Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

THURSDAY, DECEMBER 3, 1992

Volume 7, Number 5

[ Page 4421 ]

The House met at 10:03 a.m.

Prayers.

F. Randall: In the visitors' gallery this morning we have Don McGill, who is the president of the 11,000-member Local 213 of the Teamsters. With him is Don Doerksen, who is a business representative, also of the local union. They're here this morning to listen to the opposition's comments on Bill 84.

Orders of the Day

Hon. C. Gabelmann: I call committee on Bill 84.

LABOUR RELATIONS CODE
(continued)

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

On section 28.

C. Serwa: It's nice to see that this is going to be an apolitical discussion on a very political type of bill. I welcome responses from the Attorney General on this matter, because I know he's very comfortable in this particular area. He's well supported by professional -- and in the fullest sense, professional -- civil servants, which I really appreciate in this House.

I was talking to the Minister of Labour yesterday with respect to concerns with section 28 on the ability to set, on an individual basis, hired-equipment rates. I applaud the intent of this particular section; I have no difficulty understanding some of the rationale. However, in actual practice we're going to run into serious problems. I'm glad there are interested individuals who are here with us in the precincts today, listening closely, because the scenario I see unfolding with section 28 is simply this: for a very brief period of time there will be joy and happiness shown by the dependent contractors, such as logging truck operators, perhaps gravel truck operators and independent owner-operators. I suggest that because of section 28, the opportunity will be relatively short-lived. The companies and the independent contractors will see that it's in their best interests to buy the equipment and simply hire operators. Perhaps the minister would respond to that particular scenario.

Hon. C. Gabelmann: I think the Minister of Labour dealt with these concerns yesterday. The option the member for Okanagan West proposes is an option that exists with or without the legislation. Those options are available and nothing is different in that respect.

C. Serwa: Yes, the option exists, but the reality under section 28 of Bill 84 now is that you have individual owner-operators with an opportunity to negotiate the rates independently. The reality is that they will not be negotiating rates on working conditions or wages for themselves; they will be negotiating the total rental rate of the piece of equipment. When that opportunity exists and is reinforced by the strength of the union -- for example, in the manufacturing sector of the forest industry -- I suggest that there will be little opportunity except to yield to that, to the point that the whole opportunity for employment vanishes altogether. That is fundamental to the concern I have here. It's far more expansive than the traditional responsibilities of a labour code: wages and working conditions for employees.

Hon. C. Gabelmann: First of all, I think it's important to say that a lot of the concerns that the member expresses, which he thinks will flow as a result of this legislative amendment, already exist. There is an ability now for contractors to organize collectively for rates. The discriminatory provisions that exist in the current legislation in respect of the rights of these dependent contractors date back to '73. We are redressing wrongs that were created in a code in which I had some involvement -- in debate -- back at that time.

Essentially, what's being done here is giving them, whether they are logging truck owners or gravel truck owners, the right to bargain collectively for their rate. Yesterday the members heard the minister explain this section in detail and explain that there aren't any dramatic consequences of this. It's a right that will be extended, and which exists now in most respects.

C. Serwa: The right exists now as a larger group, not as individuals, and that's the substantial change that emphasizes my concern. But I think I've canvassed this area fairly well. I've laid out my concerns with section 28.

I'd like to move to a slightly different scenario. We have a number of assembly plants and manufacturing firms in the province. We have what could well be determined as a dependent contractor -- a small owner-operated operation. It may work on a small independent site, or it may be a small highly sophisticated technological machine shop in a person's home. This individual now contracts with an assembly plant to produce widgets. He is classified as a dependent contractor by the scenario described by the Minister of Labour yesterday. When he is a dependent contractor, he is protected by the total union. He now decides that his contracted price for the widgets that he's providing doesn't give him enough margin of profit, so he decides to go on strike because he wants more money. Because of the dependent contractor relationship, I suppose he's got an ironclad guarantee of continuing to provide services. But we're tampering here with something in the free market economy that's untenable for the operation of the assembly plant. Here they have a contracted source of widgets, and all of a sudden the person is a dependent contractor. Because of the relationship they have no more options to go out for contractors on that. So what does the assembly plant do in this particular situation?

[ Page 4422 ]

Hon. C. Gabelmann: The member's comments remind me a bit of some of the comments I made in the Bill 19 debate, where I painted what might be characterized as doomsday scenarios -- the worst possible consequence of the worst possible reading of a particular provision. That's what's happening in this case.

[10:15]

Employers are circumscribed by labour legislation now in respect of services of their labour, if the labour chooses to withhold its services for a while. So the free market, as the member talks about, doesn't apply totally in any event, not that it applies even without labour legislation. So I'm not sure where the member is going with this.

What we're talking about here is simply allowing dependent contractors who provide services -- normally it's trucking -- to an employer to bargain collectively for their rates, and that's really what this is about. I think the member is looking for very minute specks of dust under this bed.

C. Serwa: I recall vividly the debate on Bill 19, and how it was well handled by our then Labour minister and by the Attorney General, who was then the critic. I enjoyed a great deal of the dialogue. I'm most appreciative of that.

I guess where I'm going with my particular type of questioning is to try to emphasize my specific concern with the latitude that is going to be allowed under section 28. Rather than bargaining for wages and working conditions, we can bargain for the ultimate price -- it may be a unit price; it may be something like a ton-mile or a thousand board feet over a distance. That is not the fundamental purpose of labour legislation. It is not a minute or remote or tiny, microscopic speck-of-dust type of question. It's very significant in British Columbia today. If somebody works providing piecework goods, whether it's in clothing, widgets or whatever, they can all be classified as dependent contractors under this section.

My concern is: what type of parameter is imposed on these individuals? Because if a person works out of their shop and they tender a price per unit item.... First of all, they get that opportunity as an independent contractor. When they're successful, they in fact become a dependent contractor, because the manufacturing is ongoing and it requires the widgets or units of goods over a long period of time. Now that they are a dependent contractor they have very special, unique rights and privileges. They're part of the operation, and the major operation has no control over the cost of the inputs coming into it. It cannot go out for tender call, because now this person is a protected, dependent contractor.

Hon. C. Gabelmann: The Industrial Relations Act now in place allows for -- and it's not uncommon in British Columbia -- piece-rate agreements to be negotiated. We have those in place, where through a collective bargaining process individuals will receive a piece rate, as it were, rather than an hourly wage or whatever. So this isn't changing the landscape in that respect. Secondly, the Labour Relations Board is going to determine the question of whether or not a contractor is dependent or independent. That process will be determined by the board as to whether those contractors have a dependent relationship with a particular employer, as defined in section 28.

If the member goes back to section 22, "Determination of appropriate unit," in respect of these dependent contractors, again, that will be determined by the board, using the legislative framework that's here. So it's not a carte blanche for every contracted service to somehow automatically become a dependent contractor. That's not going to be the result of this at all. The board will exercise its discretion under the statute, using a great deal of common sense, as it always does.

C. Serwa: I guess we start to get into a real can of worms here, because there are specific parameters within which the board must be consistent when determining dependent contractors. The board will establish these parameters, and it doesn't have a great deal of latitude. Whether a contractor produces fender brackets or some other form of widgets for the aerospace industry, once they become classified as dependent contractors, they have the special rights and privileges available to the entire union.

If a unionized industry decides that they want more than the contracted price, they can shut down the industry. That is clear and evident under section 28. The corporation, or the manufacturing assembly plant, would have no other option than to bargain. They may be a very small part of it, but they can hold the company to ransom, because the relationship is permanently established. The company has no ability to call for tenders on widgets from anyone else at any time as long as these people are willing to continue to supply them and demand any price they want.

It doesn't seem to me that there's any discipline in section 28 for efficiency or cost-effectiveness or for the free market economy. Although I applaud the intent, it fails in actual fact.

Hon. C. Gabelmann: I think it's clear that the kind of consequences the member proposes could be a result of this are very unlikely indeed. Yesterday the minister made reference to the fact that if, as a result of board decisions, there were consequences not consistent with the intention of the definition of dependent contractors -- the bargaining unit in section 22 and section 28 that we're now discussing -- the review committee established by section 3 would clearly have a look at that and review the question. We don't think that the consequences being proposed by the member will flow from this.

It happens, then, that there clearly is a process in place to have a look at it. This is designed with the kind of intent that the member in fact applauds. I think we're going to be fine on this one.

C. Serwa: Just a final question: does the minister not feel that it would be more appropriate if, for example, section 28 was somehow restricted to wages and working conditions of the self-employed individual, rather than referring to the broad spectrum of

[ Page 4423 ]

the total operation? As I indicated yesterday, we could have a self-employed individual with a $500,000 feller-buncher working in this situation and bargaining for the gross income of that feller-buncher. That's what frightens me about this type of situation.

You also have different classes. You can have independent owner-operators of trucks who really look after their outfits and can make money at, say, $40 an hour with a tandem, and you may have someone who is a poor driver, is hard on the vehicle, tears out trannies and rear ends and can't make it at $50 or $60 an hour. There are all of these variations. Those are the types of things that I really have a great deal of concern about.

Hon. C. Gabelmann: On the latter point, there would be a consistent rate negotiated for all of the contractors. Clearly the ones who couldn't make it are not likely to survive for long.

The first point, though, comes to a philosophical question about the nature of labour legislation in this country. Historically, in every attempt at labour law reform in this country, Canadian jurisdictions have always taken the view that the state should not tell the parties what they can and can't negotiate. I think we get back to some of the philosophical discussions we have had about the role of the state in society. We may find ourselves in some agreement that this is, in fact, a good place for the state to stay away from. If the parties want to negotiate an arrangement -- including an hourly rate or whatever else they want to negotiate -- they should be able to do so.

C. Serwa: I guess that the net result of this scenario is rather frightening to me. It removes the opportunity for independent small businesses to start up and grow. The reason it does this is simply that there is a reality that those with capital -- which are, say, the large concerns with the credit ratings and all of the connections -- will then start to expand. In the logging and forest industries, the independent contractors will make a move now to own all of the trucks. They will hire employees, but those people will be relegated as employees. They will never be able to achieve what they could have strived to achieve. They will never be able to even start building on their dreams. That's my concern.

The economy of British Columbia is fuelled by these individuals who start small, then grow and create employment opportunities for others. This section precludes that possibility. In the end, the dependent contractor will disappear, become simply an employee, and the corporation will then own everything. I worked in New Zealand in that type of regime, where all the equipment -- the gloves on my hands, the axe, the chainsaw -- was owned by New Zealand Forest Products; the individual owned nothing. There was no opportunity. It was a stifling environment, it was a stifling economy, and they had to change it.

Hon. C. Gabelmann: In order to ensure that that was the final point on this subject, I will simply say that the member's concerns are genuinely held but, I think, not applicable to this section. I think the consequences he fears will not flow from this.

J. Tyabji: Some of our members have questions that they would like to ask the minister directly on this section. My question is: in the event of those questions being brought forward at this time to the Attorney General, would we then be able to get a response from the minister when he returns to the House?

The Chair: The Chair can't give any undertaking with regard to that, but perhaps the minister would care to respond.

Hon. C. Gabelmann: The kind of undertaking the member seeks transgresses the rules, because if we're on other sections as we progress this morning, it's difficult to come back. I will undertake to give as full an answer on all of the questions as is possible. I think members should feel comfortable that the Minister of Labour and I are in sync on this and both have some degree of understanding of the legislation. The answers shouldn't vary, nor should they be any less complete.

J. Tyabji: Am I to understand that the Attorney General had some authorship in the bill? Is there some ownership of the concepts in the bill?

Also, for the Attorney General's information -- I know he hasn't been with us through the whole debate -- when we were on section 8 the minister did make a commitment to the House that when we got to section 23, if we had not canvassed section 8 enough, he would allow us to revisit that under section 23. In the event of there being questions that the Attorney General feels he cannot answer on behalf of the minister, would we then be able to have some commitment that it could be brought up later?

Hon. C. Gabelmann: On the question of ownership, this bill is presented to the Legislature by cabinet. Every cabinet member and every member of government has a full and equal stake in the legislation.

[10:30]

If it happened that I couldn't answer a question in full -- and I don't expect that's likely to happen this morning -- and if it related to a question that was subsequently dealt with in another section, then clearly the minister could, in answering questions on another section, make some reference back to an earlier section, in the same way as I did with section 22.

L. Hanson: It's interesting to have the Attorney General here, because he was taking a very active part in another debate that went on some time ago. I can vouch, for the official Opposition House Leader's benefit, that the Attorney General probably has more background in this particular legislation than the Minister of Labour.

In any case, I have some very quick questions for the minister -- he can probably ask his colleagues beside him. In other sections of the bill the Minister of Labour has used the comparison to legislation that now exists in other parts of Canada, in some cases even verifying

[ Page 4424 ]

that we want to be part of the flow, and that that's one of the reasons we're particularly interested in putting in a clause. How many other jurisdictions in Canada have legislation that permits the certification of dependent contractors?

Hon. C. Gabelmann: There are three provinces -- Newfoundland, Ontario and Saskatchewan -- which have specific provisions allowing for dependent contractors in the way that we now propose. In every other provincial instance the labour board or its equivalent has the ability to accomplish the goals that are set out in this section by way of board decision. At the present time, prior to the passage of this legislation, British Columbia is the only province in the country that would expressly preclude the ability for dependent contractors to organize.

L. Hanson: The minister mentioned Ontario. Is that in the current legislation that has just changed, or was it in the previous legislation?

Hon. C. Gabelmann: It's been there for a number of years.

L. Hanson: That is interesting, because my opinion of the permissiveness of those other legislations that don't specifically have it is slightly different than the minister's. In any case, I do acknowledge that it could happen.

I guess the only other thing I have, Mr. Chairman, is that the minister has said for many clauses that if there was an unintended conclusion or result from the application of a section, his ministry would look at it with a view to changing it. I guess the difficulty I have is that understanding what the intended results might be.... Quite often the questioning leads to that. I think I understand the intended result in this one, although I wasn't part of the debate yesterday. I really don't have any further questions.

W. Hurd: Just a few more brief questions to the minister about section 28. Yesterday we on this side raised some questions about the potential for a multiplicity of bargaining units on large projects in the province. In a situation where the developer of a large project was concerned about an application for certification, could the minister just clarify, under section 28(2), whether it would be the responsibility of that large project developer or major contractor to approach the Labour Relations Board for an application for variance to require the dependent contractor to be part of a larger bargaining unit? Would it be the responsibility of the employer or large contractor or project developer to make that application? Or would that be a determination made by the board of its own volition?

Hon. C. Gabelmann: If the member, in looking at 28(2), refers back to 28(1)(b), he will see that if there's a certification in place and there's an application for variance, then the board has to look at it. If I haven't answered the member's question, I think it's so hypothetical that it may not allow for answering.

W. Hurd: Our interpretation of this section is that it represents a major expansion in terms of allowing dependent contractors to be certified on their own as opposed to being part of an existing bargaining unit. One would assume from that expansion that the potential result could be a larger number of bargaining units in the workplace. My question really relates to a feeling the project developer or the major contractor might have that the project could in some way be imperilled or affected by a multiplicity of bargaining units. In reading the section, I'm trying to understand whether that concern by the major contractor would allow him to pursue a variance from the board to have the dependent contractor added to the larger bargaining unit, which was the only option available under the previous legislation.

Hon. C. Gabelmann: If I understand the member correctly, we're talking about a project with a number of certifications already in place, and then there's a question of dependent contractors. In considering the application of the dependent contractors, the board is required to consider existing certifications and see whether or not it's appropriate to roll additional "employees" into an existing certification or carve out a separate one. That's a decision that the board would be required to make. Beyond that, if an employer wanted to apply for a variance where there's existing certification, they are able to do that as well.

W. Hurd: If I have the minister's explanation in my mind correctly, were a dependent contractor to make application to the board for certification, it would ultimately be totally within the purview of the board to determine whether it was going to accept that application or order a rollover into an existing bargaining unit. That would fit within the total purview of the board, and no one else would be required to make an application for variance.

I'm just looking at the language in section 28(2). It says: "....an application for variance is made...." That indicates to me that there has to be some initiative from parties other than the board to make representations on the matter of whether dependent contractors are certified as a separate bargaining unit or are to be rolled over into a larger bargaining unit, as was the only option under the previous act. So if I understand the minister's response correctly, he's saying that no application for variance needs to be made by outside parties, and the board would, in fact, initiate the variance of its own volition.

Hon. C. Gabelmann: I hope I'm understanding the member correctly. I don't think there's a concern here. We've got the site; we've got the project; we've got a number of certifications in place. There's an application under this section. The board would determine whether or not an already existing certification is appropriate. If so, that's where the application would be placed. Or it may decide that there needs to be another certification on the site, and they can make that decision. They make that under subsection (1) of their own volition. Having made those decisions, employers

[ Page 4425 ]

-- or unions, for that matter -- can apply for a variance, as I understand what we're proposing here. The member needs to read the two together. I don't know whether the member is concerned that there would be a multiplicity of certifications that the board may decide. The board will always keep in mind the words in section 28(1)(b), where it says: "...the existing unit would be more appropriate for collective bargaining...."

The board is always mindful of enhancing the collective bargaining climate. Its primary objective in this kind of situation is to ensure that there is a smooth collective bargaining framework in place. Multiplicity of certifications may well be counter to that, and as a result the board would make a determination to roll some of them together or to merge existing ones.

W. Hurd: A general point on that. The same rules would apply, then, for the employer in making representations to the board with respect to its decision. One of the problems we have with sections like this is where there have been significant changes in the language of the act. We get into the situation of trying to anticipate what will happen out in the real world of labour relations. I'm cognizant that we have a major expansion under section 28 in terms of how dependent contractors are dealt with on a large construction site, and I am just trying to satisfy my own mind that the employer who may be concerned about the potential for a multiplicity of bargaining units will be able to make equal representation to the board with respect to whether a variance order should require that an existing bargaining unit represents a better means of ensuring that the project will proceed normally and that there will be a lessened possibility for work disruptions -- that type of thing.

I realize we're getting into a discussion of how the board may act based on this new provision, but given the nature of large construction projects in the province and the fact that over the past four years union and non-union contractors have worked side by side, it just seems that this particular expansion offers that potential for an increase in grievances and labour disputes.

Perhaps the minister would give us the benefit of his wisdom on how he believes the expansion of certifying dependent contractors.... What I hear him telling us is that he doesn't believe there is going to be any major change from the existing legislation. But could he just briefly address the rights that employers might have to make representations to the board with respect to these important matters?

Hon. C. Gabelmann: The board is required to operate with due process, and the employer has full and unfettered right to make representations to the board in respect of the employer's position, as do the trade unions involved.

L. Fox: Just a few points. I have listened very intently this morning and enjoyed the debate. The minister earlier spoke about three provinces that had legislation similar to section 28. I believe they were Newfoundland, Ontario and Saskatchewan.

Hon. C. Gabelmann: And Canada.

L. Fox: And Canada? Okay.

It's interesting when we look at who has this legislation. When you look at the economies of Saskatchewan, Ontario and Newfoundland, you wonder how much such legislation has contributed to those economies.

[10:45]

The minister also suggested that dependent contractors could in fact unionize under the existing legislation; under Bill 19 they had the opportunities that they do under section 28 in terms of whether or not they could unionize. I think I could agree with that, except -- I think the minister would have to agree -- that under section 28 there is that extra ability given, in that we don't have a limitation on secondary boycott anywhere in this legislation. Section 28 allows for a top-down organization. Dependent contractors could in fact be forced into unionizing rather than doing it by their own choice. I'd like your comments on that.

Hon. C. Gabelmann: The first point the member made about the relative strength of economies in Canada, and the fact that federal, Ontario, Saskatchewan and Newfoundland legislation has an express provision such as we're proposing, should not be misunderstood. With the exception of British Columbia, labour boards in all the provinces have the ability to accomplish the same end, and in many cases do so. It's not a question of economics here. The member was stretching a little bit there.

On the second part of his proposition, I don't understand the point the member is trying to make. If he wants to try again.... It doesn't make sense in respect of how I read the bill.

L. Fox: Perhaps it might help if I put it in a scenario. It seems to me that under section 28, should a sawmill decide that a dependent contractor, who perhaps may haul logs or be a freelance welder, mechanic, or something along those lines, who supplies his own equipment and tools.... Should the union within that sawmill decide that that individual, unless he becomes a unionized dependent contractor, is not going to be allowed to work on that site, that is a form of top-down organizing. That is the kind of issue I was referring to.

Hon. C. Gabelmann: The member is being very clever this morning. He wants to reopen a debate in respect to secondary boycotts that happened in days past. The particular question in respect to this section was dealt with thoroughly yesterday by the minister. I'm not sure of the value of recanvassing those issues that might come up under section 28. He wouldn't be allowed to go back and recanvass the other questions.

L. Fox: With all due respect, hon. Chair, we're talking about the section which in fact affects dependent contractors. I put a scenario specifically on dependent contractors to the minister. That is the issue I'm attempting to address. I believe that it falls in line with section 28. I'm trying to clarify in my mind, and for the

[ Page 4426 ]

minds of those individuals out there, what is going to be permitted under section 28 with respect to dependent contractors.

The Chair: That question is in order, hon. member.

Hon. C. Gabelmann: The labour board is going to make the judgments about the kind of detail that the member is seeking to inquire about here. It's not possible for me or for the minister to prejudge the decisions of the labour board. The labour board, however, will be required to look at the wording and to apply it in respect of its intention. The intentions are clear, and I think the members are stretching this unbelievably, frankly.

L. Fox: All I'm asking, hon. Chair, is for one simple yes or no. Could the scenario that I put forward with respect to dependent contractors happen under section 28, or could it not?

Hon. C. Gabelmann: In making a determination, in respect of a yes or no answer, the Labour Relations Board will have heard, no doubt, hours of testimony on the issue from both parties and, following those hours of hearings, will retire to consider their decision and then make a decision. The member is asking me to prejudge without all the information or facts, with a hypothetical example that is expressed in a sentence or two. Without anywhere near enough information, it would be foolish on my part to even begin to try to prejudge a decision the Labour Relations Board might make.

L. Fox: A further attempt, hon. Chair. I'm not asking the minister to prejudge what the board would do. I'm asking the minister to just tell me whether or not section 28 allows the board to consider those kinds of top-down organizing.

Hon. C. Gabelmann: Well, if the member wants to recanvass an earlier debate, this section deals with applications in front of the board for certification of dependent contractors. That's the end of it.

G. Farrell-Collins: I just wanted to say to the minister, in reinforcing what the member for Prince George-Omineca was saying, that I had concerns, knowing the minister wasn't going to be here today, about the Attorney General handling the debate. But all those concerns have been waived because I think we've achieved more in the last hour, as far as information goes, than we did in the last two weeks. We're at least getting answers to some of the questions. I would indulge the member for Prince George-Omineca when he asks these questions. Perhaps the reason he's asking them is not that they haven't been asked before, but that we simply weren't getting answers to them. I think the statements by this minister have been much clearer.

Interjection.

G. Farrell-Collins: I'd rather deal with this minister than the real one any day.

Section 28 approved on the following division:

On section 29.

G. Farrell-Collins: To the minister, section 29, of course, is not a new section by any means, as we know; in fact, it's identical to an old section. My concern with section 29 is....

[11:00]

D. Miller: Aye.

G. Farrell-Collins: The ex-Minister of Forests seems eager to vote, but maybe we'll wait for the discussion first.

I have a concern about section 29, combined with section 23(2), considering that section 29 is the determination of the appropriate bargaining unit for supervisory staff. In particular, the concern lies with first-line supervisors as they relate to the employees they supervise. There are, of course, provisions in the constitutions of trade unions all the time which state the brotherly love clauses, I guess you could call them, on things such as: you don't fink on your fellow union members, and you don't report them. I understand that there may be cases where those provisions are in a constitution and, I would think, should be considered under section 29. But section 23(2) clearly states that the board need not look at those things in determining the appropriateness of the bargaining unit. How does that relate to first-line supervisors -- for example, in the school system, with excluded staff, or the college system?

[ Page 4427 ]

Hon. C. Gabelmann: I don't think the member should draw any connections between the certification section, which enables the board to determine what is the appropriate bargaining unit, and this section, which, as the member indicated, is a longstanding, 20-year-old section which gives the board the opportunity to make determinations as to whether or not supervisory personnel should be in or out of a particular unit. They can make a judgment that they could be in, or there may be compelling arguments in front of the board that they should be a separate unit. The federal jurisdiction in the longshore case is the example, I guess. So I don't think there's any connection between the determination of the bargaining unit for certification purposes and this section.

G. Farrell-Collins: My reading of section 29 -- which is the old section 47 -- is that when an application for certification as a bargaining agent comes from a unit consisting of employees and supervisors and a combination thereof, in determining who is appropriate and who is not appropriate to be within that bargaining unit -- which is what section 29 is essentially doing -- you have to look at section 23, which is a new section. That's why I'm addressing this. If section 23 wasn't there, there wouldn't be a problem, because we'd just be where we were before. But section 23(2) states: "In deciding whether a person is a member in good standing of a trade union, the board may decide the question without regard to the constitution and bylaws of the trade union." My concern is that there are bylaws in the constitutions of trade unions that require a sort of solidarity among workers and require that other members of the union not report or fink on their fellow workers. That always creates a conflict in the eyes of a supervisor as to: "Where's my first loyalty? Is my loyalty to the employer, or is it to my fellow workers in the trade union?" That's a difficult position to put people in. Certainly the front-line supervisors may have three or four people underneath them reporting to them, and I guess what I'm saying is that section 29 would be fine if left on its own, but when combined with section 23(2), it seems that there's no regard for those types of provisions in determining the appropriateness of the bargaining unit under section 29.

Hon. C. Gabelmann: Under section 23 the board is going to determine the appropriate parameters of the bargaining unit. They will make that determination -- let's just go back to it and make sure I get the words right -- without any regard to what the bylaws or the constitution say. That's not a relevant factor. What's relevant is: is this an appropriate unit? So they'll make that kind of decision. When it comes to section 29, the board may certify a unit which includes supervisory staff in the broader unit, or it may separate them. It has its options available to it. I guess what the member is trying to get at is the question of conflicting loyalty: loyalty to the employer or loyalty to the union. Perhaps the member would like to describe specific examples of where that's a problem, given that this legislation has been in place for 20 years. Maybe we can deal with it in that way.

G. Farrell-Collins: The problem I see here is not that I have any lack of confidence in the board to attempt to come a decision on an appropriate bargaining unit. The question is, however, that in the presentations that will probably be made before that board in determining what the appropriateness of the bargaining unit is, if the employer were to bring up matters within the union constitution or the bylaws, which I've itemized already, and say, "This is a reason why we don't feel these front-line supervisors should be part of the bargaining unit," the opposing argument could be that you need not regard that, because section 23(2) says that you don't have to look at what's in the union constitution or in the bylaws of the trade union.

I can see the argument going back and forth. My concern is that section 23(2), in a decision that was being made under section 29, would come into play, be part of the argument process, and may swing the determination one way or the other as to the appropriateness, whether that is a prime consideration or not.

Hon. C. Gabelmann: I think members should separate the sections. Back in section 23, the board is determining the size of the potential certification, the bargaining unit. And in section 23(2), it is doing that without any regard at all to the constitution and bylaws of the union. So that question has to do with the bargaining unit. If in the course of an application there are supervisors involved, then the board will look at section 29 and can, if it chooses, make a variety of decisions. It can include all of the employees in one bargaining unit -- for example, nurses who supervise other nurses in the BCNU certification -- or it may make a decision to separate into a separate union, as in the federal jurisdiction with longshoremen. There is a variety of options available to the board, so they will in the course of listening to representations on the issue make determinations about the very matter that the member raises and have full option to reach conclusions appropriate for that particular bargaining situation.

G. Farrell-Collins: Then perhaps the minister can explain.... Maybe I'm misreading section 29. My understanding of section 29 is that it's still within the part of this bill that deals with acquisition of bargaining rights and certification. Are you then saying that section 29 only applies to already existing bargaining units, and that we're merely dealing with certification of the bargaining agent and not the existence of the bargaining unit itself?

Hon. C. Gabelmann: When a union applies for certification, it may or may not include supervisors in its application. The board can look, under section 29, at the question and make a determination as to whether the certification should include a supervisory component. They will do that, if it's an initial certification rather than a variance, and they will look at whichever sections of the code are applicable. There may be other sections that are applicable in determining what the bargaining unit should be. They are allowed by this section to make a determination that it could be

[ Page 4428 ]

included in the unit or that a separate unit should be carved out. If there were an application in that separate unit and a majority of the cards, then they could certify that group -- if they had carved them out of the earlier certification because they said: "Oh, they are supervisors and shouldn't be in the union." The board can make those determinations reading both sections together.

G. Farrell-Collins: Then I guess I am on track. I just wanted to clarify that. My concern, if I can state it a little more clearly to define exactly what I'm trying to determine from the minister, is the intent of these two sections as to how they work together. The minister stated that the board, when looking at either initial certification or variance, would look at all these sections and could use whichever ones applied. I would assume that the two sides -- the employer and the union seeking certification or variance -- would be making representations to the board and...

Interjection.

G. Farrell-Collins: Yes. I know that. ...would use whatever arguments they could glean from this legislation to determine the appropriateness of that.

My concern is in looking at section 29 and the determination that would be underway as to the appropriateness of a bargaining unit. I feel that one of the things which must be considered is the items mentioned under section 23(2), which deals with the constitution and bylaws of the particular trade union seeking rights as a bargaining agent for that unit. One must look at what those bylaws talk about in order to determine whether or not those supervisors are appropriate, given the type of union and the bylaws that are going to be certified, and include them. I would think that part and parcel of making the decision under section 29 is a determination of what those bylaws and the constitution are. If they were different for different unions, perhaps the board would decide differently, and my concern here is that this says they don't have to look at that.

Hon. C. Gabelmann: Maybe it would help members if I tried to explain it this way. When the board is making a determination about the bargaining unit, it doesn't look at people; it looks at positions. It looks at the job description and an appropriate unit without any regard to the individuals who may be in those positions. There is no question at that stage of looking at the question of union constitutions; they're looking at the question of appropriate bargaining units.

As I said across the floor a minute ago, representations on this issue are made all the time in determining the appropriate bargaining unit. Either one side or the other is trying to make sure that the final bargaining unit is composed of a group that they're going to a majority in for their respective positions. Those arguments go on all along, and the board is going to make determinations about the appropriate bargaining unit based on a logical component -- a group of people -- and they're going to listen to the arguments that get raised about supervisory relationships between individuals in a proposed bargaining unit. If they conclude that the relationship is such that these people shouldn't be in the same certification, they can carve out a separate bargaining unit of supervisory personnel, should they choose.

[11:15]

G. Farrell-Collins: I think we're probably coming to a meeting of minds on this issue. In section 29, when the board is determining the appropriateness of those positions which will or will not be within the bargaining unit, and they are taking into consideration the issues of supervisory roles, what the duties are of those people and whether or not they are appropriate to that bargaining unit, should they not be looking at what other responsibilities or loyalties would weigh upon someone in that position in determining whether or not they can comfortably sit within that bargaining unit? I would think that if they're part of the bargaining unit and the union at the same time, and if the union has the type of clauses that I mentioned in its constitution and in its bylaws, then that person has a responsibility as a member of the trade union to not do those types of things, yet also has a responsibility to the employer to do the type of supervising that's necessary.

As a result, I can foresee cases where you would have a conflict. What I would hope is that the board is free to include all of those things in its determination. But what I see with section 23(2) is that it sort of limits one area particularly that the board can look at. That area of the constitution and the bylaws of the trade union says that they can do whatever they want without having to look at those things. In fact, that's what it says in subsection (2), so that's my concern. If the minister's intent under this legislation is not to limit the range of powers of the board to look at all these issues as they relate to the appropriateness of a bargaining unit, despite what's said in section 23(2) -- the board can look at things like union constitutions and bylaws when determining whether a supervisor should be included in a specific bargaining unit.... As long as the board has free rein, that's a different matter.

Hon. C. Gabelmann: I don't know that we need to prolong this particular debate. If the member will go back to 23(2), the question that is decided without regard to the constitution or bylaws of the union is whether the person is a member in good standing. That's the only question that's raised there. In determining the breadth and nature of the bargaining unit, the board will listen to representations from the employer on that point. If there is clearly a worker-manager relationship that means the manager should be out, then the board will make that determination, whether the manager happens to be a member of the union or not. The particular manager may have chosen to be a member of the union, but the board can say no: "We don't think it's appropriate bargaining to include that person." Or the board may say yes. The arguments will

[ Page 4429 ]

be made by whoever wants to make them from the parties in front of the board.

G. Farrell-Collins: So the minister is saying that the board has unfettered ability to look at all those things without limitation in determining the appropriateness of the bargaining unit as far as who should be in it.

Hon. C. Gabelmann: The first thing the board has to do is decide the parameters of the bargaining unit. It does that without regard to the people and their ideologies, loyalties or memberships in organizations. They determine the appropriate bargaining unit. If it's an automatic certification, then in order to determine whether 55 percent of that bargaining unit have in fact signed cards, they do that -- going back to the certification section -- without regard to the constitutional bylaws of the union. If a person has or hasn't signed a card, that determination is done without any attention being paid to the constitution of the union. Does that help?

J. Tyabji: If I can, I will preface my question by saying that the opposition appreciates the Attorney General's manner of responding to our questions. It's quite refreshing.

I heard the Attorney General say that sometimes when a collective makes an application for certification, they don't include supervisors. Based on the answer he gave, I'm not sure what he was saying. We basically have what we call the ground-level employees and the employees who supervise employees. Is it the determination of the board whether the supervisors of employees are classified as management and are therefore exempt? In the event of the ground-level employees making an application for certification, am I to understand that once they make their application for certification to the board, the board can then, in reviewing that application, say that there are also employees who supervise employees who should be certified? Can the board then determine that that group should also be included in the certification process?

Obviously my next question would be: when you're looking at the 55 percent for automatic certification, how big is the circle?

Hon. C. Gabelmann: The way it works is that the union would make the application for certification, and it will have defined what it thinks the bargaining unit to be. Then the board will hear representation on the issue, if there is representation to be heard. It will make a determination as to whether the application is based on the appropriate unit or not. In making that decision, it will listen to arguments and decide whether or not some people should be out of that unit or additional people should be placed in the unit. That determination is made without regard to section 29, the supervisory section.

It may well be that the application will come from the union for a group of 20 workers, they know they've got 12 of them signed up, and they're sure of a majority. The employer may want to add to the unit a couple of supervisors, in order to get the vote down below 50 percent. That kind of jockeying goes on all along. The board looks at the appropriateness of the bargaining unit, listens to the argument and makes a determination. If there's an application by a trade union, under section 29, to include supervisory personnel in the unit, the board is allowed to consider that and to make a decision -- yes or no -- on that application.

J. Tyabji: In the event of a trade union making the application that goes to the board, and the board deciding that they want to include some of the supervisory employees in....

Hon. C. Gabelmann: If there has been an application.

J. Tyabji: Obviously, if there has been an application. But let's say that the board decides to increase the parameters and say that the employees who supervise employees will also be included. Using the Attorney General's example that 20 employees have made the application and 12 of them have signed the cards, they would have their 55 percent. If the board rules that there must be supervisory employees included -- and let's say there are five of them, and they haven't signed cards -- then it goes below the 55 percent....

I guess the question I have is: how does this affect section 23, which was what our hon. Labour critic was bringing up? What are the dynamics in terms of the timing? For example, when does section 23 kick in -- before or after the board makes its ruling on how big the circle is?

Hon. C. Gabelmann: As I think I've already said in answer to the previous question, section 23 kicks in after the bargaining unit has been determined. So it's not relevant until the bargaining unit has been determined. In this hypothetical example that we're talking about, if the board clearly sees that these additional five people are supervisors and act in a managerial capacity, and there has been no trade union application under section 29 for their inclusion, then it's hard to envision circumstances in which the board would say that they should be in the unit. They haven't been applied for, and they exercise management responsibilities.

On the other hand, if the union had included them in its original application, the board is allowed to consider whether those supervisors could be included, should they choose to. Or they could say: "No, this is not an appropriate bargaining unit. We're not going to include them in the unit. Should they apply separately for certification as a group of managers, they can then be considered under sections 22, 23, 29 and, no doubt, other sections."

J. Tyabji: Before the next question, I would like to remind the Attorney General that previously in a debate the Minister of Labour had said that when we were in the definition section.... We were talking about employees and really trying to get a clear idea of where the bill was going in terms of separation of employees, supervisory employees, management and then top-

[ Page 4430 ]

level management for the purpose of the exemption, whether that be exemption in terms of labour disputes, appropriate bargaining units or maybe separate bargaining units. We were having a hard time; and that's one reason why we're recanvassing that in this section.

The question I would like to ask is: the Attorney General had talked about the labour board listening to arguments with regard to determination of appropriate bargaining units, and the arguments would be brought forward. Could the Attorney General, for the benefit of the House, lay out who he sees making representation to the labour board, and how jurisprudence in the past has gone on that, as far as appropriate bargaining units? Because the Attorney General did make a reference to management, for example, wanting to include, let's say, 12 out of the 20 who signed cards. Management could say: "Well, include these people because they haven't signed cards" or "take out the people who have signed cards." In that way they wouldn't have automatic certification.

Would the Attorney General also share for the House how he would see representations from trade unions to the labour board? Same issue; other side of the equation.

Hon. C. Gabelmann: Was the question: who makes representations to the board? If both the union and the employer want to make representations to the board about the question, they are entitled to do so. I couldn't walk off the street and make an argument. I doubt that I'd have standing. Certainly the union and the employer involved would have standing.

Beyond that, I think we're really straying off the issue. I haven't made too much of that, but we're really dealing with a section that allows for the board, in certain circumstances, to certify supervisory people in or out of existing certification. The supervisory issue has been used over the years as a tool, in some instances, to try to pretend that supervisors really are managers. Quite often -- frequently, in fact -- supervisors don't have the right to hire and fire and are, in fact, employees, and the board will so determine.

[11:30]

J. Tyabji: A final comment to the Attorney General that perhaps he can provide clarification on. It seems to me that section 29, as it has been outlined in this debate, will erode management's ability to maintain supervisory staff that management feels are management. That discretionary authority has been given over to the labour board. Management may say: "I'm senior management, and this is my team of managers." The labour board could come forward and say: "We don't think those are managers; we think they are employees supervising employees" -- which is basically what management is anyway. That is where I have difficulty.

We have seen the steady erosion of management's abilities under Bill 84. We can say management, or we can say owner-operators. Quite often the person who took the initial risk, put forward the capital investment and is carrying all the risks in the enterprise is losing his or her ability to control that enterprise because of the bill. That's where I have a problem.

As I say, back when we were in the definition section and canvassed this with the Labour minister, we talked about vice-presidents and top management underneath senior management. We tried to have management -- not senior management like the president -- excluded as employees. Now I'm hearing the Attorney General say that not only could we see in the definition section those people not being included as management and seen as employees, but in section 29 we're seeing that the Labour Relations Board can take that entire group of people and certify them because they are not senior management below the president; they are actually employees who supervise employees. I'm hearing that from the Attorney General. If that is not the case, it would certainly be nice to get it on record that we wouldn't see, for example, junior vice-presidents being considered employees who supervise employees. Obviously someone could make that argument, but I don't know if that's the intention of this section.

Hon. C. Gabelmann: The first thing members of the committee should know is that there are no changes in practice as a result of what's before the House. The definition of employee is clear and was debated in the House. It's there for reference if members want. Section 29 that we're now debating is the same as has been in place for 20 years, and there will be no different consequences than exist today following proclamation of this bill.

J. Tyabji: I have to take some exception to that, because we see a fundamental difference in this bill from previous labour bills, and that is section 2. Section 2 says that the purpose of the bill is to promote collective bargaining. We did canvass this, and for the Attorney General's benefit we did actually have the Minister of Labour in this House saying that technically a vice-president could be seen as an employee for the purposes of this bill, specifically section 68, which we will get to later. The Attorney General may not be aware of that, but that is definitely what the Minister of Labour said to the House.

Given that we have a definition of employee that could include a vice-president for the purposes of section 68, we would have to say that it would also include section 29. When we look back to section 2, it significantly alters the course through which the Labour Relations Board will be dealing with section 29. I understand the Attorney General is saying that the wording isn't any different, but when you take the bill as a whole, this bill is different from a lot of other bills in that every section is referring to previous sections in different parts of the bill. My comment to the Attorney General is that I do differ. I know that there are a lot of words and sections that are the same, but seeing them through the looking glass of section 2, it does change things.

G. Wilson: My comments with respect to section 29 are perhaps a little more specific, although they range in the same area of inquiry that my colleagues have been raising: the whole question of supervisors as an integral part of the management structure. If one

[ Page 4431 ]

looks at the public sector unions and if we could focus in on the education sector in particular, the Attorney General will be aware that there have been instances in the past, and in the recent past, where supervisors, who have been required to report on the conduct of employees, to evaluate colleagues, to be involved in the hiring process of colleagues and to make recommendation on the rehiring of colleagues, are functional members of the union. Where those individuals have been elevated into newly created positions -- as has occurred in the past, particularly in the college system -- the terms of reference of those new positions have been reviewed in light of the trade union's constitution and bylaws.

In an application to the IRC and/or the LRB, as it would be under here, it's important for us to know whether or not management has the right under section 29 to bring in the constitution and bylaws of a union contract and insist that they could be used as a tool for the exemption of those supervisory personnel; and, conversely, whether or not that might be an argument that could be advanced by the union. For example, in the case with the Vancouver School Board when this did come forward, there was a successful argument advanced that in light of the constitution of the union in question, the exemption of those staff members was important. If the union constitution states the conditions, "Thou shalt not act in a supervisory role," or "Thou shalt not report on employees," and so on, can the minister assure us that this section, in light of what has been passed in section 23(2), does not eliminate the possibility for management to argue and insist that in a final arbitration on the question, the constitution and bylaws of a union will be a formal part of that decision?

Hon. C. Gabelmann: I'm not going to recanvass section 1, as the member did in 80 percent of his comments, or section 23, which he did with the other 20 percent of his comments. This section 29 that we're dealing with allows the board, upon application by a trade union, to certify, either in a bigger unit or in a unit of its own, people who perform supervisory functions.

That's all that is under discussion at the present time. All the points made by the member are, with due respect, completely out of order.

The Chair: Before recognizing the leader of the official opposition, I would concur with the remarks of the Attorney General. The Chair has shown some latitude in the debate, in deference to the early hours and in giving people an opportunity to warm up.

But as all members know, ultimately we must get to the standing orders, which require that we be strictly relevant when we are in committee stage, and we are not technically allowed to revisit sections that have passed.

Having said that, I am sure that all members are as aware as I am of the rules. I would just ask that in future we remain as relevant as possible to the section before us.

G. Wilson: Hon. Chair, I don't know -- because these are my first remarks on this bill today -- whether or not I'm still in the warm-up round. Obviously I'm respectful of your ruling.

With the greatest respect, we can't look at this bill section by section in isolation without making reference to those sections that are already passed, because this bill is not going to be examined section by section without looking at the integrity of the bill as a whole.

Recognizing that we are in committee stage and that we have to focus on each of the individual sections, it is also clear that each section is going to be impacted by the sections that have been passed and will be passed, presumably, if we're unable to get some yielding on the amendments that we bring forward in the future.

The Chair: Hon. member, I agree that the sections are an integral part of the total bill, but that's why we have second reading: to give that perspective and that broad opportunity to discuss the bill in principle. We are now on section-by-section study, dealing with processes and specifics with respect to the implementation of the bill. I would ask the committee members to keep that in mind.

G. Wilson: Let me be very specific to the minister. In the view of the Liberal opposition, section 29 is an erosion of an established management right to manage. I'd like to get the minister's comment on this. We believe that supervisors are an integral part of a management team. The impact of this section -- we would argue that it's in light of other sections, but let's leave that aside -- is to fetter traditional management prerogatives that exist for management to manage. I wonder if the minister might comment, as knowledgable as I'm sure he is with respect to public sector unions, especially in the education sector, where the role of supervisors in the evaluation of employees, in the comment on rehiring procedures, in the certification of a new unit, as this section talks about.... Would section 29 not be seen as fettering a traditional management right? Would the minister not agree with that? If not, could he explain why not?

Hon. C. Gabelmann: I totally disagree with the premise being put forward by the Leader of the Opposition. If there were any foundation whatsoever to that suggestion, we would have had examples of it over the last 20 years while this section has been in place.

The member now talks about 23(2) and, by implication, section 1. Let me make two comments about that. Full discussions and debate were held on those sections when they were before the House. Earlier this morning we strayed from being in order. I answered the questions fully on several occasions while the member had not yet made his appearance.

G. Wilson: In trying to ferret out the answer in that response, I would assume that what we are hearing from the minister -- and I would like the minister to make sure that I have this correctly -- is that by recognizing that section 29 is intrinsically the same as it was, it in isolation would not be seen as a change, although he would recognize that section 29 in combi-

[ Page 4432 ]

nation with the sections already passed is a change in the erosion of management rights. Is that correct?

Hon. C. Gabelmann: I absolutely and totally disagree with that analysis by the Leader of the Opposition, who has yet to understand that section 29 stands alone in this respect and relates to powers of the board to make determinations about bargaining units, which it has had now for 20 years.

G. Wilson: That does clarify our position. I'm sure it will clarify future rulings of the Labour Relations Board, that section 29 must be read as standing alone and not being in any way connected or fettered by section 1 or section 23(2). That's what we tried to establish. In the rulings, I'm sure they will look at section 29 as a single and stand-alone section of this bill.

Section 29 approved.

On section 30.

G. Farrell-Collins: Section 30, of course, is a section that again is not dramatically different. In fact, it's the same as the old section, section 49. In my discussions and my consultations with a variety of people and certainly in the debate we've had so far with the minister, it has been clear that in the regulations -- the intent, anyway, in future regulations to this bill -- there will be a stale-dating period on certification cards. The 90-day figure has been bandied around as being the time-frame that we're looking at.

[11:45]

My concern with section 30 -- if I'm reading it correctly, and perhaps the minister can comment -- is that we can have a certification drive, and the length of that drive could take up to 90 days. I understand it's a rolling thing; you can always re-sign the people you signed at the beginning. Let's say the certification drive took the 90-day period, and they end up with 51 percent, and there is a vote, and the certification is defeated. Or perhaps they think they have 55 percent or 57 percent, and they go before the board, and there is a determination that that's not the case, that the bargaining unit is not appropriate, and that they have only 42 percent or something of the appropriate bargaining unit. Therefore the certification is defeated.

My concern is for the employees -- and the management, for that matter -- having to go through this ongoing certification process. Let's say that they miss it by two or three members, and they go back and try to retarget what has been determined now as the appropriate bargaining unit. And we go through this process again without a break. There is really no respite for the employees, and certainly not for the management, as far as the time it takes and the problems and disruption that that may cause in the workplace. I would ask the minister to perhaps comment on that 90-day time period and whether he feels it's the only one appropriate.

Hon. C. Gabelmann: It may be that I didn't hear all of the member's question, but if a union member maintains membership activity, he or she will not be required to re-sign a card following the 90 days. In other words, if they sign a card, 90 days elapses, and there's a new campaign, and the member has continued to participate in union activities, there's no need to again sign a card. By way of regulation, that membership activity will suffice. That deals with one part of the question. If I've missed other parts of it, I apologize.

G. Farrell-Collins: I think that's a little enlightening to me. How does one stale-date a card if one signs it once, no certification takes places, and one can walk around with that card? As long as the person continues to pay dues, there's no stale-dating, whether that person is in a certified bargaining unit or not. They can walk around with the card in their pocket, and in that case, then, there's no stale-dating. There is no stale-dating of cards under the regulations that are going to accompany this bill.

Hon. C. Gabelmann: If the member would look at the report, he would see the proposed regulation which provided the basis for the answer I gave him and which I think provides the basis for answers to the question involved. It's very shortly after the proposed legislation itself in the report. It's an unnumbered page, but it's very shortly after the draft voting regulation. The next one along is the draft membership evidence regulation.

The Chair: Shall section 30...? The member for Fort Langley-Aldergrove.

G. Farrell-Collins: Thank you, hon. Chair. I can't jump to my feet quite as fast as you can ask for the passage of the sections. Perhaps I could either buy new springs, or we could slow things down a little bit. I intend to canvass this section at some length, and maybe I can advise you in advance.

The Chair: Thank you. Please proceed.

G. Farrell-Collins: My concern with section 30 is that we end up in a situation where there is an ongoing certification process that never comes to a stop. There is an application every 90 days; it could be ongoing for some time. In fact, there are instances where certification processes or applications come one after the other after the other. It does prove to be very disruptive to the employees, because they think that an application has been made and that it will be resolved once and for all. It happens. A certification vote is taken or the application is made under the new section 23, and all of a sudden it's defeated and the employees think it's done. They've made their decision, and that's it.

In fact, in another 90 days there's another one, and another one. So it can be very disruptive to the workplace, to the productivity of the employees and certainly to their ongoing stress level in the workplace to have this happening all the time. Perhaps the minister can comment on whether or not that's appropriate.

[ Page 4433 ]

Hon. C. Gabelmann: I think that in the last five minutes we've heard the most concern that has been raised in British Columbia on this issue in the last two years. During the course of the travels and considerations by the advisory committee, this issue was raised twice: once by an individual who suggested the time frame should be a year, and once by an individual who suggested there should be no time frame. The advisers decided to keep the status quo. The status quo has worked. It has not been a problem, and the recommendation is to keep that status quo.

The member suggests the turmoil of constant applications that never cease. If that kind of situation develops, the board, under this section, has the authority to require a time longer than 90 days. It's not necessarily 90 days; it's 90 days or more. So I think the concern is driven not by a genuine concern about the effect of this limitation, but by a genuine concern on the part of the opposition to try to keep the debate going until Christmas.

G. Farrell-Collins: In fact, that's not the intent. I have Christmas plans, and I'm sure many people have, but we do want to be thorough. My argument will be that just because something has worked for 20 years doesn't mean that it's necessarily perfect.

The minister talked about only two representations being made to the board. It's unlikely that those employees who have gone through that process.... I'm not saying it happens all the time, but it does happen. I've talked to people that it has happened to. I'm not trying to say that there's constant turmoil in all bargaining units and for all employees around the province. I am saying that the individual people who've gone through that are not likely to flip through the paper and find out that amendments to the labour code are being undertaken. There's this travelling road show that's coming around, and would they like to come and present to them. They're just not likely to do it. So to say that only two people presented, and therefore it's not a concern.... It may not be a concern to the union. Employers may not have brought it up, but it may be a concern to the employees in the workplace. Once again, those individual employees are not likely to take the time and the money to go to the Labour Relations Board and say: "These guys have been having a certification drive for three consecutive periods of 90 days, and I'm getting tired of it. Can you please stop it?" It's not likely to happen.

With that, hon. Chair, I propose an amendment to section 30. The intent of the amendment is that 90 days be changed to read not less than 180 days.

The Chair: Hon. member, the amendment is in order. Would you please proceed.

On the amendment.

G. Farrell-Collins: It is an amendment that's offered in all seriousness. We're not trying to delay the bill to Christmas; we're trying to be thorough and examine it in some detail.

I have concerns that employees may end up in a situation where this goes on. With the minister's reference to stale-dating cards, it's incumbent upon us to, if nothing else, widen that time frame a bit and allow it every six months. I don't think that impinges on the rights of the union or the workers to try to certify. Six months isn't an onerous length of time, but it is sufficient time to allow a breathing space between one certification drive and a following certification drive.

Hon. C. Gabelmann: If it needs saying, I don't accept the amendment.

The provision allows for the board to use its discretion beyond 90 days. If there's a situation such as that characterized by the member which requires 180 days or even longer, the board has that ability now. This amendment would limit the ability to allow for reapplications in the fourth, fifth and sixth months, where it may well be appropriate in certain circumstances. This amendment would deny that discretion to the board, and I think that's bad labour relations policy.

G. Farrell-Collins: In section 30, we have already denied the board the ability to grant certification renewal or secondary application for renewal in the second day, the end of the first month, the end of the second month and partway through the third month. So there is a limit. We're not questioning whether or not there should be a limit. I think the minister agrees that there is; otherwise this legislation wouldn't be here.

The question is the appropriateness of the limit, and we're merely asking for a time frame that's a little longer, that allows for a cooling-off period, that allows for a breathing space between one certification drive and any subsequent certification drives. I think it only benefits people to give them time to think and to give them a breathing space from the stress of going through that and the disruption that may or may not take place in the workplace. I think that, yes, while the board can certainly even go beyond that, if they want to say a year, that's within the board's prerogative. But I think that we're trying to set some minimum level here, and I would argue that the reason 90 days or any minimum level has been set is to try and do just those types of things that I've been talking about as far as ensuring that we don't have an ongoing process taking place.

By setting 180 days, we're being no more and no less arbitrary than the government; we're merely finding a more appropriate time frame. I'm not intending to be disruptive, and I think by allowing the opening of that time-frame to make it longer, we allow for better labour relations if nothing else. There isn't a constant harassment or a constant process that you're going through all the time. In fact, it happens, and then you know you've got six months before it's going to happen again. It allows time to cool off rather than having this going on all the time.

Interjection.

G. Farrell-Collins: The minister says he has made his remark, and that's all there is to it. Maybe the minister can tell us, then, why he feels very comfortable

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with the appropriateness of 90 days as opposed to 60 days.

Hon. C. Gabelmann: It has worked well in the past. When things work well, there's no need to change them.

G. Farrell-Collins: If that's an overriding philosophy of the minister, I might say that I think things worked very well in this province without a fair wage policy, and perhaps we should go back to the way it was. He doesn't agree. That's fine.

What criteria is the minister using for saying that something worked well? Is it the fact that there weren't people on the front steps of the Legislature asking for the change? I know that's a method he used the last time we went through this process, and it seemed to work relatively well.

Hon. Chair, I notice the minister looking at the clock. Given the time, I would move that the House rise, report progress and ask 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. C. Gabelmann moved adjournment of the House.

Motion approved.

The House adjourned at 11:58 a.m.

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