1992 Legislative Session: 1st Session, 35th Parliament
HANSARD
(Hansard)
MONDAY, NOVEMBER 16, 1992
Afternoon Sitting
Volume 6, Number 12
[ Page 4021 ]
The House met at 2:05 p.m.
Prayers.
D. Schreck: Hon. Speaker, in the gallery this afternoon is Jeff Black from North Vancouver. Will the House please join me in making him welcome.
Hon. M. Sihota: I want to beat the leader of the third party to this introduction. I see in the gallery my immediate predecessor, the former MLA for Yale-Lillooet, who I'm sure is here today to watch the debates as they relate to labour legislation. I just want to wish him a thumping welcome back.
J. Weisgerber: I would indeed like to introduce the former member for Yale-Lillooet, the former Minister of Labour and Consumer Services and a good friend and a good MLA: Jim Rabbitt. Would everyone please give him a very cordial welcome. Hon. Speaker, this is the first time in six years that I could mention his name in this House, and I am pleased to have the opportunity to do that.
F. Garden: In the balcony today is my constituency assistant, Steve Hilbert. Would you please make him welcome.
Hon. G. Clark: In the gallery today I see a good friend of mine from east Vancouver. Tom Sigurdson is now an MLA for Edmonton -- I can't remember the constituency -- and is a member of the New Democratic caucus in Alberta. I'd ask all members to make him welcome.
E. Conroy: I think the House should make note today that Dr. Peter passed away yesterday. Dr. Peter has been very instrumental in bringing AIDS awareness to the people of the province. We owe him a lot. I really mourn his passing. I wish the House would acknowledge that.
Hon. T. Perry: I'd like to acknowledge the presence in the building of members of the Vancouver Community College board and administration who have come over to visit with the Minister of Finance and myself.
Interjections.
Hon. T. Perry: I see that opposition members find this to be a subject of mirth. Although I enjoy their....
The Speaker: Hon. member, this is introductions.
Hon. T. Perry: Perhaps members will join me in making them welcome.
TRIBUTE TO DR. PETER
Hon. M. Harcourt: Hon. Speaker, like the member for Rossland-Trail and many other British Columbians, I was deeply saddened Sunday when I learned of the death of Dr. Peter. I met Dr. Peter last year when I was on the Vancouver AIDS walk, with many other British Columbians. But like many other British Columbians, I also knew Dr. Peter through his regular TV reports, his daily "AIDS Diary," for which CBC Vancouver should be congratulated. It's very important that our citizens understand this very serious and debilitating disease.
For the last two years Dr. Peter made himself part of our lives. Through his reports we faced, with him, his life with AIDS. We dealt with the devastation of the pneumonia that eventually claimed his life and the devastation as he suffered the side effects of chemotherapy and as he dealt with the death of friends and so bravely faced his own mortality. For the last two years Dr. Peter provided British Columbians with a rare opportunity to learn so much about a fellow human being and about the disease which raises many fears among many of us. He provided us with a rare glimpse of personal courage. For two years he challenged us to change our stereotypes, he challenged our attitudes and he challenged us to learn about the human costs of AIDS.
Dr. Peter recognized so well that he was not alone in suffering from AIDS. He was representative of many hundreds of other British Columbians who rely on the support of their friends and family, this government and this Legislature.
As we honour Dr. Peter by remembering those in our community who suffer from AIDS and who deserve our respect and support, I am sure this Legislature will realize that Dr. Peter was also a physician who had hoped to dedicate his career to healing and to the prevention of suffering. Through his visionary segments on CBC and by sharing the last two years of his life with British Columbians, I believe he has fulfilled that goal.
Hon. Speaker, I would like to ask the members of this House to join me in asking you to convey the condolences of this House and the people of British Columbia to Dr. Peter's family.
L. Reid: Peter Jepson-Young, whom we came to know as Dr. Peter, did a tremendous job in terms of providing an opportunity for British Columbians to learn more about the tolerance and education that needed to happen. I came in contact with Dr. Peter over the years, first as an educator and, secondly, as the Health critic. His response to the level of intolerance was simply to educate, and his commitment to standing together with other British Columbians, both those who suffered from the disease and those who did not, but who wished to participate more fully in some understanding, was a tremendous act of courage and a tremendous commitment.
[ Page 4022 ]
What we looked for over time was a spokesperson, and he went beyond that in terms of inspiring people to take a stand and come together to fight something which was very personal but which also is an issue that all British Columbians need to understand in more depth. I think that the quality we could most admire about Dr. Peter was his honesty. He was very clear in terms of sharing his beliefs and frustrations. One of the nicest opportunities was the fact that his family and friends stood together and will continue to fight on behalf of an understanding of AIDS. His sister has recently begun the foundation that's hopefully going to contribute dollars to understanding and to a research model that will assist future British Columbians as we go down this path.
So, hon. Speaker, thank you for the opportunity. The official opposition stands firmly behind a commitment to ongoing AIDS research and to an ongoing understanding by all British Columbians that this disease must reach some kind of resolution very soon.
C. Serwa: It's at times like this, when we pay tribute to Dr. Peter, that I am reminded of the words of Mother Teresa. Mother Teresa said that we can do no great things, only small things with great love. I think that here we have an example of a man who has justifiably earned the recognition in that saying.
Dr. Peter died at the age of 35 last Sunday in his home, among family and friends. Dr. Peter, as he was known to television viewers throughout British Columbia, put a human face on a disease which many people even today misconstrue. As a physician and a person with AIDS, he provided an invaluable education for those who watched any of the more than 100 episodes of "AIDS Diary" and television documentaries.
Dr. Peter dispelled misunderstandings and stereotypes about AIDS in a manner which was informative, professional and very down to earth. We as viewers followed his battle with AIDS and learned of the many traumas associated with the progression of the virus -- not only the physical effects, but other associated issues such as discrimination against people with the AIDS virus. Indeed, he was responsible for humanizing a disease which frightens many today. Dr. Peter will certainly be missed by his family and friends, and also by the thousands of viewers and the professionals involved with AIDS education.
[2:15]
We are pleased to see that Nancy Hennessey, Dr. Peter's sister, has announced the creation of the Dr. Peter AIDS Foundation, which will assist people with AIDS in comfort care. We certainly owe a great debt of gratitude to Dr. Peter. His legacy to us is knowledge, understanding, awareness, and most definitely compassion. He was a giant among us and has certainly earned our tribute. We in the Social Credit caucus endorse the Premier's recommendation to you, hon. Speaker.
The Speaker: Thank you, hon. members. On behalf of all members of the House, the Chair will ensure that a letter of condolence is sent to the family of Dr. Peter.
LANGARA COLLEGE DISPUTE
G. Farrell-Collins: My question is to the Minister of Advanced Education. We learned on Friday through a press release -- surprise, surprise -- that the Minister of Labour has replaced the Minister of Advanced Education as the government's point person in the Langara dispute. Can the minister tell us why it was felt that the Minister of Labour's intervention was required?
Hon. T. Perry: I think the opposition member reflects his ignorance of the law of British Columbia. The Minister of Labour has the responsibility to appoint or offer a mediator under the Industrial Relations Act when so requested by parties. If the hon. member is interested to learn more about why the Minister of Labour made that offer to the parties, he might direct his question to the Minister of Labour.
G. Farrell-Collins: I had hoped to get an answer from the Minister of Advanced Education, because it's under his guidance that we have ended up in this situation.
My supplementary, then, is to the Minister of Labour. The Minister of Labour has appointed a mediator to resolve a money dispute when the Minister of Finance has already said that there's no money available. Both sides in the dispute have joined in opposition to the government. Do either of the ministers have a plan B that they're willing to pull out of the hat to solve this dispute?
Hon. M. Sihota: Both sides of the dispute have joined to request the intervention of the Ministry of Labour, and we have been pleased to comply.
G. Farrell-Collins: What both ministers don't realize is that there are students out of classes at Langara today. How does the minister plan to bring mediation to a dispute when the only alternative is zero-zero? What are the alternatives? What is the minister going to do?
The Speaker: Hon. member, to which minister is that directed? The hon. member must address the question to a minister.
G. Farrell-Collins: It's to the same minister, but if the minister who is really responsible would like to answer, that's fine too.
FISCAL RECORD OF B.C.
J. Weisgerber: A question to the Minister of Finance. Can the minister confirm for us that the national accounting method is regarded as the best and most accurate measure of a province's fiscal record, as compared with other provinces, and is a balanced method of evaluating a province's record? Can he also confirm that in British Columbia in 1987 the govern-
[ Page 4023 ]
ment had a deficit of $150 million; that in 1988, according to that same measure, the government had a surplus of $628 million; that in 1989 a surplus of $896 million...?
The Speaker: Order, please. With all due respect, hon. member, would you get to the final part of your question.
J. Weisgerber: Just two other years, hon. Speaker: in 1990, there was a surplus of $900 million; and in 1991, a deficit of $449 million.
Hon. G. Clark: Hon. Speaker, I'm sure there is a trick question in there somewhere.
We had a full and independent review of the province's finances, which exposed the terrible legacy of Social Credit: $2.3 billion in the last fiscal year.
J. Weisgerber: Table 26 in the Economic Accounts for 1982-1991, which were recently released by your ministry, indicates that British Columbia far exceeded the performance of other provinces in the country during that period of time. Can the minister confirm that, according to the accounting method employed, British Columbia's fiscal performance far outstripped the other provinces in Canada from 1987 to 1991?
The Speaker: Hon. member, one cannot ask a question of a minister for a period of time in which he was not the minister responsible.
JOB CREATION IN B.C.
J. Tyabji: My question is to the Premier. After the referendum campaign the Premier committed to job creation in the province and to addressing the economy. There are two examples of employers trying to get into the Okanagan. But because the Premier is not returning any phone calls, the jobs are not happening. The Premier has ten full-time staff in his communications department. Could he tell the House why they cannot pick up the phone and talk directly to the economic development commission in the Okanagan with regard to the Brenda mine site?
Hon. M. Harcourt: I'm sure the member is aware of the fact that in October, British Columbia created more jobs than the rest of the country combined. As a matter of fact, 16,000 jobs were created in British Columbia, and only 13,000 jobs were created in the rest of the country. That is on the public record.
As well, if the member is talking about Piper wanting a very significant amount of taxpayers' money to establish their facilities here, then she knows that the Minister of Economic Development is the proper minister to address that question to. If she would like to ask a question about mines, she should ask the Mines minister.
J. Tyabji: Obviously the Premier has not understood the basis of the question. There is an old Brenda mine site that is ready for heavy industry to locate in, but this government, including the Minister of Economic Development, won't even return the phone calls. If they would release the site, some heavy industries could locate there. We're talking about 1,000 jobs.
My Question Is: why will the Premier not pick up the phone and show the commitment that he expressed publicly after the referendum campaign to create some jobs in the province?
Hon. D. Zirnhelt: I was thinking you would never ask the question.
J. Tyabji: I didn't ask you the question.
Hon. D. Zirnhelt: Well, you're going to get the answer from me, because a question about Piper should have been directed to me.
There was a newspaper report saying that all this minister did with respect to Piper was answer a Saturday night phone call. Since that point I have been trying to make it clear to the people in the area that when Piper proponents present us with a business plan, we can look at the kind of deal they're offering. We have been asking for a business plan since June, and we don't have one yet, in spite of the fact that we sent people all the way to Florida to look. We've done as much advance work as we can on Piper Aircraft. We'd like to see it here, but the proponents will have to do their homework.
ENVIRO-TAX
L. Fox: My question is to the Minister of Environment. Can the minister confirm that officials from his ministry have met with representatives from the automotive industry to discuss the implementation of a new environmental gas tax on luxury cars and trucks?
Hon. J. Cashore: I cannot confirm that.
ECONOMIC DEVELOPMENT PROPOSAL
BY GENERAL ELECTRIC
L. Stephens: My question is to the Minister of Economic Development. When did the minister realize that British Columbia would be on the hook for a loan to General Electric as part of the federal government's $4 billion helicopter fiasco?
Hon. D. Zirnhelt: You've been getting your information out of the newspaper.
This government is never on the hook for a loan to a large corporation. However, for several months we have known that General Electric has been interested in locating here, and that they're looking for the best possible terms. On the other hand, we are interested in how this fits into the development of aerospace. We want to see the maximum number of jobs created now and in the future.
L. Stephens: I'm very pleased to hear the Minister of Economic Development talk about job creation. I would like to know how he justifies the report that his
[ Page 4024 ]
deputy is considering this loan when his colleague the Minister of Finance will not do anything to help Canadian Airlines employees in this province.
The Speaker: The minister is to address that portion of the question that is within his responsibility.
Hon. D. Zirnhelt: We can countenance the request for all sorts of participation by this government in facilitating the location of economic development projects. That's how I justify my deputy discussing matters with companies.
The Minister of Finance has gone to great lengths to explain the many hours of staff time and his own time that has gone into assisting the Canadian Airlines employees. The record stands on that.
ABOVE-GROUND HYDRO TOWERS
J. MacPhail: My question is to the Minister of Labour, who is responsible for B.C. Hydro. Over the weekend two new studies came from Sweden that show significantly increased risk of developing leukemia for people who live under hydro towers. The constituents of Burnaby North and Vancouver-Hastings live under the only above-ground hydro towers in the whole urban area, and they were not reassured by comments from a B.C. Hydro official, who placed little importance on these two studies. What kind of action are you, as minister responsible, prepared to take in light of these two studies?
Hon. M. Sihota: It's certainly a pleasure to deal with a timely and pressing question. Studies with respect to the effect of transmission lines have been conducted throughout North America -- in fact, across the world -- for some time now. We've seen new studies come to the fore which obviously warrant a re-examination by B.C. Hydro. As a consequence of this question and as a consequence of reports which have been in the press the last few days, I can assure the hon. member that Hydro will be reviewing its policy and considering the viability of proceeding with further review of medical evidence in this regard. I would not at this time, by any stretch of the imagination, rule out subsequent action on the part of Hydro with respect to detailed analysis regarding the new studies and follow-up action in the future.
J. Weisgerber: It's a pleasure, too, to answer a question that you've had an opportunity to rehearse. In any event....
Interjections.
The Speaker: Your question, hon. member -- quickly, please.
BUDGET DEFICIT FORECAST
J. Weisgerber: My question to the Minister of Finance is one on the economic accounts. The minister is quoted as saying that it is an essential tool for analyzing and forecasting economic performance. I wonder if he could tell us whether or not his ministry has any projections for the deficit for the current calendar year, based on the national standard accounts.
Hon. G. Clark: I know that this member and Social Credit members are desperate to try to rescue the past. I think it's pretty clear to all British Columbians, if you ask yourself how much money we are raising this year, how much we are spending this year.... Last fiscal year we had a $2.3 billion deficit, the largest in the history of British Columbia, because of that administration. If I were him, I would be ashamed to ask questions in the House about the deficit -- with his background.
[2:30]
ENVIRO-TAX
W. Hurd: A question for the Minister of Finance, who will be aware that lower mainland drivers are fuming about the possible imposition of an enviro-tax of $48 on ICBC insurance. Given the fact that costs for insurance and driving a car are skyrocketing in the lower mainland, what is the minister doing to encourage his hand-picked transit commission to rethink this punitive tax?
Hon. G. Clark: We have to keep a score in the House with the Liberals to see whether it's one of those spend-more days, or spend-less days. I guess today is a spend-more day, with all the questions we've heard in the House....
Interjections.
The Speaker: Order, please. The Chair needs to hear the answer to the question. Please continue, hon. minister.
Hon. G. Clark: As you know, the transit commission is facing a very large deficit in their local share as a result of decisions made by the previous administration. The transit commission originally requested a significant increase in the gas tax, which members opposite opposed. I suggested, on the other hand, a tax on commercial parking lots and a free bus to downtown Vancouver. That has been rejected by the commission. They've asked us to look at a $48 charge that they would mail out to every owner of a car, with a $24 charge for a recreational vehicle or motorcycle. We've just received that this morning and we are reviewing it.
Obviously all British Columbians are concerned about tax increases. There is a very large deficit, associated particularly with the SkyTrain extension to Surrey, which has to be paid for. We're reviewing all of the options available to the government. It's not acceptable to let the deficit continue indefinitely. So I think that decisions have to be made in the next few weeks, and they will be.
Hon. G. Clark: Committee on Bill 84, hon. Speaker.
[ Page 4025 ]
LABOUR RELATIONS CODE
The House in committee on Bill 84; E. Barnes in the chair.
On section 1.
G. Farrell-Collins: I would assume that the minister would like a few moments to bring his staff into the House, and that's appropriate. As we get started on committee stage of Bill 84, it's critical that we look at a number of issues. We certainly do have a great many questions to ask the minister.
We're dealing with section 1, which is important in any piece of legislation, because it's the definition section. I assume that as we go through this bill in debate, the Minister of Labour will take the same tack that he's been taking in second reading all along: refusing to deal, in any substantive way, with those sections that were unanimous. He has continued to do that throughout the debate. Any time we referred to sections of the bill where the recommendations were unanimous, the minister has said, "That's the unanimous recommendation of the committee," and therefore he has no mandate to change it. I find that extremely unfortunate. As we go through section 1, the minister has some duty to bring before the House his personal explanations concerning why he backed those recommendations. It's extremely unfortunate that up to this date he has not done so.
Therefore, pursuant to standing order 49 and with the unanimous consent of the House, I would move that the following witnesses be summoned to attend before the Committee of the Whole to answer questions related to the recommendations for labour law reform as contained in Bill 84: Mr. Tom Roper, Mr. John Baigent and Mr. Vince Ready.
The Chair: Hon. member, the amendment as it is constituted is not in order at this stage.
G. Farrell-Collins: If I may, I've asked for the unanimous leave of the House to bring forth such a motion.
Leave not granted.
G. Farrell-Collins: One no.
An Hon. Member: A Moe no.
G. Farrell-Collins: It's extremely unfortunate that the minister -- who has talked so much about open and honest government, open debate and consultation, who has kept this report in secrecy for so long, on his desk and silent and released only to a select few -- would now choose to further stifle debate on this bill by not allowing the members of the panel who wrote this legislation to come before the House. I think that's extremely unfortunate. The minister should be ashamed of himself.
Hon. Speaker, we have a number of sections in this bill that we have to go through, and particularly section 1, which we're on now. There have been a number of changes to certain definitions, and I would ask the minister to explain some of those. Perhaps the minister can explain to us why the definition of "construction" was deleted.
Hon. M. Sihota: A few comments first. The hon. member opposite refers to the fact that this minister has not spoken on the provisions where there was unanimity. That's not true; I have. Secondly, he's assuming that we won't do so during the course of this debate. That's not true; we will, and I will in a moment on this issue. But I do remember the fact that many of his colleagues opposite said that they had no difficulty with 95 percent of the provisions that were found in this labour code. Given that expression, it would seem to me that they will give consent immediately to that 95 percent.
Hon. Speaker, with respect to....
Interjections.
Hon. M. Sihota: Let me also say that we're not interested in political gimmickry with the emotion that the hon. member presented, but we are, quite frankly, interested in rational debate. And with regard to rational debate, which I see the House leader opposite is not interested in engaging in, because she'd rather heckle, let me indicate that under the code, construction and construction projects are not distinguished from other kinds of work, and consequently there's no need to define the terms.
G. Farrell-Collins: I didn't hear from the minister any reason as to why the recommendation for "construction" has been removed from the bill.
Interjection.
G. Farrell-Collins: Well, I'd love to hear it again.
Hon. M. Sihota: Again, if the hon. member would just cease heckling and start listening, he might hear what the answer was.
The answer was that under the code, construction and construction projects are not distinguished from other kinds of work, and consequently there's no need to define the terms.
G. Farrell-Collins: Perhaps there are some areas that the minister hasn't taken into consideration. If we look at the definition of "construction project," for example, the minister has also removed that provision from the bill -- not just construction but construction project. I would ask him a number of questions on that. First of all, is the intent in removing this to allow unions to declare large projects, a whole job, a huge project -- much like what went on in Expo 86 -- as one site as opposed to individual projects within that large site? Is there an intent that that now be the case?
Hon. M. Sihota: If I understand the hon. member's question correctly, I have two points. First of all,
[ Page 4026 ]
the board would have some jurisdiction in terms of defining projects. The second point is simply this: it seemed to me that one of the reasons there was previously a reference to construction and construction projects was that the prohibition, with regard to non-affiliation provisions.... With those removed, it's no longer necessary to have the definition in the definition section.
Let me also say, hon. Chair, that I was remiss in not introducing the officials in my ministry who are with me. To my right is my associate deputy minister with regard to labour relations matters, Mr. Buchhorn, and to my left, from policy, is Mr. Stanton.
G. Farrell-Collins: Perhaps the minister has missed the intent of the question. The question is: is the minister trying to change the definition of what a construction project will be as it relates to "common site"? I realize that he's removed certain sections from the other part of the labour code as far as secondary boycotts go. I guess "non-affiliation clauses" were the words that he used. We had an example during 1986 with a large construction project that was underway for Expo 86 on False Creek in Vancouver. There we had no end of labour strife, and it appears to me -- in my reading of the bill, anyway -- that the minister is heading back to the good old days of confrontation here.
Given some of the secondary boycott provisions included in this bill -- and perhaps the non-affiliation clauses that will be included in the legislation and in collective agreements in the future, if they're not already there -- and given that the definition of "common site" will perhaps be interpreted a little more broadly than it presently is, we may in fact see that once again on exactly the same soil, when we have the Concord Pacific development that's ongoing and is due to take some 20 years, I imagine, before it's totally completed, we will have the same type of labour disruption and labour dispute that we saw in 1986. I guess the question is: how does this relate to non-affiliation clauses, secondary boycotts and common site provisions?
Hon. M. Sihota: Previously, references to construction and construction projects in the Industrial Relations Act were made in a number of sections, and the hon. member understands, I'm sure, that to be the case, including sections which define work stoppages over non-affiliation provisions as not strikes and including sections which limited rights under section 83(3) on projects designated economic development projects.
That was indeed the reason for the reference in the past. With the removal of statutory constraints on non-affiliation provisions for all agreements, there's no need to make those types of distinctions in this legislation.
G. Farrell-Collins: There are a number of other provisions within this section, certainly as far as definitions go, and one is that the name or the definition of "employee" has since changed; and that the minister has removed the line that says: "A person engaged in police duty." That section has been deleted, and perhaps this just falls under "person" and even police officers are included to mean persons; but perhaps it would be interesting to hear what the minister's comments and reasons are for that.
Hon. M. Sihota: In terms of police, they're assumed to be employees of a police force, or employees of an entity that reviews police services -- a police board or a municipality that provides police services; so it was not necessary to keep that provision in.
[2:45]
G. Farrell-Collins: That was my best guess, and I assumed that was why, and I'm glad the minister could clarify that for us.
I do have a fairly strong concern with the definition of "employee," and the fact that deleted from that section, as opposed to what was there before, is the provision that deals with those employees who may not be supervising other employees but are certainly involved in confidential planning and are in an advisory capacity as an employee, and work very integrally with the strategic planning of a firm or organization.
Is it the intent of the minister, with the removal of that subsection of the definition of "employee," to put those types of employees who have traditionally held perhaps very senior management positions, but not actually supervised other employees, in and list them as employees subject to being incorporated into bargaining units?
Hon. M. Sihota: The provisions here simply improve the wording in the section. The deletion of the provisions in the phrase that the member referred to -- being employed in a confidential planning or advisory position in the development of management policy for the employer -- are not generally seen as expanding the legislated exclusion of employees.
G. Farrell-Collins: Personally, I feel that they are. The minister has removed a section of a bill, a definition that fundamentally defines what an employee is. That reverberates through the whole bill. To make such a claim, that it makes no change, has no effect or is of no concern, is a little naive or erroneous, if nothing else. The provisions that those types of people who are employed in an organization at a very senior level in the strategic planning mode or in an advisory capacity, yet just because they don't have people working under them or they don't supervise people somehow they should be included in the definition of an employee and not included in those parameters that exclude them from the definition of "employee" subject to inclusion in a bargaining unit are unfortunate.
I'd like to move an amendment to section 1(1) that the definition of "employee" be amended to read as follows:
"'Employee' means a person employed by an employer and includes a dependent contractor but does not include a person who, in the Board's opinion, (a) performs the functions of a manager or superintendent, (b) is employed in a confidential capacity in matters
[ Page 4027 ]
relating to labour relations or personnel or (c) is empowered in a confidential planning or advisory position in the development of management policy for the employer."
On the amendment.
G. Farrell-Collins: I think this is a critical amendment. It puts it back the way it should be. I fail to understand the minister's argument -- he looks a little confused; perhaps he is a little confused -- as to why that section was even taken out. I think it's very clear that an employee -- a person, a worker -- who is included in the capacity of management, so to speak, an employee who is included in a strategic planning capacity at a senior level with a corporation.... Whether or not that person is supervising other employees or has a whole department under him, he is still an integral part of the management team. As such, he should be required to be exempt from the traditional definition of "employee," which would therefore exclude him from being included in a bargaining unit.
Hon. Chair, I would assume, and I would hope, that the House will go along with that amendment and put it back in. Perhaps it was an omission or a typo -- I don't know. Perhaps it was left off the bottom unknowingly or unwittingly. But it's certainly critical that that person, and those types of people, be included in the definition of "non-employee" or excluded from the definition of "employee" and that they be able to remain outside the bargaining unit and work in that capacity. I think it's an important amendment, and I hope the minister will support it.
Hon. M. Sihota: We will not support the amendment. I don't think it to be necessary. I would have hoped that the member opposite would have taken the time to have read with care the report of the special advisers which was issued to myself in September 1992 and released to the hon. member on October 26, 1992. If he had taken the care, he would have read with interest page 18, which says: "While we have deleted the exclusion relating to the confidential planning or advisory position, we believe that the rationale for exclusion under that provision is covered by the general exclusion relating to the performance of management functions." I think that attends to the concern the hon. member has.
G. Farrell-Collins: The minister, in his first main response to anything we've brought forward in this debate, has just proven the fact that we do need to have those three representatives sitting before us. I know he's going to quote at length from the report, and it would be much better if we had the actual authors of the report sitting here in the chamber able to answer the questions, rather than the minister having to read the report. The motion to have those gentlemen come here was not a frivolous one; it was a serious one. I think it's important.
The Chair: Order, please. That matter has been canvassed and voted on and is no longer to be canvassed.
G. Farrell-Collins: Thank you, hon. Chair. I was just bringing forth a point and trying to reinforce it.
The definitions of an employee and of management capacity are not necessarily ironclad. Sufficient leeway is there. If I look at the corporations I have worked for, there were people who were not necessarily part of the management team but who would certainly have provided confidential advice or planning information. You would not want to have those people included in the bargaining unit; you would want to have those employees exempted from it. Perhaps the authors of the report were looking at a much larger, more structured company, where everyone has specific, individual job titles and job descriptions. Perhaps the duties of that person are crystal clear for those corporations. There are many small corporations where people sometimes do secretarial work and, at the same time, help out by providing the statistics, information and planning that go into strategic decisions.
It's up to the employer and that employee to determine whether they choose to be in the bargaining unit or not. While that person may not necessarily be a member of the management team, they are providing it with confidential planning and advisory information, which ensures that the business continues to operate and be prosperous. So perhaps there's a grey area where many small firms could fall. They would not have the ability to be excluded from the bargaining unit, but they should.
G. Brewin: I ask leave to make an introduction, Mr. Chair.
Leave granted.
G. Brewin: It gives me a great deal of pleasure, on behalf of myself and the hon. Minister of Municipal Affairs, Housing and Recreation, to introduce a group of grade 5 students from St. Andrew's Elementary School, who are here to enjoy the debate this afternoon. I wish the members to make them welcome.
Hon. M. Sihota: I always thought St. Andrews was in the constituency of the Minister of Aboriginal Affairs. I didn't quite realize that that responsibility belonged to the Minister of Municipal Affairs.
The more the hon. member talks, the more he demonstrates a lack of familiarity with jurisprudence as it relates to labour legislation. If he were at all familiar with these matters, he'd be familiar with the B.C. Ferry Corporation case. Let me cite it for his reference. It's BCLRB 65/78.
C. Tanner: Point of order, Mr. Chairman. The minister has now stood up three times to answer our side of the House, and every time he has prefaced his comments by saying that our member is not familiar with the act. That is not the way to conduct the debate.
The Chair: Hon. member, that is not a valid point of order. You will have an opportunity to enter the debate in due course.
Would the minister please continue.
[ Page 4028 ]
Hon. M. Sihota: Anyone familiar with these matters would know that that case, which is the most frequently cited case on the determinants of management exclusion, does not refer to the language that is being deleted in this bill but relies on changes to the definition in paragraph (a), which are not altered in this bill.
L. Hanson: I guess the issue has been addressed by more than just our party, because I did table a very similar amendment with the Clerk of the House. In light of that, it's not necessary to have a second amendment on the order paper.
I would ask a question of the minister. The new definition obviously narrows those people who would be considered exempt by application to the Labour Relations Board. Maybe the minister could give us some insight as to why that narrowing of the definition is put in this act. Might it just possibly be that there may not be as many exempt people in the case of a labour dispute who may, in some small manner, be able to continue with the income an employer might expect?
Hon. M. Sihota: I welcome those comments from the hon. member and look forward to his involvement in this debate, which I would think will be extensive but I would hope will be short in time.
With regard to the comments made by the hon. member, the panel of advisers, when looking at the issue, came to the conclusion that it was appropriate to make those modifications in the definition and that they would not have the effect of expanding the legislated exclusion of employees. They felt that the change that has been proposed here was in keeping with the jurisprudence as it had developed with regard to that element of labour law -- hence the change. I trust that that answers the hon. member's question.
L. Hanson: Well, Mr. Chairman, I understood from the minister's remarks that.... Maybe he could clarify this for me. Would he not agree that the change in wording would in fact narrow the definition that the Labour Relations Board would use when they were determining if an application for exemption was valid or not?
Hon. M. Sihota: I would not agree with that comment by the hon. member. Given that the language being deleted does not appear to have significantly influenced decisions regarding exclusion, it's not likely to have much effect. For those reasons I would not agree.
L. Hanson: Then if I understood what the minister said, I have some difficulty in understanding why the wording was changed. I suppose, from the commitment of the minister, we could take it that when applications are before the new Labour Relations Board for exemption, and they appear to deny exemption under circumstances that would have been approved in the past, we would then expect that the minister would take a serious second look at the legislation. Because from what I just heard, he said that that is not the intention of this legislation.
[3:00]
Hon. M. Sihota: As I said, it's not likely to have much effect. As always, the government will be monitoring developments as they relate to labour law. Indeed, if the need arises to consider changes, that would happen, and we will obviously watch for the consequences of these changes in language with great interest. As the hon. member knows, in the sections that I'm sure we're about to debate any second now are provisions which allow us not only to monitor but to appoint people to look at changes.
L. Hanson: I find those comments very interesting, although I think that the minister very carefully skirted around committing himself. But I ask the question: would the minister then give his commitment to this House that if the definition of "excluded employees" was found to be a true narrowing of that definition, and that in decisions from the Labour Relations Board people who normally would have been considered exempt were being considered as part of the bargaining unit, then this government would look at that section again?
Hon. M. Sihota: Without trying to skirt the issue, let me tell the hon. member that the commitment is that we will watch with care what happens as jurisprudence and interpretation with respect to this legislation develops.
F. Gingell: Mr. Minister, recognizing that one of the most important things for us to do is to prepare clear and understandable legislation, because the words you say in the House during committee debate can set the precedence for future decisions, and recognizing that all of us like to stay away from lawyers if we possibly can -- I know the Minister of Finance may wish us to consult them so he can collect his 6 percent tax on their fees.... Surely the amendment would clarify this section so that people like ourselves -- not you, of course; you are a lawyer -- who aren't lawyers can read this section and understand what this exemption is, without having to hire lawyers or to have to read Hansard. If there is no intention to have any change, doesn't it make sense to make the amendment that we have proposed, so that it's nice and clear for everyone to understand?
Hon. M. Sihota: I appreciate the comments of the hon. member with regard to interpretation, and it is true that a tribunal can look at the discussion in the Legislature. Of course, a court doesn't, and it's up to a tribunal to decide how much weight to attach. I wouldn't want the hon. member to misinterpret what I said earlier when I said that we would be carefully watching the consequences of these changes. We do not think that they will have a significant effect in terms of the legislation.
In terms of clarity, the hon. member is right. The intention when drafting legislation is to achieve a level
[ Page 4029 ]
of clarity. We think that a high degree of clarity has been achieved in this provision, which simply points out that "employee" does not include a person who, in the board's opinion, performs the functions of a manager or a superintendent -- we'll leave that up to the board to determine in the proper exercise of its discretion -- or someone who is employed in a confidential capacity in matters related to labour relations or personnel. I think that is quite clear; if there is a need to resolve any ambiguous provisions, we have a board to do that. I don't think it appropriate that we in this House endeavour to resolve all the case law and the ambiguities that may arise as lawyers practise their craft.
F. Gingell: I was wondering, Mr. Minister, if you could tell me what the B.C. Ferries decision was. I'm not aware of that.
Hon. M. Sihota: B.C. Ferries was a decision that looked at management exclusions, reviewed the jurisprudence with respect to management exclusions, endeavoured to develop a test as it related to management exclusions and looked at the legislation. As a consequence of its decision, it became one of the leading cases with regard to management exclusion. In the course of doing its review of the legislation and looking at the provisions, it did not refer to the language that is being deleted in this bill, but rather relied on changes to paragraph (a) in the definition, which is not altered in this bill. In the course of that decision it became evident that they had relied on the provision that they have always relied on and that I referred to, and not on the item that is being deleted. That was the basis for that decision.
F. Gingell: Do I understand that if the B.C. Ferries decision was rendered under the legislation as it existed under Bill 19 or its predecessor, Bill 82, then that jurisprudence won't change even though the act under which the decision was rendered is no longer valid and there is a brand new act to take its place? Doesn't that require a new set of guidelines to be developed that are clearly in the realm of Bill 84?
Hon. M. Sihota: The reason we have a Labour Relations Board is to develop those guidelines. They did in the B.C. Ferries case; I'm sure they'll reflect on that decision as they develop guidelines as a consequence of these changes.
G. Farrell-Collins: The reason we're spending some time on this section -- and I think it's very critical -- is that there are numerous instances within the public sector, as well as the private sector, where members of excluded staff perform confidential duties and operate in an advisory capacity to senior management, yet do not fall within the definition of (a) that says: "...performs the functions of a manager or superintendent." They aren't a manager, nor are they a superintendent, nor are they employed "...in a confidential capacity in matters relating to labour relations or personnel." They may well be employed in a confidential capacity in matters relating to strategic planning and overall governance and planning for the corporation. That's a problem. There is a crack here that certain excluded staff presently within the public sector are going to fall through and then be included in the bargaining unit. There are a number of employees and workers in various private sector companies who are also going to fall through those two cracks and end up in the bargaining unit prior to what has happened.
If there was to be no effect in making this change, then why would the change be made in the first place? When one looks ahead -- and I know we'll get there when we finally get to replacement workers -- to section 68(e) that says, "...the work of an employee in a bargaining unit that is on strike or locked out," it says that you cannot hire replacement workers to do that job. Up to this time that person has been excluded staff for the very purpose that they provide support to management. They provide confidential planning and advice to management, yet they don't fit into either (a) or (b) as described as excluded staff under section 1 of this bill. There are numerous instances in both the public and the private sectors where that will be the case.
It's important that we get this definition down pat, because the definition of "employee" continues throughout the whole bill, certainly into section 68, which is a whole new area of legislation for this province and could cause substantial problems for public and private sector organizations to maintain a planning process while a labour dispute is in force, if there is a strike. It's critical that those employees who provide confidential information or advice to the employer -- to the management team -- even though they're not part of the management team, be included in the excluded staff. I think it's critically important.
Perhaps the minister can address the problems that we see coming from the fact that we've got these two cracks that these people can fall through. It is in fact going to be a substantive change to the bill, whether the minister feels that way right now or not. When we look through the other sections, we can see that that change is going to reverberate throughout the bill into numerous sections, and certainly into section 68.
Hon. M. Sihota: The hon. member should have more faith in the Labour Relations Board and in its ability to develop guidelines which will provide appropriate interpretations of these provisions.
G. Farrell-Collins: These are exactly the type of answers that I hoped we wouldn't get into, because we're looking at a very serious question. We're looking at an amendment in the definition section, which as I said reverberates throughout the whole bill. The minister is giving us a glib answer and saying: "Well, don't worry. The bureaucrats will deal with that, or the Labour Relations Board will deal with that, and they'll take care of it, so you don't have to worry about it."
Well, why are we even doing this? Why are we even going through this bill? Why are we even having this debate in the House if it's of no importance to the way the Labour Relations Board is going to deal with these issues? In fact, what we say in this House and what we debate and what the intent of the minister is in making
[ Page 4030 ]
those changes is critical. It's fundamental to the interpretation that the Labour Relations Board upon which this minister relies so much.... It's going to have a huge effect, and it's very pertinent.
I ask the minister to give us his explanation of why that change has been made. Why has the change been made to the provisions for excluded staff? Does he not feel that some of the things we've brought forward would be of concern and would certainly affect excluded staff in public sector organizations and also in private sector organizations; that there is a hole here that needs to be filled and that that's why section (c) was included in the first place? Perhaps it does need to be reinstated?
Hon. M. Sihota: I've listened to what the hon. member has had to say, and I'm afraid to say that he hasn't been listening to what I've had to say. I said to him very clearly what the reasons are for making the changes. The changes were made for the reasons I've already indicated, but if the hon. member wants to hear them again I'll repeat them again.
They were made largely because, after review of appropriate jurisprudence in the area, it was felt that it would not have a significant effect or any unintended effects. The words being deleted from the definition are not generally seen as expanding the legislated exclusion of employees. I made that clear. That should give the hon. member some comfort. When those who engage in the interpretation of this legislation at the Labour Relations Board wish to take a look at what was discussed in this Legislature, they will see that that's what was said by this government with regard to those provisions. I'm sure that that will guide them to the extent that they wish to put any weight on the discussions here, political as they often are.
Those are the reasons, hon. member, and that's why we would not agree to the amendment. For greater clarity we have now sort of streamlined the provisions and, given jurisprudence, we have a degree of comfort with respect to those changes.
[3:15]
G. Farrell-Collins: Well, I don't share that degree of comfort, hon. Chair. In fact, I am quite uncomfortable with this provision. I've highlighted a number of cases where this will fundamentally change the structure of the bargaining unit and the structure of the excluded staff in both public and private sector organizations, but the minister doesn't seem to feel that that's a problem.
I understand from second reading debate, and certainly from the press releases that this minister has made, that in fact a great deal of horse-trading went on in coming up with this report -- this almost unanimous report, as he likes to put it -- and in fact there were trade-offs. Some people gave up something here that they didn't agree with, and they got something somewhere else. I have a fundamental problem with horse-trading as it pertains to legislation -- perhaps horse-trading, yes, when it comes to collective bargaining, but this isn't collective bargaining. This is legislation that's supposed to guide collective bargaining and hopefully is a little more philosophical in its view and a little more practical in its application.
Hon. Chair, when I look at this provision, I ask myself: what was it that one group of those three people -- the three wise men, so to speak, who dealt with this bill -- had to give up in order to get this provision in here? What was the trade-off in order to make this change? To say that they felt there was no need for it or that it wouldn't have a major effect -- I think "significant effect" was what the minister quoted from the report -- is simply not good enough.
I have cited a number of cases where it will have a significant effect within the bargaining units and within the excluded staff of school boards, of municipalities, of ministries themselves and of private sector corporations -- maybe not the large ones, but certainly the smaller ones. That's one thing we see throughout this bill in our analysis: the very small companies with ten, 15 or 20 employees are going to be hit the hardest by this. The definition of an employee and of an excluded employee is critical to how this bill is going to affect....
I've named one section: section 68. Sections 53, 54 and 55 that deal with planning and the participation of the union with the management as far as changes go -- not technological changes, but overall changes -- also have an implication. So it's important that we define from the outset exactly what an employee is and what an employee is not.
There are going to be significant effects in the long term -- maybe not with big business but certainly within the public sector -- on school boards, municipalities, probably hospitals and certainly small businesses. That's the reason for this amendment, and that's why we think this amendment should go through. It wasn't causing any harm in the past. I couldn't see what harm it was causing by being there. Even if it isn't going to have a significant effect -- according to the minister -- to change it, it certainly wasn't harming or limiting anything in the past. So I wonder why....
Perhaps the minister feels that those types of people should now be included in the bargaining unit and should be part of the unionized employees, so that in the event of a strike, the labour wing in that struggle over a collective agreement has more clout. That's what a number of sections in the bill lean toward, so I assume that that's exactly what the minister is trying to do here. I hope that's not the case.
He states that it won't have any significant effect. I have given him a number of examples of how it will. I think it's important to clarify the definition of "employee" and to put that section back in. As the minister said, it won't cause any problems. It hasn't caused any problems, so why take it out?
Hon. M. Sihota: As I said earlier, the more the hon. member talks, the more evident it becomes that he's not familiar with matters related to labour law, including labour law in this country of ours. The hon. member has not taken the care in preparation of this debate to inform himself of the provisions of the Canada Labour Code. For example, the Canada Labour Code says that "employee" does not include a person who performs management functions or is employed in
[ Page 4031 ]
a confidential capacity in matters relating to industrial relations.
I know the hon. member was being talked to by his colleague, so let me read that again. The federal legislation says that "employee" does not include a person who performs management functions or is employed in a confidential capacity in matters relating to industrial relations. As the hon. member can see from that exclusion, it's not materially different from what is being proposed in this legislation.
The hon. member should be mindful of what has happened in other jurisdictions and of the fact that.... I know he feels that he is well versed in these issues, but he should be mindful of the fact that two of the leading labour lawyers in British Columbia were involved in the development of this legislation.
If he compares this provision to others, I think he would quickly inform himself that the changes are not materially different. If he had taken that care, I am sure we would not be spending the amount of time that we are spending on this section.
G. Farrell-Collins: The minister, of course, is going to use the old tried and true NDP line of discrediting the opposition's research every time they don't like what the opposition says. The fact of the matter is that this member has spent months on this bill, while the minister was gallivanting around Ottawa, and is probably more prepared than the minister. The minister is making comments regarding myself, and I feel that I have the right to respond.
But as it relates to federal legislation, the minister should do a bit of research to know that at B.C. Tel, previous decisions by the federal Labour Relations Board have ruled that everyone up to the vice-president level was included as an employee and as a result was not allowed to cross picket lines, or didn't have to cross picket lines. Perhaps the minister should do his research and look into some of the cases before he starts quoting from the federal labour relations legislation.
The minister keeps going back to the statement -- he just did it again -- that employees who are included in confidential matters related to labour relations or personnel are excluded. Well, what about all the other people? What about the people in a planning capacity? What about the senior people who provide advice to those in a planning capacity with major firms and with public organizations? Those people also, up until now, have been part of the excluded staff, and this minister is taking them out of that. So to have the minister stand up and say that it's not going to have any effect, it's not going to make any change.... I'd say that he is the one that perhaps hasn't done his research and hasn't thought this item through. Perhaps if he'd been in this House drafting this legislation and dealing with it over the last six months instead of gallivanting around Ottawa trying to sell a deal nobody wanted, he would know this legislation a little better than he does.
J. Tyabji: I'm disappointed to see that the minister isn't standing up to respond to this specific example of where the federal code doesn't jibe with what our critic was trying to say. We definitely would like him to leave the provision in rather than take it out, because it obviously does have a significant impact.
I'd like to ask this minister, who asked us to have faith in the Labour Relations Board.... Those were basically his words in the House not ten minutes ago, when our Labour critic stood up and said that we would like to know more about why this provision has been taken out. The minister said: "You should have faith in the Labour Relations Board." We know that in section 10 of this bill, which we will get to later, the minister's powers are increased dramatically and that this minister, not some labour relations board, will have direct input into, and does have the ability to participate fully in, any future labour unrest.
What I'm wondering is: what is this minister really trying to tell the House? First of all, we've got the committee that he's crediting with having written this bill; then we've got the Labour Relations Board, which is left for interpretation. But when are we going to hear from this minister what his reading of this bill is, and how, for example, it would not be consistent with the federal ruling where the federal Labour Code -- which, this minister has said, this new bill is consistent with -- is being implemented? The people of B.C. want some reassurance that we will not have interpretations consistent with the federal code that will have people all the way up to vice-president being considered employees, because the people want to know that this labour bill is not going to mean that even management cannot cross picket lines under the replacement-worker provision.
Hon. M. Sihota: I think there was a question in there somewhere, which is why I'll rise. The hon. member should know that under the terms of the interpretation of these provisions, the jurisprudence which has been developed in the province will prevail. In that regard, the B.C. Ferries case should give the member opposite a high degree of comfort.
An Hon. Member: Speak up.
Hon. M. Sihota: Sorry. I would hope that by my speaking softly, hon. Chair, the members might tune in a little bit better; but they're not tuning in at all. They still wish to read their research notes, as misguided as they may be.
It's very straightforward. As I said earlier on, jurisprudence in British Columbia has commented on this provision. I would rely on the wisdom of the Labour Relations Board to deal with some of the situations which will arise. I don't think we're going to be able to resolve all of the exclusions the hon. members would like to find through making a variety of changes to legislation.
The purpose of legislation is to keep it crisp, to keep it clean and to make it easy to interpret. Those objectives have specifically been met by this provision. I believe that the hon. member should find great comfort in what I've had to say. If not, I'll listen to what she has to say. But I can assure you that the government is quite confident that this section meets the objectives to which I have already spoken.
[ Page 4032 ]
J. Tyabji: We would like a straight answer from this minister as to the role of a vice-president of B.C. Tel, for example, with regard to this provision, this definition of "employee" and this bill, notwithstanding the jurisprudence of the province which this minister keeps alluding to, notwithstanding prior cases which, of course, were done under different legislation, and notwithstanding the fact that we now have section 2 in here, which gives the courts a completely different set of glasses, if you will, through which to interpret labour law. We would like to hear what this minister has to say with regard to the definition of "employee" -- whether or not that would include the senior executive of a company.
Hon. M. Sihota: The hon. member should know that there's no hidden agenda here, as much as she'd like to suggest there is. The question, I believe, was: what would the status of a B.C. Tel vice-president be? I believe that was the genesis of the question. In that situation the Labour Relations Board would determine whether or not that person is someone who, in the board's opinion, performs the functions of a manager or superintendent, or whether or not that person is employed in a confidential capacity in matters relating to labour relations or personnel. If they came to that conclusion during their investigation, then the definition explains what the consequences are.
J. Tyabji: It's extremely frustrating, and I hope this minister isn't going to continue to be so obscure that we are going to have a longer and more protracted debate. We're still waiting to hear what this minister's interpretation of this section of the bill is for the record, and we have not heard what this minister.... I understand that he is saying that we all know that with section 10 and the powers of the minister, and with section 2 and the method in which the bill is to be viewed -- and this is all tied together.... We need this minister's interpretation of how this should be read before we hear that it will be left to the Labour Relations Board to interpret it.
Hon. M. Sihota: In terms of my interpretation, my interpretation is that "employee" does not include a person who performs the functions of a manager or superintendent or is employed in a confidential capacity in matters relating to labour relations or personnel.
G. Farrell-Collins: The minister is again hiding behind the three wise men who wrote this report, and he won't let us have a chance to talk to them. I'd much rather speak to them than the minister; we'd probably get straighter answers.
But getting back to the definition of "employee," the minister stands up and quotes from the recommendations of the three wise men and doesn't give us his interpretation. It's obvious that he is taking every little thing that they've said and is not going to describe to us in any way at all what his interpretation is as minister, and not the interpretation of the three people he hired to do this report. It is critical. The reason we are asking this question.... We've asked it a number of times, and the minister refuses to answer it. Why does the minister talk about an excluded staff being somebody who (a) performs the functions of a manager or superintendent, or (b) is employed in a confidential capacity in matters relating to labour relations or personnel? What about those employees who are employed in a confidential capacity in matters relating to other things, aside from labour relations and personnel? That's a very small portion of what a company actually does. It's a very small portion of the day-to-day planning operations of a corporation -- or of a public sector organization, for that matter. It is critical that those people who operate in a confidential planning or advisory capacity to a school board, hospital or municipality be allowed to continue to go to work during a strike, because those are the people who have to help the board, the executive, the managers, the superintendents and the administrators of that organization deal with that type of crisis. They are the ones who are going to be helping in a confidential way to deal with that labour disruption as best as possible. And now the minister is taking those people and putting them outside walking around the sidewalk with pickets on their back, instead of inside doing the work that they should be doing.
[3:30]
So there is a profound change to this piece of legislation, this definition, and that is why we are asking the minister to further clarify, by means of this amendment we've brought forward, that not just those people dealing with personnel matters or labour relations, but those who are in a confidential and advisory capacity with the management team, or a part of the management team, will also continue to be excluded staff. That is critical to the further interpretation of this bill.
I wish the minister would comment on that. Does he not feel that those people are necessary? Does he feel that those people would be better treated by having them included in the bargaining unit and out on the picket line? Does he think it's better for school boards, hospitals, public sector organizations, private sector organizations and small businesses to have those confidential people, who are critical and crucial to the day-to-day management of a company or an organization, and even more critical during a strike or a labour dispute...? Does he feel that it's in the best interests of public sector and private sector organizations to have that person on the picket line instead of in there helping to deal with the strike?
Hon. M. Sihota: The hon. member says that we refuse to answer the question. That's certainly not true at all. I've answered the question on a number of occasions. It's rather that that hon. member refuses to accept the answer we've provided in response to the question he asks.
The hon. member should understand that with respect to hospitals, for example, those types of matters can also be dealt with in regard to the powers -- which we'll debate, I guess, at some point -- related to essential service designations. In addition to that, the hon. member understands and should know full well that since 1977, when the amendment was brought in,
[ Page 4033 ]
the jurisprudence with regard to this matter has not relied on this provision to develop the appropriate test. It has relied on the provision I referred to earlier to develop the appropriate test. In recognition of that, changes have been made. The hon. member may not wish to accept that answer, but that indeed is the reason for the changes being proposed here.
G. Farrell-Collins: I'll try and be very clear and concise for the minister, because I do think it is very important that we deal with this section with some preciseness. The provisions and the changes to the definition of "employee" can be looked at.... You say: "Oh, don't worry. The Labour Relations Board will deal with the issues as to what an employee is. They will decide. They will arbitrate. They will mediate. They will come up with some decision as to the definition of an employee, and we'll trust in their wisdom to decide what that may be." If that was all it was -- the mere definition of "employee" -- it wouldn't be as critical as it is. But the fact is that the definition of "employee" continues through, and is interpreted by, the brand-new section 2, which is going to have an effect on the way all of this bill is interpreted. That is going to be brought in in numerous sections: certainly in those that deal with co-management and co-determination; certainly in those that deal with replacement workers.
The minister got up and used hospitals as an example: that they will fall under essential services, and the board will make a decision as to who is and is not essential for services related to hospitals. But also -- and this is a perfect example of why a precise definition of "employee" is so critical, and why it reverberates throughout the bill -- the reality is that this minister has removed education as an essential service. So while he stands up and talks about health care, and says that there will be provisions made for essential services.... "Oh, don't worry about it. Those people will be excluded staff. Or they will exclude whoever they need, in order to allow those employees to be in the appropriate spot, either on the picket line or in the office, during a strike." What about education? How is the definition of "employee" that this minister brought forward going to relate to the essential services of education? He has commented on how it is going to relate to health.
Let's take another example of a change the minister has made related to education. How is the definition of "employee" going to affect that section?
Hon. M. Sihota: If the hon. member had informed himself on these matters, first of all, he would realize that now he's raising topics which go outside the scope of this section. Secondly, he should understand, if he had informed himself, that with regard to education, there had never been a designation in the previous legislation. Thirdly, if the hon. member had informed himself with regard to the public interest provisions -- which I'm sure we will debate in due course -- he would have learned that they allow a minister great latitude with regard to health and welfare provisions that exist in that section. I will point that out again to the hon. member for his information when we get to that section.
The hon. member should understand that he is engaged in mindless speculation that has no foundation either in law or fact. The hon. member should understand that in the definition section of this legislation it does not make sense -- as is the case in all other jurisdictions, if he had informed himself -- to sift through legislative changes and look at every possible scenario that may arise to try to cover all the exemptions for those scenarios. If the hon. member had taken the care to inform himself as to what the Labour Relations Board does, he would have quickly realized that it is the board that engages in interpretation of these provisions. If the hon. member had taken the care to listen to what I said earlier on in response to the member for Okanagan-Vernon, he would have realized that we would obviously watch with respect to this section. If there are any consequences that give the government consideration for triggering the advisory panel provisions, we will. To sum up, the hon. member seems not to want to accept anything except that which meets his argument that he's putting forward. I would be quite happy to concede a point to the hon. member when he makes one that is worthy of that concession. This point is not one.
The Chair: I'd like to advise all members that there comes a point when the Chair has to determine to what extent debate is becoming tedious and repetitious. This isn't to suggest that there is no validity to a point that's being made at a particular time. But our standing orders are quite clear that when we're in committee we should strictly adhere to the text and principle of the sections, one by one. We have been expanding that. We must remember that we are not in second reading at this point. I would ask all members to keep that in mind.
G. Farrell-Collins: I think there needs to be some latitude given when we're looking at interpretation and definition sections of a bill. Taken by itself, we could look up the definition of "employee" in Webster's dictionary and debate it. The definition of "employee" only has relevance when taken in light of the subsequent sections and the interpretations that follow; therefore there is some need to draw upon those sections and give concrete examples to the minister as to what problems may occur with that particular change in a definition. It's very critical that we do that. I'm not trying to be tedious, by any means. In fact, the minister is well known for his patronizing and sometimes arrogant methods of debate. But the reality is that the minister is being asked very specific questions on the change that he is recommending to this House -- whether he read it or not before he got here. It's a change that he has put in legislation, and it is critical that we and the minister understand that there may well be some unplanned reactions or effects as a result of that definition. For the minister to stand up in some smug sort of way and say that we're arguing with him and are not willing to accept his argument because he's
[ Page 4034 ]
not agreeing with us 100 percent and that we are getting upset, frustrated and annoyed is simply not the case.
We are looking at a very specific definition of what an employee is, the changes that this minister has made and what some of those effects are going to be. We have asked the minister what will happen in this bill with his definition of "employee" as it relates to a number of issues. We've looked at health care. The minister brought that up and commented on that, and I credit him for that. The minister talked about public interest. It doesn't say anything about private interest. In fact, it rules out individual rights almost altogether. In the subsequent section, section 2, there's no reference to a competitive market economy. In order to look at what the definition of "employee" means and how it's going to change the intent and purpose of this bill, we need to look at some of those other applications, and we need to ask the minister questions to find out what his intent was when he changed the definition of "employee." We're asking him some very specific questions as to how the definition of "employee" will relate to things that, for example, are no longer included in essential services such as education. Health care was also one this minister brought up and talked about. We need to know what it means as far as how it's going to affect other sections.
Hon. Chair, I don't think it's out of line at all to ask the minister to say what his intent was in making these changes and how they will affect the rest of the bill. We are on an interpretation section of the bill, the definition section, which defines what "employee" means when it's mentioned the other 150,000 times throughout the bill. Where those changes have been made to the definition of "employee" -- and those changes will be in other sections -- it's critical that we know what the minister's intent is.
With regard to the minister's change to section 1(1) of Bill 84 as it relates to the definition of "employee," does he intend that there will be no changes to "excluded staff" as presently defined by the jurisprudence, which he keeps bringing up all the time, and the labour legislation we've had in the past? Is it his intent that there will be no changes for employees who are included, or excluded from the bargaining unit, as a result of this change, that it's merely a technical change, a housekeeping change, to make the bill "more crisp," as he says? Does he intend that there will be no subsequent cases brought forward to include or exclude employees from a bargaining unit because of changes to his definition of "employee"?
Hon. M. Sihota: First of all, the hon. member is wrong: the word "employee" is not mentioned 150,000 times in this legislation. Secondly, let me say this. I can't forecast -- and neither can you, hon. member -- what cases will come before the Labour Relations Board, but I can tell you what this change is seen to do. As I indicated to you at the very outset, with regard to the first question that you asked, these provisions are not generally seen as expanding the legislated exclusion of employees.
G. Farrell-Collins: You know they are.
Hon. M. Sihota: The hon. member opposite says: "You know they are." That's exactly the point I'm trying to make. The opposition will not accept any argument that I make because they think they know better and they think there are some hidden agendas. Well, that's not true. The agenda is very straightforward.
My intent, hon. member, is to make sure that the Labour Relations Board has legislation before it that it can interpret and develop guidelines on, in keeping with existing jurisprudence such as the B.C. Ferries case. That's the answer, hon. member; it's as simple as that. If you can't accept the answer, that's not my fault; that has something to do with you.
If I may say, I've heard it said that this is one of the most ineffective oppositions to have come to this House.
The Chair: With the greatest of respect, we are on the amendment to section 1. I would ask the minister to come to order.
Shall the amendment pass?
L. Hanson: Just a short comment, Mr. Chairman. I can remember a day when the minister and I were on opposite sides and actually taking part just about exactly as he and the member were. The minister has assured us that the change in the wording of the definition of "employee" was not meant to narrow the definition. He has also assured us that if upon observing the reactions to this legislation as cases are brought before the Labour Relations Board, it was in fact found to be narrowing it, he would look at changes that would bring it back to the situation as we see it today. While he hasn't said that in so many words, I think that if you take all the statements and put them together that's probably what he has said. I would just hope that the current Minister of Labour's interpretation of the effects of Bill 19 is not as far off as his interpretation of the effect of this definition of "employee." But maybe the minister would like to comment.
[3:45]
Hon. M. Sihota: I thank the member for his comments. It was an interesting summary of what I've said so far, and it helps me realize even more why tribunals don't pay that much attention to what happens in the Legislature, because occasionally words get put in your mouth. But the words I used and the point I tried to convey was that, in our view, these changes are not generally seen as expanding the legislated exclusion of employees. We will leave it up to the Labour Relations Board to deal with individual cases that come before them.
In the development of interpretative jurisprudence with regard to this provision, I will confirm to the hon. member that if there are any consequences that are unintended, extreme, or that one would not have reasonably foreseen in the development of this legislation, the government will, of course, always be open to triggering the advisory panel provisions and taking the necessary steps to correct any of those unforeseen wrongs.
[ Page 4035 ]
I think that the Labour Relations Board, when engaged in its interpretation of this section, will try to be reasonable in its interpretation, will respect the arguments that employers make with respect to this provision and will be mindful of the arguments made by the trade union movement. Given the fact that the panel is very balanced in terms of whom we've appointed to date and, indeed, whom we have inherited -- I would give the previous administration some credit for that -- I'm quite persuaded that they will make balanced, fair and reasonable determinations in the cases that come before them. I think that's all one can ask, and that's what we'll be looking forward to.
L. Hanson: Mr. Chairman, I would agree with the minister that we can expect generally fair and reasonable decisions from the Labour Relations Board with the legislation that they have to interpret, although we may argue with some decisions.
However, when he was speaking the minister mentioned a word that sort of strikes me as the meat of the whole problem which we're trying to discuss here. He said that we would follow and analyze the results so there won't be any unintended consequences. With the minister saying that, I suppose it would be fair to ask the minister if he could explain to us what the intended consequences are so we might get a definition.
Hon. M. Sihota: The intention in bringing forward this change, as I've suggested to the hon. members opposite for some time now, is to streamline the definition that's involved here, respect the jurisprudence that has in the past interpreted the legislation and make a change which is not generally seen as one that would expand the legislated exclusion of employees.
L. Stephens: I wonder if the minister could help me out here. This definition of "employee" here says: "...but does not include a person, who...(b)is employed in a confidential capacity in matters relating to labour relations or personnel." These are the only two areas, to the exclusion of, say, marketing or something along those lines. Why are these two particular areas of company activities in this particular legislation? Why are these two areas singled out to be excluded from being an employee?
Hon. M. Sihota: If I understood the question right.... Is the question why are items (a) and (b) enumerated in that fashion?
Interjections.
The Chair: Order, hon. members. Please permit the member who has the floor to speak.
Hon. M. Sihota: The purpose of (a) and (b) -- or (b) if you don't like (a), and I see them all nodding, so they must understand -- is to make a distinction between those who are employees in the generic sense of the word and those who are managers. For greater certainty the legislation makes reference to those engaged "in a confidential capacity in matters relating to labour relations or personnel." That is consistent with jurisprudence elsewhere in the country.
L. Stephens: My colleague is more familiar with jurisprudence in other jurisdictions. Again I'll ask why these are exclusions and why these two, labour relations and personnel, are singled out in relation to not being defined as an employee.
Hon. M. Sihota: With respect to (b), these people may be involved in the collective bargaining itself. There is an exclusion for that reason.
J. Tyabji: Two things. First of all, we have: "...performs the functions of a manager or superintendent." I'd like to have the minister's definition of "manager." Would that include only the most senior management person, or would that include the management team?
Hon. M. Sihota: The word manager is not, in itself, the pivotal determination. The pivotal determination is what that individual does in the enterprise. Depending not on their title -- be it manager, vice-president or whatever -- but on the scope of their responsibilities, a board will make a determination of where they fit in. Perhaps I'm speculating a bit too much here, but in theory it would be possible for someone to include or exclude a vice-president or someone further down the chain. It depends on the nature of their responsibilities. The provision endeavours to allow a board to make a determination on that.
J. Tyabji: I am disappointed that we are failing to get the minister's opinion on or interpretation of these sections. This minister comes from a legal background -- although, based on some preceding incidents, we might not have realized that. I'd like this minister's interpretation of the section. We've spent a lot of time trying to pin him down on his own interpretation. Maybe we'll put some words on the table, such as we saw from one of the members of the third party. I'd like this minister to simply answer yes or no. Do you agree with this statement? If you don't say that you disagree, then we'll assume that you do agree. The statement is that this definition of "employee" will not change the way in which labour disputes will be resolved. That is certainly the implication of the way this minister has been proceeding. I know this minister's going to quote about previous jurisprudence. I'd like to hear whether the minister disagrees with this: that it is not his intention to have the change in definition impact the enacting of the bill.
Hon. M. Sihota: The hon. member doesn't seem to understand that it's a labour relations panel that interprets the legislation in this instance. I cannot guarantee to you what the finding of the labour relations panel would be. In terms of the reason that these changes are before the House, I have already amplified on the intent. If indeed the hon. member wants to hear it again, I can tell the hon. member that it's not seen as generally expanding the legislated exclusion of employees. If you want to know what, in
[ Page 4036 ]
terms of purpose, there you have it, hon. member. But don't ask me to make guarantees about what a labour relations panel will do in the....
Interjection.
Hon. M. Sihota: I just answered the question, hon. member -- you were chatting with your colleague. Let me tell you again that the changes here are not seen as generally expanding the legislated exclusion of employees.
G. Farrell-Collins: I just have perhaps one or two more questions on the amendment that I would like to ask the minister.
He knows full well what he's been engaged in. He's a lawyer, he's been engaged in a constitutional debate for some time, and I'll use the allegory if I may because I think it helps to clarify the case. In the Canada clause we ended up in extreme difficulty because we started to list all of those things about what it means to be a Canadian. There are many cases where we've gone through this time and time again where once you start to list things in law, those things not listed are conspicuous by their absence and a court would have to interpret accordingly. The minister has removed one section of this definition of "employee" that summarizes and includes a broader range of what it means to be an excluded staff member and is relying merely upon section (b), which is what the member for Langley was trying to get through to the minister: that in section (b), he lists two measures that the Labour Relations Board is able to take in determining whether or not an employee falls within the excluded staff category. Those two measures listed in this bill are those employees who are employed in a confidential capacity in matters relating to labour relations and personnel -- he's listed two.
Therefore if a judge or the labour relations review panel is reviewing this and is making a judgment or a decision, they have to assume -- because marketing, because strategic planning, because sales, because of all these other things are not included in there -- that somehow those people are okay to be included as employees, but those dealing with labour relations and those dealing with personnel are excluded. There's no other explanation that one could grant for why those two are named. They're named because they're specific and they're to itemize exactly those employees who are excluded. All those who aren't in that list are no longer excluded but are now incorporated into the bargaining unit. I can't see any other way in which someone could interpret it.
This isn't just a banal type of an amendment to this bill; it is a change. It is a substantive change and it will have effects on the other sections, as we've itemized. So the question I have for the minister: was it his intent in making the changes to the Labour Relations Code that those two items would be listed to the exclusion of all the others and therefore that an employee not directly involved in labour relations or personnel will no longer be a member of the excluded staff?
Hon. M. Sihota: The more I listen to the hon. member, the more it becomes apparent the hon. member has an appalling lack of understanding as to how the Labour Relations Board functions.
Interjections.
G. Farrell-Collins: Point of order. We've just started day one of debate on committee, and the minister is continually rising and using personal insults across the floor of the House. I'm personally insulted by those comments, and I am offended by them. I would ask the minister to retract them and not to continue with them.
The Chair: The member asks that the minister withdraw the remarks that may have offended him.
Hon. M. Sihota: If they touched my hon. friend in that fashion, then of course I'll withdraw them.
[4:00]
For those who understand these matters, let me put it this way: it's very straightforward. In the past, marketing hasn't been enumerated as a category in the legislation. In the past, sales have not been enumerated as a category in the legislation. In the past, strategic planning has never been enumerated as a category in the legislation. Those who are familiar with labour legislation are familiar with this type of wording. It does not exclude anybody. It allows a company to make a presentation to the Labour Relations Board to determine who should or should not be excluded. The reason the words are as broad as "manager" or "superintendent" is to allow the Labour Relations Board to take full measure of an individual's responsibilities and occupation and, based upon that analysis, arrive at a determination as to whether they should be excluded or included.
[M. Lord in the chair.]
Let me go a little bit further. If we were to take the analysis to its full measure as the hon. member suggests, then we would have to enumerate marketing, sales and strategic planning. Then the hon. member would ask why the manager responsible for finance is not listed in the legislation. The flaw with the hon. member's argument is that we would require enumeration of every possible managerial or superintendent function. Rather than do that, which is a remarkably naive suggestion, we do what makes sense. We say to the Labour Relations Board: "You decide, based on the scope of responsibilities, who's a manager or a superintendent." In other words, the legal theory that's being practised here is to allow the language to be as inclusive as possible in terms of cases and representations that can be made before the board, and then allow the board to decide who should be included or excluded, not to go through the itemization that the hon. member refers to, because it doesn't make sense.
N. Lortie: Did you get that?
[ Page 4037 ]
G. Farrell-Collins: In fact, I did get that. I would like to make a recommendation to the minister. If the idea is not to start developing some 40-page list of all the people who are excluded, then what the minister should do is repeal section (b), which is very specific and deals only with labour relations and personnel, and leave in section (c), which says: "is employed in a confidential planning or advisory position in the development of management policy for the employer...." That would have been the tack to take. Leave section (c) in and take section (b) out.
We've recommended putting section (c) back in. We brought forth an amendment to that effect. If the minister would like to agree with that, we'd be glad to vote on it. I would be glad to support an amendment by the minister to remove section (b), which is much more specific and naive, to use his own words, than listing those positions that are included. Let's be broad. Let's be open. Let's allow the Labour Relations Board to do the interpretation, but let's give them the broadest possible mandate to do that, not some narrow provision that lists two functions and ignores all the rest. If the minister would like to support our amendment, I would be glad to support his amendment.
Hon. M. Sihota: The hon. member still doesn't understand the argument, so let's try it one more time. The change with respect to section (c) is made in light of the interpretation of the Labour Relations Board in cases such as the B.C. Ferries case, which found that the provision was...relied upon in terms of making the exclusions. It was (a) that was relied upon. That's why (a) is there. That's why (c) is gone.
With regard to (b), if the hon. member is suggesting that we should eliminate (b), then he can introduce an amendment to that effect.
F. Gingell: It would seem that the obvious thing to do is to leave in (b) and eliminate all the words after "...is employed in a confidential capacity...." That's what would seem to fit. If the intended consequence of this change is to have no unintended consequences, why don't we amend it so that the unintended consequences will be only those that are intended?
Hon. M. Sihota: Let me explain it to the hon. member again, with regard to that provision and consequences that may be unintended. It would seem to me that the first paragraph, subsection (1)(a), would be the one that one would want to look at in making the determination. I don't see how putting a period after "capacity" would assist the member's argument; in fact, it may be injurious to the argument that his colleague made about 30 minutes ago.
In this legislative change we are trying to protect the kind of jurisprudence that existed. We're not endeavouring to make changes that would be generally seen as expanding the legislated exclusion of employees; hence the wording as it's developed here.
L. Stephens: Mr. Minister, just one more time, please. Where it says "but does not include a person...." I think everyone understands the functions of a manager or a superintendent in whatever division they may perform those duties. But it also says after superintendent, "...or is employed in a confidential capacity in matters relating to labour relations or personnel."
When you talked about it before, you mentioned collective bargaining. Are you referring to this item (b) as part of the collective bargaining process with management and therefore not as an employee as defined in the rest of this bill? What examples could you give me of a person employed in a confidential capacity who would be excluded? What kind of a job? Are we talking about a personnel manager? I would assume he would be exempt simply by virtue of being a manager or a superintendent. It also says, "...or is employed in a confidential capacity...."
Could you help me there? Could you give some examples of the kind of job that might be? Again, it specifically says "...relating to labour relations or personnel."
Hon. M. Sihota: Okay. In terms of confidential capacity, the section could capture someone who is an assistant to a negotiator or who would be involved in typing memos that relate to bargaining strategy. A case could be made in that kind of situation for them to be excluded. That's one that comes to mind. I think they're lending support to someone who's involved in the area of labour relations, and if they're involved in the internal development or the reporting of collective bargaining strategy as, say, a typist would be, one could make that application.
L. Stephens: So we're not really talking about a personnel division, as usually defined in business, that looks after pay periods, employees' personnel records, and so forth. Are we looking at the collective bargaining process and the people who would be involved in collective bargaining areas, such as typists who would have access to confidential information, and this kind of thing? Is that where we're sort of confining it to -- it's not into the broader day-to-day personnel activities that go on in a business? Is this where we're defining it -- in just a collective bargaining process?
Hon. M. Sihota: Each position would be looked at differently, but I think that you have the gist of it. A payroll clerk might be treated differently by the panel than a typist who is typing up strategy with regard to labour relations. So it may not encompass the entire division.
G. Farrell-Collins: It's interesting to note that while the minister is saying one thing, the member for North Vancouver-Lonsdale is saying something very different. Perhaps what we can do is simply call the question on the amendment and find out who's going to go one way and who's going to go the other way.
C. Tanner: In fact, what actually happens here is that the two sides go before the board and try to keep as many in or as many out. Isn't that what actually happens?
[ Page 4038 ]
Hon. M. Sihota: That may be the strategy.
C. Tanner: I didn't ask the minister whether or not it was a strategy. I said that what happens is that the union goes in front of the board, the management goes in front of the board, and they both argue to keep as many in or as many out as possible -- don't they?
Hon. M. Sihota: The hon. member should know that often there's not much of a dispute with regard to these matters, but that in cases where there is, indeed, yes, that could be part of the strategy.
C. Tanner: Then what we're talking about here is power on either side of the question, and what the minister has done here is give more power to the union to keep people in. Isn't that true?
Hon. M. Sihota: No, that's not true at all. What the minister has done in this case is streamline the provisions as they relate to the definition of "employee." As a result, these are not generally seen as expanding the legislated exclusion of employees.
C. Tanner: The minister has said that he wants to keep clean, crisp, tidy legislation. He's got every member on this side of the House -- and apparently a couple of members on his own side of the House -- confused. If he wants it clean and crisp, why didn't he leave (c) in from the previous legislation? He has confused it and made it more complicated because of the action he's taken. Isn't that true?
Hon. M. Sihota: Complicated only among suspicious minds.
[4:15]
Amendment negatived on the following division:
| YEAS -- 21 | ||
| Tanner | Reid | Wilson |
| Tyabji | Farrell-Collins | Gingell |
| Warnke | Stephens | Hanson |
| Weisgerber | Serwa | Dueck |
| Mitchell | K. Jones | Dalton |
| Hurd | Anderson | Symons |
| Fox | Neufeld | De Jong |
| NAYS -- 30 |
||
| Petter | Boone | Sihota |
| Priddy | Edwards | Cashore |
| Charbonneau | Jackson | Pement |
| Schreck | Lortie | Smallwood |
| Hagen | Harcourt | Gabelmann |
| Clark | Zirnhelt | Perry |
| Barnes | B. Jones | Copping |
| Hammell | Farnworth | Evans |
| Dosanjh | Garden | Kasper |
| Simpson | Brewin | Janssen |
G. Farrell-Collins: Further to the minister's comments on section 1, as we were debating the definition of "employee," the minister made a very prolonged and eloquent statement that in fact what he was trying to do was not to limit the definition of "employee" but to broaden it and make it more encompassing, and that his intent was not to start to list what determined the parameters of an excluded employee. I'd like to move the following amendment: that section 1 be amended to read as follows: "'employee' means a person employed by an employer, and includes a dependent contractor, but does not include a person who, in the board's opinion, (a) performs the functions of a manager or superintendent, (b) is employed in a confidential capacity in any matters." I hope the minister will support that, because those are his own words.
On the amendment.
J. Tyabji: I'd like to remind the minister that it was only ten minutes ago in this House that we heard him say very specifically that it was not his intention to begin listing any limitations on who would be included in the definition of "employee," because if you start listing it, you could end up with 40 pages of qualifications. To assist the minister with a definition of "employee," in our role as a constructive opposition, we have come forward to help him out and to do the very thing he stated in this House that he absolutely wanted to do, and that was to leave an open-ended enough definition for the board to make the ruling. So I thank the minister for the suggestion. I look forward to all of us standing in unison to vote in favour of the amendment. I hope that he will get up to discuss the amendment and explain to us how he will be voting on it.
Hon. M. Sihota: Never underestimate the capacity of the opposition to suggest that the minister said something that he didn't say.
An Hon. Member: You did say it.
Hon. M. Sihota: No, I didn't say that. I said very clearly that we weren't going to enumerate every provision -- I did say that; I grant you that, hon. member -- in regard to subsection (a). In regard to subsection (b), the answer to your question is no.
G. Farrell-Collins: Never underestimate the capacity of a minister to say one thing and mean another. The reality was that this minister stood in this House not ten minutes ago and called me naive because I -- according to him, who was incorrect at the time -- wanted to list those provisions that excluded a staff member. He said that it was not the intent to list the provisions that made an employee a member of the excluded staff; that that was in fact naive; that we could go on and on but that wasn't what was intended; and that what he wanted to do was make clean, crisp legislation that would allow the Labour Relations Board, which has his complete confidence, to make determination on that. So all we are doing is taking the minister's words and putting them in the form of an
[ Page 4039 ]
amendment to make this legislation more crisp and more precise and to allow the Labour Relations Board to do just what he has spent an hour and a half explaining they are empowered to do.
I would like to call the question, if there are no other members willing to debate this, and see which way the minister votes.
Amendment negatived on the following division:
| YEAS -- 18 | ||
| Tanner | Reid | Wilson |
| Tyabji | Farrell-Collins | Gingell |
| Warnke | Stephens | Hanson |
| Weisgerber | Serwa | De Jong |
| Neufeld | Symons | Anderson |
| Hurd | Dalton | K. Jones |
| NAYS -- 29 |
||
| Petter | Marzari | Boone |
| Priddy | Edwards | Cashore |
| Charbonneau | Jackson | Pement |
| Schreck | Lortie | Smallwood |
| Hagen | Gabelmann | Clark |
| Zirnhelt | Perry | Barnes |
| B. Jones | Copping | Hammell |
| Farnworth | Evans | Dosanjh |
| Garden | Kasper | Simpson |
| Brewin | Janssen | |
[4:30]
The Chair: Before members leave the House, may I take this opportunity to remind you of the rescheduled CPA meeting tonight in the Ned DeBeck lounge.
Hon. G. Clark: The minister has asked me to fill in for him, so I'll take notes in his absence. I'm sure he'll be back shortly. In the meantime, I know the members have a lot of debate and discussion on the definition section, and I know they'd appreciate getting it in Hansard.
G. Wilson: My question is to the minister who, I note, abstained on the last amendment, given that it was in the language that he proposed in the House. We acknowledge that.
With respect to the question of "employee," one of the principal concerns we have as we look at the amendments in the bill and understand the definition of the term "employee," is that it would appear that the intent of the bill is to move much more directly toward the function of the union as the agent, rather than the rights of the employee. I wonder if the minister would comment on that.
It is our contention that the labour bill has to have the protection of three parties as a functional part of it. The three parties that are protected are the management, the union and the employee. With further erosion of the rights of the employee, as spelled out in the act, it moves us more directly toward the protection of the rights of management and the union as the agent, and it eliminates or starts to reduce the individual rights of the unionized worker. Can the minister respond to that?
Hon. M. Sihota: With regard to this provision as it relates to "employee," and in the context in which it exists in the legislation, it does not have the effect that the hon. member refers to.
G. Wilson: Could the minister then elaborate on what the intention of the amendment would be if it is not to direct more directly or more closely the union as the agent, in this instance with respect to exempt workers? If it doesn't erode individual worker rights, then what does that amendment do? What is the functional part of it?
J. Tyabji: We've been asking him that all day.
Hon. M. Sihota: The hon. opposition leader should listen to what his hon. House Leader just said. She said that we've been dealing with that issue all day, and we have been.
The provisions here bring about some changes, in terms of streamlining the legislation. They are not generally seen as expanding the legislated exclusion of employees.
G. Wilson: I have a final question to the minister, recognizing that we have been trying to get a clear answer. Can the minister tell us what he means specifically by "streamlining," in terms of this particular amendment? From our point of view, it clearly erodes individual worker rights.
Hon. M. Sihota: By streamlining, I referred earlier to the provisions of case law in these matters, wherein case law relied on item (a) to develop the guidelines necessary to interpret those provisions. That was all that was necessary.
The Chair: Member for Okanagan-Vernon, did you wish to move the amendment to section 1, of which you've notified the Clerk?
L. Hanson: Under the definitions, there is a definition of "unit." It means "an employee or a group of employees...." The new wording that has been added is "an employee." The definition of that, by the way it is stated, would lead me to believe that an organization with one employee would now be considered an appropriate bargaining unit and would therefore be considered for certification. The old definition left some question to that.
It's my opinion, and the opinion of the caucus, that after "unit," the wording "an employee or" should be deleted as per the amendment that I have tabled before the House. In section 1, by deleting the words "an employee or" from the definition of "unit," it would then read: "'unit' means a group of employees and the expression 'appropriate for collective bargaining...'." I would now make that motion.
On the amendment.
Hon. M. Sihota: I think the Leader of the Opposition would be opposed to this amendment,
[ Page 4040 ]
because it provides more individual rights for the employee. I look forward to his support.
L. Hanson: The minister has very conveniently neglected to admit his understanding of what that actually means. The concern is that a fledgling business just starting off with one employee can be certified as a bargaining unit and in a short time -- in British Columbia's great economic climate -- would hopefully expand and have a considerable number of employees, and the result would be that certification would automatically fall on all of those employees, without any opportunity for them to express their desire or lack of desire to be certified. I think that's an important question. That opportunity should be given.
In the old act, which has been replaced, it says: "'unit means a group of employees, and the expression 'appropriate for collective bargaining' or 'appropriate bargaining unit,' with reference to a unit, means a unit determined by the council to be appropriate for collective bargaining." This addition of "an employee" would, I think, narrow that interpretation considerably and provide scenarios that are not in the best interests of unionization or the employer, until there is truly a recognizable bargaining unit.
Hon. M. Sihota: A number of points in response to what the hon. member had to say. Perhaps I was a bit too facetious in terms of my first comment. But I did seriously mean that it does provide a right that doesn't exist now to an individual. I want to pick up from that point. The first comment I want to make is that I think the House should weigh that in its determination of the amendment that the hon. member has proposed.
Second, what the hon. member says is true: it could have the effect of a single employee making a determination. I don't think that a single employee would make the determination to form a bargaining unit and proceed with certification as lightly as some of those who have been critical of this provision would suggest. I suppose that anybody who wished to engage in certification as a single employee would put their mind to the very things that most individuals put their mind to when considering the pros and cons of certification: the effect on their occupation and on the business; the relationship that they have with their employer; and the future of that company -- and I am sure the hon. member would agree with me that in a province as buoyant and as economically viable as this one, there is tremendous potential. So those types of considerations would cut across the minds of most employees.
It should also be noted that there are situations where single employees wish to engage in certification. There are some organizations that we're familiar with in which there is only one employee in the relevant bargaining unit. In the old Bill 19 -- I guess the current Bill 19 -- having their requirement for approval multiple employer bargaining units and existing definition of "bargaining unit" as more than one employee would mean that those employees were denied collective bargaining. We don't think that they should be denied that right; hence the provision that's here. I don't think those comments catch the hon. member off guard. I think that they're to be expected in terms of what I have to say.
I think it should be noted that these are not unusual provisions. They exist elsewhere in the country, so we're not moving into uncharted waters in that regard. They do exist elsewhere in the country, and that experience is within the contemplation of the panel that made the recommendation.
Finally, the recommendation was a unanimous one.
For the six reasons that I've enumerated, we will not agree to the amendment. That's not to say that I overlooked the point that you made at the beginning. I accept the fact that it does open the door for an individual employee to make that determination, but I would hope, on balance, that you don't overlook the point I have made: that the employee still has to struggle with making the decision -- and the right one, at that.
G. Wilson: To the minister. Let's be very clear about this. Virtually any individual, then.... And let's not confuse individual rights to organize and join a collective bargaining unit with the rights of those individuals once they're in a unit to be protected in the law with respect to this question of unit now. Those are two quite distinctly different issues.
Any individual employee, then -- presuming that they can get 55 percent of themselves together -- can essentially form themselves into this unit. Is that what the minister is saying is intended by this legislation?
Hon. M. Sihota: The hon. member doesn't seem to understand that there are bargaining units. If you have one employee who is part of a bargaining unit wanting to somehow engage in certification on their own, it is always open to the employer to make representation to the Labour Relations Board with regard to the bargaining unit and to put arguments in front of the board with regard to inclusion, exclusion and size of the bargaining unit. That's not being denied in any way.
The kind of scenario that the hon. member refers to is one that may or may not occur, depending on the circumstances as they relate to the bargaining unit.
G. Wilson: The minister was not specific, and I think it's important for the record to show exactly what is intended with respect to the unit as an employee. It's important for the minister to be on record now to tell this House and, through this House, the people of British Columbia who are going to be affected by this bill. Does that mean that any individual working in a workplace can, through the new certification process, move toward status as a unit, and can there then be multiple units of individuals within any one workplace, as defined by this Bill 84?
[4:45]
Hon. M. Sihota: No. Your argument is not correct, particularly as it relates to multiple bargaining units. There is still power in the Labour Relations Board to make determination as to what would be the appropriate bargaining unit, hon. member.
[ Page 4041 ]
G. Wilson: So the minister is saying that it's going to be the board that would have to intercede in the question of the workplace, to recognize that where you may have one or more individuals who wish to be seen as units, it would be inappropriate in the workplace? If that's so, can the minister comment on what happens if we are entering into a question on sectoral bargaining? I understand that he says we're not, but how does that protect those areas where there are one or two employees on a 55 percent sign-up if each of those employees, as individuals, can be a unit on a sectoral basis?
Hon. M. Sihota: Thank you for that question, hon. member. I want to amplify on the answer. First of all, I know that we're dealing with section 1, but I would ask the hon. member to be mindful of what's contained in section 22. That gives the board powers with regard to determining the appropriate bargaining unit, and we should be mindful of that during the course of this discussion. We'll get to that section in the next half hour or so, I'm sure -- and failing that, in the next month or so. In any event, hon. member, you can ask that question again as it relates to section 22 somewhere in that time period.
The other point I would make is that I think you're somewhat confused when you talk about sectoral certification. As I understood your question, you can't move through a sector individual by individual and then end up indirectly achieving sectoral certification. The only way in which you can effectively achieve sectoral certification is through the general certification process, which may have the effect, over time, of resulting in collective bargaining regimes being established in a particular sector. Because we made a decision not to proceed with sectoral certification, it would require a union, for example, to organize individual bargaining units -- not of single employees but in the multiple sense -- in, say, banks or the retail sector.
Third, you have to remember what I said earlier about the capacity for individuals to be organized. It is true, as I said in response to the member for Okanagan-Vernon, that there are scenarios in which an individual unit can be created. Indeed, there are cases where an individual has applied in the past but has been denied, given the existing provisions. That doesn't mean, by any stretch of the imagination, that you will end up having sectoral certification because of that. We've severed the matter of sectoral certification from this legislation. I purposely do not use the words "at this time," which the opposition critic, for some reason, seized on so....
Interjections.
Hon. M. Sihota: No. I just said that the way you interpreted those was incorrect. We're making it very clear that we've removed that provision from this legislation, period. So you could achieve indirect sectoral certification by going through an individual.
In sum, you have to remember that the Labour Relations Board has the ability to take a look at bargaining units. An employer would make representations prior to certification with respect to the appropriateness of a bargaining unit -- as an employer should and as the Labour Relations Board must. Based on that, determinations are made as to whether or not it is appropriate to have a single employee certification. With that background the hon. member should have a better understanding of what's being proposed here.
G. Wilson: I appreciate the minister's answer. Let me come at this from a different angle. Is it the minister's understanding that under this definition, notwithstanding section 22, which I see refers specifically to the question of the unit and in which the unit is defined as "an employee"? Is it the minister's interpretation that, in the workplace where an employee is performing a job function which is under union contract in an associated workplace or related area, notwithstanding that that individual may be one of a series of employees who by that job function may make application to be in the same certification as companion employees in another industry where they are unionized, it would be likely with this wording that one employee, in a workplace of many others, would be eligible by job function to become unionized, and therefore you would have a union of one member?
Hon. M. Sihota: In response to the hon. Leader of the Opposition, it's very hard to deal with a situation on a speculative basis. One would have to take a look at a particular situation. The Labour Relations Board would do precisely that. It is up to employers through their representations and the Labour Relations Board through its powers to determine the scope of the bargaining unit. It seems to me unlikely that you're going to have an enterprise where there are 50 different employees engaged in individual collective bargaining as individual bargaining units, because obviously the Labour Relations Board is going to be looking at job functions as determining the scope of the bargaining unit.
G. Wilson: I recognize that there is scope for the Labour Relations Board, but I recognize also that they are going to be governed by the act and then presumably that they are going to look at the definition of the act and they are going to make a determination that we have changed, and deliberately so, the language of the existing legislation to include the unit as meaning an employee, which I would assume gives some determination that we're changing the manner by which we're going to define that term. So I think it's a little bit specious for the minister to suggest that that isn't a likelihood when the act has been specifically amended to include that likelihood.
I'll come back to try and clarify my question, because I think it's an important one. If, for example, there is in a particular workplace an electrician whose companion electricians performing similar or the same job functions in related industries are unionized, is it not likely that one individual, notwithstanding that they may be one of 50 other employees, can in fact apply for and get unit status within that employment by virtue of the fact that the job function within the
[ Page 4042 ]
marketplace is being performed by union employees? If that's so, then it would appear that one could certify by job classification or job function in a unit of one, where you may in fact have four or five unions operating within any particular business or industry which are all units of one, by virtue of the fact that they would argue -- and, I would think, effectively -- that they have companion workers performing the same job function under union contract, and that Bill 84 would allow them to be a unit as an employee. Is that not a logical consequence of this act?
Hon. M. Sihota: No, not necessarily. What the hon. member forgets -- and I hate to repeat myself -- is that the Labour Relations Board will take a look at the nature and the scope of the functions. Based on that, they may well come to the conclusion -- and I'm sure an employer would be vigorous in their representation about this -- that one person working among 50 may not be able, as an individual, to engage in collective bargaining by certifying themselves to the exclusion of the other 49. They may come to the conclusion that the entire 49, based on job function -- albeit that one person may have a totally different job function than everybody else -- ought to be a bargaining unit.
If the hon. member is asking whether this allows a single employee to seek certification as a bargaining unit, the answer clearly is yes. The legislation provides an opportunity in cases where an individual employee would appropriately form an individual bargaining unit -- remember, they have to go through quite a test to get there, or the scope of the operation has to be fairly narrow. It gives that opportunity, which hitherto was denied to that individual; that's all the legislation does. It provides an opportunity that does not exist under Bill 19.
G. Wilson: A final question on this to the minister. Presumably we're going to have an opportunity -- I'm sure we will -- to look at the other critical words with respect to the amendment we're discussing now which are appropriate for collective bargaining and the appropriate bargaining unit, as in section 22. I think the minister is asking for a pretty enormous leap of faith here for us to believe that those who might seek to expand union representation.... Not that there's necessarily anything particularly wrong with that, but I think it's important that we understand what we're doing here. We are going to provide for an assortment of individuals, who may in fact have colleagues in the industry who are unionized, to very quickly and very easily become unionized in the workplace, because of the provision of 55 percent. Obviously, unless the person is schizophrenic, they're going to say yes, and that's it; they've got the requirement.
Secondly, the board is going to have a very difficult time arguing, given the language in Bill 84, why, if a unit means an employee, that employee is not an appropriate bargaining unit.
It would seem to me that what you've opened the door for is a whole series of individual-unit bargaining agents in the province. If that's not so -- I see the minister shaking his head -- then can the minister explain why we would want to have "unit" in there as an employee, given that in most instances...? I don't know of very many instances where you find a unit employee existing in the province today.
[5:00]
Hon. M. Sihota: Hon. member, under the existing legislation, two employees can seek certification as a bargaining unit. All we're doing is changing it from two employees to one; that's all this amendment does.
G. Farrell-Collins: I would like to continue with this section and the definition of "bargaining unit." The minister stated, on the example the Leader of the Opposition gave of a unit, or of a group of 30 or 40 employees, working on a site or at a corporation, and one of those persons happening to be an electrician.... It's a good example, I think. It's a very specific trade that requires specific training and is very different from the others. In fact, electricians tend to organize under their own union, so that's certainly a legitimate question.
In going through the section, if the minister would care to look at the third-from-last line, it actually says "craft unit." I would assume that "craft unit" refers to an electrician, and that one electrician in a group of 30 employees could certify himself. Then perhaps a carpenter on a job site could certify himself or herself, and another employee could do much the same. A plumber could certify herself or himself also. By doing it one by one in each individual bargaining unit of one, you have managed to skirt the whole process.
Hon. M. Sihota: The hon. member doesn't seem to understand that if you currently have one electrician on a site, under the craft union provisions that one electrician could be certified as a member of a union. It's not unlikely. It's certainly not unusual -- in fact, one could argue that it's common -- to have one electrician on a site unionized, albeit as a larger bargaining unit. But through the craft provisions, you could have exactly that situation: at a 50-employee worksite, where one is an electrician, he could currently be unionized. To drive the point home, if there were two of them, they could certainly unionize.
I don't understand the hon. member, who sees all sorts of threats in this provision. What's the difference -- two or one? Is it that material to the structure of certification? If an individual employee wishes to proceed with certification, why deny that individual the right to seek that opportunity?
G. Wilson: To come back to that, when the minister asks "what's the difference," to begin with, it's a 100 percent difference -- going from two to one is 100 percent. Under this provision, both of them need to agree, as opposed to only one of them. You put the Labour Relations Board into an interesting position, because this says that an individual employee can become a unit. Given that the bill is fairly specific, I again ask the minister how he envisages the Labour Relations Board ruling on the appropriateness of the bargaining unit under application by an individual if precedent is set that one electrician.... We're using that
[ Page 4043 ]
example. It's not that there's anything wrong with unionized electricians. We're not putting any values on this discussion; we're trying to understand the bill. If you have one member who is a bargaining unit, then how would the Labour Relations Board essentially determine the appropriateness of a bargaining unit in a second application, given that a second individual wishes to apply? How does the minister see that if they don't see electricians as part of a larger bargaining unit that may be working on site?
Hon. M. Sihota: As they often do, they would take a look at the larger unit of employees who are working there -- and I don't mean the unit in the defined sense; I mean it in the generic sense -- and they would make a decision as to who should be excluded or included.
G. Farrell-Collins: The minister has given us some examples. He says that presently two employees can become certified, so why not one. We're not asking the question of whether you can have one single electrician working for you and that person can or cannot be unionized; the question isn't whether the person presently carries a card or not. The question is whether that person can seek to certify while they're employed by that employer. That's where we're trying to find out some answers from the minister, not whether they carry a card in their pocket already. When the process comes along, and the Labour Relations Board has to determine the appropriateness of that bargaining unit. I don't think that's an irrelevant question.
We're certainly not looking for all sorts of hidden agendas, nor are we saying there are some threats out there. The minister seems to feel there are threats out there. We're asking the minister to comment on his bill and to define what the implications of it are going to be -- good or bad. Asking questions, with due respect to the minister, is exactly what we should be doing. And answering them is exactly what he should be doing, without any worry of threats or ulterior motives.
Maybe the minister can make it easier on everyone by giving us some examples of what his intent was in changing the bargaining unit to one person, as it relates to the certification process. What was his intent? Perhaps he can give us some examples of scenarios where this is an improvement on what we presently have.
Hon. M. Sihota: The intent is very clear with regard to this section. It allows one individual to make an application to be deemed as a bargaining unit, so you can have an application brought forward by one. For example, take the case of one employee in an office: that individual can make an application.
Interjection.
Hon. M. Sihota: The Leader of the Opposition asks: "What about a bank teller?" It would seem to me that if you have a number of bank tellers at one site, the board would then have to make a determination as to whether that one can individually certify -- as they tried to do in Powell River -- or whether they should be part of a larger bargaining unit. I think it's self-evident -- at least to me -- how a board would deal with those kinds of situations where a number of people are performing the same function.
To use the Leader of the Opposition as another example: if he was a college instructor and was the only college instructor, then he would have the right, which he does not currently have, to seek certification as a bargaining unit.
G. Farrell-Collins: I'd like to give the minister another example of an area where there may be concerns. If the minister has met with the B.C. Federation of Agriculture, he would know that they also have some concerns relating to Bill 84. That's where the cyclical and seasonal nature of the industry causes some concern to the individual farmer as it relates to Bill 84 and certainly as it relates to the bargaining unit. If the farmer, in the middle of winter when things slow down, goes down to one employee -- maybe it's a son or a daughter, but maybe it's not; maybe it's a hired hand to help with milking the cows, feeding livestock or whatever.... According to this legislation, which I assume, because there are no exclusions, applies to agriculture, are we to assume that that one employee could apply for certification under the agriculture workers' union and would receive that certification?
Hon. M. Sihota: Currently in that situation, as the operation winds down -- to use your scenario -- if there were two employees, they could do that. Now if there's one, the individual could bring forward that application. I see nothing wrong with giving an individual the right to join a trade union if they wish to do so.
G. Farrell-Collins: The question to the minister is.... I specifically used agriculture because I wanted him to examine the cyclical and seasonal nature of that industry. You may wind down to one employee during the winter months and during harvest go up to 200 employees. Does that mean that when you have to hire 200 people to harvest your crop, all of those 200 people would now automatically, if they wanted to work for that farmer, have to become certified in the same bargaining unit with the same union that that one person chose of their own accord in mid-December? Is that the direction the minister is heading?
Hon. M. Sihota: A number of points to the hon. member with regard to the section. First of all, if the operation went from, say, two to 200, those 200, when they show up, could also make an application to decertify. That's the first point.
The second point is that I'm sure the hon. member is unaware of the buildup principle that's often looked at by the panel in making these determinations. They can take into account the very point the hon. member makes in making a determination or a finding with regard to a bargaining unit.
[ Page 4044 ]
G. Farrell-Collins: With reference to the buildup, I certainly am well informed on that issue. Perhaps the minister can clarify: is it his intent, then, that this bill be interpreted -- the definition of "employee" and certainly the definition of the bargaining unit, in this case, as an organization.... A farmer builds up for the harvest and starts hiring employees. In his opinion, could those members -- because they're seasonal, itinerant employees, are there only for a short time and then move on to another farmer -- be seen as a different bargaining unit than perhaps the one, two, three or four employees who stay there year-round? Would there be a distinction in his mind between those two types of employees, and therefore would the seasonal employees be excluded from necessarily belonging automatically to the union that was certified during the downtime?
Hon. M. Sihota: Nothing in this section makes changes to the buildup principle, hon. member. The only change here is that the triggering mechanism is now one person instead of two. That's all.
G. Farrell-Collins: It is a significant difference. It's a difference of 100 percent, and that's why we're asking the minister some of these questions. I'm asking these questions because members of the B.C. Federation of Agriculture want answers to them. The minister stands there smugly and pours his derision over members opposite merely because they're asking questions on behalf of the public. Perhaps instead of looking at me when he's answering the questions, he should visualize the farmers of B.C. and imagine himself answering them. Maybe he would respond differently.
The worry these farmers have is that they can now.... The minister is making it easier yet for certification to take place. With the buildup provisions, there may be or may not be interpretations, depending on the Labour Relations Board, or depending on whether they change their minds on what a bargaining unit or an employee is. There are going to be significant changes.
The minister takes each of these sections in absolute isolation and tries to give us an explanation of them, but he doesn't look at what the overall effect of his bill is going to be and how those specific sections relate to the rest of the bill. The farmers who have come and talked to our caucus have said that they are concerned that the certification may take place with one person -- one perhaps one disgruntled employee. Maybe two is not enough. The minister says two. Maybe it should be five or six; I don't know. That's what we're doing here. Just because it's the same as it was before, because it goes from two to one, doesn't mean it's necessarily right. The minister might have some blinders on and might have some frame of mind with which he's framing this legislation. I don't. I have a much more open view, and we're trying to determine whether this piece of legislation has an appropriate definition of "bargaining unit." Maybe we would like to bring in an amendment sometime to say that it should be five or six.
[5:15]
The reason we're asking these questions is to try to get that intent from the minister. So for him to look at only two options -- it's either two members or one member -- is simply very narrow and erroneous. The question that the farmers are asking is: what happens if that one disgruntled employee...? It may or may not be for legitimate reasons -- who knows? We don't know what the reason behind that person seeking certification would be. Maybe they're being mistreated or aren't being dealt with fairly. Maybe they're just upset. They could seek certification and become certified. That certification would spread through the organization as they started to build up, and then when those certified members, as new certified members, transferred to another organization, they would take with them their union card. And we already know what the provisions are: 55 percent gives automatic certification, according to this bill. There is a repercussion that moves throughout the farming industry that may have pronounced effects. So I think it is appropriate for us to try and solicit from the minister what his intent is. I'd ask him to comment on that scenario.
Hon. M. Sihota: The hon. member need not apologize for asking the question, but he ought to listen to the answer and consider the public policy determinations upon which these changes are made. I've answered him much as I would answer the farmers: currently two could do it; now one could make the application. And the hon. member sees that as a material difference. I suggest to the hon. member that when he considers the principles that I talked about earlier, it may not be as material as he is suggesting.
The point here is that the Liberal opposition has for weeks now in this Legislature talked over and over about individual rights. They have said that individuals should have rights and that somehow the rights of individuals are being denied in this legislation. What we're doing with this change is giving one single individual the right that the Liberal opposition says they should have: we're recognizing that individuals have a right to make a determination as to whether or not they wish to engage in collective bargaining. They may make that decision; they may not make the decision. Currently it's two, but in recognition of representations that have been made, it is now one. That's all that's happened here. It will still be up to the individual worker to make that determination.
[E. Barnes in the chair.]
The hon. member knows as well as I do the difficulty which trade unions have had in organizing the agricultural sector. Trade unions have to present themselves as being relevant to the interests and the concerns of workers. If they are, then they would succeed in securing representation, be it small or big; be it one individual within one unit, two individuals within one unit or 500 individuals within one unit. So there's a challenge here for trade unions. There's a responsibility here on an individual, and there are rights that are being afforded to that individual. And yes, it means that potentially one person can form a single bargaining unit and secure certification, hon. member.
[ Page 4045 ]
L. Stephens: Just for clarification, we talked a little bit about agricultural workers and a hired man in a situation where he may want to become certified. Could that also extend to a small business person with one employee, say a retail business person? If that person would like to be certified, is that possible? Would a corner grocery store with one stock person qualify as a single-person bargaining unit? If it would, I would like the minister to define whether or not the employees in it are employed by one or more employers. What is meant by "employed by one or more employers"?
Hon. M. Sihota: If you have a single employee within a shop, yes, in that kind of situation an individual employee could seek to certify. If there are a number of employees in a retail shop -- let's say three -- one of whom happens to be a stock person and two others are engaged in other enterprises, the Labour Relations Board would have to determine whether it would be appropriate for that person to be in a single bargaining unit or whether there should be one bargaining unit for all three employees. That is not, as I said earlier, materially different from the current situation. If there were two employees, they could make the application. If you have a stock person and a salesperson, they could decide today among themselves that they wish to organize.
The last question, as I understood it, dealt with whether or not the employees are employed by one or more employers.
Interjection.
Hon. M. Sihota: Maybe you could just rephrase the question. Were you asking what that meant? Let me just read it for a second.
Yes, hon. member, that could mean that.... What it does mean is that a board has the ability to take a look at a situation and make a determination, in a case where one is employed by more than one employer, as to whether or not it would be appropriate to include that employee as an individual unit among those employers. Off the top of my head, I can't think of an example, but in theory I guess you would be right. I'll check with staff on that, but that's my understanding. The provision is clearly sort of a leftover from the multi-employer provisions which used to exist. You do make a good point in that regard, because it's sort of a hangover from that type of unit certification.
L. Stephens: My questions are just to the single-person bargaining unit; having two or three or however many people involved isn't the question. I want to really focus on this single person. So I ask again whether or not a single employee of an independent retailer, for instance, or of an independent corner grocer who has one employee, would constitute a one-person bargaining unit and could apply for certification? If so, would their bargaining unit be related to Safeway, for instance, or some kind of grocers' master agreement?
Hon. M. Sihota: I have a number of points concerning the hon. member's questions. With regards to one or more employers, I'll give you an example, which is certainly common to my experience. Quite often you will get a pool of lawyers who will rent office space and then hire one receptionist -- the only employee. That would cover that kind of situation.
Secondly, with regard to an independent employee in a one-person shop, currently you would require two to secure certification. Under this change you would need only one. That is really in furtherance of what the Liberal opposition has been arguing right from the beginning: the individual right of an employee. It's not inconsistent with what your caucus has been arguing to date.
Third, with regard to whether or not they would be automatically tied to, let's say, a Safeway contract.... Let's say Pam's Bakery has two employees who decide to certify. Would they be governed by Safeway's bakery agreement, to use that example? The answer to that question is no. We chose not to proceed with sectoral certification, which carried that potential with it. We left it so that those employees would have to negotiate with their employer -- i.e., Pam's Bakery, and not Safeway.
G. Farrell-Collins: I'll use some comments the minister just made to the member for Langley on the appropriateness of a bargaining unit. If we look at the provisions in the two amendments -- one he defeated and one he abstained on -- we see that we have in the agricultural sector.... Even in the case of many small businesses you'll have one person who is listed as the legal owner of the firm, but there may be three, four, five or six family members who work for that company. Let's say five members of the family are working in that corner store or laundromat or farm...
C. Tanner: Or bookstore.
G. Farrell-Collins: ...or bookstore, as the member for Saanich North and the Islands says. If they hired one person to come in and work in that organization, would that person be the bargaining unit, or would they have to include the family members, even though they may or may not be included in some of the labour relations and personnel provisions, as we discussed earlier, as far as "employee" goes?
Hon. M. Sihota: The board would clearly look at all the employees, including the family members. Don't hide behind the sham that, "I'm just asking the questions." I've read some of the comments and I've heard some of the things that have been said in order to somehow strike fear into the hearts of every corner grocery store operator, fear that hiring someone who is non-related means there's going to be certification. That overlooks the realities. The reality is that the board looks into the appropriateness of the bargaining unit and takes a look at what that individual does in relation to everybody else. That kind of extremism that I've heard is unfounded in my view.
I'm sure the hon. member will plead innocence and suggest that he hasn't engaged in that. I'll accept that at this point, but to make the point for those who have -- and they have been -- they should take some comfort in the comment that I've made.
The Labour Relations Board will take a look at the bargaining unit and all of the employees, consider
[ Page 4046 ]
carefully how the employee who makes an individual application fits in with the other occupations and then make a determination. You have to decide. It's a very simple question. Should an individual have this right or not? I've heard your caucus say repeatedly that individuals should have rights. We're providing an individual with the right to make a determination as to whether or not they wish to become a bargaining unit. We are balancing that right, because all rights are balanced, against the obligations of the Labour Relations Board with regard to bargaining units. That's what is happening here with regard to this provision. Far be it from me to suggest that the hon. member is engaged in some type of political fear tactic, but for those who fear these changes, they should consider what I've just said. We're just providing an individual with a right. If you don't think that an individual should have the right to determine whether or not to be part of a bargaining unit, then you obviously differ from me.
G. Farrell-Collins: The minister has certainly been in this House long enough to know that he should address his comments through the Chair and not directly across the floor. I assume that's why he finds himself in so much trouble at times.
The Chair: Order, hon. member. To the amendment, hon. member.
G. Farrell-Collins: Hon. Chair, the minister made numerous comments to me saying that in his opinion I may or may not have been involved in fearmongering or scare tactics. I can assure him that that is as far as possible from the intent of these questions. People are asking these questions in written form or over the telephone, and I think it's the duty of this Legislature to ask those questions of the minister. I have no problem with the minister's response when he's on the substance. When he gets off track and starts to play silly games, I start to have problems with it.
I certainly have no problem with individual rights, nor does any other member of the Liberal caucus. When we're dealing with the appropriateness of a bargaining unit and the collective bargaining process in conjunction with the changes he has made to the definition of "employee" and the effect that will have throughout this bill, it's incumbent on the opposition to ask those questions. In fact, if we didn't, the minister would be asking us why we hadn't.
D. Schreck: On a point of order. The rules of debate in committee stage restrict the nature of the debate, and a lecture on what motivates the opposition to do whatever they are doing is clearly out of order. The debate should be confined to the definitions in the clause we are in.
The Chair: Thank you, hon. member; your point is well taken.
[5:30]
G. Farrell-Collins: We just had the minister go on a two-minute diatribe against the official opposition for their motives. I was merely responding to our impugned motives. I could have raised a point of order, but I didn't.
L. Stephens: I would like to reassure the minister that the Liberal Party and this Liberal caucus does indeed value individual rights and the desires of an individual to become a bargaining unit, if that is their wish.
What I am struggling with is understanding why a single-person bargaining unit has been included, aside from the opportunity of that individual to become a bargaining unit if they so wish. I would like the minister to perhaps tell me what would be an instance of a single person caring to form a bargaining unit -- again, a single person; not one who is part of a two-, three-or four-member work unit, but one single individual working for a particular....
E. Conroy: Let's take a Liberal constituency assistant.
L. Stephens: Let's take something like that then -- or any of the constituency assistants. Would the minister please explain a particular circumstance or scenario where that may be what would happen?
Hon. M. Sihota: Given what the hon. member had to say about the support of the Liberal Party for individual rights, I would assume that they will be voting against this amendment introduced by the member for Okanagan-Vernon and supporting our initiative to protect the right of an individual to join a bargaining unit and seek certification. I look forward to the support of the Liberal Party in protecting the rights of individuals in this regard.
With regard to the question, let me just give you a real-life example: the B.C. Teachers' Federation has an employee who is the only employee of the relevant bargaining unit. They wished to make an application as an individual under the Industrial Relations Act to seek the right to engage in collective bargaining and could not because they were a single employee. That's a real-life example that we're aware of.
L. Hanson: It's interesting to hear the minister speak about the protection of individual rights. I just know his attitude is going to be very protective of those rights as we get to other sections of the bill that, by some strange reason, I am of the opinion take away those individual rights. But so be it; that really makes for interesting debate.
The report of the three wise men that the minister referred to really didn't deal with the issue of the change in wording. I also question the minister as to whether certification of two employees was possible in the past. As I remember the wording, it said "group." By definition I guess that means two or more. By the same token, I would like to ask the minister: in how many cases has there been application for two-employee bargaining units as the only employees of an employer? How many certifications have followed? If he could answer that for me, then perhaps he could give me some insight into why there was a need to change the wording to be very specific to one. I'll accept his explanation of the individual rights, but I hope that he
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will live by that philosophy later when we get on to some other clauses in the bill.
The Chair: Shall the amendment pass? On the amendment, the minister.
Hon. M. Sihota: I certainly wouldn't want that amendment passed. I certainly wouldn't want the hon. member to think that I was doing anything but commenting on the Liberal Party's defence of individual rights and comparing it to this section.
It is true that there are times when individual rights must be protected. As the hon. member knows, and as he can obviously predict as we get into that debate, there are other times when public policy determination is biased toward collective rights. He's right. We will get into that debate later on.
With regard to the number of situations, I don't have those numbers. If it's really important to the hon. member, we'll try to get it; and if you've got it over there, then you can say so.
On that point, let me also say that the panel obviously looked into this issue. They obviously spent some time looking at this issue. They felt there were compelling reasons to proceed with the change, and we accept that on the basis of their analysis of the issue.
L. Hanson: I didn't hear any sort of background, reasoning or where the request to change the wording came from. I have to admit that the Industrial Relations Council, and the Labour Relations Board before it, very appropriately.... I can think of no cases where it was used without the greatest of discretion and common sense or where the appropriateness of a bargaining unit was not carefully scrutinized. In by far the majority of the cases the decision to certify a group of employees as a bargaining unit was fair, reasonable and understandable. But with that context in mind, the minister still hasn't said where the drive has come from to change this wording from a group of employees to a single employee. The change is very specific. I would like to have the minister's opinion. I know that some time ago we debated and exchanged opinions. I'd like to have this minister's opinion, though, of the attitudinal change it would generate in the Labour Relations Board when it is dealing with certification, because it's very clearly a change and very clearly a specific change. There has to be some reason for it, and I'd like to understand that. How did the report come up with it? What was the background?
Hon. M. Sihota: The reason for it, as best as I can determine, was that....
Interjection.
Hon. M. Sihota: Hon. members, I just lay it out and say it as it is. The situation is that there was no compelling reason not to provide an individual with the ability to seek certification. Quite frankly, despite comments from the Liberal opposition, I don't think that that material will be changed to say, "Okay, well, two had the chance before; one can have the chance now." But obviously there are situations where individual employees wish to have that right and clearly should have that right. It ought not to be denied by virtue of the fact that they are the sole employee. Take the case, say, of a receptionist, working with four different law firms.
In terms of the attitudinal change at the Labour Relations Board, there's nothing here in this legislation that asks them to apply any different considerations with respect to appropriateness of the bargaining unit. In many ways there's some reinforcing of their ability to determine what would be an appropriate bargaining unit. So there's no attitudinal change with regard to the board that's triggered by this legislation, nor is one anticipated by this change. It certainly gives the board the appropriate authority to look at the appropriate bargaining unit.
L. Hanson: We may quote the words later that the minister just gave us about individual rights.
In response to a question from one of the other members of the opposition, he suggested that in the case of the certification of an employee or two employees in a bakery, the contract that was in place in similar circumstances would not necessarily be applied. I know we're getting off of this amendment a little, but I'm trying to make some relationship to that. With the new responsibilities of the Labour Relations Board and its ability to impose a first contract -- and the minister assured us that it would not be the application of another contract -- isn't it likely to be that a contract were applied as opposed to negotiated?
Hon. M. Sihota: I would not underestimate, as the hon. member seems to have done, the ability of an employer to make representations to the Labour Relations Board during a first contract situation with regard to the unique situation they find themselves in and enhance the requirement for a tailor-made first agreement. There's no doubt that they will take a look at other agreements. As inevitably is the case, people look at precedents. But at the same time, that's tempered by the individual situation vis-�-vis that employer and employee. I think you underestimate the impact an employer has during the course of that kind of situation on the collective bargaining process.
L. Hanson: I'm really pleased to hear that the employer is going to have some influence. As I read other sections of the bill, I hope that some of them don't mean what I think they mean, because a number of them seriously impair the ability of the employer to state his case. When these occasions arise and the hearings are before the Labour Relations Board, we may have to hearken back to your quotes of today in order to make sure that the employer gets a fair hearing.
V. Anderson: To understand the amendment, I need to understand the implication. It seems to me, if I understand correctly, that if a person is certified either as an individual or as a group, they would then be classified as a trade union. Am I correct? If I'm correct in that, once they're certified as a group or as an individual, they would be a trade union. I see the minister nodding, so that's probably correct.
[5:45]
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If so, then I refer to the previous section that defines "trade union" as "association of employees" -- in the plural -- and not as an association of an employee or employees. It seems to me, if the assumption is correct that a unit becomes a trade union when certified, that one or another of these two sections needs to be amended.
Hon. M. Sihota: Being certified doesn't make you a trade union, hon. member; it means that you're certified for bargaining purposes. For example, you may wish to be a local of the Office and Technical Employees' Union. By itself that just gives you the right to engage in collective bargaining.
I didn't hear the comments you made with respect to associations. If you will repeat them, I'll try to answer those as well.
V. Anderson: I'm trying to work out the distinction between a unit.... What is the distinction between a unit once certified and a union of employees? Once you're certified, what is the other step you have to go through to become a recognized union as a local or an independent union of persons without associating with a provincial or a national union? It seems to me you could be an independent. What's the distinction, first of all, between a "unit certified" and a "union"? A union means "association"; how does that relate to his "association of employees"?
Hon. M. Sihota: I apologize to the hon. member. I have been engaged in some conversation while he was asking a question, so if it's not dealt with, I'm sure he'll ask the question again.
As I understand it, you are asking a question with respect to a "unit" which allows for individuals, and then you'd go to the definition of "trade union," which refers to "employees" as opposed to "employee." Let me address it this way. An individual can become certified as a bargaining unit. It does not make them a trade union. If they decided to become a local of one individual of, let's say, the OTEU, then there's no difficulty here, because they would be an association of employees under this definition.
I guess you make a good point. If there was one individual who secured certification and then established their own by-laws and their own constitution to create their own trade union, which is hard to imagine.... To use Pam's Bakery, if it was Pam's Bakery or the union of Pam's Bakery employee, I guess in theory they would not be a trade union under the definition of this section until they associated with a second group. That doesn't mean that they can't negotiate in bargaining.
J. Weisgerber: I'd like to follow up on a question asked by the member for Okanagan-Vernon, the Socred Labour critic. With respect to the presentations to the committee that led up to the change in the act to allow one individual to certify, could you tell me whether the overwhelming number of presentations to the committee came from individuals who were single employees in a company, or whether it was an overwhelming number of employers having one employee who wanted to see these changes, or perhaps a combination of those two, or was it a fact that the only submissions made in respect to this section were made by trade union representatives?
Hon. M. Sihota: The answer to your question is no. It was not just trade unions that made that request. As the hon. member may be aware, a lot of individuals came; but also a lot of women's groups made representations to the panel, making the case for expansion of certification rights. So it would be wrong on your part to assume that it was just from trade unions.
I don't know if this is the case, but.... Using the women's group situation, which I know is indeed the case, in terms of my own experience, I've had representations from transition house facilities, where there's only one person working in a transition house, inquiring about the ability to join a union. Admittedly that hasn't happened over the course of the last year, but certainly prior to that I received representations -- and I use that word in the plural advisedly. I certainly received those types of representation from that element of society, and I'm told that women's groups did appear in front of the panel to ask for an expansion of certification rights.
J. Weisgerber: To the best of my knowledge, the presentations that were made to the committee have not yet been made public. I wonder if the minister would be good enough, if he's not prepared immediately to table those documents, to ask his staff perhaps to sift through them and to table those documents pertaining to requests from individuals or trade unions for this change. I would be interested in having an opportunity to examine those.
Hon. M. Sihota: The hon. member has been busy and has not had the opportunity to go there, but if he were to go the Ministry of Labour library -- if I may give a plug -- just down the road here in Victoria, right across the street from the Keg restaurant, he would find the submissions there; and if he went to the Burnaby office of the employment standards branch, he would find all the submissions there as well.
J. Weisgerber: I hope that those folks will be accommodating enough to provide us with some examples of those questions. You can be assured that we will be requesting them.
I'd like to pursue the question in a different vein. Can the minister tell me if the clause that would allow an individual to apply for certification would apply to a dependent contractor if the company were not organized and if there were only one dependent contractor? Would this section then permit the single dependent contractor to obtain certification?
Hon. M. Sihota: Yes.
J. Weisgerber: Perhaps, then, it was that particular issue that drove this section of the bill. Perhaps there were submissions from a number of dependent contractors to the committee asking for this change.
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Hon. M. Sihota: I could not really say that that was the case. I see where the hon. member is coming from, and it is true. There are obviously elements of society which felt that we had to make the changes with respect to dependent contractors, and we have. I guess we'll get into that portion of the debate, but I can't really say that's where the push -- to use your word -- came from.
H. De Jong: The minister talked about individual rights a couple of minutes ago, and there were some questions asked in regard to farming situations. There are many cases throughout British Columbia, I'm sure, where the farmer is self-employed along with one farmworker. In a case where there was some dispute -- although I believe that generally farmworkers get along quite well with their bosses -- how would the Labour Relations Board view such a situation, where the farmer was also self-employed, perhaps not necessarily getting a paycheque but living off the revenues of the farm in general? He couldn't perhaps prove a paycheque as such, but he is living off that farm.
Hon. M. Sihota: It's a pleasure to engage in debate with the hon. member, who does a good job raising agricultural issues in this House.
Let me say this: I'm not sure why a single employer on a farm would make an application to be certified. I take it that that's not what the hon. member was referring to. If you're referring to a situation where there is a farm with a single farmhand, it is true that under this provision he could make an application for certification.
The hon. member was not in the House earlier when we discussed the farming situation. I wish to remind the hon. member that if the concern is that the number of employees would whittle down during the slower part of the season and expand later on, he should be mindful of a number of factors. The first is that the Labour Relations Board could take a look at the build-up principle and make accommodations to say that they would not accept a single certification in those situations. They have that liberty, and they would do that analysis on the nature of the bargaining unit. They would look at that whole situation before making a determination. I don't know if that attends to the question the hon. member was interested in.
H. De Jong: I gather from the minister's answer that he hasn't said specifically that the individual right of that farmer, being an employer as well as an employee, would perhaps prevail. I'm just trying to find some ground as to where individual rights are maintained. In the situation that I described earlier -- the farmer not being in concert with his employee in forming a union -- would the individual rights of that farmer be maintained as an employee as well as an employer? Suppose that farmworker went to one of the neighbours who had two employees, and they tried to form a union collectively. Would the farmer's rights that I spoke of earlier be upheld under the present scenario in this labour bill?
Hon. M. Sihota: If I understand the question right -- and I will read Hansard in the morning to make sure that I have -- if you have two employers, they would have to agree to be multi-employers, and then proceed on that basis, but not as individuals. I'll read your question again to make sure that I've got it in terms of the example that you're referring to. No one employer can force multi-employer certification on another employer.
I believe the hon. House Leader is most desirous of speaking at this point.
Hon. G. Clark: The minister is quite capable of this himself. I'm delighted with the remarkable progress we've made today. With that I move the committee rise, report that remarkable progress and ask leave to sit again.
The House resumed; the Speaker in the chair.
The committee, having reported progress, was granted leave to sit again.
Hon. G. Clark moved adjournment of the House.
Motion approved.
The Speaker: This House stands adjourned until 10 a.m. tomorrow. I will remind hon. members about the CPA meeting upon adjournment tonight.
The House adjourned at 6 p.m.
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