[ Page 1797 ]

CONTENTS

Routine Proceedings

Oral Questions

Proposed South Moresby Park. Ms. Smallwood –– 1797

Mr. Williams

Mr. Guno

WCB surplus. Mr. Gabelmann –– 1798

Contract of B.C. Games director. Ms. Edwards –– 1798

Letters of chief electoral officer. Mr. G. Hanson –– 1798

Ministerial Statement

Distribution of income assistance cheques. Hon. Mr. Richmond –– 1799

Industrial Relations Reform Act, 1987 (Bill 19). Committee stage. (Hon. L. Hanson) –– 1799

Mr. Gabelmann

Mr. Long

Mr. Sihota

Ms. Edwards

Ms. A. Hagen

Mr. Rose

Mr. Huberts

Mrs. Boone

Mr. Hewitt

Mr. Clark

Mr. Lovick

Mr. Miller

Mr. Guno

The House met at 2:05 p.m.

HON. MR. VEITCH: In the members' gallery today we have a most distinguished visitor. Visiting us is Her Excellency Dr. Hedwig Wolfram, the ambassador of Austria to Canada. I would ask the House to please bid her welcome.

MR. LONG: I have two very important people from my riding here with me. They're in Victoria on their honeymoon: my son Phillip and his new bride, Melody.

HON. MR. SAVAGE: Mr. Speaker, it gives me a great deal of pleasure to recognize in your gallery the general manager of the B.C. Federation of Agriculture and his good wife, Jack Wessel and Geraldine Wessel, and my wife, Margaret. Would the House please make them welcome.

Oral Questions

PROPOSED SOUTH MORESBY PARK

MS. SMALLWOOD: My question is to the Minister of Environment and Parks. The federal Minister of the Environment told the House of Commons today that the federal offer is still on the table, and that negotiations could continue regarding South Moresby. My question is: is your government, Mr. Minister, so lacking in vision that it is unable to compromise with anybody about anything? Will you not go back to the table and negotiate in good faith?

MR. SPEAKER: The first part of the question is out of order, but the minister can answer the second part.

HON. MR. STRACHAN: The decision to abandon negotiations came as a result yesterday of a conversation between the Deputy Prime Minister and the Premier. We have agreed in our government that our position will be to not issue cutting permits, and to not make any formal statement towards a park area until a cabinet meeting one week hence. So really, the negotiations can continue until June 24. However, I should also advise the Legislative Assembly that my recommendation is going to be for the Wilderness Advisory Committee recommendation for a provincial park. This recommendation is endorsed by the Moresby Island Concerned Citizens, and by letter of January 6, 1987, endorsed by the Leader of the Opposition. We got the letter.

MR. WILLIAMS: To the Minister of Forests, Mr. Speaker. The compensation proposed initially and discussed with respect to South Moresby is as high as that for any national park we're aware of, and more generous, in a sense, in terms of sharing, which wasn't required.

The question is with respect to timber values. Can the minister advise the House if his ministry made a tentative estimate with respect to timber values in the park boundary area?

HON. MR. PARKER: Yes, we did, Mr. Speaker.

MR. WILLIAMS: Will the minister advise the House what that number is?

HON. MR. PARKER: Mr. Speaker, that number is a basic number of $200 per cubic metre for economic activity to the province of British Columbia.

MR. WILLIAMS: If the minister could clarify, can he give us the capitalized value with respect to the timber in those licences?

HON. MR. PARKER: No, I can't at this time, Mr. Speaker.

MR. WILLIAMS: Can the minister report to the House with respect to the proposals for stumpage changes? These were free Crown grants to the timber company; the timber they received from the Crown was free. Huge numbers are now applied to that, which would not be there if we had a proper stumpage appraisal system. Can the minister advise us when that mess will be cleaned up, so that we won't have to pay again for our own free Crown land?

HON. MR. PARKER: Mr. Speaker. the stumpage appraisal system is essentially the same one that was in place when the hon. member was Minister of Forests.

MS. SMALLWOOD: My question is to the Minister of Environment. The minister just referred to the wilderness committee report. Can the minister tell us whether or not he'll be accepting the committee's report for compensation in this regard?

HON. MR. STRACHAN: Yes, I gave that answer a few moments ago, Mr. Speaker. I said I would be recommending to cabinet on June 24 that the Wilderness Advisory Committee report be considered for a provincial park. Again, that is a position that's endorsed by your leader.

MS. SMALLWOOD: My understanding is that the Wilderness Advisory Committee report's compensation package is much less than what the federal government has already agreed to. Will the minister agree with that?

HON. MR. STRACHAN: The Wilderness Advisory Committee report contains some numbers with respect to stumpage value, but essentially points out the land loss or land alienation for a park. One can then extrapolate the cubic metres lost on an annual allowable cut basis. Multiply that by the cost per cubic metre, and you'll have the answer.

MR. GUNO: A supplementary to the Premier, who I see is just entering the chamber. The Haida people are the traditional custodians of this land, and they have indicated that they will continue to protect it. The Premier has indicated that he has faced intense pressure from 70-odd loggers. Is the Premier prepared to deal in good faith with the legitimate interests of the Haida people, or is he prepared to have another confrontation with those people on this matter?

HON. MR. VANDER ZALM: Mr. Speaker, I obviously don't have the advantage of the questioning that took place before the supplementary, but let me say this. We have those who are legitimately entitled to log on Lyell Island. They were granted a licence some time back. We also have 75 people potentially employed on Lyell Island. They have their homes. Some have their families there. All of this is legal: all

[ Page 1798 ]

of this is proper. Frankly, while cabinet will be discussing the whole matter soon, and while obviously we would want to have talks with the Haida people if they so wish it, we definitely do not want to interfere with the rights and the entitlements of those people employed on Lyell Island now.

WCB SURPLUS

MR. GABELMANN: Section 67.2 of the Workers Compensation Act — this is a question to the Minister of Labour and Consumer Services; my apologies — requires that all surpluses be reinvested in trust funds. Has the minister decided to instruct the board to comply with the law by rescinding its decision to give $99 million of surplus to the employers?

HON. L. HANSON: I think that the announcement made by the chairman of the WCB was in the form of credits to future assessments, as opposed to actual dollar rebate to the members in terms of cash out of the till.

[2:15]

MR. GABELMANN: Yesterday in the House the minister said, and I quote: "...only a distribution of a portion of the surplus." Those are the words he used to describe this $99 million, that it was only a distribution of a portion of the surplus. Is the minister saying today that he didn't know yesterday what this issue was all about?

HON. L. HANSON: No, I'm not saying that at all. The form of distribution happens to be a credit to future assessments against the payroll; that, in my interpretation, is a distribution of, or a reflection — I guess that's maybe a better term — of fees that were assessed against the payroll that were in excess of the actual experience.

I think I'd like to say at this time, since the question has been raised, Mr. Speaker, that British Columbia's workers' compensation plan is by far the best in Canada; the levels of compensation are certainly reflective of that. Most provinces have come to British Columbia, looking at our workers' compensation plan, to understand why it does work so well.

MR. GABELMANN: In the last two years the board has written down close to half a billion dollars in unfunded liability. In addition to that, it is making a gift of $99 million to the employers. At the same time, the standard of service to workers who are injured on the job in this province has gone downhill in a very dramatic fashion. Why is it that the government can't insist that the board use some of this surplus and some of this money that has obviously been generated in the last few years to assist workers in this province who are going without as a result of these punitive policies?

HON. L. HANSON: Mr. Speaker, again I say that British Columbia's workers' compensation plan is second to none, and the rates that we assess against the payroll are reflective of the experience in the workplace. Those industries that have been recognized have a good record of improving their safety record and a good record of improving safety in the workplace.

The instance of claims in those industries that have been recognized because of safety programs, because of safety committees and other things that they have put in place, are as a result. The record of lesser accidents and improvement in accidents in the workplace has to be recognized, because the whole system is predicated on that recognition.

CONTRACT OF B.C. GAMES DIRECTOR

MS. EDWARDS: My question is to the Minister of Tourism, Recreation and Culture. I wonder if the minister could tell me what the departure of Ron Butlin, former director of the Winter and Summer Games and the B.C. Festival of Arts, cost the government in terms of buying out his recently signed contract.

HON. MR. REID: Inasmuch as that's a personnel matter with my ministry, I refuse to answer.

MS. EDWARDS: I have another question for the minister. What mechanism is being used to administer the Delta Summer Games, for which Mr. Butlin is simply a consultant? In fact, whose staff will be working? Will Mr. Butlin's staff be working for ministry staff? Could you explain the mechanism that is in place?

HON. MR. REID: I'm pleased to answer that question. Currently the contractor's staff is working on the Delta games, under the advisement of my deputy minister and my staff on sports and recreation in the province. Beyond that, we have close to 3,000 volunteers in Delta who have volunteered to put on the best games ever held in the province of British Columbia.

Inasmuch as we needed to retain the morale within the volunteers, which is the major impact in the community, we've offered to continue the contract of Mr. Butlin until the completion of the Delta games.

LETTERS OF CHIEF ELECTORAL OFFICER

MR. G. HANSON: Mr. Speaker, a question to the Provincial Secretary with respect to letters written recently by the chief electoral officer which might more appropriately have come under the signature of the Provincial Secretary. Mr. Goldberg is writing letters defending the government's right to take away voter-day registration and talking about the inability of the government to meet its obligation in full enumeration when a writ is dropped, when that statute has not even been debated in this House. The chief electoral officer should be a non-partisan employee; is this activity with the knowledge and consent of the Provincial Secretary?

HON. MR. VEITCH: If you're referring to a letter that I believe appeared in the Province this morning, the chief electoral officer is responsible for the elections branch. Several allegations were made that certain things did not occur, which apparently he must have taken umbrage to. I think he's merely setting the record straight, and the hon. member would do well to read the letter.

MR. G. HANSON: I think the Provincial Secretary should have the courage of his convictions and sign those letters himself, rather than have the chief electoral officer running political errands for him. Has the Provincial Secretary decided to bring a proposal to this House that the chief electoral officer should be appointed by an all-party committee of this House and not be in the partisan position that he has been taking?

[ Page 1799 ]

HON. MR. VEITCH: As the hon. member knows, Mr. Speaker, that would be future policy. But also as the hon. member knows, we do have a proposal before this House by way of a bill, and I'd be very pleased to debate that when the time comes.

Ministerial Statement

DISTRIBUTION OF INCOME
ASSISTANCE CHEQUES

HON. MR. RICHMOND: I rise to make a brief statement regarding GAIN cheques and the current postal strike affecting various parts of the country.

To ensure that persons eligible for GAIN for the handicapped and basic income assistance receive their cheques on time, plans are in place to distribute Guaranteed Available Income for Need cheques — that's GAIN — from the ministry's district offices throughout the province if the postal strike is not resolved by Thursday. Distribution of July income assistance cheques is scheduled to begin June 24. Announcements regarding where and when cheques will be distributed will be placed in the local media for the guidance of income assistance recipients. Wherever necessary, cheques will be delivered — for example, to the disabled. Payments to foster parents and child care resources were mailed last week and have been received.

If the postal workers' strike continues to the end of June, plans are in place to distribute other ministry cheques, such as payment to recipients of Shelter Aid for Elderly Renters — that's SAFER — day care operators and residential care operators. Details of the distribution of these cheques will be announced later.

Mr. Speaker, I wonder if I could have leave to make an introduction?

Leave granted.

HON. MR. RICHMOND: Mr. Speaker, in the precincts today are about 33 grade 7 students from the Aberdeen Elementary School in Kamloops, accompanied by their teacher Mr. Gustafson; and I would like the House to make them welcome.

Orders of the Day

HON. MR. STRACHAN: I call committee on Bill 19, Mr. Speaker.

INDUSTRIAL RELATIONS REFORM ACT, 1987

(continued)

The House in committee on Bill 19; Mr. Pelton in the chair.

On section 62 as amended.

MR. GABELMANN: Mr. Chairman, when we adjourned this morning at 12 o'clock we were discussing the question of essential services. It's my impression, having listened to members of the government caucus, both on the record and off the record, that there's some misunderstanding about the nature of this particular issue, the whole question of essential services. I think it's important for us to just briefly review the issue.

Essential services historically were just that — services which were essential to life and limb. In every case that I've ever known about in the history of this province, during the course of a strike or a lockout those kinds of essential services were provided by agreement between employer and employee. We have drifted in the last 15 years to a definition of essential services which now includes anything — anything that can "have an impact on the economy of the province." The actual words were "poses a threat to the economy of the province."

Well, as I said this morning, Mr. Chairman. with every strike in which workers have some power there can be some threat to the economy. Every strike where workers have no power, such as the ones that are being scabbed, is not a threat to the economy. So the intervention comes in in places where in fact workers have power and employers may have only a relatively equal amount of power. Intervention does not come into play where the employer has all the power and where the workers have none — the places where the job is being scabbed — because there is no threat to the economy there. So this whole issue, apparently catering to the ill-informed views of some people in our society, about this being fair to all of society is simply wrong: it's simply a misreading of how industrial relations works. That's the first point. It's probably too complex for most people to follow. It shouldn't be too complex for members of this House, but, based on the comments from the member for Richmond and comments by other members of the House, clearly they do not understand this essential issue.

I think it's important also to spend a few more minutes on what is a fundamental issue here that does not appear to be understood. That is that the simple declaration that makes something illegal does not prevent it from happening. If you want something not to happen, you enlist the cooperation of the people working together to find a way that they can achieve reasonable objectives without causing a service to be lost, without causing a disruption. and without, therefore, making it difficult for people who live on islands to get to their neighbouring community, for example. What you do is try to minimize the number of days that are going to be lost as a result of some disruption. That's the clear objective. That's what we want to do. So how did we deal with that? And I wouldn't accept for a moment that police services are the same as ferry services, but Socreds say they are and that it's just as important to have a ferry running as it is to have a police officer functioning. Okay. Let's accept that. The Minister of Tourism (Hon. Mr. Reid) is nodding his head and I can sense, looking at the government members, that there would be a general agreement that each is as essential as the other: the cop protecting our lives and the ferry worker making sure we can go to a movie. Equal service, equally essential. Let's assume that that's the case, and let's have the rest of this debate on the argument that they are the same.

MR. REE: Do you agree? Do you think it's the same?

MR. GABELMANN: No, I don't agree. If you'd been listening to me, you'd know I don't agree that it's exactly the same. But let's say that it is. I want to go back to the issue that I raised this morning in that respect. In British Columbia, police officers, firefighters and others delivering services that are perceived to be essential and have always been

[ Page 1800 ]

partially declared essential have had the right to strike in this province, and particularly under the original Labour Code they had that right. How often do people in this province hear about the Nelson police force going out on strike, the Delta police force going out on strike, the Saanich police force going out on strike, the New Westminster police force, the Vancouver police force, or any other provincial or municipal police force in this province, leaving aside the RCMP? How often do we hear of all of these police forces going on strike? Not very often, if at all. These people have the right to strike; have had the right to strike. You don't hear about them going out on strike.

In New Brunswick and in the other Maritime provinces, and some years ago in Quebec, police officers were prohibited from going out on strike. They did not have the right to go out on strike. The law said no, you cannot strike. How many of us have heard of the police force in Moncton, the police force in Fredericton, the police force in Bathurst — town after town after town of police strikes?

[2:30]

[Mr. Weisgerber in the chair.]

Doesn't anybody on that side of the House have the ability to understand the logical reasoning that's behind this? If there it's illegal to go out on strike and they go on strike, and here it is legal to go out on strike and they don't go out on strike, doesn't some glimmer of light begin to emerge about why'? The why is: there is a process and a trust — there has been — in this province in respect of how essential services would be delivered. Given that the absolute essential services would be delivered and would be guaranteed to be delivered by members of the group that's on strike, there was the ability to release the tension, the pressure valve on this pressure cooker. And because of that there was a better relationship between the parties, and because there was a better relationship we didn't have any strikes. It's so simple, so elemental and so obvious that I can't understand why people on that side of the House don't see it. In the Maritime provinces, they didn't have the right, and essentially under this section we are effectively denying them the right to strike, except the essential service issue goes far beyond just police officers.

So we're saying we're going to emulate the Maritimes experience. We want to do here what they did there, and what they still do in some parts of the Maritimes — make it illegal. And can't you see that it will be the same result? Eventually, not this year and probably not next but over the course of a few years, industrial relations patterns will be developed in a way that will lead us into the same results, which is exactly the opposite of the declared intention of the government. The declared intention of the government is to minimize disruption to the public, a goal which we share 100 percent. Let's find ways of minimizing the impact to the public while at the same time protecting basic democratic rights. Let's find a way of doing that. The evidence is in about how to do it, but the evidence is ignored. It's absolutely ignored, and it's baffling to understand that.

Now what the government is saying by extension is that any dispute that poses a threat to the economy of the province will be declared an essential service. We are extending that maritime principle where people went on strike illegally to the whole of our industrial relations society, except those areas where unions are weak and employers can scab. It doesn't apply there, because there's no threat to the economy if production is maintained. So everywhere else in society where unions might have some bargaining power, we're expanding the principle of making illegal a strike or a lockout; and when you do that you create a situation akin to the one I talked about in terms of Bathurst and Moncton and Fredericton and on and on.

It's puzzling, to say the least, that members on the government side can't understand it. It's not just New Democrats saying this. It's not just trade unionists saying this. It's industrial relations neutrals and it's industrial relations practitioners on management side who are saying this. We don't have to quote chapter and verse; it's well known. No one who has any experience in industrial relations would fundamentally disagree with the premise upon which my last five minutes have been based — no one. Even the more rightwing, rabid industrial relations practitioners would acknowledge the fundamental truth of what I'm saying. Yet we have a government that is prepared to totally ignore the advice of experts. It would be like me, Mr. Chairman, going on the radio, instead of the Premier, and having me offer advice on gardening. We can't have the Premier's advice on gardening because he's an expert, and you know you can't trust experts; so we shouldn't listen to the Premier's advice on gardening, you should listen to mine, because I'm about as knowledgeable in gardening as most of the members of the Socred caucus are about industrial relations. Or maybe more. Given the state of my garden this year, maybe more.

Interjections.

MR. GABELMANN: Given the events of the last few days, Mr. Chairman, I would have thought that the Minister of Tourism would have been muzzled by now, but clearly that job hasn't quite been accomplished by the Premier.

HON. MR. REID: Talk about essential services for Vancouver Island.

MR. CHAIRMAN: Order, please, members.

MR. GABELMANN: Mr. Chairman, the Minister of Tourism says: "Talk about cutting off the ferries." I have talked about how we can make sure that those services are provided. The government is proposing legislation which will ensure that the opposite happens, When is the last time in British Columbia that we had a ferry strike? Eight years ago at least. We had one for a day a few weeks ago. Why? As a result of this legislation. Doesn't there appear any correlation? Don't members understand?

Interjections.

MR. CHAIRMAN: Hon. members, order, please.

Interjections.

MR. GABELMANN: Mr. Chairman, I hope that the Minister of Tourism is allowed to continue to spout forth.

HON. MR. REID: Don't talk to your constituents on Vancouver Island; just leave it to me.

MR. GABELMANN: Well, you come to Cortes Island and Quadra Island and some of the other islands with me, and I'll be delighted.

[ Page 1801 ]

MR. CHAIRMAN: Order, please, members.

MR. GABELMANN: Mr. Chairman, I have tried for 11 weeks to be in order and to be polite and to be rational, and it's only when the Minister of Tourism is in place that I am tempted to depart from that pattern.

Seriously, though, the point we're wanting to make....

AN HON. MEMBER: You mean you're not serious?

MR. GABELMANN: Well, no, in dealing with the Minister of Tourism, one is never serious.

Interjections.

MR. CHAIRMAN: Hon. members, please.

MR. GABELMANN: Thank you for your help. Mr. Chairman. I think if you put that in the singular, it would solve all the problems.

I just want to make the point quietly and simply that the direction the government is working in — and not in 137.8(l)(a), as the member for Kamloops talked about, but essentially in 137.8(l)(b), where strikes and lockouts can be declared to be a threat to the economy of this province, thereby making it impossible to prosecute a strike or a lockout because people are directed back to work — will have the absolutely opposite effect of what the government says it wants to achieve.

The government seriously wants to promote a system whereby there are very few industrial days lost, where there are almost no days lost in terms of services like ferries and other transportation services that are regulated provincially. I think the minister and his colleagues should take a few hours off and take the time to read the history of industrial relations in police in the Maritimes and in both police and firefighters in the province of Quebec during the sixties and early seventies in particular. I think they would then discover that what I am saying is true, and that the heavy-handed, intrusive state intervention that is called for in this particular section will have exactly the opposite effect of what it is the government says it wants.

For that reason, this particular section, which now makes virtually everything in this province an essential service, is counterproductive to the stated goals — and I can't believe they are the real, honest goals of the government — which are to try to improve, they say, industrial relations. This will not work.

MR. LONG: Mr. Chairman, I think the member for North Island should be aware.... I imagine that he is in an area that needs ferries, and I think he is in a position himself....

MR. GABELMANN: That's why I take the position I do.

MR. LONG: I guess he would like to see all of his constituency out on a limb when they can't get to the services they need.

I think in light of the statement made by the member for North Island that NDP policy says that ferry service should not be deemed essential for Vancouver Island, the Sunshine Coast, the Queen Charlottes or any part of British Columbia.... I think that possibly section 137.8 should be called the ferries essential service protection section, because this is what the people in my riding in Mackenzie, where we have.... The biggest part of my riding, in Gibsons, Sechelt and Powell River, is totally dependent on the ferries. The whim of the B.C. Fed can knock them out of service for a day, put everybody out, and they sanction this kind of stuff.

They say this is fine: everybody can go out and strike when they want to and put down the ferries, and the rest of the province will suffer. I find it hard to believe that most of the members in this comer of the House who are dependent on ferries — and I include the two members for Victoria as well as North Island — think that ferries are not essential to their ridings.

I've got to bring to the House's attention that in Mackenzie we don't have the service centre like North Island does, possibly — a bigger service centre like Victoria. I think they are being very shortsighted when they can take their northern riding in Prince Rupert and tell one of their fellow members that the ferry to the Queen Charlottes is not essential. It is the only link there, but it is not essential. It is the only link to Mackenzie, but it's not essential. I mean, you can fly in, and you can fly your freight trucks, and you can do all kinds of neat things.

I find it hard to believe that he would use the example of Read Island and Cortes Island. I think if he checks it out he will find there are more like 900 people on Cortes Island, if that is in your riding. You should check that out. I don't think there are 500; I think it's around 900.

As far as Read Island, there never has been a link established to Read Island: they've always had either a water taxi or their own boats. When the links are there and the people depend on them for their commerce and their livelihood, then they become an essential service. You don't pick an area you don't need to use and say it's going to be essential — go to a logging camp in Bute Inlet when you have no connection there to start with. So I think it's time that the NDP and the member for North Island possibly changed their policy where the ferries are essential. I think they should consider the people in their own ridings and take a good hard look at what they're doing here.

MR. SIHOTA: It's an interesting debate. Of course, the members opposite, who cannot defend this legislation on just about any other issue and who have been incredibly silent during the course of this entire debate not only with respect to section 62 but all of the sections that preceded it, finally jump up on one issue that they can seize upon to deliver political rhetoric. That's all that's going on here. Here's an issue involving ferries, and I stand up as a representative of an Island seat, Esquimalt–Port Renfrew, that in many ways is no different than Mackenzie or Saanich and the Islands or some of the other findings in that it relies on that ferry service linkage to the mainland. It's strange, the silence....

[2:45]

I'll come back to the ferry dispute, because I want to point out that there's another way, consistent with what the member for North Island has been arguing, to remedy this problem without the necessity to get trigger-happy with essential services legislation. The problem is that there's a one-dimensional outlook from that side of the House: that the only option in dealing with this very difficult problem of ferries is the essential services dispute mechanism, or invoking the

[ Page 1802 ]

essential services portion of the legislation. I'll come to another option, another way of resolving this problem, which to me makes just as much sense, but before I do that I want to talk a little bit about essential services, with a promise that we'll come back to the matter of the ferries. If I preface my comments with a few things that I want to say, I think it will make more sense...the alternative that I want to put on the floor makes a lot more sense than the trigger-happy approach of essential services disputes. That is, I think, the crux of the matter that the member for Mackenzie is raising.

I'm glad to see that the Premier is here, and the Minister of Finance (Hon. Mr. Couvelier). In the case of the Premier, I hope he'll add to his one minute and fifty seconds worth of debate at committee stage, the 270 words that he has uttered so far. So maybe we might hear some more from the Premier on this matter of essential services.

The essential services provision here clearly is broad; it clearly is far removed from what we've had before. We had, I think, what can be fairly put forward as relatively narrow and, in my view, appropriate essential services dispute language within the Labour Code. I've made this point in other portions of this debate, but I think it's worth repeating in this instance. Section 137.8 talks about a dispute that "poses a threat to the economy of the Province or to the health, safety or welfare of its residents." The words "poses a threat to the economy" are so far removed from what we already have in the legislation that it boggles the mind, because they incorporate just about any industrial conflict that can occur in this province. Potentially any industrial conflict can pose a threat to the economy.

There is no doubt in my mind that the words "poses a threat to the economy" have been put in after the Premier's failure to deal with the IWA strike last October; that he could not frame any other type of language to deal with essential services disputes; that his ego was so frustrated with his failure to deal with the IWA strike that we saw the words "poses a threat to the economy" incorporated into the legislation. History has demonstrated that words and phrases put into legislation to deal with a specific situation boomerang and blow up in your face later on down the line. This section represents a gross departure from what we've had before. It's inappropriate to use that type of language in essential services dispute provisions.

I took the opportunity a few minutes ago again to refer to a book that I refer to over and over again, which is Paul Weiler's book. He talks about this trigger-happy approach to essential services. If you come from the philosophy that is not only reflected in this legislation but the philosophy that members opposite have been articulating during the course of this debate, mostly indirectly and from time to time directly — and that philosophy is that you want to take away the right to strike, despite all of the assurances from the Premier on the matter of the teachers that we gave them what they want — and you want to take away the right of various organizations to use their economic clout to bring about an end to industrial conflict — and of course we have on the other side of the fence lockouts.... But if you want to bring an end to the ability of unions to use that strike mechanism, you can do a couple of things. You can do what this legislation does, which is essentially take it away.

I don't want to repeat some of the things that we've said earlier on about how that impairs the free collective bargaining process. I add the caveat that nobody, whether it's members of the Social Credit Party, members of the New Democratic Party, in terms of this House, or employers and employees in the case of labour relations parlance, wants to see strikes. Everyone realizes — and I talked about that this morning — that it is a very difficult and calculated decision to have a strike, or a lockout in the case of an employer. No one wants to see that. But we also know from experience that if you begin to take that away from people, you invite more conflict.

I don't want to repeat what the member for North Island (Mr. Gabelmann) had to say with respect to those points, but it's a valid point. History has demonstrated that over and over again, and that's why we've allowed the ability to strike to remain in legislation. One way to deal with it is essentially to take away the ability to strike. Another way is to frame it within essential services legislation, which gets me back to this provision that we're talking about in the context of this section.

That's what the government is trying to do here; they're trying to take it away. If you can't do it directly through the language earlier on in the sections that we've debated, you can do it indirectly through the posing of a threat to the economy argument that appears in this section. You can begin to label everything to be essential services. Those words can capture just about any dispute, and especially so when you combine the language that appears in this section. Paul Weiler, when he was writing.... Once again, fortunately or unfortunately, depending on who is debating it, I guess, his text is the book on labour relations in this province, perhaps the most thoughtful analysis written on the issue. He talks about essential services. He says:

"This is a step which should not be taken lightly and only with full recognition of all its costs. Every instance of back-to-work legislation establishes another precedent relied on by those who want it used again. If these precedents accumulate, if that step is taken too early and too often, then the immediate parties will anticipate it better than anyone else. The same sense of irresponsibility can develop at the bargaining table as occurs when there is an explicit regime of compulsory arbitration. Indeed, the atmosphere can be even worse. The basic law holds out the right to strike, but ad hoc laws are regularly passed to foreclose that right as soon as it is exercised. In recent years, some governments — I will not name names — will have become trigger-happy with back to-work legislation. Undue familiarity may breed contempt, especially among the workers. There will come a time when the law is disobeyed."

Paul Weiler. His quote — and I'm not taking it out of context — directs its mind to the very situation that the member for North Island (Mr. Gabelmann) talked about when he talked about the ongoing police difficulties that they have in New Brunswick as opposed to the ongoing police difficulties that they have in this province.

If I may step back a bit to my own experience, I sat on a municipal council in Esquimalt when there was a strike vote, when the police were literally hours away from walking out and engaging in strike action. I must say in retrospect, because I was on the negotiating side for the municipality, that they had taken adequate provisions, in my view, to safeguard the interests of the community.

But that aside, the point still remains that they had that right, and it worked in exactly the way the member for North Island talked about. They had the ability to strike, Mr. Minister, if you're wondering about that. They had that. In fact,

[ Page 1803 ]

most recently they just took another vote, and I think they took the same vote in Saanich as well. So they always had that right — and they still do. But I can venture to say that, given the wording of this legislation, in essence that's been neutered.

There are options available, in the case of the municipal council and the provincial government, to invoke the essential services legislation. There are no two ways about that. I'll concede to the minister that that option was always there, but it came down to a question of obedience or disobedience of the law. We were able in that instance to put away the type of situation we've seen in New Brunswick. But if you don't allow them that option, if you don't provide for that option, then I'll tell you what happens: the very situation that happened in New Brunswick and the very situation that the scholar, this former chairperson of the Labour Relations Board, a current academic at Harvard University with a tremendous amount of experience on labour relations matters.... That clearly will happen; there will be disobedience of the law.

You don't want to create that type of situation; you don't want to bring about that type of conflict. You don't want to stretch out the situation to this extreme, and that's what you're doing by inviting this type of very broad language, in terms of essential services. It's so broad that when we hear the Premier talk about teachers: "Well, I don't know what they're complaining about. We've given them the right to strike....." Well, if you read this legislation, they never really got it. That's a great public relations propaganda line on the part of the Premier, because when that supposed right is melted into this legislation and everything's boiled off at the end of the day, very little remains in the crucible. Perhaps the right to engage in strikes on weekends or during the summer recess or at Christmas break, but not while school is in session — which essentially takes away the very thing the Premier says they were given.

The ferries. There is clearly another approach. Weiler talks about that later on in his book. But if you start from the opening premise, that you want to have narrow limits to essential services legislation.... If you accept the premise that if you broaden it you're simply inviting disobedience of the law, and you don't want to do that, then there's the other option. That other option — for those members who raised it earlier on and who may still be interested — is to negotiate an agreement with the parties across the table, where they themselves agree to the provision of those ferry services as a part of their contractual obligations and essentially agree across the table, in an agreement that's enforceable, to essential services — if you want to put it that way, to use that type of broad language. But essentially they agree within the contract to continue to provide those services — that they themselves recognize that.

And that's possible. The position we've always taken is that that's the first thing that government ought to be doing: negotiating in the agreement the provision of those services during industrial conflict, not imposing it through trigger-happy essential services legislation; not imposing it in the same way and inviting the same type of result that Weiler talks about in his book.

Keeping in mind what he said, keeping in mind those two principles that I've outlined, that's the other way. It may be a little bit too complex in terms of political salesmanship to try to inject those types of concepts into agreements when you've got essential services legislation sitting there. But surely it makes more sense to try to bring about consensus through a document than to force people to take actions against their will by legislation. Surely that consensus approach, through negotiating openly across the table, is preferable to the process that involves disobedience of the law. That's the way to go, the way that we're putting forward. It's another alternative, perhaps not as simplistic, perhaps not as blunt, perhaps not as brutal. That's the other option, Mr. Chairman.

I realize my time is up. Let's see what the other members of the House have to say on that as being the other alternative.

MR. REE: Mr. Chairman, may I ask leave to make an introduction?

Leave granted.

MR. REE: Mr. Chairman, it's my pleasure today to ask the House to welcome 32 young people from my riding. There are 32 grade 7 students from Cleveland Elementary School in the gallery, together with their teacher Mr. Jarvis. Would you please welcome them to Victoria and the chamber.

[3:00]

MS. EDWARDS: I'd like to ask the minister a question about the wording in this particular section of 137. I think it's interesting to notice, Mr. Minister, that in the general wording for subsection (1) it says the minister may do — whatever — if he "considers that the dispute poses a threat to the economy...the health, safety or welfare of its residents or to the provision of educational services...."

In section 137.8 (l)(b). the wording is different:

"... that the council considers necessary or essential to prevent immediate and serious danger to the economy of the province or to the health, safety or welfare of its residents or to the provision of educational services...."

It seems to me, Mr. Minister, that the wording in subsection (b) is considerably more precise and more limiting — in other words, more narrow — than the wording in the general subsection (1). I would like him to answer as to whether he considers that to be so and whether it was intended to be.

HON. L. HANSON: Yes, I think it was definitely intended to be. One is the consideration that there's a dispute that's posing a threat to the economy, health, welfare, etc., etc., but in subsection (1)(b), which the member refers to, the direction is to the council to designate those facilities, production and service that council considers necessary or essential to prevent immediate and serious danger to the health, safety or welfare of its residents in the particular situation. I think it's very clear that it's meant to be more specific as it relates to the particular dispute.

MS. EDWARDS: What I'm interested in, then, is why you would limit or make more narrow the interpretation of that wording for subsection (b). What it means, I suppose, is that we have some protection from that broad statement "threat to the economy" that we, on this side of the House, object to very strenuously and at considerable length, as you've noticed. Of course, any action in industrial relations is a threat to the economy. In (b) you are eliminating that phrase, I presume. What worries me is that there is no similar limitation in subsection (a). Again, we're back to the broad

[ Page 1804 ]

sense that any threat to the economy, health, safety, welfare or provision of educational services can draw the ordering of a cooling-off period not exceeding 40 days, but it has to be more serious in order to have a designation. Is that what was intended by subsection (1)?

HON. L. HANSON: Mr. Chairman, I think I'll adopt the same procedure I was suggesting this morning: keeping track of these questions and then answering them in a group.

Subsection (b) involves determining what occupations will be required to work during a controlled work stoppage. Subsection (a) is a cooling-off period where everyone is required to work, and it may be for a lot of purposes. It may be that there is an opportunity to settle the dispute in that time, or it may be that there is a certain amount of time required to designate those essential services. They both have very different objectives.

MS. EDWARDS: You would agree, then, that there is less of a requirement to call a cooling-off period than there is to make a designation, and that the requirements, the threat, the presumed danger is less in that case?

MR. SIHOTA: I'd like to ask a question to the minister as well, although I'm still thinking about the ferry situation, because I was thinking somebody else would stand up. I can't remember the last time we even had a ferry dispute in this province. But I see the member from Saanich may well take me on on that issue, in terms of the other alternative.

Given the language of posing a threat to the economy — he can answer it later if he doesn't want to answer it now — can the minister give me one example of a situation where one cannot argue that? Or is my submission quite correct in that it captures every potential dispute that's going to come up in the province?

MS. A. HAGEN: I have a comment and then a question too. I understand the minister is gathering some of these for answering.

One of the areas that we looked at just briefly this morning was education, and the fact that it is encompassed by this essential services legislation. I want to put this in the context of the very new situation that exists for teachers, coming out of Bill 20. Instead of there being a compulsory arbitration, which is the only dispute mechanism that is available to them, they now may have, by virtue of the choices that they take through establishing themselves through a collective agreement and certification, the right to strike as a means of arriving at a reconciliation for a dispute that has not been able to be negotiated.

I want to ask the minister two things. First of all, this clause has been amended. Originally the person who is going to make a decision about the threat that any dispute poses, and the imposition of essential services mechanisms, was to be the commissioner. In the old act it was the Lieutenant-Governor-in-Council. It is now the minister. I want to ask the minister what criteria he would use to determine whether a dispute is in fact one that would be dealt with under this clause.

How would he feel about teachers taking strike action? In the inclusion of education services under the powers that go to the minister in this clause, is there implicit a ruling or decision that would assume that all strikes involving teachers come under this essential services legislation? Would the minister regard those particular services that are to be withdrawn as so essential in all circumstances? In some circumstances? In a very few circumstances? What would be some of the criteria that he would use? Teachers are seeing this clause as one that precludes them from using the strike mechanism as a means, if it were necessary, to use in a dispute. I want to have some idea in this area, where there are clearly new practices that people are going to be working with, what the minister's criteria will be.

The other area that's new, as far as the essential services are concerned, is the private sector. Up until now all of us have agreed that the parties should be responsible for reaching their own decisions. There's no question that on a number of occasions last fall and in earlier times, long and serious disputes have reached the Minister of Labour's door. The minister has acted both through legislation and through his good offices to try to assist the parties in the resolution of disputes, and on rare occasions this House has been called into session and has taken action where it was deemed that the economy of the province was so affected that there had to be interference in that collective bargaining process. Now all of that rests at the minister's door. It is the minister who will have to make those decisions.

We know, again looking at the interventions that occurred last fall, again by a person who I think sincerely wanted to achieve resolution, that it was not effective in dealing with the dispute. What will be the criteria that the minister uses in this particular area in the private sector to determine when the essential services clause of the act will come into effect?

Finally, how does this fit into the convoluted picture of all of the other mechanisms that are a part of section 62 which this bill has developed, presumably to deal with disputes and intervention in disputes to achieve their resolution? There are fact-finders, mediators, public interest inquiry boards. There are unlimited powers that belong with Mr. Peck. How does this particular clause and the minister's discretion fit into all of those areas?

Sir, you have in this legislation a bag of tricks that I think would confound the most sincere and well-meaning of people, and it would be helpful for us to have some idea how you are going to deal with that new mantle that is on your shoulders. Perhaps you could start by talking about the mantle that is very specifically with you in the amended part of this clause that says that you will be the person who is making those decisions.

HON. L. HANSON: I just get up to stop the vote from going through. In all of the discussions I have heard, and they have all been very similar, various members have posed questions to me. Each one seems to be predicated by, or part of, an assumption that every time there is a dispute of any kind, immediately there is an essential services or 40-day cooling-off period ordered, that that is just an automatic given.

I think the member for Esquimalt–Port Renfrew (Mr. Sihota) quoted from Mr. Weiler's book. I don't have the exact wording because I don't have the book here, but I think it was something along the lines that these steps must not be taken lightly and that you must be aware of the costs of those steps if they are taken.

Anyone who would suggest that those steps would be taken lightly and that there would not be an awareness of the cost that is attributable to that, or the possible cost.... I think the words that were used were "trigger-happy," if I

[ Page 1805 ]

remember correctly. Again, I think that points to the assumption that this is going to happen every time there is any kind of an opportunity; that is what is going to happen. I guess if you want to take that position that somehow.... If you really wanted to take a perverse interpretation of it, you could suggest that every labour dispute in the province will have a 40-day cooling-off period.

Well, that is just so far from reality that it is hard to even think of that. It won't encompass every dispute, there is no question about that. There is nothing mysterious or anything. It simply says, exactly as you read it, that in some cases there is a necessity and a responsibility on the part of government, a duty to protect the public, a duty to protect their safety, a duty to have regard to the threat of some particular dispute to the economy of the province. But each circumstance or each one has to be dealt with as compared to the circumstances of the dispute.

[3:15]

I think another member asked about teachers. Teachers' strikes probably will happen, but I think at some point in time there will be a need to protect the rights of the students, and thereby the rights of the public. That's what this legislation will allow to happen. There's just no doubt that each situation will have to be dealt with in accordance with the circumstances of the situation, and that I would suggest is exactly the manner by which the Essential Service Disputes Act and the Labour Code provisions have been administered up to this point.

As the Minister of Labour, I am certainly accountable to the Legislature. No one would dispute that. Somebody mentioned earlier, just at the start of today or before lunch, something about "threat to the economy" being new wording. It isn't new. It was in the Essential Service Disputes Act, and now it's in the Labour Code — or at least in this proposed Industrial Relations Act. It's not new wording.

MR. ROSE: I'm always intrigued by this question about societal rights versus individual rights, because I think it's plagued with contradictions. It seems to me that in here we're talking about various societal rights — protection of society from the depredations of some group that's irresponsible, whether it's management or a trade union group, and we want to protect society. We want to make sure that they get the proper services or the proper education or the proper what not. So that is a big thrust in this.

We mustn't let some irresponsible group or individuals run riot and destroy — as it says here "pose a threat to the economy." We're very interested in that as a group right, but we very seldom think about it on the other side of it: the societal right, say, for decent housing; society's right — and I know the minister comes from Vernon — for clean water and decent sewage disposal. We talk about societal rights for employment, for housing, or against hunger. We waffle on those — to use a social democratic term. We really come out for the individual, though, when it comes to property rights and individual rights to withdraw from a trade union or something like that. Oh, we're all for individual rights in those cases, and it seems to me that that's the really fundamental contradiction that runs through this whole thing. What we're trying to do here is to solve some things, in my view, of those people who are privileged in many cases, and so that their interests and their property and their welfare — those who are often very highly placed — are not interfered with.

See, I don't look upon this legislation as determined to settle industrial disputes. I don't think it's for that purpose at all. I think it's to drive down wages. Quite frankly, that's what I think it's for. And as someone mentioned in the Sun paper tonight, with all this talk about illegality and illegal action, what gains have been made by working people within the law? Mostly the law is slanted against working people in our society, and everything they've got they fought for, sometimes within the law but more often outside it. Is this a big hammer, an oppressive tool used mischievously or irresponsibly by the government? It has that kind of mindset. After every depression in the last 50 to 75 years we've had a call for less societal spending, and "get governments off the backs of the people." It's the Herbert Hoover solution to our problems. So this is really what bothers me here.

On the other hand, in certain societies that have done far better than our own — France, Germany, places like Denmark and certainly places like Japan — the society rests on consensus. There's a good deal more said about security, consensus, cooperation and community welfare than the welfare of certain entrepreneurial groups. And the proof of that pudding is that the economies of Britain and of the United States are in decline, whether you're looking at the debt, the balance of payments, the number of unemployed, or whatever. Oh, yes, there may be some more wealthy people. But the range in North America is much broader than it is in many places, including Japan, whose workers, by the way, in spite of lifetime security on the job, cooperation, paid vacations, social insurance of all kinds, and health insurance, are outperforming our own in terms of productivity.

Now if I wanted to be flippant, and I often do, I would want to know what this.... I could go on with that kind of second reading speech for a long time, to probably nobody's particular benefit.

Interjection.

MR. ROSE: No. I don't think I've abused the House. I don't think we've abused the House over here in terms of this kind of thing. What we want to do most of the time is examine this legislation in detail.

But if I wanted to be flippant, and if I were listening to Graham Leslie, I might say something like this: "Where the minister, after receiving a report of the commissioner respecting a dispute, considers that the dispute poses a threat to the economy of the province or the health, safety and welfare of its residents or to the provision of educational services in the province, the minister may do either or both of the following.... " All right? He can order a cooling-off period for 40 days. Well, I and a lot of my colleagues happen to think that this very legislation poses a threat to the economy of the province. I would like to know if the minister would be prepared to take Mr. Leslie's analysis and recommendation, if Mr. Leslie were a commissioner, and order himself to have a cooling-off period of some 40 days. I think that would do a great deal for everybody, because I don't think that continued heightening of this tension....

You may say: 'All right, we're going to have to fight it through. We're going to get a few brickbats, and the Premier's going to get booed at for a while, but after a while it'll all go away." I don't think it will go away, because if it's fundamentally unjust, it's not going to go away. So I think the minister should take the advice that he's given to others when there's a threat to the economy of the province, or its health

[ Page 1806 ]

and welfare, or its investment climate, or a lot of other things. I think he should order a cooling-off period for himself and hoist this thing for a while so that people who are affected by it — the employers and the employees — can get together and see if they cannot come up with a better solution than this one.

I'm not suggesting patchworking up this mess, because it's just not going to work. I think, though, the fundamental flaw of the whole legislation is the assumption that the American marketplace entrepreneurial model is the successful one and the one we should be emulating. I just disagree with that, because the nations that are coming up in their economies are doing things that this kind of concept, the U.S. market economy, neoclassical approach.... They've rejected that. So the nations that are coming up and doing well — and I'm not talking about the Third World now; I'm talking about the industrialized nations — are doing it quite differently than the North American model that this emulates.

So I think it's wrong-headed, because it's based on a faulty assumption, even though the minister may say that in his mind this kind of societal structure, with the goals of our society and the assumptions that lie behind it, maybe makes a half-heartedly decent attempt to solve some of the problems. I just don't think it does. It may solve some of the problems in the short run; I don't know. But the long-term problems require a change in the whole attitudinal base that is behind much of our manufacturing, much of our industrial complex, which is being outpaced and outperformed constantly by societies that have a different attitude, not only to people but to how they should be rewarded and what their rights are.

Sure, we're for societal rights, but we want them not just in the freedom for some buccaneer to do anything they like — or, if they protest, put them back to work — but to ensure decent health, a job, clean air, clean water, and all these things that are important to the whole societal base, not to just one sector of it.

MR. HUBERTS: I just want to get back to that theory of essential service. I want to be on record as saying that I believe that the ferries should be essential services. I'm surprised that the two members for Victoria wouldn't speak up on behalf of that as well, and certainly the member for Esquimalt–Port Renfrew (Mr. Sihota).

For a minute there we were listening to the member for North Island (Mr. Gabelmann), and he was saying that historically, essential services meant life and limb. But that's precisely what we're talking about for Vancouver Island. When those ferries aren't running.... They are our lifeblood; they are. Without them we can't breathe, and without them we truly can't function. So I'm surprised that he couldn't see that, on a larger scale, we're not talking about just one individual; we're talking about every individual on Vancouver Island.

The other argument that has been used all the time is that they've made things essential in New Brunswick or Nova Scotia and it has backfired on them. You're going to need about 50 of these conditions to prove that sort of argument. We don't know what the conditions were; we don't know what the issues were; we don't know what the people were concerned about. You can't use that argument to back up one statement that you might have made, and then say that's a sound argument. It's not a sound argument.

I think that there's also something else in the question of leadership. That's probably the difference in the way we're brought up. We can all have different philosophies here. When I was 18 my father made a point that I had to be in at 12 o'clock on Saturday nights. I could have easily argued and said: "Dad, all my friends don't have to come in until 1 o'clock." I could be disobedient, and then say that my father was wrong. No, my father had every right to make that judgment for his family, and if it didn't work, it wasn't because my father made the law; the question was that I didn't obey. In many cases in legality, it's not always the government which shows leadership qualities and then everyone reacts and says the government's all wrong. No, there's also an element of obedience that we require from the people of British Columbia. That's the point I want to make.

But, again, I agree that the essential services should definitely apply to the ferries.

MR. CHAIRMAN: The chair recognizes the member for Prince George North.

MRS. BOONE: This is the disobedient member for Prince George North, I guess. I came in at 12 o'clock, too. My father told me when to come in. I was a good girl, yes. So it's not just members from the other side that have that ability of obeying their parents. But I did get my socialistic tendencies not from my father but from my good mother; she passed this on to me.

I'd like to touch briefly on the essential services. I find it interesting that members from the Island here — some of the members from the Island, at least — are so concerned about essential services with regard to the ferries. I can understand their concern about that, but essential services really vary according to who you are and where you are. Last week I was in, as you know, places called Ingenika and Fort Ware, which have virtually none of the essential services that any of the people here have been talking about. In fact, to get into their area.... Well, they had their essential services cut off by B.C. Hydro. Fort Ware essentially had their transportation route, which was a barge route down the Finlay, cut off when they flooded that out. There was nobody saying that you can't flood this area of land here because you're cutting off essential services to the Fort Ware Indian band. In fact, nobody has even said that, probably, up until now. But they are totally cut off. They have a plane that comes in once in a while. They sometimes may go without milk. They have occasions during the winter months when they run out of milk. This is essential services to them. So for everyone here to say that the ferries are essential services, that this is essential services.... It all depends on who you are and where you are. I believe that that's something that should be negotiated through a contract, and that the various unions have that ability to sit down and do so.

[3:30]

As a government employee, I can tell you that when the government employees were on strike several times, essential services were provided to the people of British Columbia. And that was done through negotiations with the BCGEU and the government. People did receive their welfare cheque; they did have their various areas kept up.

HON. MR. RICHMOND: Excluded employees.

MRS. BOONE: There were excluded employees, but essential services were maintained. And that is something

[ Page 1807 ]

that must done on a consensus basis, with agreement between the parties.

I find the business that it can be a threat to the economy a very strange idea. Who is to say what is a threat to the economy? I certainly find a threat to the economy the impending strike with the postal unions right now, where they are asking that people coming on take a cut in pay, that people be employed. I find that a threat to the economy, when people are being asked to work for wages lower than what people are working for in the same area. I find that a threat to this economy of the people. How do you expect that to happen? How do you expect our economy to thrive when people are taking lower wages?

When you talk in terms of your revenues being down, that of course is going to affect the government, and that is going to be a threat to anything. And virtually any strike.... The minister was unable to answer my colleague from Esquimalt–Port Renfrew when he asked him to name one dispute that would not be considered a threat to the economy. The minister was unable to do that, because any dispute can be labelled a threat to the economy if it goes on for a long time. But you have to look beyond that; you have to look beyond it to see what the threat to the economy is going to be if people are not able to negotiate freely, if they are not able to negotiate in a manner so that people will have reasonable wages, that they can have good living conditions, that they can expand. And they can't do that.

What you are meaning here is that, as I see it, no dispute will ever take place without being a threat, and eventually the entire unionized sector will have their whole ability to strike taken away. I think the members on the opposite side really believe that is good, and I really think that that is the bottom line of this, that they do not want anyone to have the ability to strike.

That is not the way this system has worked. We have worked for many years on the basis of bargaining, on the basis of negotiations, and we have not had a history of imposing long strikes. The majority of our labour issues are solved, and they are solved properly, at the negotiation table, bargaining in good faith. There are a few that go on for a long time, and for that reason we seem to come in with this hammer that is just knocking every single, solitary union in this position. We will not have this ability. There is no push, then, to negotiate, no push to come to an agreement, when you do not have that ability to strike at the end. It is not something that anybody wants to do.

The difference in areas I think you have to understand. I think you have to understand that some people will be seeing things as an impending strike.... Or what it says here is a possible threat; not even a necessary threat — a threat to the economy.

If it is a threat to the economy of the province — and that's the line there; a threat to the economy of the province, not necessarily a threat to the economy of a community or the economy of a particular family. As my colleague pointed out, the rights of the individual certainly do not seem to be paramount in this area here. When you're talking in terms of strictly the economy of the province, what would happen, Mr. Minister, as I pointed out to you once before with the strike that took place in Mackenzie where they were striking on the basis of contracting out, an issue that the entire community of Mackenzie accepted.... They were hurting by it, but they accepted it, a majority of them, because they knew that if contracting out was allowed to take place in that community, that community would literally die because the contracts would go outside that area to Prince George, to Fort St. John, to any of those areas.

What you're talking about here is the welfare of the province. Would the welfare of the province, because they were losing the income, because they were losing the revenues derived from that company, take precedence over the welfare of that community?

How can the council decide what is an essential area? How can the council decide what is a threat to the economy of the province, what is a threat to the economy of the community and when it's going to be necessary to step in? You have that ability right now, through the Legislature, to intercede, to step in when it is a real threat. But right now this legislation makes it possible to step in at any point.

I can't stand here without mentioning the business of the educational services, which I was called out of order on once before. When I was talking about Bill 20 I mentioned that this particular section took away the entire right that you've been talking about. The Minister of Education (Hon. Mr. Brummet) has been saying and the Premier has been saying that the teachers have been given the right to strike. This very part here takes it away: "...a threat to the economy of the province, or to the health, safety or welfare of its residents or to the provision of educational services in the province...." That very line just takes away everything that was given in Bill 20, so to even pretend that at any time the teachers are going to have the right to strike is absolutely ridiculous. It is just ridiculous to even consider it, and yet time and time again the government gets up and says: "We've given the teachers everything they want. They have the right to strike." Yet this section here takes that very right away. Mr. Minister, surely if you're going to introduce legislation like this you should at least be honest about what you're introducing, and you should at least tell the public what you have.

HON. MR. RICHMOND: Point of order.

MR. CHAIRMAN: State your point of order, please.

HON. MR. RICHMOND: Mr. Chairman, the member opposite clearly has impugned the reputation of the Minister of Labour by saying that he was not honest, and I ask that she withdraw that remark.

MRS. BOONE: Mr. Chairman, I'll withdraw that remark.

MR. CHAIRMAN: Thank you, Madam Member. Please continue.

AN HON. MEMBER: They're awake over there.

MRS. BOONE: Yes, they are awake. I'm glad. I guess they were listening to me.

I'm just trying to think of a way that I can rephrase this in such a way that it wouldn't be considered improper, but I guess I can't, because there is no proper way to say what I am trying to say here. There is no proper way to put this down. But you understand what I'm saving, Mr. Minister, and you know what my intent is here. You know the intent of this legislation, and you know what this part does to Bill 20 and to the teachers. So I really hope that you and the Minister of

[ Page 1808 ]

Education will tell the people exactly what this legislation means to them.

I find it interesting too, when you're talking in terms of essential services, that people never mention any of the essential services that I think are really necessary. That's what I find really amazing. You're talking about the provision of health, safety or welfare, and yet in many parts of this province people aren't getting proper health, safety or welfare. You would consider it essential in some parts and would legislate people to maintain those services, when in other areas they aren't even getting the very essential and very basic services required in a society.

This legislation is disastrous. This particular section eliminates the ability of any union to strike. It is a disastrous situation, and a situation that is not necessary, because the legislation right now gives the government the ability to deal with the situation. You do not need to come in with a sledgehammer at this point just because we had a long labour/management dispute in the fall. That is the only reason we're seeing this legislation now.

MR. HEWITT: I'd like to try to bring a commonsense approach to the section on essential services, after hearing the member opposite express concern about the impact of this section on the rights of employers and employees to bargain.

There are a lot of checks and balances in this section, and I think the members opposite have ignored them or just overlooked them. You will recall that originally we had just the commissioner making these decisions, and after negotiation or consultation with union members, with union leaders, it was changed to where the onus was placed on the minister to make these decisions. I agree with that concept, because it is an elected official who in the end has to make that tough decision — because it is a tough decision — as opposed to an appointed official.

What the minister has before him, when he has to deal with that tough decision, is a report from the commissioner, the person in charge of the Industrial Relations Council; the person who has done the in-depth research or study, if you will, regarding the dispute and comes to the conclusion that it goes beyond the normal situation, and then reports to the minister. That's our first check and balance: the study, the research that is done by the commissioner. Then he moves to the elected official — the Minister of Labour — and leaves it to him to make the decision. I think that step — that check and balance, as I mentioned — is something the opposition members have forgotten.

Whether it poses a threat to the economy of the province: a number of situations could develop which could impact on the economy of the province. A few come to mind. A major dock strike in the port of Vancouver could impact not just on the province but on Canada as a whole. A rail strike or a port strike in regard to the movement of coal could impact considerably on the economy of British Columbia; not just Vancouver, but all the way through in the communities that are involved. I just give those as two examples that come to my mind. Whether or not you would consider them to be fair examples of impacting on the provincial economy, I'm not sure. But they would be monumental in size, in my opinion, in the impact they would have on the financial and economic well-being of the province.

[3:45]

When we talk about the safety, health and welfare of its residents, I think the members opposite also would have to recognize that first the commissioner reviews the situation; secondly, the minister would look at that and accept it as his role, as Minister of Labour, to step in where the health, welfare or safety of the people is involved. I guess a dispute we could look at might be a hospital employees dispute where hospital workers walk off the job and patients are put at risk.

I know in the past we have had strikes in hospitals, and there always has been that "essential service." But this is looking at what could happen in the future, and these are the rules and regulations, if you will, that guide the minister in making his decision to make sure that the people of the province, whether they are management, labour, politicians, young people or old, are not in jeopardy, whether it be with regard to their health, their welfare or their safety. I don't see that as being draconian. I see that as being a sound, reasonable rule or regulation or legislation of the province that ensures that our people can rest easy, knowing that they won't be put at risk.

What do we do after we make that decision? Well, we do this terrible thing, I guess, of saying: "Hey, wait a minute. We are going to bring into effect a cooling-off period of 40 days. Sit down at the bargaining table, management and labour, think it out, reason it out, resolve the issue within that 40 days. Let common sense prevail, rather than walk away from the bargaining table." That's really what this section says. It doesn't say that you cannot go on strike. It says: "Let's have a cooling-off period here." It does then direct the council to designate facilities etc. that will prevent immediate or serious danger to the economy.

There is another phrase that the opposition members have not touched on: "immediate and serious danger to the economy." That is what we want to prevent, and the commissioner and the minister will determine whether it does present an immediate or serious danger to the economy.

So the cooling-off period is there and allows for people to sit down and reconsider. But when the member opposite says that we've taken away the right of the teachers to strike, it's not necessarily so. If the member opposite would look down at subsection (2) of section 137.8, which I am looking at, there can be a strike in existence at the time a decision is made to bring in force the cooling-off period.

MR. SIHOTA: One day.

MR. HEWITT: The member opposite says one day. So he is saying that we go on strike for one day and then we bring in the cooling-off period. That may well be. If it happened to be right at examination time, and after looking at the situation the minister felt that the students' whole year was at risk, I would hope that after one day he may determine that that is long enough and go back to the bargaining table and have a cooling-off period. If it is a longer term than that, whether it was five days or ten days or whatever, that decision will be made at the time. The members opposite always look at this from the point of view that there is no flexibility in this legislation. But I am sure they can recognize that it does allow the minister to take action where action is deemed necessary, where the health, safety and welfare or the education of our young people is at risk.

Mr. Chairman, I think the section is most important, and I am more than pleased to see the protection there with regard to education services.

I would make one last comment to the members opposite. When the 40-day cooling-off period is there, the minister, as I

[ Page 1809 ]

read this section, cannot automatically drop into place another 40-day cooling-off period. It has to be determined from that point on what happens with regard to the management/labour dispute and whether or not the people are deemed to be able to walk off the job one more time.

[Mr. Pelton in the chair.]

Mr. Chairman, the only reason I am standing in my place is to try to offset some of the comment made opposite about how terrible the legislation is, and yet when you take the time to read it and read it as the words set it out, I think the members opposite do realize that it is there for the protection of the people of British Columbia and is not looking at an attack on the teachers or on the labour unions. It is concern that has been expressed by this government to ensure that we have an economy that is attractive to investors, that our people have individual rights and freedoms, and they have opportunity in this province to find a job, to keep a job and also to make sure our young people have an education.

Mr. Chairman, I see nothing wrong with this section.

MR. SIHOTA: Let me say this from the outset, listening to what the previous speaker.... Before I proceed, I am glad to see the member from Columbia Bay — is it? — here. Columbia River. Sorry. That was a bit of an inside one for the member, who wasn't here before.

In light of what the former minister had to say, I have never met anyone in this House who isn't for jobs, education and investment. I've never met anybody in this House who isn't for....

Interjection.

MR. SIHOTA: Someone makes a good point about never knowing it, but I won't repeat that comment. So, you know, it's not apt to say: "Well, this legislation is the key to jobs and education and investment in this province." That's an extreme hyperbole. It's too bad the second member for Saanich and the Islands (Mr. Huberts) left, because I noted with intrigue that he did not comment on my alternative to deal with the vexing problem of ferries and other transportation systems. I was going to stand up and challenge him to do that, but he's gone now.

The member for Prince George North (Mrs. Boone) spoke from our side and pointed out that there are inevitably a number of situations where employees maintain those types of services, which reinforces my point that through contractual language you can assure the provision of those services, and for those who think that's a bit of a naive position, the example lies exactly in what the member for Prince George had to say with respect to the provision of those types of services during strikes.

But the real reason I stood up is to deal with the minister's comments in response not only to what I said but what others had to say. He said that he agreed with what Paul Weiler had to say about not using these powers lightly, and he went on to suggest that the government would not use them lightly either. That would be comforting, I think, in most circumstances, but in the backdrop of this legislation, which is a hysterical response to a situation that existed in October with respect to the IWA strike, the minister will have upon him political pressures that will invite hysterical response in my view similar to what happened last October. They will result in the utilization of these powers because they are there, and given the fact that they are easily accessible, with far more gravity than what Mr. Weiler says in his book, which he says ought to be taken only lightly. I don't agree with the minister's conclusion on that.

Let's just do an incubator test on some of these concerns. The Cominco strike is currently on. We are talking about posing a threat to the economy. Does that strike, which has an effect on the regional economy for sure, in the minister's view fall within the provisions of this section?

HON. L. HANSON: Mr. Chairman, I suppose that it would have to be looked at. I wouldn't tell you now, without spending a lot of time and thought and getting a lot of information, whether it would be considered a threat. My initial reaction would be no, but without knowing the full circumstances and without having all of the information that would be available, I wouldn't make any final decision.

You know, there's something here that is being forgotten in most of the discussions. The fact is that most of the disputes that do occur in British Columbia are settled, and I'm certain that that trend will continue. People will sit down across from each other and bargain their relative requests in a responsible manner, and continue to settle their disputes.

I believe the member for North Island (Mr. Gabelmann) referred to the strikes that were happening in eastern Canada — I guess Nova Scotia — as it relates to some of the police forces where they were....

MR. GABELMANN: Past tense.

HON. L. HANSON: That had occurred. He was suggesting that was because they didn't have the right to strike, and therefore that was one of the reasons. Certainly I accept the fact that there must have been a dispute between the two, or they wouldn't have gone on strike. But strikes in British Columbia, as far as they relate to the police, which was the specific one mentioned, could still be.... They are not illegal. There is nothing that has changed the circumstance as it relates to the police and their ability to strike.... There are some changes in the arbitration procedures and so on, but it is possible that a strike in the police area could happen in British Columbia.

It was interesting to hear the member for Prince George North (Mrs. Boone) making the point that what is essential to the Indian people, who are in such great difficulty in northern British Columbia, is not necessarily what is essential to all people. I think her point is well made, that what is considered essential will vary with each case, so each one has to be dealt with on its own merits, considering all the facts and the relationship to the circumstances.

I don't think there is anyone sitting here in the House who would dispute the fact that in some perverse way, or using some kind of logic — and I don't suggest it would be perverse logic, but some kind of logic that there is not any dispute on — whether it be between two employees and an employer, or 2,000 employees and an employer, or whatever the circumstances, there is not some degree or other to which it does have an effect on the economy. Then you could continue with that line of thought and eventually come to the point that it is a threat to the economy.

But the discretionary power that is here to make those determinations is on the basis of the severity of the dispute, and what threat it poses to the public. whether it is in health,

[ Page 1810 ]

safety or the economy. There is no question that as time goes on, that judgment in various circumstances will be assessed here in this House and through the electoral procedure that we all live under.

I would just like to spend one moment on the concerns of the member for Prince George North that the teachers have the right to strike. Well, I think we have been a little more positive about that and about the teachers, as it relates to Bill 20. I think we would like to say that the teachers have been given the right to bargain collectively, and I would like to suggest that that will lead to many voluntary agreements; that teachers do in fact have the right to strike. I suppose the circumstances that that strike would be under will make a determination eventually about what decisions will have to be made.

I suppose that members of this House may at some time be required.... I am not sure this relates to this particular section, but all members on both sides of this House may at some time be required to look at the effect of a teachers' strike. I am sure we will all deal with that with great respect and responsibility.

[4:00]

MR. CLARK: Mr. Chairman, moving along to section 137.9, return to work. All through the bill, there are clearly a number of sections which impact on what might be called free collective bargaining.

There is a fundamental philosophical thrust of the bill that reduces the freedom of parties to bargain collectively and imposes third-party intervention in all different ranges. This section deals with the return to work as a result of the Essential Service Disputes Act. I just want to read you a section from Gavin Hume — and I think the member for North Island has referred to him before — who is a management lawyer and has never represented a trade union. He says: "Section 8(e)(vii) of the Essential Service Disputes Act required the employer and union to continue collective bargaining and to make every reasonable effort to conclude a collective agreement. Such an obligation is not spelled out in the new legislation. Rather, the expectation of the legislation appears to be that one of the dispute resolution mechanisms ordered by the commissioner will result in a collective agreement."

So the question is simply this: whereas the previous Essential Service Disputes Act stated that if a group of workers or a unit was ordered back to work, there was a compulsion on the part of government to require collective bargaining to take place. That is specifically removed from this section, and Mr. Hume implies — and I agree — that there's an implicit recognition that if they're ordered back to work, the settlement will be determined by other than collective bargaining mechanisms; in other words, by the mediator or fact-finder or imposed final offer selection, or any of those other range of mechanisms that can be utilized. Could the minister explain to the House why that wording, which was in the Essential Service Disputes Act to promote collective bargaining after being ordered back to work, is removed?

HON. L. HANSON: The specific wording was removed, but I don't think there's anything in here that precludes or that doesn't encourage the two parties from continuing the bargaining process. The mandate of the disputes resolution division of the Industrial Relations Council is to assist and enhance bargaining, and if they can provide any method or assistance, I just couldn't perceive them refusing to do that. I'd think that would be an automatic reaction, because that is their mandate.

MR. GABELMANN: It's not a big point, but it's an interesting one. Until now the parties were encouraged by legislation to continue bargaining while the cooling-off period was in effect, and now the encouragement to continue bargaining is the fear that Ed Peck might do something. He's certainly not asked to do anything in terms of continuing bargaining by legislation. It's not the end of the world. Any parties who respect each other are going to attempt to continue to bargain if possible during that cooling-off period anyway, particularly given the options that might face them at the end of the many roads that are envisioned in this legislation.

I want to talk about subsection (7), which was amended the other day. Had it been left in its original form, it would have been absolutely outrageous, but clearly the government has recognized this. I'll just repeat that briefly: subsection (7), the final sub-subsection of this subsection — the last one in this part — is the whole question of discipline by the employer. The initial proposal was that the employer could act as the enforcement agent. The state wouldn't any longer be the enforcer of its laws; the employer would. It has been modified to take into account that objection, and I think we should acknowledge that the government did respond to this objection.

But there is still an objection to this particular section, because if two parties agree through collective bargaining and sign an agreement, and then there is a violation of that agreement, it is appropriate under labour law — and under common law too — that the employer have the right of discipline if the contract is violated. The discipline can be modified through the grievance process and finally by an arbitrator or arbitration board, if it gets that far. That's appropriate, where there's a freely signed collective agreement reached and it's then violated.

We're not talking about that in this section, because this now allows the employer to fire or to discipline someone — subject to arbitration, nevertheless, but he can take discipline — for an employee's refusal to follow the dictates of a politically imposed settlement, as opposed to a voluntarily reached agreement. If the return to work is ordered by the commissioner or the council under this section, and the political decision of the worker is to not obey that political act, then he, the worker, is perceived to have been in violation of a duly signed collective agreement. Therefore the normal ability of discipline would apply.

What you do here in this situation is wrong in principle, and that is to make the employer the enforcer of a politically imposed settlement. The politics of the settlement are that it comes out of Ed Peck's office; and that's the most political agency in this province, once it's in place. The discipline, or the penalty, or the authority for the penalty, is given to the employer. When the employer is simply.... He is in one sense neutral, yes, but is not a party to this decision of the government to make a worker go back to work. If the employer gets the right to say,"I'm going to exact discipline on you for refusing this political directive. For breaking this law of the province, I as the employer am going to discipline you...." It's subject to arbitration and everything, but it's wrong in principle to have the employer act as the enforcer.

[ Page 1811 ]

The government's argument, I suppose, if it were made, would be that there's an order and therefore there is, in effect, a collective agreement in place. Or at least there's an obligation on the part of the parties to act as if there were a collective agreement in place. Therefore, if people don't, then they are in violation. But that's not an argument that holds any water at all. The fact is that the employer is given the right to exact a penalty.

If people in society were breaking the law, Crown counsel would not have the opportunity to pick and choose which lawbreakers should be charged. Crown counsel would be obliged to apply the law equally to every lawbreaker. Where they felt they had a case, they would be required to proceed.

The employer has no such obligation. The employer who decides that people have not "returned to work" can pick and choose which employees will be disciplined under this section. Clearly, the employer then can have the right to say: "Okay, I'm going to take the union bargaining committee and fire them, because I'm tired of having to deal with them." Or he might have some biases toward individuals for other moves and fire them. He can pick and choose, or exact other kinds of discipline which may not be quite as dramatic as firing. But there's no obligation to act lawfully on the employer — and I use the word "lawfully" in quotation marks. There's no obligation to act evenly, nor should there be. There should be no obligation on the employer whatsoever to act as the state's enforcer.

If there's a refusal to return to work, it is not an agreement between the employee and the employer that is being violated; it is an order of the law or an order of the government or an order of an agent of the government. Therefore, if you break a law imposed by the government, then the penalty should be reached through the court process, not by giving the employer the right to discipline.

If I break a law, if I drive down the highway too fast, I can't lose my job. Perhaps I could if I was a truck driver and that was one of the issues in my contract. If it was an issue in my contract, then it would be appropriate. But if it's not an issue covered by my contract, then it's up to the state to prosecute. It may be a fine point and I'm not going to belabour it, but I think it's an important issue; the employer is now going to be in a position where he will be able to pick and choose as to which of his employees who violated the return to work are going to be disciplined. That's wrong in principle, in my view, in terms of fundamental rights in law.

Having said all of that, I acknowledge that this new subsection (7) is a heck of a lot better than the original proposal. If the original proposal had still been in place, we would have been many days debating that particular section.

HON. L. HANSON: I just wanted to make a couple of comments on the member for North Island's remarks. First of all, it does say that in the case of an order or whatever, and there's a failure to obey that order to return to work, there is a reasonable cause for disciplinary action. I don't think that that necessarily means there has to be disciplinary action; it's a discretionary thing. I could see circumstances where there may be a requirement for some disciplinary action within the union side, although it's referred to here as the "employee."

Let's say there are ten people ordered back to work; the union leaders order everyone back to work and one of them refuses to go. There could be a requirement for some disciplinary action there. The situation where there were three.... I think that was the one where the member suggested there could be an opportunity for unfair treatment, or not a standard penalty applied to all of the people who had effectively broken the same rule. I would suggest that that would be seen and dealt with under the arbitration process, as it rightly should be if there is unfair treatment.

[4:15]

In summary, there's no question in my mind that if there's a requirement in an act, it needs to be backed by some kind of sanction. That's the purpose of this: there is some requirement for some kind of disciplinary action if an order is refused.

MR. LOVICK: Mr. Chairman, regarding section 137.91, let me start by going to the end of that section. I would make a very brief preamble to the question: namely, this question is posed in the spirit and in search of consistency.

What I'm concerned about is the fact that, according to 137.91(11): "The chairman is not obliged to make public the report of the fact-finder, but may make it public if he considers it desirable to do so." We've seen a number of other sections within Bill 19. a number of other amendments, in which it would seem that as a matter of course there is disclosure; there is a mechanism whereby matters must be made public.

My first question.... If the minister would be good enough to respond to this I'd appreciate it, before I pursue matters. Why in this case are we giving that kind of discretion to the commissioner when in so many other cases it seems that we are using the avenue or the mechanism of full public disclosure as a solution to problems? Here, we apparently leave it as arbitrary and up to the designs and desires of the commissioner.

HON. L. HANSON: Mr. Chairman, I think it's a question of what the chairman of the dispute resolution division sees as the most appropriate action to help achieve a settlement of the dispute. If there's no value in achieving a settlement of the dispute by making it public, there's no purpose in doing it.

MR. LOVICK: Just to pursue that for a moment, Mr. Chairman, if we work on the assumption that this individual we are calling the fact-finder does indeed do what his title suggests — that is, elucidate and adjudicate the facts in a particular case — why would we not make that information public? How can that be a matter of strategy? Or is the minister suggesting to me that what the fact-finder does may in fact have something to do with the respective strategies of the two parties in a debate or a dispute resolution?

Is my question clear? I think it's an important one. Okay, we shall rewind the tape, as the saying goes.

MR. ROSE: Amplify and elucidate.

MR. LOVICK: My colleague from Mission–Port Moody suggests that I should amplify and elucidate. I suspect that's a phrase that comes from the House of Commons; I'm not sure.

What I'm getting at is this. If in fact we are simply getting facts.... Pardon the play on words. If all the fact-finder is doing is assembling facts that are germane and relevant to a case, then surely that individual ought to be able to divulge those facts to the public. Surely nothing would be served by keeping those things secret. So far, so good, I ask rhetorically. The question is, if it is not the case that the facts are

[ Page 1812 ]

to be divulged as a matter of course, then it seems to me to be clear — or perhaps it is the case, I should say — that the fact finder really is going to be presenting or assembling information that has to do with matters loosely called strategic — matters that concern helping or hindering the case of one of the two parties in the dispute. Which one is it, I would ask of the minister? Are we dealing with facts, or are we dealing with matters that more properly belong to the strategic case of either of the two parties?

HON. L. HANSON: Mr. Chairman, I think the very name of the individual is that he is a fact-finder, and I suppose part of those facts could be some of the strategies of both sides that have led up to the dispute. At that point they would be a fact that caused it. What we're doing there is giving the chairman of the disputes resolution division a discretionary ability to release the fact-finder's report, keeping in mind that his goal should be to achieve a settlement between the two parties — and the public. I should say making the facts public of the fact-finder's report may have — and you know the circumstances of each case have to be considered — no relevancy at all to encourage the parties to resolve their differences.

The traditions that have always been followed where fact-finders have been used are, I think, in the old Essential Service Disputes Act, which is being repealed. It says that no person shall publish or distribute the report of a fact-finder, but the minister may publish and distribute the report in any manner he considers advisable. Again there's that discretionary power, where the publication of the facts will assist in resolution. Then I'm sure that they can and will be published, but in cases where that fact-finder's report could be one of two things — detrimental, or have no effect, in the chairman's opinion, to help resolve a dispute — then there wouldn't be any requirement. If they didn't have any one way or the other, I suppose he could publish them or not publish them, but his mandate is still to achieve a settlement between the two parties.

MR. LOVICK: I'm a little concerned when I hear the regular reference to discretionary ability or discretionary power on the part of the commissioner. That's a theme, of course, that we have spoken to before this time. It seems to me that we are asking the wisdom of Solomon from this person who has to somehow differentiate between matters of fact versus matters of strategy and whether indeed something should or should not be released.

For instance, suppose that one of the things under the heading "strategy" that the fact-finder discerns and determines is that the trade union is arguing a case that says,"We're going to fight this to the bitter end," but what is determined very clearly by the fact-finder — because, after all, the trade union is obligated by this bill to give accurate and honest information — is that the trade union is running a bluff? Suppose they don't have any money in their strike fund to speak of, and suppose also the great majority of the members who are out there hitting the bricks are starting to wear a little bit thin in their resolve and their determination to carry on waging their war, to fight their fight. Given the rather loose requirements that surround this particular section of the bill, is it not entirely conceivable that precisely that kind of information could be released in order to solve this particular dispute? Again, I would emphasize, as I have before, that apparently the criterion is to solve the dispute without too many other guiding forces or guiding restrictions such as fairness or equity. Instead we say: "Give us a good pragmatic solution. Solve the problem." And if somebody gets hurt in the process, we're apparently mute on that.

Certainly I don't see anywhere else in the clauses we have looked at recently where we are in fact told that this must be under the guidelines of fairness, equity and so forth. Rather, it seems the conclusion is an entirely pragmatic and practical one: solve the dispute. Given that, surely the scenario I sketch out here is credible. A particular commissioner could in fact say: "I know how we can solve this dispute. All we have to do is blow the cover" — if I can use that rather trite expression — "of one side in the dispute, because that side is not as powerful and well-entrenched as we might have thought." Is that not credible? I don't think I'm making it up. I think that's a perfectly legitimate scenario. Would the minister care to respond?

HON. L. HANSON: I suppose that what the member on the other side suggested is a very bizarre possibility. I would sure have some difficulty in.... I think you can go on to suggest that the fact-finder is getting the information from both sides and releasing it to both sides, so that nobody has any secrets anymore. But we're talking about professional people in the labour relations field. The fact-finder is not acting responsibly, if you will, if he suggests: "Hey, I know the chief negotiator's wife is pregnant and that he must leave later today. If you continue negotiating tonight, they'll be forced to reach a settlement." I mean, be a little realistic with the situation.

MR. LOVICK: Just a couple of quick points on this. This is obviously not a major bone of contention in the bill, and there are other things that are more important, so I certainly shan't drag this out beyond what I think is absolutely necessary.

Let me, however, make a point that I think is germane and relevant. The minister says that the scenario I paint is bizarre. Indeed it is. So, however, many would argue, is this bill. That's not the point. I'm not standing up here to make cheap debating points. Rather my concern is this: what I said a day or two ago in talking about Bill 19 — and section 62, as it happens — was that one of the things built into this is an incredible amount of discretionary ability and authority on the part of the commissioner to hire people who are not connected to the ministry but are private consultants. We can certainly say that there is some measure of professionalism in the field that will protect us, etc. But I'm wondering about that, Mr. Minister, or whether in fact it is not the case that the commissioner, in response to pressure from a particular group, in response to a whole chorus of voices talking about "the public interest," might well not decide to very particularly choose a very particular person, somebody who may indeed have the professional expertise, but who may also be an ideologue, convinced and minded to believe that one side of the dispute is being unfair or unreasonable or some such thing, and who may therefore, quite understandably, quite characteristically, proceed to divulge, information which would benefit one side more than the other.

[4:30]

Of course it's bizarre, of course it's hypothetical, but there is nothing, I would submit, in this bill, in any clause of section 62, to prevent and preclude that kind of thing from happening. That causes me concern, and I suspect others of

[ Page 1813 ]

my colleagues feel the same way. Again, I simply make that point. I think it's a reasonable conclusion to derive. I don't think I am being alarmist.

I want to touch briefly on one other subsection of 137.91 — namely, subsection (5). This section is one that moves me to argue the kind of hypothesis that the minister referred to as bizarre. Have a look at subsection (5), which says: "The fact-finder may include in his report his findings in respect of any matter that he considers relevant to the making of a collective agreement between the parties." That doesn't exactly circumscribe and delimit, does it, Mr. Minister? What we are looking at, in fact, is an incredibly broad, wide-open invitation for the fact-finder to determine what constitutes evidence, to determine what kinds of information might solve an agreement even if that might be under duress, even if that might be with one of the parties in the dispute screaming and crying misery and saying that this is indeed the end of their integrity and their identity as an organization.

I'm concerned in subsection (5), as I have been in a number of other concerns, that the language is so inclusive, so enabling, that it is precisely the kind of language that makes it possible for members on this side of the House to sketch scenarios that are understandably referred to as bizarre. If there aren't any limits on those kinds of powers, if we don't define things somewhat more rigorously and carefully than in this bill, then it is inevitably — and predictably — going to be the case that members on this side of the House and a whole bunch of others outside this House are going to look at this bill and say: "Aha, what is the hidden agenda? What then is the reason for leaving it that broad?"

That's the other concern that I had about 137.91(5). I'm not sure whether any of my colleagues want to speak on this, Mr. Minister, but for the record those are my concerns.

MR. MILLER: Of course, it's pretty hard to find the facts. We have to get Joe Friday on the job here, reporting to General Peck. I want all the facts, and just the facts, ma'am.

Interjection.

AN HON. MEMBER: He looks younger than he is.

MR. MILLER: I'm getting all these compliments from my colleagues, who think I'm younger than I look, or older than I look.

MR. JANSEN: No comment.

MR. MILLER: And no comment from the member for Chilliwack, who also had no comment when I pointed out the error of his ways last week during debate.

Going back.... I understand this is in order, although we agreed to do these — there is a Latin term here — seriatim. I missed the opportunity to ask a question on 137.9 with respect to discipline and the penalty, if any, that would be imposed on an employer for refusal to comply with an order under this section, and any penalties or any discipline that could be imposed on the agent of an employer under the same section. It seems to me that employees are easily identified as being subject to discipline for their failure to comply, and yet given the complexities of starting up an industrial operation, there may be violations on the other side. The section does not spell out what penalties would be imposed. Presumably there are some, and the minister will advise me of that.

In addition, if a person acting on behalf of the employer, whether that's a foreman or a supervisor, or whatever agent of the company involved, does something that violates the intent of the order, would they be subject to discipline? Would the employer be compelled to levy some discipline on those individuals, the same as on the employees? I assume, when we're talking about employees under this section, that we're talking about those members of the trade union. Perhaps the minister might respond to that question.

You should keep that mike up, Mr. Minister. It makes the whole thing go a little quicker.

HON. L. HANSON: I guess we are moving back slightly in some of the sections. But there is a penalty under Part 9: "A person who refuses or neglects to observe or carry out an order made under this act is liable...if an individual, to a fine not exceeding $1,000, or if a corporation, trade union or employers' organization, to a fine not exceeding $10,000." So we've actually gone back a little way in it. But there is a penalty for that sort of action.

MR. MILLER: So there's a financial penalty to the employer.

MR. CLARK: Ten thousand dollars.

MR. MILLER: Ten thousand dollars? It's not much to Mac-Blo, eh?

Interjection.

MR. MILLER: The Provincial Secretary (Hon. Mr. Veitch) wants to enter the debate from his chair.

With respect to my question regarding an employee of the employer — that may sound a bit convoluted, but what I'm getting at is someone who is acting in a capacity for the employer — the minister did not respond. Would they be subject to the fine on an individual basis? Would the company be subject to the fine because of their actions? Or would these individuals be subject to discipline under the section 137.9?

HON. L. HANSON: Are you suggesting that there is more than one foreman, or something, involved in it — a number of people representative of the employer?

MR. MILLER: Could be one.

HON. L. HANSON: Well, I suppose the determination would be by the council. There might also be a union grievance against those before the board. There could also be a request to file the order in the courts for penalties or damages.

MR. MILLER: First of all, it's automatic under this section, where an employee who fails to respond to the order could be subject to discipline; and of course that, presumably — the minister shakes his head — would be the kind of discipline that the employer may wish to impose; and that would be, of course, subject to the grievance procedure. If I'm wrong in that premise, I'll stop, but I don't think I am. An employee would be subject to discipline of the employer's choosing.

[ Page 1814 ]

On the other side of that.... And I recall previous legislation, directing the pulp industry back to work in 1975, where it was very carefully spelled out that employers had to comply with a number of very detailed steps. For example, if in a return to work a foreman did not call an individual to come back on their particular shift, I would take that as a violation of the order; and yet there is no particular penalty attached to that foreman. I'm not trying to malign any foremen by using this example. There's no particular penalty attached. In fact, if the union wants to pursue it, they have to do it through the grievance procedure, to try to get some recompense for the employee who wasn't called back, and there's a body of jurisprudence that says employers don't have to pay for work not performed.

So you can see the scenario I'm painting, where an individual agent of an employer — whether you want to call him a foreman or a supervisor, or whatever the designation might be — fails to live up completely to the order, and there's really no penalty, unless in the unlikely event, I would think, that the council would see that as a violation. They'd probably see it as an oversight, and say: "We're not going to deal with that." The end result of that could be that an employee loses out on a day's pay. And I've seen those kinds of situations happen; they're very real. They happen in the workplace.

So I wonder why the minister did not — instead of singling out employees, which, I repeat, are very easy to single out — use some creativity in designing some disciplinary sections for employers, over and above the fine that would result from non-compliance.

HON. L. HANSON: Mr. Chairman, I think I have already explained this, but if that is the determination, there could be a filing of the order in the courts, and you know what that would lead to. There can be a grievance procedure and there can be penalty under certain sections of the Code.

I would also suggest that under subsection (7), which the member was referring to as the reciprocal side of this as it relates to an employee, there may be a lot of reasons why an employee does not return to work other than failure or refusal. I think it is without reasonable excuse, and that applies there too to the employee.

The other thing that should be kept in mind is that under this section it does say that it shall be deemed just and reasonable cause for disciplinary action; but it nowhere reads that there has to be disciplinary action, that I know of.

[4:45]

MR. MILLER: Well, the minister is right when he says that they are not compelled to take, but that in itself is not sufficient indication that they won't.

Would the minister consider something of this order. Where an employee is not recalled to work as a result of actions taken under this section and loses pay as a result, would the minister agree that it would be desirable and suitable for the employer to have to reimburse that employee for wages lost as a result of the employer not calling him back to work? Would that be an appropriate device under this section not only to protect the rights of employees, but to provide some onus for the employer or the employer's agent to comply? That would be a suitable thing. I am sure that if they know they can be disciplined for not going back, if the employer by some oversight or for some reason does not call them back, then they should get paid.

MR. GUNO: I just have a couple of questions. They may have been canvassed, but I would like to hear the minister's response to them.

Unlike the conditions placed on the member of the public interest inquiry board under section 137.92 — that is that no person shall be appointed who is directly affected by the dispute — in this case there is no similar condition placed on a fact-finder. Can the minister explain the omission?

My next question is the matter of.... In 137.91(2) it states that seven days after the receipt of the notice of the appointment of the fact-finder, each party shall give written notice to the fact-finder. However, it says in subsection (3): "Where a party fails to comply with subsection (2), the fact-finder may make a determination of the matters mentioned in subsection (2)."

In light of the fact that this whole process, which you can characterize as some kind of a quasi-legal process which then under our administrative law requires that each party has the right to be heard.... Would this not in some ways put in jeopardy the rights of the party if they are not able to make it within that seven days?

HON. L. HANSON: As it relates to a member of a public interest inquiry board.... I think the question was something along the lines that it directs here in the act that any individual who is directly affected by the dispute in question should not be asked to sit on a tribunal. I think there's the difference — by the very nature of the appointment of a fact finder. He is a neutral individual by the nature of the responsibility he has. This is a member of a public interest inquiry board. When forming a public interest inquiry board, it would be counterproductive to have an individual who is directly affected by the dispute, because it wouldn't then be a true public interest inquiry. The fact-finder is a neutral by the nature of the responsibility he has. It would be unreasonable to expect him to be a member of the bargaining team on one side or the other. He is neutral in that respect, and would in fact be a neutral.

MR. GUNO: Well, if we're going to practise neutrality, and if we're going to expect the fact-finder to have that kind of neutral position, then I would think it's the same kind of requirement that there should at least be some provision in the section to ensure that there's no interest whatsoever on the part of the person appointed as a fact-finder. Would you want to respond to that?

HON. L. HANSON: Well, Mr. Chairman, you know, it doesn't make a lot of sense to even suggest that a chairman would appoint a fact-finder who is in fact a prejudiced individual by reason of some interest in the particular dispute, one way or the other. To use a mediator who it is predetermined has an interest in the outcome of the dispute related to one of the disputing parties — and it could be either one — and would receive some benefit from the dispute going one way or the other, would just make the whole purpose of appointing a fact-finder negative. There would just be no point in doing it.

MR. GUNO: I guess we can go through a lot of scenarios, including one where the chairman may not be aware of any kind of interest involved, and suddenly find at the end of the day, after the report has been made by the fact-finder, that there are some interests. What would happen then?

[ Page 1815 ]

I want to get back to my second question about the fact that this whole process has some sort of quasi-legal character. Subsection (3) states: "Where a party fails to comply with subsection (2), the fact-finder may make a determination...." I want to know exactly how he makes that determination.

Interjections.

MR. CHAIRMAN: Just while members are checking their notes.... Hon. members, the debate has been going quite smoothly, and it seems to the Chair that the reason for that is that we have been progressing through these various subsections one at a time. Although I didn't know of any formal agreement that this would be the way it was done, I think that it was probably felt that it was the best way, and it makes it much easier for everyone involved in the debate if we deal with these sections as we come to them. We have dropped that procedure slightly here by allowing the hon. member for Prince Rupert (Mr. Miller) to go back to 137.9; and now the hon. member for Atlin is doing the same thing with 137.91 and 137.92. So this is just a suggestion, hon. members, that if we can stick to these subs as they come up, it will probably be easier for both sides.

Is the minister ready to respond?

HON. L. HANSON: I would like the member for Atlin to clarify for me what his question is. Subsection (2) deals with "within 7 days," and subsection (4) is "the duty of a fact finder...." I'm not sure. I thought I heard you mention seven days.

MR. GUNO: I was dealing, Mr. Chairman, with of 137.91(2), which states: "Within 7 days after the receipt of the notice of the appointment of the fact finder, each party shall give written notice to the fact finder...." And of course, subsection (3) says that if that is not given by any party, then the fact-finder may make a determination based on input from one party. I'm saying that that has a quasi-legal kind of character to it. If that is so, does this not constitute some form of denial of a person's right to be heard, which is required under our administrative law?

HON. L. HANSON: I guess I'm still confused about the question, but it says,"Where a party fails to comply with subsection (2).... ", and subsection (2) says they shall give the information. I don't understand why that could be perceived as saying that only one party has been given an opportunity. I mean, one party has failed to do that. Is the member suggesting that the notice may not be delivered or that the question isn't delivered to ask this of both parties?

MR. CHAIRMAN: The member for Esquimalt–Port Renfrew. Are we on 137.91?

MR. SIHOTA: We're on 137.91(2) and (3), which are the two that I believe we've been dealing with now.

Let me give the minister an example of a situation. The section says:

"Within 7 days after the receipt of the notice...each party shall give written notice to the fact finder and the other party setting out all matters the parties have agreed on for inclusion in a collective agreement and all matters remaining in dispute between the parties" — in other words, all the issues between them. "Where a party fails to comply with subsection (2), the fact finder may make a determination of the matters mentioned in subsection (2)."

Let me give you an example of that. The minister knows as well as I do that in my riding, in the Sooke school board, we just had a situation precisely along those lines. We had a dispute with the teachers and the school board where the minister appointed an arbitrator.

If I may pause there, it's interesting to note the minister's comments about neutrality of the arbitrators only a minute ago, keeping in mind that the arbitrator in that case was clearly someone who had a management background. That flags in my mind another issue.

In any event, we have the appointment of an arbitrator. We have submissions made by only one party, the school board. The teachers decide not to make any representations. If I understand the member for Atlin (Mr. Guno) correctly, the fact-finder — if one were appointed in the Sooke school board dispute — would then be able to make a determination of the matters in dispute in the absence of the party that has chosen not to participate. That's the concern, and that's the example of a situation before us right now. That certainly raises questions about the right to be heard and so on.

Now I'll give it back to the member for Atlin, but having given the example, which I think makes sense, perhaps the question the member was raising becomes far more relevant.

HON. L. HANSON: In the circumstances that the member was pointing out, the one party was choosing not to make representation and choosing not to be heard. Subsection (3) says the fact-finder may make a determination of the matters mentioned in subsection (2). I suppose that the fact-finder's report could possibly read: "I've only been able to get half of the story; I can't determine what the other half is." Therefore the chairman may look at the report as not being all of the information and would not make it public and say that the fact-finder, as an appointment with an attempt to reach a settlement, could not be successful because the information couldn't be made available to him or because one of the parties refused to bring forward the information.

[5:00]

MR. LOVICK: I was going to speak to 137.92, but I think I can make the point that we have been getting at in 137.91. If it is the case that one of the parties affected says it does not have faith in or trust the person named as fact-finder, it effectively has removed its day in court. Rather, it says, according to the bill, that the commissioner can decide to adjudicate the case, hearing only one side of the case.

The assurance we receive from the minister in response to that hypothesis is: "Well, we are all reasonable men and nothing like that would happen." If, however, the person named to be the fact-finder can be perceived by one or other of the two sides as unacceptable, untrustworthy and so forth, surely it also follows that the people who appointed that individual who is perceived to be unfair, discriminating and so forth will also be able to make a judgment based demonstrably on hearing only one side of the case. In other words, the logic and the premises on which the case about reasonableness are built apparently don't have to obtain for the first set of conditions, but they're being invoked for the second set of conditions. That's the concern.

[ Page 1816 ]

I'm not sure whether my colleagues, either of them, wish to pursue the matter on 137.91 further. I look for guidance. Then let me take us, if I may, to 137.92.

I have two concerns about section 137.92 — two subsections. The first one is the business which I think was alluded to earlier. May I quote it to the minister simply for purposes of convenience and clarification. Subsection (5) says: "No person shall be appointed or act as a member of a public interest inquiry board who is directly affected by the dispute in respect of which the board is appointed." Most of us, when we read that, I'm sure are going to say: isn't that wonderful? Yes, that's good. That is a good principle, if you like, to follow. However, if we pause to reflect for a moment, Mr. Minister, we are reminded of an earlier section of the bill, namely 137.3,"Mediation services" where we discover that a mediation officer can be appointed with what I think you will agree are fairly significant powers. A mediation officer, according to 137.3 (2), need not be an employee of the council; that is, somebody who can in fact be picked from the ranks of the industrial relations business and who may well indeed have his or her own agenda in support of one side or the other. The question, and I think it's a fair one, is: why do we say that members who serve on public interest inquiry boards must, by the stipulation of this clause, not have any direct interest in the dispute, but we do not make the same demand, or the same claim, of individuals we are prepared to appoint as mediation officers? Surely, if we are going to enshrine the principle of no conflict of interest, we ought to do so in that other section just as well, should we not?

I would ask the minister if he would care to respond to that. It seems to me, in short, that the mediation officer's position is also delicate and extremely important, and that individual may well be put into a conflict-of-interest situation — perhaps, as the member for Atlin (Mr. Guno) alluded to earlier, unwittingly. If we are going to make that specific statement in 137.92, should we not make the same statement in sections such as 137.3?

HON. L. HANSON: I thought I answered that question once, but I guess obviously I didn't.

The public inquiry board is a tribunal, and the mediator is an individual, I would suspect that most of the mediators are professionals in their particular field, and those that are looked on by either side as having any prejudice would not be successful in the field or with their responsibilities. But I think we generally accept that mediators, with their mandate to help the parties reach a voluntary agreement, are considered to be neutrals. Most mediators that I know of go to almost any length to protect that neutrality, if you will.

They are two different kinds of boards, though. The public inquiry board is a tribunal, while the mediator is an individual sent in to help resolve the dispute if he can.

MR. LOVICK: A very, very specific question, Mr. Chairman. Where in 137.92 does it say the board is a tribunal? I guess I missed something.

HON. L. HANSON: Maybe my description "tribunal" is a bad one, but I think the description is appointing one or more persons as members of the board — if more than one member is appointed, designating one member as chairman of the board. I guess my description of it as a tribunal is incorrect, but what we're talking about here is that those persons, or that person, forming or taking part in a public interest inquiry board.... The commissioner, where he considers it appropriate to establish the public interest inquiry board, must be assured that those individuals are not directly affected by the dispute — or, in other words, are neutral individuals. I suppose that the mediators, as we have known them for a number of years, by tradition are neutral.

MR. LOVICK: To be sure, Mr. Chairman, mediators are by tradition neutral. However, we are talking about something called a public interest inquiry board, of an indeterminate number, without a clear statement of the criteria for selection. I don't think it says in 137.92, at least based on my own examination of that passage, that these are the criteria, that we are going to hire professional people. For all we know, this could be the political pork-barrel or something. I don't think we have any caveats or other restrictions imposed here in such a way that we can guarantee anything approaching neutrality. I think that's an omission, and probably a serious omission.

The very terminology is such that a number of people are concerned — and, in my mind, rightly so, simply because the public interest, as we have tried to demonstrate on a number of occasions thus far, tends to be very much a subjective matter. Some people will define it in one set of terms, and others will define it in very contrary terms. We are concerned simply because of the subjectivity of it.

It is quite possible, for example, to have a public interest inquiry board that is involved in adjudicating a dispute about ferry service to Gabriola Island, all of whom are members of the business community on Gabriola Island whose livelihood is directly affected by the interruption of ferry service and all of whom will necessarily, then, regard the public interest as their interest; namely, the livelihood and success of their respective businesses. Others, of course, will take a different view of what the public interest is.

As I say, I think that in 137.92, through you, Mr. Chairman, to the minister, we don't have sufficient hedging in or restraints imposed, if you like, to allay our fears concerning what the composition of that board might be. I perceive that perhaps there has been some consultation between the minister and his advisers, and I'm wondering if I've missed something. Would you care to respond?

That's one of my concerns, certainly: that we have apparently stipulated here that there shall be no conflict of interest, but that.... "No direct interest" is a more appropriate term. But we don't do the same in other places, and the reason is apparently that we're dealing with professionals, who, by definition, are neutral. But I don't think that in 137.92 we can make the same claim. It seems to me that it is not at all clear that we are necessarily going to be dealing with professionals here. Rather, we could be dealing with hacks and hatchet men. I'm deliberately using phrases that are somewhat inflammatory simply to make the point with a certain amount of intensity.

Let me turn to sub (8), however, because I want to say just a little bit about that. I see one of my colleagues is also anxious to offer some comments about that too; I shall be brief then. In sub (8) we have an illustration of democracy in action; namely, that the recommendations of the majority of the members of the board are ipso facto the recommendations of the board. I want to say that the logic of that may be impeccable; however, I'm not sure it's a very good principle.

[ Page 1817 ]

I think that every student of "democracy as system" recognizes pretty clearly that democracy is a marvelous and wonderful invention or construct, but it isn't necessarily capable of adjudicating between right and wrong, between fair and unfair.

Given, as I say, that we apparently don't have assurances here that the board will be composed of people who are necessarily fair and impartial and professional, the fact that a majority decision is to be our salvation and our solution is small comfort. I think, as I say, that a majority-rules system is a good one in a great majority of cases. It is, however, not the case that a simple majority will decide whether something is right or wrong. It's quite possible, given this reliance on the majority, that injustices could indeed be committed — injustices we should be on guard against.

I have, through you, Mr. Chairman, made a couple of significant and major points in my examination and discussion of 137.92, and I would, in all sincerity, invite the minister to comment. I think both of those points are valid. First — again to summarize — is it the case that there are not specific criteria written into this legislation stating that the public interest inquiry board will be composed of people who are neutrals, who are professionals? Secondly, is it really a good principle in this instance to rely on a simple majority vote as apparently our solution to the conundrum and difficulty of deciding whether something is fair, just, right, proper, etc?

HON. L. HANSON: First of all, you have my assurance that the appointments to those boards will certainly be fair, impartial and professional people. They will have some recognized expertise and an ability to deal with issues, or else the whole purpose of the board would be.... I mean, it would be a farce. When you appoint these sorts of boards, you do that with a purpose in mind, and to use anyone but a recognized neutral with some expertise and an ability to deal with issues would be contrary to the formation of the board to start with. PII boards are intended to resolve problems; they're not intended to create them. No specific criteria are followed. In 1973, when the industrial inquiry commission was.... There are no particular criteria there, and I think it has been well accepted as a pretty reasonable process that we've gone through.

[5:15]

On the issue of the majority of the board, the recommendations of the majority of the members are recommendations of the board, but if there is no majority, then that suggests that there's a three-person board. Well, I guess that would be hard — a two-person board. The chairman is deemed to have made the recommendation, but I would suspect that in the report that comes forward there would be some description of the process they went through. There probably would be some stating of a member's reason for dissent, but the recommendation at the bottom of the page would be deemed in this manner. So I don't think the rest of the information would be left out. It simply states here that in those circumstances,"the recommendations of the chairman shall be deemed to be the recommendations of the board" if that's the only way it is. The majority of the board would do it if there is a discernible majority who agree with the recommendation.

MR. SIHOTA: There's a number of issues that I want to canvass before we move on to section 137.93. So I'm still on section 137.92, Mr. Chairman, for purposes of reference to the minister.

I find some intrigue in subsection (8) as well with respect to the concluding paragraph: "...but if there is no majority the recommendations of the chairman shall be deemed to be the recommendations of the board."

As I speak, I think I'm missing out on some of the jocular activity that's going on around here. I'm sure I'll be filled in a little bit later on.

MR. WILLIAMS: You're the jock in our caucus.

MR. SIHOTA: I'm the jock? No, I would never say that with the first member for Victoria (Mr. G. Hanson) present. I think he's the jock among us all.

In any event, to get back to the point, I can imagine a situation where you have three members of the board.... I see that the minister is leaving. In the back of my mind I'm wondering if the first member for Vancouver South (Mr. R. Fraser) is ready to pounce through the microphone and provide us with a few gems of wisdom.

Interjections.

MR. SIHOTA: Is it time for a commercial break from the member for Vancouver South? I always look forward to the commercial breaks that we have when the minister leaves, and I thought for sure that the first member for Vancouver South, in his usual way, would provide us with a few gems of wisdom and help to take advantage of this time out. Perhaps if he's not prepared....

MR. WILLIAMS: And assure his future in the new riding of Killarney.

MR. SIHOTA: The first member for Vancouver South is going to be running in a new riding next time? You have already determined that.

MR. CHAIRMAN: Perhaps we should continue with the subject at hand here.

MR. SIHOTA: As I was saying to the member for Vancouver South and to the Minister of Municipal Affairs (Hon. Mrs. Johnston) — and, of course, to the Minister of Labour — pursuant to 137.92(8), I can see a situation where you have a three-person commission. All three of them can have a different point of view on the matter that has been referred to them by the commissioner.

In that case you have three different decisions. I am not too sure why you want to say legislatively that the decision of the chairperson would be the recommendation of the board. If, for example, we see in the Supreme Court of Canada, as we did see in what has now been called the right-to-strike case, a three-three-one decision, then it is a three-three-one decision. There is no majority decision of the court. Three judges went this way and three judges went that way and one judge chose a different direction.

I am not too sure why one would want to deem in legislation that the recommendations of the chairperson ought to be the recommendations of the board. That is the first question. The second concern is with respect to the minister's comments about minority reports. Is the minister saying that

[ Page 1818 ]

minority reports will be published and be part of the report that goes back to the commissioner?

HON. L. HANSON: You know, any purpose of it to establish a public inquiry board.... A minority report would be publishable. It certainly would be given to the commissioner, and the commissioner would make a determination from the substance of the report whether he felt that it was a serious minority report or not. I am sure that the report would detail the reasons that the other members, if that were the case, were not in agreement with the recommendation.

I think it's important in subsection (8), and that's what we've tried to ensure, that there is a final report of the board or a final recommendation of the board, and hence certainly the chairman's powers. I think in a number of arbitration cases there has been that sort of connotation, that the chairman's report is the report of the arbitration board, and we felt that it was necessary to put that in to ensure that that certainty of the final recommendation is there.

That's the reason that we've put the chairman.... In these circumstances where there isn't a majority recommendation, the chairman's report should be deemed to be the recommendation of the board. If more than one member is appointed, I think I'd point out that in subsection (3)(b), designating some member as chairman of the board would be one of those considerations that would come about as a result of that appointment — or the possibility that the chairman's recommendations would have to be the final recommendation in the case of a lack of majority. Therefore the chairman would be chosen with great concern and with great consideration of the fact that that may eventually be the result. So the ability and experience of the chairman would be one of those criteria that the commissioner would take into consideration when he designates one of the members as chairman of the board.

MR. SIHOTA: Mr. Chairman, I want to thank the minister for that response and go to 137.93, because it in itself raises a number of other issues. "Public interest advocate": a very strange section, in my view. We would allow a gateway for someone within the public interest to appear as an intervener at the public interest inquiry board, at the appointment of the commissioner, to advocate and represent the public interest.

First of all, it allows the commissioner to make the appointment. So we have a non-elected person making an appointment for someone to advocate the public interest at the public interest inquiry board. I would question the propriety of someone who's a non-elected individual making an appointment for someone to articulate the public interest. Keeping in mind that this report goes back to the commissioner, arguably the commissioner will appoint someone to appear before him to render a case in the public interest, whose representation is going to come back to him, in any event.

It's just strange that we would have this intrusion, this other person who comes out of the blue to argue on behalf of the public interest. How do you decide who the public interest advocate is going to be? To whom is the public interest advocate accountable? Does not the focus of the negotiations change once you have this mysterious third party stepping into the process, and saying: "Here I am. I'm the public interest advocate, and I'm going to explain the public interest in this type of situation"? Does that not create the perfect situation for political interference? Why not send in one of the back-bench MLAs from the government side to represent the public interest?

SOME HON. MEMBERS: Good idea.

MR. SIHOTA: Some of them say that that's a good idea.

MR. REE: We represent the public interest more than you do.

MR. SIHOTA: Maybe they may not have that much to do, but certainly I don't think it can be said that they have a monopoly on what the public interest is. Certainly one can argue that it would invite the very situation that we're saying ought not to happen, i.e., political interference in this whole process. It allows for the most direct intrusion of....

Interjection.

MR. SIHOTA: I'm trying to swallow this thing. This is compliments of the member for Okanagan South. He just gave it to me a minute before I stood up, Mr. Chairman. So, if I may have a minute. He gave me this because he wanted some more sweetness injected into my personality. I'm eating it quickly, so that those of you who are trying to listen can listen a little more clearly.

In any event, some of the back-bench members have said they would love to do that; they would love to go in and argue the public interest. Well, that just makes our whole point: why this political interference in the process? Who is capable of representing the public interest in this situation? Who decides? The commissioner decides, but what background qualification does one have to have, other than being a Socred back-bencher, to make these representations? If the board is given the mandate to take a look at the public interest, whatever way you define it, and if you have those definitions in 137.96, which we will get to sometime, and if those are not clear enough, why do you need a third party to come in and advocate the public interest?

If you want to take the analogy of the courts, there are all sorts of decisions made in the courts where the public interest is clearly a part of the dispute. For example, in an injunction situation, often the types of situations that invite injunctions — certainly the high-profile ones — are situations where the public interest may be affected by a particular event. We saw that most recently in the case of a writ that the government had filed. I am not using that example as something to hammer away at the government with; I am just raising it as a perfect example where someone was seeking an injunctive remedy, aside from the fact that the whole process was political. The courts didn't say: "We need someone to come in here and tell us about the public interest."

If your mandate quite properly is to deal with the public interest, why have a public interest advocate there? Does it not invite all sorts of political interference with the process? The obvious thing that is going to happen is that there will be appointments that are highly political, that are highly partisan, and that can be extreme in their representations of what the public interest can be. We talked about that earlier this afternoon when we talked about the philosophical differences on essential services.

[5:30]

[ Page 1819 ]

It seems to me very strange that we have an individual commissioner who is not accountable appointing an advocate who is not accountable, to appear in front of a body who will make a recommendation to the commissioner who appointed this individual, and this individual is going to be speaking to a group that has the mandate, as much as I dislike the mandate, to look at the public interest in the course of its inquiry. It makes no sense at all to put in someone who essentially, at the end of the day, will probably, if one were to make a calculated guess here, make arguments that are insensitive to the needs and aspirations of trade union officials and their members. Clearly, that's the whole purpose of having somebody come in here — to put in someone who is going to be taking issue with the trade union position. I haven't seen anything like it.

I've seen a lot of instances where interveners want to come in and get involved in processes where the public interest is an issue. For example, public interest issues come up often with the Utilities Commission, and we have a galaxy of interveners who want to come in and argue. Those interveners often represent organizations that, loosely put, have an interest: consumers' organizations, environmental organizations and corporate interests, apart from the direct corporate interest that's making the representation to the Utilities Commission in the first place. But as I recollect the legislation — and I stand to be corrected — it talks about the public interest. We don't inject into the legislation a provision that allows for a so-called public interest advocate to be appointed by the commission to make recommendations to the commission. The commission understands that its job is to take into account the "public interest." But you don't have an advocate come in.

It seems to me that this provision, like a lot of the other provisions we've talked about earlier on, is the same thing. It's overkill. It's sort of wanting to do something to deal with the process. A public interest inquiry board is established, and as questionable as that is, there remains a haunting concern in the minds of whoever drafted this legislation that even then, with the arguments that they would like to put in front of this board to justify a decision against a trade union, the individuals representing the corporate sector won't be able to put together the arguments in the public interest — at least not the arguments they want to hear. So they want to bring in someone else who can make what I would call extreme right-wing arguments in front of the public interest inquiry board, if I can crystal-ball this thing a bit. Why? We don't have this kind of provision in any other type of legislation. And who's going to pay the public interest advocate?

We have had an ongoing debate, for example, in front of the Utilities Commission about the payment of interveners, and the legal fees associated with those who intervene in Utilities Commission disputes. That debate aside, who is going to pay for the public interest advocate? Is it going to be some good Samaritan out there who's willing to advocate the public interest for no cost at all? I don't believe that. Who's going to pay? Is it going to be the taxpayer? I suspect that it will be. Well, if it's going to be the taxpayer, then ought it not to be the case that this body, which is elected to act in the public interest, if it so chooses to appoint somebody, ought to have a say in that appointment? Not a non-elected official, and not even the minister has the say; the commissioner does. But my suspicion is that once again it's going to be paid for by you and I collectively, the taxpayers — this person supposedly arguing about the public interest — yet we don't have a say in who that person is going to be.

It's very strange that someone would hire an agent — if I can use legal parlance again — and pay for the services of that agent, and not have any say in who that agent is going to be, but be quite prepared to pay them. It's kind of a silly, strange provision that's only four fines long, but it raises all sorts of questions. It just doesn't quite make sense, except that I think there's this strange, haunting feeling that the bodies that are represented won't be able to put forward the philosophical argument the government would like to see put in front of the board, so the commissioner will have the opportunity to appoint this so-called advocate, who has a firm understanding of where the public interest is.

Let's take a look at the kind of situation we saw on June 1. Apart from how everybody on this side of the House stands on that issue, I'm convinced that if that kind of situation was in front of this kind of board, which it wouldn't be.... But if it were, I'm convinced that you would have someone who is the equivalent of some of the fanatical people that were involved in.... I won't say in the drafting, but in the process of the writ, going in front of the court supposedly representing the public interest. Well, that's not the kind of person I want advocating my interests. I want some say over that person. This section doesn't allow that at all. It's silly. It's overkill. It's there simply because of a haunting concern.

Interjections.

MR. SIHOTA: The member for Yale-Lillooet (Mr. Rabbitt) says that the argument is overkill. I mean, is the member for Yale-Lillooet quite willing to accept the appointment of someone to speak on his behalf when he doesn't have any choice in selecting that person and has to pay for him?

It's not even the minister. It may be one thing if the member for Yale-Lillooet could say: "Well, look, it's up to the minister, and I'll put my faith in the minister." It's not even that; it's the commissioner.

MR. RABBITT: You want to keep it in a political arena.

MR. SIHOTA: We don't want it in the political arena. We want it totally out of the legislation. It ought not to be there in the first place, and it invites the type of political interference that we've been talking of all along in this legislation. It's absolutely silly, and I would like to hear some justification from the minister or from any other members — why they think a public interest advocate ought to be appointed on these terms, if on any at all.

What possible rationale could there be for the appointment of this type of advocate? I'd like to hear from the minister why this subsection was put in. What is the explanation?

HON. L. HANSON: An interesting discussion. I think the member referred to this section as overkill, but I think there is, as I've mentioned before, a difference of opinion. I believe that it's an innovative and imaginative approach to industrial relations. The commissioner appoints the public interest advocate, as the member said, and that commissioner's credibility rests with that appointment.

MR. LOVICK: But he doesn't need credibility.

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HON. L. HANSON: Every appointment that's made will certainly receive attention and scrutiny from the media and the opposition, so I'm certainly satisfied that the commissioner who has been charged with that responsibility will ensure that the appointments are appropriate.

The commissioner reports to the minister, and certainly the minister is accountable to the Legislature. The suggestion that the commissioner is going to make blatantly political appointments.... I don't know what the circumstances are that would arrive at this point where the public interest inquiry board is appointed in each specific one. When it's done, I am sure there will be a lot of specific reasons and so on.

The commissioner will be very, very certain that the appointment of the public interest advocate could range as far as to the member from Esquimalt. It could be a member of the opposition or of the government side. It could be a chief justice, I suppose. It can range from such a variety of people. It could, I suppose, be in fact the Leader of the Opposition, if that were the commissioner's.... Taking into account the circumstances of the dispute and all of the other things, if that would best serve the public interest, that could be his decision. But again, the commissioner's credibility rests with that appointment. I'm sure that that is going to ensure that the greatest concern, the greatest thought and certainly the greatest attention will be paid to appointing that public interest advocate.

The public interest advocate is simply a recognition that we have a concern and in fact a commitment to the interests of the public in collective bargaining disputes. I believe, and certainly the members of my government believe, that this is not overkill but is in fact an innovative approach to the collective bargaining process as it involves a dispute. I'm sure that, given an opportunity, it will work, and that some of the dire predictions of political interference that are being espoused by some of the members will not be the case. Again, the credibility of not only the commissioner but the report that comes from this public interest inquiry commission will be determined on the basis of the appointments and the respect those appointments have in the public's eye.

AN HON. MEMBER: Aye.

MR. LOVICK: I find it interesting, Mr. Chairman, that every time I rise to speak I hear the Minister of Municipal Affairs (Hon. Mrs. Johnston) saying "aye." That is pretty subtle. I hope she picked that up, saying: "Please speak, member from Nanaimo. We love to hear." I assume that is why she does that.

[5:45]

I have a very simple and direct question, but I think an important one, about 137.93 and the minister's defence of it. The minister says it is crucial that the commissioner be fair and impartial and objective and honest and a whole bunch of other adjectives we could delineate at great length, and says the reason why that is so is that the commissioner must maintain his or her credibility. My question is just this. Given the way this legislation is written, and given the systemic power assigned to the individual who holds the position of commissioner, why should the commissioner care at all about his or her credibility? Why is that an issue? It doesn't matter. Credibility is irrelevant, I would suggest.

The commissioner doesn't have to worry. The job that the commissioner is given is one that is triggered and called into force by circumstances effectively beyond public opinion's control. The commissioner has the right to do everything from A to Z. What kind of public acceptance the commissioner has — with all due respect, Mr. Minister — is flatly and completely irrelevant. It doesn't matter.

So you can understand why we are inclined to believe that the arguments adduced by you to try and answer the queries and concerns of my colleague from Esquimalt–Port Renfrew don't persuade us. Credibility, as I say, is not an issue. The commissioner doesn't need to have any. He is protected by the legislation such that his personal stature and credibility do not matter. They don't even enter the equation.

Probably we on this side have agreed that that is sufficient on 137.93. I understand that some of my colleagues want to refer to 137.94 now, and I shall therefore yield.

MR. GABELMANN: Mr. Chairman, we have taken quite a bit of time on this whole concept of the public interest and the process for fact-finding and all of that. And there are more of these kinds of issues in 94 and in 95, but unless somebody has an overwhelming desire to canvass these issues, which are related to the arguments we've been making, I'm going to suggest we move on to 96, which is of significant important.

MR. CHAIRMAN: Excellent suggestion, hon. member.

MR. GABELMANN: Well, I'm delighted we have a neutral person in the chair, Mr. Chairman. I think it's an excellent suggestion too, because it's one of the things that....

Interjection.

MR. GABELMANN: You're out of luck.

One of the things that I've been determined to be sure that we do in this debate is not to go on when we've made the point, and I think we've made the point in those areas.

I want to talk about the factors to be considered. This is in the case where an arbitration board is involved in settling a contract in the public sector. An interesting comparison between the old Essential Service Disputes Act — a very different set of criteria — and this, in terms of what factors should be considered.... When the minister does respond, whether it's tonight or tomorrow, I'd be interested in whether he wouldn't mind giving us some background as to what reasons went into the different set of criteria than exist in the old Essential Service Disputes Act, section 7, which is entirely different. Not entirely, but it's a significantly different set of criteria. So that's number one. What was the motivation and why the changes?

Secondly, we will want to take some time discussing some of these subsections in part (1): (a), (b), (c), (d) and (e). The first one: the arbitration board has to have regard to "a comparison of overall terms and conditions of employment with similar occupations in the relevant community in the province outside the employer's employment." One of the historical arguments against compulsory arbitration was — and I think still is — that you cannot make progress in arbitration. The only way you can ever make progress — either from the employer's point of view or the union point of view — and the only way you can create new terms and conditions, or adjust the wage scale, or bring in innovative is

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in collective bargaining. You can't do it in compulsory arbitration, because compulsory arbitration always looks at what's around.

Here, that old worry about compulsory arbitration, which is always implicit, is now explicit; you have to consider "a comparison of overall terms and conditions of employment with similar occupations," etc. Right away you're constrained to put into the agreement things that are generally in agreements. That means that this contract in this particular situation can never be improved upon of its own accord. There's a real problem with compulsory arbitration in that respect.

A further problem in this context is that if most of the similar work being done around the province is non-union and this is union, there's no requirement that the arbitration board consider only those union areas for questions of comparability. It refers to "similar occupations in the relevant community." If you stretched it, I suppose you could argue that the relevant community is an organized sector. It doesn't say that, and I don't think most arbitration boards will agree that they have to consider that. So there is yet another downward pressure on wage levels and benefits in an agreement.

The next one is "the need to maintain an appropriate relationship between occupations or classifications within the employer's employment." The whole effort of the trade union movement in recent years has been to try to get rid of these old "appropriate" relationships. These old appropriate relationships led to a situation where women earn just over half of what men earn. It's for that reason that bottom-loading has been established as a fundamental principle in contract proposals, and is increasingly being accepted by enlightened employers. It strikes me that that is now going to be an impossibility, particularly if a series of contracts is resolved through this compulsory arbitration process. There will not be an ability to do the kind of bottom-loading that brings more equitability into the wage scales between all classes of employees.

In particular, there won't be the opportunity to try to continue narrowing the gap between women and men in our society. That will become impossible. If an intransigent employer in the public sector makes sure that he manoeuvres a dispute each time to get into this compulsory arbitration mode, then that employer can go on for year after year with the "appropriate relationship" still in place. It's not an absolute requirement, and I'm sure the minister will make that argument in opposition to what I'm saying. He'll say that it's not an absolute requirement, it's not the only requirement; but it's one of five, and it's there in second place. It's obviously a pretty significant qualification when it says "the need to maintain an appropriate relationship." That just means entrenchment of the old relationships, which is really what trade unions have been fighting and were formed in the first place for — what they've been fighting for all these years, and that's to try to get rid of these old ways of doing things.

"The skill, effort and responsibility" — well, that's normally recognized, and we're not going to quarrel with that. At least I'm not; others may.

The next one. The arbitration board is required to look at "the cost and impact of the parties' proposals including increments where appropriate...." You know, the legislation is designed to protect the employer's costs. Nowhere is there a line that says: "The arbitration board is required to look at the cost of living for the employee who may be having trouble meeting his mortgage and feeding his kids because of the low wages." Why shouldn't the arbitration board look at that issue too? Why is it that the arbitration board is only required to look at the issue of the profit and loss statement, if there were such a thing, in a public sector employer's place of business? It's only the question of the employer's side. Don't workers have some rights too? Shouldn't the arbitration board be required to.... ?

Interjection.

MR. GABELMANN: The Minister of Forests (Hon. Mr. Parker) is saying it should be the same.

HON. MR. PARKER: At the same place of business.

MR. GABELMANN: I don't even understand what he's talking about.

HON. MR. PARKER: I'm sure you don't.

MR. GABELMANN: Mr. Chairman, I'll get back on my own train of thought.

The requirement of the arbitration board is to look at the cost and the impact on the employer. "The cost and impact of the parties' proposals" — there is nobody who is going to interpret that as the cost and impact on the take-home pay of the employee. That is clearly designed for arbitration boards to consider the impact on the employer and to pay no attention whatsoever to the impact on the employee.

Mr. Chairman, I think we'll continue this discussion in the morning, more appropriately.

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 5:56 p.m.