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Routine Proceedings
Industrial Relations Reform Act, 1987 (Bill 19). Committee stage. (Hon. L. Hanson) –– 1785
Mr. Lovick
Mr. Gabelmann
Mr. S.D. Smith
Ms. Edwards
Mr. Clark
Mr. Jansen
Mr. Sihota
Mr. Jones
Mr. Loenen
Mr. Bruce
The House met at 10:04 a.m.
Prayers.
Orders of the Day
HON. MR. STRACHAN: 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 62 as amended.
MADAM CHAIRMAN: Shall the section pass?
SOME HON. MEMBERS: Aye.
MR. LOVICK: Madam Chairman, it's interesting to note that I obviously caught some members opposite by surprise, who were convinced that they were simply going to waltz through on this section.
The title of section 137.7, "Intervention by the commissioner," says it all. It demonstrates pretty clearly the concerns we have tried to elucidate and enunciate on a number of occasions: namely that this makes provision for an almost automatic intervention by a third party to the debate and to the disputes. We're suggesting, of course, that that is not the right approach to a ready solution for industrial relations conflicts.
More specifically, we have a number of concerns about this section. Let me, if I might, run through the entire section and itemize broadly and quickly what the concerns are. Then I want to return to some of the substantial and more significant issues revealed in this section.
First of all, for the record, we have concern that this commissioner has the right to intervene without being requested to do so; simply as a matter of course, to get involved in the process. We're not entirely sure it's compatible with what we like to call free collective bargaining.
More importantly perhaps, still under 137.7(1), is that the commissioner or a person appointed by the commissioner has the power to request that information regarding the dispute be granted. That again is a broad and very wide-open requirement that suggests to us that almost any information that comes into the imagination of the players can be requested and must, it would seem, be granted. The power, frankly, seems to be too much invested in that individual.
A second concern I have is in 137.7(3) and is again with the criterion, with the guiding light for this particular section. It is not anything to do with harmonious labour relations as the old act was; rather, if I can quote, it says the commissioner may do any or all of the following as he considers "necessary or advisable to facilitate the making of a collective agreement between the parties."
The predicament there, of course, is that a collective agreement, if you have a third party who is indeed saying this will be done, this should not be done, does not necessarily have to be voluntary in any meaningful sense of the term. This can indeed effectively provide a kind of prescription for coercion, a prescription for a kind of intimidation on the part of a commissioner.
If the only guideline in effect, the only criterion in effect, is to say, "Your job is to get a collective agreement between the two parties," knowing the reality of the economic system, knowing the reality of what can happen in terms of industrial relations negotiations, it may well be the case then that the commissioner simply bangs heads together and says, "You must do this," and the two parties, of course, will have no choice but to respond accordingly. It doesn't, as I say, strike us as a manifestation of good, harmonious labour relations.
Let me move on to subsection (4), and I think (4) and (5) are the two sections that we are most concerned about, namely what seemed to us to amount to a kind of final-offer selection process. What subsection (4) specifically refers to is that the negotiating committee of a particular bargaining unit, a trade union, can effectively have the rug pulled out from underneath it by law: namely, that the commissioner can in fact ask for and have granted that a vote be held among the members regardless of what the negotiating committee may want — that kind of intervention. Our concern with that, of course, is that it effectively delimits and circumscribes the strategy on the part of the trade union. If you have, hanging out there, a mechanism whereby the rank-and-file membership is going to be given the opportunity to vote on a contract, it necessarily limits the amount of room you have to construct in terms of setting up your own negotiating strategy.
We're suggesting that here is the glaring illustration of intervention on a massive scale. Let me quote, if I can, to make sure that we do indeed have a sense of what this clause refers to, and then I will elaborate somewhat more. Subsection (4) says as follows:
"Before the commencement of a strike or lock-out, the employer of the employees in the affected bargaining unit may request that a vote of those employees be taken as to the acceptance or rejection of the offer of the employer last received by the trade union in respect of all matters remaining ...."
What that says, of course, is that the negotiating committee, freely elected, democratically chosen by the members — note that: freely chosen, democratically selected and elected by the members — will have whatever it is doing taken away. In other words, its strategy, its right to say, "This is what we your representatives are doing for you, and this is what we want to do by way of approach to solving a particular problem," that power is effectively undercut. because what we've said is that a third party will now come in and say that whatever the union's bargaining or negotiating committee may be doing doesn't matter, because we are going to require that the offer from the other side be made public.
The minister may well want to argue the case that a comparable right is being given to the other side of the equation — namely management — because employers' councils, where those obtain, have a similar kind of mechanism in subsection (5).
The point is, however, that the analogy is demonstrably false. It is not the same thing to set up a council of employers as it is to set up a council of unions or a trade union. The difference is that in the latter case, the trade union case, what we're talking about is freely elected individuals as opposed to a collection of employers who join together strictly and only for bargaining purposes for settlement of a particular contract.
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Our concern, then, is that under subsection (4), we're effectively saying to those individuals who have freely expressed their wishes and delegated authority and responsibility to others to act on their behalf that they no longer have that sovereign right. Rather, somebody has an opportunity — has, indeed, every right — to interfere with what they normally do.
I just want to suggest for a moment if I can, Mr. Minister, that there is something very dangerous in that — at least, it causes me some sense of alarm — and that is that our entire system, remember, tends to be based on delegated democracy. We choose people to represent us. Indeed, all of us sitting or standing in this House have been chosen by that process, and we are given a mandate to act within the constraints of law and due process to represent our constituents' interests.
[10:15]
The same thing, of course, is true with a trade union. Trade unionists band together, and they elect executives and they elect negotiating committees to work on their behalf. What we're saying in the case of the trade union is that we are not, however, going to let you carry out doing what you do without constraint. Instead what we are going to do is introduce another structure, another mechanism that effectively takes away your right to do what you were elected to do.
I would just ask the minister this: does he not agree that following the logic enunciated in this particular section of the bill would effectively amount, if applied to this chamber and the overall system of choosing representatives, to government by referendum? In other words, what we're saying is we no longer have the capacity and the right to elect our delegates to represent us and to give them freedom to operate. Instead, what we're going to do is to say you are allowed to operate only insofar as some ubiquitous and not terribly clear third party agrees that that's acceptable. Just as that system, that approach, is not entirely compatible with parliamentary democracy, neither is it compatible with union democracy. So that's a concern we have in 137.7(4). We think it's a blatant intervention in the process. It effectively amounts to a taking away of the rights of individuals who were duly elected to represent their people.
I'm a little concerned also about subsection (8). What concerns me is nothing sinister or profound but rather what it seems to suggest about the overall intention of this section. What subsection (8) does is tell us that only one vote will be allowed; in other words, one can only go and canvass the total membership one time during the course of any dispute. I'm wondering why. If we are in fact saying that we don't trust the negotiating committee to be bargaining in good faith, which seems to be the assumption underlying this section, by the way; if we are indeed saying that, and we're saying that the commissioner then should be allowed to intervene in the name of the public good or the public order, or some such thing, why are we setting it up as a lottery system? Why are we saying you only have one shot at it?
What you, the commissioner — or his or her designate — must do is figure out what the appropriate time is to go around the duly constituted negotiating committee and throw the question to the membership. What is the appropriate time? That's why I call it a lottery: it becomes a gamble. It becomes a question of saying: what's the appropriate time to pose this question to the so-called rank and file, because we've only got one chance? Therefore what the commissioner has to do is consider a whole bunch of strategic considerations. When should we intervene? The obvious question, then, is: if in fact it is a good mechanism, if it is indeed the case that we need to give the commissioner this kind of power, because we don't trust the parties directly affected to solve their own problems, and therefore we need some kind of omniscient and omnipotent third party intervening to solve all those difficulties, why not then allow the commissioner to intervene and to act in this manner half a dozen or 20 or 30 times? Why limit it to one? If it's a good policy, what possible reason is there for saying he's only allowed one shot at it? I would love to hear an answer to that question. I'm not sure there is a good answer, but I would certainly be more than interested in hearing one.
The other questions that come to mind on this particular section are complicated and complex, and I am sure that a number of my colleagues also want to address this section, as I too shall have occasion to do. I'll therefore pause for a moment and allow the minister to perhaps respond to at least some of the specific questions or points that I have raised thus far.
Interjection.
MR. LOVICK: Oh, I'll have more.
HON. L. HANSON: Madam Chairman, I think this system of answering a question and jumping up and down.... The position I'm going to take is that I make a note of the questions and answer them in some numbers at one time, instead of....
To answer the questions that have been raised to this point, there's certainly no suggestion that there is a lack of trust in the bargaining committee. I think the member is making an assumption, which, I guess, he's entitled to make; but it certainly isn't the intent of this legislation to do that.
His second concern was that the two related votes in subsection (4), which he covered earlier, or the one vote that can be at the request of the employer — and subsection (5) deals with the reciprocal of that for the employees — is the one opportunity that those two parties have to request a vote of the commissioner. I'd refer to subsection (8), which says that not more than one vote in respect of the same dispute shall be held under subsections (4) and (5). That simply means that at the request of the employer or of the employee, only one vote is allowed. When we get to subsection (9), you'll see that during a strike or lockout the commissioner can order votes. That's dealing with after a strike or lockout. But the restriction is at the request of the employer and employees.
Madam Chairman, in section 62 we have a subsection (9) –– I would like to introduce to the House an amendment to section 62, 137.7, and the amendment will be (10). We will circulate copies of that amendment. In effect, it's the mirror of subsection (9) of 137.7, as it relates to an employers' organization. It says that during a strike or lockout, where more than one employer is represented in the dispute by an employers' organization, or an accredited organization, and the commissioner considers that it is in the public interest, he can require a vote of the employers' organization to accept or reject the offer of the bargaining agent for the employees. I move that amendment, Madam Chairman.
On the amendment.
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MR. GABELMANN: This amendment is acceptable. It deals with an issue that in fact we were going to raise: the fact that the proposal.... This, I must say in parentheses, indicates no commitment whatsoever on this side of the House to accept in principle this whole section or subsection. We still feel it's the wrong approach. But at least this amendment makes more balanced the requirements, inasmuch as an accredited organization is also required to accept or reject a proposal that might have been made by the employees' bargaining agent. So I don't think that debate is particularly necessary on this point. We will just proceed.
Let's do the amendment.
MADAM CHAIRMAN: The amendment has been moved by the minister. Shall the amendment pass?
Amendment approved.
MR. LOVICK: Madam Chairman, I must respond to the statement by the minister that there is no suggestion of lack of trust in the bargaining committee. I want to suggest that the reason I argue that that is not the case, that indeed what this legislation does.... What this proposal does is to demonstrably show that there is a lack of trust. I would ask the minister to simply follow me through this illustration of the logic of the proposition. How's that?
I'm saying that if in fact we, by legislation, make it possible for one of the parties to appeal to the commissioner that there be a vote.... Well, let me put it in blunter terms. If we, by legislation, say that the employer can appeal to the commissioner that the membership of the bargaining unit, i.e. the union, should be canvassed on the employer's offer, we do two things. First of all, what we obviously do is say that the bargaining committee is perhaps not, at least from the employer's point of view, sharing honestly and accurately and fairly with the employees what the employer has indeed offered. We must be saying that. There is no other explanation.
If, moreover, the government says that we provide that mechanism as a matter of course to the employer, as a matter of course we say to the employer: "You can appeal to the commissioner so that you can then ignore the bargaining committee and talk to the members." What other conclusion can we possibly derive than that the government is effectively saying: "We are willing to acknowledge that the union bargaining committee is not being fair and honest"? Therefore I conclude that there is indeed a demonstrated illustration on the part of government that it does not trust the bargaining committee to be entirely honest or to act in good faith with its members.
I'm not sure that I have elucidated that quite as clearly as I would wish, but I think the general outline of the case is sufficient to make the point.
Clearly this section demonstrates that yes, indeed, we are inclined to believe that the bargaining committee of the trade union is not always being fair to its members — is not always being totally above board and honest and ingenuous and all of that kind of stuff — and therefore what the government will do is set up a mechanism whereby the employer in a dispute can ignore the bargaining committee and say he wants his offer presented to the rank and file. If you do that, how can you possibly construe that to mean anything other than that we don't have faith in the bargaining committee; that we don't believe that they are accurately and honestly reporting to their membership what we, the employer in this case, are presenting? There is no question, Mr. Minister, that simple logic demonstrates that that conclusion is a valid one. It seems to me that there is no other possible conclusion.
I will leave that for the moment.
MR. S.D. SMITH: Madam Chairman, I want to postulate a scenario with respect to this section where I think indeed it would and could and will help to resolve industrial disputes and will therefore help to create more harmonious industrial relations in the province.
[10:30]
In that regard, I would like you to contemplate subsection (5) of this section. I would refer to the dispute with the Canadian Union of Public Employees and the OMMLRA last year in the interior of the province, where for a very long time a public dispute raged as to whether or not the local governments had had an opportunity to receive and share the final demands that had been made by CUPE. It was the position of CUPE that indeed they had not, and it was further their position that if the local governments had had that opportunity, then they would not have proceeded with their lockout.
Now it seems to me that whether they did or they did not was not really the sum and substance of the issue. The problem was that the parties to the dispute were operating on an assumption that the dispute could be resolved before the strike or before the lockout if they had the opportunity to receive that information.
It seems to me that this section simply provides the chance, in that instance, for local municipalities to receive the final demands of CUPE at the request of CUPE and to make a determination whether those final demands would be acceptable to individual municipalities. If upon receiving them the individual municipalities had rejected them, then CUPE would clearly have had the signal that the bargaining unit, the OMMLRA, were going to stand firm in their position, and of course if they had accepted it, that would have been the end of the matter. The result would have been, on the one hand, the elimination of a five-month lockout, and on the other hand a strong indication to the union, at the union's request — because after all, it was the union that was requesting this kind of procedure in this instance — that the OMMLRA's resolve was much firmer than they thought it was.
This is not a section that in any way suggests you can't trust the relative bargaining agents. It is not a suggestion that the management bargaining agent, the OMMLRA, is not to be trusted. It is not a suggestion that CUPE was trying to use that kind of tension in order to drive splits or wedges. All that is being suggested here, by this kind of process, is that the parties have an opportunity, before a strike or lockout commences — and I think that is key — to have a final go at the proposals on the table. Quite often it is the case, as it was in the OMMLRA dispute, where the bargaining agency for the management took their vote on whether or not they were going to support a lockout several months in advance of exercising that vote. It was that fact that created in the mind of CUPE the possibility that the individual municipalities, the members of the bargaining agent, were no longer in support of the mandate that had been given to them, and it is a simple process, in this instance, that would clear up that kind of misinformation or disagreement in a very sensible, measured way. If it was cleared up in a way that solved the contract, then obviously we would have harmony in terms of our industrial
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relations, and if it was cleared up in a way that demonstrated to CUPE that they were wrong in their assumption. then they would know what they were facing.
I think that this kind of mechanism, rather than diminishing the role of the individual bargaining units, will make them, first of all, more responsive to their individual memberships, because they will know well in advance that that mechanism is there. So they will maintain that kind of relationship with their membership so that they can maintain the strikes they have from the numbers and pulling together that it gives them. But also, it will ensure that there's a vehicle by which the.... Because in this process, each side makes certain assumptions about the relative strength of the other side. This kind of mechanism will give CUPE an opportunity to be certain in this instance that the OMMLRA is or is not supported by the individual municipalities. So I think in that way it will provide a vehicle, if the discretion that rests with the commissioner is exercised to do so, by which that kind of process can take place, and it thereby will create an opportunity for more harmonious industrial relations in our province.
MS. EDWARDS: I just want to follow up on this whole idea in (4), (5) and so on: the whole business of requiring that information be taken back to the basic parts or an organization beyond the people who represent those parts of the organization. I say "parts" rather than "people," because in fact we're talking both about the union — the employees, who would be people.... But the employers is the other side, as the minister says.
I think it's interesting to look more closely at it and wonder why it's written that way. First of all, as a democratic representative yourself, Mr. Minister, I think you might wonder why, if someone consistently kept asking to take the decisions that you make, and said: "Before you can decide, before you can say anything on that, that should all go back to your voters, every time." That's the kind of thing that you're saying. You're saying that the democratic process that puts forward the negotiating group on the part of the employees is not democratic; it's not working in a democratic way.
In order to look like it's even — and you know I applaud that initiative — you have said that employers, if they operate in an employers' group, shall suffer the same type of distrust. In other words, if we decide that their negotiating group hasn't operated well, we'll go back to the base and we'll make them do another vote.
What I'm wondering, Mr. Minister, is why it was only employers who operate in a group that that applies to? It seems to me that if you're willing to interfere in the democratic operation of the employees, who are negotiating on one side of an industrial dispute, why do you trust that the negotiating party on the side of an employer represents the feelings of everybody in that particular organization, which may be a major corporation? Why in effect did you not suggest that the negotiating committee should have to take the vote back to its board of directors?
MR. SIHOTA: Or a shareholder.
MS. EDWARDS: The shareholders, in fact, would be going even beyond that. Because if we're not going to trust democratic processes, then let's not trust them. Why in the world is it that we trust other processes and not the democratic process?
MR. CLARK: I just want to make a few comments on this section. This section really is the central problem with Bill 19 in a lot of respects, in terms of the major thrust of the legislation, and that's really a result of the power given to the commissioner. I might note that in section 137.7 all of those powers were untouched by the amendments which were introduced, which in some respects put a little bit more power in the hands of the minister.
I think it's really going to result in a great deal of uncertainty in negotiations. Any time you introduce that level of uncertainty, you're going to extend disputes, unlike what the second member for Kamloops (Mr. S.D. Smith) said, which I might deal with later on. This section really empowers the commissioner to intervene in negotiations right from the start, without being asked by any of the parties involved. It's really the trigger mechanism that refers matters to a fact finder, a mediator and a special mediator. The commissioner can make recommendations directly to the parties, or can refer to a public interest inquiry board. Then the commissioner, of course, can review the report of the public interest inquiry board and see if it has given — and this is in a later section — "due regard to such interests of the public as it considers are or are likely to be affected by the dispute...." If it involves a public sector employer, it can make it subject to ability-to-pay criteria in another section — all of those things. So the public interest inquiry board makes a report, and the commissioner can review it with respect to all of these other matters and then refer it back to the public interest inquiry board with instructions.
I think what happens here — not to exaggerate the point — is that the commissioner can intervene in so many different ways and continue the process so long that it smothers collective bargaining in a kind of bureaucratic process, which I think is counterproductive to getting an agreement. You know the old saying: "Justice delayed is justice denied." Nothing more frustrates the ability of two parties to come together and get an agreement than third-party intervention of this scale. You end up with processes in place that inevitably delay and frustrate the ability of the employer and the employees to exercise their economic leverage and power in bargaining to come to an agreement. By miring it in a process that, I think, is going to delay and frustrate the parties coming together in agreement is really counterproductive. It's really the central thrust of the legislation, and we believe very strongly that it is counterproductive.
It's in the interest of the parties to have a quick settlement. This kind of third-party intervention is really going to delay the matter, and will, I think, end in a great deal of frustration for the parties, and that's also cause for industrial unrest to a great extent –– I think the parties to the dispute will never really know whether they have the ability to use a particular bargaining strategy. In other words, the union will never really know whether it can go on strike because of all the different avenues available to the commissioner to thwart that endeavour, and the company will never know whether it can actually lock out an employee. When you take away the certainty of those mechanisms and allow all these other interventions, it simply drags the process on, and I think that a great deal of uncertainty hangs over the heads of the parties in negotiations.
Interjection.
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MR. CLARK: That was a very enlightened comment from the member for Yale-Lillooet (Mr. Rabbitt). He has talked in this House about being involved in collective bargaining, and he knows that neither the union nor management can exercise their prerogatives to negotiate a collective agreement if there are all of these other interventions available that cast this kind of uncertainty on the bargaining process and delay settlement of the dispute. It's going to cause frustration; it's going to ultimately cause a greater degree of disruption than would otherwise be the case, in my view. The parties can never really predict the chances of success from any particular demand because of this kind of process.
I guess I just want to ask one question, and I know the minister is taking a few notes. The one specific question I have on this section is that the old Labour Code allowed the minister to appoint an industrial inquiry commissioner. So there is another avenue for review by a third party, and that prerogative of the minister has been exercised from time to time, but very rarely, to intervene in intractable disputes. It seems to me, with all of these tools available to the commissioner.... Why is the industrial inquiry commission mechanism still in place? Or is it? Is there not a lot of overlap between those two mechanisms? How do you see those two playing together?
[10:45]
MR. JANSEN: Listening to the member for Nanaimo and the second member for Vancouver East.... They use the words "intervention" and "coercion." In fact, I read section 137.7 in exactly the opposite way. Indeed, we are looking....
Interjection.
MR. JANSEN: When you use that word, Mr. Member, it suggests an intrusion into the democratic process. I believe actually the opposite to be the case.
MR. LOVICK: What's the opposite of...?
MR. JANSEN: When we look at section 137.7.... I'm sure the member wouldn't understand that, because they always look at matters from a negative point of view. If you look, Madam Chairman, at subsection (1), through requesting the information.... Where they have commenced the collective bargaining process and the information is requested, does that suggest too much power? Where the bargaining process has commenced, indeed where we can be of some assistance to mediate problems between two parties, where we can be of help, is it too much power to suggest that we...? Are we being counterproductive when we request that information be supplied to us? I think not. I think that this government has shown that we want to help, that we want to provide the assistance necessary between the two parties.
Also, when we talk about section 137.7(4), we talk about "before the commencement of a strike or lockout." It's before the commencement of a strike or lockout. Throughout the hearing process the union members expressed the frustration of not being able to exercise the democratic right of expressing a vote in regard to what is very, very important and what some members on the other side take very lightly — the work stoppages that happen from time to time. Where families have their houses on the line and their livelihoods on the line, they're very much concerned. They request simply, Madam Chairman, that they be given that right, that democratic right that is vested in our country — the ability to exercise an expression of their confidence in, or support of, the positions taken in the bargaining process.
I strongly feel that section 137.7 is a section that really puts forward the assistance of the commissioner in addressing the concerns between the parties and expresses as much as possible our interest in resolving those differences and in providing a better and more productive industrial relations climate.
MR. SIHOTA: I want to deal with the point made by the previous speaker from Chilliwack, and also to direct some comments towards the minister.
The member for Chilliwack talked about expression of democratic rights. It strikes me as if this whole debate, particularly as it relates to subsections 137.7(4) and 137.7(9), is one that specifically is concerned about democratic rights, or at least in the perception of members opposite in terms of what happens with trade unions.
The feeling one gets when one reads the section — I guess there are a couple of them.... The first feeling one gets is there's a feeling on the other side of the House that, well, we just need one last vote, just before the commencement of a strike or lockout, and that will solve the situation.
I think the fact of the matter is that if one were to take a look at industrial disputes and study the history of industrial disputes, if you were on the verge of a strike or lockout vote, or in fact you've had one, at that stage one last vote on the final offer is not going to solve the problem. In fact, what seems to be missing implicitly in the section is the fact that there's a feeling that.... Let me put it this way: there's a feeling that you cannot trust the trade union leadership hierarchy. There's a feeling that they will not take in good faith the final offer to their membership, that they will not put it before them and ask them for their approval before going out on strike or not.
When a trade union is making a decision as to whether or not it wishes to take the ultimate economic weapon that it has, which is to strike, it's a very, very difficult decision. For those who have been involved in that type of process, I think they will tell you quite frankly it's a very, very difficult decision. Not only is the chemistry of the bargaining process in their mind — and they've been sitting in the room where both parties have been negotiating, and obviously that in itself breeds a level of frustration and hostility often, which will get either side to consider a strike or lockout — but also on their minds is the question of the economic effect of taking that strike or lockout vote. In the case of a trade union, to sit there and have to make a decision which you know will interrupt the paycheques of your members is not easy. Think about that for a moment. Your membership — the people who have elected you to represent them — may face an interruption in their income, their mortgage payments, their car payments, their grocery bills, and the activities they had planned with their families, particularly in the case of a longer dispute.
So the decision to move on to a strike is not an easy one, but usually by that point the situation has solidified, the principles have crystallized and the parameters of the debate are evident. That information is provided to the membership, and the decision is made after considerable thought. By that time it's highly unlikely that one final vote is going to solve the problem.
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More importantly, there seems to be an underlying message in sections 137.7(4) and 137.7(9), which is that you can't trust the trade union leadership to convey to the membership the parameters of the debate — that the leaders of the trade unions are out of touch with their members, that they are far more militant than their members, and that the leadership, because it's "out of touch" or "excessively militant," is not acting in the best interests of the membership, and if only the membership could have the chance to vote on that final offer sitting on the table, that would solve the problem.
In my view, it's doing an end run around the elected trade union leadership — democratically elected by that membership to represent them. It's a little like someone doing an end run around the cabinet, and going to members of the Social Credit back bench or to members of the party and trying to sell it on something. Inevitably, if that were to happen and a vote were taken, I would venture to say — although it shouldn't happen from time to time — that the solidarity of individual caucuses would take precedence over any concerns that they had at the end of the day on the issue.
The same type of thing, it seems to me, will happen with respect to a trade union vote. There will be an incredible amount of solidarity, particularly when it's someone other than their employee organization — their trade union leadership — that's requesting the vote, and particularly when the adversary, the employer, is requesting that the vote be taken. At that point you're getting into a matter of force, and you're beginning to challenge the legitimacy and the accountability of the leaders of that trade union. At that point the debate shifts away from the terms of the contract to a vote of confidence in the leadership. That's what all this means, in the chemistry of a hot and protracted dispute where people are thinking of going out on strike.
All you're inviting by the adversary — the other side — asking for a vote.... In the case of a courtroom battle, it's like my adversary saying to me: "Well, Mr. Sihota, go and ask your client one more time what he or she thinks." If I have no choice in that, it clearly is going to be treated as a vote of confidence in myself — or in this situation the trade union leadership. Given the fact that these people have been democratically elected and are involved in the negotiation process and the dispute, the overwhelming chances are that they will get a resounding vote of confidence, and then you're going into a strike or lockout — because I'm sure the same thing would happen in the employer's situation. Then you're going into that dispute with a vote that clearly is far more threatening to the other side — to the employer — because it's a solid vote. One could argue that on the one hand you're almost improving the card, but on the other hand you've also hardened the positions at a time when, in my view, they ought to be softened.
The underlying theme that emerges from this section — and I'd like to ask the minister if he agrees with this — is this whole mistrust or this whole feeling that the leadership of the trade union is out of touch with its members.
I know perhaps this has been quoted before; I think I may have quoted it in the past. It once again draws it back to a comment that Paul Weiler made in his oft-quoted book during the course of the debate that we had; but I think it has significant poignancy at this stage of the debate. He said:
"There are few institutions as democratic as a typical Canadian union, as accountable to their constituents, whether one considers the corporation, the university, the professional association, or even our political parties and governments. Employees choose by majority verdict whether they want union representation; they often have the opportunity to vote in favour of a rival, raiding union; they elect the officers who exercise authority in the local unit, and send delegates to conventions which select national officers. More important, it is the employees themselves, not these officials, who make many of the key decisions in their collective bargaining regime: to ratify contract settlements, to authorize strike action, to raise their union dues, often to discipline individual members, and occasionally even to set the salaries of their officers."
He says there are few institutions as democratic as trade unions; and yet the thrust of this section is basically to challenge that democratic process. The member for Chilliwack (Mr. Jansen) says: "Is it not democratic for them to have a vote?" Of course it is. And of course they've exercised the option to have that vote. They exercised it when they elected their officials. They exercised it when they decided to select the bargaining committee. They exercised it when they decided to set out the terms that they wanted to take to the table. They exercised it when they considered other votes. They exercised it when they considered the strike vote. That democratic right, that free right, to vote happens far more than, as Weiler says, within the political process.
It was only a short while ago that the Premier of this province talked about referendums on significant issues in the province. Of course, now he's backed down on that promise with respect to Bill 19.
The right to vote is exercised over and over again. One more vote is not going to make a difference. It is particularly offensive when that vote happens not at the request of the democratically elected trade union officials your leadership — but at the request of the employer of course through the commissioner. It's particularly offensive when the thrust of that section appears to suggest that these officials are out of touch. I just don't think that's true. And if I'm wrong, I would like to ask the minister, in concluding, what comment he has with respect to the tenor of my submission, which is that the thrust of this section, particularly 137.7(4) and (9), is a lack of trust on the part of the government with respect to the democratic process in selecting trade union officials.
Is it not true that the purpose of the sections that I've quoted is simply to do an end-run around the leadership of the trade unions because of an assumption on the part of the government that it believes that these people are not representative of their employees, despite the arguments that I've made? Is that not really what the government is trying to do here?
[11:00]
HON. L. HANSON: I have suggested earlier that I have been making notes of the various concerns of the various members as they expressed them. Instead of popping up every question, I will answer after there have been a number of speakers. But I'd be pleased to speak for just a moment. It's not a distrust of the bargaining unit members, or the bargaining team, which, as the member said, are democratically elected. I certainly have no disrespect for the process that they go through to elect their bargaining committees and their other officers. I'm sure they're very democratic. I'm not aware of them all, but I don't have any difficulties
[ Page 1791 ]
with that process. I guess various constitutions have various methods; I don't know if they're absolutely all identical. But I accept the fact that they are democratically elected; I certainly wouldn't dispute that fact.
Something we're suggesting here is that the people most affected have a right to express their opinion before it gets to that very disruptive stage of a strike or lockout. It's not a question of mistrust. Bargaining involves a certain amount of buildup of pressure on both sides, as they go through the process. We think there should be an opportunity for those people most seriously affected to have an opportunity to express their opinion at that point.
It's interesting to look at some of the experiences in another jurisdiction that suggest that this could be a very effective method. In Ontario they've used it for a number of years; I'm not sure exactly how many. In the last year or so there were 27, and the total of such requests made — again, I'm not sure exactly when it was put into force — was 137. The results were that 23 of those offers were accepted, 70 were rejected, 34 settlements were reached prior to that vote, and nine of those requests for a vote were withdrawn. So there is some evidence of the merit of that vote.
I don't accept the premise that it's predicated on a question of distrust of the bargaining committee in their desire to communicate it. I think it's more an assurance that the people most directly affected have a right to express their opinion on the last offer, I guess, in this case.
MR. SIHOTA: The minister makes some interesting points. His thrust is to say that those most directly affected ought to have the opportunity to vote on the final offer. It seems to me that that raises two issues. First of all, it raises a technical issue, and then it raises, in my mind, a larger philosophical issue.
The technical issue is this. What is the final offer? The employer could put forward an offer; there could be a vote and it could be rejected. Then the employer can amend that offer, only in a minor way, between the first vote and a time uncertain, and request a subsequent vote. The substantive portions of the agreement may not have changed at all, but the commissioner, as I see it, has no option but to hold that vote. As I say, that is more of a technical concern. I see the minister querying. That's my reading of the legislation: there could indeed be a vote again and again, even though the substantive aspects of the offer may not have changed at all, and it could be classified as the final offer.
The larger philosophical concern is this. If the minister feels that the employees ought to take a final vote on the issue before going to strike, it still doesn't address the question of it being the employer who has the ability to trigger that vote. It doesn't address the solidification, question of confidence issue that I raised earlier on. Philosophically, you have to leave it up to the employees' organization itself to decide whether the final offer will either be put to a vote or canvassed thoroughly with the membership. I believe, philosophically again, that it ought to be canvassed thoroughly with the membership. My experience is that it is; that because of the financial impact on members of going out on strike, the final offer is inevitably looked at very closely by employees. They've got to, because they're making a critical decision, in terms of interruption of their own income when they decide to go out on strike. They are not going to do that without being familiar not only with what is on the bargaining table but with the arguments as to whether what is on the bargaining table is deficient one way or the other. So it seems to me that that is already happening in terms of employees being able to be totally familiar, immersed and able to canvass the content of the final offer before making the decision to go out on strike. They've got to be; it's by implication. If my income was going to be interrupted, then of course I would want to be on top of the issues as well.
So I think it is going to happen, but asking that it happen at the request of the employer, and the employer only, is unfair. It brings about another issue with respect to confidence, and it ought not to be triggered in that way. It is going to get canvassed, it is going to get discussed, and employees are going to know what they are going to be doing before they go out on strike. Hence I can’t see the rationale behind the employer....
Time does not permit me to go on, although I had some other questions. I will pop back in the House in a few minutes, because I do have something else I have to attend to. I think one of the other members wishes to make an introduction, so I will step down at this point and come back and continue this matter with the minister a little bit later on today.
MADAM CHAIRMAN: The second member for Okanagan South would like leave to make an introduction.
Leave granted.
MR. CHALMERS: Today in the gallery we have some 29 students from the Kelowna Christian School here to watch democracy in action and probably to learn how the same question can be asked 22 different ways. With them they have chaperones: Mrs. Phyllis Mitchell. Mrs. Sharleen Kruschel, Mrs. Elsie Biersteker and Mrs. Shirley Sawatsky. I would ask, on behalf of the first member for Okanagan South, that these people be welcomed here today.
MR. CLARK: I am a rookie here too, Madam Chairman, but we haven't been asking questions 22 different times. But we could; you should remember that.
I just want to touch on the industrial inquiry commission aspect of the old Code and how it seems to be that there are a lot of mechanisms for intervention by the commissioner in this section entitled "Intervention." The old Code had a provision for the minister to intervene in extraordinary circumstances with the industrial inquiry commission. That is retained in this legislation, so I am interested in the minister's comments regarding essentially why he would feel compelled to retain that section of the old Code, given all these new mechanisms for intervention, and how he sees the two playing — or the sort of dual-track process for resolving intractable labour disputes.
MR. GABELMANN: We are ready to move on, and we could move on as soon as the minister responds. That is why we are waiting.
HON. L. HANSON: There were a number of questions raised by various members, and I have been keeping note of them. I think one question was the ability of the commissioner to require information; I think it was raised in one of the earlier presentations. It seems to me that the commissioner, in order to be able to perform his functions.... He needs information to be able to perform his functions from a
[ Page 1792 ]
knowledgeable point of view. So I think that is very well justified.
There was another question, I believe from the member who has left, on the number of times that the employer could require it. I think it is very clear in subsection (8) that the employees or the employers can.... It's restricted very specifically to one vote per dispute. I don't think there's any question of that.
The commissioner does have an opportunity to order more than one vote, but I would think that that would be extremely unlikely to happen, because the commissioner's mandate is to enhance the bargaining process, not to repeat it. With his knowledge of what is happening and what has gone on with this particular dispute, he would use that with great discretion.
I think the last one was the question of an IIC. The IIC provisions have certainly been there since 1973 and have been very rarely used; I don't think there's any question of that. I believe that the range of powers of the commissioner will be used very sparingly too. There may be some overlap between an IIC and the public interest inquiry board, but I think that's a deliberate overlap. The main difference is that the public interest inquiry board will be more visible; it will take place under public scrutiny.
I refer to section 122.1:
"The minister may, on application or on his own motion, make or cause to be made the inquiries he considers advisable respecting industrial matters, and subject to this Act and regulations, may do the things he considers necessary to maintain or secure industrial peace and promote conditions favourable to the settlement of disputes."
That hasn't changed, and I guess what the member is suggesting is: "Why are you giving it to the commissioner when it's still an option of the minister?" An industrial inquiry commission can be appointed at any time; it doesn't require a dispute in order to be triggered. I think that under some very unique circumstances there is a requirement that the minister, as such, do retain that ability, and it may not have a direct relationship to an actual dispute.
[11:15]
MR. GABELMANN: I just want to make it clear as we move on here, Madam Chair, that in no way should the member for Vancouver East's comments be construed as meaning that we're not in favour of maintaining the IIC option. It's clear that that option should remain. It's clear, however, that there's no longer the intention of using the IIC for dispute resolution, because all of that now is here in this Ed Peck section.
The IIC remains, however, a useful mechanism for broader industrial inquiries; for example, inquiry into how this legislation is going to impact on the construction industry before it's proclaimed. It could very easily be established under the IIC provision, and it might be a very useful thing to do. I hope the minister would take that kind of suggestion, among others, into play.
We have talked about 137.7 at some length this morning, and I think have made all of the points we want to make about how we feel this intervention by the commission is inappropriate, wrong and counterproductive to industrial relation dispute resolution, to harmony and, in fact, to the economy of this province. I'm not going to go through all of those arguments again, other than to say that whether or not the commissioner uses the powers that are available to him in this legislation is less the point than the fact that these powers exist. It's the sword of Damocles that is as much a concern as the actual downward motion of the sword. The fact that it hangs there is at least as damaging as if it were used. It's as damaging if it sits there unused as it is if it were used. I don't think the drafters of this legislation and the government understand that point, and I don't think they understand that these kinds of powers and this kind of opportunity for intervention is what so angers people in the trade union movement and so stiffens their resolve to not cooperate with legislation that could do them in at any point. Whether or not the legislation would be used doesn't matter; the fact that it's there is sufficient damage.
I want to move on to the essential services section, which is a new section. In a sense, it's better that the minister have these powers than Ed Peck. The original section would have allowed this non-elected person to make very subjective decisions about when the so-called public interest is affected in the delivery of so-called essential services. That power now rests with the minister. It doesn't make it any better.
I'm sorry; I shouldn't say that, because it does make it better in one sense. It makes it better in the sense that at least the minister is accountable to this Legislature, and that's better; I need to acknowledge that. It's pretty clear to me that if the commissioner, in reporting — to use the verb in the first line — to the minister, reports about a dispute and makes a suggestion in respect of essential services, he won't have much credibility in that job if repeatedly the minister turns down his advice. If the minister is repeatedly turning down his advice, then no doubt a new person will soon be hired.
So I think it's a logical thing to conclude that whatever Mr. Peck wants, the minister will give. If he doesn't, there is an obvious lack of confidence in him. I think that underlies the comment that we and others have made that all that this amendment really does is to place a phone call into the mechanism and into the system.
I want to deal, however, at this point with the whole question of essential services. It used to be, and I think should still be, that essential services were when an immediate and serious danger to life, health and safety could occur as a result of the withdrawal of labour. Nothing else is essential in our society. If someone is going to lose his life or be seriously endangered in terms of his health or safety, which is related to his health, then clearly one could argue that it's an essential service. But nothing else is essential. If the ferries were an essential service, they would run all night. They don't, because they're not an essential service. I live in a riding that's....
MR. LOENEN: I'd like your constituents to hear that.
MR. GABELMANN: Well, I don't mind saying this. I've got Quadra Island, Cortes Island, Malcolm Island, Cormorant Island and a series of other islands that are serviced by ferries, and I get 70, 80, 90 percent of the vote in those islands. I've taken this position clearly and loudly, and the people there understand it and accept it and agree with it. There's no problem. Members who don't have ferries in their ridings, like the member for Richmond, don't understand that.
MR. LOENEN: You're killing B.C.; you're killing tourism.
[ Page 1793 ]
MR. GABELMANN: The member for Richmond says we're killing B.C. What the member for Richmond doesn't understand is that these essential services will be provided less often in the future than they are now with this kind of legislation, and that's the underlying, fundamental point that we've been trying to make for however many weeks this bill has been debated. No matter what you do with legislation — and I'll come to that in a few minutes — if people can't live with it, the law won't matter.
Police strikes in the Maritimes were illegal for years. We always had them. There were police strikes in every Tom, Dick or Harry community in the Maritimes. Every year you'd read about dozens of them, it seemed. There weren't that many, but it seemed there was always a police strike in the Maritimes and Quebec over the last two or three decades. They were illegal. Police strikes have been legal in this province, and we haven't had them. It seems difficult to get through to government members this essential point. If you make it lawful to do something, and you establish a mechanism by which frustrations can be resolved, you don't have the denial of this essential service — in this case, the police service. If you make it illegal and have no mechanisms, you have all kinds of strikes. They're illegal strikes, but you still have them. That is such a fundamental point in dealing with the basic human right to work or not to work. It seems so obvious, so logical, so elemental, that it is frustrating dealing with a group of members of this House who don't seem to understand it.
I acknowledge and I understand why the public in large numbers feel that if you had a law saying it's illegal, that would solve all the problems. This is essentially a law saying that essential service disputes are illegal. You go through the hoops and everything, but that's effectively what you end up doing; and I will get to the point in a minute about how everything now is essential, as defined by this section. But we need, first of all, to deal with the basic point. If there are life-threatening situations, workers who provide that service have always provided that service. Trade unionists have always, before a strike in an industry or service that has the potential of impacting on health or safety or life, instructed some of their members to provide the service. It used to be done entirely voluntarily by the trade unions involved.
More recently the Labour Relations Board has got itself involved in designating certain people as essential to make sure that there wasn't that kind of threat to life. It's always been done. But now we're moving this concept of essential services from "essential..... . The only thing really essential in life is that you don't lose it, or have it impaired in a way that might threaten it. I can't think of anything in my life that's essential, other than preserving my own life and that of others around me, and for that matter any human being's life. Nothing else really is "essential." If I can't get to Vancouver by ferry tomorrow, does my life change? No, it doesn't. But the real question is the need to design laws to make sure that we can get off the Island every day. So what do you do? Do you have a law that says you will be breaking the law if you don't provide the service? Or do you have a law that encourages dispute resolution in a voluntary way that in fact encourages the lack of disputes?
That's the central point of this whole debate, and we have been unable to get through to the government on this point. The law they're making, especially when you come to things like essential services, guarantees the Maritimes police situation, not the British Columbia situation, where police officers have had the legal right to withdraw their services. As I said before, when they have the right, they don't; where they don't have the right, they do. That just seems to me such an elemental fact, and for the government not to understand it, particularly when it's a government that talks about freedom — the freedom for individuals to do their own thing and not be impaired by government and its agencies.... But we've made that point before, too.
We have moved since the early seventies from a position that essential services are life-threatening situations to one where it has got broader and broader, through the '79 amendments and the '84 amendments, where the economy somehow became an essential service, to this section, which allows the minister to declare essential any activity in this province that might by its absence for some days pose a threat to the economy of the province, to the health, safety or welfare of its residents, or to the provision of educational services. What have we got right there? You have every conceivable dispute where the participants have some bargaining power. You do not have any dispute where the participants have no bargaining power, such as a situation where the strike is being scabbed. If that, all by itself, is not an illustration of how unfair this legislation is, and if people can't see that, then clearly we have been talking into the wind for ten weeks now, and we will never make our point clear. The Trail dispute at the present time, the forestry dispute last year, or any significant industrial dispute of that kind could be declared by the minister a threat to the economy and therefore would be declared an essential service.
I am not sure this word is parliamentary, but I think it is appropriate, and I am using it as a verb: that bastardizes the whole concept of essential service. It makes the concept absolutely irrelevant; you no longer have a concept of essential services. What you are saying is that everything the government feels could hurt the economy is essential.
The tragedy is that you take bargaining power away from people by that declaration. People who have no power will never have that essential service declaration made on their behalf, because their jobs are being scabbed, and there is no threat to the economy. If this section does not symbolize — as others have done, I suppose — this whole awful bill, then nothing ever will.
[11:30]
I won't belabour the point. I think we have made it in a variety of ways. It is inappropriate to free collective bargaining. It violates the Geneva conventions which call for free collective bargaining. I don't think this is too personal, but for a government that has as its leader a practising Roman Catholic.... He should know that it violates everything the Catholic church stands for in terms of issues that the Pope is enunciating from Poland to Chile. On every count, those standards, those goals and those appropriate philosophical positions are being violated by this government in a way that is difficult to speak rationally about.
AN HON. MEMBER: Aye.
MR. GABELMANN: Well, the member can say "aye," which, to those people in the gallery, simply means he wants us to stop the debate, move on and have a vote on this section. That's what this word means in this context.
[ Page 1794 ]
MADAM CHAIRMAN: Hon. member, your time has expired.
MR. GABELMANN: Oh, I'm sorry. Already?
MR. JONES: I apologize in advance for my voice; I think I'm suffering a serious danger to my health at the moment. But I did want to make a few comments on this section, particularly as it relates to teacher bargaining in this province.
It seems to me that Bill 19 and this section in particular really symbolize the philosophy of the government. This government gave to teachers in this session the right to strike on one hand and took it away with the other — sort of the "now you see it, now you don't" philosophy. Although this section certainly affects all workers in the province, it introduces I think in a substantial way the section on education.
As the member for North Island (Mr. Gabelmann) pointed out, I guess that there is a need for designation of essential services in this province, and it's the question of degree. It appears to be the government's philosophy that all workers in this province are essential, and fundamentally the right to strike, the right to withdraw one's labour, has been taken away, except, as has been suggested, in the area of teacher bargaining, where teachers will have the right to strike in the summer and on weekends.
I guess we could look at what was existing prior in the Essential Service Disputes Act and compare it to what we see in this legislation. Previously I think we had a section that suggested that if there is a substantial disruption of the delivery of education services that exists or is likely to occur, then it is possible to invoke the Essential Service Disputes Act. But what we see now in this legislation is a much broader, heavier section dealing with far more than just the substantial disruption of educational services; it's the entire provision of educational services.
I think I'll sit down and ask the minister to comment specifically as it relates to teachers' bargaining. Who asked for this heavy-handed approach? Why does the government see the necessity of broadening this part? Actually the whole section has been broadened substantially. Before I go on, I would very much appreciate the minister commenting on that.
MR. S.D. SMITH: This section, unlike what has been stated for the last few minutes, does not prevent strikes. Neither does it take away the so-called right to strike, which I call "so-called" because, as we all know, recently the Supreme Court of Canada has ruled pursuant to the Charter, which the members of the NDP so strongly supported, that indeed that so-called right does not exist.
What this section does do is impose some responsibility on society to take action if a lockout, for instance, has the effect of threatening the economy, and if a lockout, for instance, has the effect of threatening the health, safety or welfare of individual residents, and if a lockout has the effect of threatening education services.
If that happens after the lockout has occurred, and it has affected third parties, then this section imposes a responsibility on the minister to take some steps to deal with those threats. It seems passing strange to me that people who are here to serve the public of this province would oppose giving tools to a minister to step in and order a cooling-off period, which is what he is entitled to do, or to make certain designations about facilities where he has concluded that a lockout has, in fact, threatened the economy; where he has concluded, for instance, that a lockout is threatening the health and the safety and the welfare of individual citizens; or where he has concluded that a lockout is affecting education services.
I think that we would want the minister to step in under those circumstances. I'm surprised, frankly, to hear the passion with which some of my colleagues in this House who sit on the opposition benches oppose this. There is no way in which this section and this form of responsibility does what you are saying. It simply does not. There is no way that a minister who has to exercise this discretion could get away with using it in the way you suggest, which is to eliminate the right to strike.
We all agree with you. No one says that by law alone you can eliminate the possibility that someone will withdraw their services, if they so choose to do. The question, it seems to me, is: in the event that they do, and in the event that the consequences that are contemplated by that section occur, what is a reasonable and fair and appropriate response when a dispute threatens the economy, when a dispute threatens the health or the safety or the welfare of individuals in the province, or when a dispute threatens educational services? What is a fair and reasonable and appropriate response to that?
Why do you find it to be the case that ordering a cooling-off period somehow is not a fair or reasonable or appropriate response where that is happening? Or where under subsection (b) the council is designated to direct that certain facilities are deemed essential where they are not now? What is wrong with that? What is wrong with that, if the effect of the dispute is threatening the economy, if the effect of the dispute is threatening the health and the safety and the welfare of individuals in the province, or if the effect of the dispute is threatening educational services? The question then is: what is an appropriate response, and how ought the minister to exercise his discretion?
The question of how you measure that is an interesting one. We have seen and heard today the member for North Island (Mr. Gabelmann) say that, for instance, he does not believe that the ferries are an essential service. He said specifically that the ferries are not an essential service; and that is a very good point at which we ought to make the line of demarcation between the view that is held by members on this side of the House and the view that is held by members on that side of the House, and indeed within their own caucus.
I would ask the first and second members for Victoria (Mr. G. Hanson and Mr. Blencoe) to stand in this House and support the position of the member for North Island (Mr. Gabelmann) that ferries in this province are not an essential service, and that in the event of a lockout of the workers on the B.C. Ferry Corporation, which would have the effect of cutting off supplies to this area for a certain period of time — or a long period of time — the minister ought not be clothed with the authority to recognize that which would be obvious to every citizen on southern Vancouver Island, at least: that there is a threat to the economy and that there probably could be a threat to the health or the safety or the welfare of individual residents.
Why would you want to deny to the Minister of Labour the responsibility under those circumstances to step in and ensure that that threat is removed, to step in in a way that I
[ Page 1795 ]
think is entirely reasonable, where he would simply order a cooling-off period? Why would you object to that? What is so incredibly difficult for you to accept about a proposition that a Minister of Labour will be granted and have imposed upon him the responsibility to deal with those kinds of threats in the entirely reasonable fashion, such as that given to him, of ordering a cooling-off period?
MR. LOENEN: Madam Chairman, I've spent the morning here listening to the debate. I was away for a few days; it's good to be back again. I do wish to make a few comments. I heard the member for North Island tell us that it is better not to have laws outlawing certain actions, because if we don't have such laws, people will naturally automatically do what is correct and proper, and making such laws will somehow aggravate the situation, will cause people to not do what is proper. I just find this incredible. I think it's utterly naive. and certainly my experience runs counter to that.
[11:45]
I'm glad that there are people who have such idealistic notions of how we can run a society, but I must confess that it's not within my experience that in fact that is so. If we carry that principle through, I suppose we could abandon the Legislature and simply go back to some kind of state of nature or whatever, and let everyone do as they please.
The other point the member for North Island (Mr. Gabelmann) made was that this section violates free collective bargaining. As the second member for Kamloops (Mr. S.D. Smith) pointed out, the right to strike, the so-called right to strike, is not a fundamental right. The Supreme Court of Canada has just recently ruled on that, and it's understandable that it's not a fundamental right. No one needs to feel coerced to work for working conditions and wages that they're not happy with; they can walk away from such a situation. But what the right to strike entails is that you not only have the freedom to walk away from a situation that you're not happy with, but you're also trying to prevent everybody that's unemployed from taking that job. That is something that can never be a fundamental right.
I think there are overriding reasons, concerns and interests in a society which in certain instances limit the so-called right to strike. It would be foolish, indeed it would be abandoning our responsibility over society as a whole, for us not to recognize that. Therefore when the member for North Island, the labour critic, tells us that this is a violation of free collective bargaining, I think he's doing both himself and the people of this province a disservice, because clearly that is overstating the case. It's exaggerating to such a degree that it becomes an utter distortion.
MR. BRUCE: Madam Chairman, I'd just like to comment, after listening here, in respect to essential services and what was stated by, as I heard it, the member for North Island in regard to the question of ferry service being essential or not. If I heard him correctly, I understood him to say that in his opinion, and certainly that which he has gained from people who live on the islands in his riding, he would feel that the ferry service is not an essential service.
I have an altogether different view of that, and that's probably not surprising. I too have in-riding ferry service, as well as both I and the member for North Island sharing the same ferry service to the mainland.
One of my islands has no services whatsoever on its shores. It has no hospitals, no schools, no drugstore, no grocery store, nothing at all. In fact, if that ferry link is not there, they're in very grave difficulty. Their whole lifeblood.... That link is like a bridge to the community of Vancouver Island — the mainland, if you like — and in their view it is a very, very essential service for their livelihood and their way of life. I certainly appreciate that there is the question, that has to be reviewed. of what is essential and what is not essential. But I have no problem at all with the minister having the authority in that matter, and the act is written that he be able to deem it essential. There may be degrees within that ferry service, and the member for North Island has a different view than me.
In regard to the overall ferry system, from the mainland to Vancouver Island, and if we're talking about essential service for life and limb, I suppose the case can be made that we have the hospital and care facilities on Vancouver Island and that ferry service may not be needed to transport people to the mainland. But there is a much larger question of economic survival, and a much more personal question of jobs and the ability of people to find work. That essential link of ferry service to the mainland can have a phenomenal impact on the way the Vancouver Island economy can grow, or conversely, shrink and stagnate. It's certainly not something that should be taken lightly, in respect to whether or not our ferry service is essential. There's a given about that one little ferry service I mentioned — that they have no services on that island at all and it's very much an essential service. But when we come back to that overall question of the lifeline and lifeblood of the economy of Vancouver Island, there's that whole aspect of knowing that that ferry service is going to be there and is going to be running, and that the minister has the ability or the wherewithal within this act to be able to determine, and set right if there's a problem, that aspect of making sure that essential services for the people of Vancouver Island are looked after. As one who has lived on the Island all my life, born and raised here. I know that ingrained in the economy of Vancouver Island is the fact that those ferries from the mainland to Vancouver Island, the ability to transport our goods and supplies back and forth, and the ability to send the message that this is a stable economy, a good place where people can invest — that you will be able to get your goods and your services to and from the larger markets of the mainland, throughout this province and throughout this country.... It is essential that we be able to maintain that.
No, it is not like Poland at all. It gives us the individual opportunity to grow and to expand. The whole aspect of the union movement and the development here on Vancouver Island, where the union movement has really fostered and grown, is very strong and is equally ingrained in my blood and in those of us who live on Vancouver Island. But to be in a position where we cut off our nose to spite our face by having those links that are essential for each and every one of us in the broadest sense to grow and develop.... It is extremely important that it is there, or that there is the ability, through the auspices of the minister, to step in and make sure that those services are able to run.
So certainly there are lines and periods when one has to define the aspect of essential. In my mind, the whole aspect of ferry service to and from Vancouver Island, and to and from the islands within the parameters of our ferry operation, is very clearly essential.
[ Page 1796 ]
MR. GABELMANN: I want to deal with the issues raised by the last three government back-benchers in two ways; first of all, the less important of the two.
Let me just give you an example. If it is essential for the ferry link between Campbell River and Cortes Island to be maintained, why is it not essential that there be a ferry between Campbell River and Read Island? There is no ferry there; the government won't provide one and hasn't provided one. If it is essential for the 400 people who live on Cortes Island to have guaranteed ferry service, why isn't it essential for the approximately 150 people who live in the Read Island area to also have this essential service? They have no ferry. Why is it essential for 400 and not essential for 150? The fact is it's only essential if the government decides it wants it to be essential.
When I argue for roads to be constructed to communities in my riding that have no roads, it's not considered essential. People in those communities, and there are dozens of them, have to find their own way to civilization — chartering a plane or boat or one way or another. The government doesn't say: "It's essential, therefore we're going to provide access to these people in the same way that people in larger communities have that access."
So don't tell me it's essential. It's a matter of degree, and most of all it's a matter of politics. The 150 people don't have much political clout; the 400 have more. The quarter of a million, or whatever it is, on Vancouver Island have yet even more clout. If these quarter of a million people were in a population of 200 million, there might not be a ferry to the island and it wouldn't be considered essential, because their voting strength would be so low it wouldn't matter, and so it wouldn't be essential.
So let's not say that every citizen's right to unimpeded, unfettered access to a larger community in their neighbourhood is an essential service, because if it was it would be being provided by various government ministries, and it's not being provided. Let's get that issue out of the way first of all, and that's the minor point in this debate.
The major one is: we would agree with members of the government side and every citizen in this province who would argue that we need to have laws in place that guarantee the best possible services, that we have to have laws in place that make sure that there are not interruptions. We also have to recognize that in a democratic society that may occur on occasion. So what do we have to do, knowing that on occasion there will be disruption or there will be something happen that may lead to that?
What do we have to do then? Do we design law that makes it worse and makes people feel frustrated and makes people react to the law in such a way that there will be more disruption, or do we design a law that enables processes that can avoid disruption? That's the essential choice, if I can use that word, that we have to make in designing this kind of legislation. I use the police example now to pick up on what the member for Richmond (Mr. Loenen) was saying — and I'll just be one more minute, Mr. House Leader.
I used the police example as the classic example in Canadian society of where making it illegal doesn't stop it, on one hand, and making it legal, on the other hand, has stopped it: that is, police strikes. All those illegal police strikes in eastern Canada and no legal strikes here in British Columbia, because a process exists whereby people can resolve their differences without resorting to that. That leaves aside the whole question of whether market economics are essential, in terms of being so important that it was necessary to have laws that deny basic human rights because a market is so much more important than people. We'll get to that argument starting at 2:30, Madam Chairman.
The House resumed; Mr. Speaker in the chair.
The committee, having reported progress, was granted leave to sit again.
Hon. Mr. Strachan moved adjournment of the House.
Motion approved.
The House adjourned at 11:58 a.m.