[ Page 4759 ]

CONTENTS

Orders of the Day

Miscellaneous Statutes Amendment Act (No 1) (Bill 21).

Third reading –– 4759

Home Owner Grant Amendment Act (No 2), 1984 (Bill 24).

Third reading –– 4759

Miscellaneous Statutes Amendment Act (No 2), 1984 (Bill 31). Second reading.

Hon. Mr. Gardom –– 4759

Mr. Howard –– 4759

Ms. Brown –– 4760

Mrs. Wallace –– 4760

Hon. Mr. Gardom, 4760

An Act Respecting Central Trust Company and Crown Trust Company (Bill PR402). Second reading.

Mr. Parks –– 4761

Education Statutes (Fiscal Year) Amendment Act, 1984, (Bill 27). Second reading.

Hon. Mr. Heinrich –– 4761

Mr. Rose –– 4761

Hon. Mr. Heinrich –– 4762

Health Statutes Amendment Act, 1984 (Bill 29). Second reading.

Hon. Mr. Nielsen –– 4762

Mrs. Dailly –– 4762

Hon. Mr. Nielsen –– 4762

Labour Code Amendment Act, 1984 (Bill 28). Committee stage. (Hon. Mr. McClelland)

On section 1 –– 4762

Mr. Gabelmann

Mrs. Wallace

Ms. Brown

Mr. Mitchell

On section 2 –– 4765

Mr. Gabelmann

Mr. Mitchell

Mrs. Wallace

On section 3 –– 4770

Mr. Nicolson

TUESDAY, MAY 15, 1984

The House met at 10:03 a.m.

Prayers.

HON. MR. RICHMOND: Mr. Speaker, it is my pleasure on behalf of the member for Cariboo (Hon. A. Fraser), who is absent from the House this morning, to introduce two people from his constituency, specifically from Quesnel, who are in the gallery this morning: Mr. Peter Walsh, director of continuing education and board member of Quesnel and District Cerebral Palsy Association, and his daughter Jennifer, who is 11 years old. I would ask the House to make them welcome.

Hon. Mr. Curtis tabled the annual report of the auditor-general for the year ended March 31, 1983.

Orders of the Day

HON. MR. GARDOM: I ask leave to proceed to bills, Mr. Speaker.

Leave granted.

HON. MR. GARDOM: Report on Bill 21, Mr. Speaker.

MISCELLANEOUS STATUTES
AMENDMENT ACT (No. 1), 1984

Bill 21 read a third time and passed.

HON. MR. GARDOM: Report on Bill 24, Mr. Speaker.

HOME OWNER GRANT AMENDMENT ACT (No. 2), 1984

Bill 24 read a third time and passed.

HON. MR. GARDOM: Second reading of Bill 31.

MISCELLANEOUS STATUTES
AMENDMENT ACT (No. 2), 1984

HON. MR. GARDOM: According to the usual understanding, this being a miscellaneous statutes bill it is best dealt with in committee. I accordingly move second reading.

MR. HOWARD: It is not quite as simple as that. We have raised objections to this procedure before and must do it again. There has been a practice, as the government House Leader has indicated, of encompassing a variety of housekeeping amendments from time to time within things called omnibus bills.

The one before us, some 20 or 30 pages, has a variety of subject matters in it: courts, consumer matters, motor vehicle The minister holds up three fingers indicating three subject matters. There are extensive amendments to the Insurance Act and the Real Estate Act and some far-reaching amendments to the Securities Act. Just by quick examination, there is a complicated mathematical formula relating to the Municipal Act. Even the Essential Services Dispute Act is incorporated in here.

I want to raise an objection that this is a very poor and unsatisfactory way to go about legislating with respect to the people of the province of British Columbia, particularly when a Miscellaneous Statutes Amendment Act encompassing subject matters as extensive as are in here comes in during what appear to be the latter days of the session, to be introduced one day and called for second reading the next on the statement that this is what we've done in the past, and we can spend the time dealing with that in committee. It's quite true that the Committee of the Whole can deal with the bill in detail, clause by clause, later on. But we are now talking in terms of the principle of second reading of the bill. What the introduction of a bill of this nature does, Mr. Speaker — and I don't raise this by way of a procedural question, but by debate — is put the House in the position of perhaps agreeing with some provisions of the bill and not with others, and therefore having to vote against a bill of this nature because of disagreement with some of the provisions and thus voting against the provisions of the bill with which members agree. The converse is true as well.

I just think it's a highly improper way to continue to proceed. It was improper whenever it started; it's improper every time that it has been done. I'm sure there is a tendency for people to look into the past — some ten years ago — and point to when another government was in office. If that's what that government did, if that's what the NDP did, it was improper then….

SOME HON. MEMBERS: Oh, oh!

MR. HOWARD: Yes. Things are improper when they are improper and not just because it happens to be from the source from which they come. I object to this….

Interjections.

MR. SPEAKER: Order, please. Hon. members, we're currently engaged in a debate of some substance, and I would ask members to afford the proper courtesies in the House.

MR. HOWARD: That's the substance of my contention, Mr. Speaker. I know it's not going to persuade anyone on the other side to pull the bill back and say: "Oh, we're sorry. We'll break it up into a number of components, and we'll divide the bill into…." If, as the Minister of Intergovernmental Relations says, there are three principal elements in it…. The minister of nods his head and says: "That's correct. There are three substantive matters contained within the bill." If that is the case, it would seem to me to have been more appropriate for the minister to have brought in three separate bills encompassing those principal points and have contained within them the various amendments relating to those principles.

I don't feel that the contention I put forward now is going to persuade the minister or the government to do otherwise than what it is doing right now, namely bringing in Bill 31 and pushing it all the way through regardless of the difficulties encompassed in forcing members to vote for something when they might not want it or against something when in fact they might want it. The former Attorney-General, Mr. Williams, on one occasion when we raised this self-same point in this chamber, gave an indication to the House — although he didn't say it precisely in the way of a commitment — that it wasn't a very satisfactory way to proceed, and that he would

[ Page 4760 ]

look at the possibilities of doing things in a little more decent and respectful way insofar as the people of the province of B.C. are concerned.

Sure, we'll follow the normal course of supporting the bill to move it into committee to be able to deal with it at that stage, but I want to raise this again as a formal objection about a very improper and unsatisfactory way of doing things in this House.

MR. SPEAKER: The member for Burnaby-Edmonds.

HON. MR. GARDOM: Oh, for goodness' sake!

MS. BROWN: Yes, that's right: for goodness' sake!

MR. SPEAKER: Order, please, hon. members.

HON. MR. GARDOM: Don't look so sour.

MS. BROWN: I'm not looking sour; I'm angry. Maybe the minister wants to interpret that as being sour, but we have a piece of legislation which was not drafted overnight. I've been going through this. A lot of work has been done on this. It has been in the government's hands for a long time. It is introduced as a responsibility of the Attorney-General (Hon. Mr. Smith), who is not even here. He wasn't here last night when it was introduced, and he isn't here this morning when we are supposed to be debating it.

Interjection.

MS. BROWN: I wouldn't be critical of other people's accents if I were you.

We're expected to approve or disapprove of something that goes on for 28 pages and touches just about every department in the government. The section dealing with the Attorney-General alone, as my colleague from Skeena pointed out, cannot be dealt with just very quickly as either you approve or disapprove, nor should it be voted on at this time and us be told to debate it further in committee stage. We are looking at the courts. We're looking at the classification of films, as to whether it's going to be extended to cover video or not. We're looking at the Evidence Act. As a matter of fact, under Municipal Affairs, we have a formula which God knows what it means, it's so complicated, with X into X squared percent, Y into Y squared percent, Z into Z squared percent over 3.

We should not have a bill dumped on us at close to midnight and then at 10 o'clock in the morning be expected to stand up and debate it intelligently. If it were a simple matter that an amendment to an act was being prepared very quickly and moved, we could understand that, but this bill was obviously prepared some time ago and has been sitting in the House Leader's back pocket waiting until a few days before the session comes to an end to let it go through. And it's not going to go through that easily. As my colleague the member for Skeena said, this is a way of trying to sneak and slip stuff through, and it's not going to happen. Our member who is responsible for the municipal affairs section of this piece of legislation is going to have time to discuss it with municipal politicians, and let them have a chance to read it and see precisely what it's about.

[Mr. Strachan in the chair.]

The same thing goes for my responsibility for the Attorney-General's section. It's not going to go through just like that. As the member responsible for the Securities Act, the Motor Vehicle Act and the Insurance Act…. These are not going to go through quickly because the House Leader decided to keep this bill in his back pocket until one or two days before he thinks the session is going to come to an end, and then try to sneak it through the House. It's not going to happen, Mr. Speaker. Whether we support sections of the bill or not, we have no option but to vote against it simply because the process is not an honest one.

MRS. WALLACE: Mr. Speaker, I agree with the things that both my colleagues have said, but one thing they haven't mentioned which appears to be in this bill is the bailout of northeast coal, even more expensive than the B.C. Rail and subsidies, extending the Essential Service Disputes Act over B.C. Railway, and unlimited grants to B.C. Railway.

[10:15]

My major point in speaking is the fact that every time we have a miscellaneous statutes bill it is under the charge of one person, usually the Attorney-General. We had some excellent examples just recently of how inefficient that is, when we discussed the last Miscellaneous Statutes Act. That minister had collected scraps of paper from each minister who was actually responsible for the items in the bill, and with very few exceptions the only answer we got when we raised questions was for the Attorney-General to read off his little piece of paper — whatever that minister had told him to say. If you asked another question, he knew nothing about it; all it did was reread the words that he'd been given. You don't get any satisfactory debate that way; it's just a mockery of the whole legislative process. This act is a travesty and a disgrace.

DEPUTY SPEAKER: Pursuant to standing order 42 the Chair recognizes the Minister of Intergovernmental Relations, who closes debate on behalf of the Attorney-General.

HON. MR. GARDOM: Mr. Speaker, I would like to comment, if I may, upon a few of the generalities expressed by the hon. member for Skeena. He made the point that if it is practice, it's perhaps not the best practice. I'd certainly like to assure the hon. member that it has been the practice since I've been in the House, which is since 1966. I'd also like to mention to those members who spoke, including the hon. member for Skeena, that we do have a committee that is going to be considering the standing orders. It is very odd to me that his secretary hasn't received, from anybody, a comment about this very issue, if he feels so strongly about it. I think it's a way of receiving attention.

Insofar as the bill itself is concerned, as I indicated across the floor to the hon. member for Skeena, it essentially deals with three areas: the Attorney-General, Consumer and Corporate Affairs and Municipal Affairs — and I suppose I'm lumping in the motor vehicle area under the Attorney-General. I suppose it could have been three separate bills, but once again, being an omnibus situation, even in that case we'd be in the same position as the official opposition, and indeed members of government, perhaps having some difficulty with one section of one act and not another section in another act. I think we will find that wisdom will prove that the practice that we have had is really the best that can be produced.

[ Page 4761 ]

If it needs to be looked at by the committee, I would certainly hope that the three members who spoke this morning, who have been extremely silent insofar as the committee's concerned, would convey that back to the committee.

Mr. Speaker, I move second reading of the bill.

Motion approved.

Bill 31, Miscellaneous Statutes Amendment Act (No. 2), 1984, read a second time and referred to a Committee of the Whole House for consideration at the next sitting.

HON. MR. GARDOM: Mr. Speaker, I call second reading of Bill PR402.

AN ACT RESPECTING CENTRAL TRUST COMPANY
AND CROWN TRUST COMPANY

MR. PARKS: It's my pleasure to speak to this bill. Very simply, it is a bill whose purpose is to provide for the orderly transfer of the trusteeship and agency business of Crown Trust Co. to Central Trust Co. It is a rather pro forma matter that has been done before in this House. I'm pleased to advise the House that this matter received a full airing at a recent meeting of the standing orders and private members' bills committee. It will enable the owners of assets of the former Crown Trust to have their matters dealt with most expeditiously. I urge passage of this bill, and I now move second reading.

Motion approved.

Bill PR402, An Act Respecting Central Trust Company and Crown Trust Company, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.

HON. MR. GARDOM: I call second reading of Bill 27.

EDUCATION STATUTES (FISCAL
YEAR) AMENDMENT ACT, 1984

HON. MR. HEINRICH: Mr. Speaker, this bill is an opportunity which is being afforded to school districts basically to allow them to dovetail the school year with their fiscal year. At present the school fiscal year is the calendar year, January 1 to December 31. The principle of the bill is to make the fiscal year the same as the school year. The suggested dates in the bill are July 1 to June 30. This is something which has been endorsed and recommended on innumerable occasions by trustees, administrators and superintendents, all charged with the management of a school district. I might say that it's been the subject of resolution at trustees' conventions, I am told, ad infinitum.

There are a number of reasons why I think it's of some benefit. First of all, I think we must take into consideration the views of those people charged with management of the school operations. They themselves have initiated the change and requested it on a number of occasions, and we thought it was a good idea to proceed.

The key weakness in the present system is that any school year includes four-tenths of one fiscal year and six-tenths of the second fiscal year. This makes planning difficult. It sometimes leads to disruptions during the school year, particularly in January. Sometimes it causes school boards to resort to short-term borrowing, and it hinders long-term planning and careful adjustment. That became evident as we went through the restraint period. This is when it came to my attention, and I felt that if we could plan for one school year — that is, as far as schoolchildren were concerned, at least September to June — it would avoid any potential disruption in the middle of the year, so that somebody knows exactly what they have going in. It seems to me to be the most logical.

Another point that I think is important is that the system will allow the budget to be finalized before the school year begins. The proposal is that the budget, once approved by the Ministry of Education, be adopted by bylaw on May1. I might also add that the bill takes into consideration the transitional period, because if we change the fiscal year and look to the school year, we do have a problem as the legislation presently operates. We need to have a transition period, and the bill incorporates a transition period for six months — January 1, 1985, to June 30, 1985. Commencing July 1, we then go into the first full fiscal year. I understand that school districts sometimes have to borrow funds toward the end of the year, and as a result they obviously will pay interest on those borrowed funds.

Upon seeking an explanation…. It's rather difficult to understand the ramifications of taxation and the flow of revenue, but I am advised by those in the field, as well as the ministry, that this should reduce substantially any cost-carrying charges which normally occur to school districts. The suggestion is that temporary borrowing should decrease. The change will not affect the taxation year or the collection of residential taxes at all. As you know, residential taxes are collected by the municipality, and by statute they must be remitted by the municipality directly to the school district. I think we have the opportunity for a tremendous improvement in local and provincial planning processes. After all, everything should revolve around the school year, because that's where we're serving children with schools.

It should reduce pressure for hasty decision-making at all levels. One thing that we should think about is this: the new trustees take office on December 1, and it will give them an opportunity to be involved in the first new budget. The planning and budgeting advantages far outweigh any administrative problems.

Before concluding my comments, Mr. Speaker, I might mention that amendments have been placed on the Clerk's desk. The amendments in here involve advancing the bargaining period for teachers from the times which were proposed within the bill. These proposals were recommendations made by the trustees. We met with them yesterday and this was the thrust of their argument. We're pleased to accommodate them, and that will of course be discussed at committee stage.

Mr. Speaker, I move that the bill be now read a second time.

MR. ROSE: On behalf of my party we welcome this bill and agree that such a reform has been requested over a lengthy period. As a matter of fact, it might even be considered a long overdue reform to make the school year constant with the financial year. As the minister said, it has been requested by both the trustees and the teachers for many years, and I think I would agree with the minister when he says that it permits better budgeting and planning. Salary

[ Page 4762 ]

adjustments and all that sort of thing which can change the whole budgeting picture now will be in a period in which the administration of the school district and the board can make definite plans without having certain surprises thrust upon them mid-year. I also think it avoids certain upsets such as occurred in Surrey this year, in which a number of teachers were terminated in January, necessitating the reshuffling of classes and all the educational and emotional upset that goes with such a thing. I think this is an improvement.

Therefore, Mr. Speaker, we support the bill in principle on second reading. We know there are some amendments coming, but I presume they'll arrive tomorrow, unless by unanimous consent they can be dealt with earlier. But at the moment we support the principle of the bill at second reading stage, and we await the amendments.

HON. MR. HEINRICH: I appreciate the comments advanced by the Education critic, the hon. member for Coquitlam-Moody. I also appreciate the comment which he made with respect to the amendment, and I hope he's had an opportunity to review that material.

Mr. Speaker, I move that the bill be now read a second time.

Motion approved.

Bill 27, Education Statutes (Fiscal Year) Amendment Act, 1984, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.

HON. MR. GARDOM: I call second reading of Bill 29.

HEALTH STATUTES AMENDMENT ACT, 1984

HON. MR. NIELSEN: Mr. Speaker, the Health Statutes Amendment Act is a miscellaneous statutes amendment specifically dealing with statutes under the responsibility of the Ministry of Health. I would respectfully submit that the principle of the bill is simply to make a series of amendments, and it can be best served by a section-by-section debate in committee. I move second reading.

[10:30]

MRS. DAILLY: I agree with the minister that it is best to deal with this one in committee, Mr. Speaker.

HON. MR. NIELSEN: I move the bill now be read a second time.

Motion approved.

Bill 29, Health Statutes Amendment Act, 1984, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House.

HON. MR. GARDOM: Committee on Bill 28, Mr. Speaker.

LABOUR CODE AMENDMENT ACT, 1984

The House in committee on Bill 28; Mr. Kempf in the chair.

On section 1.

MR. CHAIRMAN: I understand that the minister is on his way, Mr. Member. You can proceed.

MR. HOWARD: Being on his way and being here are two separate things. He may lose his way while being on his way.

MR. CHAIRMAN: The member for North Island.

MR. GABELMANN: Let me catch my breath. I had understood there were seven or eight items of business, and I thought they might take a bit longer.

Mr. Chairman, while I get organized, Section 1 deals with the definition section of the amendments to the Labour Code and contains a number of features that are of some concern. I'd like to begin by asking the minister why, in the construction definition, he has eliminated from construction the question of supplies. In other words, the construction definition means a variety of things but does not include supplying, shipping or otherwise transporting supplies. Am I right in concluding from that that cement trucks on a construction project are now not part of that construction?

HON. MR. McCLELLAND: No, Mr. Chairman, I think by changing the words in the definition, instead of trying to specify we've said "other works." That's intended to catch all other works. The problem of legislation sometimes is that when you try to pick some things out you leave some things out, and it opens it up to the legal profession to challenge. So the words "other works" are intended to catch all of the things that you've mentioned, Mr. Member.

MR. GABELMANN: I recognize that, Mr. Chairman, inasmuch as you've named a whole variety of things that are construction: projects, demolition, etc. But my question relates to some following words: "but does not include (a) supplying, shipping or otherwise transporting supplies and materials or other products to and delivery on a construction project…."

HON. MR. McCLELLAND: Mr. Chairman, that's necessary for two reasons: because of the new provision of project certification which is available now, and also for the purpose of the designation of an economic development project which follows later.

MR. GABELMANN: In attempting to clarify this, Mr. Chairman, I need to understand — because it has implications later on in the legislation — whether or not, on a construction site…. I recognize that the next definition deals with construction projects. On a construction site, does this mean — I'm not saying it does; I'm just asking — that the cement truck or the flatbed delivering the lumber is not considered to be part of the construction project?

HON. MR. McCLELLAND: Ask me again, because I'm not sure I understand what you're asking.

MR. GABELMANN: It may be that I'm confused by the legislation. Let's just back up a little bit. We all agree that the electricians and the plumbers and the painters and all of the other trades are part of the construction project. To date, the

[ Page 4763 ]

drivers of the cement truck have also been considered to be part of the construction project. Will they still be?

HON. MR. McCLELLAND: Well, I think they won't be considered to be part of that construction project. I think you're correct.

[Mr. Pelton in the chair.]

MR. GABELMANN: In other words, then, under the new section 83(3), the affiliation section — and I need to redo this, Mr. Chairman; most of the sections in this act are interrelated to each other and also obviously to the Code itself, and I think there needs to be some leeway in that respect — where no economic development project has been established or designated, the affiliation clauses that may exist will now not apply in respect of suppliers to the construction project.

HON. MR. McCLELLAND: No. Affiliation clauses which are bargained into collective agreements will still apply.

MR. GABELMANN: To, for example, the cement-truck driver? That's what the minister's saying. Even though…. For the record, then, Mr. Chairman, I take the conclusions of this to mean that the affiliation clause will not be affected in any way by the narrowing of the definition of "construction" — as I would perceive it, even though it's a brand-new definition and previously there was none.

HON. MR. McCLELLAND: That's correct. The draft was intended to allow those collectively agreed non-affiliation clauses to continue in construction projects.

MR. GABELMANN: Moving to the next definition, Mr. Chairman, that of "construction project," can I ask the minister why this definition needs to be as broad as it is? It seems to me to allow the cabinet to define almost any activity as a construction project. Can I just find out what it is.... . ? Are we talking here about Duke Point, Whistler, Tumbler Ridge and Expo, or are we in fact talking about something very much broader, in terms of the wide definition of "construction project" without any apparent limitations?

HON. MR. McCLELLAND: There's no hidden motive here. We are talking about those kinds of projects, but we also need the definition for the new section which allows for project certification in the construction industry, which in some other provinces is called "voluntary recognition." So we need that definition in order to fit both of those — the definition of economic development projects and of project certification in construction.

MR. GABELMANN: Okay, I'll leave that.

The next section deals with the definition of "strike." This has raised some considerable publicity. It was obviously one of those areas in the amendments that was easiest to understand by people in the media, and as a result received a lot of initial attention. I just want to say that, for my part — and I speak here for myself and not necessarily for others of my colleagues, who may take a different view, which is quite appropriate — I quite frankly don't have a lot of difficulty with the idea that when a contract is signed there are obligations on both parties. One of the obligations that trade unions commit themselves to is to live up to the terms and conditions of the agreement under which — with the exception of health and safety reasons or, soon to be, affiliation clause reasons — they're required to work and not engage in a strike. I doubt very much whether, when the Code was debated back in 1973 and 1974, there was an attempt to have it defined by the LRB in the way it came to be defined.

But I should say, having made those comments, that last year we saw — and we have seen on other occasions; I think there have probably been three occasions in the last nine years when there have been so-called political strikes — trade unions with collective agreements that provide the same prohibitions as the Code will now provide violating their collective agreements in participating in days of protest.

In a democratic society one could make a valid argument that there needs to be pressure-release valves. I suspect that the other jurisdictions turned a blind eye to the fact that political demonstrations were not dealt with under the law, because in every other jurisdiction in Canada they were illegal under law. They weren't here. I suspect that almost all employers did not deal with the violation of the collective agreement where the workers engaged in political disputes as a recognition of the fact that sometimes you're better off in these matters to let some steam escape. A political protest is one of those ways in which people can vent their frustrations or rage or whatever else and in the long term have positive impacts on the conducting of labour relations.

I'm not arguing strongly that the definition of "strike" shouldn't be narrowed; as I say, I have some sympathy for that. I am arguing on the other hand, though, on the enforcement of this now narrower definition. I would trust that the board — by implication, the government — would recognize that when these kinds of protests happen they serve a function. To use the full weight of the law against people who engage in that kind of political protest would, in my mind at least, be quite counter-productive. While I'm not going to make a long speech about this section, I want to make it clear that I think it needs to be handled with some very real care. I would be interested in the minister's response to that.

HON. MR. McCLELLAND: I don't have any problem with that. The member is correct. It has been the interpretation by the board which really didn't reflect the intent of the Labour Code as it was written ten years ago — the interpretation by the board. I guess in one way we're trying to make the Labour Code more pure to deal with labour matters. I don't have any problem with people being able to let off that steam in political protests of any kind that they wish to have, but I don't think that it's appropriate that it should be tied up with the Labour Code. That's all that we're doing. We are not breaking any ground here; we're just falling into line with definitions that are in existence in every other jurisdiction in Canada. I think we'll have to see how the board handles this. There is no intention in any way — as I said in my opening statement in second reading — to reward people or to punish people in this Code. We want to be as even-handed as possible. I don't have much difficulty in agreeing with the member's position.

[10:45]

MRS. WALLACE: I have some concerns about this because it does seem to me to remove the intent of the Code as it

[ Page 4764 ]

is now written. This really does make a pretty definite change. This right for people to express themselves — be it political, religious, or whatever — is contrary to our concept of freedom of expression. It is going to result in a limiting factor being placed on employees to have that right to make a public statement about how they feel. My concern is that when people feel strongly enough about something, they will take the step, whether it's allowable or not. If it is illegal to do it, they not only acquire a criminal record — become lawbreakers because of a strong conviction they have — but also when their democratic rights are limited or removed, there is a greater tendency for people to take action that is more violent than a democratic demonstration that is peaceful and quiet. When that is allowed legally, then the expression takes place, the people feel they have satisfied their conscience, and so be it. If that is removed, then the feeling is of being restricted and not having the full rights of a citizen under our constitution and our human rights philosophy in this country. Then we leave ourselves open to people taking illegal action that often does result in violence. That's my concern about limiting this particular right.

HON. MR. McCLELLAND: Mr. Chairman, there is some misunderstanding, I think, about what this bill is. This is the Labour Code, and we're not seeking to limit people's opportunity to express themselves in any way. We are seeking to limit the opportunity under the Labour Code. It doesn't seem to me to be the proper place. This deals with collective agreements. If two willing parties enter into a collective agreement, surely, as the member for North Island (Mr. Gabelmann) said, they have the right to expect some peace during the term of that collective agreement. That's what this Code should deal with. If you want to talk about political protests or the right to express, we've got other areas: we've got the Charter of Rights of Canada; we have the courts of the country. It shouldn't be up to the labour board to make those kinds of political decisions; they should be making the decisions which deal with freely bargained collective agreements and whether there should be peace during the term of that.

I've said again that this is not breaking any new ground. This definition is in place in every jurisdiction in Canada, and they deal with political protests in other ways. There are many other ways in which to do that without limiting the right to express yourself. My colleague the Minister of Health (Hon. Mr. Nielsen) was mentioning, as you were speaking, the matter of the man in Quebec City who felt he had a reason to express himself. He took very violent action to deliver that expression. Clearly that's against the law, and it should be against the law. We wouldn't want to deal with his expression in the Labour Code, and so we're saying, let's deal with it where it properly belongs, and let's deal with collective agreements and the matter of labour-management relations in the Labour Code.

MS. BROWN: I agree with the minister that the wording is exactly the same as the Ontario definition up to the point where it says, "designed to," and then after that he adds some words of his own: "or does restrict or limit production or services," etc. What is the intent of going beyond the Ontario definition? You say that this is not new, that it exists in other jurisdictions. In fact, you have gone further than other jurisdictions. Also, by limiting the definition of the word "strike" to the extent where it doesn't allow taking into account any of the employees' terms or conditions, isn't this making it more restrictive? Maybe you can explain to me why you were restrictive in one respect, in terms of removing the subjective elements of the strike, and at the other end of it why you expanded and went beyond the Ontario definition.

HON. MR. McCLELLAND: Mr. Chairman, just some different words to make it clear that cessation of work, whether it's "designed to" or just a couple of extra words…. As far as the conditions of work go, they're covered under here in health and safety under section 83. Workers may still take job action under those conditions that are covered under section 83.

MS. BROWN: But there are other areas where workers would like to take job action which are not included here. One of the things about the way the Code was originally written was its flexibility; as times and conditions changed the Code was flexible enough to adjust. By deliberately pinning down the definition, as it does, by going beyond the design and adding "or does restrict," etc., it really reinforces the objective act of the strike and ensures that the intent of the employee has no part to play.

For example, sexual harassment is something that was never dealt with when the Code was originally drafted. However, it is something which can be dealt with, because the original Code was flexible enough to take that into account. Now by really freezing the Code, which this new definition does, it doesn't really leave any room at all for any kind of subjective action on the part of employees, except the ones specifically outlined here.

HON. MR. McCLELLAND: Mr. Chairman, the member is really reaching for stars now. To begin with, she's in the wrong bill. Sexual harassment has always been dealt with under the Human Rights Code, not the Labour Code. If a person has a collective agreement, those kinds of things can be covered in the collective agreement — and in fact are. In the collective agreement that we ourselves have with the B. C Government Employees' Union, the matter that the member raises is covered in the collective agreement, and should the employer violate the terms of that collective agreement, then there are grievance procedures open to that employee.

So what we're talking about here is a free collective agreement between willing parties, and you can bargain anything into that collective agreement that you wish. If you want to bargain a clause dealing with sexual harassment, which the BCGEU and others around the province have done — some of the university agreements have those clauses in them…. So I would say that if those are the kinds of things that people want in their collective agreements, they should put them in. And then there's a route for them to follow, through the grievance procedures which are built into their collective agreements.

MRS. WALLACE: Mr. Chairman, the minister's response, quoting the Minister of Health (Mr. Nielsen) about the very emotionally disturbed and mentally ill person in Quebec…. That's an extreme case, but in a way it justifies what I'm saying, which is that people do become emotionally aroused if their right to participate and express themselves in a peaceful way is denied. Then you get that sort of thing. But you know, this is obviously a point that the minister and I are never going to agree on.

[ Page 4765 ]

I have another question relative to this definition. Who is going to determine what constitutes a slowdown? The section says that a slowdown is now a strike. It also says: "…or other concerted activity on the part of employees…." Who is going to determine what that other concerted activity is? How is that going to be determined? How is it going to be determined whether or not a certain falloff in production is a slowdown?

HON. MR. McCLELLAND: The same way those kinds of things have always been determined: by the Labour Relations Board.

MR. MITCHELL: I would like to comment further on what my last two colleagues have mentioned. I think the minister is trying to say that a free collective agreement between two willing parties…. This is quite true when you have a free collective agreement between two parties. But the majority of the labour strife in this province comes when the agreement fails to be renegotiated. In a lot of cases I've worked under, January 1 is the anniversary date of a new agreement. You get into August and September, and no agreement has been negotiated freely or otherwise; then an employer takes the position that he won't negotiate, or that he'll negotiate in such a manner that there will not be a settlement. What happens on the work site is discontent, and, let's face it, you do get poor morale. You do get a certain amount of slowdown. You do get people booking off sick. You do get sort of the job action that I remember back in 1971, when the police went on a slowdown and the courts came to a dead stop. Maybe it was illegal, but what we need from the Labour ministry is not bigger and more ineffective clubs but a form of built-in mediation, a way of getting the employee and the employer to sit down and negotiate.

[11:00]

You're not going to be successful — and I say this to you very honestly and very sincerely — by saying to somebody, "You can't do this and you can't do that," unless you can enforce it. If ten people book off sick, are you going to run around and have a doctor examine them to see if they're sick? You're not going to do it; you can't enforce it. Instead of attempting to use the big stick — bully tactics, the heavy hand — you have to use a certain amount of common sense. The Labour ministry must give a certain amount of leadership to employers, and I don't care what employer it is. We all know that certain employers do not like to negotiate, do not like to give anything; that's their personality. Then you have certain trade unions that want to hold out for everything, and the majority of the people who are wanting to hold out for everything are not the ones who are at the bargaining table. Everyone blames poor negotiators, but in many cases it's somebody back in the ranks who is demanding more and more.

Somewhere along the line the Labour ministry must ensure labour peace; they must ensure that a free collective agreement…. In many cases, part of the free collective agreement is the process of negotiating a new collective agreement, before the anniversary date. But the jobs where there is a poor policy either in the industry or in the various companies that refuse to negotiate a proper collective agreement so that when the anniversary date comes there is a new one in place…. They wait with this crisis-type of management that this government practises. They wait till the crisis is there and then try to patch it up with a lot of abuse, a lot of press releases, a lot of insinuations about the personality of the union president, or something of that type. This is not going to work. Take a construction site where the main crane driver books off sick. You can say all you want, but that job is going to slow down. I've seen it happen; we all have seen it happen.

All we're asking is that there should be a better process within the ministry, within the labour legislation, so that the negotiations to maintain a collective agreement are in place before the anniversary date and we don't have this six, seven or eight months…. I know that in the police we've had cases where they've gone over a year or 18 months before a new agreement was negotiated. If you think you're getting good benefit from the money expended in wages when you have poor morale and discontent, when you have a lot of verbal abuse in the press and in rumours going through the job site, you're not going to get it, and you're not getting it by trying to make illegal something that is a fact of life.

Interjection.

MR. MITCHELL: The minister tries to get around it, but the fact of life out there is that you're dealing with human beings. You're not dealing with a lot of robots; you're not dealing with anything else but a civil matter, and a civil matter is freely and collectively negotiated. But here we are trying to sneak a little bit of criminal law into a civil proceeding which should never be there. I think this is where you're going to have problems down the line. We had problems back in the days when the previous Social Credit government brought in the mediation act and the mediation board. They all sounded great when they were debated in this Legislature, but they didn't work, and this approach that you're taking is not the approach that will be successful.

Section 1 approved.

On section 2.

MR. GABELMANN: Mr. Chairman, in Section 1 I made the comment that the minister was bringing the definition of strike at least into line with the definitions in other jurisdictions. In this section the minister is taking a Code which has been in line, and taking it out of line. Sections 2 and 3 of this bill amending 4 and 5 of the Code need to be taken together, and there will necessarily be some overlapping.

The concern that has been expressed by those few people who have had a chance to properly study this bill in the short time it has been in front of us, as opposed to the opportunity of, I understand, some 62 or 63 drafts in various forms that the minister and the ministry have had — 34 of them up until last summer and another 30 or so since, which gives an incredible advantage to the minister in terms of attempting to comprehend these sections…. Nevertheless, in the few days that have been available to people affected by this, one of the legitimate criticisms expressed about the bill is that it's anti-union. It is in various respects, and it certainly is in section 2.

First of all, what section 2 does, amending section 4, is eliminate a procedure for unfair labour practices against persons other than unions. In a moment I'll get to what I think the minister's defence of that will be. The second thing — and a very important element of this — is that the legal test is changed. The test under the old section 5 was whether the

[ Page 4766 ]

actions of the person had the reasonable effect of coercion and intimidation. Intent didn't matter; effect did. Now, under section 3 — and I appreciate that we're on section 2; nevertheless they're together — intent has to be proven as well as effect in order to establish an unfair labour practice. In other words, similar to some debates we had in the Human Rights Act, if you didn't intend to do it, and if you can demonstrate that the other side hasn't been able to prove that you did so intend, then it's not an unfair labour practice. It's very much more difficult now to prove an unfair labour practice against an employer.

The minister's response will be that section 3 of the Code will defend or make equal the rules governing trade unions on the one hand, and employers on the other, but in fact it's not so. On careful reading of section 3, one would readily conclude, I think, that the prohibited employer activities are very much more narrowly defined.

Because of the need to read sections 2 and 3 together, and because section 3 is the more comprehensive of the sections and the one which really has the burden of this issue, we might be better off in terms of this discussion to go quickly through section 2 and then to go into section 3 in some detail, as long as there's an understanding that we're going to overlap. I say that and hope the Chair will allow it.

Taking them together again I think this means that never again will a situation exist as existed with the Minister of Universities, Science and Communications (Hon. Mr. McGeer) when he was "convicted" of an unfair labour practice in Notre Dame, because the procedure dealing with unfair labour practices committed by persons other than the parties is now gone. As I read this — keeping in mind that I'm neither a lawyer nor a practitioner in front of the LRB, which makes it very difficult to deal with these kinds of complicated sections — if you are unable to prove that the person committing an alleged unfair labour practice is committing that in conjunction with the employer, or conversely with the union, there is no unfair labour practice. In other words, if there is an unfair labour practice alleged on a construction site…. Let's pick, for example, a typical non-union construction contractor like Kerkhoff, who might be being organized by a building trades union, let's say. The ICBA comes along and intimidates or coerces; as I read these sections, there will be no ability to declare the ICBA activity an unfair labour practice even if it would be under normal circumstances.

I'll leave that argument for the moment and invite the minister to tell me whether I'm right or wrong on that.

HON. MR. McCLELLAND: Mr. Chairman, I would think that whenever there is some kind of an unfair labour practice, it would have to be related to the place of employment. It would seem to me — and I'm in the same position as that member; I'm not a lawyer either — that in one way or another a person would be acting on behalf of the employer, which is covered under section 3 of the Code. I would think that in the case the member mentioned, it could reasonably be presumed that the minister referred to was acting on behalf of the employer, indirectly at least, who indirectly would be the provincial government. I don't think that there's a problem with that, and certainly the Code as it reads is explicit enough to make it clear that those persons simply cannot practise an unfair labour practice without facing the retribution that the act allows.

MR. GABELMANN: Mr. Chairman, the minister really didn't answer the question. He said he presumes, expects and whatever. These are obviously the kinds of questions that are going to be determined by the LRB eventually. I'm concerned about the vagueness. There is no degree of parallelism between section 3(3), relating to employer unfair practices, and this new section which deals with coercion and intimidation alleged by trade unions. They are not parallel situations; the burden of proof is different in each case. There is a far greater area for legal defence in the employer's side than there is in the union side when you read these sections together, as I read them.

HON. MR. McCLELLAND: I just don't read it the same way, Mr. Chairman. Section 3 of the Code isn't vague at all; it's very explicit. I think it needs to be more explicit on the part of the employer so everybody knows exactly where they stand. We have not changed that section, and I think that it covers exactly the same kind of things that section 4 of the bill covers.

[11:15]

MR. GABELMANN: Let's just back up a little bit, Mr. Chairman. In the general sense, these changes take section 5 out of the Code — coercion and intimidation — and say that that no longer applies generally. It used to apply against the unions, employers and any other person. Right? Just to get this thing into its broader context, what the amendments do is take that section out of the Code and say that coercion and intimidation shall not be used or practised by trade unions — the new section 4, which is section 2 of this amendment bill. So in effect the coercion and intimidation section, which used to apply to three groups: employers, unions and anyone else involved, now only applies to trade unions.

The minister's defence to that is to go back to section 3(3), which are the prohibitions against employer activity. The language in that section 1s not the same as the language in this section. That's point number one. The clarity of the language against trade unions is there. It is less so in 3(3) of the Code. It says: "An employer or person acting on his behalf shall not seek by intimidation, etc…. Nowhere in the entire section 3 does it use the word "coercion," so it's different.

I don't understand how lawyers define words particularly. There must be a reason why coercion is prohibited by trade unions but is not prohibited by employers. That's point number one. There is a different standard applied to each.

Point number two. The first line in section 3(3) of the Code says that where it can't be proved that that person or persons were acting on behalf of the employer — to use my words, but I think having the same meaning as in the Code — those persons cannot be guilty of an unfair labour practice.

What I'm concerned about is that a fair-minded person may well say that any act by an outside party that has the effect of assisting the employer in a particular case would be covered by this, but it isn't necessarily so. A strongly biased board could argue that that assistance — as in the case of the ICBA, for example, which I cited earlier — was without the knowledge of the employer and may be against the employer's desires, because the employer didn't want to have that kind of interference, but nevertheless had the effect of intimidating or coercing employees.

[ Page 4767 ]

HON. MR. McCLELLAND: First, when I introduced this legislation to the House, I said that we wanted to make it very clear that an employer has the right to talk to his employees. In the past, particularly because of section 5 — and whether the Code said that or not — employers were frightened in many instances from saying anything to their employees. We often saw the kinds of resentments that have built up over the years, where we no longer saw collective bargaining taking place across a table or employers and employees being able to freely exchange ideas. It just didn't happen in this province. We wanted to bring back the face-to-face opportunity during the life of a collective agreement or during the time of the formation of a union or whatever to have the rights maintained to be able to talk to each other.

I agree that the words aren't the same. "Coercion" does not appear in section 3, but I can't see how it could be any clearer than the words which are used in section 3: "An employer…shall not discharge, suspend, transfer, lay off or otherwise discipline an employee, refuse to employ or continue to employ a person or discriminate against a person in regard to employment…." Further on it says: "(c) seek by intimidation, by dismissal, by threat of dismissal, or by any other kind of threat, or by imposition of a penalty, or by a promise…." If those words aren't clear, I don't know how you can be any clearer. They are far clearer than the simple word "coercion," because it puts all of that in there — the threats, the promises, the warning that you're going to get fired. You can't do that, and it's spelled out very clearly in section 3.

MR. GABELMANN: The minister introduced a major element of the debate in his opening comments when he talked about his desire and the government's desire to have unions and employees talking more freely and relating more closely to each other. God knows, then, why the multiple employers' certification provision was amended the way it was in section 40; however, we'll get to that later.

What the minister really wants to have happen is a certification application, or a decertification application. That's what's important. The minister referred to "during the life of a collective agreement." Sure we want the parties to talk to each other. I've always been in favour of building features into a collective agreement that actually require some discussion during the course of an agreement. I think that's useful. There are examples in British Columbia where that happens. The earlier evidence is that that's a useful procedure. That's not at issue.

What is at issue is the whole question of certification campaigns and decertification attempts or campaigns. At that time the employer, outside of the language of section 3(3) of the Code, has ample opportunity to influence his employees, not necessarily by intimidation or threatening dismissal or any of the other wording in section 3(3)(c). He could say: "Well, you know, we get the union in here and we may have difficulty surviving. We may not be able to keep the same number of employees. You're near the bottom of the list." Activities will have the impact, as is allowed in the States, of having the employer to interfere — and I'm not saying by threat but just by casual conversation. We now have to prove intent on top of that, but leaving that aside for a moment, we will have an opportunity for the employer, who has all the cards…. He has the potential knowledge of the future operations of the company, which the employee does not have. He is there every day; the business agent is not. Not to talk about another feature of having votes conducted on the premises of the employer. What this does, and it has to be read in conjunction with the other sections, is to make union organization virtually impossible in small areas where the owner or the management have an opportunity to talk to and become friendly without intimidating…. They have the opportunity to frighten. I wonder if that's why — I'm not saying that it's a fact — this wording was changed. Keep in mind that a lot of unfair labour practices — and I can't quote the majority of them — that relate to employer interference were taken under section 5 and not 3(3). They now will have to be taken under 3(3) and will not have nearly the impact that they had under section 5. If section 3(3) is as good or better than section 5, then section 3(3) would have been used rather than section 5. Section 5 has been used. Why take it out?

HON. MR. McCLELLAND: Mr. Chairman, I don't find anything offensive about an employer's being able to talk to his employees. In fact, the Code explicitly says that you can impart factual information. If the employer wants to say to his employees, "Hey, fellas, if you get the union in, and we have to pay those rates, I may not be able to survive," they're still going to have the opportunity to vote, and they make the decisions.

One of the most creative labour-relations agreements, in my memory, in this province happened not very long ago with Johnston Storage and its employees. Johnston Storage called its union in, opened up its books to the union, showed them exactly the position that the company was in, and the company employees, having seen the books, agreed to a very substantial wage change. What's wrong with that? I don't know why people like the member for North Island would be frightened about an employer's being able to sit down and talk to his employees. The employees make their own decision.

Interjection.

HON. MR. McCLELLAND: You're right. We want to preserve the right of people to talk together.

MR. GABELMANN: Mr. Chairman, the minister persists in relating it to the continuation or renewal of collective agreements. That's what the Johnston Storage issue was about. The collective agreement had been in force, and the union wanted new contracts. I don't remember the….

Pick it out of the air. We were not dealing with an application for a new certification, if I remember correctly the Johnston issue. They already had a union there. God knows that unions have always cried for the opening of company books. I find it interesting that the only time the company books are opened is when the company is in trouble.

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

MR. GABELMANN: Oh, it's not true! Pacific Press wouldn't open their books for the Newspaper Guild and that council of unions in their recent discussions. There are innumerable other examples of the same point. I wish the minister would leave aside the issue of employers and employees talking to each other during the term of a collective agreement. I agree. We're talking about a certification or a decertification drive; that's the important time. Clearly there's a difference of opinion on that side and on this side about

[ Page 4768 ]

whether the employer should have the right to interfere in that campaign by suggesting: "Well, you may lose your job if you get the union."

HON. MR. McCLELLAND: It's covered.

MR. GABELMANN: It's not covered, because 5 doesn't apply any more, so they go back to 3(3). An employer can't do some things: he can't discharge, etc. Fair enough. This is the relevant section, I think, in terms of the minister's defence: he can't seek by intimidation, by threat of dismissal or by any other kind of threat….

HON. MR. McCLELLAND: Or by any promise.

MR. GABELMANN: Right. So he doesn't do any of those things. He says: "Unions are a good idea. I understand why you want to be represented collectively. But I worry about what the impact might be. I might have to close."

HON. MR. McCLELLAND: What's wrong with that?

MR. GABELMANN: The employer is there every day. That's where the paycheque comes from; the paycheque doesn't come from the business agent or the union organizer. That's where the power is.

"What's wrong with that?" the minister asks. That's been the problem. If, as the Code says, it is the desire to promote collective bargaining in our society, I guess the nub of this issue is that the government didn't have the courage to bring in those amendments to the Code. The fact is that it is no longer the desire on the part of the government to promote collective bargaining. It wants to promote individual bargaining. That's the essential issue; it runs right through these amendments.

[11:30]

The minister asks what's wrong with the employer's suggesting to his employees that certain things might happen if the union is successful. Put yourself in the position of the clerk or the van driver in a small courier company or in any number of other situations. Who has more power? The organizer who showed up in the 90-day period once and got a card signed perhaps and who the worker doesn't see again? Or the employer who is there every day and who writes the paycheque? That's not a balance; that's not even. One of the things that was built into the Code originally was an effort to redress that imbalance. There have been any number of hearings in front of the board where employers have used their unfair advantage even with the reasonably decent language contained in the Code before now, where the employers have attempted to make sure the union wasn't successful.

It's not the employer's business in any way or respect whatsoever whether people choose to opt for individual bargaining or for collective bargaining. It is the individuals involved whose business it is. What is at stake is the question of whether or not there will be individual bargaining or their choice for collective bargaining. Under labour law as it has developed in this country there has been a recognition that it is up to those people involved to themselves decide whether or not they opt for doing it independently of each other or collectively. There has always been employer interference, no matter how well-written or well-intentioned the legislation might have been. We've seen it in countless cases, and as recently as the Pizza Hut decision on Friday.

But now the government is saying: "We welcome that interference." The minister says: "Why shouldn't the employer have the right to talk to the employees about the possible implications of their choice to discontinue individual bargaining and turn to collective bargaining?" I guess this tells us more clearly than does anything else in these changes what the intent of the government is. It is to allow the bias of the employer, which will in most small business instances always be against collective bargaining — not so in the big industries; with something such as 1,000 people working in a pulp mill, most employers would rather have collective bargaining, I suspect, as it's easier to deal with…. But in the small cases, which is where the bulk of union organization is going on now, the minister is saying: "What's wrong with the employer influencing the employees?"

[Mr. Strachan in the chair.]

That's the gulf between us, and that is a major change in labour relations in this country. It's the first time we've gone in this direction. The direction until now has always been consistent: that is, to allow employees to make up their own minds without that overbearing influence the employer is able to exert.

HON. MR. McCLELLAND: That the employer, who has perhaps risked his life on a business, has no say and no right to talk to his employees is utter nonsense, in my opinion. We have adequately covered the matter of threats, intimidation, promises and unfair labour practices. But for anybody to think that an employer being able to impart facts about his business to his employees is an unfair labour practice is simply…. I just couldn't agree with it in any way.

The second point is that the member clearly misrepresents what the Labour Code is designed to do. It does not — any longer, at least, since amendments were made some time ago — have as its objective the promotion of the collectivization of the workforce. That is not one of its objectives. The member misunderstands that or has not read the purposes and objects of the Code. It is not to promote collective bargaining. It is certainly to promote better practices in collective bargaining but not in the collectivization of the workforce. That's not the job of government. That's the job of parties working together. If they decide that they wish to collectivize, then that's their right. We're giving them a better democratic right under this bill.

Mr. Chairman, that gulf is going to be there forever if that member thinks that the employer has no stake in the operation of his business and can't talk to his employees.

MR. GABELMANN: Mr. Chairman, it's not just the employer who risks capital and risks his whole life's work. It's also the employees; they risk their life's work too, with far less power. In our society, capital provides you with power. I appreciate their risks, and God knows the bankruptcies prove that the risks are pretty high. But the fact is that the employees too invest their lives, sometimes more literally than employers ever do. I think that point should be remembered.

Now I'm not arguing that the Code should be designed to almost impose collectivization. But what the changes do is to make sure that individualization becomes the purpose of the Code. I think the minister and 1, and the government and the

[ Page 4769 ]

opposition, could come to an accord if we felt that the Code was neutral. The intent of the original Code was to be neutral.

I don't want to get into second reading here, but it depends on what your social goals are too. You want to make sure you have a fair society; you make sure that people who are being unfairly treated by that society have some institutions at their disposal. One of the best ways to make sure that income is distributed equitably is to make sure that there is the opportunity, easily and without intimidation, to be represented by a trade union, because then most people would. It's not provincial jurisdiction, but why do you think bank employees aren't unionized? It's not because they wouldn't choose it if they felt that they could. All the pressures in our society are against it.

That's something that I guess is fundamental in these amendments. The employers now have the power. All of the values of the institutions in our society that determine attitudes, which are not poor people and unrepresented people, who are not in control of these institutions…. All those levers of power in our society militate in favour of individualism. Rather than being neutral on the question, the Code is now going to be overwhelmingly against those individuals who might, given some neutrality on the part of the law, summon up some courage and take what is for them a major step in their life, which is to sign a union card. It won't happen under this legislation. Certifications have been decreasing as it is because of the attitudes and strengthened position of the employer in bad economic times; now the government is coming in behind the employers who have been doing that and giving them yet further free rein to run rampant over their work forces. Again a demonstration that in the government's side capital is more important than labour. Even 120 years ago Abraham Lincoln recognized that that was wrong.

MR. MITCHELL: What really bothers me on this section is that if coercion and intimidation are wrong for a trade union, why isn't it equally wrong for a company? Section 5 — coercion and intimidation — was very neutral; it said that a person shall not use coercion. But in section 3 of the amending bill you have deleted section 5 and replaced it with a piece of legislation that has nothing to do with the protection and neutrality that was in the original Code. So now the only group for whom it is an offence to intimidate and coerce — if that is an offence, which I say it is…. It's an offence for the church to talk to their parishioners and say they shouldn't deal with loan sharks, but it's all right for the Mafia to coerce and threaten. This is what you have taken out in its extent. It's an offence for one group but it is no longer an offence for the employer. The original section that you've deleted was a neutral section. But in the section that you've inserted it is only an offence for the trade union, not for the employer to coerce or intimidate, and this is what bothers us.

HON. MR. McCLELLAND: Mr. Chairman, I guess I'll just have to say it again. The Code now covers all kinds of coercion and intimidation by an employer. "An employer or a person acting on his behalf shall not (a) discharge, suspend, transfer, lay off or otherwise discipline an employee, refuse to employ or continue to employ a person or discriminate against a person in regard to employment or a condition of employment because the person (i) is or proposes to become, or seeks to induce another to become, a member or officer of a trade union; or (ii) participates in the promotion, formation or administration of a trade union"; and he shall not "(b) impose a condition in a contract of employment that seeks to restrain an employee…." and he shall not "(c) seek by intimidation, by dismissal, by threat of dismissal, or by any other kind of threat, or by the imposition of a penalty, or by a promise, or by a wage increase, or by altering any other terms…." He shall not do those things. If that isn't explicit enough to cover coercion and intimidation, I don't know what is.

MRS. WALLACE: The minister has just read us a whole lot of things that the employer shall not do. I could readjust as many things that are in this act which the union shall not do. Nowhere in what he said did he use the words "intimidate" or "coerce," except in comment.

HON. MR. McCLELLAND: "Intimidation." It's in the Code.

MRS. WALLACE: But it's not in that section. What you're doing is making this that only trade unions may not intimidate or coerce. If you really mean what you're saying, when you put into section 3 the words "intimidation" and "coercion" relative to a trade union, then you would be prepared to amend the section that's there about employers to include the words "intimidate" and "coerce." If it's good for one, it's good for the other. I agree it's good, but let's say it; let's not put "intimidate" and "coerce" relative to trade unions and not put it in relative to employers.

HON. MR. McCLELLAND: Mr. Chairman, "an employer or a person acting on his behalf shall not…seek by intimidation, by dismissal, by threat of dismissal, or by any other kind of threat, or by the imposition of a penalty, or by a promise, or by a wage increase, or by altering any other terms of employment, to compel or to induce an employee to refrain from becoming, or continuing to be, a member or officer or representative of a trade union." Mr. Chairman, you can't get any more explicit than that.

MR. GABELMANN: Mr. Chairman, I want to ask the minister a question. What happens if, in a certification drive, a group of employees on one side of the question or the other threatens or intimidates or attempts to coerce another group of employees — not acting on behalf of the employer and not acting on behalf of the union? What are the prohibitions in the new law?

HON. MR. McCLELLAND: Mr. Chairman, I would imagine that would be for the board to decide.

[11:45]

Interjection.

HON. MR. McCLELLAND: Well, sure, it has to. The board makes all of those decisions. The Labour Relations Board, Mr. Chairman, is still the agency which is charged with the administration of this act.

MR. BLENCOE: How much longer?

HON. MR. McCLELLAND: Well, you know, that kind of comment is interesting. That party opposite has been saying those kinds of things now for close on ten years, and I suppose they will continue to say them for another ten years.

[ Page 4770 ]

But the Labour Relations Board is intact and will continue to be the agency which has the responsibility for this Code. They'll make that decision. If the member would research some of the decisions made in the past, I think he would see that that kind of group could have been turned to acting on behalf of the employer, particularly if they were — and I would think that they might be — quite clearly…. But it won't be my decision and it won't be the Legislature's decision. It will be the decision of the Labour Relations Board, as it has been and as it should be.

MR. GABELMANN: Mr. Chairman, the minister imagines that it will be up to the labour board. Certainly it will be up to the labour board — nobody quarrels with that. But the labour board has to make its rulings and its judgments based on the Code. And persons are now no longer covered. Sections 2 and 3 taken together are — and I use the words in quotation marks, Mr. Chairman — the "Pat McGeer amendment." That's what they are. They are designed to allow persons to interfere on one side or the other, because unless they're acting on behalf of the employer and you can prove intent, they're not guilty of an unfair labour practice.

That's the first point. The second point is that the minister goes on and on and on about the employers' right to communicate with employees. Section 3(3)(g) covers that. That's not at issue. If you want to put 3(3)(g) on the table, I'll vote for it. But what we're setting up here is the opportunity for interference, and the board, for all its good intentions, cannot make decisions unless it makes them in reference to the Code with which it works. I raise the question of the kind of activity that could take place on the job site in an application for certification or decertification that isn't condoned or planned or a part of either the employer's or the union's activities, but is rather the activity of persons. They are no longer contained, no longer able to be dealt with. The board, under these amendments, as I read it, will no longer be able to say that the activity of that person — on either side of the issue — was an unfair labour practice, because that person wasn't "acting on behalf of" — in the employer's case. As I say, the kind of intimidation and coercion that took place at Notre Dame by someone who was not directly connected with the employer and not acting on behalf of the employer — acting, in that case, on behalf of the government — and which was declared to be an unfair labour practice, could not now be declared an unfair labour practice if this bill passes.

Section 2 approved.

On section 3.

MR. NICOLSON: These sections 2 and 3 are kind of inextricably interwoven, and it's a judgment call as to what is the most appropriate section to raise this matter under; but I would raise it under section 3, as it repeals section 5 of the Labour Code. Section 5 is the section that says: "A person shall not use coercion or intimidation of any kind that could reasonably have the effect of compelling or inducing a person to become, refrain from becoming or continue or cease to be a member of a trade union. My colleague for North Island (Mr. Gabelmann) has referred to this as "the Pat McGeer amendment." It was the subject of a decision of the Labour Relations Board in a dispute of the Association of Commercial and Technical Employees, Local 1728, against Dr. Patrick McGeer, named as respondent. The decision of the board was given on September 26, 1979. This arose and was pursued, and the ultimate consequence was that under section 5 of the Labour Code, which this section would seek to repeal, a minister of the Crown was found guilty of an unfair labour practice. It was a most extraordinary circumstance in that not only did the minister try almost every avenue to have this thing set aside. He went to the supreme court where Justice Kirke Smith dismissed the case very strongly in ringing terms. The minister appealed to his parliamentary privilege and tried to extend his parliamentary privilege beyond the jurisdiction of this House. That was set aside. There was an act of the Legislature brought in in a section of the Notre Dame University of Nelson Act 1977 which would have had very material effect on this decision, and that was later removed under some pressure.

I think that what we are seeing here is a very bad precedent being made in law based on an example which I think should give comfort to all. That was one time when people could see justice not just seeming to be done, but seen to be done, where a minister of the Crown, in spite of the power, was levelled to the same responsibilities and obligations under law as will be expected from most other people.

It is very clear from page 25 of this decision that…. They cite some precedents under the board decisions pursuant to section 5 of the Code. One of the things they say is that first of all, in sharp distinction from, for example, section 3 of the Code, it applies to any person — and the word " any" is underlined — and not just to employers or trade unions, as was said in R.M. Hardy and Associates, 1977. Section 5 is an umbrella prohibition against any conduct reasonably likely to coerce or intimidate employees in the exercise of this fundamental freedom, whether the conduct is by the employer, a union or an outsider. Mr. Chairman, I think that was a very wise and fair decision, and I think that is the very sad and insidious thing about this regressive step. This is seeking to introduce a loophole into the Code where none existed before. This is seeking to give carte blanche to agents provocateurs who would act and disclaim any interest and could become meddlesome, and simply by denying that they were acting on behalf of either union or agent.

The House resumed; Mr. Strachan in the chair.

Hon. Mr. Nielsen moved adjournment of the House.

Motion approved.

The House adjourned at 11:57 a.m.