Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, NOVEMBER 24, 1992

Volume 6, Number 20

[ Page 4207 ]

The House met at 10:05 a.m.

Prayers.

Orders of the Day

Hon. M. Sihota: Hon. Speaker, I call committee stage on Bill 84.

LABOUR RELATIONS CODE
(continued)

The House in committee on Bill 84; M. Farnworth in the chair.

On section 6.

G. Farrell-Collins: A question to the minister with regard to section 6(1). A provision has been put into this bill which states: "An employer or a person acting on behalf of an employer shall not participate in or interfere with the formation, selection or administration of a trade union or contribute financial or other support to it." Perhaps the minister could comment on how the provision prohibiting selection will relate to voluntary certification on behalf of an employer.

Hon. M. Sihota: I'm seeking some direction from the Chair before I get to that question.

My understanding when we last left -- my recollection, anyway -- was that there was an amendment on the floor from the opposition. Was that voted on?

The Chair: We are now on section 6.

Hon. M. Sihota: So we are right into section 6. I didn't realize that the amendment had been defeated. Sorry. Could the hon. member ask the question again? I was trying to figure out where we were procedurally.

G. Farrell-Collins: I didn't realize the minister was having second thoughts on the amendment. If he would like to introduce it and bring it in, we'd be glad to.

But since we're back on the main motion, the question relates to subsection (1) of section 6, and the prohibition of an employer or a person acting on behalf of the employer participating in the selection of a trade union. The question to the minister is: how does that relate to and will that cause problems with the issue of voluntary certification, where an employer may start a business and voluntarily approach a union to start that certification process immediately on behalf of the employer? Will that cause a problem in this regard?

Hon. M. Sihota: Our advice is that this is not an issue to be concerned about. The intent of the section is fairly clear. It seeks to deal with an employer who would seek to interfere with the formation of a trade union in a more competitive setting than in a voluntary recognition setting. Accordingly, it would be our view that a board would be mindful of a voluntary situation. It would look at the spirit of this provision and would therefore not look adversely at a voluntary situation. The intent of this section is to deal with different situations than that, and that's evident from where it's located and what the section is entitled. Therefore we don't expect this to be a problem.

G. Farrell-Collins: Perhaps the minister could give us some indication of what sorts of scenarios he can see where this would cause a problem and where it would not cause a problem. Would he flesh that out a little bit for us so we know what the intent of the minister is in bringing this change forward?

Hon. M. Sihota: The case that best comes to mind is if an employer were to take issue with one union that's competing against another for certification, saying to employees that it would prefer union A versus union B. In that case, the union that was being adversely affected has the potential to raise its concerns with reference to this section.

W. Hurd: The minister will be aware, I guess, of the point raised by Mr. Ken Georgetti in the papers this morning, where an employee is directly related to the owner of the company. Mr. Georgetti, the minister may recall, expressed a concern about that person participating in any way in the formation of the union. Is that particular scenario of any concern to the minister, where there is a direct filial relationship between somebody who's involved in the organization of the union and the ownership of the company?

Hon. M. Sihota: First, the hon. member should know that I haven't read what Mr. Georgetti had to say in the paper. Secondly, I must say I take pride in the fact that, with this administration at least, Mr. Georgetti is prepared to sit down and talk with us and business and try to arrive at a consensus on labour reform; whereas I note that the opposition has not yet, since the tabling of this code, requested a meeting with Mr. Georgetti to discuss issues that may be of concern. Hon. Speaker, I find it appalling that the opposition in this province would not wish to meet with the B.C. Federation of Labour to discuss issues of mutual interest.

G. Farrell-Collins: On a point of order. It's very unfortunate that this early in the debate in a new week the minister is off on a tangent again. The reality is that we have met with Mr. Georgetti, and if Mr. Georgetti chooses to meet with us we'll be glad to. The minister should perhaps stay relevant to the bill.

The Chair: Hon. member, the point of order is relevancy. The minister continues, but I would also remind the minister that we are in third reading and to please keep it relevant.

Hon. M. Sihota: Thank you, hon. Chair. I know I've learned terms of relevancy from your example in this House, and mindful of the high standard of relevancy that you've set, I certainly will keep your comments in mind.

With regard to the hon. member's question, let me say this: that would be an issue that we would expect the Labour Relations Board to deal with, not an issue that we expect to deal with in legislation.

[10:15]

[ Page 4208 ]

G. Farrell-Collins: Going back to the question that I had asked the minister earlier, there are instances, of course, where an employer.... I'm looking at a scenario where an employer starts a new company or has a company and decides to bargain collectively with the employees. They could then seek out a union to represent their employees as far as voluntary certification goes. I can see a scenario arising where once it becomes known that an employer is seeking certification on a voluntary basis, other unions may want to jump in to involve themselves in the certification process and compete for that certification. Is it likely or is it possible that one of those competing unions could bring up a charge against that employer under section 6(1)?

To repeat my question to the minister: are there scenarios that could happen or have happened where an employer, either starting a new company or with an already established company, chooses to bargain collectively with the employees and seek out a union to represent the employees and certify that company. Once it is known in the community that that type of certification is ongoing or is being considered, there may be competition among other unions also seeking to control that certification and to get into that company. Is it likely, possible or feasible that that would be an example where a violation or charge under section 6(1) could be brought against the employer?

Hon. M. Sihota: If I understand the hon. member's question right -- and that's the reason for the hesitation on this side -- the certification process is such that if there are competing parties wishing to seek the unionization of a particular plant or operation, then those issues are dealt with through the certification provisions found later on. First of all, it seems to me that it wouldn't be correct under legislation to deny a union the opportunity to compete against another to seek certification. When you have that competition, the issues are dealt with through the certification provisions which are found later on in the legislation.

G. Farrell-Collins: I don't have a problem with various unions competing for the certification of a bargaining unit, either. I think that's perfectly appropriate competition: which one will serve the employees best? I assume that competition among the various unions to secure that bargaining unit is at times heated and may very well be controversial. To have the employer, having selected and approached a union for certification, have another one or two unions come in and start to engage in some sort of a competition over that.... My concern is that the employer, while seeking to just have the people certified, may, in that fray and in that heated debate, end up with a charge under section 6(1). I guess what I'm seeking from the minister is an assertion on his part that that's not the intent of this section. Rather, it's to have the competition, but in the event of that situation, this section would not be used for one union against another in a battle for a bargaining unit.

Hon. M. Sihota: I think the point that the hon. member should be apprised of is that it's up to the Labour Relations Board to look at the facts of a particular situation and then make a determination based on those facts as to whether there was an unfair labour practice. In that kind of situation the board would determine the nature of the interference and whether it offended this section. I'm sure the hon. member appreciates that the Labour Relations Board has some flexibility to look at various fact patterns. It seems to me that if the employer conducted himself or herself in a genuine way, then the board would be mindful of that behaviour in determining whether there was an unfair labour practice. It's not for me or this House to go through potential fact patterns to check off whether the board will rule one way or another, no more than it is for anybody to tell a court how to deal with particular fact patterns in legislation in advance -- as opposed to legislation like this where administrative tribunals are involved. As a consequence, we've tried to give the Labour Relations Board the latitude necessary to make decisions in this legislation. I would not want to prejudge how the board would deal with various fact patterns, hon. member.

G. Farrell-Collins: I guess we come back to the situation we're finding ourselves in numerous times during this debate. We're trying to pass legislation. The minister is defending the first bill he has brought before the House in his career as a minister. We have a fairly large and extensive piece of legislation. We are trying to determine from the minister the intent of this legislation. I don't think it's out of line for the minister to comment on the intent of various pieces of legislation. I know he seems a little leery of overstepping his bounds and into the role of the Labour Relations Board in finding these determinations.

I think we have to be mindful in this debate as we go through these sections that this legislation will be the guiding principle. This is the rule book around which the Labour Relations Board will interpret reasoned, mindful and intelligent decisions. At the same time, it's important that we understand the intent of the legislation and the minister very clearly, so that when the Labour Relations Board makes some clarification or judgment relative to these various sections, they are in fact working within the parameters that this Legislature decides. It's critical that we understand the minister's intent for making these changes so that we know whether these are the guiding rules we want to pass through this House and over to the Labour Relations Board.

The point of the questions is that it is important to go through various what-if scenarios and ask particular questions. I know we can do that forever, but I don't intend to. It's important that we go through various what-if scenarios to determine the parameters and intention of this legislation.

As you know, there's an amendment sitting on the order paper under my name that moves the deletion of the word "selection" from this section. The intent behind that is to ensure that the employer doesn't get himself or herself wrapped up in a battle between the various unions. We are willing to call that amendment and bring it in, unless the minister can give us some 

[ Page 4209 ]

clear assurances that that's not the intent of the bill. If the intent of the bill is some other purpose, then perhaps he could enlighten us as to the specific purpose of the word "selection."

Hon. M. Sihota: With regard to this section, the basic underlying principle is that it is a decision of employees to decide who represents them in the collective bargaining process; employees make the decision as to which union they wish to have as their representative. Fundamentally that is a decision of employees, not employers. Therefore it is an unfair labour practice for an employer to interfere in the selection, administration or formation of a trade union. Basically it accepts the principle that we've accepted in this country for some time: it is essentially an employee decision.

I don't intend to go through it, but I'm sure the hon. member is aware that these provisions have been interpreted over time to deal with many of the fact patterns that he now brings before the House. I would encourage him to read the labour relations jurisprudence with regard to these matters, to realize that there is indeed some flexibility.

He asked about the matter of selection. That deals with an issue where an employer may suggest a preference one way or the other. Clearly the decision in the legislation is to put forward the proposition that if there is a competition, then the employees must decide who prevails in that competition; that on balance the legislation respects the principle I enunciated at the beginning: it is fundamentally an employee's decision. That's why there is clarification in the word "selection." If you get that kind of competition, the employees will make the decision.

In the case of voluntary recognition it may be true that an employer may wish to voluntarily recognize a particular union. I don't think that point would be lost on people involved in the workplace setting.

G. Farrell-Collins: That's essentially the answer that I was looking for. Perhaps the minister would entertain, if we were to put it forward, an amendment to section 6(1) that would state something to the effect that this does not impinge on the right of an employer to seek voluntary certification -- just so that's made very clear in the bill.

Hon. M. Sihota: I'm not too sure that the hon. member appreciates the distinction between voluntary certification and voluntary recognition. Perhaps he may wish to clarify which of those two he's considering.

G. Farrell-Collins: I'm looking at the scenario we just discussed, where an employer seeks out a specific union for the sake of certifying his employees so he can bargain with them collectively.

Hon. M. Sihota: Can you say that again?

G. Farrell-Collins: Sometimes advisers are an asset, and sometimes they're not.

The scenario I'm dealing with is the scenario that we've been discussing, the case where the employer seeks a specific trade union to organize and certify the employees, and to bargain collectively with them. As we have discussed here, my concern is that if some sort of representation battle takes place that comes back to the employer, the employer could have a case on their hands that they don't need, either financially or legally, or a hassle with it when they had good intentions.

We're looking at clarification of this section to state that if an employer is acting in a gesture of goodwill to certify and bargain collectively with the employees, it will be written into the section. It should state that if that's the intent -- voluntary recognition of certification -- of the employer, then nothing in this section will preclude that from happening.

[10:30]

Hon. M. Sihota: To deal with the comments of the hon. member, I think the reason for hesitation on this side of the House is that they should understand there are different scenarios. If there is voluntary recognition with undue influence, then that is one type of situation. On the other hand, if there is employer top-down organizing, then that's another type of situation. Undue influence on the part of the employer is one type of situation; top-down organizing on the part of an employer is another type of situation; and a third type of situation is where there is voluntary recognition with the consent and participation of the employees.

There are three different situations that come up under these provisions, and I'm not clear which of those three the hon. member is seeking to deal with. If it's the third one, it would seem to me that the issue would be easily dealt with by the Labour Relations Board, given what I originally said with regard to the spirit of this provision. I don't think harm would occur in the situation that the hon. member refers to.

G. Farrell-Collins: I guess I'm fine with that.

In the next part of the question I would like to ask the minister how this relates to the case that we could end up with later, or even here, where it could lead to a discussion of secondary boycotts and non-affiliation clauses. There may be a union and an employer that strike a clause in their collective agreement that limits the rights of the employer to do business with businesses that are unionized. It may even go to the point where they can only do business with unions of a particular affiliation or a particular union. Does that scenario also interfere with the selection and administration, etc., of a trade union? Is that another case that perhaps needs some attention? This section speaks particularly to an employer or person acting on behalf of the employer and states that they should not have any influence on the selection of a trade union. But wouldn't that type of collective agreement in one corporation which another corporation was supplying have the same net effect of determining and causing influence on the selection of a trade union for those employees in the company that was supplying the major corporation?

Hon. M. Sihota: I want to make sure I understand what the hon. member is getting at here. Is he suggesting that somehow there's some inconsistency here? Since we've got this kind of provision here which 

[ Page 4210 ]

restricts an employer's ability to interfere, is he suggesting that secondary boycott provisions do bring about a form of interference, from his point of view? If it's prohibited here for an employer to interfere in that fashion, are you arguing that it's inconsistent then to have a secondary boycott provision that interferes with employers' rights? Is that basically the point you're making?

G. Farrell-Collins: Sort of. What I'm asking specifically is.... My concern here is for the employees. I'm looking at the rights of the employees in this case. Clearly the intent of subsection 6(1) is to ensure that the employees are not victims of unfair influence exerted by an employer on the selection of one union over another or one type of union over another. My question is: what happens in cases of secondary boycott and non-affiliation clauses in the collective agreement of a senior company as they relate to the supplier company and the employees of that supplier company? Could a case not also be made to state that the secondary boycott provision and non-affiliation clause in the senior corporation could have the same effect on the employees of having an influence on the selection -- either yes or no, or what type or which particular union those employees would be forced, through economic levers, to join?

Hon. M. Sihota: Hon. member, the trade union which seeks to certify a particular group would come to that group and make its case. If the employees agree to accept union A as opposed to union B -- and let's assume that union A is strong on the secondary boycott issue and union B is not -- that doesn't mean that the employer has bought into a secondary boycott provision. Obviously it's up to the employees to select the union they want and then negotiate the terms they want. So the potential for a secondary boycott issue arising subsequently as a matter on the negotiating table is just that: it may arise on the negotiating table, and the employees would have to make a decision. In that kind of fact pattern, it seems to me that the principle we've accepted in the legislation is the correct one -- i.e., that it's up to the employees to fundamentally make that decision.

G. Farrell-Collins: Perhaps I can clarify, because that's not the question I'm asking. I agree that the employees should have the right to choose whichever union they want and whether they should certify. I would assume that there should be a vote. The minister disagrees with me on that, but the fundamental right to choose which union or whether they want a union is definitely the right of the employees and not the employer -- or any other employer or any other union, for that matter. The scenario that I'm giving to the minister and asking for his clarification on is a case where we have a large firm that does business with a lot of small suppliers. Perhaps the large firm is the sole client of a number of these small suppliers, or certainly the most significant client of these small suppliers. If that large employer enters into a secondary boycott provision in the collective agreement with its employees, does that not have the effect of the dependent company which supplies the large firm taking those employees and not only determining whether they wish to have a union, but also -- depending on what secondary boycott and non-affiliation clauses are included in the large employer's contract -- providing for an influence on the selection and formation of a union in the smaller company, without the employees necessarily wishing to choose a particular union as dictated by the collective agreement in the other company?

Hon. M. Sihota: We've eliminated the prohibition with regard to section 4(1) -- and, for that matter, section 9(1). It is therefore possible for a third-party employer to negotiate with a trade union a provision with regard to secondary boycotts. That may or may not have some effect on the marketplace.

An employer may want to cry foul; employees may want to cry foul if they take umbrage with that. They may not. But by eliminating the prohibition we have changed the rules of the game as it applies to relationships between employers. Indeed, it may have the effect of putting some considerations before employees and employers that would not be there if the prohibition wasn't lifted.

G. Farrell-Collins: I guess what we're back to is the fact that, according to the minister's statements, there is an inconsistency in section 6(1) in that it precludes an employer or a person acting on behalf of the employer from participating in or interfering with the formation, selection or administration of a trade union. But it doesn't preclude a trade union from negotiating an agreement or a clause into their contract that would do exactly the same thing for the third party or the dependent supplier.

Hon. M. Sihota: I've got to send you right back to the answer that I gave you a few minutes ago. It's up to employees to decide who wants to represent them and to decide what issues they want to put on the negotiating table through the group that represents them. They may want secondary boycott provisions, whether it be with an unrelated employer or with the direct employer.

We will not, as has every other jurisdiction in this country, place blanket prohibitions with regard to secondary boycotts. They exist in some form in every other province in Canada, and employers and employees make adjustments, given the fact that those kinds of prohibitions exist. Should this legislation pass, they will not exist in British Columbia.

So there is not some kind of radical inconsistency here. But there is an interrelationship between collective agreements. That is not in any way unusual in this country, and indeed it was a practice in this province prior to 1987.

G. Farrell-Collins: I'm not sure if I'm not being clear enough or if the minister is just not accepting the argument. Maybe we will determine that in a minute.

The minister said, not more than five minutes ago, that it is the fundamental right of the employees in a bargaining unit to determine whether they wish to certify and which union they wish to become a part of. 

[ Page 4211 ]

If that's the case, then we have a contradiction with this bill. It allows for a third party or a large company -- it doesn't necessarily have to be large, but let's say large for the sake of illustrating it -- and their bargaining unit, their union, to negotiate within their collective agreement clauses that don't just deal with the employee-employer relationship within that corporation, but also have an effect on other, supplier corporations and their employees. The net result is that the collective agreement negotiated with the major employer has the effect of determining -- to use the minister's words in the bill -- participation and interfering with the formation, selection and administration of a trade union outside that bargaining unit in the major firm. It goes down and has an effect on the individual employees in the supplier firm, such that those employees no longer have that fundamental right to choose whether or not they wish to be certified and which union they wish to be certified by.

That is the inconsistency and that is the problem. Perhaps the minister could tell us if he sees that inconsistency and if he views it as a problem.

Hon. M. Sihota: The hon. member is essentially getting into a debate with regard to top-down organizing. That's where he's trying to take this debate. The proper place, as he knows, for that debate is when we deal with the issue elsewhere in the legislation -- I guess. But I am not going to prohibit his opportunity to deal with that issue here. If he wants to deal with it here, that's fine. But let's face facts: what you're trying to deal with is the whole issue of top-down organizing. I accept that. I would only remind the hon. member of what I said -- and he knows what it was that I said -- during the course of second reading debate with regard to that issue and the assurances that we've offered on that point.

[10:45]

G. Farrell-Collins: Then I assume it's the intent of the minister that this bill and this section in particular will in no way encourage top-down organizing.

Hon. M. Sihota: Hon. member, let's not play games here. You know full well that you are indirectly trying to use this section to get a point out that has been dealt with already in second reading debate. I've amplified on that point to the extent that I'm prepared to amplify on it; my comments with regard to that issue in second reading debate still stand and nothing has changed from the statement that I made at that time.

G. Farrell-Collins: The intent behind this debate -- and I won't belabour it long, because I doubt we'll get the minister to say what I think the majority of employees in the province would like to hear him say, which is that, yes, the minister believes in the fundamental right of employees in a bargaining unit to determine whether or not they wish to certify and under which union they wish to certify.... Despite those assurances by the minister, he is not willing to state categorically that it is not his intent in any way in this bill to facilitate top-down organizing. So there is an inherent conflict, I guess, in what the minister is saying. There is a clear conflict between what the minister is saying.... It highlights itself in subsection 6(1), in that the minister refuses to deal with undue interference in the formation and selection of a trade union. We have obviously reached a point where the minister is saying one thing on one hand and another thing on the other hand. We'll just have to take it for what it's worth.

Hon. M. Sihota: It's astonishing that the member opposite would use this chamber to play politics, but that's exactly what he's doing. The hon. member knows full well that we are currently discussing these issues with elements of the business community; he's aware of that fact. There's a difference here between the government and the opposition, hon. Chair. The government would prefer to -- and I'm sure will, over time -- develop an understanding with the business community that gives them the appropriate level of comfort with regard to concerns that they have. It's our goal as an administration to try to work out these issues with business and labour. As I said, there's a fundamental difference here. The difference is that we will consult with the groups to deal with the issues that provide them with concern. I have not yet seen the opposition engage in a broad-based consultation with both labour and business in the same room, so that they can seek answers and develop a mutual understanding with regard to these issues.

As I said earlier, the hon. member has to understand that the fundamental theme of this legislation is that we fully intend to change the adversarial and confrontational relationship which has marked labour relations in this province for so long. In order to do that, it is absolutely essential that labour and management participate in the developing of the legislation. They participated in the development of this legislation to the point where they are able to agree on 98 percent of the issues -- 160 out of 164. Indeed, it should be true that this provision before us, section 6, is one on which there was unanimous agreement by labour and management. Hon. members should therefore understand that if there are to be assurances, they will not be given in a vacuum; they will be given only after the process of consultation is complete. Why is that important? That is important because if we can get management and labour to agree on the understandings with regard to these provisions, then it goes a long way towards bringing about the change in attitude that I referred to earlier.

The Chair: Just before I recognize the member for Fort Langley-Aldergrove, I'd like to remind members that sometimes the conversation in the House gets to the point where hon. members can't hear debate. The Chair would appreciate it if hon. members would bear that in mind.

G. Farrell-Collins: The minister is correct: this bill and certainly this section do illustrate the fundamental difference between the New Democratic Party and the Liberal caucus -- that is very clear. We have 

[ Page 4212 ]

greater interests than just the labour community or just the business community. We have the rights of individuals at heart, and they are, in our minds, always paramount. So while it is important that one consults with business and with labour -- and we have done both -- it is not the intent of this caucus to put the two of them in a room and let them battle out what their labour code is going to be, because the effects of the labour code extend far and wide beyond the individual interests of labour and the individual interests of business. They extend directly to the individual employees in this province and the people of this province, who don't have anything directly to do with this bill but may come under the influence of this bill in the future.

The example we're dealing with right now is that of top-down organizing, enforced certification and enforced selection of a particular trade union, despite the wishes of the employees in that group -- and despite all the minister's rhetoric about the importance of the fundamental right of employees to choose whether or not they wish to be certified and what union they wish to be certified by. The reality comes out when the minister talks about top-down organizing. If he really had the rights of individual employees in mind, he would have mentioned that in his last little speech. He would have brought them up as one of the players in the groups, and he wouldn't be meeting behind closed doors with business and labour to try to strike a deal. He would have this piece of legislation with the standing committee out around the province where individuals in this province -- the concerned people who are writing letters to the editor and phoning but aren't members of a union or employers -- would have the right to give some input.

That is the fundamental difference between that caucus and this caucus, and that is where we're headed with this section. That is why we are seeking from the minister a guarantee that it is not his intent in any way in this bill, and particularly in this section, to force certification on unwilling employees or to force one union over another union on unwilling employees because of the sections that he has left in this code that would permit secondary boycotts and top-down organizing. That is the fundamental difference, hon. Chair, and I think that people will come to realize the fundamental difference and will vote accordingly in the next election.

Hon. M. Sihota: Hon. Chair, let me deal with the points that have been raised by the hon. member so that the record is very clear on these points. This government has a responsibility to act in the public interest. That's what guides its deliberations with regard to labour legislation. That's a point which the Liberal opposition in this province will never understand: we have an obligation to make decisions in the public interest.

With regard to labour....

Interjection.

Hon. M. Sihota: If the hon. member would just be quiet for a moment and let me make my point....

The hon. member should understand that with regard to labour-management relations, he should ask himself how the public interest is to be served. We have had, for the better part of our history as a province and since we had competition between labour and management, a highly polarized province -- the hon. member understands -- with a highly adversarial and confrontational relationship between employers and employees. The nature of that confrontation has been heightened by the provisions of Bill 19 and the process undertaken with regard to that legislation. It is fundamentally in the public interest, hon. member, that that attitudinal change occur.

One of the ways in which that change will occur is if the parties themselves are involved in the drafting of the legislation, have input with regard to the legislation and participate in the demand of government that they respond to a higher calling -- i.e., to put aside the confrontation of the past and to engage in a system of building trust with one another.

Why is that in the public interest, hon. Chair? It's in the public interest because only in that way can we move away from the adversarial situation we've had in this province, and only with labour and management cooperating can we move to a structure where we can effectively compete with the global competition that we find ourselves in right now.

Interjection.

Hon. M. Sihota: The hon. members opposite say that they agree with those provisions or those statements, and I'm delighted that they agree with those objectives.

J. Tyabji: Take it to the public.

Hon. M. Sihota: They say: "Take it to the public." We'll get to that in a moment. They agree. But not one of the amendments that they have brought before this House to date has been the product of that type of consensus building. Not one of the amendments that they have brought to this House has had the consent of all the parties.

C. Tanner: You don't know that.

Hon. M. Sihota: The hon. member says I don't know that. I know as a fact that the Liberal opposition, since the introduction of this legislation, has not yet once met with labour -- particularly the B.C. Federation of Labour or its officers -- to discuss changes in this House.

G. Farrell-Collins: On a point of order, the minister is no longer relevant to the debate. The fact of the matter is that our research department communicates frequently with the B.C. Federation of Labour, and whether or not we invite them into our caucus to have backroom meetings is irrelevant.

Hon. M. Sihota: That is a lie.

G. Farrell-Collins: It's not a lie.

[ Page 4213 ]

The Chair: Order, hon. members. The Chair has allowed some latitude. I would remind members that we are on third reading. Keep it relevant to the appropriate sections.

Hon. M. Sihota: The hon. member said: "Through our research department we've had contact with the B.C. Federation of Labour." Well, we'll check into that. But the fact of the matter is that the hon. member, who is the Labour critic for his party, has not taken the time to bring all the parties into his office to try and seek a reconciliation of the views that they have. Introducing unilateral amendments based on the political interests of the party opposite is not the way to bring about changes.

Interjections.

The Chair: Order, please. The Chair would remind members that we are on third reading, section 6. Please keep your comments relevant.

Hon. M. Sihota: I'm just dealing with the comments of the critic opposite and pointing out that the difference between this side of the House and the other side is that we recognize the fundamental public interest responsibility of engaging the parties, whom this legislation purports to affect, in the development of the legislation. We're prepared to do that. We have not yet seen that in any amendments that have been introduced opposite.

C. Tanner: Go public.

Hon. M. Sihota: The opposition says "go public." Let us not forget that we have had 11 months of public consultation with regard to this legislation. Let us not forget that this provision has the unanimous endorsement of labour and business with regard to its existence.

Let's go further, hon. Chair. The hon. members opposite, who have in a rather remarkable way demonstrated their ineffectiveness as a political party during the course of this debate, are demonstrating here again today that they do not understand the section which is before the House. The section applies only when there is a charge laid -- if I can use that language.

There are examples, within the context of what the hon. member raised earlier in this House, of situations where there obviously would be no issue brought before the Labour Relations Board. If there was a frivolous issue brought before the Labour Relations Board, then the board could obviously make a decision with regard to that, because they've got the latitude. If the hon. member had taken some time to read the jurisprudence on this matter, he'd appreciate that section 6(1) has been interpreted with a great degree of latitude and flexibility in the past.

[11:00]

Let's make it clear. There is, therefore -- to use the words of the hon. member -- "a fundamental difference." On this side of the House, we involve the public. We had a public process of consultation and input. Ninety-eight percent of the provisions were agreed to by business and labour. The opposition will never accept that, because they can't accept the fact that this government has been successful in achieving "fair and balanced" with regard to labour legislation. It is not within their political agenda to ever admit that the administration on this side has met the high standard of achieving consensus between the parties, nor will they ever be honest enough to admit that provisions like this are a product of something that they're not prepared to do: i.e., collaboration between business and labour.

Hon. Chair, if I may conclude on this point. They will engage in unnecessary fearmongering, unnecessary fears and threats, with regard to what may be the purported effect of the legislation. They fail to acknowledge that the fundamental responsibility of an opposition in our democratic society is to make calm and rational arguments and put them before the House. It's not to engage in predictions of doom, to be agents of fear and to suggest that things that are so far out of the realm of probability are going to exist. Yet they would have you believe that should this section somehow pass, the sky will fall in. The hon. member doesn't seem to realize the basic point, and the basic point is: secondary boycott provisions existed in this province prior to 1987, and the sky didn't fall in; they exist in some form in all of the other provinces in Canada, and the sky hasn't fallen in.

All I can do is request that the hon. member show some caution, some temperance when making his points and not engage in the rhetoric of fear, which quite honestly has no place in this debate.

G. Farrell-Collins: That was very entertaining, extremely dramatic and good theatre. But the reality is that given the tenor of the debate last week, my intent was to come into the House today to engage in a rational discussion with realistic questions. If the minister wishes to go back and review the Hansard of the past hour, he will realize why the tenor of the debate in this House has sunk so quickly to the tenor of the debate that existed in this House before the last election. The minister used to be in opposition, and he's using the same tactics and mannerisms that he used in this House for the past six years. That is the type of thing that the people of this province voted against, and they'll vote against it again. They'll vote against that minister.

The minister made an interesting set of arguments that really do contradict each other. I don't want to belabour the point, because I think it's becoming quite clear that the minister does believe in top-down organizing. He is convinced that it's necessary to ensure that secondary boycotts exist in the province, and that's the way to go.

I have never for one minute said that the sky's going to fall or the world is going to end, nor have I been fearmongering. I've been asking the minister for interpretations of the types of scenarios that may arise -- what he feels the result would be of this legislation. This is the rule book that the Labour Relations Board is going to use to make fair cases and fair judgments on behalf of the people of this province.

At the same time, we don't want frivolous cases to come before the Labour Relations Board, because it 

[ Page 4214 ]

costs money every time you have to go before them. I am sure that reductions of expenditures is something that a minister of the NDP Crown -- and particularly this government -- doesn't understand the significance of, but the reduction of expenditures is critical to the employers of this province. We don't want to see frivolous cases go before the Labour Relations Board. We don't want to see employers who voluntarily recognize a union or voluntarily go out and seek certification of a union for their employees somehow end up in a fight between two or more labour unions. That's a significant and reasonable question to ask the minister, and it's reasonable to expect him to give us his interpretation. We seem to have achieved that to some extent from the minister.

The other half of the argument is: how does that relate to...? If he believes that it's important for employers not to have the right to do that, does he also agree that it's not the prerogative of unions to negotiate those types of contracts? That is very important, and it's the type of answer we're seeking from the minister.

Unfortunately, when the minister runs out of substance, he tries to rely on the smug and arrogant style that did him so well when he was up against the former government. The reality is that he's now a minister of the Crown. Instead of shredding bills he now has to defend them. His stance and mannerisms in this House show that now that he's into the second week of the committee stage on his very first bill as a minister of the Crown, he's finding it very difficult to shed his arrogant and pompous attitudes and the frivolous arguments he used in opposition against the previous government. Instead of defending his bill he chooses to attack the opposition. Whenever he runs out of reasoned arguments for the provisions in his bill, he attacks. He attacks vociferously. He throws his rat pack uniform on, lashes out at the opposition and tries to debase the opposition. That's fine. People can see through that, and people can see through the type of government that this minister is particularly responsible for.

The reality of this section is that the minister talks extensively about the way things were for so long in British Columbia -- everything was great in British Columbia, we had secondary boycott provisions, we had this, we had that, we never used to have the vote and everything worked fine. Yet in the next breath the minister will say that we don't want to go back to the confrontational attitude we had between business and labour in this province, and we don't want to end up with battles going on all the time.

The minister should realize that perhaps there were those battles in the past because of unfair labour legislation brought in by various governments -- not just by his own in the past, but by other governments also -- and that there should have been a higher principle involved than just satisfying business and labour. Maybe there should have been some principles to deal with the fundamental rights of individuals. Had that been a guiding principle in the drafting of legislation, perhaps we wouldn't have had some of the problems of the past, and perhaps we wouldn't have some of the problems that we're likely to see under Bill 84.

We have brought up a number of things, and the minister went on and on about consulting behind closed doors in a back room with business and labour to get them to agree with this labour legislation. Once again he fails to mention the individuals. It is no longer satisfactory in this province or in this country for backroom deals to be struck on anything, whether it be labour legislation or the constitution. The people of the province and the people of the country simply won't stand for it.

When the minister is cutting these deals and calls it consultation.... Well, when the Social Credit government did it, he called it backroom deals. I wonder what the difference is. Is it just that once you're on that side of the House things look different? I don't know. I hope to God that that is not the case. I hope the minister understands that what was wrong then is wrong now. In trying to seek a consensus on labour legislation, the minister is excluding the general public. Yes, he has labour in his office, and yes, he has business in his office, but he's not dealing with the general public.

We're the Liberal opposition. We're not the government. The New Democratic Party is the government, and it is his right -- his duty -- to solve the problems of the Labour Relations Code. We are trying to help him in whatever ways we can. We are bringing forth amendments. The gist of an amendment brought forth the other day was by the B.C. School Trustees' Association and the B.C. Principals' and Vice-Principals' Association, and the minister refuted it. He felt that it wasn't a good amendment.

That's fine. He has a right to do that. He is the minister, and he has his 50 other cohorts here who vote with him whenever he demands it. But the reality is that there is a fundamental difference. What the government should have been doing with this bill, and what they should be doing particularly with....

B. Copping: Point of order. It's my understanding that committee stage isn't to be used for patronizing lectures. It's for discussing clauses of the bill.

The Chair: That is true, hon. member. I would remind the hon. member that we are on section 6 in committee stage and to keep his remarks relevant.

G. Farrell-Collins: I was merely responding with the same latitude that was accorded the Minister of Labour. I'll try and keep to the section, however, and I will keep to section 6(1). I hope that the member for Burnaby Mountain will rise on a point of order every time the minister tears off on one of his tirades. Mine at least is temperate.

The problem with section 6(1) is that I and the Liberal opposition feel that there may be a case here for problems, and there is an inconsistency in this section -- which we've illustrated, and which the minister has helped us to illustrate -- as it relates to the ability of an employer or a person acting on behalf of that employer to participate in or interfere with the formation and selection of a trade union.

The powers accorded are not accorded to a trade union to do the same. We are merely trying to highlight 

[ Page 4215 ]

that discussion, highlight that inconsistency and make the minister aware of it. Perhaps, if the minister is aware of it, we can reach some amendment which would preclude that from happening. That's the only intent behind what we're doing. As I said, when the minister runs out of substance, he turns to style, and we know what happened to the Premier of this province who used that same method.

J. Tyabji: With regard to the last part of section 6, I'd like to get some comment from the minister, and I hope we can get some constructive comment happening here.

I'm a little bit confused on subsection (4)(b). I'm very happy to see (4)(b) in the bill, but it seems very inconsistent with many parts of bill that don't allow for that. For the minister's edification, we're talking about:

"Despite subsection (3), except as expressly provided, this code shall not be interpreted to limit or otherwise affect the right of the employer to (b) make a change in the operation of the employer's business reasonably necessary for the proper conduct of that business."

I'm really happy to see that in there, but I find that inconsistent with many of the things that we've seen and many of the words we've heard come out of the minister's mouth. I'd like some clarification from the minister as to what he sees.... I'm not talking about jurisprudence or past example, and I hope the minister understands the difference. I'd like to know how this minister envisions this happening in terms of future practice, given section 2 of the bill -- and we all know what section 2 is for -- and given the fact that we now have a partisan commissioner. How does the minister see (4)(b) being interpreted in terms of "reasonably necessary" and "proper conduct"?

Hon. M. Sihota: I heard the hon. member make reference to a partisan commissioner. I would take issue with that. I have no difficulty answering the hon. member's question, but I would hope that the hon. member has no difficulty in withdrawing any allegations of bias on the part of the commissioner.

We appointed a new commissioner to the Industrial Relations Council, and it's been applauded throughout the community. I think the record of that individual over the past six or eight months since he's been on the job has been one that has demonstrated over and over again his ability to make fair, judicious, independent and impartial decisions. I've yet to hear any criticism, until now, of the individual in his job.

I'm sure the hon. member would not wish to impugn the integrity of the Industrial Relations Council by suggesting that there's bias inherent in an individual who heads up that commission. And I would hope that when the hon. member rises in debate, she will make the point that the chair of that panel has done an outstanding job of being fair, balanced, independent and impartial. And I trust that she will agree with me that with an individual of the quality and the calibre that Mr. Lanyon has demonstrated himself to be, it ought not to matter whether the individual has had a membership card in any political party. That's not a consideration. We hire people to do the job. We look at their background, their skills and their expertise. In the case of Mr. Lanyon I think it's fair to say that his work and his appointment have been congratulated by all aspects of the labour relations community. I find it distressing that the hon. member would in any way seek to suggest that there's some bias simply because he belonged to a particular political party in the past. I think the hon. member knows better, and I suspect that she'll correct the record when she speaks.

[11:15]

With regard to section 6(4)(b), it is a section which existed in the previous legislation, and I'm sure the hon. member, having informed herself with regards to debate on this matter, is aware of the jurisprudence which surrounds it.

J. Tyabji: For the sake for the record, I'd like to state categorically to this minister that I think it's only this minister who would assume that referring to someone's personal history as it relates to his own party is somehow impugning the person's character. My comment is a statement of fact. It is not impugning the integrity of the person, but it is making a reference to that individual's world view. Each one of us comes into this world with a world view. That's a statement of fact.

Unfortunately I did not get an answer from the minister. I think he was so distracted by his long, rhetorical tirade that he didn't realize that I said specifically I do not want a reference to jurisprudence and past example. I would like to know from this minister if he has the capability to tell us how this will be used in the future and how labour practice will be used with regard to subsection (4)(b), specifically with reference to reasonably necessary and proper conduct. How does this minister see that happening in terms of labour practice, not prior jurisprudence? Because we now have section 2 of Bill 84, which will change dramatically the way in which labour practice comes out in the future.

Hon. M. Sihota: On section 2, the hon. member knows that from the debate there; either that or she's forgotten that there was a purposes section in the previous legislation under section 27. In addition to that, the hon. member is correct in saying that there are some changes in 2 as opposed to section 27. She is wrong to suggest or imply in her question that it's for me to make all of the interpretative decisions. That will be left to the Labour Relations Board. That's why we have a board.

In addition to that, with regard to section 6, I think most who would read it would understand that what it seeks to achieve is to say that an employer may carry on their business and, in fact, make alterations to their business activity subject to the other provisions in section 6. It's an indication that we accept the point that it's okay to carry on your business, but you have to do it within certain parameters. Those parameters are spelled out in the provisions of section 6.

It's one that the hon. member says she doesn't take issue with and it's not one that I take issue with. It is appropriate for someone to proceed with those changes in their business necessary for the conduct of their business. They should be entitled to do that so long as 

[ Page 4216 ]

they don't run afoul of the other provisions in this section.

J. Tyabji: If the minister says that the business should be allowed to take reasonable action to continue to ensure that that business can operate, how does that translate with regard to section 68 -- or as it refers to here, "Despite subsection (3),..."? I know we're on 6(4), but the reason I'm asking is that it seems to me -- and I hope the minister's paying attention -- that one reason for this section might not be to state the obvious. That is that an employer should have the ability to keep their business operating, but....

The point is that it seems to be coming clear that the real purpose of 6(4) is not to state the obvious -- the employer should have the ability to keep the business running -- but to state that the ability to keep your business running can be undermined, except as expressly provided in section 68 and section 6(3). If that is the case, then I'd like this minister to stand up in the House and say that he feels that a business's ability to run, in terms of this bill and the proper conduct of that business, can be undermined by the other provisions of this bill: that is, that he feels that it is reasonable to disallow changes that are reasonably necessary for proper conduct if they conflict with parts of this bill, and that he therefore feels that a business should shut down before not conforming with things like the replacement workers provision, which, we have seen in this House, he is going to allow to go to the extent that a family operation cannot bring in family members to help with the business to prevent it from folding. That's basically what I'm getting at. Is section 6(4) really here just to say that this minister is quite happy to allow businesses to go under if they don't meet the needs of his bill?

Hon. M. Sihota: Hon. Chair, I listened to this member's question, and no government is interested in introducing legislation which terminates economic enterprises in this province. That kind of question.... It's a peculiar one. The section is here. But the direct answer to the hon. member's question is no. I don't think the intent of any legislation is to deny economic enterprise. But it is, if I may give an illustration, to recognize that there are rights and responsibilities in society. I'm sure the hon. member must understand that no right is absolute.

Let me just give a simple example: freedom of speech. We all accept freedom of speech to be a right that's enshrined in our Charter of Rights. But it's not absolute. Freedom of speech doesn't mean that one can engage in profanities or, as I think was said in a famous court case in the United States, that one can yell "Fire!" in a crowded movie theatre. There are limitations on all rights. And all rights are defined and restricted either by judicial interpretation -- common law -- or by statute. There are provisions found now in section 6(4)(b), which the hon. member refers to. They are subject to the other provisions that exist in the legislation. So there's a balancing of rights.

For example, section 6(4) says that people are entitled to run their businesses, but section 68, which we haven't debated yet and which the hon. member seeks to bring into this debate, says very clearly that violence and brute force have no place in British Columbia. What we're saying in this legislation is that yes, we encourage economic enterprise in this province, but we are not going to encourage violence. If the two clash, then there's an explicit provision that says: "Look, go out and solve your problems, employer and employee, but don't do it by resorting to violence." Violence and brute force have no place on the picket lines of British Columbia. We've seen too much violence in the past with regard to picket lines elsewhere in the country and here in British Columbia, and we don't want to see that.

No right is absolute; they're constrained -- and this is what this legislation says. So hon. members should understand that if you take one section, it has to be read in the context of the balance of the legislation -- and that's exactly how section 6(4)(b) should be interpreted. It should be interpreted in the context of the balance of the legislation, which is a balancing act between rights and responsibilities, hon. member.

J. Tyabji: Hon. Chair, I'm so happy to have finally gotten the minister on his feet saying that it is not his government's intention to terminate economic enterprise. Hear, hear! Well, maybe we can get some amendments through on this bill then, because this bill will definitely result in the termination of a lot of economic enterprise, specifically small and medium-sized businesses.

Hon. M. Sihota: On a point of order, this is section 6, not some general second reading debate on whether or not this legislation will terminate economic enterprise.

J. Tyabji: Point of order. Hon. Chair, I'd like to point out to the minister that my remarks are in response to his remarks on the committee stage of section 6.

The Chair: Thank you, hon. members. I would remind you that we are on section 6 in committee stage and would ask that you keep your remarks strictly relevant.

J. Tyabji: Hon. Chair, I always tailor my remarks to be as relevant as possible. I'm sorry if the minister doesn't realize that this is actually a response, and that's what you do in debate: point, counterpoint.

Now that the minister has said that it is not his intention to terminate economic enterprise, I would like to point out to him that if he keeps the words "...except as expressly provided..." in 6(4), he will definitely end up terminating economic enterprise by section 68. If this minister continues to stand up and state to the House that it's either economic enterprise or prevention of violence -- I don't understand how that relationship comes in, and that somehow in the pursuit of economic enterprise violence ensues, which may be this minister's black-and-white vision of how the economy works in B.C.; certainly that is not the view of the opposition -- then I would like to point out to the minister that long before we get to section 68, we will get to section 9. Section 9 deals with violence and coercion; therefore we can get rid of section 68 altogether.

[ Page 4217 ]

But having dealt with that, in 6(4) this minister should make that point to the House if he definitely means that he doesn't intend to terminate economic enterprise. To what extent does that weigh more heavily in the balance than his commitment, through section 6(4), reference to subsection (3) and "...except as expressly provided," which is obviously section 68...? Which is heavier in the scales -- economic enterprise or the labour provisions that disallow economic enterprise to continue in the event of a dispute?

Hon. M. Sihota: This legislation will not bring about an end to economic enterprise. Economic enterprise will continue to flourish in this province. Indeed, as the hon. member knows full well, this legislation has laid the catalyst for further economic development in this province. She knows that; she has heard that speech. She knows that there's a balancing act with regard....

Well, if the hon. member wants to sit there and make all sorts of gestures and heckle, she is obviously not hearing what I have to say.

The point here is that there is room in this province for economic activity. This legislation will encourage economic activity. In fact, it will allow it to flourish because it will encourage labour and management to work together. Your doomsday scenarios, hon. member, are just that. They're fearmongering on the part of an opposition that somehow thinks that having this section in 6(4) and tying it in with section 68 will cause businesses in British Columbia to shut down on every street corner in the province. Well, that is such remarkable and pathetic hyperbole that I'm reluctant to dignify it with any more than that kind of a response. Economic activity will continue -- you have my assurance, hon. member -- in this province. It will continue with this kind of provision in there just as it has continued in the past with this kind of provision in there. Rest assured, hon. member.

J. Tyabji: We still have not heard from this minister which is heavier in the scales: the continuation of economic activity or the allowance of the provisions of section 68, which is allowed for here. Basically buried away in section 6(4) we finally have some recognition that a business should be allowed to take action that is reasonably necessary for proper conduct of the business.

I find myself in the situation of asking a question of a minister, and I don't think he's going to be in a position to respond.

An Hon. Member: Because he's not here.

J. Tyabji: If I'm to understand, there will be a response from the bench.

[11:30]

The Chair: Order, hon. member. All members are aware that they should not comment on the presence or lack of presence of any member in this chamber. I would remind members of that.

B. Copping: I'll certainly be able to relay any debate to the minister.

W. Hurd: Point of order. Could the Chair advise the House whether we have a quorum in the chamber?

The Chair: There is a quorum. The House will come to order.

J. Tyabji: With regard to section 6(4)(b), I understand we are getting a response to this. I would like to hear the response on the definition of reasonably necessary and proper conduct.

The Chair: Opposition House Leader?

J. Tyabji: I'm so happy the minister is now in a position to answer the question.

We were finally getting some idea from the minister as to which weighed more heavily in the balance: the continuation of economic enterprise or the labour dispute. In the event of a business being put in a position where further economic enterprise for that business would not be viable due to the labour dispute, would the minister see that as an example where that enterprise could use section 6(4)(b) to override or make other provisions, such as 68(3), more flexible?

Hon. M. Sihota: The hon. member knows full well that the board makes determinations of what issue will be given what weight. She knows that full well based on the fact pattern that comes before it. If she had taken just a moment of her research time to look at this issue, she would know that these types of issues come in front of the Labour Relations Board regularly. In fact, those who are informed with regard to these matters -- and I would hope that members opposite are -- know that somewhere in the neighbourhood of 600 cases have come up the last couple of years with regard to these types of considerations. It's an active area of consideration for the board.

The hon. member should understand that in our system of governance the board should be given latitude to make decisions concerning these kinds of issues. She should come to understand -- I hope she will by the time this debate is over -- the proper relationship between administrative tribunals and debate in this House. Administrative tribunals ought not to have their discretion unduly fettered by debate in this House.

J. Tyabji: This minister shows a complete lack of understanding of the line between where he should have some say and where he can pass the buck. It's amazing that every time we ask this minister a question he feels comfortable with, he feels free to give us an opinion on things like section 6(4). However, as soon as we ask him a direct question concerning whether a business will be allowed to continue to operate given the provisions of section 68(3), he passes the buck. It's totally unacceptable. He's not fooling anyone. The rest of the province realizes that he is allowing his agenda to show just by refusing to answer some of the questions.

Here is a direct question to this minister: given section 6(4)(b), does this minister feel that the anti-replacement worker legislation should let a business no longer be viable? Should a business shut its doors in order to fulfil section 68, or is he going to allow section 

[ Page 4218 ]

6(4)(b) to allow that business to remain open? It should be this minister's response. This minister has given us answers on many other things. All of a sudden, when it comes to an uncomfortable answer, something that he doesn't want to share with the House, he passes the buck.

Hon. M. Sihota: Well, it's not a matter of passing the buck. It's the fact that the hon. member of the opposition just does not understand the relationship in our society between this chamber and the administrative tribunal. We're not here to deal with hypothetical cases. If there is a particular fact pattern that comes before us, then that fact pattern is dealt with by the Labour Relations Board. That's why we have a board to deal with these issues.

With regard to anti-scab legislation, the hon. member knows what section 6(3)(e) says. She debated it for a full day last Thursday, so she should understand exactly what it means in terms of preventing an employer from authorizing or permitting the use of services by persons in contravention of section 68.

When there is a disruption, when there is a strike or a lockout, there are economic consequences for both parties to be engaged in those kinds of activities. The hon. member knows full well that under our free collective bargaining system, the fact that one party is inflicting -- if I can use this language -- economic harm on another forces the parties to either engage in lockout or a strike to resolve their differences. It's not a preferred weapon, but it is one of the weapons that is used with regard to these types of matters.

It is also true that with regard to this type of legislation, an employer has the ability to make an application to make an argument under section 64. That's an effort in the legislation to balance competing interests; and as the hon. member knows from just a moment ago, there have been many applications with regard to section 64. If she puts her mind to that jurisprudence, she would realize that all sorts of fact patterns come up. We will not comment on hypotheticals, because it is not the place of this chamber, nor of this minister, to do that. But it is well within the realm of the Labour Relations Board to deal with the actual fact patterns that come forth.

Interjection.

Hon. M. Sihota: The hon. member seems to have an appalling lack of understanding when she heckles across the floor that I have the final say. The hon. member should know that as the Minister of Labour I do not walk over to the labour Relations Board and tell them how they ought to adjudicate on particular decisions, no more than the Attorney General walks over to the courthouse and tells a judge how to adjudicate on particular decisions.

The hon. member should know full well that if cases come up, the Labour Relations Board will deal with the issue.

L. Hanson: I listened with great interest to the minister's response about public consultation and how that consensus was reached. Although I recognize that that is second reading debate, the minister is the one who raised it. I ask the same question that I asked earlier. Which member of the public asked to have education precluded from the act as an essential service? I can go on for a number of those.

My point is that the minister's suggestion of the public consultation and so on might have some validity if he had circulated the report prior to bringing it into the House. The question I have for the minister is not really on section 6. Since the act doesn't have any reference to the old 4(1) and 9(1), under which section would the minister feel most comfortable in discussing the secondary boycott issue?

Hon. M. Sihota: The strict answer to that question is that there is no provision in the legislation, quite frankly, hon. member, that would allow you to discuss it. You know that as well as I do. I'm in the hands of the Chair in terms of when the Chair considers it relevant.

The Chair: The Chair would take the liberty right now to say that the Chair would not rule this section relevant to the debate. So I hope those comments guide the hon. member in his next question.

L. Hanson: I'd sooner use the minister's comments to guide me in the next section, Mr. Chairman, but I have heard your comment.

I guess the minister, in this consultative mood and recognizing in his responsibility as a minister of the Crown how important the public interest is, surely would not be against debating the merits of secondary boycott or the lack of such. So, hon. Chair, I still ask the same question of the minister. It was my suggestion that we should discuss it under section 9 because there is some relation to using coercion and intimidation to join or not join a union. This seems to me appropriate under the secondary boycott topic.

[11:45]

Hon. M. Sihota: The hon. member suggests that I would not be averse to debating secondary boycott provisions. Clearly the government is not averse. But I would remind the hon. member that there's a purpose for second reading debate. We've had second reading debate. Second reading debate dealt frequently with the issue of secondary boycott. I didn't count all the references, but I think all members in this House would agree with me that it was a highlighted point of debate at that time. It would seem to me that that was the time and the place to discuss the issue, apart from any specific provision in the legislation.

With that said, and given the fact that there was ample opportunity -- indeed taken advantage of -- for the two or three weeks prior to us getting into committee stage, it would seem to me that we've already had a lot of discussion of secondary boycott, which we were happy to engage in at the time. But it may not be relevant any longer with regard to section 6, and the Chair may want to rule on it when we get to section 9.

W. Hurd: While I respect the earlier comments of the minister that the Labour Relations Board has considerable latitude under this particular section to 

[ Page 4219 ]

interpret what exactly constitutes undue influence, perhaps I can return to the letter written by Mr. Georgetti this morning, which I believe bears directly on section 6. It pertains to family-owned businesses, hon. Chair, where an owner's son, who was not an employee, was alleged to have cast a ballot in a union representation vote. Perhaps I could ask the minister whether, in a situation where the owner's son is in fact an employee, that individual, in the opinion of the minister, would be in any way restrained from participating in the formation of the union or in supervising its certification efforts. Would there be any restraint on the employer's relatives, in the opinion of the minister, as it pertains to this section of the bill?

Hon. M. Sihota: As you know, the provision says: "An employer or a person acting on behalf of an employer...." Therefore the board would have the discretion to look at that situation to determine whether the son -- to use your example -- is a bona fide employee or a person acting on behalf of an employer seeking to interfere with the formation, selection or administration of a trade union. The discretion with regard to that would be best in the hands of the board.

W. Hurd: To further clarify that point, in a family-owned business where there may be many employees who are related to the owner of the company, can the minister give us some idea of how their status might be dealt with by the Labour Relations Board, as it pertains to this particular section of the act? I'm thinking of small businesses that might be involved in the construction industry, for example, or other specific small business enterprise where, by virtue of economic necessity, the family is involved in the business to some degree. I'm certain that those businesses would take a high degree of comfort in the minister's assurances that they would be able to participate in the ongoing discussion before the major step is taken to certify a small business.

I am sure the minister is aware that during the certification process there's a great deal of discussion among employees about the pros and cons of certification and the financial and economic status of the business. We'd like some assurance from the minister that people wouldn't be precluded from this discussion merely by virtue of a filial relationship that they might have with the employer. I am sure the minister would agree that this is particularly relevant in many small businesses in the province today.

Hon. M. Sihota: Nothing in this legislation denies an opportunity for a family member to be involved in a business. Nothing in this section denies an employer hiring whomever they want to hire. This legislation will therefore not impact on family relations or family hirings.

It will, as it always has, take a look at the nature of relations in the event of an application brought before it by either an employer or a trade union. It may, for example, recognize that family members have worked as employees of a company for five, ten or 15 years prior to the certification application coming forward. Or it may note that in a unit of five people, three family members were hired on the eve of the certification application being made. They'll look at those fact patterns and try to determine whether or not the intent is inconsistent or consistent with the intention of section 6.

That's the latitude that's given to the board. It's not for me to make judgments on those hypotheticals, but it is clear to me that family members will always have a place in businesses. You know that as well as I know that. Nothing in this legislation prohibits them, but there are some limitations in the legislation with regard to unfair labour practices. They've been the subject of considerable jurisprudence in the past, as I'm sure they will be in the future.

W. Hurd: I think this is an important debate for family-owned businesses in the province which might be in some way adversely affected by the determination of the Labour Relations Board as it pertains to section 6(1). Is the minister suggesting that the employees who happen to be related to the owner of the business will be in any way restrained under this particular section from participating in the debate that I alluded to earlier in the certification process? Are they to be concerned now that they might in some way be in violation of this section if they were to, say, as employees of a business, argue against certification of the business? I'm sure that although the final determination would be made by the Labour Relations Board, again I issue this plea to the minister on behalf of family-owned businesses. Surely he's willing to outline to the House his categorical assurance that employees who are related to the owner of the business will have free speech and free communication as employees of the business, particularly as it pertains to the certification process, without fear that their relationship with the employer, whether it be a direct relationship as a son or a daughter, will in any way restrain their rights as potential union members.

Hon. M. Sihota: They will have free speech and free input if a board determines on a particular fact pattern that they are employees within a bargaining unit and not there on behalf of an employer participating or interfering with the formation, selection or administration of a trade union. Those kinds of situations will be dealt with by the Labour Relations Board, and the hon. member knows that. He knows that there were a lot of cases like this in the past. They will continue in the future, and they will be dealt with by the Labour Relations Board.

We have not seen any restriction in the past with regard to family members being involved in businesses. They have been accorded all the rights and privileges that come with being employees, provided it's in concert with the provisions of the legislation. The hon. member knows that. It's not really appropriate to be mischievous and suggest that somehow this means family members can't be involved in businesses. They can be, hon. member.

W. Hurd: The question I'm asking is not about whether they can be involved in businesses; it's what their involvement can be during the certification process of a union. Perhaps I can ask a question about the claim by Mr. Georgetti in the paper this morning that 

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under the previous legislation, unfair labour practices soared by an astonishing 300 percent. Wouldn't the minister be concerned that because section 6(1) will fall somewhat onerously on small businesses that may have family members employed.... Perhaps he can explain to the committee how section 6(1) will in some way reduce the number of unfair labour practice allegations, which were supposedly a problem under the previous bill.

Hon. M. Sihota: I'm presuming that Mr. Georgetti, in a letter that I haven't read, meant it in the context of certification.

L. Fox: I'm finding the debate very interesting. But just so I'm sure that I understand what the minister is suggesting, perhaps I could simply put it this way. Any member of a family who was employed prior to an initiative to certify, in the role of an employee rather than management, would be considered as part of an employee group under the certification initiative.

Hon. M. Sihota: Hon. member, that's possible. The board would have to look at the particular fact pattern. And I'm reluctant to make decisions for the board in advance of it considering various fact patterns. A lot of these cases have come up in the past, and they've been able to sort of lift the veil to see what the intent is with respect to these employees.

If your concern is that somehow legitimate family members who are legitimate employees will somehow be denied a right or a privilege or input, you should have some confidence that the board, in dealing with bona fide employees in the past, has recognized their bona fide status and treated that differently than if they were illegitimate. So there's no reason here to think that family members won't be allowed to participate in businesses, and there's no reason to think that the board will automatically deny them rights and responsibilities or privileges. They will possibly have those, and I use that word only out of an abundance of caution, knowing full well that these cases have come up a lot in the past and the board has, as have the courts, demonstrated a high degree of ability in terms of determining the bona fide intentions in terms of those people being there. But if they are bona fide, nothing would restrict their ability to have their say.

Hon. Chair, given the time, I move the committee rise, report progress and seek leave to sit again.

Motion approved.

The House resumed; the Speaker in the chair.

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 11:58 a.m.

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