[ Page 1655 ]
Routine Proceedings
Tabling Documents –– 1655
Oral Questions
Premier's promise of fresh start. Mr. Harcourt –– 1655
South Moresby national park reserve. Mr. Kempf –– 1656
Committee study of Bill 19. Mr. Harcourt –– 1656
South Moresby national park reserve. Mr. Kempf –– 1657
Committee study of Bill 19. Mr. Harcourt –– 1657
Mr. Gabelmann
Industrial Relations Reform Act, 1987 (Bill 19). Committee stage. (Hon. L. Hanson) –– 1657
Mr. Miller
Mr. Sihota
Mr. Jansen
Ms. Smallwood
Mr. Gabelmann
Mr. Lovick
Mr. R. Fraser
The House met at 2:07 p.m.
HON. MR. VEITCH: Mr. Speaker, in the members' gallery today are four gentlemen: Mr. Jim Pavich, Mr. Arno Reicher, Don Bell of Safeway, and Don McIntosh. I'd ask the House to bid them welcome.
MR. GABELMANN: Mr. Speaker, I just want to add my best wishes and welcome to Don Bell, who was the mayor of the district of North Vancouver when I was the MLA for North Vancouver-Seymour.
MR. REE: Mr. Speaker, can we add more accolades for Mr. Don Bell? He's also a school trustee in the district of North Vancouver, School District 44, a good supporter of mine and a campaign worker in the last election.
HON. MR. REID: Mr. Speaker, it looks like the person to know in the audience today is Mr. Don Bell. I'd like to recognize Mr. Don Bell for his involvement with the Urban Transit Authority in helping to make the decision to purchase the electric flyers that are creating all the problems.
MR. SERWA: This afternoon I would like to introduce a personal friend and supporter from the great constituency of Okanagan South, an active community worker, a school trustee and, most of all, a friend of Don Bell. Would the House please welcome Don McIntosh.
MR. GABELMANN: I didn't want to leave Don out of that either. Don has been a regular visitor to this place over the years, and many of us have come to know him, and I welcome him as well.
Since it's Canada Safeway Day, I thought it would be appropriate to have the House welcome Mr. Jon Squire, who was the trade union representative who dealt with Canada Safeway and MacDonalds Consolidated over many years. Jon is here to pay some attention to the labour debate.
MR. RABBITT: Mr. Speaker, in the members' gallery today we have Don Wood and his friend Grant Warner, young men from the lower mainland, employed in the private sector and taking a day off to come over here, visit Victoria and watch a good government doing a good job. Would you please welcome them both.
MR. GUNO: This afternoon I have a message of congratulation. Last Saturday Mr. James Gosnell, hereditary chief of the Nishgas and president of the Nishga Tribal Council, became the first recipient of the Spirit of Leadership award, presented by the B.C. Government Employees' Union. This award was in recognition of Chief Gosnell's outstanding contribution to the native community through his fight for social justice and change. Since 1973 Mr. Gosnell has led the Nishgas in their land claims struggle. Mr. Speaker, I would ask the House to join me in congratulating this distinguished Indian leader on receiving this fine award.
MR. JACOBSEN: From Meadow Ridge School today we have Sandy Heard, the headmaster, and his wife; Frank Maisco, a teacher; and 17 students. Would the House please welcome them.
HON. MR. COUVELIER: Mr. Speaker, in the municipal precinct this afternoon we have a close observer of the provincial political scene, Mr. Ed Kisling. But more importantly, he is joined today by his grandfather, who is visiting him from Scotland. some 70 years old, who is most interested to see how we perform in the Legislative Assembly. Would the House welcome Mr. Harry Connolly and Mr. Ed Kisling.
HON. MRS. JOHNSTON: Mr. Speaker, in the gallery this afternoon are two very good friends of mine, Mrs. Marianne Davidson of Courtenay and Mary Gregory of Surrey. I would ask the House to make them welcome.
MR. BLENCOE: Mr. Speaker, in the galleries today are a group of adults from the Capital Mental Health Association, and they are accompanied by two dedicated staff workers, Pat Vickers and Reta Mason. Would the House please make them welcome.
MR. PELTON: Mr. Speaker, I would just like to join with my colleague from Dewdney in welcoming Mr. and Mrs. Heard and the members of Meadow Ridge independent school to the House today.
MR. LOVICK: Mr. Speaker, I hate clichés but it seems appropriate for me to begin this by saying last but not least, given these rather large numbers. I would ask the House to join me in welcoming four different people, two of whom are from the constituency of Cowichan-Malahat: Bonnie Oldershaw and John Waldin. Also it seems appropriate in this chamber that is often referred to as a chamber of outlaws for me to welcome my in-laws, my mother-in-law and father-in-law, Bill and Mary Janis from the constituency of Oak Bay. Please join me in welcoming them.
Hon. Mr. Davis tabled the annual report of the British Columbia Hydro and Power Authority for the year ending March 31, 1987.
Oral Questions
PREMIER'S PROMISE OF FRESH START
MR. HARCOURT: Mr. Speaker, I would like to ask the Premier a question about his election commitments, because when the Premier called the election on September 24, 1986, he said: "Main Street British Columbians want an end to partisan warfare. They want to set aside the sectoral strife which has become the unhappy hallmark of B.C." I want to know, Mr. Speaker, if the Premier has thrown out that promise of a fresh start, or whether he thinks the insults and inflammatory language of the last while will reduce strife and bring about a fresh start.
[2:15]
HON. MR. VANDER ZALM: Mr. Speaker, first of all, let me assure the hon. Leader of the Opposition that we have made great progress in assuring that there's ample, or at least as much as possible, public participation in all of the problems or all of the questions or all of the things that are facing British Columbians. We've had numerous meetings, and will continue to have throughout the province, such as the town hall meetings, but also the committees traveling and individuals attending meetings throughout the whole of the province
[ Page 1656 ]
in order to receive ample input on various questions from the people, regardless of where they live in British Columbia. We intend to continue that process, to have open government as much as we can possibly provide it, perhaps more so here than what we see anywhere on the continent, and that is good.
I appreciate also that from time to time, because of pressures, we unfortunately may not always act or react just exactly as we should. When that happens, I guess it's regrettable, because as we've indicated to the opposition, we want to work as people across from one another for the common good of all British Columbians. That's not to say we'll always agree, but certainly we want to work together — and we've indicated that. We've provided, as you are aware, more money to the opposition, especially in order to do a better job at research. That's fair, and so it should be.
We've set up a committee to deal with all matters affecting members of the House; and similarly we want to see, hopefully soon, the committee system working as effectively as possible, and we intend to work towards that end.
We are committed to open government. We are committed to try to work as much as possible with members, regardless of where they are or what their political affiliation. That's a democratic right we enjoy in this country, and which we should treasure and encourage.
Hon. member, you made reference to an election campaign. I made a number of commitments during that campaign, and I intend to keep them. One of those too is that we should all strive together to assure that we build for British Columbians a secure economy and that we take whatever the initiatives — and however controversial they may be from time to time — to assure that we provide for our people in this province opportunities for secure employment and a diverse choice of jobs.
MR. HARCOURT: Well, Mr. Speaker, that is true. We have improved the operation, the demeanor in the Legislature; we are working on it. I think that is the Dr. Jekyll part of the Premier's personality, and I wish that he would not perform like Mr. Hyde when he gets on the airwaves outside of this Legislature. To be able to say that and then to say that trade union leaders are wealthy and ill-informed on Bill 19, that working people will be punished for protesting Bill 19, and that the Leader of the Opposition is on a phoney trip, is not what I would call keeping the promise of a fresh start. Mr. Premier, are you going to tone down that kind of rhetoric, not just inside this Legislature but with the people of British Columbia outside of this Legislature, and bring about true cooperation in this province?
SOUTH MORESBY NATIONAL PARK RESERVE
MR. KEMPF: I have a question to the Premier. Over three weeks ago, the Premier said that British Columbia was 24 hours away from an agreement with Ottawa with respect to a settlement on South Moresby. Last week he said the agreement in principle had been reached. My question: can the Premier share with this House that agreement in principle?
HON. MR. VANDER ZALM: Yes, Mr. Speaker. I'm glad the question was asked by the member for Omineca, because this has been troubling me as I am sure it's been troubling everyone. We've had negotiations in good faith with Ottawa for a number of weeks.
AN HON. MEMBER: Months.
HON. MR. VANDER ZALM: Months. Certainly during the last number of weeks especially we've seen considerable pressures from people who find their livelihood working in the woods on the Queen Charlottes and who see for themselves a great deal of uncertainty and wish to have some answers.
In Ottawa, a week ago, we went over the figures and basically came away with agreement in principle on what the figures were, though the application of them we weren't too sure about. I have to say now, however, that again today I'm not as certain as I was perhaps three or four days ago, and there appears to be a little bit of backtracking. So I intend to place a further call today or tomorrow to Ottawa — and we've had these communications ongoing — in order to determine if we really can't get this all pinned down once and for all.
Last week in Ottawa they assured us that they would have staff people out here on Monday and Tuesday — that's yesterday and today — to go over things and over the details. These people did not come. Instead the message was that they were still preparing a paper for cabinet.
We've got to get on with this. We can't leave all that uncertainty for the people of the Queen Charlotte Islands. I intend to pursue it, hon. member, more today, or failing that, certainly tomorrow, and to have an answer as quickly as possible; because Ottawa owes us, or owes it to the people working on the Queen Charlottes especially, that we get an answer soon.
MR. KEMPF: A supplementary question. The figure of $120 million has been suggested as a settlement with respect to the South Moresby situation. Has the Premier decided on that figure?
HON. MR. VANDER ZALM: It's not as simple as that, Mr. Speaker, to the hon. member. It's a little more complicated than that. It also involves a number of third parties that obviously the federal government would need to negotiate with.
One of the difficulties I have at the moment, quite frankly, is that it's always historically been the job of the federal government in establishing national parks to negotiate with third parties; and I think that's been so throughout the whole of Canada. I get the impression that perhaps we're becoming the exception in some respects if we didn't negotiate hard in this regard, and certainly we don't want to see that happen. The figures are not anything I can provide you with now, but it's simply a lot more complex than the quote you've given us,
MR. KEMPF: A supplementary, Mr. Speaker.
COMMITTEE STUDY OF BILL 19
MR. HARCOURT: I have a supplementary question that I was going to ask the Premier on my previous question. It will be very short. I know how the Premier and his colleagues are interested in making the committee system work, as the Premier has said, and a provincewide poll says that threequarters of British Columbians agree with the Premier. Mr. Premier, will you make a commitment to make the committees work and refer Bill 19 to a committee, as the people of British Columbia in the vast majority are asking?
[ Page 1657 ]
Interjections.
HON. MR. VANDER ZALM: I would like to respond to that question, but in fairness to the hon. member for Omineca, perhaps I should deal with a supplementary first.
SOUTH MORESBY NATIONAL PARK RESERVE
MR. KEMPF: Mr. Speaker, I thank the Premier.
Given the fact that in excess of $36 million in economic activity is generated yearly by logging Lyell Island, let alone the possibilities on the rest of South Moresby, that's $1.62 billion in the rotation period for Lyell Island alone. Given those facts, what has the Premier decided to ask the federal government in payment for South Moresby?
HON. MR. VANDER ZALM: Mr. Speaker, the figures that we are presently negotiating with the federal government obviously don't go as far as to provide compensation forever in return for any logging lost. We expect there will be further benefits that accrue to not only British Columbians but the nation and perhaps the world in establishing what would be a first-class world park.
I agree with the tone of the question, which would indicate that we too as British Columbians are again being asked to make a sacrifice in ensuring that a national park can be established. I think I can speak for most British Columbians when I say that I believe the people would be prepared to make some sacrifice in that regard. All we're saying to the federal government is that we are prepared to make some sacrifice; we recognize the sacrifice made by individuals presently employed there, and the sacrifice of people who have holdings or interests on South Moresby especially; we recognize that we'll not get repayment for all of that resource which could return to the province a considerable revenue over the years by way of stumpage or otherwise; but we do want a fair deal. And I underline "fair." There's no need for the federal government to try to squeeze this thing to the point where it's all give on the part of British Columbia. It has to be at least reasonably fair and fairly defensible.
COMMITTEE STUDY OF BILL 19
MR. HARCOURT: Mr. Speaker, the Premier said that he wants the committees of this Legislature to work. Almost three-quarters of British Columbians have said they too would like to see the committees work on Bill 19. Will the Premier refer Bill 19 to a committee of the House for further study?
SOME HON. MEMBERS: It's in committee.
MR. SPEAKER: Order, please.
HON. MR. VANDER ZALM: Mr. Speaker, I don't know whether I need to answer that; it seems that everyone here appears to have the answer already. But may I repeat what I hear everybody here saying: it is in committee of the House. And it's not just with a select group of the House but before the whole of the House, and therefore everyone can attend these committee meetings. I expect, hon. member, that you'll all be there in your place when committee starts, hopefully in only a few minutes, and that you'll remain.
MR. GABELMANN: Given the importance of the subject matter in Bil1 19, and given the importance of the debate that's now been going on for two weeks in this House, I wonder if the Premier would agree that his participation in this debate on occasion would also be worthwhile. We have yet to see him in this House during this debate.
HON. MR. VANDER ZALM: Let me say, Mr. Speaker, that above all the Premier is a good listener.
Orders of the Day
HON. MR. STRACHAN: Mr. Speaker, I call committee on Bill 19.
INDUSTRIAL RELATIONS REFORM ACT, 1987
(continued)
The House in committee on Bill 19; Mrs. Gran in the chair.
On section 39.
MADAM CHAIRMAN: Shall section 39 pass?
SOME HON. MEMBERS: Aye.
MR. MILLER: Madam Chairman, as usual I mostly hear from the back bench on the other side, "Aye," but very little else when it comes to debate on these.... We occasionally get a glimpse into the thinking that some members have when some of the back-benchers do stand up, as occurred just before the lunch break. The member for Columbia River (Mr. Crandall) clearly stated his opinion that people don't need protection from technological change, that it is not an issue in this province and that there is nothing for anybody to worry about.
I want to ask the minister what kind of work was undertaken by his ministry with regard to this subject. Before lunch I raised a number of issues that I thought were attendant on the issue of tech change: the displacement of workers; programs, that I believe are non-existent, for retraining assistance to those workers. I would like the minister to perhaps outline to the House the kind of work that his ministry has done regarding this issue, the impact of tech change on unemployment in British Columbia — perhaps profiles that he or his ministry may have done with respect to the kinds of workers who are displaced. Are they the older workers? Do they have difficulty in getting retraining? I would like him to briefly outline some of the programs that he has fostered in his ministry to deal with the problem of displaced workers — for example, early retirement....
[2:30]
MADAM CHAIRMAN: Hon. member, could I just interrupt for a second? Could we please have order in the House so that the Minister of Labour can hear the member who is currently speaking.
MR. MILLER: It is a bit surprising, Madam Chairman, that all this side discussion is going on, given the responses we received in question period with regard to the committee.
Just to restate the last part, are there any programs that his ministry or, indeed, the government may have developed
[ Page 1658 ]
with respect to assisting people who are caught in the squeeze? I am speaking particularly about programs for early retirement, programs for work-sharing and shorter work weeks, pension reform — anything of that nature that will give me some indication that the ministry has not simply dealt with the issue of tech change in an isolated manner, and brought in a clause or a definition that is more restrictive than the one that already exists under current legislation, which, in my opinion, doesn't really go far enough to address the problem.
HON. L. HANSON: I'm sure the member opposite realizes that training programs and those sorts of initiatives have been transferred from my ministry to the Minister of Advanced Education (Hon. S. Hagen), and I think it appropriate that he answer that question at some point.
We have spent some time, if you will, looking at the impact of technological change in British Columbia. It certainly has been a factor in some cases of unemployment, because of advances and improvements in production procedures. But we believe that the issue of unemployment in British Columbia is more related to a difficult economy than to technological change, although there is no doubt that in some instances it can be related to that. In most of the discussions I've had with various labour organizations, they have suggested that in the majority of cases technological change has been negotiated, to the best of the employer's and the employees' ability, to minimize the effects in each particular case where a recognizable difficulty arose. There is no doubt that some technological change — advancement in manufacturing procedures and so on — has been the cause of some disruption in the workplace. In most cases the negotiations that go on between the employer and his trade union have attempted to deal with those difficulties as they relate to loss of employment, retraining or restructuring into another position.
What we're dealing with here is, first of all, a requirement for notice in case of technological change, which we think is a considerable improvement. In section 41 — and I believe we agreed that we're addressing all three in the one debate — we have put on paper what we see as true technological change. There were charges earlier that it has to do with contracting out, but in our view it bears no relationship to the contracting out issue; they're two very different issues. In a number of the contracts where there have been negotiations into technological change, they've been very adequately dealt with to ensure that the minimum effect on the employee is laid out within the negotiated contract.
MR. MILLER: Given that answer, then, I'll go back and restate the question I asked initially: that is, given the further restrictions that you are now placing on the definition, the narrowness that you have put on it, would that not in fact act as an impediment when it comes to a trade union and negotiating with the company for protection? There are employees who previously would have been taken care of — or could have been taken care of — by the trade union negotiating with the employer; but now that you have narrowed the definition, you have excluded that group of employees, who are in fact left in limbo. Again I ask you why you would want to bring in a clause that would create that situation, that would exclude people, that would take away their protection or the opportunity for the trade union to negotiate some protection on their behalf. Why do you want to take them out of it?
HON. L. HANSON: First of all, I don't agree that we've taken that away. I think the ability to negotiate the collective agreement as it relates to changes in the workplace is still there and still well entrenched in the legislation. It's interesting to note that in all of our discussions with the B.C. Fed and various labour organizations as to this section of the Code, no concern was identified that it was a problem to organized labour.
MR. SIHOTA: I'm glad to see that the Premier is in the House. I guess he's burning a little bit. In fact, the matter came up during question period; now that he's going to be here, it would be nice to see the Premier get into the debate and talk a little bit about technological change. It would be interesting for all of us in this House to know what the Premier's concerns are about technological change, and whether or not he sees the provisions within the proposed legislation and the sections that we're debating — for the information of the Premier, we're debating sections 39, 40 and 41 — as dealing with the complex issue of technological change. I'm sure that all members of the House, including the Premier, would agree with me that technological change is certainly one of the most difficult issues facing society today. We are seeing a massive acceleration of technology, and the capability of that technology is overwhelming. As a function of that, there has been an increased displacement of workers in all occupations. An increasing number of workers are being declared redundant. Accordingly, there is a need to deal with not just the social problem of that, but also the economic problem vis-à-vis how it's dealt with in collective agreements between management and labour.
It seems to me, at least as a philosophical position — and I would hope, Madam Chairman, that the Premier and other members of the House would not disagree with this philosophical position — that if one is going to set up a tribunal to adjudicate on matters of technological change and to determine whether or not the technological change is legitimate or not, pursuant to the provisions of the act and collective agreements, i.e. that there are some circumstances where an employer will use technological change as a way not only to increase productivity, which is fine, but also as a way to displace and remove workers and avoid obligations under a collective agreement.... That is what historically we have tried to prevent through the provisions of the Labour Code and previous collective agreements. It therefore seems to me important that tribunals have a fair bit of leeway in determining whether or not the provisions of collective agreements have been violated.
There should be broad and liberal language within the legislation to ensure that a full and comprehensive inquiry can be made to make sure that the actions of the employer are legitimate, not illegitimate. That, I think, invites a definition of technological change which is broad. I think all of us on both sides of this House understand that technological change is not simply the introduction of new machinery or equipment. Technological change can be achieved in many other ways — for example, through the consolidation of operations; the acquisition of one operation by an employer to displace workers in another field; and for those.... The Premier says he's a good listener, so I suspect that he listened earlier on to the debate which took place with respect to British Columbia Telephone Co. and the way in which it has
[ Page 1659 ]
utilized and could have utilized the provisions of technological change to displace workers without any cost, under the proposed wording here in this section.
So I would like to hear from not just the Minister of Labour but the Premier whether or not he agrees in principle that the definition of technological change should be broad and expansive, so that a commission — in this case the Industrial Relations Council, if this legislation is passed — can have broad and extensive powers to investigate. Does the Premier think that technological change should...? And if he doesn't, you know.... The Premier is here, and of course we don't get a chance all that often to hear from him. I know that I'm bypassing the Minister of Labour, but it would be interesting to see whether or not the Premier agrees with the philosophical point of view that technological change can be accomplished in ways other than simply the introduction of machinery and equipment. I think it would be of benefit to all members of the House to hear what the Premier's got to say. If he doesn't want to get up, I'll continue on and talk about a couple of other points, but I think that he should embellish the House on this matter a bit.
HON. MR. VANDER ZALM: Madam Chairman, I just want to make a few general observations about what was spoken of in general by the member opposite.
Really, technological change has probably provided us with a higher standard of living in this part of the world, or for that matter probably throughout the whole of the world, than anything else. It's technological change that has given us the standard of living that we're enjoying today. So we shouldn't — and I'm sure the member agrees — discourage technological change.
We've seen over the years where it has become a problem with respect to an agreement. The unions and management have been, from experience, reasonable and things have worked out extremely well, and hopefully it will continue that way. But we as legislators can't begin to spell out what is or what isn't technological change, and I concur with the member in that observation as well. Nor can you somehow establish a committee to rule on this.
I think what we must do — and hopefully we can all agree upon that — is that we need to provide in our province an opportunity for industry to diversify, for us to see new opportunities develop in the manufacturing sector, in high tech, in mid-tech, so that in fact people will have that opportunity to benefit from technological change. With a diversity that we're wanting to develop and seeing already beginning to develop in British Columbia, we can provide a higher standard of living for people, we can certainly compete in the world marketplace, and we can provide the sort of security of employment that all people should be entitled to.
[2:45]
MR. SIHOTA: Those are interesting and very general words but not very generous, from the point of view of the Premier, as they pertain to the legislation that we're dealing with here.
Madam Chairman, everybody would agree that technological change is necessary to bring about productivity. But the Premier says that technological change cannot be defined. He obviously hasn't taken the time to read the legislation, because the legislation endeavours to do precisely that: to define what technological change is, and when it is, given that definition, that the board should intervene.
The government may say — the Premier may certainly say — that we want to get government off the backs of people; but if he's taken the time to read the provisions of the legislation that's before this House, the Premier would understand that the legislation now goes to the point where, under section 40, I believe, it allows for ministerial consent. So it's not a case of getting it off the backs of people.
The only issue is how it is that you turn around and provide people with the type of protection and job security that the Premier says he wants to provide for these people. It would be interesting to hear what the Premier philosophically feels about this. It seems to me that what the Premier is saying philosophically already in this House is a departure from what the Minister of Labour is trying to implement in this legislation.
It may be very clever on the part of the Premier, or at least he may think it to be clever, to try to talk in general terms about technological change. But how would the Premier define technological change? What does he consider technological change to be? Upon what basis would he consider it to be appropriate for the minister to withhold his consent or to grant his consent in cases of technological change? Or does the Premier feel that all these matters are above and beyond him and not matters of consideration for him? It would be interesting for members of this House to hear a little bit more about what the Premier has to say, not in general terms about technological change, but how it pertains to collective agreements.
I hope the Premier is now reading the definition of technological change and realizes that indeed, yes, a definition of technological change has been provided in this act, much as it is under the current Labour Code. Given the fact that it is defined, perhaps the Premier could indicate to this House what flaws he sees in the original definition. It's not good enough for the Premier simply to make some general comments. We on this side of the House would like to see full, active and intelligent participation from the Premier with respect to these sections –– 39, 40 and 4 1. We don't want to hear just general comments, but something specific as it relates to the sections in question; something specific in terms of when it is and on what terms "technological change" ought to pass and in what terms the provisions of the collective agreement should apply.
Regrettably, I have to attend an interview, so I'm going to leave it to my colleagues. But I hope when I return in about 20 minutes' time the Premier will be in the middle of embellishing his views on technological change, as to how it relates to collective agreements, instead of providing us with the general comments that he has.
Madam Chairman, for the time being those are my comments on the matter.
Interjections.
MR. SIHOTA: I don't know. Is the Premier going to speak, or is he trying to conduct his office business in the Legislature on the pretext that he's here during the course of debate?
MADAM CHAIRMAN: Order, hon. member. Those comments are out of order.
MR. JANSEN: Madam Chairman, the members opposite have talked about the problems of technological change.
[ Page 1660 ]
They are indeed problems of society. I don't think a day goes by when we don't pick up the newspaper or hear a radio broadcast talking about the modernization of a company or an upgrading of a particular firm. It happens regularly.
Companies recognize that in order for them to be competitive and to supply jobs, they must go through a modernization program. They must upgrade their equipment regularly. Not only will that provide more jobs, Madam Chairman, but it also gives employee satisfaction, in that employees could be assigned more productive tasks than some of the mundane duties that automation fulfils.
In our tour throughout the province, we heard the need for us to address the problems of technological change. Time and time again the unions brought forward the position. People employed in the workplace brought forward positions requesting this government to address the needs of technological change. It is a problem in their society; it is a need that we have to address.
I'm a little concerned that perhaps the members opposite are not really reading the sections and understanding what the intent is. We have expanded the definition of technological change. We've added the words "method or procedure," so not only is it the manner, it's also the method or procedure. We have expanded and gone beyond the scope of what was normally defined in the Labour Code in 1973. We've also added sections that would include the intervention of the minister.
[Mr. Pelton in the chair.]
I'm having some difficulty understanding.... I'm sorry the member left who had the great dissertation. I'm concerned that we are not really concentrating on the intent of the legislation, understanding it, but we seem to be wandering in our debates. I'm wondering if we could concentrate on these sections, and through constructive debate resolve the differences and understand the problems.
We're talking about the definition of technological change. I have been involved in employee-employer relations, and technological change is probably the most difficult thing to define in specific terms. Section 41 defines technological change as "a change in the manner, method or procedure in which the employer carries on his work." That is perhaps the most general term that one could use. Yet the members opposite are making statements that our definition has become more constrictive.
I would suggest, Mr. Chairman, that the legislation and the changes being put forward in this House expand the definition of technological change and will assist the union movement, and assist unions in negotiating agreements dealing with this very difficult issue.
We've also heard that employees are displaced as a result of technological change. I have through my own company, and through my own business career, seen much technological change. Many times — in fact, all times — I have experienced that it has been advantageous to the company or to the concern, has assisted the employees in being more productive, has given more job satisfaction and has assisted the company or the concern to be more productive and more efficient in its work methods.
Usually, as the member here indicated, we find that firms add people to the payroll rather than reduce people from the payroll. So I sit here in the House, I listen to the debate, and I appeal to the members opposite to become specific in their concerns — to talk, rather than in generalities, about the specific sections that concern them, and to read them in the context of the 1973 Labour Code.
Perhaps you don't have a copy of the old Labour Code. Take it; the Minister of Labour can supply you with a copy of that Labour Code. Maybe you could compare that to Bill 19, add to it, and understand that, indeed, we are assisting and expanding and helping to understand the original intent. I hope that we will carry on with constructive debate and conclude the discussion on these particular sections.
MS. SMALLWOOD: First of all, clarification from the Chair that we are still debating the three sections at one time.
MR. CHAIRMAN: That was the agreement made this morning, hon. member, and it still stands.
MS. SMALLWOOD: I'd like to also make the comment that I won't be responding to the previous speaker, but there are members on this side who are anxious to do so, so I am hoping that the previous speaker will stay.
I would like pursue the comment made earlier by the member in addressing his concerns to the Premier. If the Premier would be good enough to follow up on some of those concerns, I'd like to elaborate a little bit on them. What we heard earlier from the Minister of Labour is that, first of all, he agrees that there are some implications of tech change that relate directly to the downturn in our economy. What he is saying is that among the large numbers of people that are unemployed in this province, there are many who will never go back to their jobs. They will never go back to their jobs because their jobs don't exist anymore.
Several years ago in this province the numbers were something like 3,000 people in the forest industry that had been displaced because of technological change. In addition to that, in the previous year we saw a situation where there was a prolonged strike in this province, and the forest industry was again in a situation of being able to keep the production levels up while employing not only 3,000 fewer people due to that technological change, but 1,400 fewer people due to that management-labour dispute.
I'm very sorry that the Premier has seen fit to leave the House. Perhaps it's because the press gallery is no longer peeking over the partition there paying attention to whether or not the Premier is in this House. So I will direct my comments, instead of to the Premier, to the Labour minister and ask him to tell us if indeed he acknowledges that there is an impact on the economy due to technological change. If there are larger numbers of people unemployed because of technological advances, why it is that the minister saw fit to delete from the previous Labour Code provisions for retraining and severance pay?
Those two items in particular will begin to address the issues of distribution of income. They will begin to deal with the issues at hand, where we have people unemployed in this province receiving no income and no benefit after giving long years of hard work, and a company or a whole industry reaping extra profit because of their ability to do away with those jobs.
HON. L. HANSON: I'm not sure if I understood you correctly. You're suggesting that in the legislation before there was a requirement for retraining and so on? I don't think that's....
[ Page 1661 ]
MR. CHAIRMAN: Sorry, minister. Did you want clarification? The member for Surrey-Guildford-Whalley.
MS. SMALLWOOD: In the Labour Code, section 74, in the first subsection, it deals with the provisions. There are three subsections: (a), (b) and (c). Of those provisions, it talks about notice by an employer of intention to introduce technological change, opportunities for retraining or transfer of employees, and severance wages of employees displaced by technological change. Those are the provisions I'm referring to.
HON. L. HANSON: Thank you very much for that clarification. I'd like to point out that the original wording in the Code said:
"...of all disputes relating to adjustment to technological change, which may include provisions for (a) notice by an employer of intention to introduce technological change; (b) opportunities for retraining or transfer of employees; and (c) severance wages of employees displaced by the technological change, or another method agreed to of all disputes relating to adjustment to technological change."
I don't think that was ever interpreted as saying that there was a requirement for a certain period or a certain amount of wages. Those were left to the discretion of the bargaining committees as they negotiated their agreements. The definition of technological change usually triggered a provision in the agreement, quite often an arbitration provision. What we're saying here is that there's a requirement to give notice to the employees in the case — the nature of the change, etc., and you've all read that as it's laid out here.
[3:00]
There's no reason why the parties can't still put into their agreement whatever they consider to be relevant to technological change — in other words, notice, pay, retraining, or whatever the case may be. In the definition of technological change, we've spelled out what we believe the board should use for its basis of interpreting the definition. That's not to say that if there are layoffs for lack of work or whatever the case may be, those items are not to be negotiated into the contract between the employer and the employees. We're not dealing with that issue. There's no reason why that shouldn't be negotiated and the parties encouraged to do that voluntarily on their own.
MS. SMALLWOOD: Further clarification in the context of the total bill. It has been recognized in earlier debate that what this bill does is make it more difficult for unions to negotiate contracts, because all of the power for them to negotiate has been essentially taken away by this bill. What you are telling us on this particular section on technological change is that the government's participation in this process eliminates the government's option to instruct or suggest to the two bodies that they involve themselves in training or severance negotiations. The government, by deleting that, is now saying the issue is that the employer will give notice. The government is more or less saying: "You don't have to train these people. You don't have any obligation to these people. You don't have any obligation to share the profits that you will make in introducing technological change by dealing with a severance package." Quite clearly, and the point has to be made, the previous bill was extremely weak and did not give enough attention to these issues, but the government is further watering down the situation by saying that you don't have to deal with any of that: the only thing that you deal with is notice. What the government is doing is facilitating the laying off of workers in this province. Would the minister like to make comment?
HON. L. HANSON: My comment will be very short. I don't agree with that interpretation at all.
MS. SMALLWOOD: I would like to ask the minister a further question about the contract clauses that are already negotiated in this province with regard to technological change. Several speakers spoke earlier about the impact of technological change on the industrial sector in this province. They talked about the fight that unions have had to put contract language in place to deal with the impact of technological change in their workplace. There has been a lot of work done by the trade union movement in this province analyzing that impact and trying to deal in a meaningful way with the impact of technological change.
Can the minister tell us if existing contracts will be influenced by sections 39 to 41? Will existing contracts that have been negotiated be affected by this legislation?
HON. L. HANSON: I would point out that the provision in the old Code still remains.
"This section does not apply to an employer and a bargaining agent who are bound by a collective agreement where the collective agreement contains provisions that (a) are intended to assist employees by a technological change to adjust to the effects of the technological change, and (b) specify that this section does not apply, during the term of the collective agreement, to the employer and the bargaining agent."
So ones that are already negotiated are....
MS. SMALLWOOD: Again, on a point of clarification, my understanding through legal advice is that if there is no mention in those contract clauses that those contracts are superior, indeed this bill will take precedence, and that because there was no hint that Bill 19 was even on the horizon or that these changes were on the horizon, there is nowhere in tech-change clauses in this province where it is specified that those clauses will have precedence over other legislation. If that is so, would the minister not agree that in essence what he is doing is wiping out all the history and all the work that union-management negotiating teams have done on issues of tech change in this province?
HON. L. HANSON: The answer is no. The number of agreements that have tech-change employment security in them now — as a percent — is 69, and they cover 78 percent of the employees. I think what we are saying in here is that there is no disagreement with those negotiated agreements between management and labour. They will stay in place. They won't disappear.
MS. SMALLWOOD: If I understand the minister's comment correctly, he did not say that this bill would take precedence. He said that there is no conflict between existing clauses and this bill. Is the minister saying that all of the tech-change clauses that are now in place in this province are compatible with this legislation, that they are the same, that they don't provide additional protection in any way?
[ Page 1662 ]
HON. L. HANSON: Really, I don't see any problem. I mentioned earlier that subsection (4) — "This...does not apply to an employer and a bargaining agent who are bound by a collective agreement" — will be gradually phased in to the contracts. But I don't see a conflict there at all.
MR. GABELMANN: Just for a moment — because I know the member for Prince Rupert (Mr. Miller) wants to have a debate with the member for, I think, Chilliwack — I want to go back to 74(3), using the Code numbers, just to see if I can clarify it, because I am not sure that I understood that the minister understood the member for Surrey-Guildford-Whalley. It says: "This section does not apply" — and this is what the minister was saying, I think — "to an employer and a bargaining agent who are bound by a collective agreement where the collective agreement contains provisions that (a) are intended to assist employees...and (b) specify that this section does not apply, during the term of the collective agreement...." How can any collective agreement in British Columbia now in existence specify that this section does not apply, when this section does not exist? I think that is part of the question, at least.
HON. L. HANSON: But it will exist; the law will come into effect.
MR. GABELMANN: Mr. Chairman, what happens if you are in the first year of a five-year agreement? You have to wait for four years before you can negotiate language to protect yourself. That's theoretical; there aren't many five-year agreements around anymore. But theoretically that is a potential. But more typically you may be in the middle of a three-year agreement. Presumably this section is proclaimed in the summer sometime. You've got a year and a half left on your agreement. How, if the employer is not keen on reopening the agreement voluntarily in the middle of its term, do you get a specification that this section does not apply? You can't, so you've got a gap.
So the least we can expect in respect of these changes is that the minister would agree that no proclamation would take place of these sections until everyone out there has had an opportunity to negotiate language based on the new law. That would be a minimum requirement that I think we would expect from the minister in terms of assurance.
MR. MILLER: I don't want this issue to be forgotten. We'll come back to it, because I think it's.... It may not be a major issue, but it's certainly a matter that has to be clarified for those companies and unions that currently have contracts dealing with technological change, because clearly the act, as the minister is proposing, would state that unless the contract has language that exempts them from the provisions of the act, the act applies. So that's an issue that has to be dealt with.
Getting back to the member for Chilliwack (Mr. Jansen) in terms of his, I thought, reasoned — or at least reasonably stated — position, and his contention that in fact the amendments broaden the definition, I'd like first of all to attempt to show that they don't. And if the member was making his statement in support of the bill, based on his belief that the act indeed broadened the definition, I would hope that the member, if I can convince him that that's not the case, would not support this section of the bill, because in my opinion it narrows.
When you're dealing with three sections, although they are linked — in fact, inextricably linked.... I'll get to how that happened, too, in terms of arbitration and the new powers that the minister wants to put in, in terms of him becoming the person who decides whether or not a matter under 76(l) can proceed to arbitration. But dealing first with the definition of tech change, the existing wording is in two parts, as is the new; I'll read the old part first:
"(a) the introduction by an employer of a change in his work, undertaking or business, or a change in his equipment or material from the equipment or material previously used by the employer in his work, undertaking or business; or
"(b) a change in the manner an employer carries on his work, undertaking or business related to the introduction of that equipment or material."
The new definition specifically narrows the question to the introduction of material or equipment:
"(a) the introduction by an employer into his work, undertaking or business of equipment or material of a different nature or kind than that previously used by the employer in that work, undertaking or business...."
Now I get to the clause that the member for Chilliwack cited in defence of his contention that the clause expands the definition of tech change, and that's under (b). This is what he said:
"...a change in the manner, method or procedure...."
Without reading on, he interpreted that to be an expansive definition. Well, read on:
"...in which the employer carries on his work, undertaking or business that is related to the introduction of that equipment or material."
Now I think it's fairly clear that the change being proposed is narrower; it's more restrictive in terms of defining what technological change is. My contention is that the Eurocan decision, which the minister claims to know nothing about but which is an important decision.... The board essentially decided that in the Eurocan pulp mill, where they closed down the wood room and started to bring the fibre in in the form of chips, that constituted a technological change. Under the new definition, the council would not be able to draw that interpretation.
[3:15]
That brings us over to the other sections that we're debating. Where a matter is in dispute — that is, where there is a dispute about technological change, including whether or not technological change has taken place — that matter can be referred to an arbitration board. The arbitration board has to look at the whole history of what other arbitration boards have done in deciding those questions; it has to look at the change in wording. Therefore that arbitration board has had its scope narrowed in terms of dealing with whether or not technological change has taken place.
Further, under section 77 of the legislation, it used to read: "The arbitration board under section 76(l) may recommend the minister appoint a special officer under Part 7 to resolve the matter, or, in its sole discretion...." The arbitration board, in its sole discretion, had the power to order that the parties commence collective bargaining on an issue. That has been changed. The "sole discretion" of the arbitration board has been removed and replaced with "with the written consent of the minister." So we're no longer saying
[ Page 1663 ]
that an arbitration board, duly constituted under the act and dealing with a matter of importance to the parties, that used to have the power to simply order the parties to commence collective bargaining.... That's been taken away from the arbitration board. Now it requires the written consent of the minister.
I hope that I've been able to.... We haven't yet resolved the question of the implementation or the opting out, if you like, of the clause as it applies to current contracts. Certainly my feeling is that when government introduces standards — for example, the employment standards branch — in terms of minimum wages, minimum conditions, holidays and all the rest of it, they should always be considered a benchmark. I understand the government has even moved away from that, and it seems to me that the resolve of that issue is that this be a benchmark. In other words, if a company and a union have a clause that is substandard to the clause that the minister is proposing, this clause should apply, and if they have one that's superior, then their own should apply. That seems to me a better way of working it out, but I understand the government has moved away from that principle with respect to the labour standards act and may not want to embrace it with regard to this.
Anyway, I've tried to cover the ground; I've tried to show the member for Chilliwack where I quite honestly feel.... And I think it's irrefutable. The evidence that we have from other sources, who are familiar with these matters and have dealt extensively in these jurisdictions, specifically cites the Eurocan case as being the kind of main reference that should be used in deciding whether or not the changes are good or bad, or expansive or in fact narrowing. That advice, to me, is that the proposal narrows the definition.
Therefore, given the weight of evidence that exists — and the member may want to satisfy his own curiosity in that regard; he may want to consult those references that I have cited — would he not agree, if the intent of the proposed amendment is to narrow rather than broaden, and he stood and defended it on the basis that it expanded, that it broadened, that he would equally do well to stand in his place and oppose it on the basis that it doesn't do what he thought it would?
MR. JANSEN: I thank the member opposite for his good explanation, in one sense, in regard to section 41. I guess the problem that I have, and where this side of the House is somewhat different from the general approach on the other side of the House, is one of looking at things in a positive way. The member who spoke before — the member for Surrey-Guildford-Whalley (Ms. Smallwood) — made a statement that we have taken the power to negotiate agreements away from unions. A statement like that reflects the general philosophy, unfortunately, of the other side of the House. As a result, Mr. Chairman, they are looking at these sections with coloured glasses that do not have the words "positive thinking" inscribed in their context.
Mr. Chairman, I read section 41(b) in a far different manner than the member who just spoke. I look at it from the context that technological change.... If every member of this House were asked to define what technological change is, I think we would get every member providing a different definition. It's a difficult subject, and it's one that we have to apply rational thinking to in order to derive a good legislative proposal. Indeed, Bill 19 does that.
But section 41(b) talks about the introduction of that equipment or material as being the instigating factor in looking at technological change, and it talks also about "the manner, method or procedure.... related to the introduction of that equipment or material." I fail to understand how, by looking at that section, one can have a different perspective than to assume that technological change results, on the basis of the introduction of equipment or material. That is the only way, Mr. Chairman, that that particular change could happen in the workplace.
To reiterate my position, I appreciate very much the different viewpoint expressed by members of the opposite side, but certainly recognize that my definition and the one shared by this side of the House looks at section 41(b) in a constructive way, and recognizes that from the employees' standpoint, this is indeed a good section to have in Bill 19.
MR. MILLER: We're slowly, slowly wading into this section; maybe we'll get to the other side and we'll all understand it a little better.
I want to cite for the member who talks about looking at the world through glasses of one hue or another.... Of course, coming from Prince Rupert, we tend to rely on the naked eye. We don't really have any use for those sunscreens, whether they're rose-coloured or whatever. I want to cite a reference from a firm that, I presume, looks at the world through the same colour of glasses that the member does: the law firm of Russell and DuMoulin, who I believe share your political views and do have a bit more experience when it comes to dealing with the issue at hand.
In an explanatory note.... I'll read it. "The provisions in the Code dealing with technological change, sections 74 through 78, have been extensively amended by sections 39 to 41 of Bill 19." It goes on at some length:
"The definition of technological change in section 78 of the Code has been narrowed from that which previously existed, as interpreted in Eurocan Pulp and Paper Co. Ltd. and the Canadian Paperworkers' Union, Local 398, 1983, 2 CLRBR, (NS) 292. A technological change no longer applies to any introduction by an employer of a change in his work, undertaking or business, and is now restricted to a change in the employer's work, undertaking or business related to the introduction of equipment or material of a different nature or kind than that previously used by the employer."
Mr. Member, that is an irrefutable reference, which says that you're wrong, from a source that agrees with your politics 100 percent.
I again put the question: if you honestly stood up and supported this on the basis that it was expansive.... Never mind the political rhetoric about sunglasses, or anything else, or about being positive or negative; I think we can throw that kind of rhetoric out of this debate, since there was some reference earlier to this committee stage being the place where we really get into the meat of the proposed changes. Certainly on our side of the House we've tried to do that. I suppose that any time you stand and question what is being proposed, it may be fairly easy for some members on the opposite side to very simplistically characterize that as negative. I choose to think that we're doing our job; that we're honestly trying to dig out the true intent, the impact and the implications of all of these changes. It's for that reason that I'm reluctant to simply say that, well, you know, people don't
[ Page 1664 ]
want to listen, and therefore I'm not going to put any arguments. I'll continue to try to make the arguments. I think I've made them again logically.
The reference that I've cited clearly backs me up: the proposed change is narrowing. Why we want to narrow the opportunity to protect workers in this province who are going to be displaced, or may be displaced, by technological change I don't know. I've yet to hear a plausible, logical explanation from any source on the other side as to why we want to be more restrictive. I would be happy if someone would stand up and say why they want to do it, other than that we have a difference of opinion.
I'm prepared to sit and hopefully listen to some constructive reasons on the other side. If indeed this committee stage serves any purpose, and we're simply not sitting here protecting our political biases, but we're prepared to engage in honest debate, I'd love to hear it.
MS. SMALLWOOD: I'm beginning to understand a little of the frustration some of my colleagues have undergone in the last week. I find it incredibly frustrating and a little aggravating, to say the least, when we don't get responses to genuine questions, questions that are at the basis of the whole meaning of these three clauses. In addition to that, the Premier, who is out throughout the province speaking to reporters and on radio and TV and stirring up trouble, hasn't even got the decency to stay here and answer any questions either.
I want to continue questioning the Labour minister on the issue of the effect on existing technological-change contracts. This issue is not a small issue. In particular it is certainly not a small issue to the women of this province. What we have seen here in this province is the trade union movement trying to deal with the impact of technological change in the workforce, trying to learn about this new wave of industrial activity, trying to understand its impact on an international basis. I say that because technological change is not a local, regional or provincial issue; this is an issue that is affecting every place on this planet. All of the work that has gone on over this long period of time to develop technological-change clauses in the contracts, to negotiate them, to come to agreements, all of the work that has been disrupted because, as the minister says, he acknowledges that technological change has caused disruption in this province, is going to be wiped out by section 39, which specifically says that if in those technological-change clauses they do not indicate that they are superior, that they take precedence, that indeed Bill 19 — this clause — will take precedence. What that means to the women of this province is that technological change will now hit the service sector harder than it has hit the industrial sector, by numbers alone, and we will not have the benefit of all of that work that has gone on.
[3:30]
The only way we will reap the benefit of the work that the trade union movement has undergone is if they, by some fluke under Bill 19, can renegotiate and protect the clauses that they already have in place. What I am saying to the minister is that Bill 19 makes it impossible for them to do that. They no longer have the tools to do the job. They no longer can go through that process that is necessary to negotiate those clauses back again.
[Mr. Weisgerber in the chair.]
So again, that will mean to the women in the service sector that they're going to have to start at square one. They're going to have to start not only at square one but with an increased handicap, because they will not have the tools either. They will not be able to fight the fight that their brothers fought in the industrial unions.
I'd like to hear from the minister, because he has said that he recognizes that technological change does have significant impact on this province. I'd like to understand why it is that, number one, he's wiping out all of the other negotiated clauses on technological change. I'd like to understand why he chooses notice instead of severance negotiations and training. For me, those issues make it incredibly clear that on balance in this clause the minister is out there to help create unemployment.
HON. L. HANSON: I do have some difficulty in understanding. If there is an existing agreement that says, as an example, 120 days' notice is required, that won't be struck out by this legislation in terms of technological change. If there is an agreement in place, and if you are referring to subsection (4), there is certainly nothing wrong with a letter of understanding that in fact does specify that this section does not apply. I really fail to.... I just can't visualize in my mind the dire predictions that you are making as a result of this.
MS. SMALLWOOD: It was very difficult to hear the minister's comments. Did the minister just say that he does not understand how I can draw the conclusion that technological clauses will be wiped out? That was the minister's point, was it? Was that what the minister said? Yes? Okay. If I can draw the minister's attention to section 39(4)(b). There it says — I'll start with (4): "This section does not apply to an employer and a bargaining agent who are bound by a collective agreement where the collective agreement contains provisions that" — and then on to (b) — "specify that this section does not apply, during the term of the collective agreement, to the employer and the bargaining agent."
How is it possible that any negotiated technological-change clause in this province could specify that? They never knew that this clause in Bill 19 was coming? If they did not specify it, then, the way I read this, it says that this section of the act, this amendment, will prevail; this section will overrule existing clauses.
HON. L. HANSON: Well, I guess I confuse very easily, Mr. Chairman. I think that if you are reading (4), it says: "This section does not apply to an employer" — does not apply to an employer — "and a bargaining agent who are bound by a collective agreement where the collective agreement contains provisions that (a) are intended to assist employees affected by technological change to adjust to the effects of the technological change, and (b) specify that this section does not apply, during the term of the collective agreement...." You can't go right to (b), because they are conjunctive.
MR. SIHOTA: I am just trying to resolve this apparent lack of communication, because there are certain other things that I want to talk about. But as I read that section, I think the member for Surrey-Guildford-Whalley does have a point. Like I have said in the past, I don't always have a monopoly on being right, nor do I expect the minister does either on
[ Page 1665 ]
these matters. That is why I am always hopeful of amendments.
Subsections (4)(a) and (b) are linked together by the word "and," and therefore you must satisfy both (a) and (b) in order to work around the legislation, if I can put it that way. Let's assume for the sake of argument that there is no problem with (a); (b) says that the collective agreement must specify that section 39 of this legislation does not apply. What the member for Surrey-Guildford-Whalley is saying is that it would have been impossible for anybody when they were drafting up their collective agreement to contemplate that this legislation would be coming before the House; therefore they would not have been able to draft in a reference to section 39 in order to satisfy clause (4)(b), unless there is a saving provision elsewhere.
There may well be a saving provision. I guess really the question is: is there or is there not a saving provision? If there isn't, then I don't quite understand how it is that parties, during the course of their negotiations, could have specified that section 39 of this legislation doesn't pass, because they would not have known that this legislation and that section were forthcoming. The real question is: is there a saving clause in there? I must confess I just picked up the point now from the member. I haven't had a chance to read sections 40 and 41 with this question in mind. Perhaps the minister could address that issue and just tell us where there is a saving provision.
HON. L. HANSON: I think the answer to that is that a very simple memorandum of agreement would cover the issue, if the two parties agree.
MR. SIHOTA: I agree; that's the simple answer to the question, in that the parties would have to sit down and agree between themselves to draft an agreement to amend the agreement — or memo of understanding. I agree with that. There is no doubt about that, so long as the will is there on the part of both parties to do that.
But then, I think, the point just made by the member for Surrey-Guildford-Whalley (Ms. Smallwood) technically stands, within the language of the section. Until that type of a memorandum of agreement was drafted, the technological change provisions in every collective agreement would be void. Does the minister agree that technically the member for Surrey-Guildford-Whalley is quite correct in making that point? If she is, then I want to deal with the question of the memorandum of agreement and whether or not one could rationally expect the parties to draft it in light of the fact that this may tilt the balance. But I'll leave it at that, I think, for the benefit of the member, because I don't want to step in and take away the point that she was making. Would the minister agree that technically she is quite correct, in that it would void every agreement until such time as a separate memorandum of agreement was executed — or a contract?
HON. L. HANSON: No, I don't agree that technically she is correct. What I have difficulty understanding is what the problem really is as between an existing agreement and the section 39 provision. If I had some example.... Are you suggesting there are clauses that are so much better than this that they wouldn't be accepted? I think that they are covered by this.
MS. SMALLWOOD: I think that the point has been made, and I'm going to take it that the minister has agreed that, indeed, I was correct technically, that this could be the situation, because the last response the minister gave was that he couldn't understand how a contract out there might be better than this one, and therefore he didn't understand where there could be a problem.
MR. R. FRASER: That's not what he said.
MS. SMALLWOOD: That most certainly is what he said. I think the point is. whether it is better or not, that the government, by its actions here, is wiping out all the technological change contracts, Even if we're talking about a memorandum of agreement here, they're still in a situation influenced by Bill 19, whereby the balance of power has changed significantly. Standing here, I cannot understand why any employer in this province would negotiate in good faith.
MR. SIHOTA: I guess I want to just drive this point home, just to add to what the member for Surrey-Guildford-Whalley just said. I don't think there could possibly be any dispute, in light of the language and the answer the minister has given, that, technically speaking, every agreement is void, because it may satisfy (4) and (4)(a) but it won't satisfy (4)(b) until, as the minister says — and unless, as I say — a memorandum of agreement is executed.
But that, then, raises the next question. Why would someone who benefits from this legislative....? If I'm wrong — and I see people over there nodding as if I'm wrong — could someone please explain to me where I am wrong in that interpretation? Is it not correct that technically every agreement would be void because there is no way they could have specified that this section does not apply? Perhaps the minister could explain where it is that we're wrong. As I said, there may be a saving provision, and I confessed earlier on that I hadn't gone through sections 39, 40 and 41 with a mind to address this issue; but technically I can't see how anybody could specify that this section 39 does not apply, because they would not have known it existed.
Interjection.
MR. SIHOTA: The first member for Vancouver South (Mr. R. Fraser) — who is not in his seat — is quite correct in saying that it doesn't apply, in that subsection (4)(b) does not apply; therefore section 39, the language in here, does apply. The problem that raises.... If I were party to an agreement — without saying if I was an employer or an employee; the member for Vancouver South should know that I have played both roles — and I stood to benefit from this section 39, I'm not too sure I'd want to sign that memorandum of agreement, which the minister says is necessary to breathe life into clause 39(b).
I see everybody nodding as if I and the member for Surrey-Guildford-Whalley are wrong, and perhaps they could point out where it is. I see the minister's advisers are underlining sections for him, so I'll try to find the same ones. Would the minister please tell us where it is that one gets around that? I think a simple saving clause would do.
Is the minister not prepared to answer that? Or is he simply agreeing that we're right?
[3:45]
[ Page 1666 ]
HON. L. HANSON: Mr. Chairman, we can sit here and argue this for the next two days on that technical point. My advisers tell me that that isn't true. You tell me that it is true. I believe that it's a non-issue, and that the jurisprudence of the board will deal with situations like that in a fair and reasonable manner, looking at the intent of the section.
MS. SMALLWOOD: I'd like to point out to the minister what a non-issue this is. The minister earlier told us that the reason he has deleted issues of training and severance pay is because the government shouldn't be involved in this, but that the employer and the union should negotiate those issues, and that he had all the confidence in the two bodies that they would do this. If the minister has wiped out all of the technological-change clauses that now exist in this province, he has wiped out any provisions for training, any provisions for severance pay, and I'm sure the list is much longer than what is right before us now.
MR. LOVICK: It seems, Mr. Chairman, that the minister chooses to take a vow of silence on occasion, and perhaps for the reason that he finds our language inflammatory, or some such thing. So let me try this in a lower-key way. Will the minister agree with us that the only way that people who have existing tech-change contracts and benefits in those tech-change contracts freely negotiated with their employers can have those things preserved intact is by signing a new memorandum of agreement or a contract, because of clause (4)(b)? Will he agree with that conclusion?
Okay. Mr. Chairman, I'm detecting the minister is saying no, we are in error. Well, that's the fundamental point, Mr. Chairman, because we are suggesting we are not in error. We are simply reading plain English, and the reason again is very simply that at the end of clause (a) is a word that says "and," and the word "and" says that all contracts must indeed specify that this section does not apply during the term of.... Wait a second. Have I got the right spot?
AN HON. MEMBER: (4)(b).
MR. LOVICK: Yes, (4)(b): "...does not apply, during the term of the collective agreement, to the employer and the bargaining agent." Again, this section does not now exist in all those contracts. How then can it be otherwise than to say that every contract that has a tech-change agreement has to get a memorandum of agreement to accept the wording and the legislation of the new law? Logically it can't be otherwise. And you may choose to call that a technicality, Mr. Minister, but I assure you that my colleagues and I are going to continue to pose that question, or a variant of it, until we get an answer, because clearly this does precisely what my colleague the member for Surrey-Guildford-Whalley has called "wiping out" all those other tech-change agreements. Now that may be language that offends the minister, but the reality is that none of those contracts have any impact or force in law, given (4)(b), and unless and until we can have a very clear description that we are in error and that somehow we lack the ability to read plain English, then we have no choice but to stand here and continue to make that point.
I hope I have explained the concern that we have, and I hope the minister will indeed respond to that concern.
MR. SIHOTA: The minister knows that I and several others on this side of the House, and on that side of the House, have gone through this debate right from the beginning, and I think today is sort of indicative of what often occurs. We saw this morning a number of sections go through fairly quickly, and I think that things were fairly cool. They were probably kind of hot yesterday when we wrapped up at 6 o'clock. Thankfully we don't have night sittings, because I think things would just get hotter. But we took a break yesterday, everything cooled down, we started off this morning and we started to work through various sections, and I think it's fair to say that we managed to work through those sections fairly quickly. Toward the end of the morning we got on to this section and, as the debate in this section has gone on since 11 o'clock this morning, things have got hotter and hotter and we're once again following the same pattern that we seemed to be following every other day, that by 6 o'clock things are fairly hot in here.
I think both of us agree that that's not necessarily the way it should be. And I think both of us agree that I'm perhaps the worst person to be standing up and saying that, because I've been known more than once to show my frustration on these sections. But again, if you want to talk about the psychology of this debate, we're just going through again that very process. The reason why things get somewhat ill-tempered in here, and the reason why people get a little frustrated.... I really want to emphasize the point that our leader was making a little earlier on during question period about trying to change the tone of debate in this Legislature.
I don't think it's any threat to the minister to admit that yes, technically there appears to be an error here. I don't think that the whole government is going to fall on an acknowledgment that perhaps there's been an error here. I don't think anybody looks at it that way. But when someone is in the middle of making a point, as the member for Surrey-Guildford-Whalley was about 25 or 30 minutes ago when we went off on this tangent, and the making of that point is interrupted by a disagreement over an assumption, in this case whether or not all technological-change clauses are deemed to be void by the wording of this section, and when that assumption is called into question, she tried to explain how it was that she arrived at that conclusion.
I don't necessarily need to defend the member, and please don't interpret my comments that way. But the point was that we then try to explain how it was that that assumption was arrived at. That assumption was arrived at by simply reading the section in a commonsense way and then asking the minister whether that interpretation was correct or not. When we started the debate on this, and when I first entered it, I made the point that I acknowledged that I don't always have the monopoly on being right all the time, nor does the minister. I'm sure that's going to surprise our learned House Leader, who is now in shock after hearing that comment.
All we're asking is that the minister acknowledge that yes, in this case, the opposition has a point; that if you read this section, it renders every technological-change clause void, because it cannot possibly.... If I was an employer last year, representing my law office, and I entered into a collective agreement with my employees, and we had a tech-change clause in there, there's no way that I would have known that this bill was going to be introduced and this section was going to be here. If I had a crystal ball that was exact enough to predict the government was going to bring down Bill 19, it certainly would not have been precise enough to say that section 39 would have existed in this language, nor would it have been precise enough to say that "pursuant to
[ Page 1667 ]
subsection (4)(b) of section 39, the employer and the employee herewith agree that the said section does not apply." We would not have contemplated that type of section. In light of the fact that we would not have contemplated it, then clearly, given the wording of this section, this section would not have applied. Therefore we would have been caught by the language of the act, as opposed to the language of our collective agreement that we negotiated.
Like I said, the member for Surrey-Guildford-Whalley surely doesn't need to be defended by me, and I'm not trying to do that. But I think she was in the middle of making a point. Her assumption was called into question, and all we're asking is that the minister acknowledge that. It's not the kind of point that's going to bring down the government, but it will certainly bring down the temperature in here. If the minister will just acknowledge yes, we are wrong in our interpretation of it; or alternatively, if he could point to a savings clause, which proves that the interpretation we're putting forward is incorrect. But if it isn't, will the minister agree that given the way in which this section is worded, that it is impossible for any collective agreement to have contemplated this section and hence, every collective agreement that has a tech-change clause in it is rendered void because of the wording of this section.
The answer to that is that either the government amend the legislation to say that all tech-change clauses in force at the time of the passing of this legislation stand and are not affected by this legislation until such time as a new agreement is drafted, or it can say "until such time that the parties sign a memorandum of agreement pursuant to this act." All we're asking for is just to cool down the temperature in here a bit and to get on with the debate so we don't spend another two and a half hours on this. It's just an agreement from the minister that the assumption that was being made here was quite correct, and if not, could he explain kindly where it is that the legislation proves out that we're wrong? I don't think that's a complicated matter. I don't think the first member for Vancouver South has to answer it; we're looking to the minister for some direction on that. We don't need a commercial break yet. Let's get this thing solved and then the minister can go for a.... Well, I'll leave it at that.
MR. R. FRASER: I choose to enter the debate at this point, thank you very much. And I don't agree with your interpretation of the act at all. If you have a section that.... First of all, I think you answered your own question. Unless you had a crystal ball and perceived it to be coming down in this exact form, then you wouldn't have written it in. Unless you want to talk about double negatives, and all that sort of thing.... You said the clause does not apply unless you’ve written something that says it does not apply, and if you didn't write it in that it does not apply, then it does apply. You're looking at it from the wrong side.
Interjections.
MR. R. FRASER: If you have written in that it does not apply, which you couldn't have done, then it does. So you looked at it from the wrong side of the coin. You could say anything you like in the first half of it, but you have to say it does not apply, and unless you knew it was going to be there, you couldn't have made the argument. Therefore you've defeated your own argument with your own discussion.
MR. SIHOTA: Will the minister answer the question.
SOME HON. MEMBERS: Aye.
HON. L. HANSON: You weren't even going to give me an opportunity, eh?
I've listened to the very reasoned debate and the temperature hasn't got out of hand, I don't think. Certainly it hasn't from my point of view. You know, their suggestions that this provision will void agreements covering opportunities for retraining or severance and so on.... I don't agree that it does. Section 39, which amends 74, provides at that subsection (4) level that the section does not apply where there is a collective agreement that contains two provisions: an agreement with a provision to assist employees affected by technological change; and an agreement that specifies the section does not apply. Therefore the clause relates to future bargaining, not existing collective agreements, because it's only future agreements that can reference the bill and exempt the employer and union from the section.
The current clauses in collective agreements are not invalidated. There is no provision in the bill that alienates the many technological-change clauses that are now in effect. A memorandum of understanding, as I mentioned earlier, can be negotiated at any time to add to or modify a collective agreement respecting any issue, including technological change. So I don't think that the blank statement that is given that it voids those clauses is true, and I think it will be proven in the application of the bill.
[4:00]
MR. GABELMANN: I thought I detected in that answer an agreement with some of the points that are being made on this side — at least a partial agreement, if not a full agreement. I'm not sure I connected all the words clearly enough in my head in terms of listening to what the minister just said, but it seems to me he agreed, in effect. that unless the memorandum of agreement is signed or a collective agreement is rewritten that specifies that this section does not apply, then this section does apply. If he didn't say that....
Let me just stop there, before we proceed. (4)(b): "This section does not apply" — and you need to skip words when you read these kind of things — "where the collective agreement contains provisions that are intended to assist...and specify that this section does not apply...." Therefore, failing that wording — and every collective agreement in British Columbia today fails that wording. No one has that wording, because this section didn't exist. So no collective agreement in British Columbia today has a specification contained within it that this section does not apply. Therefore this section does apply. Right? And if this section applies, it supersedes the collective agreement. I wonder if the minister would agree with that so far.
HON. L. HANSON: No, I can't. I think the clause relates to future bargaining, not existing collective agreements, and....
AN HON. MEMBER: Where does it say that?
HON. L. HANSON: Well, it's because only future agreements can reference the bill.
[ Page 1668 ]
MR. GABELMANN: Well, we agree now. We agree about something. We agree that no collective agreement in British Columbia has this (4)(b) reference in it. It's obvious, but it seems we now agree, because they can't: it never existed.
If there is no specification that the section does not apply, would the minister agree that it does apply?
Interjection.
MR. GABELMANN: Section 74 of the new act will apply if there is no specification that it does not apply, right?
MR. LOVICK: We're all struggling here, as is obvious, wondering who ought to pursue this line of questioning. Again, I'm not sure the temperature is rising, but certainly there is some frustration manifest. Will the minister answer this question: do he and his advisers see a change in wording, then, to (a), where we separate the two clauses not by the word "and" but by the word "or"? Does that change the intent of this section?
HON. L. HANSON: We can't accept that.
MR. LOVICK: All right, but you are not prepared, however, to go along with what we tell you: namely, that it is precisely that word that makes us draw the conclusion that, yes, indeed, this will have the effect of — to use someone else's terminology — wiping out all existing tech-change agreements. If that is not the intention, if you are trying to suggest that what we are telling you is not the case, then why will you not accept that simple change? What is wrong with that change? How does it otherwise interfere with and detract from the intention of your legislation?
HON. L. HANSON: You know, I still don't accept the fact that it does negate those agreements. Very clearly to me, it relates to the future bargaining, not to the existing collective agreements.
MR. LOVICK: Okay, but separate the two then.
MS. SMALLWOOD: Sometimes I think in all of this.... Certainly it was my misgiving, when entering into this debate as a layperson, as a person that's not a specialist in labour relations, as a person that hasn't been involved with either the old Labour Code or the negotiations process that goes on in this province; nor am I a lawyer, nor am I a specialist in labour law.... But when it comes down to reading black and white, I can read black and white just as well as anyone. I think that what we have to do is recognize that when we are making laws in this House, it is incumbent upon us to make those laws as clear as possible and in such a way that any layperson reading them can understand the intent.
I read this section, and word for word — and it has been read time and time again — there is only one interpretation. My colleague asked you if you would consider there would be any difference in replacing "and" with "or," and you said you could not accept that amendment. What you are doing by saying that is saying that that would substantially change the intent of this section.
Therefore I can only deduce that you are agreeing that this subsection (b) says that for a clause in a contract to stand on technological change, it must specify that it takes precedence, If it doesn't specify, it does not. Therefore — and I challenge anyone in this House to read these words and come out with any other interpretation — we are in a situation where every technological-change clause in B.C. has just been wiped out.
So I want to point out again and bring this back home, that what in essence has happened here is that the trade union movement, through the industrial unions in this province, has negotiated language into the contracts to deal with issues such as severance, training and contracting out, as they apply to technological change. All of those things have to be renegotiated. Again, I point out that the next sector in this province on the line on the issue of technological change is the service sector, and the majority of people in the service sector are women.
So it's really interesting, and I think that part of what is important here is to name the people that we're dealing with, to put into perspective what is really happening with this act. Again, we implore you: if you are saying that this only pertains to future negotiations, then put that down in black and white. Amend this section and spell it out. I don't believe it's going to be very much help to those people who have yet to negotiate tech-change clauses, but at least it allows the technological-change clauses to stand in contracts that exist now. If you truly believe that that's the situation, then that's certainly the challenge to you.
Will the minister respond? Will the minister amend this clause to spell out that it only pertains to future negotiations?
HON. L. HANSON: No, I will not, because as I said earlier, it does relate to future.... We're only talking about the notice provision; we're not talking about 40 and 41 as it relates to that.
MR. SIHOTA: I don't agree with the minister when he says that subsection (4) applies only to notice. If that was the case, then subsection (4) would not have read "this section." It would have had language to the effect that subsection (2) does not apply. Here we are getting into legal drafting. I know he's got experts who are far more skilled at it than I am — or should be.
Subsection (4) says,"This section does not apply." It does not say that subsection (2), which is the notice section, shall not apply. You must read it with the section in mind, not just subsection (2). Therefore it goes back to section 74(l), which talks about: "A collective agreement entered after this Act" — which I take it would mean the Labour Code that is already in force — "comes into force shall contain provisions for final and conclusive settlement without stoppage of work, by arbitration or another method agreed to by the parties, of all disputes relating to adjustment to technological change." Therefore, if you have an agreement to defer all disputes relating to technological change — as it's defined by arbitration — then this section will not apply if you've got another way of dealing with it pursuant to subsection (4). That's the only possible reading. I agree with the minister, because the first thought I had was, maybe this is a minor point because it only relates back to notice. But as you think about it — and I would hope the minister agrees with me here — it doesn't relate back to notice. If it only related back to notice, it would have said that subsection (2) does not apply; but it says:
[ Page 1669 ]
"This section does not apply." So that means subsections (1), (2) and (3). I think the minister will see that.
I want the minister to listen to this, and I don't mean that in a derogatory way: by trying to defend what I think is a section that should not be defended — or cannot be defended — the minister has now raised another issue. The minister says that the legislation that's before us, as it pertains to section 39, will apply only to future agreements, not to current agreements. So the obvious question to the minister, if he's listening, is this: is he saying that the act, this Bill 19, will not apply to existing agreements; that it will only apply to future agreements? Would he care to explain how that interpretation applies only to section 39 but not to all of the other provisions? Could the minister tell us whether he has now taken the quantum leap and is telling us that this act, if it's passed, will apply only to future agreements and not existing ones? Is that the minister's argument?
Interjection.
MR. SIHOTA: The member from Vancouver South is telling me to read it tonight. Nobody could read it with the type of contorted logic that the member tried to apply to it.
AN HON. MEMBER: It was probably written by a lawyer.
MR. SIHOTA: He's right: it probably was written by a lawyer. As a lawyer, I can tell you there's only one way it reads.
Again to the minister, given the fact that he's already said with respect to this section that this section only applies to future agreements, not current ones, is the minister saying that all the other provisions of this act will apply only to future agreements, not to current ones?
[4:15]
Interjection.
MR. SIHOTA: Is that what the minister is saying? Yes? The minister wants me to repeat it. I'll repeat it.
The minister has said that the way in which he interprets this section is that it applies only to future agreements, not to existing agreements. That was the explanation the minister gave. Having said that, is the minister then saying that the entire act — all of Bill 19 — applies only to future agreements, not to current agreements? If not, could he explain why he would apply that interpretation in the case of section 39 and not with respect to all other sections? So if one wants to take the logic of what the minister is saying, it seems to me that the only conclusion of that is that Bill 19 will only apply to future agreements. Is that the conclusion the minister is drawing?
HON. L. HANSON: No, that's absolutely not what I'm saying. I'm saying that the reference here that specifies that this section does not apply is a very specific reference to this section and that because it would be impossible to have that wording in agreements prior to this section, it refers to future agreements. That's very logical.
MR. SIHOTA: It doesn't say that, Mr. Minister. It doesn't say that within the act, and it doesn't say that within the section. What you're saying is you're hoping the Industrial Relations Council will come to that conclusion. There's one very easy way for you to get them to arrive at that conclusion, and that is to acknowledge that the word "and" ought to be replaced with the word "or" and that the point that's being made here on this side of the House is quite valid. If you admit that, then we'll get on with the debate.
MR. JACOBSEN: Mr. Chairman, I would like the leave of the House to make an introduction.
Leave granted.
MR. JACOBSEN: We have a large group visiting us today, Mr. Chairman, from the Fraserview Elementary School in Mission. There are two teachers, Mr. Ray Jung and Mr. Frank Dunham. There are 49 students and 15 adults with them. Would you please give them a warm welcome.
MR. LOVICK: I'm frankly devastated, Mr. Chairman, to discover that the minister is not going to respond to any of those questions, though they've been variously cast by a number of different people on a rather protracted and continuous basis for the last hour. I think that's sad, especially because of the fact that yesterday, to his everlasting credit, what the minister did was acknowledge that the points we were making on this side of the House were indeed valid and took them away with a view to rewriting two clauses. What we're suggesting here is precisely the same kind of thing. The predicament is language, apparently. We're suggesting that the minister can indeed solve this problem by simply giving us direct and specific assurances that the intention of this particular bill — this particular section; namely, section 39 — is not to do away with existing tech-change agreements that have been freely and fairly negotiated. However, when we ask for the simple reassurance of that — and I tried to pose the question by focusing on just one word — we get what I can only call "stonewalling" as a response.
Let me try it once again. The predicament we're drawing the minister's attention to is that those two clauses — namely, (4)(a) and (4)(b) — very clearly refer to two different time-frames. Clause (a) refers to agreements that have already been negotiated — existing provisions. Those are things of the past, they're done. Clause (b), on the other hand, can of necessity refer only to future considerations, simply because it deals specifically with Bill 19, which does not yet have the force of law, until such time as it is indeed passed through this Legislature.
We're suggesting that to yoke those two together, to put the past and the future together, has the effect, then, of making them one, and has the effect, then, of imposing the future consideration on what used to be the past and what used to be accepted as given and safe in the past but is now in jeopardy simply because of being yoked to the provision of Bill 19.
We're saying that the remedy to that particular predicament is to simply provide us with assurances that that is not the case and that there is no intention to yoke the two together. The remedy I suggested was to simply replace the word "and" with the word "or." Unfortunately, when I posed that question the minister seemed to respond by saying that that would not be compatible with the intent of the bill. We therefore conclude — I think quite fairly, Mr. Chairman — that obviously the intent of the bill is precisely what my colleague the member for Surrey-Guildford-Whalley (Ms.
[ Page 1670 ]
Smallwood) has been saying: namely, to do away with existing tech-change provisions.
I recognize, Mr. Chairman, that we're restating the same question, but I think we have an obligation to continue to restate that question until we get some kind of answer. The only solution, the only other measure that suggests itself to me, if we can't get an answer to that, is for me to regale and entertain this House with at least a half-hour speech, which I'm quite prepared to do but would rather not. I'd much rather have an answer to the question.
There is a consultation in motion. Yes, it seems indeed that the minister wants some time to see what's happening in terms of his consultation. Let me just suggest, then, that the reason — and I think it's worth making the point for the record — that we are as concerned about tech change as we are is that it is precisely that area that puts the most pressure on the nature of our economy and on the lives of men and women working in that economy. If there is any single threat to the continued livelihood and sense of security of people in this province, it is surely technological change. Of course, we can all argue the old story that ever since, to use a line from a poem, the first flint was flaked — which means, of course, ever since we discovered fire and what technology is — the problem has been a-building. The trouble is that tech change is now advancing at an accelerating rate and, understandably, every worker is therefore concerned about what that means to him or her.
Specifically, the reason workers in this province will be concerned about this clause is that every economic forecast that's been written in the last ten years or more has stated very clearly that the new economy, the post-industrial economy — whatever we choose to call it — will be preeminently concerned with the service sector. The area most directly impacted by tech change is — surprise, surprise — the service sector. The result, therefore, is that this issue is charged with some emotion and with some stakes, if you like, that are perceived to be high enough that individuals are prepared to go to the wall to defend what they perceive to be their legitimate interests. Therefore I can with some confidence offer the case that we feel strongly about this issue, that it is important, and that it's not merely a technical matter.
But I see I'm preempting the time of my colleague, the member for Prince Rupert, who also wants to add something to this, so I shall defer.
MR. MILLER: Mr. Chairman, there has been a great deal of debate over what in the total scheme of the bill itself is a relatively minor matter, and I suppose the solution lies in two directions. The minister could direct that companies and unions that have a clause in their collective agreement respecting this matter should reopen that contract and negotiate a memorandum of understanding with respect to the legislation. Or perhaps an easier solution would be that the same clause that's used in the Employment Standards Act be applied to the application of this clause. The Employment Standards Act, as the minister must be aware, simply states that where a collective agreement contains a clause with respect to a certain matter, the clause in the Employment Standards Act covering the same ground doesn't apply, and, conversely, where a contract between an employer and a trade union does not contain a provision respecting a certain matter that's contained in the Employment Standards Act, then it does apply. That would cover every situation — the simple application of section 2 of the Employment Standards Act in terms of its applicability to situations where contracts already exist. I don't know if the minister has anything worked out over there, but I'll take a chance and sit down.
Well, I'll just read some of the wording or cite some of the examples from the Employment Standards Act to back up my contention. That would probably be the easiest way to resolve this little impasse and allow us to get on to some other sections of the bill.
First of all, section 2(l) reads: "Subject to subsection (2), a requirement of or made under this Act is a minimum requirement, and an agreement to waive such a requirement, not being an agreement referred to in subsection (2), is void."
Then under 2(2): "Where a collective agreement contains any provision respecting a matter set out in Column I of the following table, the Part of this Act set out opposite that matter in Column 2 does not apply in respect of employment pursuant to that collective agreement."
In the table that's laid out under subsection (2), under column 1 the matters are listed: for example, hours of work or overtime; annual vacation or vacation pay; termination of employment or layoff; and maternity or pregnancy leave. Under column 2 are defined the various sections of the Employment Standards Act that do not apply where in fact they are covered by a collective agreement.
Surely that's a device that's used to allow existing contracts to be maintained, at the same time as the minister is proposing to amend the current provisions of the Labour Code that apply to situations where contracts do not exist. Now if the minister is prepared to respond to that, I'll take my place, but it seems to me a relatively straightforward way of resolving that.
MR. GABELMANN: Mr. Chairman, I want to summarize, just as a result of some conversations not recorded by Hansard, what I now think the section probably means, to see whether the minister would agree. Then we can perhaps move on. But before I do, just a small digression. If we were in a standing committee or a parliamentary committee, we could quiz directly, on the record, professionals, legal advisers, deputies and others who would be able to assist us, and in that case may possibly have saved ourselves a couple of hours of debate — just an illustration of why another process is more useful in a complicated bill.
I want, if I can — I haven't had time to make notes on this, but just off the top of my head — to clarify what I think we're talking about here. If collective agreements contain provisions relating to technological change in terms of notice and other provisions, when this act comes into force and this section is proclaimed, both the section and the collective agreement will be in force and the minimum required by one or the other is what prevails. In other words, if for example — and this is an example that we chatted about — the collective agreement calls for 120 days' notice and the act calls for 90 days' notice, then the collective agreement prevails and 120 days' notice is required — with that particular provision.
[4:30]
So if there is conflict — and I'm going to say this carefully because I'm not absolutely certain about this — between the collective agreement provisions and the statute in section 74, then the minimum requirement is the one that is superior.
MR. MILLER: The superior requirement.
[ Page 1671 ]
MR. GABELMANN: I'm sorry, you're right. The superior requirement is the one that's required.
So in some instances the law might supersede the collective agreement in this respect, and in some instances the collective agreement might supersede the law. I think that's what we understand about this. I guess what we would like is an assurance from the minister, in his own words, that that's in fact what is intended, so if there's ever any debate in the future about this, we can have clear from the minister.... We may have had it clear over the last few hours, but let's do it again, if you have done it: a clear statement from the minister as to what his understanding of this section is. To summarize, I believe now that it does not wipe out or void a collective agreement provision. Subsequently, if a collective agreement does contain a specification, as outlined in (4)(b), then the statute no longer applies; but in the meantime, both the statute and the collective agreement apply.
HON. L. HANSON: I thank you for that very lucid summary. Certainly it was never the intention of the legislation to void any collective agreements. I concur wholeheartedly with your summation, in that the minimum requirement is the.... Or at least, I should say, whichever is the maximum in an existing collective agreement.... If it is greater than the requirement here, it certainly would take force and still be in effect.
MR. LOVICK: Believe me, I want to do nothing to jeopardize the accord. All right? I am a little concerned, however, about what I could call the rather indeterminate quality of language we're talking about. When we talk about a superior agreement, or a longer agreement, or whatever, I don't have any difficulty with that, if we're talking about something like a measurable amount: the number of days' notice, or some such thing. I'm sure the minister would agree that's straightforward.
[Mrs. Gran in the chair.]
Can we assume that that principle of the superior agreement, however, also extends to things such as those items earlier referred to by my colleague from Surrey-Guildford-Whalley; for instance, things like severance packages, training provisions — in other words, benefits that workers may well have negotiated in a given collective agreement to improve their condition in the event of being laid off as a result of tech change? Is that principle also extendable into those areas, assuming particular collective agreements that deal specifically with those kinds of matters? The minister is nodding assent, and therefore we can conclude that that general principle of the superior of the agreements will obtain. Okay. Thank you.
MS. SMALLWOOD: I'd like to also add my words of thanks for the clarification, but at the same time assure the minister that I still oppose this section and the bill in its entirety.
Let me also go back to a definition of tech change. We have established, I believe, that the definition of tech change has been narrowed. Again, I want to frame my comments in what I understand to be the reality that we're facing for the future: that while tech change in its early introduction in this province, and just about anywhere else that you look, has affected the industrial sector, it has done the next step from automating. It has put in place computers that have totally replaced jobs. Again, I would remind the minister that we're looking at over 3,000 previous employees in the forestry industry alone who are now unemployed and who will never get their jobs back, because their jobs don't exist.
I want to remind the minister that what we're talking about here is that this government, through its throne speech and the budget, talked about the new sector in our economy that would provide jobs being the service sector. What we are seeing is that the service sector is the next to undergo significant technological change, and what we're talking about here is the information age. We're talking about the need for a broad definition of technological change. While the member for Prince Rupert (Mr. Miller) talked about contracting out and how it will affect the production of chips and that broad issue, what we're talking about with contracting out in the information age is that all of the services in this province can ultimately be dealt with from a city like New York, for instance; all of the information services can be dealt with completely outside of this province. That is the reality of the technology that we're dealing with. When we're talking about contracting out, when we're dealing with the service sector and talking about data centres, for instance, in banks, we are just a generation away from being able to lay off everyone in those data centres and run it solely from head office, even if the head office isn't here in B.C.
So if the minister can't understand that we need a broad definition of tech change that would take into consideration differences in the way work is organized in contracting-out issues, then I think we're in real trouble. I'd like the minister to comment on the definition of tech change and allow us to get back into that debate.
HON. L. HANSON: I understand the concern of the member opposite, but I have some difficulty in accepting under the terminology or the heading of tech change the contracting-out concept. As I said earlier, it was interesting that in all of the various discussions we had with labour interests, tech change was never even mentioned in the sense of contracting out.
As we said earlier, consolidation is difficult to relate to the terminology of tech change. Most collective agreements have some arrangements in them for retraining or replacement or moving expenses or whatever, if it's a simple consolidation. But if consolidation comes about as a result of tech change, the Industrial Relations Council will certainly see that and see the requirement in their determination of what is tech change.
I do accept your concern respecting technological change in the industrial age. But technology in information systems is an issue far beyond Bill 19. Our definition will be satisfactory, we believe. If we need a different one in the future we will change it; so will all other jurisdictions. I do understand your concern, and I do accept it. In terms of definition of technological change, there is a little....
I don't think the gathering together that you were concerned about can be interpreted as technological change unless it is related to a change in equipment or technological change. We have to recognize that as the years go by and organizations change and requirements change and so on, sometimes there is a requirement for consolidation that doesn't have anything to do with technological change. I think that's the difference. But I do respect your concern.
[ Page 1672 ]
MS. SMALLWOOD: Because the issue we're dealing with here is technological change, because indeed what we're dealing with is the change of systems, of the way work is organized.... These are the minister's own words I'm using. We're dealing with the hardware and the software; we're dealing with new technologies.
Let me just sort of walk through this process. What we saw in the Industrial Revolution was a whole reorganization of work. We saw that the fundamental way people did work changed. We saw people on assembly lines rather than working in their homes or in workshops. What we're seeing now with technological change is another whole reorganization of work.
It's the difference of whether we need telephone operators out in Pouce Coupe answering the phone and knowing everybody in the community. When somebody phones up and wants to speak to Jake, the telephone operator knows where to get Jake. What we're seeing is a gradual, generational change in technology, and that gradual change that I talk about has been speeded up significantly. We have seen more changes in the last five years than we saw in 50 years during the Industrial Revolution.
When the minister says that he thinks this definition deals with technology in a broad enough way, he does not recognize that technology is much bigger than that. What it deals with is the ability.... Because of the technology, because of the on-line information services now available, we can take a whole bank of data.... The information stored there is beyond conception. It used to take rooms, buildings, to deal with all of that information. Now they can enter it into a computer that takes up no more space than our own clothes closet. The generations of technology are changing so rapidly that we no longer need to place those facilities around the province. We now have the technological capability of having one of those systems to deal not only with this whole room of information, but indeed all of the information in the province — for banking. That is technological change. It is because we now have a new generation of technology that has the ability to deal with all of that information. I have taken. that one step further, to suggest that soon it will not just be a matter of a piece of technology being able to deal with all of the information services in a province for a company, but indeed the next generation is such that it could be centralized further to a facility maybe in Ontario, maybe in New York.
Clearly those are technological changes. By restricting the definition of technology and not giving the working people of this province the tools necessary to deal with these significant changes, the minister, with this act, is allowing corporations to continue to make a profit, while increasing the burden on the people of this province who are privileged enough to still have a job and increasing the burden of growing numbers of unemployed people.
[4:45]
The minister must recognize that by simply defining technological change he in no way takes into consideration what is on the drawing-boards in the service sector, the major employment sector in our society, according to the minister and his own government. If the minister would like to make a comment on the definition, I still don't have clear, quite frankly, what we are talking about. When we began to canvass this particular section, the minister was prepared to talk about software, systems organization and the way that work is organized. He seems to have backed up from that position, so perhaps the minister could restate the definition for us at this time.
HON. L. HANSON: I understand the concerns of the member who just spoke. I don't have any difficulty in understanding those concerns, and I think that those concerns are very well dealt with in the definition of technological change. I think that tech change is something we have to view as a challenge rather than a threat. There is no question that over the long haul tech change is coming on us very rapidly. Tech change will eventually, over a longer period of time, create more employment opportunities as we get further into it. The definition as it is laid out in the act is very clear. The member opposite was dealing with the computer and its ability to put together information related to a banking system or something, and suggesting that that was done manually before. There is no question in my mind that that is a technological change; I agree 100 percent with her. But I think it is very well defined in the act.
I realize it's an area that we are going to see more of. Every time somebody invents something new, that new item allows them to invent something new as a result. So I understand it's coming on us very quickly, and it's been shown to us in a number of ways, but that doesn't.... The description of technological change in the act really does define it very adequately.
MADAM CHAIRMAN: Hon. members, before anything more is said, the Chair feels the definition of technology has been fairly well canvassed over the last few hours. I'd also like to remind the members about relevancy — not wanting to stifle debate, but if we could just keep it in mind.
Interjections.
MS. SMALLWOOD: I think that the comment was an unfortunate comment. In a way what it does is underscore the importance of this issue.
While the minister has said that he understands the concern that I have outlined, at the same time he has said that it is necessary to limit the definition — that the previous definition was too broad. The points I was making were to clarify that what we need is a broader definition, not a narrower definition, and that what we're up against here is a situation.... The minister and other members have made comments that technological change is an opportunity we should embrace. Let me assure the minister that indeed I do embrace the technological changes. The technologies that have been made available to all of us make our jobs a heck of a lot easier. The challenge before us is not the technology. The technology is simply a tool; it's a machine. The question is a question of public policy, and that is why I pursue the definition of tech change. I'm sorry that members don't understand the relevance.
The point is that when we are dealing with public policy on an issue as important and significant as the change and the restructuring of our whole society, we must recognize that we are talking about providing tools for that change: public policy tools that will allow the two groups, management and labour— if indeed that is the aim of this labour legislation — to solve and address these problems as they come up. If that is our task.... Surely the intention is to facilitate consensus. Quite frankly, looking at Bill 19, I say that a bit with tongue in cheek. If the task here is to define and govern the negotiations
[ Page 1673 ]
that go on around technological change, the government must recognize that it needs the broadest possible definition to allow the two bodies to deal with the rapidly moving changes we're undergoing.
The issue here is the impact of technological change on our province, and you can't separate that by saying all we're dealing with is a contract. What we're dealing with here is essentially the distribution of income. What we're dealing with, to bring it back to the government's own example, is a situation last year where a major industry in this province declared profits when all of the people in their industry were at home or on the picket line. Because of technological change, they could continue the business that they were in, without the very people who were making those profits for them just a couple of years before. What we're dealing with here is public policy that allows the two parties to negotiate fairly and to begin to deal with the problems of income distribution in this province.
Looking at an international example, Japan, we find a country that was on the leading edge of industrial development because of their ability to push technological change beyond the limits as we knew them. We are seeing a country that is having to deal with significant problems because the technology has moved that next generation. They have plants that are completely and totally automated, that no longer provide employment to a community. They are in the debate of whether or not to tax a robot, and that just.... I introduce that into this debate because if the minister accepts that he is giving tools to the two sides to be able to resolve this problem, it underscores the importance of the minister ensuring that the definition — the very basics — gives them that parameter; that he recognizes the broad possibilities of technological change. I'd like the minister to respond.
MR. MILLER: Madam Chairman, I was going to speak on section 40. We did have an agreement earlier that we would put all our debate forward on the three sections at one time, so I'll just do that if that's all right with you.
The change to section 77(l) by section 40 is relatively minor in the number of words used, but I'm really going to seek from the minister the reasons or the rationale why the change has been offered.
Under 74(l) we have a clause that says there have to be provisions for settlement of technological change issues. Under section 75, where a collective agreement does not contain those provisions the minister can impose them; and under section 76 we've got the whole method of arbitration to deal with disputes arising, including dispute over whether or not there has been technological change. In section 77 we have a reference to that arbitration board of section 76. The reference really says that the arbitration board established pursuant to section 76 can do a number of things: it can recommend that the minister appoint a special officer under part 7 of the act to resolve the matter; or — I'm reading the current wording now, not the proposed wording — in its sole discretion may order that the parties commence collective bargaining.
In other words, the arbitration board, having heard the arguments from both sides, as a method of seeking a resolution of any dispute between the parties, can say to the parties: commence collective bargaining and reach an agreement in the normal collective bargaining manner. Under section 77(2) we see that when a board makes that decision or issues that directive, then the parties are in fact free to bargain; they're no longer constrained by section 79, which says that where contracts are in force, strikes or lockouts are prohibited. In other words, it opens the process up.
I've gone through that with some care because I want to establish the kind of process, or the possibilities at least of what could happen under the act. Of course, there's a mixture in there of the old and the new. In trying to understand why the change was offered, it seems to me that again we get back to the kind of intrusive elements of the bill. At any opportunity where the parties would normally resolve matters themselves through the collective bargaining process, we find that the minister in the act has come in with some kind of intrusion. That's the inference or the definition that I draw from the removal of the sole discretion of the arbitration board and the change that now says, or is proposing to say, that that can't happen without the consent of the minister.
[5:00]
Perhaps the minister would want to respond to the manner in which I put this forward, or alternatively he could simply offer his own explanation as to why the words "in its sole discretion" have been removed and the words "with the written consent of the minister" have been put in their stead.
HON. L. HANSON: It's not a very complicated explanation in any sense of the word. I guess none of my explanations are very complicated.
We feel that the discretionary power, where there is an order to assume collective bargaining, should lie with the elected official in that position because of the accountability factor. The order to assume or to start collective bargaining over a technological change, as you probably know, can lead in all sorts of directions. We just feel that it's appropriate that that authority lie with the elected officials who are accountable. There's no hidden meaning in that, or anything like that, but it's a philosophy that we have that it should lie with that.
When the Minister of Labour is advised by a number of people within the ministry, he has a very broad view of what is going on in labour relations in the province. It's not to say that collective bargaining will not happen in those circumstances; we just feel that the minister should be the one responsible to order collective bargaining to commence on an issue arising out of a technological change.
MADAM CHAIRMAN: The member for Esquimalt-Port Renfrew. [Applause.]
MR. SIHOTA: I want to thank the Provincial Secretary (Hon. Mr. Veitch) for that hearty response, and for dropping in and listening to the debate. I only hope the Premier will do that too, later on. He's done it once, but will it happen twice? I'm sure that the good Provincial Secretary will be in touch with the Premier in a matter of minutes. He'll send him a note. In fact, it's wonderful to see all the ministers here: the Minister of Agriculture (Hon. Mr. Savage), the Minister of Education (Hon. Mr. Brummet). I guess the Premier is again running the province on his own.
I had a question for the Minister of Labour, and I see that during the course of that rather elaborate introduction, the Minister of Labour left the room. The member for Prince Rupert (Mr. Miller) is going to keep him company. That's just not consistent with the rather hearty and warm welcome I got from the Provincial Secretary. Out goes the Minister of Labour, and I begin to wonder whether I'm liked or disliked on
[ Page 1674 ]
that side of the House. Maybe I'll sit down and let the Provincial Secretary clarify that confusion in my mind.
As all the ministers who are now present in the House.... In fact, I think there are more ministers than back-benchers all of a sudden. Or it's a tie. Six — three to three.
In any event, we were dealing with the provision with respect to ministerial consent. I know that all of the ministers opposite will understand that this government wanted to take government off the backs of the people. I think that's what the Throne speech said when it came down. It's so long ago, it seems — in March. Yet here we have another intrusion by the minister which is not consistent with that point of view. This now allows for the minister to intervene and decide whether or not he should provide consent and substitute his powers, or take away the powers of the Labour Relations Board and have the minister step in. I see that the Provincial Secretary is reading that section. I'm sure he'll once again clarify the matter for me. I don't know if he's ready to do that yet.
It is an interesting philosophical twist, because the government has said over and over again that they wish to get government off the backs of people. Yet the minister, under this amendment, has said that he will decide whether or not approval should be given. Under the Labour Code, it used to be — and still is, I guess, until this legislation is passed — that the Labour Relations Board had to give approval for arbitration. In some cases it didn't even have to give it; it happened automatically. But here we are with a provision that requires the minister's consent. I think that's kind of interesting in the context of this legislation, because the minister has in the past stayed away from getting involved in these types of matters; and now we have, as I say, a direct intrusion by the minister. When the minister returns, I'm certainly going to want to know what the guidelines are. All the other matters have been referred to the Industrial Relations Council, and the minister has always said: "Have faith in the council." That may be the case, but this is a situation where the minister may be able to show us why we ought to have faith in him.
Before I pose the question to the minister, I want to thank the member for Prince Rupert for going out in the hallway and doing his job and getting the minister back in here. I don't know what happened in the hallway, but there was obviously some type of function or achievement on behalf of the member for Prince Rupert. But I don't want to get into unparliamentary activities here, and I'm sure that what was going on outside wasn't one either.
Now that the minister is back, let me ask this question. Section 40 talks about ministerial consent. Unlike a lot of the other situations which involved references to the Industrial Relations Council, the minister said: "Let the council develop its framework." Since the minister is the one who is going to be making these decisions with respect to his consent, could he tell us what types of guidelines he tends to apply to provide that consent?
HON. L. HANSON: It's very comforting to know that I have a bodyguard accompanying me when I leave the chambers, and we did have a very pleasant conversation.
To the question of the member opposite, I don't think that to establish guidelines as to in what cases the minister might respond to a suggestion from an arbitration panel that the parties commence bargaining is very difficult to respond to. I'm sure that each circumstance will be decided on its own merit, as it is with all decisions that are made in that manner. So it's very difficult to lay out any criteria that would suggest that there are hard and fast rules to determine what circumstances would require the minister to give that permission to begin collective bargaining over a technological change. I guess the summation of it is that each situation would be dealt with on its merits.
MR. SIHOTA: I anticipate this being my last question on this matter, and other members are hoping that as well. I'm worried a little bit about untoward influence. I'm wondering whether or not the minister would agree to table in the House his reasons when he does or does not provide consent. Will the minister agree to that?
HON. L. HANSON: I certainly would be pleased, any time a decision is made, to share the reasons for a decision with a member of the opposition, particularly with my critic, who has the most direct interest, I would imagine.
Sections 39 and 40 approved.
Section 41 approved on the following division:
[5:15]
YEAS — 27
| Brummet | Savage | L. Hanson |
| Reid | Michael | Parker |
| Pelton | Crandall | Rabbitt |
| Dirks | Veitch | Vander Zalm |
| Couvelier | Davis | Johnston |
| R. Fraser | Weisgerber | Chalmers |
| Ree | Bruce | Serwa |
| Vant | Long | Huberts |
| Messmer | Jacobsen | S.D. Smith |
NAYS — 13
| G. Hanson | Rose | Stupich |
| D'Arcy | Gabelmann | Blencoe |
| Guno | Smallwood | Lovick |
| Williams | Sihota | Miller |
| Edwards |
On section 42.
MR. GABELMANN: The obvious intent of this section is to deal with the Tumbler Ridge case and the question of allowing collective agreements which do not contain this clause that there shall be "no strikes or lockouts" during a collective agreement. What can happen now, with this clause being automatically inserted, is that suits will be allowed in those instances where damages may have been caused or' alleged to have been caused by unions conducting some kind of activity during the course of a collective agreement. To date, suits could not be allowed if that clause wasn't there. The midterm strike has always been illegal, but no suit could take place, according to judgments of the LRB. I assume that that's why this particular section is in here.
Before I make some other comments about some other implications of it, I want to ascertain from the minister
[ Page 1675 ]
whether or not it's correct that this is an attempt to deal with the Tumbler Ridge case.
HON. L. HANSON: No to the first question, that it's to deal with Tumbler Ridge. But there is no question that the provision will make strikes or lockouts, because the provision that there shall be no strikes or lockouts so long as this agreement continues to operate is that it will be contrary to the collective agreement itself. There is no question that it will allow the parties to the agreement, if breeches have happened, to seek remedy through the grievance arbitration provisions of the collective agreement and to seek damages by way of that grievance arbitration where illegal work stoppages have occurred. So I concur that that's....
MR. GABELMANN: Well, then, if the Tumbler Ridge case doesn't ring a bell, I wonder if Canada Gunite or Wills Enterprises ring bells. Those are two other cases that.... The law to date has been, as I understand it, that a strike or a lockout during the term of a collective agreement is illegal. But if a collective agreement contained no clause prohibiting a strike or lockout during a collective agreement, it was still illegal but no damages could be sought by the employer against the union. The Canada Gunite case, the Wills Enterprises case and a case I can't get my hands on right now — it's a Tumbler Ridge case — all led, I think, to a conclusion by the LRB that suits for damages could not take place. So the board didn't allow those suits for damages. Of course now in other sections those suits can proceed whether the board — the council — cares or not. They can proceed anyway. That seems to me to be the obvious intention of this section. Having said that, I want to move along.
I think we really need to spend a minute with the words: "There shall be no strikes or lockouts so long as this agreement continues to operate." A collective agreement expires on a certain day; the parties are still bargaining. Paccar is eliminated, so the bridging clause applies. The collective agreement continues to operate after the expiry date. That's a frequent occurrence; there are literally dozens and dozens of collective agreements today that continue to operate even though the expiry date has passed. So the collective agreement is continuing to operate after the expiry date; no strike or lockout can take place.
So how do you exercise your rights under other sections of this legislation which allow you to go on strike or lockout after doing a number of things? You can't have a strike or lockout so long as an agreement continues to operate. Agreements continue to operate after the collective agreement has expired. So how do you get around going through the motions and all the requirements to declare a strike or a lockout if you can't have a strike or lockout when the collective agreement continues to operate?
I think the council will inevitably decide that other sections of the act allow for that: you are in a legal position, you have the right to go ahead and you do it. I think that that is what the conclusion would be there. But I want to make the point that the language here is not clear. It will not prevent a strike or a lockout, as you might have imagined I was concluding, because other sections will prevail, I think. But the language is fuzzy in that respect. It says you can't have a strike or lockout as long as the agreement continues to operate, and it continues to operate after it has expired. Bridging clauses are now legitimate and appropriate — we have got court decisions on that — but let's assume the council is not going to be so narrow in its interpretation and is not going to worry about that.
Let me raise another more important concern that comes from this particular wording — the continuation clause. Most collective agreements have this continuation clause. It basically states that the collective agreement continues in force until a strike or lockout notice is in effect. That is essentially what a continuation clause does. There are two situations here I want to pose. How does a union with certifications around the province, operating under the same collective agreement, have a strike? Or how does an employer in a comparable situation have a lockout in one part of the enterprise? Once the strike or lockout commences, the continuation clause is dead. Therefore the collective agreement is no longer in force. That's one interpretation that lawyers have told me will apply.
Secondly, let's say you go through the process. This is the second scenario. The agreement no longer continues to operate because a strike or lockout has been in progress, but for some reason the parties decide to end the strike or lockout. How do they go back before concluding a new collective agreement? How do they go back to work, because the agreement no longer continues to operate? I'm not sure the minister is understanding me, and I'm not saying this is a certain conclusion of these words, but a number of lawyers that I've talked to about this particular section say that that's the case.
Let me put it another way. Let's pick the union's side of this. Let's say a union wanted to have a rotating strike as part of their strategy. Once the strike is declared, the collective agreement no longer continues to operate. You have to read that, because that's the implication of this wording. If the collective agreement no longer operates when the strike or lockout is declared, how can it continue for those employees who are not on strike but who are continuing to work?
That's like three different scenarios, and I wonder if the minister has some comment on that point.
HON. L. HANSON: Madam Chairman, I'm not sure I got all three questions, but can I answer your last one and see if that answers them all. If that is the case, would they not go back to work on a voluntary basis under the terms of the contract as it existed before?
MR. GABELMANN: One would hope that they would go back to work under the terms and conditions of the previous agreement while they're working it out. But there is no bridging clause in effect, as a result of.... If this is the wording that applies in a contract, the wording that is imposed in a contract if a similar section isn't included, there will be an opportunity for the employer to say that there is no bridging clause in place, because by having declared a strike, even though it was a partial one, the agreement no longer operates; it no longer continues to operate, to use the wording of the bill. I think this is arguable.
[5:30]
I want to make a point. I'm not making an absolute case on this issue, because I'm not absolutely persuaded myself of the legal advice I've been given. But I guess I want an assurance that this will not prevent the option of partial strikes or rotating strikes, or an ability to go back to work before a
[ Page 1676 ]
collective agreement has been reached. In all those circumstances, the bridging clause must remain in place, but there's no guarantee. When you look at this wording, it appears that as soon as a strike or lockout is declared and actually takes place, then the agreement no longer continues to operate. If it no longer continues to operate, how can it apply?
HON. L. HANSON: I understand the question now, I think, fairly clearly. I'm assuming that we're talking about an employer with a number of locations, all under the same certification; that's a given, I guess.
First of all, it would appear to me that in the situation where there were either rotating strikes or one location struck, the employer might react with a lockout. But given that that wasn't the case and that there was an acceptance that only one area would be struck, or that there were rotational strikes, again I believe that the people who would continue to work would be continuing to work under the terms of the agreement prior to the strike or lockout. I'm sure that as the cases come forward, that will be the decision. But I suppose that I'm again bowing to the IRC, and I'm sure that's how they would deal with it. The member has mentioned some concern with the wording, that that may not be the situation. But my advice and my belief is that that would be the way it would be handled, and that's the way it would be dealt with.
MR. MILLER: Madam Chairman, I guess my concern really is the same as that of the member for North Island. I just wondered if the wording of that particular clause could cause some problems. Most contracts, in fact, do have a clause similar to this, where there really will be no strikes or lockouts during the life of the agreement. I think that's some of the wording that's generally been used. In fact, sections 79.1 and 79.2 effectively say — the heading is pretty clear — that strikes and lockouts are prohibited during the term of a collective agreement.
This new section 79.1 adds to the existing section 79, and the wording is: "Every collective agreement shall provide that there will be no strikes or lockouts so long as the agreement continues to operate..." — as my colleague from North Island just pointed out. I know the joint labour agreement in the pulp industry says in effect that if the bargaining goes beyond the term of the collective agreement, which is July 1 in whatever particular year it might be, the provisions that have been negotiated through the years will apply to the people who are working while that process of negotiation continues.
By stretching some interpretation of the wording that's being proposed — it may be a long stretch, and maybe it s something that should be taken care of in terms of rewording — no strikes or lockouts can occur as long as the agreement continues to operate. Perhaps that bridging period could be interpreted to mean that the agreement continues to operate and that people would not want to have that bridging agreement in a contract. What could ultimately follow is that an employer could say: "Well, look, we've gone by the deadline. The contract has expired, and as of this date I'm now going to pay you X number of dollars an hour" — or whatever terms or conditions an employer may want to impose.
To get back to my previous argument, unions may not want to be contained by the seemingly.... I can't even conceive that this was an intent in terms of drafting this, but certainly when you read the wording it seems to say that there will be no strikes and lockouts as long as the agreement continues to operate.
As I said, the bridging is really a period where that agreement is operating, and for that reason unions might not want to be put in that kind of trap. It's a concern that has been expressed to me. Certainly the minister's response might allay some fears in that regard.
MR. GABELMANN: Let me just try this in another way and try to narrow the issue a little bit. Without looking at the wording, you can't have a strike or lockout while the agreement continues to operate. If the agreement is continuing to operate in some part of the workforce under this same collective agreement, this same certification, you can't have a strike or a lockout in another part of that workforce, because you can't have a strike or a lockout while the agreement continues to operate.
It's clear in my mind. It may not be clear to anyone listening to how I say it, and that's always a problem in these things. I'll just say it again. You cannot have or declare a strike or a lockout.... Let's just talk about strikes. You can't go on strike while the collective agreement continues to operate, so how can you have a strike in part of the operation if the collective agreement is continuing to operate? Because it says you can't have a strike while a collective agreement continues to operate.
Let's just take, for example, essential services. The collective agreement continues to operate in those areas that apply to those people who are continuing to work during the strike, that are continuing to work to provide the essential services, the life or death services that may be required in a variety of circumstances. While they are working, they are being covered by the collective agreement, because it is continuing to operate. The other people then couldn't go out on strike, because you can't strike while it continues to operate.
I am sure it seems to 60-odd members of this House — or more than 60 members; I didn't mean to say 60 odd members — that this is an incredibly obscure point. But I want to stress that it isn't. It appears as if the language will prevent partial strikes and will require all-out strikes or nothing,
A comparable point can be made about lockouts. If I am right.... I can't read it any other way, but then again I have read other things that haven't been right, so maybe I am wrong. But I haven't been convinced by the minister that partial strikes will be legal if the collective agreement continues to operate in another part of that certification where the same collective agreement applies.
It might be appropriate for the minister to listen to people around him for a minute, rather than to me, and then see where we go from there.
HON. L. HANSON: I have had interpretations of this, obviously just now, and during the drafting form. First of all, the way the wording is there, if the question is raised in front of the IRC, I don't believe they could possibly take the determination or position that because part of a unit is operating, therefore the collective agreement is operating, and therefore those legally in a position to strike couldn't partially strike. It just doesn't relate to my sense of the understanding that the IRC will have of....
But I don't believe, first of all, the way the wording is there, that, if the question is raised in front of the IRC, they
[ Page 1677 ]
could possibly take that determination or position that because part of a unit is operating, therefore the collective agreement is operating and therefore those legally in a position to strike could partially strike. You know, it just doesn't relate to my sense of the understanding that the IRC will have of a.... I believe that it would be interpreted that any continuation of working parts of a certified bargaining unit would be governed by the collective agreement, but on a voluntary basis, as opposed to the collective agreement failing to continue to operate.
So I've heard my critic's concerns, but I just have difficulty — I really do have difficulty — in suggesting that with this debate and with the wording that's here, that could be interpreted in that very narrow sense: that because there were parts of a bargaining unit working, the whole agreement continued to operate, and therefore any part of a strike that was legal would be, I guess, termed "illegal."
MR. GABELMANN: We have to look at the words. Let me back up a bit. I have no doubt that the minister's intention is not to achieve what I am suggesting might be achieved; there's no question in my mind about that, I think there were other motives that led to this change, which we haven't been debating.
But it says that there can be "no strikes or lockouts so long as this agreement continues to operate." Part of the minister's answer suggested that there could be a voluntary agreement, then, so that the terms and conditions of the collective agreement would apply to those people still working. If I heard him correctly, that's what I heard him say: that there could be a voluntary agreement. But if one party didn't choose to enter into that kind of voluntary agreement, they could in effect do what the Paccar case was all about; that is, to change the terms and conditions as a collective agreement, and not enter that voluntary agreement to continue to respect the terms and conditions, because the terms and conditions don't operate any longer, because there's a strike in place. So they would be able to say, we've got part of the workforce at work, and let's say it's because of some essential service; we're going to pay them at a different rate. Perhaps they're going to then implement the bargaining position that they have, which may be a reduction in terms and conditions of the collective agreement. It may be a variety of things.
There would be nothing to stop the employer from paying those people who are working at a different rate, or from governing their relationship in a different way, because the collective agreement doesn't operate. If the collective agreement was operating, there couldn't be a strike. That's what it says: you can't have a strike as long as it's operating. So if you've got a strike it couldn't be operating, and if it's not operating it's not in place, and if it's not in place it doesn't have to be followed. That's essentially the issue.
[5:45]
I wish it were five to six, so we could move adjournment so that they could have some discussion of some of this privately overnight. I honestly believe we've got a point here that requires further careful attention by the minister outside the confines of this debate, and I would ask that we stand the section over, as we've done with 30 and 31, and come back to it.
HON. L. HANSON: Madam Chairman, the wording says: "There shall be no strikes or lockouts so long as this agreement continues to operate." There's a certified bargaining unit for all of these different locations, and this agreement obviously covers the operations at all of those locations. If one of those locations, by agreement with the rest, decides to isolate a strike and they're in a legal position to do so, to me that very clearly says that the agreement doesn't continue to operate, because in fact it's an agreement that covers the whole operation, no matter how many locations it's at. Once one segment of that operation decides to legally go on strike, then the agreement no longer continues to operate.
I guess the other point is that if the agreement doesn't continue to operate, and if there is a suggestion that some of those places that continue to work are offered something less than the existing agreement, I would be very surprised if the members at that location accepted those terms and conditions and did in fact go to work.
MR. GABELMANN: Exactly, Madam Chairman. So what you then have is, rather than a rotating strike, which perhaps has a minimal impact on the economy, a push by the government by law to say to those people: "You should all go out on strike." It's the logical conclusion. If a rotating strike can be....
There are two ways. There used to be one way for an employer to deal with a rotating strike if he didn't like it, and that was to lock the whole place down. They don't have to lock out now. All they have to do is change the terms and conditions of the collective agreement, put into place what it is they have agreed to so far at the bargaining table, for example. which will have the effect of the union saying,"Okay, we'll take this," which is a clear capitulation. They may as well then just sign the collective agreement based on that. Or they'll say: "We can't take this. We're shutting you all down."
This change prevents the opportunity for unions or employers to conduct partial shutdowns, partial strikes or lockouts, rotating strikes or lockouts, or any variation on that theme. It would probably prevent the bus drivers' tactics of two years ago. And it would lead to a situation where the government would be, in effect, saying to people, "We prefer that the whole thing shuts down rather than this less disruptive partial shutdown," which may be designed by the union to minimize the impact on the public.
I don't know whether the minister understands what we're saying here. It used to be in labour relations that this was black and white. You either "shut 'er down" or you left it; you kept going or you "shut 'er down." It was almost as simple as that traditionally. In recent years those kinds of tactics have changed. There's been a recognition on the part of unions that they lose public support when they "shut 'er down." So they have adopted different tactics, including rotational strikes, partial strikes and the so-called "unstrike." They include a variety of options that are designed to exert pressure on the employer but not hurt the public. But with this change they will be forced into taking action which will hurt the public. Why would we want to do that? Does the minister care to respond to that?
HON. L. HANSON: I don't agree with the assumption made by my critic. But I certainly will be prepared to resume this tomorrow.
The House resumed; Mr. Pelton in the chair.
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The committee, having reported progress, was granted leave to sit again.
HON. MR. VEITCH: In case it hasn't been mentioned, the House will sit tomorrow afternoon.
Hon. Mr. Veitch moved adjournment of the House.
Motion approved.
The House adjourned at 5:52 p.m.