lose very much of anything, because we've covered, pretty well, that we will not allow benefits to be lost. Again, I can't go back to the other kinds of benefits like seniority, but certainly those very important benefits, such as pensions and medical plans particularly, will not be lost.

MS. BROWN: Mr. Chairman, the difficulty I have debating this section is that I'm not allowed to debate section 29, which puts into the act for other groups of people what was taken out of the act under 27 for maternity leave. Once I get to 29 and I ask why you put in a clause (e) which says, "pay a person or employee reasonable and actual out of pocket expenses incurred by him by reason of the contravention," but you took it out of the act in 27(e), I will be out of order. That's the difficulty I'm having. He finds it necessary to put it into the act under 29, to protect everyone else, but takes it out of the act under 27 when it affects strictly maternity leave. I can't discuss that, because if I do I'll be out of order.

HON. MR. McCLELLAND: I notice that you did. Mr. Chairman has been fairly lenient about that.

All that section (e) did was allow the board to order other kinds of damages. We are covered on those important areas of pension and benefits.

Frankly, Mr. Chairman, I don't agree with the member about her approach to the courts. There is a conflict with the common law here. I do not believe that tribunals such as this board was should be allowed to take the place of a court and allow damages. I frankly have more faith in the courts than that member has and more faith in a court to give us justice in our society than I do with some appointed boards and tribunals.

MS. BROWN: Mr. Chairman, I have faith in the courts too. I just think that in view of the fact that there are instances

[ Page 2601 ]

where you can wait a year or more to get before the courts, what we deal with is justice denied.

However, I want to read this section for the minister. What the minister is deleting is the section that says that the board can make an order requiring an employer to "pay a person or employee compensation for financial loss or damages caused by the contravention." This whole area from 51 on deals with maternity leave. Mr. Chairman, this clause, which has been a part of the act since 1979, is now being deleted. The minister tells us that it's being deleted because the woman who has been wronged through out-of-pocket expenses can then take her employer to court; she can go to civil court and fight for those out-of-pocket expenses. However, two sections down the road, which I can't discuss, that section is introduced so that a man can have the protection; the board can order the employer to pay that man compensation for any financial loss or damages caused by the contravention of the act. This is all I'm trying to find out from the minister.

Why did he decide, under the maternity-leave section of the act, to take away that right which women have enjoyed since 1979? I want to remind you, Mr. Chairman, that he started out in the first place by explaining to us — and I agreed with him — that the employment standards legislation really operates in the best interests of those workers who do not have a collective agreement covering these things. This act applies. Since we know that most of the women in the employment force in our province are not members of any union or part of a collective bargaining unit, and since we also know by the minister's statement that 50 percent of the collective agreements — and I'm quoting him verbatim — are silent on maternity leave, which means that the act then applies, why is he weakening the act on this particular issue? This is what I'm trying to find out from the minister. This should be repealed. That (e) should be put back into the legislation.

HON. MR. McCLELLAND: Mr. Chairman, I don't agree with the member. I don't believe that we're weakening the act. I have asked our director to advise me on whether or not we have ever used this section, and he can't remember. The act was in 1981, not 1979. It has never been used. The board, in fact, has been frightened to use it, even on the one or two occasions when someone has asked the board for review, because there seems no doubt, Mr. Chairman, that it is in direct contravention of the common law. What's the good of it, in that case? That's the reason we're deleting it. It has never been used. It would obviously be challenged, according to all of the legal advice we have, should it ever be used. So what is the point of having it there, rather than the route that should be taken for these kinds of damages only through the court system?

MR. GABELMANN: I think I understand what the minister is saying about the fear on the part of the board, and now the director, in terms of the trouble they may get into. But why, then, is it in section 59 and taken out of 56? If it's not a problem for employee protection aspects of the legislation, why is it a problem for maternity protection?

HON. MR. McCLELLAND: Mr. Chairman, we have been given very strong legal advice that we are in conflict with the common law with this section. I would think it would be irresponsible of us to leave it in, given that legal advice. If the Chairman would allow me, section 29 simply returns out-of-pocket expenses to people. For instance, if I am an employer and I live in Prince George and I phone you and say, "Hey, I've got a really good job for you, come on up to Prince George, we'll put you to work tomorrow" and I come to Prince George, and the employer says, "Oh, I forgot, the job's not really open," then that person can be reimbursed for the costs of going to Prince George under false pretences, which is an entirely different thing from suing for some damages which may or may not be there. These are there. You paid money out of your pocket to go to Prince George, and that's not fair. That's the very major difference between the two sections.

[11:30]

Section 27 approved on the following division:

YEAS — 28

NAYS — 10

An hon. member requested that leave be asked to record the division in the Journals of the House.

Sections 28 to 30 inclusive approved.

On section 31.

MR. GABELMANN: Mr. Chairman, you might be interested to know that this is the last section that I have any serious concern about, and I think that is probably true about my colleagues. Section 31, as I understand it, puts a restriction on when you can make a claim to the last six months of employment with the employer.

[Mr. Reid in the chair.]

Before now, the complaint had to be made within six months of the time of the last payment. What this seems to open up, to me, is a situation where a payment may have been made six months prior, but before that some other payments weren't made or only partial payments were made. In that event, a person who seeks redress under section 31 would find that they were not able to collect wages owing to them predating six months prior — if that's good English. I understand the need to have some cut-off periods, and all that, but this seems to impose an excessive prohibition on employees who may well have had the kind of relationship with their employer where they thought they were going to get paid, or

[ Page 2602 ]

they got paid a little bit, and they sort of got carried along, and then they had a six-month period without payment, but are owed money from 12 months ago and can't get it.

HON. MR. McCLELLAND: The director just reminded me that there is an answer to the major concern that you have. That is, if the employer and the employee have some kind of loose arrangement, that "I'll give you so much now, say 60 bucks a week or something, and we'll adjust it in a year or eighteen months to what we originally agreed upon," which may be 75 or something.... It is my understanding that because those are back wages, they would become part of a back-wage claim. So they would be covered if there was continuous payment over the period.

What we're saying here, Mr. Chairman, is that there needs to be a time limit. The kind of arrangement that we'd be concerned about would be one where an employee and an employer make an arrangement to have some kind of a deal where they'd work for straight time on some kind of a condition. They would work for five years on straight time and then the employee might get the idea: "Hey, I can go to the Employment Standards Board now and I can claim for all of that — at overtime." Money that wasn't paid at all, because they had an agreement.... There should be a limit on that kind of thing. It could be 12 months; it could be six months. We've put six months because that covers quite a few pay periods. We could have chosen a year, but we felt that there needed to be some limit. This is the same limit that was in existence before 1981, when the entire situation was changed. I'm advised that only a very small percentage of our complaints don't deal with very current situations. The only delay is in our own backlog. We think that's a reasonable limit, Mr. Chairman, but I am assured that the kind of situation that the member for North Island described in the last part of his comments is covered.

[11:45]

MR. GABELMANN: Mr. Chairman, I described one possible situation, and that was where partial payment had been made prior to the six-month time limit. But it could be that you are in a situation where periodic payments had been made in that time and periodic payments continued to be made right up until the time the complaint was filled. In other words, the odd paycheque was missed going back for a year, or longer. I recognize that that is not a common situation, but it does occur. As I understand it, in that situation, you would only be entitled to go back six months for those paycheques that were missed in the previous six months, and you're not eligible to claim for any that were missed prior to six months earlier. That's my first point.

My second point is that despite the minister's answer — if I understood him correctly — that partial payments made prior to the six-month cutoff are claimable back up to their full level, I don't see that here. Have I missed it, or is it just an assurance from the minister that that is the way he intends to interpret it?

HON. MR. McCLELLAND: I think we both missed it. I've just been advised on the way it actually works. There have been court decisions, I'm told, and should that kind of situation prevail — say he makes a payment, then no payment, another payment, then again no payment — the courts have ruled that the paid payments go back to the unpaid payments. So it is always current. We have administered it that way because of the court decisions that have been made, and they have been upheld. So you are always dealing upfront with what is owed.

Sections 31 to 47 inclusive approved.

On section 48.

HON. MR. McCLELLAND: Mr. Chairman, I move the amendment standing in my name on the order paper. [See appendix.]

Amendment approved.

Section 48 as amended approved.

Section 49 approved.

Title approved.

HON. MR. McCLELLAND: Mr. Chairman, I move that the committee rise and report the bill complete with amendments.

Motion approved on the following division:

YEAS — 27

NAYS — 9

An hon. member requested that leave be asked to record the division in the Journals of the House.

The House resumed; Mr. Speaker in the chair.

Division in committee ordered to be recorded in the Journals of the House.

Bill 26, Employment Standards Amendment Act, 1983, reported complete with amendments to be considered at the next sitting of the House after today.

HON. MR. HEWITT: Mr. Speaker, I ask leave to make an introduction.

Leave granted.

HON. MR. HEWITT: In the visitors' gallery today is an old friend, Mrs. Mary Orr, who is on tour with the American

[ Page 2603 ]

Association for State and Local History. They are having their conference. I'd ask the House to bid her welcome.

AMENDMENTS TO
PUBLIC SECTOR RESTRAINT ACT

Hon. Mr. Chabot presented a message from His Honour the Lieutenant-Governor: amendments to Bill 3, intituled Public Sector Restraint Act.

HON. MR. CHABOT: Mr. Speaker, I ask leave to move that the said message and the accompanying amendments to the same be referred to the committee of the House having in charge Bill 3.

Leave granted.

Motion approved.

HON. MR. GARDOM: Committee on Bill 35.

MISCELLANEOUS STATUTES
AMENDMENT ACT, 1983

The House in committee on Bill 35; Mr. Strachan in the chair.

On section 1.

MS. BROWN: Although this Miscellaneous Statutes Amendment Act is under the responsibility of the Attorney-General, this particular section dealing with assessment is handled by our Finance critic, who is not here today. I am going to try to stand in for him, but if I allow anything really serious to slip by, I wouldn't like, as the critic of the A-G, to be held responsible for it, because like the A-G I will be out of my depth.

Sections 1 and 2 approved.

On section 3.

MS. BROWN: Mr. Speaker, section 3 is repealing section 10 of the Assessment Authority Act, which deals with the appointment of the assessment commissioner. What we have now instead of that is a board, all the members of which are appointed by the Lieutenant-Governor-in-Council. I wonder if I could get an explanation of why the cabinet has taken this responsibility unto itself.

HON. MR. SMITH: I am in the same position as the member. I am the substitute for the Finance minister, so I will do my best as well. I am going to handle these sections where ministers are not here.

There is no question that it is taking the power of appointment and placing it directly under the Lieutenant-Governor in-Council. Currently this board has power to pass bylaws approved by the Lieutenant-Governor-in-Council respecting the appointment of board members and the election of a chairman. It is one of these anomalies where really they perpetuated their own appointments. The old bylaw requires the executive council to appoint persons from a list of names recommended by the Union of B.C. Municipalities. I want to be quite upfront about that. This changes that and makes those appointments by the Lieutenant-Governor-in-Council.

[12:00]

MR. BLENCOE: The Attorney-General is saying....

This may indeed be an improvement on the existing system where they continue in their positions, but I am wondering how the Lieutenant-Governor-in-Council — virtually the cabinet — will achieve these appointments. Will it be done through consultation with the UBCM executive or municipalities? From where will you get your advice for such appointments?

HON. MR. SMITH: I know the Minister of Finance has consulted with the executive of the UBCM. I know also that he has felt he should be free to make appointments from other than their list. So it would be my assumption, from my discussions with him, that he would continue to do the consulting, but he wouldn't appoint exclusively from their list.

MR. BLENCOE: Will there be a set term, or is it going to be changed at will, whenever the Lieutenant-Governor-in-Council feels like it?

HON. MR. SMITH: There is no set term provided for in the act, but it certainly has been my experience that set terms are preferable for all these appointments, and not just terms at pleasure that float.

MR. COCKE: While the House Leader is here — he seems to have itchy feet — it would strike me with an omnibus bill such as this, and where a whole bevy of ministers are away.... I note that the Minister of Health (Hon. Mr. Nielsen) is not here. There are health amendments. I hear the Attorney-General offering advice on finance. What next? It seems that we are going to have some difficulty getting through this travesty.

HON. MR. GARDOM: Indeed not a travesty. My colleague the Attorney-General is fully informed, and I am sure he will be able to answer to your complete satisfaction any question asked.

MR. COCKE: How is he going to do on Health when we get there?

HON. MR. GARDOM: Exceptionally well.

MR. BLENCOE: Subsection (3) refers to remuneration for said directors. Do you have a figure on that, Mr. Attorney-General — what kind of pay you're thinking of?

Interjection.

MS. BROWN: Actually, I know a little bit more about this than the Attorney-General, because I sat on the assessment committee that travelled around the province, and what we used to have here was an autonomous board which would elect its own chairperson. We are changing all of that. What we're having is the Minister of Finance, or the cabinet, electing all the members of the board and then turning around and deciding which of them should be chairperson. That is what we are having here. So this is not a minor little thing

[ Page 2604 ]

that's going on. I have some concerns about it, and I notice that my colleague from Victoria, our municipal critic, has too. The whole assessment thing, Mr. Chairman.... I don't want to reflect on other votes and things, but we made a number of sweeping changes in the whole assessment field this session, going from real value to true value and from one year to two years or three years. Now we are changing the board not just by saying everyone on it is to be appointed, but the government is going to decide who should be the chairperson of that board as well. So this is not a little thing that is going on here.

MR. BLENCOE: Perhaps the Attorney-General can say what, in his view, are the benefits of this method of appointment over the old system. Why have the Lieutenant-Governor-in-Council — in other words, the cabinet — making such appointments? What are the benefits of doing that?

HON. MR. SMITH: The old system was an anomaly, not only as to the appointment from the list but with respect to the original bylaw, which really continued the appointments from the old board. The idea that the cabinet appoints the chairman of one of these bodies is extremely common. In legislation brought in during 1972-1975 you find those provisions as well. For instance, the chief judge of the provincial court is appointed by the Lieutenant-Governor-in-Council, not elected by the other judges. Chairmen of a number of statutory boards are appointed by the cabinet. I don't know what more I can say. You have your view, which I respect, but I did not want to be anything but upfront as to what the impact of it is, how it was done before, and how we're doing it now. I think that cabinet does have to be responsible for this authority, not the Union of B.C. Municipalities. I think it would be a very disappointing day if the Union of B.C. Municipalities, through their executive, were not consulted on the appointments. I too, like the member, have had something to do with the assessment board. I have not sat on it and I did not realize she had, but I appeared before it a number of times, and I know of its importance.

MR. BLENCOE: My only concern is a fairly major concern: the whole local real property taxation system is a very delicate and complicated, and often a very controversial, issue which has to be resolved and debated. The controversy has to be resolved at the local level. What concerns me and our party is that the mechanism whereby the chairman reflects, or is appointed with the wishes of the UBCM, the group that is directly accountable to local taxpayers....

You take that away and give it to cabinet to do. My concern would be that there may be a separation from local government and local taxpayers. That chairman taking directions, not necessarily being accountable at the local level, may now be accountable to cabinet. We won't go into what you've been doing with local government in this current session, but we don't agree with it. Cabinet's desires and objectives may be totally different to what local government or what UBCM desires for local government. And again, we really have to object to this further inroad by provincial government into the traditional area that local people, local government, local UBCM has traditionally taken control of and been responsible for.

We feel very strongly that local government is quite capable of handling its own affairs. It has to deal with those assessment problems, because even though the Assessment Authority is a provincial matter, the results of what it does are felt mostly at the local level. I can tell you now, when I was chairman of finance, whatever the Assessment Authority did and whatever came out, it was our officers, our city hall, that was inundated with the problems, and expected to resolve them. You take away that local chairman and that Assessment Authority being set up in very strong consultation and direction from the UBCM and local government. Once again you are removing that very important issue of real property tax and the problems with it, and therefore I'm to deal with those problems, from local government. That's something we cannot accept. We feel local government must be allowed to maintain its autonomy and allowed to deal with its own problems independent in many respects from senior government. And that's our overall objective.

Mr. Attorney-General, I am wondering if you could reflect. I know you spent many years on local government as mayor of Oak Bay, and indeed were highly regarded in that position. Can you put yourself in the position of local government, seeing what's happening here, and be candid with us all, saying it is a good move in terms of the autonomy of local government?

HON. MR. SMITH: Well, I think I can, because I can remember when the assessor was a municipal appointee and not a provincial appointee, and that was all changed to a provincial system, and the assessing is done now by employees of this provincial authority. They are not municipal employees who do the assessing. It has to be provincial appointees who decide judicially as to whether or not the assessment has been done according to the law, or whether it's erred.

But I certainly agree with the second member for Victoria that the municipalities ought to be consulted. They are the ones who must take the flak for assessments and who have the obligation to set the mill rate. But the province has the obligation to carry out assessments and must have the obligation to appoint the body that decides whether the assessments are proper or not, and to appoint the chairman.

MR. BLENCOE: I don't want to carry on with this, but let me refer back to an event that happened two years ago, where the Assessment Authority sent out its notices just after Christmas when the real property market dropped dramatically and the assessment notices came out 30 to 40 percent higher than they should have been. There was outrage in the province. Now I recognize the Assessment Authority is a provincial responsibility. But when the Assessment Authority, in the terms of its appointments and its chairman, reflected more the concerns of local government than necessarily the priorities and objectives of senior government, there was a reaction from that Assessment Authority because in many respects they had the concerns of local government at heart. Now I can see what could happen, Mr. Minister. Now it's appointed by the provincial government, and the provincial government's priorities in terms of what happens with the assessments may be totally different in a situation that arises such as happened two years ago.

Again, I don't want to go on with this, but I would really caution the government about making moves into local government areas. I think we all have high regard for local government, and they have the ability to deal with these things. I think it's very important that such a thing as an Assessment Authority.... Let's face it, the real property tax, that

[ Page 2605 ]

whole financial arrangement, is probably the most critical thing to local government. Unless they have a body that understands them and has a direct input and direct degree of control over the Assessment Authority and its board, I can see a gap or a separation emerging, even though it's a provincial responsibility, that could make local government feel even more detached from the very thing that they are responsible for — collecting taxes, the level of taxation — and feeling they have really no control over it at all. I think the government has to answer that. I know the UBCM and other local governments are concerned about it. However, I don't want to belabour that point, Mr. Chairman.

MS. BROWN: Obviously we are not going to support this section, so the government can start preparing for a division — unless the Attorney-General, on behalf of his colleague the Minister of Finance, is prepared to deal with an amendment to this section. Are you willing to amend it?

[12:15]

HON. MR. SMITH: I certainly wouldn't in any way prevent the member from suggesting an amendment. I know what you would like me to do and I have heard your arguments. All I can say is that I propose to recommend to the Minister of Finance that he continue to consult in the strongest way with the Union of B.C. Municipalities executive. Being a believer in local autonomy and the power of local municipalities, I have found that in the last ten years the whole assessment field has moved to provincial jurisdiction. The courts of revision are appointed by the province, and have been for years. So is the Assessment Appeal Board. I think you are saying to me that it would be wrong to make those appointments without an eye on the wishes of local government.

MS. BROWN: I am also saying that section 10 of the act as it now stands, whereby the members of the board appoint the chairperson, at least creates the impression of autonomy, and that section should remain as it is; that section 10, which is being repealed, should not be repealed. That is what I am also saying, supporting my colleague in his suggestions, which you picked up: namely, that the appointments to the board should be done in consultation, but once the board is appointed the board itself should choose the chairperson. I am saying this because of other bills which we have dealt with — Bill 22, for example — which did a major overhaul of the assessment legislation. As well, the other municipal bills — Bill 7 and Bill 11 — when you put them together in a package, really erode the base of authority at the municipal level. By retaining section 10 as it exists we at least hold on to a little bit of that power base at the municipal level and a little bit of autonomy. The minister does not have the power to do everything and make all of the decisions, and is not totally in control of the whole situation. If the minister had been willing to consider an amendment, all I would have suggested is that he repeal the section which repeals section 10, and that we go back to the section as it was.

Section 3 approved on the following division:

YEAS — 27

NAYS — 11

An hon. member requested that leave be asked to record the division in the Journals of the House.

Section 4 approved.

[Mr. Reid in the chair.]

On section 5.

MR. COCKE: Mr. Chairman, on section 5, the amendment to the Chiropractors Act, I note that there is a bit of a widening of the definition of chiropractor. I would ask the Minister of Health (Hon. Mr. Nielsen), who isn't here, whether or not this would include the right, which chiropractors have been seeking for some time, to administer to other parts of the body besides the spine. They are talking about the extremities — the arms and the legs. They have felt that they are unable to carry out their practice in British Columbia the way they have been trained, as opposed to some other jurisdiction. I would ask the minister whether or not this is in fact part of this amendment.

HON. MR. SMITH: Perhaps the member would just repeat the operative part of that question.

MR. COCKE: Mr. Chairman, section 13 of the present act says: "spinal column or manipulating or adjusting by hand of the ribs or their articulations for the purpose of adjusting the articulations of the human spinal column."

Interjection.

MR. COCKE: What the hell has that got to do with extremities? The legs have nothing to do with the ribs, and you know it. If we had the Minister of Health here, maybe we could have some answers. I don't need answers from a back-bencher.

Further to this question, Mr. Chairman, I wonder also if anything in here includes access to x-rays. One of the big problems chiropractors and their patients have had over the years is this: a patient who has gone to a doctor and had an xray taken of their entire frame — they are not getting anything more than possibly pills under the circumstances — then goes to a chiropractor. The chiropractor wishes access to the x-ray rather than taking another one and exposing the patient

[ Page 2606 ]

to double radiation, but the College of Physicians and Surgeons, in their inimitable fashion, keep that information to themselves. Therefore if the person wishes to continue on with the chiropractic treatment, he has to go through another series of x-rays. I am wondering whether there is anything in this definition that would give them further access and maybe a little more muscle in dealing with the college.

HON. MR. SMITH: The amendment does broaden the definition of the science of chiropractic, as the member has said. It broadens it to include all movable parts of the human body instead of restricting it to spinal column manipulations. The amendment is the one requested by the association and brings our definition more in line with the definition of this science in other jurisdictions. It is also in keeping with current chiropractic practice. But it does not give the kind of muscle, as I read it, that the member was referring to; that is, I see nothing in the amendments to the act that deals with the member's concern for x-rays.

MR. COCKE: Unfortunate.

MR. LEA: I wonder if the minister could give us some idea of whether the government is considering the x-ray problem. I think it is a real problem. As the member for New Westminster has related, it is double or triple exposure to x-rays, which is not good, and some hospitals and labs will not give out the x-rays to a chiropractor. I think that is really important.

I would like to congratulate the government for these amendments, sections 5, 6 and 7, which are really under the same topic. Until now we haven't had much backbone to deal against the medical profession. We have been a bit spineless.

SOME HON. MEMBERS: Oh, oh!

MR. LEA: Part of the art of a chiropractor is preventive health care, and it has been fought by the medical profession for a number of years — what I would call the ministry of sickness rather than the ministry of health. It is about time we had this, and recognized chiropractors as people in the preventative health care field. As my colleague said, it is about time we put some muscle into this act and looked at all parts of the body. Don't you think so, Mr. Attorney-General, or is that being a voyeur?

[12:30]

MRS. WALLACE: Mr. Chairman, the minister indicated that this particular amendment is in response to a request from the Chiropractic Association, and I know that's true. But of equal value in their request to the ministry was the inclusion of the availability of x-rays. It's unfortunate that the Minister of Health isn't here. We were told at the time of second reading that we would have ample opportunity to discuss the principle of each of these sections when we were in committee. This is certainly a major principle in this section. Somehow the government has seen fit to accept one of the recommendations from the Chiropractic Association but has apparently absolutely ignored the other recommendation, which was certainly of equal value and importance. From a health point of view it's perhaps even more important, because that double exposure to radiation can be causing cancerous conditions in more and more people, which is a high cost on the health care system — or as my colleague from Prince Rupert pointed out, on the sickness care system.

It is unfortunate that the Minister of Health is not here to deal with this particular point that was also raised by the Chiropractic Association, and which is absolutely missing from this section. Would you accept an amendment? Is there any way we can delay certain sections of this act until the appropriate minister is available? We're certainly not having an opportunity to deal with the principle of these various sections, as was promised by the House Leader (Hon. Mr. Gardom) when he introduced this legislation.

HON. MR. GARDOM: I have your point on x-rays. I know that's something the minister did address, and it was certainly something the association....

MRS. WALLACE: Why isn't it included?

HON. MR. GARDOM: It was not addressed by amending the act. There are surely ways of obtaining cooperation and the availability of these records other than by changing the definition in this act. The member for New Westminster (Mr. Cocke), who had the responsibility of the portfolio, smiles at me. I would have thought that his persuasive powers, when he was there, would have enabled him to make advances in this field. I will certainly undertake to express to the Minister of Health the concern of members that those x-rays and other diagnostic information be available to chiropractors. I think the point is valid.

MR. LEA: Mr. Chairman, I don't see any reason why we can't cooperate on this piece of legislation. We're talking about the health of citizens of this province. We're talking about people being subjected to x-rays when there's no need for that. For us to hurry through this, for whatever reason, I think is silly. It would be no problem at all to stand this legislation aside until the Minister of Health or the Premier is here, and somehow come to some agreement. We have to stop these unnecessary x-rays because it subjects people in this province to an unhealthy situation. Surely no one on either side of the House wants that. Can't we come to some sort of agreement here? Maybe a short recess or something.

MR. ROSE: Mr. Chairman, I don't think we need a motion to table it. All we need is the agreement of the House Leader or the Attorney-General, who is piloting the bill through, to stand the clause by agreement. We can do anything by unanimous consent. We can stand the clause, with the provision of returning to that clause when the Minister of Health is present to respond to questions from the opposition. That's all that's needed. I don't see why it should present any major hurdles, unless you want to rush it through.

HON. MR. GARDOM: Mr. Chairman, we would like to accommodate the official opposition on this point. Unfortunately, it's not possible to seek the degree of remedy that you wish....

MR. ROSE: Why?

HON. MR. GARDOM: Because one can't under the rules, unfortunately. Therefore, Mr. Chairman, the committee should rise, report progress and ask leave to sit again.

[ Page 2607 ]

The House resumed; Mr. Speaker in the chair.

Division in committee ordered to be recorded in the Journals of the House.

The committee, having reported progress, was granted leave to sit again.

The House in Committee of Supply; Mr. Reid in the chair.

ESTIMATES: MINISTRY OF TOURISM

On vote 73: minister's office, $132,564.

HON. MR. RICHMOND: Mr. Chairman, I would like to take about five minutes to make just a few opening remarks. Then I'd like to hear from the opposition.

I welcome this, my first opportunity to report to the Legislature on the activities of my ministry since my appointment as Minister of Tourism in August 1982. None of us, of course, needs reminding that the period under review has been a very difficult one for the people and the industries of this province. Two years ago, in common with the rest of North America, we were at the peak of an economic cycle that the majority of economists predicted would remain strong and healthy. The sudden turnaround struck hard at all segments of our society. Against this background, tourism, the province's third-largest industry, achieved revenues of some $2.009 billion in 1982 — the second-highest level of income generation in the long history of this major British Columbia industry.

This achievement, which represents almost 5 percent of the total provincial gross national product, was all the more remarkable in a year which saw fierce competition worldwide for the tourism dollar. Total overnight visitors travelling in British Columbia numbered 11,480,000, of which 52 percent came from outside the provincial borders to spend in excess of $1.099 billion. One of my major objectives is to encourage British Columbians to explore their own province and to make use of the great variety of attractions we have to offer. In this regard, despite the sharp economic downturn, resident travellers formed the largest group in both revenues and the number of persons, accounting for $910 million, or 46 percent of the total tourism revenue; and $5.5 million, or 48 percent of the total persons. While this represents a slight decrease from recent years, it is still a major accomplishment in a year of economic recession. Similarly, we experienced near-record numbers of visitors from overseas — 440,000 — and from the United States — 2,560,000 — as a result of our extensive marketing and promotional activities.

The success of tourism in British Columbia over the past decade has been remarkable when measured against the decline in the tourism industry for many other vacation destinations. Our achievements have been nothing short of incredible. British Columbia has many pleasures to offer; I think we all know that. But it takes more than our own belief in this province to lure tourists to our shores and to make them want to repeat the experience. It is the role of my ministry to work with all areas of the private sector to market the attractions of this province in all its seasons.

The tourism industry in British Columbia employs in excess of 70,000 people in 10,000 diverse enterprises, ranging from transportation to accommodation to retail sales. It produces in excess of $200 million for provincial coffers — dollars that are used to support social services and cultural activities within B.C.

Mr. Chairman, I cite these statistics to put into perspective the return to the people of this province from the relatively small investment that we make in tourism. The Ministry of Tourism is basically a sales-and-service organization for the province. My marketing division sells people on travelling in B.C. The operations division encourages the development of facilities and services to meet the needs of the travelling public. In 1982-83 my ministry had a budget of $13.6 million, including almost $7 million for marketing promotion and advertising. In common with all sectors of government, we have heeded the call for restraint, without sacrificing any of the product we deem essential to encourage further growth in tourism and to enhance the province's competitive position. I would like to stress again that we have not sacrificed marketing dollars in the interest of restraint. We have made some shifts in emphasis which I can discuss in detail later. We have aimed our marketing efforts in those countries and regions where our research indicates we have the strongest prospects for attracting tourists, not only in the year under review, but in the longer term through to Expo 86.

I would also like to point out that we have endeavoured to remain as flexible as possible so as to be able to react to emergency situations such as we experienced this year with the closure of Highway 1 in the Rogers Pass. We have endeavoured to promote as vigorously as possible to our neighbours immediately to the south of us in Washington state. To that end I have personally made three trips this year and just recently concluded a successful promotional trip to that state, where we were well received. We received coverage on all three national television networks.

I would like to close by saying we have a program called "Vacation Road" running at the moment in the province, which has been very successful. We are receiving very favourable comments on it. It is running principally on radio in cooperation with the British Columbia Association of Broadcasters. I have many more remarks but I know they will come up later in my estimates, Mr. Chairman, so at this time I will rest and hear from the opposition.

The House resumed; Mr. Speaker in the chair.

The committee, having reported progress, was granted leave to sit again.

[12:45]

MR. HOWARD: Mr. Speaker, earlier today I gave notice of intention to deal with a matter of privilege and I have the opportunity now to go into that in the detail necessary to apprise Your Honour of what it is.

The question of privilege is that the Leader of Her Majesty's Loyal Opposition has been impeded and-or obstructed in the discharge of his duties and has not been afforded the due process available to him set under the long-established usages and customs of parliament. In substantiation therefore we need to refer first to standing order 20 and to what occurred pursuant to that standing order.

Under standing order 20, "the Sergeant-at-Arms shall act on such orders as he may receive from the Chair in pursuance of any resolution passed under standing order 19." No such resolution was passed. The alternative is for Mr. Speaker to name a member or to call upon the House to adjudge upon the

[ Page 2608 ]

conduct of a member. Neither event took place. In summary, standing orders 19 and 20 provide that Mr. Speaker may order members to withdraw immediately from the House, but the House must decide upon penalties for members who refuse to follow the orders of Mr. Speaker. The House made no such determination.

The remedy with respect to the conduct of members is within our own standing orders, and standing order 1 comes into play only when our standing orders are sessional or other orders do not make provision. Further, even when the need may arise to resort to standing order 1, the usages and customs of the House of Commons of the United Kingdom do not include their standing orders. Parliamentary Practice in British Columbia, by George MacMinn, says on page 2: "Another vexing question is whether or not the customs and usages of parliament include the standing orders of that parliament. It would appear, on the balance of authority, that the answer to this question is in the negative." If we were to follow the usages and customs of the House of Commons of the United Kingdom, we would be bound by the following provisions cited in the eighteenth edition of May, pages 425 and 426 as follows. I don't intend to read those if you don't feel it necessary, but they are quoted here under the two headings of "Dual Source of Modem Power to Punish Disorder" and "Disciplinary Powers of Speaker Under Ancient Usage."

I want to submit that all of this clearly shows that the ancient usages have been codified within our standing orders, and any remedy is within our standing orders and within our powers. If Your Honour finds that there is a prima facie case of privilege, upon reflection and consideration of it, I would have an appropriate motion to move with respect to that matter.

MR. SPEAKER: Hon. member, in reserving on this matter, as has been the custom of the Chair in matters of privilege, the Chair cannot help but observe, on first blush, that the Leader of the Opposition, to whom the matter refers, was in fact fully and completely aware of the consequences of his own actions. As hon. members may be aware, he had been advised on numerous occasions by the Chair that the consequences would be as grave as in fact they were. Also, hon. members, it must be taken into account that the ruling of the Chair was in fact sustained by a vote of this House.

Nonetheless, some of the points raised by the member do require some consideration. But again, hon. members, I must state that on first blush the consequences and the actions were very well known to the member who was affected thereby. The Chair will take that into account in bringing forth a full and complete decision on the subject.

Hon. Mr. Gardom moved adjournment of the House.

Motion approved.

The House adjourned at 12:49 p.m.

Appendix

AMENDMENTS TO BILLS

26 The Hon. R. H. McClelland to move, in Committee of the Whole on Bill (No. 26) intituled Employment Standards Amendment Act, 1983 to amend as follows:

SECTION 2, in the proposed section 2 (2) by deleting "Hours of work, overtime or special apparel" and substituting "Hours of work or overtime".

SECTION 2, by deleting the proposed section 2 (5), (6) and (7) and substituting the following:

"(5) Where

(a) a collective agreement contains a provision having the effect that after the expiration of a period stated in the agreement, the agreement may be automatically continued in force,

(b) pursuant to that provision, a collective agreement is continued in force, and

(c) the director considers that since the expiry of a period referred to in paragraph (a), no negotiations have taken place between the parties with respect to the agreement, or negotiations have taken place, but have been abandoned, the director may, on application by an interested person declare that the continued application of subsections (2), (3) and (4) with respect to that collective agreement is no longer appropriate.

"(6) On the making of a declaration under subsection (5), the provisions of this Act, other than subsections (2), (3) and (4) of this section, apply as if the collective agreement did not exist but nothing in this section shall be construed as affecting the powers and duties of the Labour Relations Board under the Labour Code."

[ Page 2609 ]

SECTION 7, by deleting the proposed section 14 (3) and (4) and substituting the following:

"(3) An appeal from a certificate of the director lies to a County Court.

"(4) No appeal referred to in subsection (3) shall be instituted later than 45 days after the issue of the certificate.

"(5) An appeal referred to in subsection (3) shall be a trial de novo.''

SECTION 9, by adding the following paragraph:

        "(a.1) in subsection (1) by adding "or order" after "certificate", and ".

SECTION 48, by adding the following subsection:

"(3) Nothing in this Act extinguishes rights under Part 5 or 7 of the Employment Standards Act that were, immediately before this Act came into force, accruing to a person who was, on the day before this Act comes into force, on temporary layoff or on maternity leave and those rights may be enforced under that Act as amended by this Act." —