Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, NOVEMBER 17, 1992

Volume 6, Number 13

[ Page 4051 ]

The House met at 10:05 a.m.

Prayers.

Orders of the Day

Hon. G. Clark: I call committee on Bill 84.

LABOUR RELATIONS CODE
(continued)

The House in committee on Bill 84; E. Barnes in the chair.

On the amendment to section 1.

H. De Jong: It's a new day, and I suppose I could start off with all kinds of things. I recall that as we travelled across on the ferry yesterday, the Chairman gave an excellent speech to us as members of the opposition. But I will not say what he said, because I would not be able to do so in the exact and precise words that he used.

However, I'll get back to the amendment to Bill 84 that was presented by our caucus. We on this side of the House talked a lot during second reading about individual rights. It's very clear that individual rights do apply to both sides of the issue, particularly in this situation. When we talk about big firms, the individuality of the employer in those firms is not as evident as it is in smaller workplaces. However, the fact that the employer should have equal rights to the employee should never be minimized in labour law. It would appear to me, with the answers that I've had from the minister and with what he has given during this debate so far, that the balance is tipped one way, and certainly towards the side of labour. It's very unfortunate that the minister can't see the benefit of the amendment being brought forward, because I think that would bring balance and a fairer perspective.

Again I must say that the minister has basically not given an answer to my first question. If it is the case that a self-employed farmer cannot be considered a employer as well as a worker on his own farm, there is something wrong. Because that's the way it is in reality. I'm sure that's the way it is in many small businesses, where an owner-employee runs a business with one additional employee. I think there has to be room made in this bill, and I believe that the amendment before us would accomplish that.

Hon. M. Sihota: There are some advantages in having this job, if I may just digress for a moment. My daughter is sick at home, and she wanted to watch this this morning. So, if I may, I will say hello to my daughter and hope that she's progressing well -- the budding MLA who's probably the only person tuned in to watching this stuff at 10:15 in the morning.

In response to the question, if you have a situation with an owner-employee and an employee, the owner is the employer of the employee. The individual employee, under this change that we're proposing, would be entitled to take steps to certify as a single bargaining unit. Whether or not that single bargaining unit is certified depends on the nature of the bargaining unit, and is always subject to what I referred to yesterday as the buildup principle. But under the scenario that the hon. member outlines, the owner-employee would be the employer. The other employee or the hand, if you want to describe it that way -- I think it's how you described it yesterday, hon. member -- would be the employee, and that employee could make an application with regard to this proposed change that we put forward.

We see nothing wrong with giving the employee that opportunity. It clearly is the right of that individual to make that application, and clearly it is the right of the employer to make other representations with respect to the size of the bargaining unit. So there is that balance there that the hon. member seems to overlook in his comments. On that basis, we will not support the amendment introduced by your caucus.

I know your leader is most anxious to engage in debate at this point, so I'll sit down and hear his words.

J. Weisgerber: I do want to pursue this issue a bit further because it seems to me that the reason for certification of employees is indeed for the purpose of collective bargaining. I am having a great deal of trouble putting together the notion of one employee as a collective bargaining unit. It is very difficult to have a collective of one, so I think a person must, by extension, assume that this section we're proposing to amend could only be there for a couple of purposes.

One would be that a number of bargaining units -- those one-person units -- with different employers would seek to band together to bargain with individual employers. So then you don't have a bargaining process between an employer and the employees of that employer, but rather a group of individual employees banding together to bargain individually with their particular employers. It seems to me that we're getting a long way away from collective bargaining as we believe it should occur. If that's the purpose of the bill, I think the amendment should stand.

[10:15]

If the purpose of this bill is, instead, to present an opportunity for instant certification where there appears to be a new company destined -- perhaps by the investments that it makes, perhaps by the skills of the entrepreneur -- to be a large and successful company in a reasonably short period of time.... If those seeking to certify that industry would rather not wait and depend on a company with a number of employees where the rules about votes and certification apply, but would rather move in quickly on a new, fast-growth company and certify from that perspective.... If that's what's driving this section, we should understand that. I would still be very much inclined to vote against it. I would be very much inclined to say: let's wait for a year or two until this new company establishes itself, until there are a few employees and that group can sit down and decide by whatever process is in place -- 

[ Page 4052 ]

the signing of certification cards or, hopefully, a secret ballot -- whether or not they want to be certified.

It seems that there is an opportunity for some mischief here. There is an opportunity for one individual, with whatever motivation, to move in on a company that appears to have a great deal of growth potential and establish right off the bat, regardless of the wishes of the employees that follow, that this company be certified. It's for those reasons that we've put this amendment forward. We believe, in a company or an organization destined to be an employer and a single employee, that there's very little need for collective bargaining. As I said before, I can't get my mind wrapped around the collective of one. So I think that on this basis the legislation as proposed should not stand, and instead the amendment should go forward. If it is to have the instant certification of a start-up company, I think that that attacks the democratic rights of those who would follow, and the amendment should stand, rather than the legislation as proposed. So obviously I believe the amendment should stand. But I would certainly be interested in the comments of the minister or others on both of those scenarios that I've suggested.

Hon. M. Sihota: Let me deal with the issues raised by the hon. member. He says he has difficulty getting his head around the notion of a collective of one. You have to understand that under the current legislation -- Bill 19, which was introduced by your administration -- that can happen. In the craft example that I gave yesterday, that clearly can occur. So you can have a collective of one under the existing legislation, which you introduced. If it's foreign to you and difficult for you to get your head around today, I'd hate to ask about the difficulty you had five years ago when Bill 19 was introduced.

With respect to instant certification, it is true that there is potential in the legislation for an individual to make an application for certification, but it's just that: the opportunity to make that case. The employer can also make the case in that type of situation, where a new company is just starting up and has one individual. It can make an application to the Labour Relations Board and argue that it is the employer's intention to expand. If the board accepts that, then the buildup principle that I talked about yesterday would be triggered. Therefore the mischief, as you refer to it, is guarded against by existing jurisprudence in the area.

J. Weisgerber: If the certification by one is permitted under Bill 19, as the minister suggests, then I would question the need to change it. I suggest that what is being proposed in this legislation would not be permitted under Bill 19, or the minister wouldn't have deliberately set out to change the section and the wording. So to say that this is permitted under Bill 19, I simply cannot accept.

If the minister is saying that his intent and the intent of his government in bringing in this legislation is that in an expanding company it would not be the intent to certify with the signing of the first employee, I'd like to make sure that it's very clear on the record that the minister suggests that when there is certification by a single employee in those companies that are going to expand, the board would look at the evidence and at the intent of the minister and this government and say: "No, clearly the company is likely to expand in the near future and we will defer the certification until there is a group of employees." If he'll stand up and give us that assurance, then at least I will have comfort in that area.

Hon. M. Sihota: With regard to the comments raised by the hon. member, let me say this. With respect to your first comment, it can happen to some extent under Bill 19, but obviously with this change it can happen to a larger extent that that employee can make that application. I think that's fair comment.

L. Fox: The argument?

Hon. M. Sihota: No. I recognize that point.

With respect to the second point you raised, I didn't say it was the intent. You used the word "mischievous" earlier on, and it's somewhat mischievous of you to suggest I said that that was the intent. With respect to the instant company, I said that it is available to an employer to make the argument that they intend to expand, and therefore to ask the board to be mindful of that in its deliberations on whether or not this is an appropriate union and whether or not certification should flow on the basis of one. As you know, under current legislation two people can make that kind of an application. Indeed, there have been instances where two people have made such an application, and employers have made the argument they intend to expand. Employers have prevailed; they have also failed. That same argument would be as available to an employer now with one as it was with two.

J. Weisgerber: Just to conclude my arguments on this section, I understand that the employer can go to the council and make the arguments. I also understand that the council will be guided by our deliberations here and the intentions of the government in introducing the legislation. So I'm clearly looking for a sense from you of whether you are encouraging the notion that a company likely to expand would be certified with the application of a single card, or whether this government would prefer to see the certification delayed until there is a more representative group of employees who could then decide more democratically on their future.

Hon. M. Sihota: I'm not encouraging the board one way or the other, and I'm not going to sort of fetter the discussion of the board by making a comment here in the House that would have that effect.

I'm saying that the principle currently exists in terms of labour law jurisprudence with regard to the buildup principle that I talked about earlier on. There is nothing with regard to this legislative change that we're proposing that takes away that principle as a consideration for the board. However, it does widen the field for an opportunity, I guess, for an individual to make the application, and obviously, through this legislative amendment, we're saying that an individual can make that application. That's what the change does, but it 

[ Page 4053 ]

doesn't take away from the consideration of the principle by the board. They can make their own determination on that principle as to how they intend to deal with the issue.

L. Hanson: I'd like to welcome the deputy minister, who was not available yesterday. I'm pleased to have you here.

The minister suggested that there were examples under the present legislation of single, individual bargaining units. Other than in the case of craft unions, could he give me an example of where that applies?

Hon. M. Sihota: The craft example is the best example, and that's why I gave it to the member yesterday. There are other examples, such as where certification exists but the numbers fall to one -- then you have a unit with one.

L. Hanson: Certification of a single-member bargaining unit other than craft unions was non-existent under Bill 19.

Hon. M. Sihota: I think that's generally true. I can't think of a situation, so I will accept that proposition from the hon. member. That is true.

This legislative change, as I've candidly said before, provides an opportunity for certification that did not exist under the previous legislation and allows an individual to be certified as a bargaining unit. That's very clear from the change: it gives that individual that opportunity.

G. Farrell-Collins: In summation of our position on this amendment, we've heard the minister go on for some time with regard to the need for this change. I still have trouble wrapping my mind around the concept of a collective of one, and so do many members of the caucus.

Yesterday the Leader of the Opposition gave a very lucid argument as to how this was the thin edge of the wedge towards sectoral certification. It would apply in numerous cases and cause numerous problems. Today we have the minister telling us that there will be no difference from Bill 19, and since these types of things can occur already, there's no need for the changes themselves. Therefore the Liberal caucus will be voting against the change.

Hon. M. Sihota: I have one comment. I want to make this clear to the hon. member, who seeks to engage -- if I can use a word that was used earlier on -- in some mischief. I want to make it abundantly clear that we are not proceeding with sectoral certification -- period. The government has said that, and that's our position. It's not in the equation; it's not in this legislation. This provision does not allow for that to occur. I want the hon. member to know and hear me very clearly on that point, so he can expunge that political argument from his agenda. This government said that it will not proceed with sectoral certification -- period.

An Hon. Member: At this time?

C. Tanner: Ever?

Hon. M. Sihota: I am not using the words "at this time," which the opposition has seized on; I'm saying that we have made it very clear that we do not intend to proceed on sectoral certification -- period.

G. Farrell-Collins: The problem that we on the opposition side have is that we're dealing with a government that promised so much and has delivered so little. We have the minister telling us that he will not bring in sectoral certification, and he says "period." At his press conference on the day he released this bill, he said "at this time." Ken Georgetti said "at this time," and Ken Georgetti was here yesterday, pulling the strings of the minister. It's very difficult for members on this side of the House to take the minister at his word. He refuses to say that they will never engage in sectoral certification. He says that they will not engage in sectoral certification -- period. He doesn't say whether it's this mandate or next mandate. He's told me personally that it's certainly not within this mandate, which is different from what he said last time. So we have difficulty with it, and that's why we will be voting in support of this amendment.

Hon. M. Sihota: I'd like to thank the hon. member for recognizing the fact that this government will be receiving several mandates in the years to come.

L. Fox: I reviewed this particular amendment, and I stand to speak in favour of it. I too have a lot of concerns. Being an individual who has started two successful businesses, I can tell you that in the first year of the start-up of both of those businesses, I had one employee. I could not afford the time or the money to go before an IRC and discuss whether or not my business was in a position to accept a single employee as a bargaining unit.

[10:30]

The minister suggests that in theory the employer has the same opportunity as the employee, but in practice I would tell the minister that that is not the case. Go to any individual entrepreneur, male or female, who is starting up a new business and is able to hire one employee, and you will look at a workload that is seven days a week, 12 to 14 hours a day. The last things he has available are the time or the dollars to argue on his and on his business's behalf opposing a submission made by a single employee.

Hon. M. Sihota: I didn't hear a question in that. Hon. member, I have a pretty good idea of what it takes to establish a business, having done the same thing myself -- starting off with one person in one very small 

[ Page 4054 ]

office and working to expand. I appreciate the struggle in trying to establish a presence in a market and expand the extent of that niche. I know the hours that are involved in terms of trying to move a business from inception to maturity. I've had that life experience myself in the law practice that I established some years ago. So it's not as if I'm immune to those considerations. In this legislation we're providing an opportunity to an employee to seek certification. Philosophically we think that an employee should have that opportunity. Under the current situation in legislation, as you are well aware, there could be two people hired to start up a new business -- and quite often you get to that stage fairly quickly -- and they could make that application. I don't think the change is that materially different. I don't think the stresses on a business are that materially different. The fact remains, nonetheless, that that opportunity ought to be provided for that individual to do that, and we must also provide the opportunity for an employer to make the representation. That's why we're proceeding with this change.

We understand that there are costs associated with arbitration. As you know, the report spends a lot of time dealing with that matter of cost. The representations with respect to costs are not simply confined to small businesses. We heard that from large businesses, from small unions and large unions as well. We've endeavoured, through some of the structural changes we made in this legislation -- which we will debate later on -- to expedite the process and bring down the costs associated with these types of hearings. To a large measure I think we've been able to achieve that.

I know I'm beyond the scope now of what we're entitled to talk about here, but I would encourage the hon. member to raise that issue when we get to those provisions in the legislation, so we can have a healthy debate -- as we should in this House -- about the costs associated with these types of hearings.

L. Fox: I'd like to put forward just one other consideration to the minister. The minister says that there's no significant difference between two employees versus one employee. Well, I guess the significant difference I see from my experience is that if you have two individuals involved, there's dialogue between those two individuals as to what's in their best interest. Probably in a large number of occasions you would also find that that dialogue would extend to the employer, so there would be dialogue between three individuals as to whether or not there would be a collective unit. Whereas one individual, because he or she wakes up one morning and decides that it's in their best interest, perhaps because the workload has been such....

I know that the individuals who have shared the growth of my companies as employees have certainly gone well beyond what a normal employee would do in order to see the business succeed. I also know that because of the stress that's been on us both there have been times when there have been real difficulties and we've had to sit down, discuss them and look after those kinds of things. But one morning this individual could wake up and say: "I'm not happy. I want to become a collective unit. I'm now going to unionize so I can hook in with my brothers elsewhere in the province and get those kinds of considerations." That is the significant difference I see. If there were two individuals, that dialogue would then have to take place between two individuals and there would be some opportunity for cool heads to prevail.

Hon. M. Sihota: I don't want to belabour the point, but the hon. member knows as well as I do that in terms of dialogue there is an intimacy when you have a situation where there is one employee and one employer. There is an abundance of dialogue in those situations. The hon. member knows as well as I do that at that point both parties are pulling together to make an operation go. So don't diminish the potential for dialogue and for an employee to consider the realm of considerations that are before them when making this decision and the impact that it may have on the operation. Don't underestimate the ability of the employer to communicate to an employee prior to any certification application even being made. Don't overlook the fact that no employee benefits if a company shuts down, and obviously that's a consideration in the mind of an employee. Employees want to see businesses prosper. Employees know that when businesses prosper, they prosper. As both of us have experienced, employees are there to assist in a productive and meaningful way to allow businesses to grow and expand. There's nothing in these provisions that inhibits the ability of business to grow, expand and flourish in this province -- particularly small businesses, small enterprise.

So the hon. member should reflect on his own experiences and have comfort from those experiences that there is dialogue, appreciation and productivity, and that everyone knows if they pull together they will do well. That's the kind of atmosphere we want to create in this province, and it's the kind of atmosphere we've endeavoured to create through the legislative provisions that are before the House.

C. Tanner: I would like to endorse the remarks made by the previous member from this side. The minister is now introducing a wild card into a situation which you just described could work perfectly. The minister is right, so why alter it? Why suddenly give more bias and more weight to the employee who could be disenchanted with their employer? Why change the situation? If the situation that you just described exists, Mr. Minister -- and in many cases it does, as it has for that member, for this member and apparently for you -- why change the balance? This is not the time to do it, unless, as you admitted yesterday, you want to increase the chances of forming a union. That's apparently what you want to do. If you do that you are going to affect every small business in this province, and you're going to change the relationship between an employer and a single employee.

Hon. M. Sihota: I know the hon. member gets wound up, and he really shouldn't. He's engaged in some sort of fearmongering about something that's not 

[ Page 4055 ]

there. We're just giving an individual employee an opportunity to engage in certification. That is true, and we think they should have the opportunity as an individual should they choose to take that action, so we're giving them that opportunity.

C. Serwa: A question to the hon. minister. The opportunity for a single-employee unit to function as a bargaining unit tends to be a very mixed blessing in my mind. I support the amendment, and for a minimum of two, but I can see this opportunity being used for more than mischief. The minister has indicated the concern of employees for that employment opportunity. I would suggest that legislation such as this -- in fact, this particular section -- would create a splendid opportunity for organizations in, say, the lower mainland, in the densely populated areas where the large unions and large industries are functioning, to shut down all sorts of small businesses in their infancy, when they're most vulnerable and when financing in order to try to carry on is difficult.

When you enable unionization fundamentally, then you're playing right into the hands that the ministry knows he's playing into -- those of big business and big unions. Perhaps the minister would respond.

Hon. M. Sihota: I have, in terms of all the other comments that I've made, hon. member. I think that you are anticipating.... Somehow you seem to think that there's all sorts of wrongs with an individual employee making a decision to join a union. I see nothing wrong with that. In this province, both your administration and ours have supported a regime of collective bargaining and have felt that employees should have the right to be represented by a union when dealing with their employer. We're just providing them with the right -- to which you as a political party have always agreed, and as the Liberals and we have, too -- to engage in collective bargaining.

C. Serwa: In expressing my concern in this particular area, I'll bring my own constituency in as a case in point. We have a lot of small mom-and-pop operations -- not simply retail sales and that type of organization, but also small manufacturers. They may have a lathe or drill press, or may be producing bits and pieces for Western Star Trucks, for example -- a type of facility or operation where they may have a single employee. Once they're unionized in that particular sector.... It's not a likely occurrence, by the way, because I think that there is good communication between the employer and the employee and a recognition of the ability to pay and the type of market that exists. But if you're going to produce widgets at a very large unionized operation in the lower mainland, you could shut down the small producers in my constituency -- immediately. That is a fundamental concern that this particular section raises, and I'm very uncomfortable with it. That particular concern is a valid one.

Hon. M. Sihota: That can currently happen with two employees.

L. Fox: I want to ask the minister a question. The three wise men -- as I understand it from the dialogue from the government side -- had 296 written submissions and 304 oral submissions. Can the minister tell me how many of those were individual employees requesting the opportunity to unionize?

Hon. M. Sihota: If the hon. member would review Hansard, he would see that I answered that question yesterday. There were representations received, but we don't have the number. The representations are on public file. I told your leader yesterday where you could secure that information. But it is true that groups did make that application. Individuals made representations as well. As memory serves me on this matter, a number of women's groups in particular -- not unions -- made representations.

[10:45]

Amendment negatived on the following division:

On section 1.

G. Farrell-Collins: I would like the minister to perhaps expound on the reasons behind the changes to the definition of "employer" in Bill 84. Perhaps we can have a look at that one.

Hon. M. Sihota: The impact of the change would be to bring employers whose employment relationships are with dependent contractors under the code.

[M. Lord in the chair.]

G. Farrell-Collins: I can read the bill as well as the minister can. Perhaps he could expound not on what the bill says but on the reasoning behind it, and on what benefit he sees to the labour relations community in British Columbia as a result of this change.

[ Page 4056 ]

Hon. M. Sihota: It deals with the problem relating to dependent contractors, hon. member.

G. Farrell-Collins: As a result of the minister not being able, or perhaps not willing, to tell us the reasoning behind this and the benefit it will provide to British Columbia, I choose to move an amendment to section 1(1) that reads as follows: "'employer' means a person who employs employees and includes an employers' organization."

On the amendment.

G. Farrell-Collins: We've asked the minister. Again he seems to not want to discuss certain issues. We asked yesterday for leave of the House and the minister to summon the three members of the panel to come before the House and explain the rationale behind the issue. Perhaps the minister doesn't understand or perhaps his staff wasn't in yet to brief him on what the rationale was for that change. I fail to see where the overall benefit is going to occur and accrue to the people of British Columbia. Therefore we feel that the changes to the definition of "employer" are not necessary and perhaps inappropriate, and we would ask that the minister repeal that change and leave it as it was previously, as he seems to have no idea what the reasons were for the change being made.

Hon. M. Sihota: The reason for the change, hon. member, if I may reiterate, is to make it clear that dependent contractors are brought within the scope of the legislation.

G. Farrell-Collins: We clearly understand why those words are put there and that the intent is to bring them under. The question we are trying to ask the minister is: what is the benefit to British Columbians of making this change? Why does this change need to be included in the bill? What benefit or improvement will accrue to labour relations in British Columbia? Not what the wording is or why the wording is there, but why has this change been made? What is the overall benefit? Why was it necessary to make that change?

Hon. M. Sihota: Hon. member, this change provides benefits to dependent contractors. That's the benefit.

G. Farrell-Collins: Changes to labour legislation are made for the benefit of the whole province, not for individual persons or groups. It has to be of benefit to the whole province. For the minister to stand up.... It's probably the weakest defence of any change in Bill 84 that we've heard so far: "It's changed because it's changed. It's changed because we wanted to change it." How will granting those benefits to dependent contractors improve the labour relations climate in British Columbia?

Hon. M. Sihota: For 20 years in this province dependent contractors could certify if they were part of an existing bargaining unit. It was therefore discriminatory with regard to dependent contractors who were not part of an existing bargaining unit. This addresses the discrimination that I just referred to.

G. Farrell-Collins: Perhaps the minister could explain how this change is going to affect the trucking industry in British Columbia. Does he see any change as a result of this change in Bill 84?

Hon. M. Sihota: This change in legislation will give an opportunity to dependent contractors, who have been denied the opportunity to organize in the past, to be organized. That's the potential impact of this legislation. The hon. member knows that. I'm sure he understands that, and in that sense the question is somewhat frivolous.

It provides them an opportunity which was denied in the past, because the provisions discriminated against people who were not in a bargaining unit. We simply removed that discrimination by giving dependent contractors who were not part of a bargaining unit an opportunity to engage in collective bargaining. That's what the change here achieves.

L. Hanson: The obvious intent is related to the ability of a dependent contractor to organize, which was not in the act before. As we get further into the bill.... If there wasn't the ability for dependent contractors to organize on their own, this change would not be necessary.... In the past, dependent contractors could become part of existing certification, but not on their own.

I have to support the amendment for the same reason that I was opposed to the one-person collective bargaining unit, because exactly the same principle applies. I suspect that the minister doesn't have a different principle here. Maybe he could either agree or disagree with that statement.

Hon. M. Sihota: The hon. member is correct in his analysis that the same principle that we discussed earlier applies here. It does provide an opportunity for that individual to now engage in collective bargaining, which was not available in the past. So I would agree with the hon. member that it has that effect, and that the principle we're debating here is identical to the principle we debated earlier.

[11:00]

Amendment negatived on the following division:

[ Page 4057 ]

On section 1.

C. Tanner: The minister might be happy to correct me if I'm wrong -- and I hope I am. I think there's a typographical error in this definition. The apostrophe after "employers" should be before the "s" instead of after it. I think you'll find that it doesn't read clearly as it is now -- both in this definition and the next one.

Hon. M. Sihota: You didn't say which definition you were referring to.

C. Tanner: The "employer" definition.

The Chair: Through the Chair, please, hon. member.

C. Tanner: The definition of "employer," Madam Chairman.

Hon. M. Sihota: Sorry -- would you just repeat your point again. I'm trying to find what you are referring to.

C. Tanner: To be consistent, it appears to me that this should read "'employer' means persons...." If you're not going to use the plural there, you shouldn't pluralize "employers' organization" at the end.

Hon. M. Sihota: Thank you, but we do disagree.

C. Tanner: I'm not trying to make a point here to embarrass the minister or anything, but I think it bears investigation. I'm reasonably sure that you've got a contradiction in terms here. In the first place you're talking in the singular, and in the second place you're talking in the plural. I'm not sure that's what you meant to say. I'm not asking you to give me an answer now, but I think you should look at it in the future.

Interjection.

The Chair: The minister agrees.

Is there any further discussion?

Section 1 approved on the following division:

On section 2.

G. Farrell-Collins: With regard to the new section 2, which is more or less -- more less than more, I suppose -- the old section 27, I would ask the minister to give us some opening remarks on why the preamble and some of the other changes were made in this section, and why he feels that they were necessary.

[11:15]

I might also mention for the benefit of the House that when the minister starts to engage in productive debate, we'll stop calling a division on every issue that comes forward.

Hon. M. Sihota: I wouldn't want to deny the opposition exercising its right to call a division. If they wish to do that, it's their prerogative. I have no difficulty with it.

The answer to the question is straightforward. This section provides that encouraging collective bargaining is a fundamental objective of the code, and other fundamental objectives are to encourage cooperative participation between employers and unions, and to keep the institution of collective bargaining viable and fluid. The hon. member asks about changes in the previous legislation. It is a provision which points out that under this act collective bargaining is to be encouraged, not just tolerated. I think one could argue that is the case under Bill 19.

The government believes that collective bargaining and cooperative participation between employers and unions should be encouraged. We're endeavouring to achieve that through the provisions of this legislation and to highlight it through the provisions of the purposes clause. The objective, of course, is to address the social objective of better wages and working conditions for working people, as we try to create a society where there are high levels of employment and 

[ Page 4058 ]

high wages paid to people who work in this province of ours.

There is a desire on this side of the House -- I'm sure it's shared by others -- to enhance our competitiveness in the increasingly global economy we find ourselves in, and to ensure that the coexistence and support necessary to achieve competitiveness and productivity will be found in the relationship between management and labour. These changes, by placing the purposes provision up front in the code, are designed to highlight the public policy objectives of our administration.

Finally, I think it is important with respect to legislation such as this that the purposes provision be placed at the front end of the legislation so as to set the tone for the balance of the legislation and not be placed, as it was previously, in section 27. There are a lot of examples of legislation with purposes provisions at the front that have given groups that adjudicate on legislation the ability to consider them in a far more salient fashion than would be otherwise. The best example I can think of at this time is the old federal Broadcasting Act, which laid out certain objectives at the front end. I think it's good public policy and a good way to draft legislation. By putting these objectives up front, it takes out some of the guesswork in terms of what was intended by the changes.

G. Farrell-Collins: The minister talked about the benefit of moving the section from section 27 to section 2, and I concur. The appropriate place for the purposes section is right after the definitions. It makes sense. I don't think anybody is disputing that.

Some of the changes that I wish the minister would have discussed and will, I hope, discuss in the future are those changes with regard to the public interest, the rights of individuals and the reference to a competitive market economy, which have been removed from the purposes section. As we all know, the purposes section is the interpretation section. It's the section that people have to come back to as they're trying to interpret what every other section means. Everything must follow in the context of this purposes section and the intent of the bill. Together with the section that just passed -- unamended, unfortunately -- those two sections are probably the most important ones of the bill.

As a result, I move that section 2(1) be amended to read:

"Having regard to the public interests as well as the rights of individuals, and recognizing the desirability for employers and employees to achieve and maintain good working conditions as participants in and beneficiaries of a competitive market economy, the following shall be the purposes of this code."

The Chair: I believe this amendment is already on the order paper and has been put forward by the member for Okanagan-Vernon.

G. Farrell-Collins: That may well be the case, but I'm moving the amendment. It makes no difference.

The Chair: We've already accepted it from the member for Okanagan-Vernon.

G. Farrell-Collins: That's fine. I'm moving the amendment, though, hon. Chair, and the amendment is so moved.

The Chair: The Chair was about to recognize the member who does have it on the order paper to move that amendment, and I think we'll proceed in that way.

L. Hanson: To add to comments of the previous speaker, the process under which Bill 84 was developed was obviously designed to exclude not only the public interest but the interests of the individual. As the minister spoke so eloquently yesterday on the rights of the individual as it related to an amendment, obviously he would very positively consider this amendment, which is standing on the order paper under my name. The amendment specifically is:

Section 2, by relettering paragraphs (a) through (f) as paragraphs (b) through (g), respectively, and by adding the following paragraph: '(a) to give effect to the wishes of the employees with respect to bargaining,'; and by replacing in paragraph (a) -- hereby relettered paragraph (b) -- the word 'encourage' with the word 'improve', and by adding thereto, the following: 'having regard to the public interest, the rights of individuals, and the need for harmonious and productive labour relations to maximize benefits to the Province as a participant in a competitive market economy.'; and by deleting from paragraph (e) -- hereby relettered paragraph (f), the words 'during labour disputes;'.

I now move that amendment.

On the amendment.

Hon. M. Sihota: We will be opposing the amendment. I don't think it is necessary. The clause which is now before the House accurately sets out the salient purposes of a code of this nature.

If I may, I want to make a number of other comments in respect to the those made by the hon. member for Okanagan-Vernon and the critic for the opposition. There has been concern expressed with respect to the deletion of the reference to a competitive market economy. Quite honestly, we all know that we live in a competitive market economy and that that economy defines the nature of labour-management relations. I don't think it's necessary to refer in legislation to the obvious in that instance. The obvious fact is that we live in a highly competitive market economy, and those competitive forces will dictate the nature, the basis and the conclusions of collective bargaining. They actually do drive the process; hence it's felt that there's no need to state the obvious.

In addition to that, a lot was said during the course of second reading debate, and I would suspect will be said now as well, with respect to the rights of individuals. I commented on that issue during the course of second reading debate, and I don't have any real intention of going into it depth again during the course 

[ Page 4059 ]

of this debate. I'm not too sure if that serves the purpose of the debate.

I said yesterday that any legislation of this sort has to balance the rights of individuals with the rights of individuals in a collective sense. This is a tension that exists in society, that has existed for years, and that will continue to exist as long as we're around, inasmuch as the whole debate of collective and individual rights has existed right from the time of the Magna Carta on. It's a debate that has certain philosophical and ideological considerations at times; at other times it's purely political considerations.

Be that as it may, the fact remains that there's always room in a free and democratic society to have a debate with respect to individual and collective rights. This legislation tries to balance some of the competing interests that are at play, and I welcome that debate if we wish to get into it.

With regard to individual rights, as I pointed out earlier in the House and will quickly point out now, there are provisions in this legislation that recognize the rights of individuals. I know we're talking here about the purposes of the code, and therefore it may be out of order for me to amplify on these points in any depth. But I'll start, without going too far into those provisions, by simply outlining to hon. members that there are provisions in this code that deal with fair representation, and there are obligations that clearly protect the rights of individuals. We'll debate those when we get to that section.

There are provisions here that deal with religious objections, which try to deal with the rights of individuals. Again, we'll have ample opportunity to debate that when we get to it. There are provisions here about the freedom to join or not to join a trade union, which again seek to protect the rights of individuals. Again, we can amplify on those points when we get to them.

The rights of individuals during organizing drives. I amplified on that point in the debate on second reading, and when we get to that section I will as well. Again, individual rights are protected there.

There are references in the legislation, as hon. members know, with respect to natural justice. These are new provisions which again will protect the rights of individuals.

Finally, there are provisions with respect to expedited arbitrations and first contracts, which, I would argue, will protect the rights of individuals as well.

So quite frankly, hon. members, there are a multitude of provisions in this legislation that seek to arrive at an appropriate balance in the tension between individual rights on the one hand and collective rights on the other. I have enumerated some of them, and obviously we'll get to debate them when we get to those sections.

Therefore, given the fact that there are certain realities about our marketplace being competitive, and given what I've had to say about the recognition of individual rights within the scope of this legislation elsewhere, we will be opposing the amendment.

L. Hanson: First of all, I would have to point out to the minister that bringing this section forward to the second section, immediately following the definitions, probably places more emphasis on the purpose of the bill, and I suspect that that was probably the motivation in changing the sequence of the sections. I would like to ask the minister how he can possibly justify to the people of British Columbia, when it was already included in the former section that the public interest, as a directive to the Industrial Relations Council and now to the Labour Relations Board, was one of the main concerns that that body had to consider.... It was not necessarily the main concern, but a concern for the board that was adjudicating various disputes and making decisions. It was in that section before. The minister suggests that because it's obvious that the forces of the bargaining process will consider the public interest, it is not needed in the bill. I'd like to hear the minister's reasons, other than it isn't needed, as to why it was excluded from mention. Obviously it was in the bill before, but that section was moved forward to place more emphasis on it. There must be some reason.

[11:30]

I'm not suggesting hidden motivation. But how can you possibly suggest that that section was moved forward from 27 to 2 -- and you deleted any reference to the public interest -- because the forces of bargaining will deal with that? There's an obvious message to the adjudication group that will make the decisions that the public interest, which was mentioned before, is no longer of the importance that it was, because it has been deleted. I don't know how you can draw any other conclusion than that when you delete that reference. Maybe the minister could enlighten me.

Hon. M. Sihota: I'd be happy to try. I'm not too sure if I'll persuade you at the end of the day in any event, hon. member, but let me make the following points. I would hope that you're right in terms of the first comment you made with respect to moving this section to section 2 from section 27 in terms of the importance that's attached to the section. I personally believe that having a purposes section in front of the code sends a strong signal that one must be mindful of those purposes when deliberating on the legislation. It may well be that the saliency of it will increase. We will see, of course, during the course of jurisprudence as to whether that result is achieved or not. So it may have that effect, and for the purposes of this debate, let's assume that it will have that effect.

If it does have that effect, then the other point that should be noted is that the purpose of the section clearly does make reference to the public interest, as I'm sure the hon. member realizes. Section 2(1)(e) of the code says: "to ensure that the public interest is protected during labour disputes." So it's not fair for one to suggest -- as I took it from the tone of the comments made by the hon. member -- that the public interest is not found in the purposes section; it clearly is found there. It clearly says: "to ensure that the public interest is protected during labour disputes." It seems to me that because the section is now at the front and because, for the purposes of this argument, it will have more 

[ Page 4060 ]

effect, we've actually heightened the attention that must be paid with respect to public interest.

That's my response to the debating point that you raised. I want to emphasize again that public interest is found in the purposes section. So it is there, hon. member; it has not been taken away. I've just quoted it to you.

Let me also make the following practical point. I know that given the hon. member's experience in the portfolio that I now have the honour of serving in, it has been demonstrated to him that the public interest is always a salient consideration during the course of any dispute. He knows the pressures he had to operate under, and I know the pressures I've had to operate under in the short year that I've had this responsibility. You are always weighing public interest considerations. Whether it was the strike at UBC a year ago, the HEU situation some ten months ago, the BCIT situation some eight or nine months ago or the situation as it related to the incident with the Coquihalla Highway, or whether it's the situations we're dealing with today with B.C. Ferries, Langara or the SkyTrain, public interest determinants are always part and parcel of the determination involved in deciding what action should be taken with regard to a particular labour dispute.

We've said in this code, through the provision which says that the public interest is to be protected during labour disputes, that it will remain a salient consideration in the legislation both in a legal and technical sense and in a practical sense in terms of deliberations that we have to make.

There are some changes, in terms of who has the onus for making those public interest determinations. As you know, hon. member -- through you, hon. Chair -- in the legislation that you presented in the form of Bill 19, those public interest determinations were, in many ways, stripped from the minister. They are now put back in the hands of an accountable public official, the minister, as I think they appropriately should be. Again, we will debate that point when we get to it. But for the purposes of this discussion, let us not forget that the section says in an upfront way that "the public interest is protected during labour disputes." I quote the section in bringing that matter to the attention of the hon. member.

L. Hanson: I compliment the minister on the adept way that he has changed the focus of the public interest and has quoted from this section of the bill, which refers to the public interest when there is a labour dispute.

But I should remind the minister -- I know that I don't have to remind the minister, but I'll take the opportunity -- that the public.... I'm sure the minister would not suggest that the interest and rights of all the citizens of this province should be considered and reflected in our labour laws. That public interest involves things such as our economy. The investment climate of British Columbia is very much affected by our labour laws and our labour relations. That seems to be a paramount public interest in the development of legislation.

As I said in my opening remarks, the approach to the drafting of this bill was designed to accommodate only the concerns of two special interest groups -- the unionized employer and the trade unions -- and the public interest has not been recognized in this bill, despite what the minister says. I agree that the board is directed to consider the public interest in the case of labour disputes, but I would suggest that while labour disputes are very important on the public agenda and certainly get the public's attention because of media coverage and other things, the public interest extends far beyond labour disputes.

The Industrial Relations Council -- or the new Labour Relations Board as it will become known -- has an interest in considering the public interest; or it should be directed to consider the public interest not just in labour disputes. However, I'm not sure that the term "disputes" really attaches to every decision that the Labour Relations Board or the Industrial Relations Council will make. They'll make decisions on certification, as an example. I'm not sure that that comes under the heading of "dispute," and I could go on and on, but I'm not going to bore the minister with that, because obviously he knows as well as I do that many different issues come up before the council. Maybe I could ask the minister to comment on that.

Hon. M. Sihota: I'd be pleased to comment on what the hon. member has said. Let me do that by stating the following, hon. member: you are right when you say that it is important, from an investment point of view, to ensure that there is a labour relations regime and a labour relations law established to encourage cooperation and stability in labour management relations because that's what investors look for.

It is important that there be legislation that seeks to encourage cooperation and harmony between management and labour. We recognize that as an administration, and we recognize that that, to use your words, is certainly in the public interest. That's why we took the care we did in the drafting of this legislation. I don't want to give you an old speech, but you know as well as I do that we spent the better part of the first year of the mandate of this administration -- in fact some ten or 11 months -- in inviting business and labour to participate in the selection of the panel that was to do the labour relations review; inviting both small labour and big labour, small business and big business to participate in the public opportunities to develop the legislation and to be involved in the process in an intimate way. They were, and at the end of the day we were able to produce legislation where business and labour were able to agree on 98 percent of the provisions. I can't think of a stronger message to send to the investment community than the fact that we have moved from a situation where we had, in all respects, legislation which the previous administration introduced which was divisive, a general strike for a day and a boycott by labour. We've moved away from the instability of Bill 19 to the stability of legislation that enjoys the confidence of both parties with respect to 98 percent of the provisions. So we've corrected the wrong of Bill 19 through the process we engaged in with the drafting of this 

[ Page 4061 ]

legislation. That's because we recognize that fair and balanced labour laws are essential to labour peace in this province, and we've done that in this legislation. So there's an improvement in that regard, and the public interest has been well served as a consequence of that process and the legislation we have before us.

Secondly, let me say this. You made comments with regard to the public interest in issues outside of labour disputes. It seems to me that you're obsessed with the words "public interest." What does public interest mean? It means that we in this province must bring about an attitudinal change with regard to labour-management relations. We've seen for too long in this province a highly adversarial, highly confrontational relationship between labour and management. The public interest is served when those two parties learn to work together, to pull up their socks, to cooperate and to allow us to compete in a global economy and to bring about the kind of investment we need to lay the foundation for that competition. That's why, hon. member, this section says that the purpose of the code is "to encourage cooperative participation between employers and trade unions in resolving workplace issues, adapting to changes in the economy, developing workforce skills and promoting workplace productivity." That's found in this legislation. That's how the public interest is served outside of labour disputes.

We've made it very clear that the purpose of this section, and indeed of sections that we will debate in the time ahead.... We expect that level of cooperation and participation to be there. Why? Because we realize that is in the public interest. Why? Because we realize that only if they work together can we compete effectively and achieve a high-wage economy and high levels of employment. Why? Because we think that investors look more optimistically to a province where that cooperation is found.

It's not an easy thing to change the attitudes that have prevailed in this province for the time they have. I think we all know how confrontational they have been. But we're endeavouring to change that through this legislation. We've endeavoured to change that by trying to involve both business and labour in the drafting of this legislation and, as I think is obvious to all, by trying to deal with some of the concerns that have come from both parties since the introduction of this legislation. I think that's how the public interest is served, and we're serving it, hon. member.

J. Weisgerber: Hon. Chair, I think these amendments are significant, coming in the purposes section of the act and dealing with some fundamental principles. First of all, I find it difficult to imagine that the government would reject a notion to add a section to the purposes area of the code that in fact sets out to instruct those considering the act to respect the wishes of employees. That seems to be so fundamental that one would assume that everyone would support it. Why would you argue against the adding to the purposes section a clause that would be to give effect to the wishes of employees with respect to bargaining? It seems so straightforward, so logical, that you would assume that if it wasn't in there, everyone would agree, on second thought, that it should have been there.

[11:45]

To give further definition to that section by adding in part (b), "having regard to the public interest," which there has been a great deal of talk about; the recognition of the "rights of individuals," again something all of us surely stand for and seek to protect; and the encouragement of "the need for harmonious and productive labour relations," all seem to be so self-evident that I'm surprised we are having to debate the inclusion of these words into the labour code and into the purposes section of the code. If it is indeed because the argument is being made by the minister that for the need of brevity we've left these out, I would suggest that we have a code with 176 sections that takes 92 pages to print. We're talking about adding these words to the purposes section of the bill, which would then be reflected in each of the following 174 sections.

I'm curious to know, then, what there is about this amendment. Is it that the minister and his government don't want the wishes of employees considered with respect to certification? Is the government opposed to recognizing, outside of labour disputes, the public interest? Does the government have difficulty recognizing the importance of the rights of individuals? Or is it that the government doesn't believe -- and I don't think there is any reference to this in the purposes section -- in the need for harmonious and productive labour relations.

Surely in British Columbia and in any labour code there should be an underlying and expressed desire to see a harmonious and productive labour relations climate established. So again, as I was with the former amendments, I am surprised that the government has shown -- and I know that governments are always reluctant to accept amendments, because it's not their idea -- a reluctance on that basis to accept those ideas. These seem to be such fundamental principles that one would expect them to be in the purposes section of the code, and I am almost reluctant to ask the minister why he is opposed to the sections, because, quite honestly, I can't believe that he would be opposed to them. As an individual, I don't believe he would argue with any of those words.

Why in the world would this government particularly, that espouses their focus on representing individuals and employees, not want to see a section added to their labour code that recognizes the wishes of employees should they decide to certify or with respect to bargaining?

I will take my place. I'm not sure whether to expect the minister to respond or not. The simple response would be to indicate that he would support the amendment, and we could move on to looking at this bill through a clearer prism that more clearly defines what British Columbia is all about, what we're all about in this chamber and what our relationship is with individuals in this province.

Hon. M. Sihota: The hon. member knows that I'm seldom reluctant to debate any issue, and I'm always willing to attend to his curiosities, to address his 

[ Page 4062 ]

concerns and to eliminate the element of surprise that he refers to. I welcome that occasion again. I'm sure it doesn't surprise the hon. member.

As I understand it, you made three points at the outset of your comments that related to the rights of individuals, harmonious relations and recognizing the wishes of employees. Let me deal with all three of those issues. First of all, with regard to the wishes of employees, the hon. member knows full well that there are other sections in this legislation that deal with the recognition of employees' wishes. That's done in sections that deal with certification and with collective bargaining. The wishes of employees are always taken into account when the collective bargaining process is triggered and when employees express their wishes as to what they want to negotiate about. The wishes of employees are always taken into account when dealing with issues related to certification -- the hon. member knows that -- and the expression of the recognition of those wishes is therefore found in other sections of this legislation.

With respect to the rights of individuals, I made a comment earlier on that issue, which the hon. member did not hear, I take it, because he was outside the House. I don't mean to be flippant, but I think you should take a moment to read Hansard. I did talk about the individual's right to fair representation, to religious objections and freedom to join or not, the rights of individuals to be involved in organizing drives and the reference to natural justice, first contracts and expedited arbitration. In all those areas, which are found elsewhere in the legislation, the rights of individuals are respected.

In addition to that the hon. member talked about harmonious relationships, and I agree that it is important. I think I amplified on that in my previous comments, but I'll draw to the hon. member's attention the provision in the purposes section which says: "...to encourage cooperative participation between employers and trade unions in resolving workplace issues, adapting to changes in the economy, developing workforce skills and promoting workplace productivity." Certainly all of those provisions are designed to encourage harmonious interaction between employers and employees and between unions and management.

When we get to the provisions which call for joint consultative committees, I'm sure that the hon. member, given his concerns about harmonious relations, will therefore show his strong support for these, since they're also designed to engender a harmonious relationship between employers and employees.

The hon. member talked about fundamental principles that ought to be found, and they are found in the purposes section. He overlooks what's found in this section -- the theme that runs through the code, per se. In terms of fundamental principles, it's fundamental that we encourage the practice and procedure of collective bargaining between employers and trade unions, and that's exactly what the code says. It's fundamental that we encourage cooperative participation between employers and trade unions, and that's what the purposes section says. It's fundamental that we minimize labour disputes or the effect of labour disputes on parties not involved in those disputes, and that's what this purposes section says. It's fundamental that we promote favourable conditions to an orderly, constructive and expedited settlement of disputes between employers and trade unions, and that's what the section says. It's fundamental that the public interest be protected during labour disputes. I've already commented on that. That's what's found in this section. It's fundamental that we encourage the use of mediation as a dispute resolution mechanism, and again that's what this section says. So those fundamental precepts which are important to labour-management relations, hon. member, are indeed found in this section.

J. Weisgerber: As we listen to the minister, we certainly would take some comfort from his words. But as we look at the bill, and as we look at the question of the individual's wishes, we see some things further on which seem to contradict the minister's words. Indeed, we see this reluctance to deal with the question of secret ballots. We find that at odds with his comments about respecting the wishes of individual employees, because if that were the case, I suspect that the debate we had earlier around secret ballots would have gone differently.

We are talking about competition between individual rights and collective rights. The government's philosophy favours the collective at the expense of the individual. That is the basic difference between the thrust that we in Social Credit take and that the government appears to be taking. We favour the rights of the individual versus the rights of the collective. I suspect that not only this legislation but the philosophy of the government is to the contrary.

The Chair: Hon. member, excuse me. May I remind you that we are debating the amendment. Could you please rein in the comments.

J. Weisgerber: Indeed, Hon. Chair. I wouldn't want to offend the House or anyone with comments. But we are talking about an amendment to the purposes of the code that would recognize the rights of an individual with respect to bargaining -- the individual right versus the collective -- and we are suggesting that the act should be strengthened by an amendment to promote and protect the rights of the individual. That's clear, and it's clear that the government disagrees with us. We are talking about clearly defining, in the purposes section of the bill, by amendment, the need to recognize such things as the public interest not only during a labour dispute but in all decisions taken by the board or the council. We are talking about promoting a productive and harmonious relationship between employers and employees. We believe that those are fundamental, basic kinds of principles that should be included in the bill. I simply wanted to clarify the position that the minister was taking. It appeared to be contrary to the intent of the amendment being put forward, and we were disappointed with that.

Hon. M. Sihota: I'll be very quick, because I have amplified on these points in Hansard earlier. Look, this 

[ Page 4063 ]

legislation endeavours to protect the rights of individuals up until the time they make a decision to be part of a collective. They consciously make that decision themselves, so we have an obligation under this legislation to protect the rights of individuals in the period up to certification. At that point they make a decision to proceed with a collective process of bargaining; at that point we try to protect certain rights, intentions, privileges and responsibilities as they relate to the collective. So it's not as if this legislation is immune to the protection of the rights of individuals; indeed it does that in a number of provisions which we'll debate later on. It's also not immune to protecting the rights of the collective when an individual decides that they want to be part of a collective, and we've done that in this legislation. That's the balance you have to find in labour legislation.

So the hon. member is remiss in suggesting that we haven't paid attention to those provisions. I'm sure that he knows as well as I that we have, and that he understands the obligations that come in terms of protecting rights under this legislation.

I see it's noon. Accordingly I move the appropriate motion, which I believe is to rise and report progress.

Motion approved.

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

Hon. M. Sihota moved adjournment of the House.

Motion approved.

The House adjourned at 12 p.m.

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