[ Page 1705 ]

CONTENTS

Routine Proceedings

Industrial Relations Reform Act, 1987 (Bill 19). Committee stage. (Hon. L. Hanson) –– 1705

Mr. Gabelmann

Mr. Clark

Ms. Smallwood

Mr. Harcourt

Ministerial Statement

Provincial school examinations. Hon. Mr. Brummet –– 1713

Mr. Rose

Appendix –– 1714

The House met at 10:10 a.m.

Prayers.

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; Mr. Pelton in the chair.

On section 48.

MR. GABELMANN: Yesterday afternoon we had a broad, free-ranging kind of discussion of picketing. This morning we want to be more focused and deal with the specific sections — not specific sections but the wording changes in a seriatim fashion.

The one I'd like to start out with first is the very first of the amendments, which is to change the word "persons" to the word "employers." There's a variance of opinion as to what this means. The opinion that seems to be most prevalent is: "The effect of this amendment is not clear." That's what Gavin Hume says in his analysis of the bill for Butterworths. I wonder if the minister would like to tell us what he thinks it means and why this change was introduced.

HON. L. HANSON: The amendment to I guess it's 48(a) I think has to be read together with the change to section 85(6), which is a new provision. In section 85(l) the definition of common-site picketing has been changed by replacing the word "persons" with "employers," and in section 85(6) a new provision allows the council to treat separate and distinct divisions of a corporation as separate employers.

The amendment to section 85 has been introduced to clarify the government's intention that in the area of picketing rights, so as to ensure that third parties are not involved in a labour dispute between employers and employees.... It's intended to clarify the government's intention that when it is enacted, the Labour Relations Board will have the ability to narrow, I guess, its jurisprudence as it relates to common-site picketing.

There were some determinations by the LRB as a result of the '84 amendments that gave those such a broad interpretation that picketing activities have been much more extensive than intended. We believe that the changing of the word "persons" to "employers," taken in context with the changes to section 85.6, the new provision, will be very easily defined; the council will have clear direction to treat separate and distinct divisions of a corporation as separate employers.

[10:15]

MR. GABELMANN: There's no question at all that these changes significantly narrow the opportunity for picketing, but a lot of it's going to rest on We have to go to 85(6) to deal with this first change, as the minister points out.

A lot of it is going to deal with the definition of separate and distinct operations.

If a company owns a sawmill and also conducts logging operations under a separate division of the company, and the sawmill, let's assume, given the possibility of the breakup of accredited employers' groups.... Let's assume that we get into the situation with fragmented bargaining, which is now possible. If the sawmill is on strike, it would appear that the separate and distinct logging operation of the same employer would not be able to be picketed.

I think I hear the minister whispering: "If it's the same certification." I'm saying that if we get into the fragmented kind of bargaining, and there are separate certifications asked for and granted as a result of an employer's decision to take advantage of all of these changes — to establish separate and distinct operations with separate certifications and separate collective agreements — they would then be able to continue to have the logging operation function without the right of the union to have a legal picket line in front of that operation, and then to contract out with another sawmill to process the wood for them. I'm speculating — obviously that's all we can do — but that's the kind of scenario that clever company lawyers and accountants are going to be able to establish, it seems to me. We will have a situation where there will be absolutely no economic power available to the union.

I wonder if the minister agrees with that kind of scenario. It's just an illustration, it may not be the best one. I wonder if he agrees that there will now be the opportunity for that kind of evasion of the economic impact that strikes and lockouts are supposed to have on the respective parties.

HON. L. HANSON: Mr. Chairman, certainly it is a hypothetical case, but from my understanding, I believe that they would be considered upon application as an ally, if in fact they were continuing that logging operation for the benefit of the struck employer or for the benefit of his ability to withstand the strike.

MR. GABELMANN: That may well be, but in the meantime.... This may not be the best example, because it's just off the top of my head. There may be others that are in a greyer area of law, and if these distinctions are in a greyer area of law, the employer would be able to apply for an interim order.

Interjection.

MR. GABELMANN: That's what we do in here. To the Minister of Energy (Hon. Mr. Davis), that's what this place is. It's a law-making body. If we don't know what the law is going to mean, we shouldn't pass it.

HON. MR. DAVIS: The minister's opinion expressed in here isn't legally binding.

MR. CLARK: It is in labour board matters.

AN HON. MEMBER: It's not binding.

MR. CHAIRMAN: Order, please.

MR. GABELMANN: It's not binding.

MR. CLARK: It's used in labour board matters.

[ Page 1706 ]

MR. GABELMANN: The Minister of Energy is testy this morning; I don't know why. I don't know whether the Pacific accord is going badly, or what. But the fact is that in labour law and in labour jurisprudence, the opinion of the Legislature is considered. It's not binding; it's considered, unlike the courts of the land, where what the Legislature or the minister says is not considered or not relevant. It's not true in labour law. What the minister's intention is as indicated in Hansard is referred to frequently and is used as a guide.

MR. CHAIRMAN: Is the member on a point of order?

HON. MR. DAVIS: A point of order, yes. I wonder if the Chairman would seek a ruling — not now, but for later today or later this week — as to whether hypothetical questions are in order in this House and, secondly, whether requests for legal opinions need to be answered by a minister or anyone else in this House.

MR. CHAIRMAN: There are no restrictions, Mr. Minister, on the questions that can be asked in committee — not that I'm aware of. Mind you, the minister who is being questioned is perfectly within his rights to not answer them if he so chooses. I would suggest to the hon. minister that there is no restriction on the questions that can be asked, so I don't really see any point in making any inquiries in this respect. The member for North Island continues. I should say that the questions must be relevant, however, which is always important.

MR. GABELMANN: Yes, I was just going to make that point, that we must be relevant to the section and we want to be. There is no possibility of even discussing this bill in committee unless we discuss hypothetical situations. Because a law like this doesn't exist anywhere, everything that flows from this legislation is hypothetical — everything. If we cannot suggest scenarios that will flow from the effect of this language, then we may as well not have a debate and we may as well close this building and forget about parliamentary democracy. If that's what the Minister of Energy, Mines and Petroleum Resources wants, then that's something that I certainly don't want. However, leave that aside.

In order to understand what the effects of these picketing changes are, we need to clarify what the intent of the minister is. It's not seeking a legal opinion from the minister. I have never done that in the course of this debate. I wouldn't presume to ask the question, much less to have it answered. That's not what we're trying to determine.

What we want to sort out is what the effect is going to be. I agree that in the hypothetical case I cited, if the board made the wrong decision based on 85 of the Code, then an application could be sought; but at the same time the employer has an opportunity to go to the council for an interim order. If it's in a grey area, what we'll have on occasion — because the full hearing hasn't been held — is orders that will prevent picketing in these situations, because the ally status is not entirely clear until the hearing is held. So the decision, no doubt, of the council in matters like that will say no to an application to allow picketing or say yes to an application to prevent picketing — the more likely scenario. What you then have is an added element in building up this head of steam that I talked about yesterday in terms of how people feel their rights are being violated.

I decided not to get into a general philosophical thing, because we all did that yesterday, and I won't do it now. But that really does flow from this discussion. It's a whole question of how you achieve some balance between the parties. If you say that a company, firm or operation that has separate divisions or parts that are separate and distinct can't be picketed, then those separate and distinct operations will continue to keep the employer in the cash flow. So what's the point of going on strike? When you have a situation where the strike creates no economic impact of a significant kind, you effectively don't have the right to strike. Yesterday in the House in response to a different angle on this same issue, the Minister of Education (Hon. Mr. Brummet) was suggesting that the law doesn't take away the right to strike. Well, it does, and here is yet another example of how it does that. You may have the legal technical right, but if there is no point in exercising it because its effect, its impact, is negligible, then you effectively don't have a right.

So bit by bit we are violating the ILO convention, violating the tenets of a western industrial liberal capitalist society. Without getting into a long debate about it, I just find it appalling that members on the government side don't understand. I think it is a question of not understanding, rather than a question of deliberately not understanding. I think they just don't understand why it is that people are saying that their fundamental rights are being denied. They don't understand that the effect of these kinds of changes, and this one in particular, in fact is to take away those fundamental rights. If the fundamental rights are there technically by law, but not practically, then they don't exist. Clearly, people on that side don't seem to understand that point.

MR. CLARK: I just want to explore a little bit the change in definition from "person" to "employer," because, as the member for North Island said, there are some legal interpretations that say that it means certain things. I would just like to know whether that's the intent of the legislation.

Employers who are single-entity employers, who have no employees: there is some thought that on common sites, where there are single operators — proprietorships, dependent or independent contractors — who amount to essentially owner-operators, would be exempt from common-site picketing because they are "employers" and not "persons," in other words. So there is a question there. Does the minister have any thoughts on that? There is a wide range of interpretations from both management lawyers and labour lawyers in this regard. Almost all of them seem to feel that those single operators could be exempt from picketing even if they're common sites because of this definition change. Is that the intent of the legislation?

HON. L. HANSON: You're suggesting that there is an employer who is on a common site who doesn't have any employees. There's a possibility that because of the physical layout or nature of the site it would be impossible to ban picketing from that employer, because it's just physically impossible.

I suppose that's a possibility. It has been raised by other concerns. It's a very difficult one, I agree, to deal with. Quite frankly, we will have to monitor that situation, if that is a serious difficulty. It really is a concern that we have looked at, but it's a concern that we have found very difficult in true terms. I think that the Industrial Relations Council will attempt, to the best of their ability, to live up to the intent of

[ Page 1707 ]

this. But there is a possibility that physically it may be difficult in some very unique circumstances to ensure that the picketing is only related to the disputing parties. Because of physical problems or whatever, it is a possibility, but, we think, a very remote one. We think that in the good judgment of the IRC, they will attempt to provide their orders in such a manner as to provide that protection.

MR. CHAIRMAN: Hon. members, the second member for Saanich and the Islands has asked leave to make an introduction. Shall leave be granted?

Leave granted.

MR. HUBERIFS: Mr. Chairman, in the gallery are 14 grade 11 students and their teacher, Mr. Hurne, from Stelly's Secondary School in the great constituency of Saanich and the Islands. I would ask the House to give them a big welcome.

[10:30]

MR. CLARK: I appreciate the answer from the Minister of Labour, because I think he's touched on how difficult it is. Maybe he could say for the record that it's not the intent of the government.... Because of the definition of employer, single-entity employers would no longer be employers, they would be persons. That's how many people are reading it. But it's not the intent of the legislation to say that a common site that has single-entity employers — in other words, owner-operators — should be exempt from picketing on common sites. I'm just trying to tighten up what you said; I think that's what you meant.

HON. L. HANSON: I think you're going just a little further. I think I acknowledged that there may be a circumstance, because of configuration or physical facilities, where a single-entity employer, although not picketed legally, may be effectively picketed. Certainly if it is possible, and if there is a way that the IRC can designate the allowable sites to be picketed, that would be the intent of the legislation.

MS. SMALLWOOD: I wonder if the minister would be good enough to clarify something for me. If a nursing home, a private hospital, had a dispute and there was picketing at that site, and the union chose to also picket the suppliers of that hospital, would that be covered? Would that be permitted under this legislation?

HON. L. HANSON: If I understand the question. we've got a hospital or a health care facility that is on strike legally and is being picketed, and it continues to be supplied by a laundry service, or whatever. I think there would have to be two determinations there. First of all, would they be determined as an ally? I would suggest that they would. But I think there would also have to be determination under the essential services: is there a requirement for that service to maintain the essential services so there isn't harm to the health and safety of people? It would be two determinations in that case.

MS. SMALLWOOD: It's still not clear to me whether or not the picketing of another site or another company would be permitted. We are talking about services supplied to that hospital; and I acknowledge the point that you made about essential services.

If I can ask another question, let's talk about a nurses' aide strike. An agency provides staff for the hospital to fulfil the work that was done by the striking employees. In that case, would the striking employees be able to picket the agency that was providing those workers?

HON. L. HANSON: It seems that we're almost talking about professional strikebreakers. They're prohibited. In the health field and with the emergency services, I think there is a requirement — and we all accept that as being a necessity in our society — that during a labour dispute a certain level of service must be provided to the public. To maintain that level of service there may be a requirement for supplies to come in, or there may be a requirement for laundry to be done, because it is part of that essential service; and I think the IRC would rule that that was the case.

Getting away from the health service, if there was a.... Let's leave the emergency service part out of it, because that does muddy it a little bit. If there was a circumstance where a struck employer was receiving a service from another employer for the benefit of the struck employer, and that continued to be delivered. then there's no doubt in my mind that the IRC would rule them as an alk and therefore would allow picketing.

MS. SMALLWOOD: I want to carry on from where I left last night, in addition to that. This is another instance in the service industry where the employers now can take the work and locate it in a different site. In the case of a data centre, where the employer now has the ability to take all of the information services and locate it perhaps down the street or in another city of the province, could the employees picket that site under these provisions?

HON. L. HANSON: I think we've dealt with that in the amendments to 85(4). The purpose of this amendment is to clarify that where an employer is attempting to shift struck work to another location, that location can also become the site of permissible picketing. The IRC would make that determination, given all of the facts. But I and my ministry and the government feel that if an employer who has a legitimate strike going on attempts to shift that work to another location, there should be permission for picketing.

MR. GABELMANN: Mr. Chairman, I want to move on to 85(2) of the Code. The law has been that there's a presumption that the ally is the ally unless he proves differently. This change shifts that onus of responsibility of proof in two ways. First of all, the trade union is going to have to prove before it can even get any further in this application that there is a benefit to the struck employer, or that there is a benefit to an employer if there's a lockout. I'm sorry; when I say "in two ways" it really is in one way: the onus to prove that there is a benefit to — let's just leave the one example — the struck employer. That's not the easiest thing to do when you don't have access to the books, when you don't have a knowledge of the private and internal affairs of the particular company.

The original approach to this was done deliberately, consciously and quite appropriately, because shifting the onus in this way puts unions in a position to try to prove something that's very difficult to prove. How do you prove that in fact there is a benefit? There will be all kinds of inventive and cute legal arguments on the other side of this issue to demonstrate

[ Page 1708 ]

in fact that there is no benefit, or that a benefit can't be proven, and that's all that's now going to be required.

The original law on this issue was, in my view, not causing problems. The employer — if they could prove there was no ally function being performed, then there would be no ally status declared. And that's the way it should be. The onus, I think, should shift in this particular case.

I guess the case that people think about in respect of this issue is the CP Transport aiding MacMillan Bloedel last year in the Alberni Valley. In that case the onus rested with the employer to show that there wasn't a benefit, and that's the way it should stay. But this seems to be a response not to a request for balanced, fair industrial relations, but rather a response from two of the biggest corporations in this country, Canadian Pacific and Noranda, who lost a case in '86.

Again as we've demonstrated throughout the debate on this bill, we see yet another example of legislation being brought in at the behest of major Canadian, but nevertheless multinational, corporations — in this particular case two of the biggest companies in the country. Why? Simply to help them win their cases so that they can beat the union, rather than find a way to promote good and sound industrial relations. I just make the point again that these kinds of changes are not appropriate to speedy and expeditious resolution of disputes. They are designed to allow employers to continue to make money; they are designed to weaken the bargaining power and position of the working people; and they are clearly, unmistakably biased in that respect. This is yet another example in a long litany of examples where fairness and balance are just being thrown out the window. Whatever General Motors wants, General Motors gets, because what's good for General Motors is good for the country. That's the philosophy that underlies this whole bill. It underlies this particular section as well and we oppose it too.

MR. CLARK: Well, I'd just like to confirm this. I've read this a few times and this is, from the unions' point of view, probably one of the worst provisions, because it substantially weakens it; but I just want to clarify. Maybe the minister could take issue with any of these points.

It seems to me that a union can only picket an ally now after he's got permission from the board. He has to make an application to picket someone — okay? — and the board has to agree. But the board will only agree if the union can prove that the work performed by the ally is an integral and substantial part of the work that was done by the struck employer. Then the union also has to prove that the work being done by this alleged ally that was work done by the struck employer is for the benefit of the struck employer and not the ally. Then, if they can do all of that, the union can only picket those aspects of the ally which are performing the work that was being done by the struck employer. Is that a fair characterization of the steps that a union has to go through to be allowed to picket, and the extent to which the union is allowed to picket?

[10:45]

HON. L. HANSON: What you said was substantially correct. First of all, we believe that the permission of the board is a requirement before picketing of an ally should take place, quite simply because picketing before the determination that they are an ally puts a place of business down, and the employees working there lose time and money and so on. We think that it is fair and reasonable that the determination of an ally should be prior to the picketing process taking place.

I think that the terminology used, "for the benefit of a struck employer," is good because if an ally who knows that a particular firm is in dispute with its labour organization chooses to continue to do work or provide services, or whatever, of benefit to that employer, then we think they should be struck. It depends on what we are talking about, whether it is a multi-faceted operation or a smaller operation. In the latter, the determination of an ally would likely lead to picketing of the whole operation; but in a very large and complex organization, the picketing would be restricted to the part performing the allied work. But that in itself would be a message to other labour organizations that these people are performing something contrary to the interests of an ongoing dispute.

Just about all of this is in the Code now, except for "for the benefit of...." I guess you feel that it shouldn't be, and we feel that it should be.

MR. CLARK: I won't belabour it, but one of the most powerful weapons a union can have before deciding to go on strike is to try to have a lot of the work being done by the employer caught behind picket lines. Let's say it is a steel fabricating company — which I happen to be familiar with — and the company has a one-million dollar piece of machinery that is halfway completed. If you strike then, you catch that one-million dollar piece of machinery half-finished behind picket lines. One of the things that employers try to do is get that piece of machinery out of there and give it to another company to finish; otherwise they are stuck with this piece of inventory stuck behind picket lines. What normally happens is that if it looks like there's going to be a strike, the company will attempt to get rid of that stuff quickly to other companies. Of course, you can't really do that with impunity, because you are doing work elsewhere that was done by your employer. Therefore you can picket the ally. I'm trying to think of how this would impact on that. It seems to me that it would be significant. If that one-million dollar piece of machinery that is half-finished behind my company's picket line managed to get out and go to another company's operations, would the union be allowed to picket that other company's operations?

HON. L. HANSON: The description of the member's hypothetical case, in my mind, invokes the ally perception, and therefore it would be allowed to be picketed.

I think that in that section, and I guess again in 85(4), secondary picketing, the purpose of course is to clarify that where an employer is attempting to shift struck work to another location, that location can also become the site of permissible picketing. I think that answers that.

MR. CLARK: Okay. Thanks to the minister for that answer.

If I were an astute employer, what I would do — and this had been done; I've seen it done — is, instead of taking that half-finished piece of machinery to my operations to finish, if I'm alleged to be the ally, I would rent a warehouse and put it there and send some of my employees down there to finish it, and then if there was a declaration now under this, the only place you could picket is that warehouse where that's being done, not my operations. In other words, if you're an astute employer, it seems to me that it's really quite easy to get around picketing with this kind of language. See, one of the

[ Page 1709 ]

things is: if you're declared an ally now, that means you can picket the operations of that ally, and of course that means you can picket more than just the little part that used to be done by the struck employer. So there's a real disincentive for employers to take work that was done by struck employers.

It seems to me that now all you have to do is take the work from a struck employer but put it in an operation that is not part of your own or in one section of your company that is not part of your own. It's not always easy to do that, in fairness, but in many cases it is. So you could now, say, in the steel fabrication industry.... There are dozens of empty equipped steel-fabricating companies that are out of business, and they're lying there empty; all you have to do is rent one for a month, take all the work and put it in that rented operation, and then you're picketing a warehouse or an operation that wasn't there before, and that's all you can picket. You can't picket the main operation. Is that a fair...? I mean, does the minister agree that that's possible under this language?

HON. L. HANSON: Mr. Chairman, I was just having a discussion with my assistant here. First of all I'd point out that the primary site where the dispute started is still being picketed, and what you're suggesting is that there's a very major project going on within that site and that the employer, anticipating a dispute, has gone to another company....

MR. CLARK: Or after a dispute.

HON. L. HANSON: Or after a dispute. ...and said: "Hey, rent a warehouse and send your men over there and finish this piece of work for me." Well, I suppose in the strangest of circumstances that probably could happen. I think that in today's world, where there is such a requirement for sophisticated equipment and all the other things that go along with it, it's very difficult on short notice to manoeuvre that sort of a situation. But you're right that that picketing would be limited to that warehouse, except that I think the board would have some jurisprudence to see if that was a deliberate motivation that they might look at within their discretion. But summarily, you're right.

MR. CLARK: I'm finished. I just want to ask the minister if he could tell us what other sections allow the discretion of the IRC. Could he give us an example?

HON. L. HANSON: In these debates you have lots of time to discuss with your partners, and I don't get that time, because I have to answer your questions very quickly. So sometimes I'll take a little longer than I should.

In another section we are bringing back the "clean hands" provision, and that gives the board a wide sort of understanding, or at least an ability of a wide discretionary sort of thing, to see that there is some fairness and equity in all of their decisions as they relate to the performance, and that's a possibility. But again, you know, I'd like to emphasize that the picketing is at the primary place of work, and that right is always there. It's not removing that. That is probably the most pressureful system that can be applied to the employer — picketing that site. With the various clauses, particularly that clean-hands one, I think manipulation to avoid the allied sort of situation will be picked up very quickly by the board.

MR. GABELMANN: Section 48 is one of those kinds of sections where we could easily take two or three days to go through the complexities. We're not going to do that. We've made the argument, so I want to conclude the discussion on this section by making a specific reference and then some general comments.

The specific reference is Slade and Stewart and the Retail, Wholesale Department Store Union. This is the kind of situation in which it will now be impossible for unions to prosecute a strike — absolutely impossible. If you have a company — and a courier service is probably an even better example — that does its business in a variety of sites.... Its business is being conducted as its drivers drive down the highway or through the streets of a city; its business is being conducted when it makes deliveries to a site or delivers a parcel; its business is being conducted on the telephone; and its business is being conducted in a variety of ways. The effect of this legislation, these changes, will be to prevent absolutely and clearly the ability of the trade union to follow the business and to establish picket lines where the business is being done.

Because the primary site will be defined as the office or the warehouse or the facility from which the employer operates, in the case of, for example. Slade and Stewart, the warehouse from which the groceries and other goods are dispatched becomes the primary site. The real business, in fact, happens at the delivery door. That will not be able to be picketed. It was arguable after 1984 whether or not it would have been allowed to be picketed. Certainly the intention of the government then, in my view, was to prevent pickets of that kind.

The labour board, recognizing the idiocy of that kind of policy, tried to soften it. The government now is bringing in these changes to require the adjudicating body, the new council, to make tougher and stiffer decisions. I guess this leads me to the comments made yesterday in particular by the member for Surrey-Guildford-Whalley (Ms. Smallwood) that there are some people in our society who are going to be hurt more than others by these changes.

Those people, for the most part. are the people who work in the service industry; in the service industry, for the most part, increasingly those people are women. Men who, for the most part, make up the workforce in the heavy industrial sector, in the mills, in the woods and in the mines will be less affected. In a mine which might have 90 or 95 percent male employment, the employer has a great deal of difficulty picking up the mine and moving it down the street, and a great deal of difficulty subverting the picket line, obviously.

[11:00]

Similarly, in pulp mills and in sawmills and in the forest industry, despite the weakening of the ability to prosecute the strike, there will be some measure of ability to prosecute it — much reduced, much less effective in terms of minimizing the length of the strike; nevertheless, there will be some ability. In the service sector, where business is increasingly conducted on the fly. on the move; where it is increasingly populated by women, increasingly by younger women, increasingly young single women; where the rates of pay are already low.... Even in the unionized service sector, it's lower than the industrial average. The familiar figure of 62 percent of income....

For every dollar earned by a man, 62 cents is earned by a woman in this country. That is because women are in these areas that either are not organized or have only recently been

[ Page 1710 ]

organized; or where they are organized, the power of the union is not very strong. These changes will mean that that power is not only not very strong but non-existent. If you can't picket the delivery of the goods or services, you can t prosecute the strike. If you can't prosecute the strike, it will continue to be scabbed and eventually the strike will be lost, and those people who spent their year or two on the picket line going hungry will then eventually fade into the woodwork and will end up on the welfare rolls, while somebody else will take their job at a lower rate of pay.

I guess what bothers us, those of us who view the advent and the strength of the labour movement as the single most important element in our society to redistribute society's wealth.... Governments don't do it; capital doesn't do it; employers don't do it voluntarily. Wealth has begun to be distributed in our society, not in a fair manner yet, but increasingly moving in that direction. It has only happened because of the strength of trade unions. But now, as the number of people employed in the old-fashioned, industrial, heavy-duty sector diminishes, and the number of workers increases in the service sector, we will find that the actual ability to continue this redistributive program will be not only impaired but turned backwards. We will find, as a result of the inability of people in the service sector — and I repeat: most of them are women — to prosecute a strike.... That's a clear result of being unable to picket effectively, in that highly mobile area. It will mean that those people — those women, in particular — will be unable in this generation to repeat the successes of their male counterparts in the generations that preceded them. It started in the late thirties with the advent of the CIO and their industrial organizations, went on through World War II and solidified in the fifties and early sixties. Those people in the service sector will not be able to repeat the economic path that was open to the men in the primary industrial sectors of our economy.

That's a tragedy. I could make a long speech about this subject, because it's a crucial one in our society. There will remain in our economic system no ability for people who work in the service sector and in the newly developing communications fields to exert economic influence and impact on their employers, with the result down the road of increasing their share of the GNP, in the same way that their brothers did in mines, factories, sawmills and pulp mills and throughout the rest of the industrial sector of our society.

These picketing changes reflect a deliberate policy on the part of the government to ensure that this newly emerging workforce does not have the same ability to exert pressure and influence on the economic system in order to get a more equitable share of the proceeds of that economic system.

I don't think the government went through a great philosophical debate about how to make sure that this emerging workforce doesn't get as much of a share of the economy as the male blue-collar workers have over the last few years. I don't think that philosophical debate went on in the government caucus. I'm convinced, however, that it went on with the Fraser Institute, with some of the key people who were the actual drafters of this legislation, and with the right-wing economists — not all of the companies share this view, but many of them do — who work for many of the major companies in this province, particularly in the newly emerging industries. There's no question whatsoever that that is their economic strategy. I don't think it was ever presented to government in that way. I think it's been presented to government in an emotional way: that picket lines are disruptive and harmful to other people, that they get in the way of doing business when you don't really have anything to do with the struck employer, and on and on. You have those kinds of emotionally laden arguments, those kinds of conclusions, by drawing from an example.... You then end up with the adoption of an economic strategy that the Michael Walkers of the world would hope you would adopt.

I'm not overstating this. It's a fact of life for those younger people, an overwhelming majority of whom are women. They will not be able to repeat the economic progress that their fathers were able to achieve in the last few decades. That's a tragedy, I think, for the economy of British Columbia. It's a tragedy for the way we progress as a society. It's a tragedy for those people personally, and it's a tragedy that the one institution that might have been able to help redistribute wealth in our society is now being impaired in such a way that it will no longer be able to do that.

Section 48 approved on the following division:

YEAS — 29

NAYS — 12

[11:15]

MRS. GRAN: Mr. Chairman, may I have leave to make an introduction?

Leave granted.

MRS. GRAN: Mr. Chairman, in the gallery today are 32 grade 7 students from Alice Brown Elementary School in Langley and their teacher, who is also a good friend of mine, Peter Luongo. Will the House please make them welcome.

On section 49.

HON. L. HANSON: Mr. Chairman, I move the amendment to section 49 standing in my name on the order paper. [See appendix.]

On the amendment.

MR. CHAIRMAN: Did you want to speak to this amendment? This is an amendment, hon. members, which just has the effect of defeating the particular section. Did you want to speak to it, Mr. Minister?

[ Page 1711 ]

HON. L. HANSON: Not other than to say that it's the reinstatement of the clean-hands doctrine, which I'm sure my critic is very aware of.

Amendment approved.

On section 50.

MR. CLARK: This section allows the Minister of Labour to appoint a single arbitrator even if the collective agreement says it must be a three-member panel or arbitration board. Would the minister assure the House and assure the parties that the Minister of Labour will always appoint as a single arbitrator a member of the Arbitrators' Association of B.C., or from the list that the ministry has of arbitrators in British Columbia?

HON. L. HANSON: It will be from the list, but not necessarily from the association.

Sections 50 to 57 inclusive approved.

On section 58.

MR. GABELMANN: All of those sections were technical, consequential amendments and of no concern. I just have a brief word on section 58.

This is the productivity fund. We will vote in favour of this particular initiative. It was a good initiative that was started by the Vancouver Board of Trade, the Business Council and the B.C. Federation of Labour to attempt to bring some sanity and some soundness to industrial relations in this province. It was accepted by the minister and in effect incorporated in the legislation through this productivity fund. It's a tragedy, I must say, just in passing. It's clear that this particular initiative, which might have done great things for British Columbia, is now dead in the water as a result of Bill 19 — and I'm sorry about that.

Section 58 approved.

On section 59.

MR. GABELMANN: A brief question on 59, Mr. Chairman. This is a consequential amendment, but it relates to the labour ombudsman section of the Code, which is yet to be proclaimed after 14 years or so. May I just ask the minister what his views are about whether or not he feels proclamation of that particular part of the legislation will happen or should happen?

HON. L. HANSON: I guess the answer I can provide for that is: not right at this time. But there is some merit to a labour ombudsman, and I can assure the critic that it will be a consideration, hopefully not too far in the future.

Sections 59 to 61 inclusive approved.

On section 62.

MR. CHAIRMAN: Can we just wait for one second, hon. members, please. There are some procedural issues we'd like to sort out before we go ahead, just to accommodate both sides in dealing with section 62.

Hon. members, the Chair is sorry for the delay, but it was necessary that we lay some ground rules as to how we were going to deal with section 62. It has been agreed that we will proceed with a more or less general discussion with respect to the section as a whole, and that subsequent to that — and we will all bear in mind that there is some time to be considered in the amount of time we do take in doing this — we will deal seriatim, or section by section, with the portions of section 62.

HON. L. HANSON: Mr. Chairman, I'd like to say a few words on the aims, objectives and purpose of this section of Bill 19. We acknowledge that roughly 95 percent of all of the collective agreements in British Columbia are settled without work stoppage, and that's a pretty good record. But British Columbia still loses far more time per worker to strikes and lockouts than industrial nations such as Japan, the United Kingdom, West Germany and others. Our biggest trading competitor, the United States, also loses less per worker. Ninety-five percent isn't as good as we would like it to be.

[11:30]

[Mr. Weisgerber in the chair.]

The disputes resolution division will assist, and was designed to assist, in reducing the remaining 5 percent of collective bargaining agreements which are settled only after work stoppage. The division will monitor all labour disputes and help parties resolve the disputes themselves. In doing so, and in protecting the interests of third parties who are affected by but not involved in various labour disputes, our goal was always to have an option available when talks reached an impasse.

It is not, and never has been, our intention to interfere with the collective bargaining process or to weaken the labour movement in this process. This bill will facilitate bargaining, not frustrate it. Neither the government nor the council will use these powers unless absolutely necessary. On the contrary, our main thrust is to help parties reach their own agreement.

However, when government involvement is necessary, Bill 19 divides its options and remedies among the commissioner of the IRC, the Minister of Labour and the Legislature. The greater the degree of intervention into a dispute. the higher the level of authority that must exercise it. This is a crucial concept embodied by these amendments, and one that cannot be stressed enough.

As head of the council. the commissioner will monitor all labour disputes in the province and keep the minister informed when a strike or lockout occurs or is threatened. In this way the government will always be aware of significant labour disputes, especially when there is a potential threat to the public interest.

If the minister believes that a dispute poses a threat to the economy or to the health, safety or welfare of British Columbia residents or to educational services, he will be empowered to order a cooling-off period or direct the council to designate the service as essential. The minister may also appoint an industrial inquiry commission, as under the existing Labour Code, to maintain and secure industrial peace and promote conditions favourable to settlement of disputes. As further protection of the public interest, the requirement to provide essential services can now also apply to members of a trade union other than the one involved in the dispute.

[ Page 1712 ]

But as I have said, an important principle behind this bill as a whole is that the greatest powers of intervention in a labour dispute lie with the publicly elected officials rather than the bureaucrats. The greatest of the commissioner's powers can be exercised only when he is ordered by the Legislature to end a dispute. When the Legislature is not in session, if the cabinet considers a dispute is a threat to the economy of British Columbia, to the health, safety or welfare of British Columbians or to educational services, then cabinet may order the commissioner to end the dispute. But when that dispute ends as a result of an intervention ordered by the Legislature or the cabinet, then the collective agreement which results must be placed before the Legislature at the earliest opportunity.

When the Legislature orders the commissioner to end a dispute, the commissioner must immediately prohibit a strike or lockout or, if a strike or lockout has already begun, he must order the parties back to work. The arbitrator or arbitration board handling a public sector dispute must take into consideration criteria specified in the Code, including the employer's ability to pay. If an award which is inconsistent with the statutory criteria is made, a party can ask the commissioner to review the award and refer it back to the arbitrator for reconsideration.

A special mediator must act within terms of reference specified by the commissioner. If the special mediator is not able to resolve the dispute, then he will submit his report in the form of a collective agreement to the commissioner. The report then becomes the collective agreement of the parties, except in cases where the parties agree to change that report. In public sector bargaining, the commissioner may review the special mediator's report to make sure it does not exceed the employer's ability to pay and to make sure it complies with the other statutory requirements in Bill 19.

To open the debate, Mr. Chairman, let me repeat the two keys to understanding this section of Bill 19, section 62. First, there will be no government interference in the collective bargaining process unless absolutely necessary. Secondly, the greater the degree of intervention allowed by Bill 19, the higher the level of authority that must exercise it.

MR. HARCOURT: I would like to say a few words on behalf of our caucus in regard to part 8.1 and the disputes resolution division of the Industrial Relations Council. The hon. minister has made it clear, as I was going to reiterate, that 95 percent of the collective bargaining between employers and employees is resolved without a strike or a lockout. So we admit that we have a healthy and a democratic system of free collective bargaining, where employers and employees can come together and bargain over a variety of areas: wages, working conditions, productivity, safety standards, advances in our society in terms of equality for women, retraining of employees, and dealing with dislocation and technological change. All of those matters that are important are done in our society not through a dictatorship or a fiat or the imposition of experts, but by the people directly involved in their workplaces, through their companies and through their democratically elected representatives called unions, which they choose or do not choose to have.

We're really talking about 5 percent — one in 20. We're not even really talking, if the minister would elaborate further on the statistics, about one in 20, because a vast majority of the remaining 5 percent that he talked about are resolved after a very short work stoppage by either a lockout or a strike.

Even of that 5 percent, Mr. Minister, I am sure you would concede that after a very short withdrawal of labour or withdrawal of operations by the company there is a resolution of that collective bargaining situation. We're not talking 5 percent; we're probably talking about I percent.

We're talking about an existing system that was reformed in 1973 when the labour relations act was brought in. It was brought in by building up a consensus among business, labour, government and the communities on what needed to be done to modernize labour-management relations in British Columbia.

For that one out of a hundred disputes we have a whole system of mediators, of special arbitrators. We have a number of very skilled, capable people inside and outside government to deal with disputes. We have the possibility of calling in chief justices, we have the possibility of calling in eminent British Columbians, and we've done that to resolve many difficult labour-management disputes.

We have that machinery, and if there is a public interest affected, we have the obvious place to make the decision about the public interest being affected by a labour dispute and that's this Legislature, Mr. Minister, which can in public, being recorded in Hansard and in full public view, make that decision — this Legislature, all 69 of us, who were duly elected by the people of British Columbia. For that once-in-a generation forest dispute like last fall's.... We cover everything but the one-in-ten-thousand situation we faced last fall, where we had an impasse — for a whole bunch of reasons, which I won't go into here — as to why the forest companies and the unions were dug in on certain key issues. This one-in-ten-thousand dispute was one where the Legislature could have intervened in public — duly elected people, all of us, with the recommendations of arbitrators, mediators, your officials, with input from the companies or the trade unions involved — to make a decision on behalf of the people of British Columbia on the public interest. We could have done that.

On top of that, we had a unique situation last fall, a one-in-a-hundred-thousand — at best — situation where a once-in-a-generation labour-management dispute happened; and it happened during an election which the government chose to call. There was no Legislature sitting for 28 days — and then the period after the election. That is so unique a situation as to be worthy of the Guinness Book of World Records.

So we have, Mr. Minister, 95 percent of the labour-management disputes being peacefully and voluntarily resolved through a contract. We have the remaining 5 percent, the vast majority of which are subject to a short disruption by either management withdrawing the company's operation or labour withdrawing their services. We have a smaller number that we already have the machinery of mediators, arbitrators, eminent persons and this Legislature to deal with.

The reason we have this section, in the face of that overwhelming evidence, is one man's pique, chagrin and bruised feelings. That's the Premier. The Premier could not wave a magic wand and solve this once-in-a-generation labour dispute, so he has decided to bring down the hammer of Thor on labour-management relations in this province. We have discussed that before, and that's what this section embodies: pique.

What was one man's pique has become another man's peril — Mr. Peck, who was already chosen and therefore fatally wounded as an independent person. There was no labour input to that choice; there was no management input;

[ Page 1713 ]

there was no input from this side of the Legislature. It was out of the blue — as a matter of fact, we're not sure there was input from the Minister of Labour — from the troika that drafted this legislation: the Premier and his two advisers; one who chose his own job description here and helped draft this section.

[11:45]

So one man's pique has become another man's peril, and that man should pull the plug on this section, because he's not going to succeed. Mr. Peck must know that, as one of the most experienced labour arbitrators in this country. He must know that he is doomed. He must know that this is not going to work. He himself should send a signal to you, to the government, that you should have withdrawn this bill. You should have done it right the first time. You should have had what over 75 percent of the people of this province want: a cooling-off period, and let's have another go at this. The Premier rejected both of those. It is now for Mr. Peck to say it will not work.

I know it won't work. This section, which embodies so much of what is wrong with this unjust, unworkable piece of legislation, is fatally flawed. It is not going to work because it is not part of the election mandate that this government received to govern. It was not part of your election platform. It was not part of your asking for a mandate from the people of British Columbia. What you asked for, as a matter of fact, was exactly the opposite. You asked for a chance to change things in British Columbia, to bring about consultation, cooperation and a fresh start in British Columbia. Those promises have been broken. You have fractured that trust with the people of British Columbia because you broke your promises.

I think the minister must have had a very difficult time while he was going throughout British Columbia picking up 700 briefs, talking to labour and management and community groups, and making a genuine effort to consult. He must have felt betrayed when all along, starting last fall, there was a troika in the Premier's office putting together Bill 19, putting together all that is so wrong and unjust and unworkable and doomed to fail. He must have felt very betrayed.

This bill will not work, because it has not been put together by consensus. There is no consensus, therefore there will be no compliance. There will be non-compliance. You can see that coming directly at you. This particular section 62 is the ultimate betrayal of bringing about fair and just and healthy labour-management relations in this province. Hundreds of thousands of working men and women in this province do not feel part of this legislation; feel that it's harmful to what they believe in, and to themselves and their families. They are going to feel that this is an unjust law that they cannot and will not support; that it is doomed to failure. Hundreds of thousands of our citizens feel that you have betrayed them. You have betrayed their interests.

We will be, throughout the questions in debate on this bill, asking many questions. Those questions will be extensive. So much of this is so highly questionable that the questions will come. Many of them are very difficult, if not impossible, to answer. They keep coming back to the central, fatal flaw of this bill: it is imposed unwillingly on the British Columbia working men and women who make this province work. It was done by broken promises, by secret deals, by secret putting together of the most venal, right-wing ideological input that could be found by the Premier.

We will be talking about the problem the minister will face in exercising his discretion, because he faces an impossible situation too. He faces a situation where he has to make decisions that are an affront to due process, an affront to the rule of law. They are an affront to the predictability that we expect from our laws. They are an affront to the essence of our laws, which is a sense of fairness and of fair play. Those we'll be talking about, Mr. Chairman.

We say that it is indeed sad for British Columbia that we are here debating Bill 19 today, because we offered another opportunity for the Premier of this province yesterday to take this bad bill and the bad faith and the bad results and consequences that will come from it and give the people of British Columbia a cooling-off period. We offered a number of specific suggestions which we think the people of British Columbia, in the vast majority, would like to desperately see happen now. I think it's sad we're here today having to debate this bill. I'd like to use the word "mischievous," but it's not mischievous; it's Machiavellian in the fundamental sense that it affronts and tears asunder so much of our common weal. I would like to say in sadness, Mr. Chairman, that we have to be here today debating this bill. when the Premier had another opportunity to do the right thing, and he did the wrong thing.

We hope that this bill will not eventually go forward, will not be proclaimed, will not be put into effect and will not lead to the tragic consequences that we see coming, which we have been telling you about very clearly. We hope there is still a chance for British Columbia to heal the wounds, to indeed have a fresh start, to really have confrontation and cooperation, and specifically to have the healthy labour-management relations we all want.

MR. ROSE: On a point of order. Mr. Chairman, there was a little arrangement between the Minister of Education (Hon. Mr. Brummet), myself and the government House Leader that the minister would have an opportunity to make his statement before 12. We have no objection if he wishes to leave it until statements which usually follow or precede question period, but I'd like to honour our deal, because we made a commitment to him.

HON. MR. STRACHAN: Mr. Chairman, we're aware of that. I thought the Minister of Labour might have a further response to the Leader of the Opposition — a brief one — but he obviously doesn't. so I'll move the committee rise, report progress, and ask leave to sit again.

The House resumed, Mr. Speaker in the chair.

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

Ministerial Statement

PROVINCIAL SCHOOL EXAMINATIONS

HON. MR. BRUMMET: Mr. Speaker, I rise to make a ministerial statement, and I thank the Leader of the Opposition for allowing it before noon, because there is an urgency in that provincial examinations started this morning in the school system.

In response to media stories and announcements that the provincial examinations are threatened by the work-to-rule

[ Page 1714 ]

activities of teachers and hence should be cancelled, since there will be inadequate teacher participation in the marking process, I am advising everyone that the provincial examination schedule remains intact, and that exam papers have been sent out to schools. The ministry has signed contracts, through the standard process, with a sufficient number of qualified practising B.C. teachers to handle all marking of examinations.

Since students are beginning their examinations today, recent statements and their timing by the B.C. Teachers' Federation must be considered irresponsible, and could be very unsettling to students at a time when they are attempting to devote all their energies to their examinations. There are enough responsible and conscientious teachers in British Columbia, as most of them are, that we can rest assured our pupils will not be deprived of their right to write examinations and to have them marked by the usual process. It has to be the height of irresponsibility for the BCTF president to raise such an unwarranted concern at this critical time through the media — and, I might add, without prior contact with me or the ministry. Certainly a professional teacher, above all people, would have to know that some students don't need much of an excuse to try to avoid exams.

This morning in a couple of schools, I guess, there was some delay in starting exams because people were wondering, in view of that announcement, whether or not they should be writing the exams. So I have today sent a message to each school board asking them to assure teachers, parents and students that the examination process is in place and that marking will proceed as usual. Students are entitled to this, and the people of British Columbia have every right to expect that the students will be properly served by our education system.

MR. ROSE: Mr. Speaker, it has fallen to me, in the absence of our education critic, to respond to the minister. I thank him for the notice, and I thank him for delaying it in the hopes that our critic would return to the House.

I think the term "irresponsibility" can be thrown around all over the place. We can be highly partisan about that or not. I think it is another example of the erosion of the relationship between the government and 26,000 of its employees that this sort of thing would even be contemplated.

The minister has assured us that there are enough B.C. teachers, that he is, not importing them from the States or somewhere else, that people who are not familiar with our system.... There is a lot of confusion around it, and if there is an attempt to clarify the position of each, I think that's always a good thing. I think the main concern should be the students and their welfare. That is the number one concern. Like everybody else, I think some of the confusion stems from the fact that this announcement was made on the day that exams started, and there's more confusion coming from the government side of the House on the basis of whether or not examinations are crucial to a student's future.

Mr. Speaker, we've only had them since 1984. They were abolished for nearly ten years, and people graduated and went on on the basis of teacher marks. The minister is a former teacher. He knows that the research indicates that evaluation by teachers is actually superior to that of external exams. He knows full well that only 50 percent of the kids' marks ride on this. But it is the policy of the government to have those exams. I believe it's supported by the public. I don't think we need kid ourselves about the pedagogical and research arguments. It is supported by the public. Whether some people like it or not, that is the case. The point needs to be made here that the minister controls the graduation requirements. If there are not enough qualified markers, teacher evaluations would suffice, as they did for ten years before 1984, when they were brought back.

The other point I would like to make is that this isn't a withdrawal of services at all. It's not part of the decline in participation in extra curricular activity. It is an individual contract outside the school year with individual teachers, and I presume those people will honour those contracts. The minister has assured us that they will.

Interjection.

MR. ROSE: I wonder if the member from wherever he is with the loud voice would care to make his own statement. I'd be very pleased to listen to it.

Let me conclude. Students need fair examinations. There's no question about that. If there's any question about the exam or the marking being fair, then I think we could get along with teacher evaluations. Let's just save ourselves $2 million, which we could easily do, if there's any question at all about the adequacy of the marking.

Finally, this demonstrates, because of the confusion, because of the turmoil out there that this has caused, the effectiveness of Bill 20.

Hon. Mr. Strachan moved adjournment of the House.

Motion approved.

The House adjourned at 12:01 p.m.

Appendix

AMENDMENTS TO BILLS

19 The Hon. L. Hanson to move, in Committee of the Whole on Bill (No. 19) intituled Industrial Relations Reform Act, 1987 to amend as follows:

SECTION 49, by deleting section 49.