Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

THURSDAY, DECEMBER 3, 1992

Volume 7, Number 6

[ Page 4435 ]

The House met at 2:05 p.m.

Hon. L. Boone: In the members' gallery this afternoon we have a distinguished visitor: His Excellency Sir Nicholas Bayne, High Commissioner for the United Kingdom to Canada. Accompanying Sir Nicholas today is Mr. Tony Joy, consul general of the United Kingdom in Vancouver. Would the House please give these two guests a very warm welcome.

S. Hammell: Mr. Johnson and 40 grade 11 students from Princess Margaret Secondary School in Surrey-Newton are visiting the Legislature today. This school is one of the many found in this fast-growing municipality. Would the House please make them welcome, along with the adults who, by accompanying them, have made this trip possible.

Razia Reb, a former member of the provincial assembly in Baluchistan, a province of Pakistan, is here with us in the gallery. She is visiting her brother, who lives in the constituency of Surrey-Green Timbers. Would the House please make them welcome.

The Speaker: Before oral question period, I will recognize the hon. member for Vancouver-Fraserview.

B. Simpson: I seek leave of the House to speak, together with my colleagues for Vancouver-Langara, Okanagan West and Matsqui, on a matter of utmost urgency: the famine in Somalia.

Leave granted.

FAMINE IN SOMALIA

B. Simpson: The world is witnessing a human tragedy unparalleled in this decade. One thousand people a day, most of them children, women and the elderly, are dying from starvation and conditions that are beyond our comprehension. For those of us who have been in such camps, there's only one way to describe these conditions: it is hell on earth.

I have a fax from the International Red Cross, which is conducting the largest relief operation since the Second World War at a cost of over $200 million. The International Red Cross is issuing an urgent appeal for assistance. The report states that there are now 777 kitchens operating throughout Somalia, feeding more than one million people. Out of a population of six million, an estimated 4.5 million are at risk of starvation. Yesterday I received a 31-page report from UNICEF detailing their heroic efforts. It states: "UNICEF is currently providing for over 90,000 malnourished children and pregnant mothers. UNICEF is also providing seeds and tools to help rebuild the economy." The cost is $60 million.

Relief agencies such as the Red Cross and UNICEF need the help of all British Columbians in order to save lives and rebuild the country. Despite difficult economic times, British Columbians from all walks of life are mobilizing in the war against this terrible human tragedy. One such example is an initiative called "Fast Aid," an emergency relief telethon for Somalia. This six-hour telethon will take place at the Hotel Vancouver, which has donated their facilities, and will be on Rogers cablevision on Sunday, December 20, between 4 p.m. and 10 p.m. Dozens of entertainers have donated their services. A press release issued by campaign organizer John Maté notes that 100 percent of the money raised will support the famine relief work on behalf of UNICEF and the Red Cross.

Hon. Speaker, partisan politics have been put aside to mobilize British Columbians to help in this terrible tragedy. An all-party working committee, under your leadership, is now receiving donations from members of the Legislature and will be depositing their contributions at your office. These donations will be made payable to either the Red Cross, UNICEF or Fast Aid. Members of the Legislature are encouraging their constituents throughout the province to embark on various fundraising activities. Tax-deductible donations to Fast Aid, the Red Cross and UNICEF can be made at any branch of the Toronto-Dominion Bank throughout the province or sent directly to UNICEF, Red Cross offices or the local MLA.

At this time of year we reflect on how fortunate we are to live in a country that has been ranked by the United Nations as the best in the world. We are truly fortunate to be living in this great province. I urge all British Columbians -- schoolchildren, business leaders, trade union leaders and families and various organizations, churches and synagogues -- to support the famine campaign which is now underway. British Columbians can make a difference and save lives in Somalia, which is now being ravaged by famine and civil war.

V. Anderson: The Members of the Legislative Assembly in the Liberal caucus are pleased to be able to join with all other members of the Legislature in this very important project. Most of us here cannot even imagine the difficulty and the deprivation and the death which occurs so tragically, not only in Somalia but in others places around the world. And this is a small opportunity, a symbolic opportunity, for us to recognize and respond and encourage all people throughout the province to likewise recognize and respond.

In this particular project, hon. Speaker, we have chosen to support the telethon, which will raise money for Red Cross and UNICEF for their work in Somalia. We also recognize that there are many other religious and charitable organizations which are raising funds for exactly the same cause, and we encourage people, if that is their channel of operation and support, to continue to do so. Because even if we double, triple, quadruple -- and beyond -- our contributions in all these efforts, we will still not meet the urgent need that is before us. Nor, having dealt with the immediate crisis, will we have laid the groundwork for a long-term solution.

Here in our Legislature we are being asked to go without breakfast as a symbolic gesture on Tuesday of next week, and then to meet at noon for a luncheon of lentils and bread. Perhaps if we can't live without

[ Page 4436 ]

breakfast, we can learn to do so, and perhaps some would like to have the lentils and soup at noon and go without breakfast and supper. That's the symbolic part. Beyond that is the opportunity to make a significant contribution so that we may put action into our words, because, as the hon. member has already mentioned, this is a tragedy beyond numbers. We would indeed encourage everyone in the province to be involved in and to support relief efforts.

As I was reading the facts that the hon. member was referring to, I noticed a phrase saying that they were responding by sea, by air and by land. Somewhere in the back of my memory it seems to me that words very similar to that were uttered by Prime Minister Winston Churchill, who said that we would respond by sea, by air and by land to the tragedy that was occurring back in the Second World War. In one sense we won that battle, but we're still losing that war. I encourage all of us to respond this way and, more significantly, to take the message home with us to share with all our constituents.

C. Serwa: I won't be long. The member for Vancouver-Fraserview was very comprehensive in his sensitive remarks on this issue.

First of all, I would like to compliment you, hon. Speaker, for picking up on this initiative and giving us the opportunity to shoulder our responsibilities. My sincere appreciation for that. Our Social Credit caucus unanimously supports the fundraiser and the cause, and individually we will be contributing to that cause. We're very pleased that Fast Aid, through the Red Cross and UNICEF, is guaranteeing that 100 percent of the funds raised will go for Somalian famine relief.

What will a contribution do? What difference can we as individuals make? It's rather surprising. A $10 donation to the Red Cross, for example, will feed 20 people for one day with the necessary lentils and oil. With UNICEF, $45 will feed a child for 100 days. So it's very significant. It's incumbent on all of us to remember that donations by British Columbians will offer more than just a glimmer of hope; they will offer the gift of life, for without our assistance, there will be no hope, no dreams, no tomorrow and no future for altogether too many human beings who happen to live in Somalia.

[2:15]

P. Dueck: Hon. Speaker, it's also a pleasure for me to stand in this House and support the initiative that has been spoken about so eloquently by my colleagues. I also want to congratulate you and thank you for your initiative, so we can get involved as legislators. I think it's a small pittance for 75 members to raise $10,000. We can raise that by at least $5,000, if not $10,000.

This is something that is more than words. Words come easily; it's the action that counts. Words come easily, for example, when we talk about banning nuclear arms or creating a nuclear-free zone. I'm not saying that this kind of symbolic gesture is out of order, but those words come easily.

When we speak about action, it's another matter. We're talking now about people who are our brothers and sisters in the human race. When you see these television pictures every night, your heart goes out to these people. Perhaps all of us, in some way or other, are already contributing to various fundraising efforts, which is fine. I'm thinking of the Mennonite Central Committee in my community. They're involved in a great way in some of these areas. I believe that we can do just a little bit by committing to at least $10,000, if not $20,000.

I also believe that our world is in dire straits, when we talk about wanting to send food to a country, and we have that country either stealing or destroying the little bit of food that is sent for those starving people. I have no objection personally to have some force -- the United Nations, or whatever -- go in there and make sure that these convoys get through, as long as it is strictly for that purpose.

Hon. Speaker, I am pleased that this initiative has been taken, in a small way, for our group here. And I will challenge everyone to make it more. Let's top it up to $20,000.

Oral Questions

B.C. COMPETITIVENESS AND
PUBLIC SECTOR WAGES

G. Wilson: A question to the Minister of Finance. Will the Minister of Finance confirm today that contrary to his remarks about the former Socred government and the Mazankowski problems in Ottawa, a recent Price Waterhouse report, which provided his government with a framework for assessing British Columbia's competitiveness, shows clearly that it is this government's labour and taxation policies that are driving investors south of the border and not the former government or Mr. Mazankowski?

Hon. G. Clark: I'm sorry, I know not of what the member speaks. I'll take the question on notice.

G. Wilson: What I speak of is what the Premier of this province was provided on Monday. I understand now why the Premier would believe that we should have a cap on public sector wages and the minister would believe we shouldn't. They don't seem to communicate.

Let me ask if the Minister of Finance has a comment with respect to one section of this report, which says: "Conflicting policies from different government departments within this government are one of the major reasons why the investors are not coming into the province of British Columbia, because they cannot get a straight answer on matters related to environment, matters related to land use and matters related to resource development."

The Speaker: Perhaps the hon. member could clarify this for the Chair. The minister has taken the previous question regarding the report on notice. To ask another question by quoting a section of the report appears to the Chair to be same type of question that was taken on notice. If the hon. leader has a new question on a related or different topic, I will allow that.

[ Page 4437 ]

G. Wilson: Thank you, hon. Speaker. Let me then give the Minister of Finance a chance to do some homework and check out what the Premier has had for at least a week.

Will the minister tell us who's right regarding this question? Is it going to be the Premier or the Minister of Finance with respect to the capping of public sector wages?

Hon. G. Clark: I'm delighted to be invited to comment with respect to the government's economic situation. It's quite clear that if you listen to the Conference Board and look at a whole variety of indicators, including the federal government's recent statement, you'll find that British Columbia is doing better economically than any other province in Canada.

However, it is clear that we have a significant revenue shortfall as a result of problems in other parts of Canada, a slower rate of growth than was anticipated and the forecasting by the federal government of our share of personal and corporate income taxes. As a result of that, we are now moving very carefully through a budget-making process, and there will not be significant new money available.

However, it is clear that through productivity improvements, efficiency gains and a variety of other mechanisms, it certainly is possible. We encourage workers to work collectively to seek those kinds of efficiencies, so that they may share in those productivity improvements.

G. Farrell-Collins: I'll try to get back to the question that the minister was asked. The Premier stated a couple of days ago that there was a choice of jobs or wage increases in the public sector. He also categorically stated that there was no money for wage increases. He was then promptly rebuked by Ken Georgetti from the B.C. Federation of Labour and told to butt out. Can the minister tell us who is right? Is it the Minister of Finance, the Premier or Ken Georgetti?

Hon. G. Clark: The members opposite have deliberately misconstrued the remarks. The reality is that there is no.... It is true there is unlikely to be any new money for wage increases. But that doesn't mean that workers can't work to improve efficiency and productivity.

I'll give you an example. There are corporations that have had a flat wage bill for several years. The workers work collectively to improve productivity, and they then share in those benefits. That's the kind of model of bargaining which I think is appropriate. We like to encourage it because we need to get more productive and more efficient in the public service, and we need to spend smarter. We're working hard with our employees to accomplish that.

G. Farrell-Collins: Perhaps the minister could explain to us how a 6.5 percent increase to the BCGEU is either smarter or more efficient. The reality is that it's not.

The Premier stated the other day that in order to allow for wage increases for the public sector, there had to be an offsetting reduction in employment. Does he agree with the Premier's statement or does he not?

Hon. G. Clark: There is a fixed amount of money that we mail out in many cases -- to college boards, school boards and hospital boards -- and they work within that funding envelope. It is possible to work more efficiently, and it is possible to share in those benefits. That's what we're encouraging, and that is precisely what the Premier has been commenting on.

B.C. HYDRO RATE INCREASES

J. Weisgerber: My question is to the minister responsible for B.C. Hydro. About 18 months ago the B.C. Utilities Commission turned down a rate application from Hydro that was one-half of the rate of inflation. Hydro has now been instructed to pay the government a dividend on commercial rates based on its huge assets. The Utilities Commission has been instructed to approve rate increases up to 2 percent above the rate of inflation. Does the minister understand the impact of the increases that will be necessary on people with fixed incomes?

Hon. M. Sihota: What the hon. member doesn't seem to understand are three things. First of all, we've said to Hydro that it will now be working under a private sector model. In other words, it must function as a private sector corporation and have the same kind of discipline, for example, as gas utilities in the private sector.

Second, we've said that we want to protect consumer interests and we can't have rate shocks, and therefore their rates can increase but are capped at 2 percent plus inflation, or 1 percent plus inflation, depending on....

Interjections.

The Speaker: Order, please, hon. members.

Hon. M. Sihota: We have capped them subject to inflation to make sure that there is no rate shock for consumers and industrial users in the province.

Interjection.

Hon. M. Sihota: Hon. Speaker, I'd be happy to answer the question if the member from the Liberal Party, who didn't even ask the question, could settle down. If he's got a question, I can answer it.

Third, we have placed a challenge in front of B.C. Hydro, saying that, yes, there are some dividend obligations to the provincial Crown, but that we want them to look at efficiencies within the corporation to be able to deliver on those dividends.

What we've done is (a) place a private sector test; (b) encourage some efficiencies within Hydro; and (c) protect consumers. We're proud of initiating that kind of reform with respect to rate restructuring in British Columbia.

[ Page 4438 ]

J. Weisgerber: It sounds great, but what it really is is a huge tax grab, with B.C. Hydro as the instrument. In the years 1986 through 1992, Hydro rates increased by 9.7 percent -- about one-quarter the rate of inflation during that corresponding period of time. The demand for a dividend is a thinly veiled tax grab, with Hydro being the tax collector. Does the minister not recognize that Hydro will simply have to pass the rate increases through to consumers?

Hon. M. Sihota: Hon. Speaker, it's foolish to suggest that this is in any way a tax grab. All we're doing is placing on B.C. Hydro -- requiring -- some private sector efficiencies which we think should be there, and I think the hon. member would support having those kinds of efficiencies in place.

In addition to that, the hon. member seems to have ignored that there's a legitimate role in this province for the Utilities Commission to assess the application that Hydro makes so as to make sure that the application is in the interests of consumers and industrial users in British Columbia -- and I'm sure the Utilities Commission will do that.

J. Weisgerber: Well, had the Utilities Commission approved rate increases based on the minister's formula, rates in British Columbia would have increased 40 percent in the years 1986 through 1992, rather than the 9.7 percent they did increase. The effect of that is to increase rates to people on fixed incomes and to industries, whether they are profit-sensitive or not. Will the minister reconsider this policy?

Hon. M. Sihota: First of all, the hon. member should know that this is a cap. We're placing a cap of 1 percent or 2 percent above inflation on increases. Secondly, I'll tell you what we have done: we have reconsidered the formula that the Social Credit government had in place, because if we had stuck with that formula, we would be seeing rate increases as high as 11 percent in the near future, hon. member. So we improved that situation.

[2:30]

EGG MARKETING AGREEMENT

R. Chisholm: To the Minister of Agriculture. As of today the government of British Columbia has not yet signed a memorandum of understanding which deals with the supply management of eggs between the provinces. This agreement is crucial to the very survival of the egg industry in British Columbia. Does this minister intend to join the other provinces and sign the memorandum of understanding, or is he willing to allow cheap eggs from the Prairies to destroy our egg industry?

Hon. B. Barlee: I'm delighted to reply to the member for Chilliwack. First of all, the cost of production comes into it. There are several types of eggs: A quota eggs, B quota eggs.... We are analyzing the information. We don't happen to agree with the statement coming down from the CEMA meeting, and when we do you'll be the first to know, perhaps the second to know.

R. Chisholm: Considering that the deadline is Friday, the rest of the country is shaking their heads at British Columbia. Why does this government agree in principle to the memorandum but then refuse to sign the agreement?

Hon. B. Barlee: I think our record speaks for itself. Our farmers....

Interjections.

Hon. B. Barlee: I'm glad the opposite side agrees.

Our farmers are doing extremely well. I believe we've had a total of eight bankruptcies in ten months, which is the lowest in the country. Our farmers are doing better than any other area of Canada by far, and part of the reason for that is that we do not jump into agreements such as the GATT, the NAFTA and the free trade agreement like other parties. We examine it very closely and we usually come up with a very rational alternative, which we will do in this case.

R. Chisholm: If our farmers are doing so well you would not have had to fire the Egg Marketing Board.

If no agreement is reached, what plan of action does this government have in order to save the industry?

Hon. B. Barlee: Perhaps the hon. member is not aware of the background of the Egg Marketing Board. As Minister of Agriculture I am responsible for all 13 supply management boards in British Columbia. I have to represent not only the farmer but also the consumer, so therefore we keep a very close overview on all of those boards. If one of those boards is not acting in the public interest, which includes the whole spectrum of the public, then I have to move in, precisely as I did in that case.

The Speaker: The bell signals the end of question period. Perhaps, hon. members, it may be timely to remind members that we are again edging toward broader, longer questions and longer answers, and members may wish to review the standing orders and Beauchesne's rules on questions.

Hon. J. Cashore tabled the annual report of the Ministry of Crown Lands for the period of April 1, 1990 to March 31, 1991; the report of the Ministry of Environment, Lands and Parks for the period of April 1, 1990 to March 31, 1991; and the annual report of the Environmental Appeal Board for the period of July 1, 1991 to June 30, 1992.

[ Page 4439 ]

Orders of the Day

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

LABOUR RELATIONS CODE
(continued)

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

On the amendment to section 30.

G. Farrell-Collins: I welcome the minister back to the debate. I hope that we can have the same calibre of debate that we had this morning while he was away. There was a noticeable change in the tenor and the quality. I thought it was a good process.

We are on the amendment to section 30. I notice that the minister's advisers are just arriving. The amendment to section 30 is not substantial in an extreme way. It's merely an extension of the current 90-day provision to a provision for 180 days -- a doubling of that time period between applications for certifying a bargaining unit.

The intent behind that section, of course, is to try to expand it a bit. It would give the employees a bit of a break. That would be the minimum. We're fully aware that the board has the prerogative to extend that at any time to beyond 90 days -- whether it be 120 days or whatever -- but in talking to a number of people, we thought it would be best if there were a longer minimum time frame, to give the board some guidance in extending that period.

The concern that has been expressed to us is the disruption in the workplace that takes place while a certification drive is on. The employees have to go through the process of not knowing when a certification application is going to come up next or how long it's going to go on for. Once it finally happens, the application comes forward and is addressed. If it's negative, the employees should have a bit of breathing space before they once again enter into a campaign to have the bargaining unit certified.

The intent is not to make a huge change to the bill but merely to provide a longer period of time between an unsuccessful certification application and the following one. This gives the employees a bit of a break and lets things settle down in the workplace. If they wish to have the process start all over again, they're free to do that.

Hon. M. Sihota: I'm sure the Attorney General appreciated those kind comments you made about him, hon. member, but I know he has already commented on the government's position with regard to this issue. I concur with his reasoning, which you are aware of, concerning why we would not proceed with the amendment for the 180-day provision that you are suggesting.

D. Symons: I too have concerns about the 90 days. This seems to allow, if I read this correctly, that after the attempt at signing up members has taken place, the certification vote is taken. Or if it's the 55 percent automatic certification, that's taken care of. But if the vote is taken after that time, this seems to allow the whole process to begin immediately.

One thing that I was somewhat concerned about was that when we read in section 2.... I realize that we've passed that already, but I'll just make a quick comment there. Under the purposes of the code, there does not seem to be a purpose that is simply for labour peace -- something that will look after the interests of the workers. It's simply looking after the interests of the unionization process. This would give some relief to the workers in the workplace. After a drive for certification has failed -- and that's the only place where this would apply -- the workers, the employer and everybody involved in the situation, including the Labour Relations Board, should have a 90-day period in which they can let things cool down before they begin the whole process over again. It would seem only common sense and logical that this cooling-off period should be allowed to happen so that we can have a little bit of labour peace between the time the first drive has taken place and when the whole process begins over again.

I'm told by the previous member, who was sitting in your place, that usually the board has this option to allow or disallow the certification drive to begin again. If they have that option, why not have it in the legislation? So my real concern is: why is it appropriate not to delay it? You're saying here that this allows for the fact that it doesn't have to be delayed. Can you give me a reason as to why it's not a wise idea to make a cooling-off period there before the process begins again?

Hon. M. Sihota: First of all, there is a cooling-off period for 90 days. Secondly, it says not less than 90 days, so they could go beyond that if they wished. Third, this section, which has existed for some time, seems to be working reasonably well. And fourth, we received exactly one employer submission suggesting it should be extended beyond 90 days and exactly one union recommendation that there be no time constraint, which I think is further evidence the system has worked reasonably well. If the board is of the view that it would be highly disruptive to do something on the ninety-first day, they've got the discretion to extend it to what you are suggesting or beyond.

D. Symons: I'm still confused then. My understanding is that there is a 90-day period in which the union organizers can attempt to see whether the members of that particular organization wish to become organized and form a union. At that time a certification vote takes place. From the way I understand this particular section, if there is to be a 90-day period before the next certification vote, then they can begin their 90 days to work toward sign-up and all the rest immediately from the time the previous vote took place. You say that there is a 90-day cooling-off period. The way I read it is that once the first vote is taken, they can begin the whole process of leading up to the next vote the day after that vote is taken. Is that not correct?

[ Page 4440 ]

Hon. M. Sihota: No.

D. Symons: Explain to me, then, in the reading of this particular section, why it would not be possible for the union organizers, once the vote has been taken, to begin the very next day the whole process of working on the employees to see if they can join a union, when they seem to have just rejected it. I can't see where there's any restriction that would not allow them to do that. Where does that restriction exist?

Hon. M. Sihota: It's interesting. Are you arguing against your own amendment in suggesting that we should have "shall" instead of "may" as a provision of the board's power, so as to kick it over to 90 days in all situations?

[2:45]

D. Symons: No, I'm suggesting that there should be an extra 90 days -- they would not be faced with it immediately after the vote was taken. Because of this particular section, when you hear the vote is rejected, beginning the day after there could be another 90-day period of building up to the next vote. You're saying there will be 90 days till the next vote. Let's have a little more time before the next vote is taken, so it's not a vote at 90 days, then working on that percentage of workers -- those few workers -- who have not signed the cards. It won't be a few; it'll be more than half who have not signed the cards. They will be subjected to that the day after the vote has been taken; the workers who are not carrying cards will be subjected to a more rigorous attempt to get them to sign up immediately after the vote is taken, because they're leading up to the next 90 days,

Hon. M. Sihota: You prefaced your comments by saying that you were confused when you asked the second question, and you are. I'm telling you, under the provision you've put forward you could start back into the field the day after it was rejected. Your amendment would allow this to occur.

D. Symons: Are you suggesting that there would be a 180-day period in which there would be a process of waiting to sign people up? At least there would be an extra period before the actual vote takes place, to give everybody an opportunity to have whatever second thoughts they wish, one way or the other. This way it seems that the 90-day period is not enough.

Hon. M. Sihota: I think you missed both my point and your point. The point is that the section reads: "...the board may designate the length of time...." They may not designate any length of time.

L. Fox: This is a rather confusing discussion, and I'm not sure that I really understand the intent of this clause. Perhaps I might put it as I understand it, to see whether I'm correct. It appears to me that after a vote is taken, there is a minimum 90-day period from which a new process of certification can take place.

Hon. M. Sihota: Would you repeat that?

L. Fox: I'll repeat it. If I understand this clause correctly, it would take at least 90 days after the day the certification was rejected before another initiative to certify could take place. That's the way I understand it.

Hon. M. Sihota: You're both right and wrong. Let me explain. The board may designate a length of time of "not less than 90 days." The board may say that 90 days from now you can do it, but it may not make a determination under section 30, in which case there would be no statement or time frame and you could make an earlier application. That's why I asked the hon. member for Richmond Centre -- your seatmate -- whether he was arguing against his own amendment in wanting to change the word "may" to "shall".

Amendment negatived.

Sections 30 to 32 inclusive approved.

On section 33.

The Chair: Shall section 33 pass?

Some Hon. Members: Aye.

G. Farrell-Collins: Nice try, but I think section 33 will take a little time.

Section 33 is obviously of concern to a wide range of people, certainly for the imbalance that it shows in the overall legislation. In fact, section 33 really does tend to highlight -- along with sections 23 and 24, the certification process -- the bias of the government. Many government speakers have argued extensively and for a long period of time that we should not have a vote for certification, using cards is perfectly fine and there's no infringement on the democratic process. However, when it comes to decertification, they've decided that it's essential. As a matter of fact, it's so fundamental that they've included it in their legislation. My question to the minister is: if he feels so strongly that a vote for certification does not necessarily have to take place, why have provisions for a vote for decertification remained in this bill?

Hon. M. Sihota: I assumed that the hon. member took the time to read the provisions in the panelists' report that dealt with this issue. I take it that he hasn't, and therefore I'm going to take the time to do precisely that and bring to his attention the....

G. Farrell-Collins: Why don't you recite it from memory?

Hon. M. Sihota: If that will make you happy, I'll do it from memory.

An Hon. Member: It's our job to be asking what you think, not what the report thinks.

[ Page 4441 ]

Hon. M. Sihota: I'm sorry -- am I hearing a question from a member who doesn't have the floor?

It was felt by the panel -- and I would agree -- that inasmuch as membership cards serve as evidence of the wishes of 55 percent and more of the employees with regard to certification, there needs to be evidence of the wishes of the employees with respect to decert. For all of the public policy reasons that I enunciated earlier on, there was no need for a vote on certification. However, it was felt that you can't have membership cards to decert. Rather, the indicia of evidence should be by way of a vote. So you have one form of indicia of evidence with regard to certification -- it can be a vote or membership cards, depending on the percentage -- and you have one on the revocation, which is a vote.

G. Farrell-Collins: I fail to see how that argument holds up to the severe scrutiny that was given by the minister in the sections where we dealt with the right to vote for certification and how his comments there can possibly.... It's pages 33 and 34, if you're interested.

Hon. M. Sihota: It's page 46.

G. Farrell-Collins: Well, you've got a different book, then.

The argument the minister used was that there should not be a vote for certification, because there would be undue influence on behalf of the employer. Therefore, we had to have an automatic certification process. A secret ballot vote would simply not work. If that's the case, if the minister felt so strongly on that issue -- and we did debate it for some time in this House -- how can the minister now stand up and say that a vote is required on issues of decertification? Is not the same opportunity for influence there as there would be in the other provision?

Hon. M. Sihota: Possibly not.

G. Farrell-Collins: That's probably the most flippant answer we've had from a minister in this House in the last year. The reality is that the minister is bringing forth a piece of legislation that is going to have a profound effect on the labour relations and economy of this province, as highlighted earlier today, and he gives us an answer like that.

I think it's very clear that the rationale for a vote in certification is correct, and/or the rationale for a vote in decertification is correct. If you accept one, you must accept the other. If the minister has argued so long and hard in this House that there should not be a vote for certification, then I would think that he would be standing up in this House arguing just the same thing for the decertification process, by saying that there should not be a vote for decertification.

I would love to hear the minister's rationale on how he can quickly change his principles to suit the needs of his agenda and on how he's trying to get that agenda across. I would love to have an explanation, aside from what the minister gave us about 30 or 45 seconds ago, as to why he would remove the right to vote for certification yet leave in place the right to vote for decertification.

Hon. M. Sihota: I guess the hon. member sees that there's a connection, and it's his prerogative to do that. Perhaps I should bring to his attention something that I argued earlier on in the day with regard to certification. But we've already dealt with certification, so I'm somewhat hamstrung in my ability to deal with it.

There are a number of other jurisdictions that follow the same practice we have here in British Columbia, hon. member, and you know that. You know full well, for example, that at the federal level they have the rule as we have it for certification and they require a vote for decertification. You know that the province of Alberta, which requires a vote on both sides, actually has a vote with regard to certification -- so they're a little bit different from us. Manitoba has a vote on decert and the same provision as ours on certification. In New Brunswick a representation vote is ordered as well when the appropriate applications are made. These are the quirks of labour relations policies right across the country. We are no more different than most of the other jurisdictions in this country.

G. Farrell-Collins: It's like saying that because everybody else is committing a crime it's okay for me to commit one. Just because something is done somewhere else doesn't mean it's necessarily right. We've gone through this time and time again with the minister. Whenever cases around the country or around the world suit him, he quotes them; whenever they don't, he doesn't. There are provinces in this country that do require a vote for certification, and yet he's very loath to stand up and mention those cases.

The reality is that the minister has argued long and hard -- we have it on record; I believe it was two days that we spent on the certification process and the removal of the right to vote -- stating that it wasn't necessary and that as long as 55 percent of the members signed a card, that was their vote and it was all that was necessary. Now we have the shoe on the other foot, and the minister is finding that he has to defend himself to himself about decertification, because it's just the complete opposite of what he said earlier. I'd like the minister to perhaps use some of the arguments he used for no vote in certification and apply them to this section to see if he still feels comfortable with them and if there's still a bit of rational, logical thought that ties in between the two.

Hon. M. Sihota: Your analogy of crimes is inappropriate. I think the way you said it was that if eight provinces are committing a crime, it's no good for us to say that we're committing the same crime. I guess my retort to you would be that if eight provinces are involved in good public policy, we're involved in good public policy as well.

G. Farrell-Collins: I can see that we're going to go around in circles on this one, because the minister is not about to address the issue. Certainly I didn't say

[ Page 4442 ]

that provinces are committing a crime; I was using that as an example. Just because some people do something doesn't necessarily mean it's the right way to go.

Maybe the minister should look at himself, and look at his government, and look at his legislation, and ask himself whether his legislation makes sense, and stop asking about the rest of the country's legislation. The reality is that time and time again in the section on certification the minister has used the argument that a vote allows intimidation and coercion on the part of employers. Of course, there's no mention of intimidation and coercion on the part of union organizers, because the minister doesn't believe that ever happens. Reality is that it happens on both sides to some extent.

Why is it that the minister feels so strongly there's no need for a vote in certification, yet he leaves in, and in fact endorses, a vote for decertification? The arguments apply to both, and if they don't apply to both, then I would love to have the minister highlight his reasoning as to why they don't apply to both, and why these two are different cases. If he could argue them as completely as he did on section 23 and section 24, it would be helpful, I think, to this House to explain why the vote exists in section 33.

[3:00]

Hon. M. Sihota: As I said earlier on, there have to be some indicia of evidence. The public policy question is: what are the appropriate indicia of evidence for the scenario that we find ourselves in front of? We've already had a debate on certification. Again, I'm going beyond the rules of the House in talking about it. But in that instance for the public policy reasons which I'm not going to repeat, but which I enunciated at the time and which you're all too well aware of, it was our view that it was good public policy to get the indicia of evidence from the method of membership cards during the course of the certification process.

We need some indicia of evidence on the desire to decert. I'm not going to get into the eight or ten provinces -- let's just put that aside for the moment -- but the labour relations practice across the country has been that the best indicia of evidence for decertification, from a labour relations perspective, are these kinds of processes, because they are the only tangible indicia of evidence that can be produced. With regard to the membership votes on the front end of the process, there are a number of options with regard to indicia of evidence. It is considered that the indicia of evidence that we have proceeded with in regard to certification in that sense is the best way because it avoids the potential for poisoning the atmosphere, as I had indicated earlier. So in the sense of being conducive to taking us away from the confrontational relationship we've had in labour relations, the indicia of evidence used on the front end serve that purpose. In terms of us having a good read of the wishes of the employees on the decertification side, these are the indicia of evidence best utilized.

It is true that one can make the argument that you've made: what's good for the goose should be good for the gander. In terms of looking at parallel arguments, we have to make some determinations as to what other objectives are met by making the changes that we have on certification, which may vary from that parallel you're asking for. The overwhelming variables on the certification side, as I've indicated, are: one, to eliminate the potential for poison in the atmosphere; two, to deal with the intimidation variables that I talked about; and three, to try to change the confrontational aspects of labour relations. Those were the overwhelming public policy considerations that took you to that decision, and these are the overwhelming public policy considerations that take you to this decision.

G. Farrell-Collins: In the legislation that's before this House, with regard to certification, there is a provision that in the lead-up time prior to the date of application for certification, a person who has signed a card to join a union may revoke the card or send it back, so to speak, to the union by merely writing a letter and sending a copy to the Labour Relations Board, stating in silence -- as the minister said -- that they no longer wish to be part of the union that they've signed the card to. If the minister argues that that is a valid process to go through, then how can the minister argue that the same process should not apply for decertification?

I don't know if the minister heard the question; I'll repeat it for him. I thought he was looking to answer the question; I guess he was just seeking advice from his advisers. In sections 23 and 24 of this code, which we've already gone through, there is a provision whereby an employee who has signed a union card may revoke their membership in that union by merely sending in a letter of notification to the Labour Relations Board saying that they no longer wish to be part of that union. The minister said in the arguments on sections 23 and 24 that, in his opinion, that is a fully appropriate way -- a secret way and a personal way -- to revoke that person's participation in the union. The question is: why is that same process not applicable to section 33 as a process for decertification?

Hon. M. Sihota: It's not a secret process with respect to the removal of the certification aspect of this. The notice also goes to the union.

G. Farrell-Collins: Regardless of where the notice goes, the question is: if the minister's opinion is that the process works for a person not wishing to be part of a trade union, then why is the same process not applicable for the decertification process?

Hon. M. Sihota: It was deemed by the panel that looked into the issue that it needed something stronger than simply people signing a card out; that's why.

G. Farrell-Collins: It seems that every time we get to a difficult issue in this debate, where the minister finds himself in a bit of a conflict, he cites the report. I am getting to the section, hon. Chair. I'm following up with the minister's argument. I would argue that the provision.... To merely fall back on the wording of the recommendation is not enough. Surely the minister, in all the policy things he must do as a minister, doesn't rely merely on recommendations from staff or from

[ Page 4443 ]

policy people. I'm sure that the minister takes into consideration his own wisdom, his own political knowledge and his own guidance on public policy. I would hope that that is the way policy is made in this province.

With regard to this section, it is not enough to simply state that that was a recommendation, and that's why the minister goes with it. The minister has to justify the reasons for accepting those recommendations. I would ask the minister to explain why he doesn't feel that that process, which he argued so much in favour of in sections 23 and 24, is not sufficient to work in section 33. I'd love to have some examples, some reasoning, some rationale or some logic as to why that can't occur.

Hon. M. Sihota: I've provided that for you, hon. member, and this is the frustrating part of the exercise for me. When I give you the reason, you just want to pretend that it wasn't given or pretend that you don't like it.

I'll do it again. We asked the panel for their recommendations. We received their recommendations. Yes, we asked questions with regard to their recommendations. I agree with their view that there needs to be a firm indication of the wishes of the employees with respect to decert, and on decert the best way of ascertaining the wishes of the employees is through the process that is now found in this section.

G. Farrell-Collins: Why?

Hon. M. Sihota: Why? Because it is the best available method that we know of to be able to get a sure reading of employees' wishes on the decert side. There are other methods available on the cert side that we can accept, because they give us a firm indication of an employee's wishes on the cert side.

We looked at it very carefully. We recognize the inconsistency -- or conflict as I think you call it -- in terms of the differences on one side versus the other. Therefore we obviously looked at what the practice elsewhere was. Indeed, the practice elsewhere was identical -- or, shall I say, similar -- to what we are recommending in the legislation now before the House.

So, for those reasons and in light of those practices and those recommendations, hon. member, we accepted the changes that are now found in the legislation.

G. Farrell-Collins: Maybe the minister has a different green book -- Recommendations for Labour Law Reform -- than I do, maybe he has the ministerial version and I have the general public's version. But try as I might, on pages 33 and 34 where we talk about revocation of bargaining rights, the only recommendations that I can see in this section dealing with changes to the decertification procedure deal with the two-year time period for the revocation of certification for companies which have employed no one in the bargaining unit for two years. I don't see that those strong recommendations for the retention of a vote on decertification parallel what was done on certification. Perhaps the minister can advise me where he's getting that information from if it's not the green book that he quoted from.

Hon. M. Sihota: Sorry, the reasons for the removal of the two-year provision?

G. Farrell-Collins: I'll rephrase the question.

The minister stated that there were strong recommendations in the report that decertification must still be done by a vote, that there were reasons and that he concurred with those reasons why the vote should still apply in decertification.

I just asked the minister whether he has a different book than I do, and whether my version of the green book, Recommendations for Labour Law Reform, is the general public version. Unless he has a different one, and in that one on pages 33 and 34 where it deals with revocation of bargaining rights and their discussion and their recommendations it is different, I see no reference at all to the vote or parallel to the lack of a vote on certification.

Hon. M. Sihota: You asked me whether or not we made inquiries and studied the issue, and I said yes. There are some things that they said in the report, true. Then, obviously, we asked questions. I amplified on what's in here by telling you what I had to ask to satisfy myself that this is the way to go. Let's cut to the chase here. If your argument is that there's some kind of inconsistency between the cert and the decert side, yes, you can make that argument. I would agree that, absent of public policy considerations, there clearly is. But there is concern on the front end about employer intimidation, based on experience, which drives one public policy consideration. There isn't that to the same degree on this side. Therefore that drives different public policy considerations. That's all.

G. Farrell-Collins: That's an enlightening view into the reasoning of the minister. Once again we see that there appears, in the mind of the minister anyway, to be this threat of intimidation and coercion on behalf of the employer for certification. Therefore there cannot be a free vote, because there will be intimidation. But as far as the decertification procedure goes, the minister stated that there is not going to be that type of intimidation or coercion.

I would open to conjecture that perhaps a trade union that had organized a bargaining unit and had invested time and money in that, had staff to service it and had a collective agreement in place would be quite upset at the prospect of losing that bargaining unit and the income they generate from it. I think they would be quite upset. I would venture to state that in the event of a decertification drive starting, there would be a great deal of communication between the union executive or organizers, the person responsible for that bargaining unit and the employees in that unit.

Going back to some of the parallels we've seen and all the safeguards the minister has put into this bill to ensure that there is no communication between the employer and the employee, other than on the appropriateness of the bargaining unit.... That was an

[ Page 4444 ]

argument made at a great length the other day by the acting Parliamentary Secretary to the Minister of Labour when he stated that the only input employers should have should be on the appropriateness of the bargaining unit. Then shouldn't it also be that in the event of decertification, the union should have no input at all? They should not be dealing with any issue other than the appropriateness of the bargaining unit. Isn't that the proper parallel? I think it is wishful thinking to state that there would be absolutely no communication beyond that. The reality is that there would be a good deal of communication between the union and those employees seeking to decertify. Perhaps the minister can agree or disagree, I don't know.

[3:15]

Hon. M. Sihota: I'm sure the hon. member would agree with me that if there is intimidation and coercion on the part of the union during the course of that communication, then section 9 becomes operative.

G. Farrell-Collins: That's very encouraging. I'm glad to hear that. It would seem to me that section 9 also applies to the certification procedure, yet the minister didn't feel that section 9 in itself was sufficient to protect workers from coercion and intimidation. In order to further protect that, he removed the vote on certification. If the minister feels that the protections under section 9 were insufficient for certification, does he not feel that they would also be insufficient for decertification?

Hon. M. Sihota: Experience would indicate that this is not a problem.

G. Farrell-Collins: I guess the minister is stating that the type of intimidation and coercion he's concerned about never takes place in a decertification drive and that there is no communication on anything outside of what was included in section 8. According to his colleague who was taking the debate for him while he was away, that applies only to the appropriateness of the bargaining unit. The minister is stating that in a decertification process, the union itself will only communicate to the bargaining unit on matters that relate to the appropriateness of the bargaining unit and not about whether or not they should be unionized or what the value of the....

The minister seems upset. I'm merely drawing the same parallel and arguments made by his own colleague, whom he left responsible for the debate in this House. I assume that when that member stands up and speaks, he speaks for the minister. That's all I can ask.

Interjection.

G. Farrell-Collins: Well, they did say he did.

The Chair: Please address the Chair, hon. member.

G. Farrell-Collins: The minister seems upset by this. I think it's a very logical and rational argument. The member for North Vancouver-Lonsdale spoke for an hour and a half to two hours in this House at one point, and at other points for longer than that, while the minister was absent, and I assume -- maybe I should ask that question -- that when he speaks for the minister, we can assume that he is speaking for the government. He clearly stated that the only parameters of section 8, as far as freedom of speech went, were for the employer to communicate the appropriateness of the bargaining unit to the employees. That was his statement, and I assumed that that same provision applies to the union under the decertification process, seeing as the minister brought up sections 8 and 9.

Hon. M. Sihota: The member can take what other members have said and what I have said and try to twist it for the point he's trying to make. All we're saying is that there is an opportunity here for the union to communicate so long as it is within the parameters of section 9.

G. Farrell-Collins: I'm not twisting anything. I'm merely quoting from the member for North Vancouver-Lonsdale, the member whom the minister asked to be responsible for the debate while he was out of the House. The minister is welcome to read Hansard on that debate; it was on section 23 the other day. The member spoke a great deal about how sections 8 and 9 applied to section 23. So perhaps the minister could check into that before he makes too much more comment.

I assume, given the minister's comments, that the provisions as identified by the government in sections 8 and 9 as they relate to certification would also apply to the decertification process, that there is a balance there, and that there is no difference between the boundaries of communication ascribed under the certification process and the boundaries of communication ascribed under the decertification process. If that's the case, I'd be glad to hear that from the minister.

The Chair: The hon. member continues.

G. Farrell-Collins: I'm asking a very clear question of the minister: is there a parallel between the rights of communication that exist under the application of section 23 and the rights of communication that exist under the application of section 33?

Hon. M. Sihota: Section 9 speaks for itself. I don't know to what extent I can get into section 9 to remind the hon. member what it says, but for anyone who has intelligently followed this debate, they would know that section 9 places certain restrictions on the ability of people to engage in activity, including communication; and unions are subject to that under section 33.

G. Farrell-Collins: Well, it took 45 minutes for us to get to personal insults. It's unfortunate, but that seems to be the way the debate is going on this bill.

The Chair: Order, hon. member. If the member is standing on a point of order and suggesting that some aspersions have been cast on him personally, he should

[ Page 4445 ]

ask for a withdrawal; otherwise I would ask him to continue the debate.

G. Farrell-Collins: I have no need to call the minister on this. We'd spend all day doing it if I called a point of order every time he started hurling personal insults.

The difficulty that the opposition has with section 33 is in trying to understand where the balance exists, where the parallel exists. The minister has stated in this House at great length the reasons that he feels a democratic secret ballot is not sufficient to ensure the fair and reasonable wishes of the bargaining unit to certify, and now under section 33 he's trying to tell us that in fact that's the best way to go about it. I would argue that if we apply one set of criteria to one section, we should apply the same set of criteria to the other -- the decertification process.

The minister seems very leery to give comment that would confine and would try to ensure the fairness and balance that he says he seeks to find in this bill, and apply those same types of rules to both sides. In section 33 the provision for decertification simply does not parallel what the minister has said. He has used numerous arguments to say that it's the best.... Actually he hasn't used any arguments; he just said that's the recommendation as to why we need to go with a vote on decertification.

Hon. Chair, I notice a scarcity of members in the House. Perhaps we should call a quorum, and then we can resume.

The Chair: I will determine whether this is the case. It is the case, hon. member.

There is a quorum now.

Hon. member, before proceeding, I would bring your attention to our standing orders concerning repetitious debate. You certainly are relevant in your debate. The question the Chair is having is the extent to which the topic is being canvassed and the persistence with respect to responses having been established. It's getting to the point where I have to look at it in terms of whether we're becoming repetitious. There may be a point when you may wish to move on to another matter under this section. But that's just a caution. If you would like to proceed.

G. Farrell-Collins: With regard to section 33, the minister has said that there are in his mind legitimate arguments to state that the balance between the certification and decertification process should be upset and that in decertification the vote is the best test possible to determine the appropriateness of the bargaining unit. Perhaps the minister could inform us what those reasons are in very specific terms -- not in the general terms that that's what the panel people recommended, but in very specific terms as to what those reasons are. If he could do that, it would be very helpful.

Hon. M. Sihota: There are no other indicia of evidence that would disclose the true wishes of the employees.

G. Farrell-Collins: I'm trying to frame this question very carefully, because I'm trying very desperately to get an answer of some substance from the minister. The question is: why is it that there are numerous types of procedures available to determine the appropriateness of representation as to whether or not the employees wish to join a particular bargaining unit?

Hon. Chair, it's very difficult to engage in this debate. Either the minister isn't in attendance in the House, or when he is in attendance, he's yakking to his best buddies.

The Chair: I'll ask the hon. member to withdraw the remark about yakking to his buddies. That is entirely unparliamentary language, and the hon. member, I'm sure, is very aware of that.

G. Farrell-Collins: Thank you, hon. Chair. I don't know which part was unparliamentary. I'll withdraw it all.

The Chair: Thank you, hon. member. Please proceed.

G. Farrell-Collins: Either the minister is not here, or when he is here, he is speaking to other members of his caucus and not paying attention to the debate. Perhaps that's why we keep getting the same answers to questions and the answers don't mean anything. The question is quite clear. The minister says that's the only way to determine whether or not the employees wish to decertify. There's no other way possible. Perhaps the minister could enlighten us: are there no other provinces or jurisdictions around the world that do anything different from what he is recommending?

Hon. M. Sihota: I'd be happy to educate the hon. member by saying yes.

G. Farrell-Collins: First we have the minister saying that there is no other method, and then we have the minister saying that there are other methods. I would like to know which one it is. I don't know if he's going to answer that.

The minister has himself in a difficult spot, because he has argued so hard and long against the free vote in one section of the vote. Now when we come to the important section of decertification, he finds himself arguing against himself. I know it's a difficult position for him to be in. I'm not trying to take advantage of that, but I am trying to ask the minister to justify the difference in the two arguments.

He stated that this is the only process that will work; then he stated that there are other processes in other jurisdictions. Is he saying that they don't work?

Hon. M. Sihota: Hon. member, perhaps you should listen with greater care, if I may say so, hon. Chair.

[3:30]

[ Page 4446 ]

G. Farrell-Collins: I listen to everything you say....

The Chair: Order, please.

Hon. M. Sihota: There is no other method that is acceptable to this government; there are other methods. For example, for your edification, we could have made a decision to give the board discretion to order a vote. That exists in other jurisdictions as opposed to making it mandatory for there to be a vote. That was one alternative that was available. But the practice in most jurisdictions has been to give the discretion that, in a large majority of cases, they proceed with a vote in any event. So we have two options here in Canada -- those which require a vote or give the board the discretion to provide a vote. But when you look at it at the end of the day, they all seem to come down to the one point: having the vote.

G. Farrell-Collins: If we give the board the discretion in certification on whether or not there's going to be a vote, then why don't we give it in the decertification? Again we come down to the imbalance between the two.

Hon. Chair, I'll take my seat and let another member try to pry something better out of the minister than what we've received so far.

L. Hanson: First of all, I had an amendment sitting in my name on the order paper, which will be withdrawn as a result of the minister's assurance that he will provide for the supervised ballot in the regulations.

Mr. Chairman, the minister made the statement earlier -- and I know that this has been canvassed to some degree -- to the effect that in determining the true wishes of the employees, the signing of a membership card was a good and adequate indication if there was 55 percent, and that there was no longer the need for a vote under those circumstances. I'm sure the minister is not unaware that the debate that has gone on about certification and the requirement for a vote is not opposed to the vote; it's in support of the need for a vote in both circumstances. Could the minister give me some enlightenment as to why the signing of a card saying that I want to be decertified has less validity than the signing of a card saying that I want to be certified?

I know we have a difference in philosophy, but he made that statement earlier, and I'm not sure I understand that.

Hon. M. Sihota: Let's just go back a bit. There are parallels and there aren't with regard to the two sections. The parallels are that we have a vote in British Columbia on certification from 45 to 55; we don't on 55 and up. We have a vote in all instances of decertification, including where there may be an indication of more than 55 percent. In the area of 55 percent and up, there's an absence of parallelism between the two sections. It wouldn't be fair for someone to argue that there is a total lack of parallelism. Let's get that point clear, because I don't think the hon. members are stating that in their questioning -- at least not the Liberals.

Secondly, it is true that we could take a look at decertification on the basis of cards for the same reasons that we're accepting cards for certification at 55 and up. That's clearly a public policy option that's available to government. On the certification side, there are arguments of employer intimidation that drive us to the policy of 55 percent, where it just makes sense to proceed with certification. If it's less than that, we'll still go for a vote, because we need a greater level of certainty. In order to ensure an appropriate level of certainty on the side of decertification, we're requiring a vote in all cases, including the case above 55 percent.

It is true that there's an inconsistency between sections 23 and 33. The determining variable for that inconsistency is the concern about employer intimidation, which is based on experience at that end of the issue and for all of the reasons that I articulated when we had that debate.

The concern on the decertification side is not so great as to warrant a different outcome. In all instances on the decert side, including if there's an indication of more than 55 percent, we've taken away any discretion on the part of the board and have indicated that there should be a vote. In that band of activity that I've just talked about, there is clearly an inconsistency. If that's your point, I accept it. I hope you will also accept that the concern with respect to intimidation is greater on the front end than it is on the decertification side. Let me also say that there are provisions under section 9 that deal with the intimidation aspect of decertification if there's an action by a union.

If you ask me why I am prepared to be more concerned about employer intimidation on the front end than with union intimidaton on the back end, the answer is that experience would suggest that there is a problem on the front end, but there is not a problem so acute as to warrant something more than section 9 on the back end.

L. Hanson: Not to belabour that point much further, as far as I'm concerned, we have established that there is a difference in philosophy between the two sides of the House. The minister has recognized that there could be a difference in opinion as to the quality of the policy as it's stated in the legislation when it comes to certification or decertification, and maybe that is sufficient.

The only other question I have for the minister is: when the committee went around the province -- and I believe he talked earlier about the number of presentations regarding the need for a vote on certification -- was the same sort of percentage...? Where did the request come from for a need for a vote in the decertification process regardless? Was it in the same ratio as the presentations made to get rid of the vote in the case of certification with over 55 percent of the members signed up?

Hon. M. Sihota: As the hon. member knows, since 1984 we have had on the decertification side the requirement for a vote. I don't have the exact number,

[ Page 4447 ]

but there weren't very many recommendations that we change that provision. The reason for this is fairly obvious. Employers who were going to argue for a vote on the front end weren't going to argue against it on the back end, and unions that were going to argue against it on the front end were not going to argue against it on the other side. That's why you don't get much in terms of numbers of people arguing against it.

L. Hanson: I have a question on another section, and I don't know whether the Liberals have more questions on the section we're talking about. Very quickly, I have a question on section 6(b).

The Chair: Order, hon. member.

L. Hanson: I'm sorry -- on subsection (6). We're still on the same section.

The Chair: Thank you, hon. member. Please proceed.

L. Hanson: We're still on section 33, hon. Chair. You were afraid we had regressed to section 6.

Anyway, that section deals with an application that's made under this section, and the board may, despite section so and so, cancel or refuse to cancel the certification. Under subsection (6)(a) it says, "any employees in the unit are affected by an order under section 14," and section 14 deals with unfair labour practices by a person -- which includes the definition of "union," the definition of "employer," and so on. Why did the minister or the committee feel it was necessary to then go on in (6)(b) to: "...the board considers that by reason of improper interference by the employer a representation vote is unlikely to disclose the true wishes of the employees"? It would seem to me to be an unfair labour practice if that were the case -- interfering in the vote -- and that would appear to be amply covered under subsection (a). It seems to be almost double jeopardy to point out that the employer is the culprit in these situations. Could the minister give me some insight into the thinking on that?

Hon. M. Sihota: So (a) is triggered by an application under subsection (6), which triggers 14; (b) would allow for situations where the board, during the course of its own inquiry in the absence of an application under subsection (6) and section 14, uncovered something that would lead it to want to make that determination.

L. Hanson: I suppose that's fair. But if that were the circumstance, why wouldn't it say: "...the board considers that by reason of improper interference by the employer or a person or...a representation...." -- if his explanation is the reason?

Hon. M. Sihota: It's a pretty good point actually. I'm trying to think this thing through, but it would seem to me -- and I'm thinking this through as I speak -- that if there was improper influence by a trade union, then why would the board want to hold up an application by the employees to decertify? It would seem to me that they would just allow it to flow through.

F. Gingell: I was wondering, Mr. Chairman, if I may ask the minister to explain how decertification can take place when the particular business in the particular location has ceased to operate.

Hon. M. Sihota: If they cease to operate, why would you...? They wouldn't exist anymore as an operation, so you wouldn't need to make that application.

F. Gingell: If there were then some subsequent employer who came along and opened up the same business in the same location -- but clearly a different owner -- would the certification from the previous operation follow through?

[3:45]

Hon. M. Sihota: That's a successorship issue. It would be covered by the successorship provisions.

L. Hanson: The last answer of the minister almost slipped by me, but I'm afraid I can't accept that answer, because with that answer there is an assumption that decertification is the motivation of the whole thing.

[M. Farnworth in the chair.]

What that section deals with, hopefully, is trying to ensure that the revocation of bargaining rights is truly the wish of the employees, not the wish of the union or the employer, and not the desire of the union to keep certification in place. Therefore it seems to me that the wording that is in place doesn't deal with the second half of the equation, if the minister's explanation of subsection (6)(a) is correct.

Hon. M. Sihota: The best answer I can come up with is the answer I just gave you: if during the course of the investigation -- in the absence of an application under subsection (6) and, hence, section 14 -- the board finds in its own inquiry that the union has unduly interfered, the section basically says that they must still go ahead and have their vote despite that. So for that reason we'd proceed. But I think you're right: you could supposedly have a situation that would mean certification would remain notwithstanding that discovery on the part of the board. I take this as your concern.

I think we'll just stand section 33(6) down until I'm more satisfied with that. That might be the only answer. We may or may not change it, but I'm just going to stand it down until we can think through it. We'll just proceed and come back to that section later on.

L. Hanson: That's fine, Mr. Chairman. I appreciate the minister's concern there. Do you want to discuss other subsections of section 33?

Hon. M. Sihota: Yes.

L. Hanson: I just have one further question. I've looked over the bill with some interest, as you can appreciate, and have not been able to find a place where an employer could apply for decertification no matter

[ Page 4448 ]

what the circumstances. I recognize that the minister has left out the two-year, no-employees requirement, and so on. But I think the minister would agree that if the company is non-existent, if you will, other than maybe for some personal holdings, there could be a circumstance whereby it would be reasonable for an employer, or someone classified as an employer, to apply for that. Is there a section that the minister could identify under which that could happen?

Hon. M. Sihota: No, there isn't. It would have to be an application brought forward by the employees, on the principle that the employees make the decision that they want in and they should be the ones to make the decision that they want out.

L. Hanson: Just to give the minister an idea of what my concerns might be, at one time I was an automobile dealer. I sold the assets of the automobile dealership to someone else, who started a new dealership. Since then I have had the original company, which was the automobile dealership. That was some 17- or 18-odd years ago. While it wasn't certified, because I was a good employer.... I've not had any employees since, nor do I intend to have any employees. The certification would probably have gone with the assets to the new company that was formed. By the same token, the old company would still have a certification registered against it. Under those circumstances, it seems to me -- and there aren't any employees; there never will be any employees -- that there should be some process that would allow the employer to apply. Maybe the minister would consider some clause in the bill that would allow that to happen.

Hon. M. Sihota: I'm not sure what the concern is. Let's say after 17 years you decide to take the company off the shelf, and there was a certification attached to it. First of all, you have stripped the company of its assets, and you are reinvigorating the company. If you were to have new employees, it would seem to me that you might be able to make the argument that successor provisions ought not to apply if someone tried to come in under that old certification and suggest that there is certification. In other words, at that point you could make the argument, given the time the company sat on the shelf -- as they often do -- that the successor provision should not apply.

I guess this is subject to our discussion of successor provisions. Off the top of my head, not having looked at them today, you might be open to make that argument. When you take it off the shelf, you don't have any assets; you have sold the assets. If that certification flowed to another company when you sold the assets and someone tried to come in underneath the old certification and say that they were certified, I think you'd probably have some ambit under the successor provisions. That would be my guess.

L. Hanson: I recognize that possibility. I am not particularly concerned about my circumstances, as far as that company is concerned. But it is a situation where I think the minister should consider some sort of form or process that would allow something like that to happen. The old company, or the operation that is there now that absorbed all the employees and the majority of the assets.... Certainly that certification would flow to that company by successorship, even though I hadn't in fact sold them the company.

There is a circumstance where that company, which is a corporate entity, could go on to something that is totally different. If it had employees and the certification process went ahead, with a normal process no one could have any argument with that. But to have the certification follow it under those circumstances, even the minister might agree that that was unfair. If the minister is committed to looking at that circumstance.... I know it's a hypothetical situation, but I think it is a very real one, like the cases that I mentioned. That isn't an unusual circumstance. For a lot of reasons, when assets are sold, the entity that sold them quite often continues as an entity, for whatever the reason might be -- taxes or other reasons. If the minister will consider that in section 33, it would be appreciated.

Hon. M. Sihota: Yes, we will consider that. We may want to take a look at it under another section, or as we'll inevitably have to do some consequential work on the code in an omnibus way sometime during the life of this parliament, that might be another time we may want to consider it. It's a valid point, and we'll certainly think about it and see if there's some room in subsequent sections to deal with it.

The Chair: Seeing no further speakers on section 33, we'll stand down section 33(6). We'll vote on the rest of it if there aren't any other speakers.

[4:00]

Section 33, with section 33(6) stood down, approved on the following division:

Section 34 approved.

[ Page 4449 ]

On section 35.

L. Hanson: I would like to move an amendment to section 35, to add a subsection (4), which would read: "For the purposes of this section, the skills or abilities of a person do not of themselves constitute a business." And a subsection (5): "For the purposes of this section, there is not a sale, lease, transfer or other disposition of a business by reason only that another person performs similar functions at a location previously occupied by that business." And a subsection (6): "This section does not apply where a business or substantial part of it is sold, leased, transferred, or otherwise disposed of by a trustee in bankruptcy, unless the Labour Relations Board is satisfied that there has been an attempt to evade collective bargaining obligations under this act."

On the amendment.

L. Hanson: The reasons are obvious, in my opinion. As the bill reads now, the key-man philosophy would constitute a transfer or carry forward a certification, even though the individual was not necessarily the owner or otherwise of the entity. The second one would suggest that if there were a transfer of business or assets, in order for certification to follow, it would have to be a substantial part of those assets as opposed to the much lesser test of "a part of," which is the way the bill reads.

The last amendment would be that in the case of bankruptcy, certification would not necessarily follow simply because in the case of bankruptcy there is usually a transfer or sale of the assets by the trustee to another entity. If that were the case, the employees of that other entity should have the opportunity of deciding on their own if they want to be certified and whom they would like to represent them. Also it would have some significant effect on the ability of businesses in British Columbia -- I know we all appreciate how much we need them for the creation of jobs and the health of the economy -- to have their financing looked at a little more positively. Any financing organization would have to look at the circumstances of bankruptcy and how the assets could be disposed of if that was the only realization they could have of the original amount of money loaned.

Hon. M. Sihota: This takes us back to Bill 19. It's no surprise, hon. member, that we would be opposed to it. If he recollects about six years ago, he'll recall all the reasons I'm opposed to it. We will not be supporting it, hon. Speaker.

F. Gingell: I would ask that the minister really consider this amendment with care. I come to this House with a background not in labour relations but in business. I do have a background in the problems of trying to assist companies in obtaining financing. It goes without question that banks and other financial institutions look to the assets to which they secure for security. It's going to change their attitude. It's going to change the position. Having got to the position where the company, having gone through all the attempts to save it, has passed through the receivership process into bankruptcy, and the bankruptcy trustee takes possession on behalf of the lender and tries to make some kind of arrangement to sell the business, to get it restarted, to open up the opportunities in single-industry towns and do all those things that all members of this House so strongly support.... We really do need to create an environment in which the economy can grow. We can't turn ourselves into another Harlem or parts of downtown Detroit.

I know that that is a ridiculous exaggeration, but we are now in 1992, and we've had difficult economic conditions in this province for a long time. For all of the beliefs and statements by ministers of the Crown that the economy is turning around, B.C.'s anticipated growth rate of 3.6 turned out to be one-point-something -- and that is perhaps only because of immigration. We mustn't do anything in this bill that in any way makes it more difficult for businesses to be created or saved. I really have concerns about removing the provisions in the old section 53 to have certification break when a company is genuinely bankrupt -- not a phony bankruptcy but clearly new owners. It makes common sense to all of us.

[4:15]

In fact, if it had not been for the threat of Bill 84, perhaps the miners would be working today in the Elk Valley. This is the government that talks about looking after the needs of the working man. It's all very well to blame management for the industrial and labour disputes that caused the serious kinds of problems at Westar. I heard the Minister of Finance speak to the press during the Greenhills incident. He was saying that the whole cause for the problem there was poor management. All of these things are judgmental, subjective conclusions that people arrive at. The minister may well have been right to indicate that many of the problems there were caused by poor management. I don't know; I wasn't there. But I know that it takes two people to make a deal, and I know that it takes two people to make a fight.

Interjection.

F. Gingell: Well, I guess that's true too.

But what's involved here is a blockade. Taking out the ability of the business to move forward without decertification creates what may become an impenetrable barrier to the continuation or regeneration of bankrupt businesses. No one is suggesting that the subsequent business will not be unionized. You should allow the certification to die and the business to be sold, and the employees, after it is started up again, will soon make their decision -- we agree with the government that it is rightly theirs -- on whether they want to recertify. They may very well believe that the problems they had were caused in part by the particular union they were dealing with. It may not have been appropriate. There are changes in technology every day. Businesses change, the way we do business changes and the focus of businesses changes. Circumstances that may have caused the company to get into financial difficulties and to end up in bankruptcy with the employees

[ Page 4450 ]

represented by union A may not have happened -- and the employees may believe that -- had they been represented by union B. So there is, in the way the bill is written now without the amendments that the member for Okanagan-Vernon has proposed, no way of wiping the slate clean. That's what should be done. You should be able to wipe the slate clean and allow the new employees to make their own decisions. I would appreciate the response of the Minister of Finance concerning the economic and growth situation of British Columbia, with respect to this section.

Hon. G. Clark: Having successor rights on bankruptcy extinguished is open to abuse, and we saw a lot of abuse in the last recession with companies opening up a non-union subsidiary, folding or bankrupting their existing company and trying to circumvent the rights of workers through bankruptcy or other techniques such as double-breasting and a combination of factors.

The question for us is that in the event of bankruptcy, workers have certain vested rights in the activities of that corporation. Of course, there's equipment and all the other factors that go along with bankruptcy. If someone purchases the operations of the business, then those workers and their rights that they've built up over years of service are attached to that business. They're buying the business including the workers. I think it's wrong to say that it's good public policy to allow successor rights to not be granted in the event of a bankruptcy.

You could use the Elk Valley as an example. The Elk Valley does have a very difficult labour relations situation. But to think that because a certification dies, that automatically means that in that small town the labour problems die with it is incorrect. For a new company to attempt to open and to import workers or cherry pick, as they say, the workforce and not use seniority or the other factors to deal with it in a more civilized way -- to go around the union organization in the existing workforce -- would be extremely problematic. I don't mind saying that when companies suggested an interest in that, even though there were no successor rights, my personal recommendation to them was that they sit down with the union and the people involved to work through a way of restarting it using the organization that the workers had, the existing employees, and try to deal with it. To do otherwise would be extremely difficult, particularly in a valley like that with lots of labour history and lots of problems.

Most of the companies did that, not because I told them to or the law told them to, but because it was the right thing to do. In the case of at least one company that was not ultimately successful, there was a lot of work done to rebuild some trust with the workforce, and a collective agreement was signed which was significantly different from the collective agreement that existed before the bankruptcy.

I would say that it's always preferable not to attempt to start up an existing operation after bankruptcy and import workers who have no history in the organization; or select workers, by its nature then, selectively and to try to start up. I think it causes bad labour relations; it does not help the economy. If there are problems, yes, you are quite correct: it's not just the management; often it's both sides. You need to restore that trust, and most companies understand that.

We are allowing that practice to continue as it used to be in British Columbia. Only Bill 19 and the IRC eliminated the successor rights on bankruptcy. Most jurisdictions allow successor rights in the event of bankruptcy. It has caused very serious problems. I can name some of them, but I won't right now -- very serious labour relations problems and serious economic problems, at least for the workers involved. This is a restoration of what existed not just under the NDP administration but under the Bill Bennett administration as well. It was only Bill 19 that changed this law, and it has caused serious problems over the last few years. That's why all three members of the panel supported what is in this bill, which is a restoration of successor rights in the event of bankruptcy.

D. Symons: I appreciate your answer to the last question by the hon. member for Delta South. I had some concerns along that line, and I think your answer at least addressed those. I suspect these changes or successor rights, besides the reasons you stated, were also brought in, in a sense, to stop double-breasting, which seems to be a concern.

I'm considering the amendment that was made where it talks about a substantial part of the business being sold. Indeed, if we read section 35(1), it states: "If a business or a part of it is sold...." What happens in the situation where the business has a rather large asset, as well as typewriters, filing cabinets and so forth, and these are being sold, not to one individual buying it lock, stock and barrel, but to various bidders? Do we have the situation built in where the typewriter, filing cabinet, pens, pencils or whatever else that business might be selling off is going to have a union contract attached to it? To me that would seem ludicrous that these smaller items, which might be worth only a few hundred dollars, would have a contract attached to them. The buyer would then be subject to carrying through with that particular contract.

I was waiting until I had the minister's attention. You can answer that part, then I'll go onto the next section.

Hon. G. Clark: We're dealing with the amendment, not the section, so your comments are not relevant to the amendment.

Having said that, on the section, you're quite correct: that would be ludicrous. It's not contemplated. I can assure you that there was lots of case law when we had this section in the past. At no time would a union be successful in pursuing successor rights in any of the circumstances you mentioned.

G. Farrell-Collins: The example that the minister uses, which was brought up by the member for Delta South, is a pertinent one, but perhaps I can use a different example. In the case of a small retail shop, a corner store or a small restaurant.... Perhaps I should use a restaurant, knowing the somewhat high-risk ventures that they can be, and we are all familiar with

[ Page 4451 ]

the restaurant that's down the street on the corner. It opens up with some name and runs for six or eight months, or a year and a half, encounters difficulties and can't go through. Then another will come in and open up, and then another one. That happens all the time. It's a very frequent occurrence. How will this section of the bill affect that scenario? Perhaps you can relate it to the example you used earlier.

Hon. G. Clark: First of all, most small businesses and restaurants are not unionized, so it won't affect them. I would say that the experience we've had with this exact section for many years demonstrated clearly that it did not have a serious effect on that kind of operation.

I will say, though, that what we're really doing is restoring what existed and allowing the board a great deal of discretion. I appreciate where the members are coming from, and what this amendment does is bring back in sections of the Industrial Relations Act which very seriously narrow the discretion of the board. In all of these circumstances we find the Labour Relations Board or Industrial Relations Council, and the practitioners, to be a forum for discussing these questions and for reasonableness.

That's the way it's been interpreted in the past and how we obviously expect it to be interpreted in the future. We see no reason to go back to the Bill 19 language, which very seriously narrows the discretion of the board.

G. Farrell-Collins: I do want to canvass to some extent the example that I've used -- that of a restaurant -- because I think it's one area that we're headed into. It's certainly an area that members of the government have said needs greater representation and greater certification. Sectoral bargaining was one of the things that you were considering, but you decided to take that out. We certainly know what the direction and goals of the government are, and so be it.

[4:30]

But the restaurant sector, the hotel sector -- and particularly the restaurant example.... The average turnover rate of employees in the restaurant business is very high. It depends on the type of restaurant, but it ranges as high as 100 percent. Actually, I think the average is about 100 percent per year. Employees cycle through various restaurants. Many restaurants have employees who are there for 20 years, but in other cases they're there for three to six months. In fact, it tends to be part-time work generally done by students while they're going to university or college, etc.

If a restaurant were to go out of business for six months and sit there with a for-lease or for-sale sign on it, and six months later someone else came along and purchased that restaurant, it would be highly unlikely that any of the original employees would be around to seek that employment. We end up with a situation where a potential employer, or investor, may wish to come in, open a restaurant and start it up. They may have been a very good employer -- way better than the person who was there before, for example, and maybe that's part of the reason they went out of business -- and would like to open a restaurant, use the assets and the provisions there, and perhaps choose to use the same name and hire new employees.

There's really no correlation there between the workers' rights being preserved -- because they are different workers -- and the employer being a part of that bargaining relationship, because the employer is a totally different one. So in a case like that, the potential investor may come in, look at the place and say, "Yes, I'd like to open this up," and then perhaps find that the previous owner was a terrible employer, got himself in a situation where he wasn't being respectful of employees' rights, had a union and was certified and eventually went out of business anyway. That new employer comes in and says: "I'm not going to go in there, because I can't compete with those wage rates," or "I can't compete with that collective agreement." Perhaps that's the reason the other guy went out of business.

In that case you're sort of stifling reinvestment, you're sort of stifling the application for opening another restaurant to provide those jobs. Is it the intent of this section to do that, when there may well be no relationship between the old employer and the new employer, or between the old bargaining unit and the new bargaining unit.

Hon. G. Clark: Of course, in the restaurant business I don't think it is a problem, because clearly you can open up all over the place. It's not that difficult; I mean it's not a heavy capital-intensive industry that's immobile. Let me put it this way. This section says that in the event of a bankruptcy, workers' collective rights are not extinguished. Does that fetter the right of the employer? The answer is yes, it does. There's no question about it. Is there another hurdle to go through before reopening? The answer is yes, there is. But what's wrong with that?

We're saying that the employer's right to purchase a bankrupt company and start up again is fettered by collective rights that workers have built up over time. It doesn't mean that they can't open up again. It doesn't mean they can't open up again non-union if the workers choose to, if the original workers are gone and all those other things. It simply means that workers' rights are not extinguished. They have a collective agreement signed. In the event of bankruptcy, the workers are not just sent down the road with no rights whatsoever. The assets are there, and the workers are part of the assets of that operation and have to be treated with respect and accorded the rights that they worked hard for.

Is it more difficult? I'd say yes. The employer's right to do what he or she would want to do is fettered by the collective rights of the workers. I don't make any apology for that. That's what this is: an attempt to say that there are various competing interests and competing rights in society. When workers work together on a collective agreement they gain certain collective rights. This is what the labour code is all about. They're not simply extinguished immediately in the event of bankruptcy.

G. Farrell-Collins: I'd like to canvass this for a few more rounds. First of all, maybe I can just clarify for

[ Page 4452 ]

the minister that the restaurant industry can be very capital-intensive. For many restaurants, such as the average one you see opening in Vancouver, it can be anywhere from $600,000 to $1 million-plus as an investment. So it is a substantial investment for either one person or a consortium of people. It is difficult to pick up and move a restaurant. In fact, the worst nightmare of a successful restaurateur is having your five-year lease expire and having to renegotiate at a rent that's going to put you out of business so you have to move your location. That's a nightmare. It really is difficult to do that.

The concern, I guess, is as I stated: when you have a case where a restaurant goes under, for whatever reason.... I was using an extreme position for the minister to try and illustrate a point. The original employer may have been a poor employer, disrespectful of the employees' rights and may have deserved whatever he or she got. I'm just asking if it's reasonable to ask that this legislation include a provision whereby.... In a case where that type of business goes under and someone else wants to come in, reopen it, reinvest, maybe do some renovations, hire some new employees -- and as I said, the chances are that they'd all be new employees; it's very unlikely they'd be the same employees -- there should be a provision for them not to inherit the collective agreement that was there before, because the employees are all different. I would assume that the union would of course want to keep that job site certified. That would be my assumption. Before the new employees are even hired, the employer's trying to determine what they're going to do. They'll have to hire all the employees, and then if they don't want union certification, they'd have to get all those employees, once they're hired, to have a decertification vote. But then we can't have the employer participate in that. So it's really difficult for a good employer who wants to treat his or her employees fairly, pay them a very decent rate, give them all the flexibility they need to do the other things they're doing -- perhaps they are going to university or college and they need that flexibility -- and have that type of working relationship yet is leery of doing that because they will end up in that situation.

Hon. G. Clark: All we're saying is that a prospective purchaser of a bankrupt company has to go to the union and discuss the collective agreement with them before it's reopened. Right? That's what you're really saying. What's wrong with that? The union and the members desperately want the business to reopen. It went bankrupt; they're out of work. Now you're saying to the workers, who maybe have years and years of seniority in an operation....

F. Gingell: They've gone to other jobs.

Hon. G. Clark: If they've gone to other jobs, then that's fine. What would happen is that the union would sit down and try to help a prospective buyer reopen. That's what happens; that's the reality out there. Is it another hurdle to go through? Yes. But it's a hurdle that protects the employees who've worked there.

L. Fox: I've been listening to this debate with some interest, and it's obvious that the minister doesn't understand what normally happens when a restaurant closes. In fact, there are three corporations in this province that make good money selling off used equipment that it collects from closed-down restaurants. They distribute it into many areas that may not be restaurants.

The interesting question is how the minister and this government are going to track all this equipment. This particular section without this amendment suggests that a part of a business that is sold has the certification go with it. So I'm going to be interested in the minister's answer as to how he's going to track all this equipment that may end up in a logging camp where it could be represented by a different union, and how he's going to allow that union to go in and argue with that particular logging camp. Those are the real issues that I think this kind of legislation is going to face: the tracking of this equipment.

Another factor that goes into this is the holder or the financer of that equipment.... My concern is what kind of collateral the financing agent really has when, if this corporation goes broke, he has to sell certification with the equipment that he has repossessed. What kind of value does that equipment then have when it's got a union going along with it? I'll give the minister a chance to answer that.

Hon. G. Clark: I mean this with respect. You've taken an issue to an extreme, and it's just not credible. That's not going to happen. Let me put it a different way. In the legislation we have crafted, any of the questions you're concerned with we will handle exactly the same way as Alberta, Saskatchewan, Manitoba, Ontario, Newfoundland, New Brunswick, Nova Scotia and P.E.I. do.

What we are doing in this section is consistent with every province save Quebec. Quebec has a clause similar to the Industrial Relations Council clause that you want to restore. This is not radical; this has existed in B.C. for years. It existed under your hero Bill Bennett. It exists in conservative provinces. It is a reasonable one. There's lots of case law in it.

I respect the member, Mr. Chairman, and I know that he's asked a legitimate question. But I want to assure the member that the concerns he raised are not It is not a concern in any of those provinces, and it is not a concern here.

L. Fox: If the minister agreed to accept the amendment, it definitely wouldn't be a concern. With all due respect, I'm really not concerned about a lot of unionized restaurants going out of business and that equipment being distributed around. I hope that they will be able to continue to be non-unionized so I can continue to be able to afford to frequent them.

However, let me give you another scenario, which is very similar, only it's with larger equipment. Many corporations operate on a seasonal basis, and in order to do that they lease equipment. That could be in roadbuilding, in everyday construction or in many different sectors, including logging. This section, as I

[ Page 4453 ]

read it, would suggest that if I go to ABC Rental and lease a piece of equipment, use that for any period of time in construction, and at the end of the season release this piece of equipment back to ABC Rental, certification could in fact follow that lease back to ABC Rental. If I'm wrong in that, perhaps the minister could tell me.

Hon. G. Clark: Yes, the member is wrong.

L. Fox: Very good. Then why ask that question first? I want to point out the thrust of what this government is doing. It's going to be very difficult on those people who sell equipment. Because I cannot dispose on a seasonal basis of any part of my capital assets, I, as a corporation, will no longer go to a sales yard and purchase equipment. If I try to get rid of that equipment, I will have difficulties getting the bank to finance it for me, because it's going to be tied up in certification; and when I try to sell it off, certification is going to go with it. So through this particular legislation, without an amendment, you encourage all corporations to lease rather than buy. You have put a big pressure on the sales yards of all kinds of equipment.

Tell me. He shakes his head.

Hon. G. Clark: It's just not correct. Five years ago there was no pressure to lease rather than buy. There's no pressure in those other provinces I mentioned to lease rather than buy. This is a law. It's interpreted by a board. If there's a fact pattern that shows that utilizing the technique the member refers to is a way of thwarting the collective agreement, then it may have an implication. But it simply wouldn't.

[4:45]

L. Fox: If the minister could produce the clause that was in place prior to Bill 19, and I could be satisfied that it was exactly as this clause was -- I have some doubts that it would be exactly as this clause is -- and given the other sections of the clause.... Remember, hon. Chair, that we will not be dealing with this clause in isolation. In fact, this clause is part of a continual thrust under section 2, the purpose of which is to encourage the collective bargaining. If we look at this, if I am a roadbuilder and I know that I'm going to want to sell off part of my capital equipment on an ongoing basis -- which is what they do -- and I know that along with the serial number of that piece of equipment goes the certification that I guess I enjoy as a corporation.... There's no question in my mind at all that I'm going to lease that equipment rather than purchase it.

Hon. G. Clark: I want to give the member all the assurance that this clause, as we've constructed it in this bill, is identical to what existed prior to Bill 19.

G. Farrell-Collins: I'd like to give a couple of other examples to the minister and get his interpretation of what the application is. And I'd like to say to the member for Prince George-Omineca that somehow this section, despite the fact that it's identical to what was there pre-Bill 19, means the same thing, because it's incorporated into a bill that has a lot of different changes and a lot of different things in it. That's fine; whether it's identical or not, the application will be different. And certainly with a government that is heading towards sectoral certification somewhere down the road, it is important and it is pertinent, particularly as far as restaurants go. I know that if you tie this type of section in with sectoral certification, if it comes somewhere down the line -- I tend to feel that it's going to arrive sooner than the ministers say -- the implication of that is going to be profound. You will see -- I'm using the restaurant example -- that once it's certified, that's it; nobody else is going to touch it for fear that the rest of their corporation will be certified too. But that's a different policy direction. That's the direction the minister wants to go. It's certainly not a direction we would like to go.

Let me go back to another example. Perhaps we could take a situation where there's a very small bus line -- let's say they have five or six buses -- serving a small, rural community, and it goes out of business. Somebody decides to buy those buses and move them 50 miles to another community and add them to their bus line there or start a new bus line. That would probably be 95 percent of the assets of the company. They may only lease a small office in a parking lot somewhere and contract out their maintenance. So 95 to 97 percent of their assets is contained in those vehicles. The bus driver jobs that go into it could be certified, so when someone bought those vehicles and transferred them 50 miles down the road, would the intent be that the certification would travel with them?

Hon. G. Clark: I can't get into a definitive interpretation; that's the board's job. But my background would say that that would not be successor.... It would be a new business in a different town. That might be challenged, and there would be a debate and adjudication by the Labour Relations Board. But the history of this is very clear, and it is not an intent to.... There are legitimate sales of assets that occur around the world from bankruptcies. It's not the intent that somehow the certification follows; it's an intent to try to protect workers in the event of bankruptcy.

G. Farrell-Collins: I understand that we can't get into all sorts of scenarios, but they do help to highlight the intent of the legislation. I guess that's why I'm asking them.

I understand that because a typewriter out of a certified office goes somewhere else, you're not likely to take the typist's job with it. If it's done en masse and you buy a whole typing department or a whole printing division, I suppose that might be different. But to deal with this issue, I guess the minister is stating that it's certainly not the intent, in the example I used where 95 percent of the assets are in the vehicles themselves, that the drivers' jobs in those vehicles would be transferred down the road with the assets, the buses, if they were bought and incorporated into another firm or a new company 50 miles down the road. I assume that's not the intent.

[ Page 4454 ]

L. Fox: I just want to follow up. If I heard the minister correctly a few moments ago, he suggested that if a group of buses left one community and went to another one, then certification would be unlikely to follow that equipment. Yet section 35(1) without the amendment says: "If a business or part of it is sold, leased, transferred or otherwise disposed of, the purchaser, lessee or transferee is bound by all proceedings under this code...." I'm having some difficulty understanding exactly what this legislation means, because a few moments ago the minister suggested that if a group of buses, which are obviously part of a corporation, are moved to another community, unionship doesn't follow. I really have some difficulty. Perhaps the minister might want to enlighten me as to exactly what he means by his interpretation of 35(1).

Hon. G. Clark: Just read subsection (2), which says that if a difference arises, the board will deal with it. I'll just read you one from the old board, before Bill 19. The board has consistently required "discernable continuity in the business." This is not a black-and-white question. There are lots of factors to take into consideration. It depends on those factors, and the board will review them.

L. Fox: I have to get back once again to the issue of the equipment. Let's take Argo, which recently closed down in Kamloops, a company that has gone broke but obviously has considerable capital assets in terms of rubber tires and other kinds of equipment. Had they been unionized -- and I don't know whether they were or not -- it would seem to me that under this clause that equipment would carry certification with it. It certainly is instrumental in that corporation doing business. Therefore, if I should decide as an individual that I want to buy half of that equipment, or a portion thereof, to start my own small roadbuilding construction firm, because it is certainly paramount to that corporation doing business, it only seems logical to me that I would have to deal with the certification that particular corporation had, whether I was in Kamloops, Prince George or Vancouver. If that is not the intent of this legislation, I would really appreciate the minister telling me that it is not.

Hon. G. Clark: You're concerned about the rights of someone to purchase a piece of equipment. We're saying that in certain circumstances those rights are fettered by collective agreements and often dozens of workers who have spent their life working for an organization. Where there's a dispute, the Labour Relations Board will decide. I can't give you an answer to all the fact patterns.

The purpose of this is not to stop people from liquidating in the event of a bankruptcy; it won't do that. The purpose is to say that in the event that an integral part of the business is sold, the workers previously running that part of the business, who have collective agreement rights, have to be dealt with in the process. It's very simple. It's not black and white. Nothing in labour legislation is. It's open to interpretation by the parties.

L. Fox: One more time. I'm trying to get it clear in my head, and I think there are a lot of people out there who would also like to have a clear understanding of the intent.

The minister says that the board will rule on it, and I guess that's all well and good after the fact. But a lot of business people -- and I'm sure the minister would agree -- like to know these things before rather than after the fact. Financial institutions are going to want to know whether or not a piece of equipment that they're financing is going to be considered an integral part of that company and therefore has certification tied to it should the company go broke and they have to repossess it. That is what I'm trying to determine.

This has obviously been put forward by the Minister of Labour and this NDP government. There is motivation for this legislation, at least from within their philosophy. The minister should be able to give me some idea as to when this becomes a legitimate transfer and when it may not be considered a legitimate transfer. That's all I'm asking for.

D. Symons: I'll just carry on with the argument that the member for Prince George-Omineca was giving, because I have those concerns. The important thing here is in the amendment, subsection (6), where toward the end they mention an attempt to evade collective bargaining. That's the important part, and I hope the nub of the reason for this particular section in the act is the attempt to evade a collective bargaining obligation. But I see in here that the concerns we've been raising could arise from outside that attempt to evade collective bargaining. When you go back into subsection (1), where we deal with parts of it being sold, that sort of thing may not be a case of trying to evade their collective agreement.

As I read this, what I see happening and what was asked earlier -- and I'm not sure if the minister caught the import of this question -- was that it can be a company that's not necessarily going out of business at all. It may simply have an asset that it wants to remove because they've got a drop in sales or a drop in their business. It seems that they would be fettered by the sale of that particular item through this legislation.

In the second part of arguments that you've been making in response, it seems that subsection (1) puts this fetter -- if I can call it that -- onto the equipment or the assets of the business, whereas subsection (2) says: "If a question arises under this section, the board...." It certainly seems to put the onus on others to come to the board, and maybe it should be the other way around. We should be stating what the situations are, and the exceptional circumstances should come before the board. It should not be as it seems to be here, where most things will come to the board with the exception of those that will go through without coming to the board.

[5:00]

F. Gingell: Mr. Minister, I wonder if you could advise me on this particular question. I ask it because, as I said when I spoke earlier, what economic growth we have had in B.C. in the last couple of years has been

[ Page 4455 ]

very soft. A lot of it has come from migrants who have settled in B.C. from other parts of Canada and other parts of the world. That has caused some more shopping centres, restaurants and various other things to be built.

If I am a developer, and I own this property and lease it out to a retailer such as someone did in Tsawwassen.... I think it was Dominion Stores; it certainly wasn't Safeway, anyway. They were unionized, and then couldn't compete. For months we went through the distressing situation in that community of pickets marching up and down. Finally the store closed and has remained closed for some time.

The position of the property owner is that, first of all, he has lost his tenant, has probably lost the rent that should have been paid, is now sitting with an empty building and has probably repossessed the assets within the building that are considered to be fixtures -- because whatever act it is that deals with landlord-tenant relationships allows that. But he's now in the position that any potential tenant he speaks to and tries to encourage to lease that store would be subject to that previous agreement. I would appreciate your advice.

You used the word "fettered," which I thought was a very descriptive word. Haven't we now, because of a certification process that took place between his tenant and his employees, fettered or charged the property? The property is now subject to a charge that is not of his making.

Hon. G. Clark: The short answer is that I don't know the answer to that question. There are 3,000 or more hypothetical questions in interpreting the section, and I can't and won't answer them, because the interpretation is for the board.

On your hypothetical example, I don't know. What the panel said with respect to this section was that they suspected this amendment -- it was very surprising that it was in Bill 19, because it doesn't exist anywhere else, really, in Canada -- was as a result of a couple of decisions at the labour board. So when you have a panel, you sometimes get beyond-the-norm decisions. That's what these panels do. It's a quasi-judicial panel that interprets it. In the way you've described it, I don't think there would be successor rights applied, but the fact pattern.... You're sort of making a hypothetical example....

F. Gingell: I'm talking about a real one.

Hon. G. Clark: Oh, you're talking about a real one. Actually, I know the one about which you talk, but I don't know all the fact patterns that would be heard in any case of successorship. It's dangerous for me to give you indications, because I'm not the panel and I'm not equipped to do that. We don't have the case law and the arguments to be made at the time. But my sense is that it wouldn't in that case.

F. Gingell: I think the minister indicates that he feels the same way I do; that such a circumstance simply wouldn't be fair. I was wondering if the minister would give this Legislature the commitment of looking into the circumstances whereby a third party, a property owner, is affected -- not the original employer; I'm not arguing about successor rights in those cases -- advise the House later on and perhaps consider an amendment, if it is deemed necessary, to ensure that there aren't any unintended results from this section.

Hon. G. Clark: I think it's fair to say that the kind of description you've given is not what's intended in the legislation. But you're back to continuity questions and all of that, which are subject to discretion and subjective debate by parties before the labour board. So it's not the intention.

We have had a lot of history with this precise language, and it has not been interpreted overall in any broad way. However, if there is a problem in that regard, then I give you an undertaking that it would be subject to further amendments down the road. But you can't think of all the eventualities in an interpretive section like this and try to amend it in advance of them. This is consistent with other provinces and with what we've had in the past. If there are problems arising from it as you described, then we'll have to fix them down the road.

L. Hanson: It's interesting to hear the Minister of Finance talk about Bill 19, pre-Bill 19 and now Bill 84.

I don't disagree with the wording in the previous act or with the fact that if you go back to some of those decisions in the previous act, the interpretation that we have been talking about here probably isn't likely to happen.

I'd like to point out to the minister that your government has changed not only the definitions section, but the intent section. Those two sections are going to be quite often referred to by the Labour Relations Board in order to understand what the government's intent was in the first place. Therefore in those cases that were heard before, with the definitions and the intent of the act, I think it is unfair to suggest that the ruling will be exactly the same.

I don't think that I or the members of my caucus have any great problem in a situation of bankruptcy, when the trustee or the entity controlling the bankruptcy decides that the business should be kept operating in order to give them the best opportunity to dispose of those assets and to get the largest realization out of it, with the fact that there should be some successorship or some recognition of the successorship. But in cases where the assets of a corporation or entity are disposed of piecemeal on the basis of a bankruptcy, then I think that's a totally different scenario. That's really the scenario that we are trying to avoid.

I know that the Minister of Labour and his staff members will remember the controversy that went on over a grocery store, whether there should have been successorship rights extended and so on. That's our concern because of the other changes in the bill. It's not right to refer to those past decisions, because the other changes in the bill will affect the decision-making process by the Labour Relations Board.

[ Page 4456 ]

Hon. G. Clark: I think it's a fair comment that there are other sections which are interpretive sections, through which all these clauses will be seen. But it's also fair to say that there will be different personnel on the Labour Relations Board, that jurisprudence doesn't stand still and there will be different vice-chairs and the like. So you're right, the decisions won't be exactly the same, but clearly the intent is exactly the same intent in this clause, which existed prior to Bill 19.

D. Symons: Just a few questions to the minister. With the implementation of this section as it stands, I have a concern that possibly we'll have the problem where, I suspect, businesses will simply sell their assets outside the province, because I don't believe that a collective agreement would hold there. So is this simply going to force the assets of a business, except for the buildings that can't be moved, to simply be sold out of the province, such as the Wolverine company that went out of business a while back? They simply took all their things south of the line. Is that a possibility here that we'll simply be moving the assets out of the province, and therefore denying some British Columbia person the possibility of continuing to operate that business and, really, ship jobs elsewhere?

Hon. G. Clark: No.

D. Symons: By no, this will not happen? The contract will follow the assets out of the province. Is that what you're saying?

I would gather by the minister's lack of response that indeed the collective agreement does not go out of the province, so if the assets do, then the jobs are gone. It doesn't seem like good economic planning to me. Suppose the assets are sold to another company that is also unionized, but with a different union. Which contract now is in force -- the one that went with the assets or the contract currently in force with the workers who are now in the company that bought those assets?

I'm at the end of the questions that I'd like to ask regarding the amendments, but I would ask the Chair to consider that the amendments be voted on separately. I was informed by the Clerk that it's in order.

There are more questions that I just suddenly thought of. I would question the minister on the amendment, subsection (4), where it says: "For the purposes of this section, the skills or abilities of a person do not of themselves constitute a business." Can I ask the minister what is not acceptable about that particular amendment?

Hon. G. Clark: It's not necessary.

D. Symons: May I ask, then, the same question about subsection (5) of the amendment. You can see what I'm leading up to for the question I asked earlier. But again it says: "...only that another person performs similar functions at a location previously occupied...." I would gather then that the intent of the bill, if we don't accept this subsection, is that no matter where the assets go, the contract follows them, whereas this subsection would simply say it stays at that location. Is that the intent? That, therefore, would be your objection to subsection (5), I would assume.

Now we come to subsection (6). At the tail end of this, as I mentioned earlier, the contract should really only go where "...there has been an attempt to evade collective bargaining obligations under this Act." Certainly to me that seems like a very reasonable sort of thing to write in here. It would certainly cover a lot of problems and concerns that we've been mentioning here. But it would also cover a lot of the concerns an investor might have in investing in a company, for fear that he would not be able to realize anything out of the money he'd invested in the event that the company went bankrupt -- if there's not that attempt simply to avoid the contract. So can the minister answer me on 6?

Interjection.

D. Symons: There seems to be some cross-conversation here I'm having trouble with. But can the minister answer: what are the concerns, particularly about (6)?

Hon. G. Clark: We're not concerned simply about attempting to evade. We're concerned about any type of bankruptcy, not just when they use it as a ruse to get around a collective agreement.

[5:15]

D. Symons: I would go back now to the Chair and ask that we consider each of these separated out and vote on them individually.

The Chair: The Chair is prepared to use its discretion in this area and to have a vote on each of the amendments separately after the conclusion of debate.

L. Fox: I see that the Labour minister has been able to join us. Given that I couldn't get any answers from the Finance minister with respect to several areas of concern, I would like to just point out a couple of my concerns to the Labour minister and see whether he wouldn't like to address them.

In your absence, Mr. Minister, I asked the question about heavy-duty equipment leased by a corporation and part of a job site. When the lease was over and the equipment went back to the owner, would the succession rights follow that piece of leased equipment back to the leasing company? The minister suggested not.

The second part of that question was a concern that with this being the case, many corporations would look upon leasing equipment versus purchasing equipment, and this is going to cause the sales companies some loss of sales if it is the intent that rubber-tired heavy-duty equipment is considered a part of a construction company and therefore succession rights are attached to it. Would the minister like to address that?

Hon. M. Sihota: The rules are against repetition. I appreciate I was out of the House, but you've already repeated what the Minister of Finance has said, and I agree with what he had to say.

[ Page 4457 ]

L. Hanson: Again, the Minister of Finance answered a question relating to the key person issue in the amendment and said that it wasn't necessary. That's a very simple answer, but I think it requires a little more indication of why it isn't necessary. Is it covered somewhere else, or is the intent so obvious in the act that it isn't necessary to spell it out? Maybe the minister could give us some indication why it isn't necessary.

Hon. G. Clark: I refer to the unanimous position of the three people reviewing it:

"Similarly, we are recommending amendments to section 53 to bring this section in line with legislation across Canada. We suspect that many of the Bill 19 amendments to section 53 were introduced to deal with particular decisions of the Labour Relations Board -- the more controversial of which focused on the location of business or the role of particular individuals in the business. In recommending a repeal of current provisions we are not intending to comment one way or the other on those decisions. If our recommendation is accepted" -- as it is here -- "we would expect the board to apply its own interpretation of the section to the cases that come before it in a manner that meets the labour relations purpose of the section."

The point is, this is consistent with other provinces in Canada; it's consistent with what we had before. We went around this situation, and there's no reason to put things back in this section that were deleted from Bill 19 or the Industrial Relations Act.

L. Hanson: I knew what the answer was going to be before he made it, but I think his choice of words -- that it wasn't necessary -- was very poor. I think the position of this government and both ministers is that there should be no recognition of the key man clause -- or, at least, prohibition against.... They don't believe in it; it's not that they don't feel it is necessary.

L. Fox: There is one further point that I'd like to make, and I think it's going to be evident, given the passing of this legislation. There are auction firms that operate in British Columbia, Alberta and Saskatchewan. There's no question in my mind that if in fact the board suggests that successor rights should flow with equipment from a construction firm, then this legislation will chase the business of dispersing that equipment outside the borders of British Columbia, because there will be no jurisdiction with respect to this legislation. I hope the minister is aware that that will indeed happen. It will be like the other businesses move from British Columbia to Alberta we've seen in the last month.

C. Serwa: If the intent of the legislation is to protect employees of the union, of the corporation that has gone bankrupt, isn't it possible, in some other way, to indicate...? If the assets are sold as part of an operating business, then successorship would go along with them, but as a complete package, not as individual items. Surely that's the intent of it. Or if the company goes bankrupt and is picked up by a new owner in the same locality, surely that, again, is the intent of this legislation. Couldn't the legislation be clarified, rather than having this broad-spectrum approach where certification follows the equipment? Isn't there a much clearer way to put it, rather than leaving it in the nebulous form it's in at the present time?

Hon. G. Clark: I fail to see why people would leave British Columbia for Alberta when this is exactly the same clause that exists in Alberta, Saskatchewan, Manitoba and Ontario. This is consistent across the country. There is lots of case law on this question.

C. Serwa: I would be far more comforted if there was some substance behind the rationale. But just because one jumps from the frying pan into the fire, that doesn't seem to convey much rationale or logic. I'm confident that if the minister listens to the advisers, he would be able to give me more substance, rather than saying it's done everywhere else so we might as well go along with it. It doesn't make much sense to me at the present time if the intent of this is to protect individuals who were employees of a going concern that happens to go bankrupt, its assets are sold as a collective package and it's restarted again in the same locale. Surely that is the intent. If it were identified, I think we would have significantly less of a problem. But in the amplification of this situation, it is not evident.

L. Fox: I can't help but respond. The Minister of Finance stood up a few moments ago and asked why they would move to Alberta when they have the same legislation there. He missed the point entirely. If the equipment is shipped from British Columbia and sold at an auction in Edmonton, then this legislation has no way of tracking that equipment, and thereby the successor clause would not follow that piece of equipment. Obviously the minister doesn't understand the basis of a company getting rid of its equipment. He doesn't go there; his equipment is all that goes there. I think the minister should understand that he's chasing this business out of British Columbia into other jurisdictions.

Amendment negatived on the following division:

[ Page 4458 ]

Section 35 approved.

[5:30]

On section 36.

G. Farrell-Collins: Section 36 is a loophole-plugging section, I would assume, with regard to federal and provincial jursidictions as they relate to successorship rights. Has the minister received any legal advice? I assume he has as to the legality of this type of section. Maybe he could tell us what that is.

Hon. M. Sihota: This is constitutionally correct to the extent that it will cover only provincial jurisdiction. It doesn't occupy or intrude on the federal field. It is constitutionally valid. The question was whether we'd received legal advice as to its constitutionality. It's valid.

Sections 36 and 37 approved.

On section 38.

G. Farrell-Collins: I know we're all eager to leave and finish this type of sometimes tedious debate, but I would ask for a slightly slower pace. I can't get up quite that quickly, and I'm a young person. I can't imagine how quickly my friend for Delta South could get up.

Interjection.

G. Farrell-Collins: I'm glad the Whip's position isn't an elected one in caucus. I would have lost a vote there.

Section 38 is the change that deals with what's commonly known as double-breasting and a common employer. The difference, I guess, is the fact that a word has been changed, from "and" to "or." Perhaps the minister could discuss that to some extent and explain the rationale for it.

Hon. M. Sihota: The change returns us to the language of common control or direction, which is different from the common-control-and-direction clause that currently exists in the legislation. I think we all know it was a fairly controversial change in Bill 19, and this is pre-1987 language. The difference, of course, is that the current language offers more opportunity for an employer to avoid collective bargaining obligations by moving operations to a different company. Therefore we've referred it back to the old test, to change that standard.

G. Farrell-Collins: I guess we've heard primarily from the construction industry on this one. They tend to be a strong representation on it. They don't think it's fair. With this section, I'd like to know what the applications are to other types of businesses. Can a person be certified? Can a single employer be certified forever, as long as they're in that business or any similar type of business? Would the certification go with them?

Hon. M. Sihota: It really depends on the fact pattern. I guess that in theory anything is possible, but the board would have to take a look at the associated company, what it's doing, and who's responsible for operating it. Nothing prevents someone from opening two different companies, but if there's a commonality to it, then one can make an application under section 38, and the board would have to make a determination depending on the fact pattern.

G. Farrell-Collins: Perhaps the minister can tell us if this section is intended to be retroactive for those companies which established their two departments or two divisions or two separate companies under section 30, under the present legislation. Will section 38 now go back to those people and impose certification on all of their firms?

Hon. M. Sihota: Potentially yes, but it's not drafted as a retroactive provision, to be able to reach back into time. But there could be a situation where the board would consider that appropriate. I can't think of one off the top of my head, but the advice is that it could potentially be retroactive. I took your question to mean whether it could go back several years and take a look at an application. I just can't think of an example like that off the top of my head.

G. Farrell-Collins: Can I then confirm from the minister that for those corporations that established other arms or other businesses under the same "common control or direction," which was legal under the legislation at that time, this new section and the change of "and" to "or" will not apply to those businesses, and there's not an intent here to retroactively go back to those companies established legally under the past legislation and have that apply to them now?

Hon. M. Sihota: Correct. In that situation, if it was legal at the time that it happened, the union would have to go and certify the company and go through the whole process. So you're correct. It would not capture a situation where the split happened while it was legal to do so.

G. Farrell-Collins: I'd like to come back to an example that I used with one of the other sections -- 33 or 35, I believe -- when we were talking to the Minister of Finance. The example that I used was that of the restaurant industry, which is a fairly high-turnover and volatile industry at the best of times. What would happen in that case? I assume the same type of situation would happen. If a company owned one operation and decided to expand and open another restaurant, whether it was in the same name or a different name -- or perhaps they decided to open up a hotel on the same site or on a different site -- would that certification follow with them also?

Hon. M. Sihota: There would have to be an industrial relations reason for the board to make that kind of declaration.

[ Page 4459 ]

G. Farrell-Collins: I'm looking specifically at the first line of section 38, where it says: "If in the board's opinion associated or related activities or businesses are carried on by or through more than one corporation, individual, firm...." I have in mind the example of a small, family-owned business. Perhaps they own a cafe or something, which they build up over time. They save their money, and they decide to open a hotel. Maybe it's on the same lot or on an adjoining piece of property. They are, in my mind, related to some extent. They're both in the same type of service industry. Under this provision, are those two companies likely to carry into one certification?

Hon. M. Sihota: Let's take White Spot as an example. There are unionized White Spot operations and non-unionized ones right now. There's nothing preventing White Spot from opening up another operation today as a restaurant and having it as a non-union entity. But if, for example, they were to close down the first one and move the employees over to the second one, which was not certified, then they may run afoul of section 38. But nothing prevents you from opening up a second restaurant if you want.

G. Farrell-Collins: My understanding is that the certification doesn't apply necessarily to the employer, but to the bargaining unit and the employees in place. So if you had one restaurant and wished to open another, as long as you didn't take any of the employees that were in that bargaining unit over to the other one to help with training or whatever, you would not have that type of double-breasting problem come down on you.

Hon. M. Sihota: No, it's not that simple. The board will look at the activities of the employer, at the employees that are attached and at the work that the company does.

Let me give you another example. If you have a unionized plumbing company, and you open up a second plumbing company that you wish to have non-unionized -- let's say in competition with the unionized one -- then you may run afoul of section 38. In that case, it's the employer's effort that is the determination.

[5:45]

G. Farrell-Collins: That was my interpretation of this section. But I understand from the minister, using the White Spot for an example, that because they have a non-union division they can expand that division in the future. Certainly this won't apply to them retroactively -- we've already clarified that -- but as long as the expansion comes from the non-union part, they don't have any concern under this section as far as that certification from the union side coming over to the expanded operation is concerned.

Hon. M. Sihota: I can't see a problem with that. I say that, knowing what I said earlier about not wanting to fetter the board's discretion. There may be something. The board may want to look at the fact pattern, which may get them to conclude otherwise. But on the face of what you say, I don't really see a problem.

G. Farrell-Collins: I guess I'm just trying to determine the intent of this section as it relates to a number of scenarios. We have one example the minister brought up with regard to the White Spot, saying that it would be unlikely, that they'd be fine, that it wouldn't happen; but with the plumbing shop, he said it was likely. I assume that's because the plumbing shop is unionized, they're going to expand, and it goes with them. I can see the difference between the two, and I'm wondering if it's the difference that's significant -- that in one case the expansion is coming out of the one of the companies owned by a common employer that is not certified. If the expansion goes out of that division, then it's not a problem, because retroactively we're not going to go back and certify that division. Whereas in the other case, if all you have is one single company or a series of companies that are all certified, if expansion comes from anywhere within that employer's jurisdiction or control, all subsequent divisions or new shops would also be certified.

Hon. M. Sihota: I think you've basically got it right. If there's an expansion, that's one thing; if you're operating a parallel operation to compete against your existing operation, that's another.

F. Gingell: I am getting a rather clear pattern here. It is finally becoming logical. I wonder if I could just ask a couple of questions to make sure that I am right.

The White Spot businesses are operated and carried on from a specific location. This location can be unionized, and another can be opened up, and those employees make their decision on whether that operation is to be unionized. In the case of the plumbers, they don't actually do their work and earn their revenue from their business location. They are literally going out to compete, to do the same work on the same job site. So this section of the act is designed to prohibit them from setting up another company to compete for the same work at the same place. I think that is really what is being said.

So would it be true, Mr. Minister, to take that one step further...? If I'm in the plumbing business in Victoria and I do work on lower Vancouver Island, and I go over and open up a new plumbing contractor in Vancouver, clearly the two are not going to compete for the same jobs. They are going to be in absolutely separate markets. The employees of the second company can make their own decision on whether or not they will be unionized, and they will not be affected by automatic certification because of the first one.

Hon. M. Sihota: No, you can't make that assumption. You're starting to move into grey areas that are really going to be up to the board to make determinations on.

G. Farrell-Collins: Just one last question, and then I think we can move off this section. I just want to make it very clear in my mind, and to make sure that I

[ Page 4460 ]

have it right. Number one, section 38 will not be retroactive for companies presently in a situation that would be in conflict with the new act. What went on in the past is fine, and that is not going to be impeded by this bill. The example that we've used where expansion takes place in the non-union portion of corporations -- they would also not be impeded in the further advances of that corporation, because of this section.

Hon. M. Sihota: Could you repeat that?

G. Farrell-Collins: I'm just trying to clarify and sum up where we've come from as we have debated this section. Number one, this section will not be retroactive to include those employers under common control who currently have two separate divisions that were legally established under past legislation. Number two, those companies that fall into the scenario I just mentioned will be allowed to expand their non-union portion without automatic certification coming because they also have a union company as part of their holdings.

Hon. M. Sihota: I wanted to hear that a second time, because I wanted to listen carefully to what you had to say. I don't want to go on record as saying that's generally true, because I can see that there may be some twists to it, and someone could take what I've said in the House and try to build it into their analysis of an argument. I guess what I'm saying is that your notional understanding of how the section works is fairly accurate. But I don't want to fetter the discussion of the board in the event that a fact pattern arises that would give it a different dimension.

Section 38 approved.

On section 39.

Hon. M. Sihota: Before we pass section 39, I have an amendment that is required, hon. Chair. I have copies for the opposition. The amendment is very simple. There's a technical error. Section 39 is to be amended as follows: by deleting "or by the chair" and substituting "or by the minister." It's a drafting error.

F. Gingell: The first line is wrong.

Hon. M. Sihota: That's right.

On the amendment.

G. Farrell-Collins: I don't have a huge problem with the amendment itself. We could probably get to the section itself. Although I'm always worried when I see the powers go from the chair to the minister, it's fine.

Amendment approved.

On section 39 as amended.

G. Farrell-Collins: Section 39 covers the voting requirements, particularly in the event of a strike. There are references to regulations. Does the minister refer to draft regulations? Or does he have other regulations he's planning to bring in?

Hon. M. Sihota: Do you mean in terms of regulations governing this provision? Regulations aren't contemplated with regard to this provision. I take it that's why the hon. member for Okanagan-Vernon has an amendment on the floor to introduce on this issue.

L. Hanson: Well, the amendment that we had on the order paper was simply to ensure that there was a supervision of the vote, and the minister has said that he'll bring that in by regulation. It doesn't necessarily have to be in this section.

Hon. M. Sihota: If we are clarifying, then we may just want to start tomorrow on this note. But with respect to the member for Okanagan-Vernon, the voting that's directed by the board or by the minister will be subject to government supervision. However, the vote that will be conducted for strike or lockout purposes will not be. I think that's the nub of the difference which we may want to debate.

I'm sorry I misunderstood the question from the member for Fort Langley-Aldergrove at the outset. I take it you were referring to regulations as to subsection (3) in your question. With regard to that, we would just proceed with the draft regulations that are attached to the report of the panelists.

L. Hanson: Well, then, hon. Chair, if I hear the minister suggesting that votes held under these circumstances would be done in a secret manner or in a manner that the person expressing the choice cannot be identified with the choice they expressed, but that would not be supervised, then I would move the amendment standing in my name on the order paper.

[SECTION 39(1), by adding the words: "government supervised" before the word: "ballot".]

The Chair: Are you calling for the vote on your amendment?

L. Hanson: No, I suspect that I and a number of members would like to speak on it, but due to the hour, hon. Chairman, I would move that the committee 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.

The Speaker: When shall the committee sit again?

[ Page 4461 ]

Hon. M. Sihota: Monday, hon. Speaker. I take it there is some agreement of the House leaders with respect to that.

Interjections.

Hon. M. Sihota: Next sitting, hon. Speaker.

The Speaker: So ordered.

J. Tyabji: I ask leave of the House to make a motion of substitution.

Leave granted.

J. Tyabji: I move that the following changes be made to the select standing committees: first, the Select Standing Committee on Education, Culture and Multiculturalism -- L. Reid to replace C. Tanner; second, the Select Standing Committee for Environment and Tourism -- L. Stephens replaces C. Tanner; and third, the Select Standing Committee on Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills -- J. Tyabji to replace C. Tanner.

Motion approved.

Hon. M. Sihota moved adjournment of the House.

Motion approved.

The House adjourned at 5:59 p.m.

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