Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, DECEMBER 8, 1992

Volume 7, Number 10

[ Page 4507 ]

The House met at 2:04 p.m.

D. Streifel: Hon. Speaker, as I was sitting here in my place I felt a warm glow from the gallery. I looked up and saw that it's from the eyes of my wife, Linda, who is here visiting me today. I bid the House make her welcome.

Hon. A. Hagen: Hon. Speaker, visiting in the precincts and in the gallery today are 13 people from the historic Sapperton office of Social Services in New Westminster. As part of a professional day, they are joining us for some of our deliberations this afternoon. I hope all of us will warmly welcome them to our presence.

D. Lovick: As I sit here in my place, I notice a cold stare. I ask members to join me in welcoming, once again, Keith Baldrey and Les Leyne.

C. Serwa: The hon. member has better eyes than mine; those people are invisible to me.

It gives me great pleasure on behalf of a colleague to introduce Terry and Dorothy Tagney. They reside now in Victoria. He's a prominent member of the Knights of Columbus in Langford. Would the House please make them welcome.

Hon. R. Blencoe: In the city of Victoria we have many fine organizations, and among them is the Inter-Cultural Association of Greater Victoria, which serves many communities and cultural groups. In the House today we have Gwen Allison, who is a staff member with the Inter-Cultural Association, and with her are 15 new citizens of Canada who are in this House for the very first time. Would the House please welcome all these new Canadians.

Oral Questions

REPLACEMENT WORKERS

G. Wilson: Hon. Speaker, my question is to the Premier. Will the Premier confirm that on Friday, November 20, he agreed in conversation with the president of the Business Council of British Columbia that there would be amendments to the replacement provisions of Bill 84?

The Speaker: I would remind hon. members that questions cannot anticipate an order of the day, and Bill 84 is an order of the day.

G. Wilson: Will the Premier confirm that on Friday, November 20, he had a meeting with Mr. Matkin, who is the president of the Business Council of British Columbia?

Hon. M. Harcourt: I did meet with Mr. Matkin around that time. I'm not sure of the exact date, but yes, I have met with Mr. Matkin.

G. Wilson: In light of the fact that the Premier is quoted as saying that there will no longer be any deals made, can the Premier tell us what is meant by these words in a letter to the Premier from the president of the Business Council of British Columbia, "We are encouraged to hear that you are prepared to make some amendments to strike replacement provisions," if no deals are to be made?

O'CONNOR COURT DECISION

J. Weisgerber: A question to the Attorney-General. As yet, no public apology has been made either to the victims or to the Cariboo Tribal Council for the Crown's mishandling of the O'Connor case. Will the Attorney-General now offer an unreserved apology to the victims and to the council for his ministry's failure to disclose evidence as required by a court order?

Hon. C. Gabelmann: There is much that I might like to say in respect of this issue, but I would just like to advise the member and all members that Mr. Malcolm Macaulay has been appointed as special prosecutor to review the transcript of the judge's comments yesterday and to advise in respect of a possible appeal. Given that this process is now underway, it would be ill advised indeed on my part to say anything further.

J. Weisgerber: Again to the Attorney General. This incident has undermined the native community's tenuous confidence in the justice system. Can the Attorney General tell us what steps he has decided to take to restore the very tenuous confidence that the native community has in the justice system?

Hon. C. Gabelmann: First of all, I want to say that I share the leader of the third party's view, as is apparent from his question, that steps need to be taken to restore confidence among native people in our justice system. In fact, I would say it's not so much to restore it; it's to develop it for probably the first time in our history.

In respect of that, some months ago I appointed Judge Anthony Sarich to do an inquiry into native justice issues in the Cariboo-Chilcotin area, and that inquiry began formally yesterday. That is part of a process which this government has begun to try to deal with some of the very important questions that the member identifies.

J. Tyabji: My question is also for the Attorney General, and I want to make it clear that I am not discussing the case. I am discussing the fact that this Attorney General knew since June that there were problems with disclosure of evidence. My question is: how can he possibly maintain his verbal commitment to women and to aboriginal people in terms of justice when he knew since June that there were problems? There's an inherent bias in the legal system, according to the latest reports from the Law Society, and he didn't take preventive action -- not a reaction, but preventive action -- to make sure that we didn't lose confidence in his government.

Hon. C. Gabelmann: My answer to the official Opposition House Leader's question is exactly the same

[ Page 4508 ]

as my answer to the first question from the leader of the third party.

J. Tyabji: I am disappointed that the Attorney General will not tell us if he had any reasons for not acting since June. I want to make it clear that there's a difference between preventive measures and a reaction. We've seen the reaction. That's the only answer you've given us, and I want to share with him....

A Voice: Order!

J. Tyabji: Hon. Speaker, before asking the next question, and there is no way of asking the question without this.... The justice system report concludes that gender inequality is pervasive in the legal and justice system -- as the Attorney General knows -- and that the systemic bias against women, particularly women of low-income status, aboriginal women, women with disabilities and women who are members of visible and immigrant minorities, is in the system. Did the Attorney General know the conclusions of that report? And did they have any bearing on his action or lack of action with regard to this case?

HIRING OF COMMUNICATIONS CONSULTANT

G. Farrell-Collins: My question is to the Minister of Labour. Will he confirm that he has hired a communications consultant by the name of Hugh Legg to do six months' worth of contract work on the province's new labour code, Bill 84?

Hon. M. Sihota: The Ministry of Labour engaged the services of Mr. Legg on an auxiliary basis to do some communications work on behalf of the ministry. Part of that includes responsibilities with regard to the labour code.

G. Farrell-Collins: Again to the minister. Will the minister indicate what selection process was used in hiring Mr. Legg? And will the minister indicate to the House the qualifications that Mr. Legg brought to his position?

Hon. M. Sihota: Mr. Legg brings remarkable qualifications to the job. He has worked in communications for private-sector firms such as H.A. Simons, an engineering firm in British Columbia; Dairyland Foods; a communications firm here in British Columbia. He has worked for the Faculty of Commerce at the University of British Columbia in a communications capacity. So he has considerable private-sector experience, and on the basis of that private-sector experience, the process came to the conclusion that he was best qualified for the position.

[2:15]

G. Farrell-Collins: In light of the minister's answer and his failure to answer the first part of the question, I'll ask it again. What process was used to hire Mr. Legg? Was this tendered? And can the minister also confirm to this House that in fact he's well known as an NDP bagman?

Hon. M. Sihota: The individual has remarkable credentials. I just laid out all the credentials the individual has with regard to his background. As I indicated in my first question, it was an auxiliary hiring.

INCOME ASSISTANCE PAYMENTS

R. Neufeld: My question, hon. Speaker, is to the Premier. Given the government's serious cash crunch and the massive increases in welfare fraud that were revealed in last Thursday's Financial Post, can the Premier explain why B.C. taxpayers are shelling out welfare payments, including medical, dental and housing benefits to some United States tourists?

Hon. M. Harcourt: Hon. Speaker, I'll take that question on notice for the minister who is responsible. I'm sure the member knows that the Minister of Social Services....

The Speaker: Does the hon. member have a new question?

R. Neufeld: I have a new question for the Premier. In the same story one financial assistance officer claimed that GAIN payments are being illegally used to pay one individual's VISA bills. The worker was quoted as saying: "The amount of fraud is unbelievable. It is forgotten. People work full time and collect assistance." Has the Premier ordered an investigation of these allegations? Or is he prepared to allow welfare fraud to continue unchecked, just like the minister responsible?

DISPUTE RESOLUTION

A. Cowie: I have a question for the Attorney General.

Interjection.

A. Cowie: I'm sorry to disappoint the Minister of Municipal Affairs.

Does the Attorney General agree with the recommendation of the Schwindt report that the decision-maker -- that is, the chair -- within the process of dispute resolution should be one whose competence may, also mean technical expertise in mining, forestry, economics or natural resources?

Hon. C. Gabelmann: The government has made no decisions yet on any of the recommendations of the Schwindt report. We are in the process of listening to representations based on that report.

A. Cowie: Supplemental. Would the Attorney General also agree with the recommendation that the decision-maker should be independent of all parties in the dispute?

Hon. C. Gabelmann: It's not a question of also agreeing, because in the first question I don't think I agreed.

All matters and questions relating to the Schwindt report are under consideration by the government, and no decisions have been made.

[ Page 4509 ]

A. Cowie: A final supplemental. Would the Attorney General qualify to this House how a lawyer with a background in civil litigation, family and real estate law will gain the confidence of parties in expropriation cases when she has no technical background -- even though a decision hasn't been made on that -- on resources, forestry and that sort of thing, and has been appointed by a government of which she has close connections?

Hon. C. Gabelmann: I don't understand the last reference. If the member is referring to the appointment earlier this year of Jeanne Harvey to be chair of the Expropriation Compensation Board, Ms. Harvey was chosen after very careful consideration of her skills, which are well known -- an exceedingly competent lawyer. The member further will know, if he has read the Schwindt report fully, that one of the issues that the government will need to consider is the nature of the Expropriation Compensation Board, should many of the provisions or any of the provisions of the Schwindt report be implemented.

GOVERNMENT AGREEMENT WITH NISGA'A

G. Wilson: My question is to the Premier. In light of the Premier's comment on the recognition of the inherent right to self-government, and also in light of the fact that a due process has been established, can the Premier tell us why his government has entered into an agreement with the Nisga'a which seems to be in contravention to the Gitksan agreement that was made?

Hon. M. Harcourt: I'll make sure that the Minister of Aboriginal Affairs has that question. I'll take it on notice.

G. Wilson: My second question then to the Premier. I wonder if the Premier, in the light of the first question, which I understand is to be taken on notice, can tell us: what is the Premier's position with respect to the provisions outlined in the agreement with the Nisga'a, if indeed there is a contradictory claim with the neighbouring Gitksan? Does his government have a position specifically with respect to the inherent overlap and the claims that may, in fact, be in jeopardy as a result of the decision taken by his government?

The Speaker: Hon. member, that appears to be a hypothetical question, which would be not in order.

DISCIPLINE OF MEMBERS

C. Serwa: My question is directed to the Minister of Women's Equality. The minister is quoted in the paper as suggesting that the member for Saanich North and the Islands should be barred. She's quoted as saying that it's simply not good enough that the member would come back after Christmas. With her consistently strong stance against violence, does she support that in the Legislature?

The Speaker: Order, please. If the member would please take his seat. As the Chair hears the question, it's asking one member to comment on the actions of another member in the Legislature.

The bell signals the end of question period. However, I would like to finish my comment if I can have order in the House. As I was saying, it appears that the hon. member's question was asking a member to comment on the actions of another hon. member, which would not be within her area of administrative responsibility.

Orders of the Day

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

LABOUR RELATIONS CODE
(continued)

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

On section 54.

The Chair: Does the hon. member for Okanagan-Vernon wish to move his amendment at this time?

L. Hanson: After some preliminary remarks, Mr. Chairman. I await your ruling with anticipation.

The minister spent some time talking about section 53 and how it was going to affect labour relations in the province. I suspect that the minister's expectations as a result of this section are more than will actually be realized. Communication is a wonderful system, and those management-union relations that are considered to be.... I suspect that in most cases where labour relations are good between a firm and the union certified to represent the employees, the communication between labour and management committees that this section would encourage is already in place. In those situations where acrimony and distrust and so on already exist, putting this in the bill is really a waste of time. In any case, the principle is not difficult to endorse.

It seems to me that the committee the minister is establishing in section 53 deals with the "issues relating to the workplace that affect the parties or any employee bound by the agreement." In subsection (4) the purpose is to promote the "resolution of workplace issues, to respond and adapt to changes in the economy, to foster the development of work related skills and to promote workplace productivity."

Then we go on to section 54, Mr. Chairman -- and thank you for the leniency. In there we start dealing with pretty well exactly the same things, only we're entitling it an "Adjustment plan." I think the minister would agree that with the wording, "if an employer introduces or intends to introduce a measure, policy, practice or change that affects the terms, conditions or security of employment of a significant number of employees to whom a collective agreement applies," they would have to follow this procedure.

Maybe the minister can explain the difference between those two. It seems to me that there's a duplication of that requirement. In the first section you're suggesting that communication is a good system, and that if a collective agreement doesn't have a clause in it that would allow for a committee to exchange this

[ Page 4510 ]

communication, then it would have to be put in place. The next section seems to say exactly the same thing. In fact, I don't read any persuasive issues in it that if the process in section 54 -- which seems to have some duplication to 53 -- doesn't work, what are the penalties for doing it?

The minister would acknowledge that this clause is the one that replaces the technological change clause in the old bill, and that it is much broader and encompasses almost every issue that happens in the workplace. If the minister could give me some insight into that, it would be helpful.

Hon. M. Sihota: Section 53 deals with the need for consultative committees, puts that provision in the code and encourages the parties to proceed with that process for the matters contemplated therein.

Section 54 is more specific than the general clause, section 53. Section 54 deals specifically with matters relating to technological change. Albeit both of them are generously worded, one is more specific than the other -- the technical change one being more specific than section 53.

[2:30]

With regard to consequences, it is true that with regard to section 54 there is no real consequence if the parties are unable to arrive at an agreement in the 60-day period. I said as much this morning. That is indeed a material difference from the old section 76 which allowed for binding arbitration. The reason we've made that change is that there was little if any utilization of section 76 by the parties because of the hammer of binding arbitration that existed in that section as they saw it. Therefore, for that and other reasons, and for the fact that the previous section 75, I believe it was, would allow for the opportunity of mid-term strikes, we made a decision to move away from what was in the previous legislation into this one.

If your point is that it doesn't have the consequential effect that the previous section could have had, that is true. But it should also be noted that employers were reluctant to use the previous section because of that consequential effect, so we've softened the section in that regard.

L. Hanson: Yes, I think I recognize that simply by reading the two different sections. But I'd like to have some understanding of what the minister sees is left out of section 53, which is an encouragement to communicate between the two parties on almost all issues that happen in the workplace, because the description is so broad. I guess the minister would also admit, unless there is some prohibition in this code, that the committee created by section 53 could discuss almost any issue, regardless of the scope of it.

But then, because we go to section 54, which says it is an adjustment plan, I see a duplication. I don't see anything in section 54 that would be prohibited by the adoption of section 53, or I don't see anything further accomplished in section 54 than in section 53 -- because there aren't any penalties if you don't do it. It says that you sit down and negotiate, and as I understand it, if you walk away from it, well, that's the way it is. It seems to me that 53 would allow that exact same thing to happen, and with the same scope as the parameters of section 54 -- "measure, policy, practice or change that affects the terms, conditions...."

Hon. M. Sihota: There are some differences. First of all, I think that in a broad-brush way -- I'm not dismissing your point, but hear me out for a second -- section 53 tries to establish joint consultative committees to really basically look at competitiveness and productivity issues, and including skills development. It's really designed to deal with ongoing consultation between labour and management to ensure that the parties work in an effective, efficient and harmonious way. That's the purpose of section 53. It does not put its mind to any one particular policy. It doesn't put its mind to, for example, technological change, which may be an immediate initiative that's being contemplated or brought forward by a company. In a general way it asks you to deal with these issues on an ongoing basis.

Section 54 turns to a very specific set of circumstances: technological change. It mandates adjustment plans. You're right, there's an overlap with regard to technological change, which may be captured by section 53. Let's presuppose that it is for the purposes of your argument. I do that without prejudice. For someone who may want to read this later, I'm saying it for the sake of your argument. Then why have 54? I'm not persuaded that 53 would adequately deal with a number of other issues -- the human resource planning, termination provisions, severance pay provisions, pension provisions and provisions with respect to implementation. It is arguable whether the scope of 53 would capture 54. It may capture some elements of all the things that I just mentioned, but it may not capture the totality of it.

Admittedly there is some overlap of the two circles of 53 and 54, but there are some areas where the circles don't overlap. They are certainly in the areas I just enumerated, and for greater certainty it would require the parties to put their minds to these issues with regard to technological change. It's a greater-certainty clause, if I can put it that way. It also protects against the elimination of the provisions that I talked about earlier on.

L. Hanson: I see no reference to technological change, but I suspect the minister's position is that the broad description at the start of section 54 would include technological change. I have to disagree with the minister; his interpretation and mine are slightly different. The one I'm referring to regards issues relating to the workplace that affect the parties or any employees bound by this agreement. That would seem to be as broad as saying that it affects the terms, conditions or security of employment of a significant number of employees. The two descriptions seem to say that any change in the workplace -- whether it be technological, changes to the pension plan or a number of other things -- should be discussed. There's nothing wrong with that. I think that's a great idea. As a matter of fact, I support the idea that there should be better communication on issues before they are distorted to a

[ Page 4511 ]

point where there's confrontation. I have no argument with that at all.

In my mind I'm not sure that section 54 doesn't duplicate section 53. If the minister wants to be more specific in subsection (4), as it relates to section 53, then he would accept the motion that I have on the order paper standing in my name, which would delete the generalized reference and limit it to technological change. I would move that at this moment, and I await the Chairman's remarks with great anticipation.

[Section 54(1), by the deletion of the words: "measure, policy, practice, or change" wherever they occur in the subsection and by substituting therefor the words: "technological change".]

The Chair: I was going to ask you if you intended to move the motion. The Chair has looked at the amendment quite carefully. Quite frankly, it is not a direct negative, but it certainly diminishes the intent of the section in that it tries to be specific where there is an intent to be general in section 54. I will regretfully have to rule that it is out of order.

L. Hanson: Hon. Chair, you don't surprise me terribly with that ruling. While I may disagree with the ruling, you have the authority to do that, and that's fair enough.

I guess what I would now like to understand from the minister is why the section in the old legislation referring to technological change.... Why, when it was referred to, were there some measures that would in fact resolve the issue if it ever came to total confrontation where it couldn't be resolved? This section says that they should meet, it says that they should discuss, and it says that there are a number of things that they may include in an agreement, if they reach an agreement. But it doesn't seem to say anything about there being any process that would resolve it if they can't reach an agreement. The way this is written, it would seem to me that if they can't reach an agreement, an agreement simply is never reached and there may be labour disruption as a result of it, but there isn't any resolution of that lack of agreement on those issues.

Hon. M. Sihota: With regard to the question that was asked by the hon. member, first of all it would seem to me it's always open to the parties to take advantage of the preventive mediation services that we will be providing if they can't resolve the issue within 60 days.

Secondly, as I said this morning, one would expect that if this issue is unresolved at the conclusion of that time period, it would inevitably be dealt with through the normal collective bargaining process. Certainly this is not a preferred position, but obviously it leaves the option open for both the employer and the employee to pursue those issues in that form.

Thirdly, it should be noted that of the representations that we received, certainly the feeling of the advisers was that the provisions found in section 76 which have a consequence, i.e. binding arbitration, are one of the reasons that people were not utilizing the section. Therefore this change is made, as I said, to admittedly soften the section and also to prevent an employer from unilaterally coming in and making or imposing changes literally overnight without consultation and without this process ongoing.

Fourthly, with the 60-day notice provision it provides the parties a lot of time to sit down. It may be that at the front end one party may be reluctant to deal with the issues, but I would suspect that given the time period involved, the parties will inevitably agree that they need to put their mind to these issues. So I think we've allocated some time to allow that to happen.

Let me also say this: the arguments that are being put forward are interesting. The Liberal opposition would argue that we ought not to have this section at all, because it ought to be left entirely up to the collective bargaining process, and it should be removed. I take it from the question that you're putting forward the exact opposite argument, that the section is perhaps not strong enough and that it needs some consequences. This, I think, is a better argument, to be honest about it.

We have decided at this point, given the experience of section 76, that those consequences ought not to be there, given what had happened with the previous legislation. We'll see how this works, and then revisit the question of consequences later on.

L. Hanson: Possibly the minister then could give me some indication of how he sees the process working -- and I'm not sure that I'm looking for more teeth in it, if you will. It seems to me that this is a very broad description. "If an employer introduces or intends to introduce a measure, policy, practice or change that affects the terms, conditions or security of employment of a significant number of employees to whom a collective agreement applies," the employer shall give 60 days' notice "before the date on which the measure, policy, practice or change is to be effected." The way that now reads -- and it's so broad -- in cyclical industries or industries that are very market-sensitive, how can management of a particular firm possibly respond to conditions like that? In some industries markets change so quickly that there isn't an opportunity to respond to them.

Sixty days' notice seems to me to be a terrible intrusion into management, when you consider the broad scope of the changes where notice is required. While the minister said he wanted to be more specific with it, it seems to me that the 60-day-notice requirement is quite an obstacle for the employer to manage his or her business under circumstances where 60 days' notice is required for some change that may be beyond the employer's ability to deal with. It may not even be an employer-instigated change; it may be some outside influence that causes the need for that change. How can an employer manage a business with that requirement for 60 days before any change that has a significant effect on a number of employees can be introduced?

Hon. M. Sihota: In the rush to express your concern about intrusion upon the rights -- if I can put it that way -- of an employer, you tend to overlook the need to also mitigate the effects of those kinds of changes on employees. At some point you have to find a balance where you can recognize that the employer

[ Page 4512 ]

has rights -- as I said this morning to the member for Langley -- and on the other side, recognize the appropriate need to mitigate the effect on employees.

[2:45]

Where does that balance lie? In this legislation we've chosen to try to find that balance with the 60-day-notice provision, which is a reasonable time for the parties to work out the mitigating effects on employees, but at the same time gives the employer a relatively early time frame within which to proceed with the making of a change to deal with competitive variables. I need not remind you that under section 74 of the previous legislation, it used to be 90 days. So there has been some adjustment to try to balance those competing interests. I appreciate that going from 90 to 60 is one thing, but we've also changed the provisions in the legislation -- so I'll grant you that. But it's designed to meet that balance.

L. Hanson: I accept that, and I accept that there are times when that is reasonable and appropriate. But I had hoped the minister would recognize that there are times when it isn't reasonable and appropriate, and there doesn't seem to be a proviso in this bill that would allow that to happen. When the minister was talking about the section in old Bill 19, he was talking about 90 days. He's quite correct that that was the notice time. But I suggest to the minister that when technological change was being introduced into any corporation, entity, operation, manufacturing plant or whatever it might have been, it was a long-studied issue before it actually happened. What I'm suggesting to the minister is that the way this is written, things and conditions that the employer has absolutely no control over may require some adjustments, and they could not be made without giving that 60-day notice.

The minister will recognize -- and, I hope, acknowledge -- that things do happen beyond the employer's control. It could be the market, a natural catastrophe or any number of things. And my understanding of this is that there could be no reflection of that drastic change or that problem for 60 days with the way this is written.

Hon. M. Sihota: I don't know how real that point is. Perhaps you can give me an example.

I was just thinking: 60 days prior to the introduction or the intention to introduce a measure, policy, practice or change.... Well, let's just say practice, and let's say that this means the procurement of certain equipment, in most cases just to acquire it and get it delivered and installed. No one can deal with these technological changes overnight, as your question would suggest. It does take some time.

So we're quite comfortable with the 60-day provision, hon. member.

L. Hanson: The minister is trying to avoid me a bit, in that he keeps referring to technological change. I really don't have any difficulty with this section applying to technological change. But when you start to read the description of what it applies to, it goes way beyond that.

The sawmill industry is a big industry in British Columbia. Let's say the planer mill burns down, and all of a sudden there's no more work. It's not the manager's fault -- hopefully he didn't start the fire -- but for 60 days he can make no adjustments to the workforce because of this clause. If the minister would say on record that this situation would not be covered by this description, I'm sure that it would be of some comfort to the employers of British Columbia.

Hon. M. Sihota: As usual, I am most reluctant to avoid a question put forward by the hon. member, but it would seem to me that it would be up to the board to decide whether a particular measure is a policy, practice or change as captured by section 54. It's not for me to say.

But I should remind the hon. member that his administration brought some changes to the Employment Standards Act in 1991 that in part tried to deal with some of these kinds of concerns. He may recollect that the changes brought in -- by Mr. Rabbitt, I believe -- had a clause that talked about establishing adjustment committees developed on a co-operative basis to adjust some programs to eliminate the necessity of termination of employment, or to minimize the effect of such termination on affected employees, and to assist employees in obtaining other employment.

So in principle the language at that time was just as broad as this. If there are disputes with regard to what items are captured, that's why we have a Labour Relations Board.

L. Hanson: I recognize, Mr. Minister, that there were some efforts made to compensate for that, and that's all well and good, and should in fact be a policy. I have no argument with that. But the way this clause is written, there is absolutely nothing.... They are predetermining what the situation will be. I can understand now why the minister reduced the old requirement of 90 days, in the case of technological change, to 60 days; but in fact what this says to me is that if some kind of a catastrophe or whatever requires a change in the workplace, the conditions or the numbers of employees, nothing can happen for 60 days. They may get together and discuss plans for retraining, or whatever, but absolutely nothing can happen for 60 days. So what the minister is doing in this clause is guaranteeing 60 days separation pay under any circumstances like that. I think the minister suggested that the Labour Relations Board would have to rule on that, but I'd like to know under what jurisdiction the Labour Relations Board would be ruling on that in this bill. What would give them the authority to rule on that?

Hon. M. Sihota: When I was making my comments to the last question, I was talking about the Labour Relations Board. Perhaps it wasn't clear enough. The section says: "If an employer introduces or intends to introduce a measure...." To use your example, if you had a fire at a planer mill, that's not a measure that is introduced or intended to be introduced by a employer. If someone would take issue, saying that this section applies because there was a fire, it would seem to me, given the kind of catastrophe which is outside of something that the employer would introduce or intended to introduce, that it would not be

[ Page 4513 ]

captured by this section. It would be somewhat of a frivolous application, I would suggest, for someone to try to bring this section to the fore under that kind of a situation.

L. Hanson: Is it my understanding that the minister is suggesting, if there is an unintended consequence and that unintended consequence is along the lines I talked of -- beyond the control of the employer -- that he and his ministry would look closely at changes, if that were the result of this being put in place?

Hon. M. Sihota: As I've always said, if there are any unintended consequences with regard to labour legislation, we'll obviously take a look at reviewing them. These issues will be up to the board, and it would seem to me that the board would have to determine whether the event is one that the employer introduces or intends to introduce. I will leave it up to the board to interpret that provision as it wishes, but that's what it's going to have to take a look at.

As I stand here on my feet, I can't see a fire being an event which an employer would introduce or intend to introduce. I could see, however, something that is outside of the direct control of an employer possibly falling under something that an employer introduces or intends to introduce. So we'll leave the board to decide, but obviously we'll guard against any unintended consequence. But I can't see a fire or a catastrophe situation, quite frankly, to be captured by section 54.

[M. Farnworth in the chair.]

L. Hanson: If I just understood what the minister said, in the cases where it is obvious or very clear that difficulties are beyond the control of the employer, it is not his intention to capture those issues under this clause of the bill.

Hon. M. Sihota: There's a provision in 54(1)(a) which says: "the employer shall give notice to the trade union that is party to the collective agreement at least 60 days before the date on which the measure...." "At least 60 days" assumes that there is some contemplation on the part of the employer. I'm not going to read down the section. I'm just saying that if you read the section as a whole, it can capture a whole series of fact patterns.

Let me speculate here for a moment -- but not answer my own speculative question. Let's say a softwood tariff decision came down out of the blue and had an adverse effect on a sawmill. It would be interesting to see how the board would deal with that issue. Remember, the operative words are, "an employer introduces or intends to introduce a measure," and remember what I said earlier about the 60- day provision.

I'm not going to go any further than that. I think the board should have the ability to do the analysis that is required, and I don't want to take away their discretion. Remember that there is an element that is captured by this section, and I'm sure it would not be ignored by the board.

L. Hanson: That does give me some comfort. I also recognize that in the instance the minister suggested -- a softwood tariff -- it would take some period of time before the effects of that would really be felt directly by the employer. So I think there is some time lapse there. "If an employer introduces or intends to introduce a measure...the employer shall give notice." I guess the point I'm trying to make is that the employer may introduce or intend to introduce some change in workplace conditions, such as layoffs or whatever, because there is an outside factor that he, she or they have no control of. This seems to me to be a pretty difficult situation for management to live with under those circumstances.

[3:00]

Hon. M. Sihota: If I understood you correctly.... the Minister of Municipal Affairs came up and said something to me, so I may not have understood entirely. If you're talking about a layoff, the board would have to.... No, I'm not going to answer that with precision, because I can see how it may or may not be captured by the section. I'd leave the fact pattern to be determined by the board.

L. Hanson: I just have one last comment. I'm not sure the minister will even want to reply to this. Because of the possible interpretations you could have of this clause and the wide description that would trigger this section of the bill, it's so non-specific that who would have an interest in coming here, investing, and waiting to see what the interpretation of this might be under those circumstances? It seems to be a pretty onerous clause for future investment and job creation, because it isn't specific.

My main argument is that if it were more specific, it would not be acceptable, but it would be more acceptable. The broad description you have there seems to include almost everything that management would want to do, regardless of the circumstances. I know you gave me comfort by saying that the Labour Relations Board would have to interpret that. I know that is true, but the broad description of the different things that would trigger this clause seem to me to be pretty detrimental to anyone considering some investment, but not knowing what it actually intends to do.

I don't think that we as a party have any difficulty in recognizing the need. Where there are traumatic closures and huge numbers of people in various industries having that difficulty, there has to be recognition of retraining and assisting those people to get back into a workforce, whether it be the same one or not. There has to be that. There is absolutely no question of that. But this doesn't appear to me to be the correct place, with the atmosphere that we want to create, to address it.

Hon. M. Sihota: First, I guess somebody could argue that with the current provisions which allow matters to be referred to an arbitration board, you can have a binding decision and the current provisions which would create the opportunity of a midterm work disruption would be more harmful to investment than these kinds of changes.

[ Page 4514 ]

The second point is that with regard to these provisions, those who are seeking to invest here in British Columbia, I am sure, will understand that the Labour Relations Board will do some defining and sculpting of these provisions as time goes on.

I have not heard from employer groups the view that this section is an impediment to investment. Granted, some employers, in the mining industry only, request that reference to significant numbers of employees in the legislation be clarified, but that was the extent of any critical comments. So I appreciate your comments, but I'm not too sure if they're shared with those who make investment decisions in the province.

L. Fox: I just want to follow up on some of the arguments that have been put forward by the member for Okanagan-Vernon.

If this clause were applicable only to technological change, I wouldn't have any problems at all with it, other than some of those which have been identified by the member for Okanagan-Vernon.

Perhaps I'll take my seat and allow another member to speak while the minister is out.

J. Tyabji: With regard to section 54, the official opposition has a number of comments that we'd like to make, in view of the minister not being here to get on the record.

The Chair: Order, hon. member. You are aware that you should not be commenting on the presence or absence of any member in this chamber.

J. Tyabji: Okay, when the minister has the ability to respond. How's that?

Ah, the minister has returned, I yield to the member for Prince George-Omineca.

L. Fox: As I started to say, if section 54 in fact dealt with technological change only, I would have very little difficulty with it. When I look at the 60 days that it states in subsection (1)(a), my experience is that in terms of technological change in most instances the discussion between the employee and employer go far beyond the 60 days, so I don't see that as being a concern.

But when I look at the fact that this is not limited just to technological change, I have considerable concern. To use the argument that was put forward a little earlier about the planer mill that burnt down, the minister suggested that in fact in that kind of situation that obviously wouldn't be done by management, and a decision wouldn't have been made. That would have been something outside management's ability to predict. So perhaps in those kinds of instances, the board would have a favourable ruling in terms of the employer.

But what if we take that one step further and apply it to a community where there is a major employer and where the grocery store is unionized? The sawmill or the pulp mill is burnt down. Obviously there's a huge loss of employment. Immediately that business wants to take some course of action to minimize the impact of the loss of revenues. How does the minister feel about the actions of that employer, as to whether or not he would have to maintain that existing employee number for at least 60 days? What does he feel would be reasonable with the impact of this clause on that third-party employer?

Hon. M. Sihota: Would it have been possible to give 60 days' notice in that situation? That's the question you'd have to ask yourself. You've got self-evident.... And then you could apply that to the section.

Interjection.

The Chair: Order, please.

Hon. M. Sihota: I'm sorry, I didn't fully understand his question. It's true I was engaged in conversation, but it was explained to me that you were talking about a food store, that if the planer mill shut down, then you were talking about the effect on a food store. That's the way I understood it, and that's why the comment, in terms of the answer. If I misunderstood your question, I apologize. Just restate it, and I'll deal with it.

L. Fox: What I was trying to suggest was that if the planer mill was forced to be shut down, it impacts immediately on that unionized grocery store, because immediately there is a stop in the spending by the employees. This legislation would not allow him to adjust the number of employees based on the amount of business he's doing for at least 60 days. It could have a dramatic impact on that store owner and on that corporation.

I'm wanting to find out whether I'm reading that correctly: that he in fact would not be able to size down his staff for at least 60 days. If that is the case, that's what I'd like to know.

Hon. M. Sihota: Should the matter be in front of the Labour Relations Board, the question that would arise in the argument that the employer would have to make is that this was an event that he could not have forecast to occur within the 60-day period noted in the section. That's the first point. You'd have to take a look at the intent of the section as it relates to 60-day provisions.

Secondly, if the section nonetheless brought the parties together to discuss adjustment in light of an event, then really there's nothing wrong with that.

L. Fox: I agree that there's nothing wrong with discussion between the employer and the employee. Being an employer myself, I appreciate the fact that it would probably take place anyway. But it appears to me that the employer's hands are tied unless he has a favourable ruling from the board which would support his application, that he could not cut down his staff numbers because of an outside influence, something which is out of his control, unless he had that favourable ruling. That is of extreme concern to me.

Let me put one other concern to you as well, which would apply in the hiring of school teachers, for instance. Let's take that same community. Should that fire have taken place in August, given that the actual flat amount per student is set on the September

[ Page 4515 ]

enrolment but the projections had been fairly consistent within that community, you could have quite a movement of students due to a long layoff. The school board's hands are tied, and it would not have the necessary dollars given to them through the formula, because it didn't have the students to meet that payroll for 60 days. That's something else that I understand could flow through this clause. I just ask if that's correct or not.

Hon. M. Sihota: In assessing that kind of situation where an event is outside the direct or perhaps even indirect control of an employer, the board would have to determine whether or not this is a situation where they can legitimately say that an employer introduced or intends to introduce a particular measure. There's an element of contemplation and control, both direct and indirect, that the board would have to put its mind to in making those kinds of decisions.

Nothing in this section prevents an employer from making day-to-day management decisions that have to be made. This section deals with measures, practices or policies that can change the conditions or security of a significant number of employees to whom a collective agreement applies. For example, it would capture a situation like technological change. We've used that example all the way through.

If people were to bring forward cases which I think would fall outside the realm of this section in order to delay an event, then I think the board would issue some guidelines -- in fact, we would encourage it to -- explaining what kinds of events it would see to be triggered by the introductory language in section 54.

[3:15]

L. Fox: I guess one thing that might help me is if the minister could explain to me what is meant by "a significant number of employees." Is that one, five or what? That would help to allay some of the fears that I have with respect to this bill. It seems to me that in some instances -- in an employee group of 20, for instance -- one employee may in fact be considered significant. But I leave that for the minister, if he would answer as to what his interpretation of "a significant number of employees" is.

Hon. M. Sihota: I'm not trying to purposely avoid your questions, but I'm sure you understand why I can't answer that. "A significant number" would be a determination made by the board in the fact pattern that's before it.

R. Neufeld: I have some problems with this part of the bill too, when it relates to measure, policy, practice or change.

Hon. M. Sihota: Oh, no. You've got to be joking.

R. Neufeld: No, I'm not kidding. If it's going to deal with technological change, then why don't we word it that way? That's specifically what the minister has referred to throughout the debate of this section right from the start. If that's what this section is to deal with, then that's exactly what we should be putting in. You've managed to make it so broad that I agree with some of my other colleagues that this could curtail investment or expansion for people who are already in business. It can happen in any kind of small business. You don't even want to commit yourself to what a significant number is out of 20 employees -- whether it's one or 15 or ten or five.

I think most employers deal as fairly as they can with their employees. As this bill is targeted at small business.... If you look at large businesses, they are quite capable -- Mac-Blo and this type of business -- of having all the staff around to handle the rest of this paperwork, agreements and everything that has to be kept. Small business really provides an awful lot of jobs and creates an awful lot of wealth in British Columbia. It may come as a surprise to some of the members opposite that that happens, but maybe they should come up north out of the lower mainland to see exactly what makes the rest of British Columbia tick. You can't continue to live in Vancouver, in the lower mainland, and deal on a broad base with big business on this section. We have to deal with small business.

For instance, if I had a company that employed about 15 people....

D. Streifel: Would it be a union company?

R. Neufeld: It was a union company. The member is chirping away and asking me whether it's a union company. I ask him to listen to the dialogue then get up and talk about it.

The Chair: Through the Chair, of course.

R. Neufeld: It was a union company employing 15 people, let's say in a trucking operation where you are bidding on a number of contracts, not just one. You don't have just one customer; you have quite a number of them. It may come as a surprise to the member that when you're in that business, you don't find out whether you have the contract months ahead of time. In the business I was in you could phone in a bid in the morning, and the only way you'd find out whether you had the bid was when they called you back to deliver the load.

You hire on the expectation that you're going to keep those 15 people working. If you lose a significant number of those bids and suddenly find yourself in a position where you are overstaffed, how can you give 60 days' notice? In those situations the norm up in the north is that people are laid off. That has come to be expected in the industry. As a small businessman, how would you cope with keeping five extra people on for an extra 60 days? Because that's what is in the labour legislation.

Hon. M. Sihota: Reflecting on the comments of the hon. member with respect to people on this side of the House understanding rural British Columbia, I'm sure the hon. member has noted that the strength of this government lies in the number of representatives

[ Page 4516 ]

elected in the last election outside the lower mainland -- a record number, if I may say so.

Let me also say that with regard to the example -- you used technological change, obviously because I referred to it -- it seems that other kinds of situations could be captured. For example, for a mine plan, with regard to a mine, a decision may be made to lay off 100 or 150 employees literally overnight, which is not unheard of. It could be a change in product or a change in the nature of a product that's being produced, let's say at a sawmill, which could have an impact on a significant number of employees. All those examples fall outside what I think has traditionally been known as the realm of technological change.

It was felt -- and certainly agreed to by our government -- that when those kinds of changes are happening, you have to deal with the issues of pension, severance, notice of termination and retraining for employees, and we've given you 60 days to develop those plans. That's in the legislation. I would not think that the hon. member would have any difficulty with that, given the fact that the party he supports introduced legislation in 1991 which sought to establish adjustment programs on a cooperative basis to eliminate the necessity for the termination of employment, to minimize the impact of termination on affected employees and to assist those employees in obtaining other employment. I'm paraphrasing section 49 of the Employment Standards Act. I am sure he would agree that those provisions ought to be found in the legislation; and they are, with regard to this section.

It simply says that there are two sides to the equation. There is the equation that you argue about -- and properly -- that an employer must be able to do business and compete. There's also the point that's made in this legislation -- and properly -- as it was in the Employment Standards Act, that you must also mitigate the negative effects of layoffs or changes, as contemplated under this section, on employees. So you must deal with termination, severance, human resource planning and retraining.

Now that's just good labour relations; it's contemporary labour relations practice. Whether you're a small business or big business, you should be doing those kinds of things. We're encouraging that to be done through this section.

R. Neufeld: First, with regard to technological change, I don't think that my party or I disagree at all with what the minister just said. If there is something happening in a plant and there is a technological change coming about that can be seen, that has to be dealt with and those employees have to be fairly dealt with. I have no problem with that at all -- none whatsoever. We are living in a fast-changing world, and it will change even faster as time goes along. It's obvious that our party felt that way before, because they introduced those regulations. So let me assure you that I have no problem with that.

I do have a problem when you legislate it as broadly as you have in this legislation, when you talk about a measure, policy or practice of a business. As I said before, if we're going to talk about a technological change that's happening in the workplace, then yes, we have to work with those people and those employers and do what's best for both of them. But when you start working down into small businesses -- and that's where this bill is targeted -- I think the minister is going to find that there are going to be some problems in dealing with it in the broad ways of a measure, policy or practice, because many practices or changes take place in small businesses that don't necessarily take place in large ones. That's the fear of small business with regard to this part of the legislation. It is very simple: if you changed it to technological change, then we would have a lot less fear with it.

The minister is also reluctant to let us know what a "signficant number of employees" means. How can investment be encouraged in the province if it's all left up to just whatever happens to strike the day? There has to be something laid out so that investors know where they're coming from or what rules and regulations they face, rather than it just being so broad. Small business is going to continue to be the motor of British Columbia and create an awful lot of jobs. That's what we need if we're going to continue to enjoy the wealth and the services that we have today. We cannot discourage it.

I wish the minister would tell me. Obviously he feels that one person out of 15 is significant. That's the only answer I can get out of what he told us before. Maybe the minister could just confirm that, please.

Hon. M. Sihota: I'll just confirm that the Labour Relations Board will decide what is significant.

L. Fox: I was just trying to look up 49(2) in the Employment Standards Act to be sure that I knew exactly what this clause referred to.

Hon. M. Sihota: It's 49(2) in the previous....

L. Fox: Okay. I jumped up a bit unprepared here, but I still have a concern. The minister refers to this clause constantly, almost as though its total meaning is to deal with technological change. I'm sure the minister is well aware that technological change in small business has a much different effect than technological change in industry. Technological change in small business usually means that a small business is growing and is going to hire more people rather than fewer people. Technological change in industry usually has the opposite effect.

I was looking up 49(2), Mr. Minister, because I wanted to find out whether or not you were correct in suggesting that small business managers or employers still have the opportunity to make routine business decisions on a day-to-day basis. I'm concerned that this clause seems to apply to temporary layoffs and seems to reduce the flexibility of business and industry to adjust even their seasonal kinds of layoffs, which may be advanced because the season ended early. Let's say that in a fish-packing house the fish weren't available for whatever reason, and that packing house had to close down a month before it intended to because of the lack of product. Does this 60-day clause limit the opportunity for that packing house to close when there is no

[ Page 4517 ]

product? Those kinds of concerns bother me dramatically.

If the minister just wants to comment while I read 49(2), I would appreciate it.

[3:30]

Hon. M. Sihota: I listened with interest to the comments that the hon. member made with respect to technological change as it relates to small businesses. He made a good point, quite frankly. Usually when a technological change is being brought forward by a small business, it's because the company is growing. It seems to me that if a company is growing and prospering and bringing forward a change, then it will not have to give consideration to termination, severance pay or pension benefits, for example -- or perhaps even retraining. It may have to deal with retraining to some degree. It may not be affected by section 54. It may be affected only to the extent that the parties would be encouraged to mutually work for greater efficiencies within the operation. For a large plant it may be the opposite. In my earlier comments I gave three examples of issues outside of technological change that would be affected, so it's not just technological change.

I know the hon. member is going through section 49, and I use it by way of example. It's not a section that totally overlaps with this one, and it does have some threshold questions with regard to the number of employees who may be working. So there are some differences, but the objectives of the two I don't think are materially different.

L. Fox: After reading section 49(2), I see that the section does allow for seasonal layoffs and for other management decisions to be made with respect to the number of employees, based on business decisions that are generally controlled by seasonal.... It also allows you to discharge for cause and several other things, so perhaps my concerns are not as well-founded as I thought they were.

I could ask the minister if he is envisioning any changes to section 49(2) -- given that it's now listed in this legislation -- that would change the way it presently reads and therefore its impact on section 54. I say that, of course, facetiously.

I did want to point out, with respect to the minister's comments on the technological change aspect of small business.... I said earlier that I had no problems with this clause as it relates to technological change. I believe that in many instances dialogue has taken place between the two parties far beyond the 60 days. I think that in most cases the employees' retraining and continual concerns have been dealt with by all parties, so I don't have any problem with that.

G. Farrell-Collins: I hope the minister is going to answer his question, but if he's not going to, that's fine.

I really believe that there has been some good debate on this section, and certainly some good questions have been asked. Section 54 deals with something that will go to the very heart of many small and medium-sized businesses. As has been pointed out, the required work and the delegation of tasks, duties and paperwork that is created by this type of section on an ongoing basis, of course, is something that a larger business can absorb quite readily -- along with section 53, of course -- but it's something that perhaps a smaller business is less likely to do.

I have a problem with many sections of this bill, because they tend to deal with the implications of this labour legislation on relatively large businesses. The minister keeps falling back on this concept of technological change, which is a part of this section. But it's only a part of this section; there are other factors that weigh in. Cases have been mentioned, for example, where supplies of a product that needs to be processed have run out. When that product dries up or runs out, you don't necessarily have 60 days' notice to plan and prepare for it. So what is a company expected to do? Are they expected to keep all that staff on for 60 days while they work out some sort of process? I think that is unfortunate, because I don't think it's very realistic. In the large corporations, that can occur.

In sections throughout this bill, it seems quite apparent that there is a mind-set or an intention that this legislation is to respond to the needs of large businesses and businesses that deal regularly with issues like technological change. The minister speaks at some length about the effects of technological change, but this is a broader section than just dealing with technological change, and it won't just affect the large corporations but will affect all sorts of corporations and small businesses right down to local mom-and-pop operations, whether they are lumber remanufacturers or whatever. There are some small companies that don't have the ability to deal with this type of thing on an ongoing basis.

I guess I'd like to ask the minister -- I know that some indirect questions have been asked of the minister, but I don't know that it's been asked directly: what are the provisions here? What special considerations have been taken in this section to deal with those concerns for small and medium-sized businesses, as opposed to those concerns that have obviously been raised by large businesses and by the labour that organizes and bargains on behalf of them?

Hon. M. Sihota: The legislation has been drafted to take into account the concerns of both small and large business.

G. Farrell-Collins: That's obviously the minister's opinion. I don't think that's the general opinion held by the business community, and certainly not by the Coalition of B.C. Businesses. I would say that once a number of other small businesses and their employees come to that point, they will realize that it's going to affect them to a great extent. Once these sections of the bill are implemented and become integrated into the system, and once word gets around as to what's there, there are going to be problems with it, and those problems will become quite obvious.

With that, hon. Chair, given that the minister is gone, I move that the Chair do now leave the chair. Given that

[ Page 4518 ]

it's standing order 62 and a non-debatable motion, I would ask you to put the question.

[3:45]

Motion negatived on the following division:

On section 54.

J. Tyabji: Hon. Chair, with regard to section 54(1)(a), I haven't heard that this has been canvassed, but it reads: "The employer shall give notice to the trade union...." I'm wondering what the definition of "give notice to" is. Is that written? Verbal? In what form?

Hon. M. Sihota: First of all, hon. Chair, let me congratulate you on that overwhelming vote of confidence. [Applause.] I note, however, that some members clap more than others.

The Chair: The Chair is insensitive in these matters. Minister, continue.

Hon. M. Sihota: It's nice to be speaking to a warm and fuzzy Chair.

I assume that the notice will be in writing.

G. Wilson: Mr. Chairman, with respect to section 54 and in particular 54(2), I have some specific questions with respect to how the adjustment plan, which may be enforceable as if it were part of a collective agreement, may be looked at in terms of mid-term bargaining. I think that was canvassed earlier this morning. I take it that the minister's response was that such an adjustment plan, which essentially may be outside the terms of reference of a collective agreement, would not be tantamount to or seen as mid-term bargaining, even though there may be a proposition available to advance issues that are generally not considered as part of that collective agreement.

This code -- in the bill under section 54 -- is silent on the possibility that an acceptable adjustment plan for the union and/or the employer cannot be concluded. We are faced with a situation where after 60 or more days the two parties forced to come together can't agree. What then? Once you've got them together to sort out how they're supposed to deal with this, can the minister tell us what we are supposed to do if there is no agreement? Is the employer or union in a position to simply protect or stop either the technological advancement of the new industry or the retraining that would be required simply by not agreeing? What does the minister see as the prescribed course of action at this point?

Hon. M. Sihota: I've answered that question three times: twice this morning and once this afternoon.

G. Wilson: The minister hasn't answered the question, because there is no defined way in which this is going to proceed. Let's talk about the interim prospect when an employer enacts a technological change or moves toward a change within a production schedule, if you like. Under section 54, at what point will the union be empowered to stop the advance of that change? Given there may be a one-, two-or three-year phase-in for that program, does the employer have to sit down at every phase of the change in that production? Or will he be subject to the provisions of this bill to prevent him or her from upgrading and putting those provisions in place? There's nothing in here at all that talks about interim measures protection for a producer who is looking at technological ways to improve production of a product in B.C. The minister hasn't answered that question. He has skirted around it. He certainly has not directly answered how he envisages the manner by which a dispute resolution mechanism can be used to resolve those conflicts.

Hon. M. Sihota: When an employer arrives at the view that he or she intends to proceed with a measure such as technological change, the section is triggered. He must give 60 days notice of that. I would assume that he would give 60 days notice of the full extent and phases of the program that will be implemented so as to allow for the issues contemplated in subsection (1)(b) of the act to be triggered. That's how we would expect it to work.

If there is no conclusion within 60 days, as I've said -- I'll say it again for the benefit of the member -- the matter will be dealt with either through the broader collective bargaining process as an unresolved issue, or if they wish, they can take advantage of the preventive mediation services that we have.

This is the section that tries to balance the competing rights of employers and employees. It recognizes that there may be competing rights, and tries to get them to resolve their differences in an amicable way. For example, it recognizes the right of employers to proceed with changes, but it also recognizes the obligation of that employer to employees to make appropriate adjustments in the areas of severance, notice of termination, retraining and pensions.

G. Wilson: We recognize that after 60 days there's no agreement to put it into the next round of collective

[ Page 4519 ]

bargaining, which may be a year or possibly two years away. Does the employer have the right to implement it, or does he or she have to wait until they're into the next round of collective bargaining? If they avail themselves of mediation services that fail to come up with a successful resolution, is the employer's ability to function terminated? Do they have to wait until there is some kind of failure in the adjustment plan to move? If there is failure in the adjustment plan, is that employer likely to be subject to an unfair labour practice if they unilaterally move on it?

These are important questions that the minister had better answer, because there are going to be a lot of examples in B.C., especially in new and rapidly changing technologies, like communications and electronics, which are likely to be subject to a greater degree of unionization under the provisions of this bill. Even those that are currently under a union contract.... The employer's provision to be able to upgrade and change is going to be greatly restricted by the ambiguity in the bill with respect to what their provisions are if no agreement is in place. So the minister has to tell us. If the mediation service breaks down, and there is no way that the mediator can come up with something that is acceptable to both parties, what does the employer do then? Does he or she have to wait one or two years until the next collective bargaining round? These are important questions that the minister needs to address now, because people in small and medium businesses in the province are asking them and not receiving the answer.

Hon. M. Sihota: The answer was received by this House this morning. I think the Liberals must be working off similar scripts, because the member for Surrey-White Rock asked essentially those questions this morning.

The answers are as follows. First, with regard to unfair labour practice, anyone with an elementary understanding of this legislation would understand that there's no tie-in between section 54 and section 6 of the act. Read section 6, hon. member, and that will allow you to understand the relationship between section 54 and section 6.

Second, with regard to concerns about someone being held hostage after 60 days, the section is very clear. They must go through a process in good faith over the 60-day period. If at that time there is no conclusion, the employers can proceed as they wish. The purpose of the section is to try to get them to talk before that process takes place. If it doesn't take place, then the employer is free to proceed.

Third, the option of the union at that point is to use these issues, if it wishes, during the collective bargaining process to bring about some of the changes that ought to be brought forward.

Fourth, this is not an impediment to investment; rather, it is an investment in personnel at a plant to encourage the parties to take full advantage of their human resources and make sure that they can compete more effectively and efficiently.

Fifth, if the Leader of the Opposition had been tuned in to the debate this morning, he would have had those answers earlier today.

J. Tyabji: I hope the minister can confine his comments to non-personal attacks and something that actually has to do with section 54.

As Environment critic, I'd like to canvass "measure, policy, practice or change." Could the minister confirm for the House that section 54 is written such that if an employee had a problem with a change in packaging that management was planning to implement, for example, they could take that to the committee and demand an adjustment plan? If this kind of provision had been in place at a plant like Sun-Rype before they implemented Tetra-Pak, could the employees actually have demanded that the concept be brought before this committee and an adjustment plan be hammered out? Is that possible under section 54?

[4:00]

Hon. M. Sihota: Would that example be one that would affect "the terms, conditions or security of employment of a significant number of employees"? That would be the test.

J. Tyabji: In the opinion of the opposition it may. If that is one of the things that the minister intends with the bill.... Obviously it's open to interpretation. I'd like to have the minister admit to the House that there's no question that to a large extent it's going to be based on the people who are involved in setting the terms of reference. If you have a group of employees who feel that something like an environmental change or a change in the way in which the social parameters of the business are being run is going to affect the "terms, conditions or security...." The conditions of employment? Well, sure. Arguably virtually anything could affect the conditions of employment or the terms of employment. I'm concerned that to say measure, policy, practice or change, you could get to the extent that this could be....

The minister has said in earlier debate that the reason for sections 53 and 54 is in the event that one of the two parties is not inclined to go the route of consultation -- and we would assume that he's referring to the employer in this case -- that they are in a position where now they have to have it as part of the collective agreement. They have to have an adjustment plan. If we can extrapolate from there, we can assume that you could end up with an antagonistic employer who might feel that this is a provision they would have preferred to come to by negotiating freely through the collective bargaining process, but not being given this opportunity, they are being forced into the situation, and given the internal climate of a business like that, if the employer is coming forward and there is an antagonistic climate, you could get into a stalemate, where any measure, policy, practice or change brought forward by the employer could be something where, in the event of this having been preceded by antagonism, some kind of obstruction could be going on, and it could be something as simple as changing packaging in a plant. That's one thing.

Secondly, since the minister is on record as saying that this is an exciting part of the bill and that 53 and 54 enhance competitiveness -- and I'm assuming there

[ Page 4520 ]

he's not talking about his own ministry but about the competitiveness of businesses in the province -- could he please explain to us how this enhances competitiveness?

Hon. M. Sihota: On the first point, use the Tetra-Pak example. I'm not totally familiar with all of the facts, but let me assume that the answer the hon. member gave is the correct one. Let's say that she says it may be captured by the section. Let's say it is. What's wrong, then, with the parties sitting down and working through the issues that they must work through under section 54? Nothing, in terms of consultative consensus-building between the parties.

With regard to the second issue the hon. member raises in relation to how this enhances competitiveness, it seems to me that when you engage in appropriate human resources planning, which is mandated by the section, or in counselling and retraining to make employees more efficient and effective in the workforce and then to take the benefit of that investment that you make in an employee, you clearly enhance competitiveness.

J. Tyabji: I have a very simple question. Since the minister has asked me what is wrong with something like a packaging initiative being brought forward by the employer having to be by legislation brought to this committee, the question I have to the minister is: whose money, whose capital investment has gone into the business in the first place? Who is taking the risk?

We've got these co-management provisions now in the bill. If we are going to have a debate in this House where the Minister of Labour is saying that the employees should have input into all the strategic direction of the company, then I would put to the minister that it would only be fair that they also put an equal amount of capital investment forward and accept an equal amount of risk. If this minister, through his legislation, finds it acceptable for the employees to start to direct the strategic planning of the company, then this minister should also find it acceptable that they put their money on the line as well.

My understanding is that in the past we've had a situation where somebody comes forward with some capital investment, their idea and their strategic plan. They put it in place, and they hire people who then follow their strategic plan. But what I'm hearing the minister say is that he feels -- and yes, they should be able to have proper training for that job; and yes, they should be able to function in a healthy environment with lots of consultation and communication -- that it's perfectly acceptable for all the strategic direction of the company to be partially directed by the employees, or at least, according to section 54, "a bipartite process for overseeing the implementation of the adjustment plan."

Hon. Chair, I'd really like to hear from the minister if he agrees with me, or does he disagree that as far as the intent of this section goes, it's really going to end up in complete co-management and with the employees, through 54(1)(b)(vi), where you have a bipartite process for overseeing the implementation of the adjustment plan.... If the minister feels that strategic direction can be done through the committee, and if we've got this provision for the bipartite process for implementation so that we now have full co-management, does the minister feel there's something wrong with that, in that the capital investment is all one-sided?

Hon. M. Sihota: We got into a fairly fundamental philosophical discussion this morning on this issue, and the hon. member is reinviting that discussion. Given the fact that the Leader of the Opposition succumbed to my arguments at that time, I perhaps won't do it with the emotion that I did this morning.

Let me just say this. The view of the opposition is that the employer takes all of the risks, puts in all of the capital and therefore should be able to make all of the decisions. The opposition sees no value in having committees in the workforce, be they in juice plants or elsewhere, of management and labour working together to solve their differences. When there are significant changes such as technological change, there ought not to be legislative instruments that suggest that the parties must deal with severance for someone who's leaving, notice of termination for someone who may be losing their job, pensions for someone who may not wish to be retrained and thinks worker-adjustment is not for their lifestyle, retraining for those who want worker-adjustment, investment in employees so as to make sure they're trained to deal with the emerging needs of the workforce or bipartite committees to work on the implementation of adjustment plans.

If you want to go back, as I said this morning to the Leader of the Opposition, to 1938, to use his example, where an employer would simply throw people out on the streets because they wanted to make a change to the plan, without any acceptance of a responsibility to deal with pensions, severance, notice of termination, human resource planning and retraining, then it seems to me that the Liberal Party wants to take us back to the Dark Ages, which I think most British Columbians have come to reject.

So it is true, there is a fundamental difference.

J. Tyabji: Thank goodness.

Hon. M. Sihota: I agree with you, hon. member -- "Thank goodness," she heckles -- because I think that contemporary labour relations policy in the kind of society that we've tried to craft in this remarkable country of ours makes accommodation for employees and for the issues that I've enumerated. If that's not the view of accommodation that the Liberal Party has, it just shows how reactionary the party has become.

G. Wilson: I note that the Chair is showing tremendous latitude within the provisions of this debate on section 54, so I'm sure that that latitude will be accorded....

The Chair: "Tremendous" can be defined by the Chair. Just a reminder.

G. Wilson: Well, I'm certain that we have fairness in the Chair; I have no doubt of that at all. But

[ Page 4521 ]

notwithstanding the nonsense we just heard from the minister about the position of the Liberal Party -- and it was utter nonsense -- I have a specific question to the minister if he would like to address it.

It has to do primarily with primary extracting sectors, and if the minister has an errand to run, I would be happy to wait until he is prepared to sit and listen to this question, because I expect an answer, as do most of the forest companies in British Columbia. They will be equally interested in the response that he's coming up with.

With respect to the fact that there may be external factors that will implement the possibility for companies such as forest companies to put in place cutting and adjustment plans with respect to provisions for allowable annual cuts and a new viewscaping that is being required by the government with respect to environmental concerns and procedures, cutting practices and new technologies that are being developed -- whether they're helicopter-logging technologies or technologies that deal with selective cut and selective logging.... The IWA in my riding right now has pleaded with this government to phase in the AAC so that the very kinds of adjustment plans being talked about in this section aren't necessary. But in fact, the adjustment plans are necessary. The IWA workers this minister talks about who are being tossed on the street.... That is coming about directly because of this government's policy, not because of anything that the individual companies are doing.

Let's ask this question with respect to section 54, in order to make sure that we don't stray beyond the limits of this debate. Where does the minister see the responsibility and obligation of a company that is forced, because of external policy directing them, with respect to the provision of extraction...? Where is that company expected to find the kinds of provisions that are going to be required here if it has to change its technologies -- as it will -- in order to be able to meet even the most rudimentary profit margins, if it can even find them, in order to keep the people currently employed working?

It is the companies, in consultation with the unions in this instance, that are trying to overcome those provisions. With this section, it is in fact the employer, and therefore the company, that will be put in a double-jeopardy situation, given the fact that the hardship they find themselves in is externally driven in the first instance. Can the minister respond to that?

Hon. M. Sihota: When discussing external factors, anyone with just a rudimentary understanding of the section would be mindful of the debate I just had with the member for Okanagan-Vernon. I discussed the impact of external variables with respect to the application of this section and brought to his attention -- as I will to this member's -- the words "introduces or intends to introduce" and the import of the words "at least 60 days."

Before I provide a fuller answer to the hon. member, I would ask him to read Hansard, because if he reads it, he would realize how elementary that question is and how there is an absence of a basic understanding with regard to this section by some on the opposite side.

G. Wilson: I'm well aware of the minister's remarks, because prior to re-entering the chamber, I not only reviewed it, because I wanted to pursue this line of questioning, but also had an opportunity to speak with people following this debate -- strange as it may seem that some might actually do that -- who are involved in the industry and have a real concern. Notwithstanding the fact that there may be external factors that drive a company to implement new policy, direction or methods of harvest, the fact is that the measure, policy, practice or change which is introduced will be introduced by the employer, because they will have no choice but to do so.

My question directly to the minister is: given that the employer is forced into that position, will he agree that this section may quite likely put the person involved in the company, or the company as a collective, in a double-jeopardy situation, because they will have no choice now but to capitulate to this section of the bill as well as to external laws governing their ability to harvest in the province?

[4:15]

D. Schreck: It could well be argued that whenever an employer makes a change, some sort of external events force that employer to make the change, whether they be economic or environmental forces or whether they be in the resource supply that's available. Irrespective of the source of those external forces that lead employers to change the way they do their business and the way they arrange their affairs, when they significantly affect a number of employees in a way as is contemplated in the act, so that layoffs could result and we have to discuss questions of severance pay or pensions, then all the act provides is, if those tests are met, that 60 days' notice of the change be given, that the change be discussed and that an adjustment agreement is worked out with the employees. The scenario outlined by the Leader of the Opposition does not in any way lessen the employer's obligations to deal fairly with the employer's employees.

G. Farrell-Collins: We have the minister, who is.... Oh, okay. The Chair doesn't want me to mention that the minister is not here, so I won't.

The Chair: Order, hon. member. One, please address your remarks through the Chair. Two, you are aware that you must not make reference to the absence or presence of other members in the chamber.

G. Farrell-Collins: I guess people can make their own conclusions when certain members fail to answer the questions and someone else fills in for them.

Hon. Chair, the acting parliamentary secretary to the Minister of Labour, who dives into this debate whenever necessary, has offered some interesting comments. I would ask the member, given his wisdom on this section and his wide-ranging experience in labour relations, what he thinks the impact will be on small,

[ Page 4522 ]

medium-sized and perhaps even large businesses when they are required by law to enter into -- in some cases it may be protracted and in other cases it may not be; it depends on outside factors -- or engage in a 60-day negotiation to develop an adjustment plan, when the hammer comes down on day one or day two, and the company, whatever they are doing, realizes that their source or supply of whatever the product is that is coming in has dried up. Perhaps the person who is buying on the other end has decided that they don't want to deal with them anymore or they have found a better product elsewhere. What financial burden or hardship or cost does the government -- I assume that the acting parliamentary secretary to the Minister of Labour will know what the position of the government is -- envision that business will incur throughout that 60-day period, if there are no revenues coming in?

D. Schreck: Hon. Chair, one of the benefits that I've enjoyed in my experience as chief executive officer of three organizations over the past 20 years is the privilege of negotiating with up to 1,400 staff -- the smallest organization being only 100 staff -- negotiating clauses dealing with technological change, implementing technological change and making provisions similar to what are provided for by our government in the statute. I encourage the members opposite to consult with those who have that industrial relations experience and to learn that, far from imposing a cost, proper industrial relations are investments that yield a return. What this legislation does is to encourage that investment for all British Columbians.

G. Farrell-Collins: I would encourage the member opposite to pull out a dictionary and find out the difference between "encourage" and "impose." Perhaps he would understand what the opposition to this section is all about. This section, section 54, just as section 53, is imposing. That is the word that the Minister of Labour has used time after time: an imposition of a policy. It didn't apply in section 53, and it doesn't apply in section 54.

Hon. R. Blencoe: Through the Chair.

G. Farrell-Collins: Always through the Chair. The Chair is very aware of that. The minister, if he would listen, would know that too.

The reality is that what has been done with section 54 is that there is a 60-day....

The Chair: You're addressing your remarks through the Chair.

G. Farrell-Collins: Of course, hon. Chair, I was waiting for an interjection on behalf of the Chair to quiet the hon. members surrounding the hon. acting parliamentary secretary to the Minister of Labour, so he could answer the question.

What has happened in section 54 that is different from what this hon. member may have done in his capacity as chief executive officer of these multinational corporations is that he has negotiated with his employees a provision to allow for an adjustment plan. That's different from having it imposed upon you as it is in this bill.

The reality is that there may well be occasions where, for reasons beyond the control of management, something happens to that business, either to the client, the person to whom they supply, their customer, or to the goods and perhaps the people who are supplying them. At either end there's a plug, so the company can no longer continue to operate on an ongoing basis. Many corporations have to have cash flow on a weekly basis, not just a monthly basis or a quarterly basis or an annual basis. They need to have a quick flow of cash through the corporation on, in many cases, a daily basis. Look at the restaurant business, for example. You have to have cash every day. It has to come.

Certainly many corporations, many small companies and many small businesses that don't have huge assets sitting on their balance sheets and don't have huge cash balances in the bank cannot operate for an extended period of time when there's no revenue coming in, because the company has essentially been shut down, or the capacity of the company has been reduced, because of problems at either end of the corporation. So the question is how the company can possibly try to negotiate a plan such as we're dealing with under section 54, when the negotiation of that plan requires the company to keep those union members on staff for the 60 days while the negotiation takes place. We're not dealing with just technological change here. We're dealing with the realities of the marketplace.

What provision is there for companies in dire economic straits, or perhaps on the edge and just getting by, hoping to grow, but ending up in a situation where they have a difficult problem with cash flow and have to somehow come up with money for 60 days in order to sustain staffing levels because of this bill? They simply cannot sustain that. What provision is there to allow those companies, those businesses, to survive? Are they going to get stuck with this situation where they have to decide whether it's an adjustment plan or putting the company out of business? What's the choice? Are they likely to get any response from their creditors when they've just lost a contract or cannot get a supply of goods to manufacture?

D. Schreck: My friend opposite mixes several concepts that are introduced in this section of the labour code. This section deals with what my friends opposite have characterized as "technological change." We recognize that those words are not commonly defined, and the phraseology used in section 54, "...a measure, policy, practice or change that affects the terms, conditions or security of employment...," is a similar concept and gives meaning to those words "technological change." What section 54 actually requires is a 60-day notice. Beyond that, it encourages a good working relationship between the parties to adjust to that change.

There is nothing in this section that impairs the employer's normal ability to react to a loss of that employer's market. What we are dealing with is a change in the way the employer conducts his or her

[ Page 4523 ]

business, and treating the employees as an important part of that business.

G. Farrell-Collins: I had hoped that over all the hours on end that the acting parliamentary secretary to the Minister of Labour sits there in this House and listens to debate, he would understand what this section is about. If he is at all aware of what was there before -- the old section 76 -- it used the words "to introduce a technological change." The new section does not say "technological change." It says: "...introduce a measure, policy, practice or change that affects the terms, conditions or security of employment of a significant number of employees...." That is a very different set of words, and means different things. One is very narrow and deals with technological change; the other deals with all sorts of policies -- layoffs in the event of a shortage of products to manufacture, loss of sales for whatever reason or loss of a major client. Those are instances where a company on the edge -- a new company, or one that has been there for a long time but is on the edge financially -- needs to react instantly.

It's not good enough to wait two or three days. You have to react quickly. You have to downsize quickly. For its own survival the corporation has to react very quickly -- 60 days is too long. At the end of 60 days there will be a room with some union people and employers discussing technological change or, in this new bill, anything they call an adjustment plan. There will be two groups of people discussing an adjustment plan for a company that no longer exists for jobs that no longer exist.

We're canvassing what provision is in place for corporations in dire economic straits to act more quickly in order to save themselves and some jobs. If an employer can lay off 25 percent in order to downsize immediately in reaction to a condition that's beyond their control, but has to introduce a policy, doesn't it make sense to save the 75 percent of jobs that are there and have the company do whatever they possibly can to deal with adjustments for the other people?

D. Schreck: My friend has gone from contemplating the changes an employer may introduce in order to change the way the business is conducted -- putting in new equipment, changing the flow of materials on a floor, using new computer software and other changes in methods an employer contemplates and puts in -- to contemplating the normal economic changes within the marketplace. The changes may have an adverse effect on the workforce and result in the layoff of significant numbers of employees. I would draw the critic's attention to the Employment Standards Act, section 49(2), which exempts the normal fluctuations listed in that section of the Employment Standards Act. This section clearly contemplates that a 60-day notice will be given for those events which the employer can control.

Clearly those with experience in industrial relations and in dealing with the Labour Relations Board -- or its temporary substitute, the IRC -- are familiar with how boards interpret those words. The concerns raised by my friend, even if they were true, regrettably reflect a rather callous attitude toward how employees should be treated. What is provided for here is that under circumstances controllable by the employer, employees are to be treated with at least as much concern as any piece of equipment in that employer's shop.

[4:30]

G. Farrell-Collins: I don't know if the hon. Chair was going to call a quorum or not. I notice that there are two handfuls of members in the House -- two fingers full.

The Chair: The committee will come to order, there now being a quorum.

The member for Fort Langley-Aldergrove continues.

Hon. D. Miller: Try to be a little more interesting. You might get some people to come in for you.

G. Farrell-Collins: The ex-Minister of Forests had a comment. Maybe he'd like to participate in the debate, too. I was wondering if the members were going to take a seat or were going to turn around and head out again.

The response of the acting parliamentary secretary to the Minister of Labour dealt with some concern that the adjustment plan, as quoted in section 54, only deals with technological change and does not apply in cases where outside economic impacts would cause changes in the workplace -- i.e., laying off employees due to outside impacts. Perhaps the member can just clarify for us that the intent of the government is that outside economic impacts on a company do not apply under section 54.

D. Schreck: As is the case with most matters of industrial relations and interpretation of the code, that is ultimately up to the precise fact pattern and interpretation by the Labour Relations Board. It is clear that what is contemplated in section 54 are changes where the "employer introduces or intends to introduce a measure, policy, practice or change that affects the terms, conditions or security of employment...." It is very important to look at the subject and verb in that sentence. The employer is initiating an action, and then the employer has certain responsibilities.

I know that I cannot contemplate the rulings of an independent tribunal, but I would certainly think that the employer does not do the initiation on an adverse set of economic circumstances.

G. Farrell-Collins: Perhaps I can canvass that for just a minute longer, then. My understanding from the acting parliamentary secretary to the Minister of Labour is that if outside economic impacts dictate immediate reaction by a corporation in order to stop the loss of jobs or the demise of a company in dire economic straits, that would not be seen as an action initiated by the employer. Those actions would be initiated by outside forces, and the employer would merely be reacting to those actions.

D. Schreck: I have confidence that responsible employers throughout British Columbia would attempt

[ Page 4524 ]

to mitigate adverse consequences for their employees regardless of the reason for changes. Section 54 provides a notice requirement and a test for when that notice requirement must be met. If there is uncertainty as to the application of that test, then it is the job of the Labour Relations Board to interpret and remove that uncertainty. We can all contemplate hypothetical situations where there are circumstances leading to a layoff that are solely the result of an economic downturn and beyond the employer's control. They would escape this test. Likewise, we can probably contemplate some form of methodological change -- that is, the employer's reaction to adverse circumstances -- that would be captured by this test. There's a lot of ground in between. Without dealing with a specific fact pattern, it becomes almost impossible to answer the member's question in the abstract.

The intent is clear. The intent is to give employees at least as much recognition.... Well, nowhere close to the amount of recognition they deserve, I must acknowledge, but at least there's 60 days' notice worth of recognition, so that they are not treated as a disposable part.

G. Farrell-Collins: I tend to agree with the member that all responsible employers would want to treat employees as well as they possibly could, given economic impact. The employer would also be keeping in mind that they would hopefully, once they secured either a new customer or a new source of product, rehire those people. They would want them to be happy and part of the workforce. Considering they're already trained and doing the job, they're the best-qualified people they're going to find. I would tend to agree with the member that any business person who has any semblance of long-range thinking beyond even 60 days would want to do that type of thing. Therefore I personally don't think that it's necessary to force people to do this type of thing. They can negotiate it on their own; I don't think the government needs to step in and do it for them. I think that's unfortunate -- a different philosophy perhaps.

But I do have some concern. The member stands up and makes some fairly broad statements: "Don't worry. The Labour Relations Board will deal with this." And yet he stands up and says at the same time that given his broad experience, all labour relations practitioners in the province and all lawyers -- I assume, in the province -- who understand labour relations and have worked with it would understand what the Labour Relations Board would decide without even having to worry about it, that there's no need even to be concerned with what the Labour Relations Board would decide because the jurisprudence is such. And he goes on and on. The member is doing two things there. He's standing up and giving us a blanket statement that there's absolutely no concern with this bill and that none of those problems we're suggesting are of any concern. He can guarantee that that's not going to be the case. He can guarantee that this section deals only with technological changes and is not a big change in the intent of what the former section 74 dealt with. The change in wording from technological change to the policy, practices, etc., is a change in words but means nothing. Essentially both sections are doing the same thing, just in a different way.

For the member to stand up and state that that's the case, that in fact section 54 has the exact same intent as the old section 74 and only relates to technological change, and then to stand up and start including other things is perhaps misleading -- not intentionally, of course. If that's unparliamentary, I apologize, but that wasn't the intent. I know the member is not intending to mislead at all, but it ends up being confusing to people -- certainly if they're watching and certainly anyone who's reading Hansard -- when the member stands up and says one thing with the intent of this section and then another thing, and then refers it back to the board and says that he doesn't want to make any statements. It will be very confusing and very difficult both for members of the board in the future to look back at what the intent of this bill was and for members of the public -- those practitioners, those lawyers, those people who deal with this all the time -- who are asking these very same questions. And we do consult widely with them, and we have their input here. These are the questions that they want answers to. So while the member opposite may be extremely well informed and experienced in labour relations, a lot of people out there who do this for a living, are very good and make a very good living doing this type of practice, have some very serious questions.

So the member may want to discount the questions that I'm asking, but he should keep in mind that these questions come, in a roundabout way, through concerns raised by people who have far more experience than he does.

D. Schreck: With no intent to insult the lawyers who make their living on these interpretations and whose job it is to endlessly ask these questions, practical managers know that the majority of fact patterns can be easily resolved in one category or the other, that it is for those grey areas that we turn to the industrial relations specialist and to decisions before the labour board, and that one or two decisions by the labour board soon set a clear pattern and remove any uncertainty. Anyone who has prepared an arbitration case, appeared before a board and looked at the precedent decisions by that board knows that that is the process by which clarity is gained on the questions that are put forward. There is nothing inherently complicated about section 54. Section 54 provides 60 days' notice when a certain test is made, and encourages some discussion over an adjustment process for the employees.

G. Farrell-Collins: Once again I want to point out that the member is perhaps confusing the two words "encourage" and "impose." This section doesn't encourage anything; it imposes a process upon two parties, despite what they feel.

If I can take a slightly different tack for a minute with the acting parliamentary secretary to the Minister of Labour, and ask him to explain why.... I'll wait until he's finished with the member for Nanaimo, and then I'll continue.

[ Page 4525 ]

Thank you, hon. Chair. I can wait as long as I like, with your permission.

The Chair: Order! Through the Chair, please.

G. Farrell-Collins: The other tack that I'd like to take with the acting parliamentary secretary to the Minister of Labour deals with what happens at the end of 60 days. I know the minister touched on it briefly very early in the debate when he answered one or two questions from the member for Langley on what happens at the end of 60 days if no agreement is reached. Is it then free rein for the employer to do as they please, despite the fact that expectations may well have been raised in those 60 days through negotiations?

Again we're assuming a company that has the capacity to do these types of negotiations and discussions -- economically, anyway. What happens at the end of those 60 days when they don't come to an agreement? Does the employer now have the prerogative to go their separate way and just impose change? What does that do to the labour relations climate that the minister has talked about at such great length?

D. Schreck: I believe Hansard will show that the minister has clearly answered that question earlier. But I would point out that it is in the interests of the parties to reach an agreement, and I trust that the parties will always endeavour to do so. The minister has clearly outlined what happens when agreements are not reached.

G. Farrell-Collins: Well, I've been sitting here throughout the debate, as I know the member opposite was here for good portions of it, and I was certainly here when this part of the section was addressed by the member for Langley when she asked two questions, I believe, specifically on what happens at the end of 60 days. I guess she asked very technically what happens, and the answer of course, which I answered in my question, was that the employer is then allowed to do what they wish. What does the member think is the result in the labor relations environment when that type of process is gone through and no agreement has been made, and then the employer goes their separate way and imposes some sort change on the workplace?

[4:45]

D. Schreck: It's fairly common practice in industrial relations and collective agreements to set up processes to encourage the parties to resolve differences that may not be resolved at a bargaining table or in some other form. Frequently those processes are open-ended, so if the parties fail to agree, there is not a dispute resolution mechanism, and those types of agreements to disagree ultimately land back on the bargaining table with the expiry of a collective agreement.

G. Farrell-Collins: We are all aware of that fact, but what we're dealing with here is that these aren't types of agreements or discussions that can go on in perpetuity; they have to come to some conclusion in a relatively fixed time frame, because changes to the workplace are going to take place. There has to be some sort of....

Interjection.

G. Farrell-Collins: I'll ignore the member for Nanaimo. I encourage him, though, to engage in the debate if he's willing to do so. His interjections are interesting but somewhat disruptive.

Hon. Chair, the....

Interjection.

G. Farrell-Collins: Hon. Chair, I take offence at some of the comments made by the member for Nanaimo, and I would ask for a retraction.

The Chair: Hon. members, I would ask all members of the chamber to please remember that we are in committee on section 54, and that we should be relevant to that.

K. Jones: Mr. Chairman, I rise on a point of order. The hon. member for Nanaimo made an objectionable statement about the member, and I think it's proper that the member should withdraw it.

The Chair: Hon. member, because the Chair does not hear all interjections, I'm quite sure that no member intended to cast aspersions. I just reminded all hon. members to remember that we are on section 54, to address remarks through the Chair and to be mindful, when another member has the floor, that they do have the floor.

G. Farrell-Collins: I would suggest, then, if the member for Nanaimo has any future interjections to make, that he be big enough to stand up and make them on the record as opposed to off the record.

The Chair: Order! Please address the Chair.

G. Farrell-Collins: The members of the New Democratic Party think it's funny to be rude in the House. That's fine.

Interjections.

G. Farrell-Collins: Hon. Chair, section 54, despite some of the inappropriate interjections of members opposite, is exactly what we're dealing with. In future, I would hope the member for Nanaimo would actually rise and speak to the bill, because I haven't heard him speak to this bill yet.

The acting parliamentary secretary to the Minister of Labour made some comments with regard to the adjustment plan. I am not comfortable with his comments or with the comments of the minister that the 60-day application for an adjustment plan will be conducive to the economic viability of all corporations. Given that the minister and his acting parliamentary secretary cannot give us assurances that this deals strictly with technological changes in the workplace and not with outside mitigating factors, and given the strong concern expressed by numerous small and medium-sized business people that this section could economically impact on them very seriously in a

[ Page 4526 ]

number of cases -- such that at the end of 60 days there would be no company left to deal with -- I would move an amendment to section 54(1)(a) that would strike out "60 days" and replace it with "30 days."

The Chair: The Chair, having received the amendment, finds that it is in order.

On the amendment.

G. Farrell-Collins: I'm glad that we have the amendment accepted. I think it's an important amendment. It's not a huge change to the bill, but it's certainly a change that is made to mitigate some of the potential hardships that could be levelled on small and medium-sized businesses in the province when they are impacted by events that perhaps are out of their control, and that they have to react to and make changes in policy and practices within the workplace. Clearly the intent of this section is good, and I've stated that to some extent, but to impose it upon people is perhaps not the best way to go about it.

This section is much broader and encompasses a much larger range of issues than we've seen canvassed previously in the legislation. It no longer deals just with technological changes, but with a wide variety of changes that may occur in the workplace. Given the impact that this may have on small and medium-sized businesses, I think it's unfortunate that we have to wait 60 days in order to allow the person or the company to react. I think that this time frame must be shortened. I prefer it to be shortened by more than just 30 days, but this is a reasonable compromise. I think it will benefit and in the long run probably save a number of small and medium-sized businesses.

D. Schreck: This side of the House will oppose the amendment, but we thank the opposition critic for clarifying a difference between the two sides. On this side of the House we say that employees deserve at least 60 days' notice of a significant change that is going to affect their employment conditions and perhaps even their employment -- a change over which the employer has control, since we must remember that that is the test we are applying here. We are not talking about those changes which are beyond the control of the employer. What we have proposed by the opposition is to lessen the security of employees, and therein we simply differ.

G. Farrell-Collins: I'm becoming more and more confused, the more I listen to the member for North Vancouver-Lonsdale. He says at one time that he cannot give any guarantees that this section will not be impacted upon by outside economic influences being exerted on the employer. He cannot guarantee that that will be an exceptional case, and we've gone through numerous examples. So the member stands up and, on the one hand, says that there's this test that has to be taken. He says that the test is control. If it's some change to the workplace that is within the control of the employer, then they pass the test and must incorporate an action plan, a strategy, an adjustment plan under section 54, in order to deal with that.

However, he says that if the reasons for the change are beyond the control of the employer, but the employer has to implement changes because of outside economic influences or forces, that that's a test the employer then would fail, and they would not have to implement an adjustment plan under section 54. Perhaps he can clarify which of those two is accurate. It shouldn't take more than half a sentence. Is the test as to whether or not section 54 applies a test that deals with an issue that the employer has control over?

D. Schreck: The question put by the opposition critic rather escapes the specifics of the amendment before us and is general to the clause itself. However, I would suggest that the interpretation of the precise test will clearly depend on the precedent established in decisions by the Labour Relations Board, and that the words of the section itself are clear. "If an employer introduces or intends to introduce a measure, policy, practice or change that affects the terms, conditions or security of employment of a significant number of employees to whom a collective agreement applies," then the remainder of this section applies.

The simple test of employer intent is contained within those words, but those words contain other tests which also must be met, and when a disagreement exists between the parties, it must be interpreted by the Labour Relations Board.

G. Farrell-Collins: I'm not trying to be flippant with the member, because we went around this a little bit. I was debating whether I should even bring in the amendment. As I said, if the member could make a clear statement as to what the parameters are, then I would be glad to withdraw this amendment without taking it to a vote. I think that would be reasonable. It's extremely difficult to determine. He's choosing his words very carefully, which I suppose is to his credit, but at the same time, I think it's incumbent upon the government to clarify exactly what the changes are from the former piece of legislation in this section. Is the intent of this section to include items that go beyond technological change? If it is, we'll let the amendment stand and debate it. If it does not go beyond what is commonly understood as technological change, I would be glad to withdraw the amendment.

D. Schreck: I was about to congratulate the member on essentially agreeing with the clause, save and except for the notification period on which we have a fundamental difference, but now I see that the critic is also questioning how broad the test should be. Should it be a narrow definition of technological change or the broader words used here? Clearly it is the intent of government to use the broader words. The notion of what is captured by "technological change" simply does not include all the things that we may agree should be given notice of by the employer to the employees. All types of procedural changes may be agreed on, by those of us who are economists, as coming within a technological change category. I notice my friend shudders. An economist essentially defines technological change as all of those things that can't be

[ Page 4527 ]

explained by anything else. It's a residual category. Unfortunately, it's not so residual when people lose their jobs or security of employment, which is why we need the broader test that is applied in this section.

G. Farrell-Collins: That statement is probably the clearest we've received so far. I congratulate the member for making it clear. We will, of course, let the amendment stand, because it is a problem when the wider range of issues are chosen. Fundamentally, that encompasses a huge range of issues that are clearly beyond the control of the employer. In fact, the union may wish the employer to react more quickly in order to save some of the jobs that may be at risk by sacrificing a few. Again, we come back to that issue, and I don't intend to canvass it at any length. In the minds of most people in the province, it is important to note that it would be important to salvage whatever jobs you possibly could, not put the whole company and all the jobs at risk in an effort to save a few jobs over a 60-day period. I think that's unfortunate.

[5:00]

We must also recognize that creditors -- bankers, suppliers, the works -- will be very leery of a company that finds itself in this type of situation. It's not a technological change, but in fact a change that is occurring because of outside influences. Clearly there are two separate issues at hand here. If this were strictly technological change, then one assumes we're dealing with a company that has some money and can afford to spend the full 60 days negotiating a constructive adjustment plan to ensure that workers are trained, and it's a gradual, harmonious transition to the new technology. In that case I think that this type of section would apply, and that a forward-thinking employer who is growing and bringing in new technology would certainly want to ensure that this type of thing happened. I really don't think there's a need for a section to impose it. But that's perhaps a difference in philosophy, which I accept.

The reality is that because this section applies to such a broad range of issues and goes well beyond mere technological change and issues that the employer may have specific jurisdiction over, or a specific ability to effect, we do need to tighten that up a little to provide for those cases where the company cannot afford to protract for 60 days into a negotiation to try and determine what the adjustment plan is going to be in the event of a sudden economic shock to that corporation.

I agree that employees' interests must be taken into consideration. I would hope that the employer would do whatever they possibly could to make those adjustments. But when it comes down to whether or not the company survives on a month-to-month, week-to-week or day-to-day basis, and the adjustment plan is in place, I would think that the company would choose to.... I think that the government, in some of the discussions that have gone on with other industries such as Fording Coal on some of those other issues that are in place, would have perhaps liked to have seen that option given to the company, rather than have a protracted debate. I don't know if the member for North Vancouver-Seymour wants to comment on that or not. But that's certainly an example where having this type of provision in advance may have helped. But we have a situation where an outside economic shock has caused problems to a company. As a result, a large number of people were laid off, and we're in bankruptcy proceedings.

I think that the amendment from 60 days to 30 days is constructive. It's meant as a compromise, something that would help to perhaps mitigate some of the effects. I hope that members opposite will consider it in the seriousness with which it's offered.

Amendment negatived.

G. Farrell-Collins: It's unfortunate that the amendment was defeated by the government. I sometimes wonder what sort of openness there is to any constructive amendments. It seems that the only one the minister has entertained was an amendment for a grammatical change in one of the sections. Perhaps he thinks it's a perfect piece of legislation. I suppose time will tell.

I think that those reading Hansard and those engaged in the debate will note that there are some serious concerns and considerations that will result from the application of this bill, and those probably should be addressed in this House now. We'll see that when the minister brings in amendments to this code on an annual basis for the next three years. My understanding is that that's his plan, if deemed necessary. In fact, I think that will be the case.

We have certainly spent some time on section 54. I don't want to belabour the time that we have spent on it. I think it has been good. The intent of the section is laudable, but as with section 53, we have the government imposing rather than encouraging. The government seems to think that they are encouraging by legislating. One doesn't encourage by legislation; one imposes by legislation. One encourages by education and discussion. It's a subtle difference, but it's a noticeable one. I would hope that with the other sections, the government will be more interested in trying to head off some of the problems that are very likely to occur some time in the future by making constructive changes and amendments to the bill at this point in time.

Section 54 approved on the following division:

[ Page 4528 ]

On section 55.

G. Farrell-Collins: I understand that the member for Vancouver-Hastings is going to engage in the debate. That should be good. There's nothing like variety to break up the monotony of an afternoon.

[5:15]

Section 55 deals with first-contract agreements and first collective agreements, and the process that the government plans to put in place to ensure that it's a more expedient process. I understand from talking to the minister and to people around that the idea behind it is that the government wants to get the negotiation process off to a good start and doesn't want protracted first-contract negotiations.

I notice that the Attorney General is here, and if he would care to engage in the debate, I'd be glad to hear from him also.

Interjection.

G. Farrell-Collins: The member from somewhere on the Island is wondering if there's anyone else that I'd like to engage in the debate. I was only asking the Attorney General because he did such a good job the other day, and we covered so much territory.

Hon. Chair, section 55 does give us some concern. I think that once again the intent is good, but perhaps the process is a little flawed. I'd like to reflect a little bit for the benefit of the House on what has happened in the past.

In 1974 the last NDP government brought in some changes to the first-contract arbitration that was in place. The minister has quoted numerous times from Paul Weiler, and I would like to spend a minute or so quoting that gentleman -- a well-respected gentleman in the area of labour relations -- and to give his assessment perhaps of the impact of those provisions to arbitrate a first contract. He says:

"I must confess that we had somewhat broader ambitions for the remedy. We hoped that it would achieve some happy results in the future. We assumed that much of the difficulty in negotiating the first contract arose because the employer was totally distrustful of unions, terribly concerned about the impact of the collective agreement on its business. Our hope was that the real-life experience with collective bargaining would dispel much of that paranoia. The imposition of a first contract for a year could act as a trial marriage, one which could allow the parties to get used to each other and lay the foundations for a more mature and enduring relationship.

"Our experience with first-contract arbitration has left me more than a little skeptical of that thesis. By and large, these collective bargaining relationships did not mature. The unions were decertified after the expiry of the contract which we had imposed. These bargaining units tended to be small, employee turnover was high, the union was not able to retain or to rebuild its support, and the employer remained hostile throughout the entire experience."

I think what he is trying to state there is that the concept of a first-contract arbitration, or imposing a first contract as an end result of negotiation, has perhaps proven itself, in our own jurisdiction in British Columbia, to be a less than happy result, and in fact to do just the opposite of what the government is trying to do.

Once again, I understand that the government's intent here is to get collective bargaining off on a good foot, to try and build harmonious labour relations and to ensure that we don't have protracted negotiations on that first contract. I understand that's their intent. I guess what we're asking is: what's the change? What has taken place since the failure of the last process that would bring the government to re-evaluate that process and to bring it in yet again, when it's already proven itself to be less than satisfactory, to quote Mr. Weiler?

J. MacPhail: The member for Fort Langley-Aldergrove raises some good points on this issue, and I think we can assure him that his concerns have been articulated in the changes to the legislation. The section dealing with first collective agreements in the original Labour Code of 1974 very hurriedly brought the procedure to a conclusion. It went straight to the issue of arbitration. There was no assistance provided to the parties in what is -- he is quite right -- the very difficult situation of first collective agreements. So what we have done in this section is try -- I think adequately -- to meet some of the concerns that you do recognize from the '74 Labour Code; that is, that all of the section lends itself to assisting the parties to continue to bargain collectively, and to trying to bring in as much expertise as possible to assist that process. There's a range of options with expert assistance available to the parties, only one of which is the imposition of a settlement. Certainly my experience is the same as that of Paul Weiler's that you outline: the imposition of a collective agreement is the last resort that should be sought.

G. Farrell-Collins: A quick question to the member who is acting on behalf of the minister in his absence. I assume, then, throughout this bill, that the government's plan and its statement that this bill is fair and balanced would apply to section 55 also. Perhaps the member can expound upon why the provisions that kick in after bargaining in good faith takes place can only kick in once the union has taken a strike vote, and not on the instigation of the employer but only on that of the union.

J. MacPhail: Either side can call for it after the strike vote. You're quite right that it kicks in after the union has gone for a strike vote. But I think that's a safety valve that is quite useful in this particular situation. My experience is that the real test of the union membership comes about when there is a strike vote. Very often, taking a strike vote focuses members'

[ Page 4529 ]

minds, and indeed, when given the choice of either having to withdraw their labour or perhaps settling the collective agreement, members will often choose to settle the collective agreement. Therefore the legislation merely lends itself to the members having their attention focused in that manner first. It's a safety valve that employees and employers are not going to be allowed to circumvent by going right into first collective agreement mediation. But after that safety valve has been exercised or put in place, either the employer or the union can call for special assistance.

G. Farrell-Collins: I take those comments with a good deal of thought.

I understand that the government -- and certainly the member as a member of the government -- is trying to ensure that there is a safety valve there, that this just doesn't happen the minute the union is certified, that there is a process that must be gone through before we kick in the arbitration and mediation process. I understand that, and I fully agree that that's necessary.

Given some of the other sections of the bill, if there was a vote for certification, that would clear up the whole question of who has and who does not have confidence in that union to represent the bargaining unit, and that would perhaps alleviate the need to do it here. The member tends to think that it's something different. Maybe the government would be willing to bring in an amendment such that if a strike vote was called and it was lost, this would be considered the vote of confidence that the member mentions and would amount to a decertification of the union.

J. MacPhail: If I understand correctly, the member opposite is suggesting that a defeated strike vote should settle the collective agreement. It really would tend to take away the ability of a group of people to exercise their right to strike. It is my experience -- and I'm not sure that your suggestion has that much to do with section 55 -- that if a strike vote is taken and the members in the bargaining unit choose not to exercise their right to strike, this does bring a conclusion to the collective bargaining.

G. Farrell-Collins: I should clarify the question. The member made some good comments, but I'm speaking specifically to the effect of what happens in the event of that strike vote. I'm using it as a parallel, because I'm trying to illustrate what I see as an imbalance in this section, despite the minister's comments that he would like the legislation to appear to be fair. And I want to highlight for a minute that strike vote, because it does impact on the fairness and the balance of this section.

The member stated that in her experience, which I understand is substantial in this field, she feels that the strike vote itself constitutes a vote of confidence or non-confidence in the bargaining unit. That argument has been used throughout this debate to state why there is no need for a certification vote: a strike vote or a vote on the first collective agreement would come along, and that in fact is the vote of confidence that is or is not required from the bargaining unit.

Following through with that argument into this section and looking at the balance -- or perhaps imbalance -- between the rights that are accorded the employer and those that are accorded the union in this case, I would ask the member to clarify. Given all the discussion we've gone through and all this time -- certainly on the certification section, which I don't want to get into again -- in her mind and in the mind of her government, would a defeated strike vote constitute a vote of non-confidence in the bargaining unit and amount to that type of rejection of confidence in certification on behalf of the bargaining unit?

J. MacPhail: I'm not trying to avoid the question, but I think that it's a little off topic for section 55. Let me tell you what the success or failure of a strike vote means. It means that the members are suggesting that there is an alternative to settling the collective bargaining issue, without exercising their right to remove their labour.

G. Farrell-Collins: I don't mean to get off topic, and I am heading to a very specific part of section 55 that I want to canvass. But the question I would ask the member.... I bring it up because she brought it up, and it has been stated in this House numerous times by the member for Mission-Kent, the minister and other members who have engaged in this debate and offered their wisdom. The vote of confidence in a union, which shows clearly whether or not a member wants to remain in a bargaining unit or wants that union to negotiate collectively on their behalf, takes place when there's a strike vote or a vote on a collective agreement. My question is -- with that argument in mind, which has been canvassed numerous times when we dealt with certification, but again, as it deals here with the strike vote and how that relates to the rights of the employer also: would the member concede, given the arguments that we've had, that a lack of support for a strike vote would also indicate a lack of support for the union that's bargaining collectively on behalf of that bargaining unit?

J. MacPhail: I think I've already answered that question.

[5:30]

G. Farrell-Collins: I would just suggest that those who read Hansard in the future would go back through the legislation and take note of the number of times it's been said by those and other hon. members I have mentioned that the strike vote or the vote on collective agreement is the actual vote of confidence in the union that's bargaining collectively and would take it as such. I assume the board will take it as such also.

Moving on to the reason I was canvassing that area, the hon. member brought up the point that there needs to be a safety valve, and in the government's opinion that safety valve is the strike vote. My question is: why is that safety valve provision provided to the workers on one side, yet the same safety valve provision is not granted to the employer on the other side to provide equal balance?

[ Page 4530 ]

J. MacPhail: The member opposite does raise a good point. There are two safety valves that I would ask him to turn his attention to. One is that bargaining in good faith has to take place. The second is that a strike vote takes place. The employer is protected by ensuring that bargaining has taken place thoroughly and has reached an impasse before workers or employers can exercise their rights under this section.

G. Farrell-Collins: That is true. There are two safety valves here. First of all, the test of bargaining in good faith must be met, and I assume that must be met by both the employee group and the employers. They both must bargain in good faith. Once that step has been cleared, we move down to the next step. Then we're dealing with what happens once both parties have bargained in good faith but can't come to some agreement. The employer wants to cease this protracted process and says: "Despite what the board says, I don't feel that we're getting anywhere." Maybe the employer wants to lock out. Isn't that a provision just like the employees' right to strike? Isn't that something that should be offered to the employer? Once that takes place, shouldn't that also kick in the mediation-arbitration process the government has brought forward? That balance should be required in all sections of the bill and certainly in this section.

J. MacPhail: It's important that we look at what we're trying to achieve in this section: a resolution to collective bargaining that meets the interests of both parties. With the way the section has been set up, it's very much an assisting section. I'll just take you through it. The safety valves are there, and then one of the parties exercises their right to use the assistance outlined in this section. After section 55 has been invoked, there are several options available to not only the mediator but the parties. One of those options, as the member opposite suggests, is still available to the employer. The employer is not being denied the right to lock out; it is there. That is a good provision for the employer under this section, and it's one of the options available. So that protection is there for the employer.

G. Farrell-Collins: Perhaps some clarification, then, from the member and her adviser when we deal with section 55(1). The member said that the right to lock out is a provision that's made available to the employer and that it does exist under this section. Of course, as we get through to other subsections, certainly that right to lock out exists; but we're dealing here in the preliminary stages of this process. Once it's been deemed that both parties are bargaining in good faith but have failed to reach an agreement, why is it not an option for the employer to seek mediation-arbitration because they see themselves headed into a protracted dispute that they don't have the time, money or energy to get themselves involved in? They would rather see this fast-tracked. They're not against having a union; they're just not coming to an agreement with the union that's bargaining. So shouldn't it also be a right of the employer to kick-start or, as the member uses the phrase, open the safety valve? Should they not have as much right to open that safety valve and get into the next stage as the employee group does? Should that not be parallel? Should they not be able to initiate a lockout -- a one-day lockout or whatever -- and then make a request for mediation, much like the employees have the right to do?

J. MacPhail: No.

G. Farrell-Collins: I don't need the answer instantly; I'm glad to wait for it. The question is why should not both parties have -- not just do they not have -- a right to...? Why is it that we give the right to open that safety valve to the employee group by way of a strike vote, and then we can call for mediation, but there's no way for the employer to instigate that process and to get into mediation without approval or without the process of a strike vote taking place?

J. MacPhail: Certainly the employer has available to him or her the option of applying for mediation outside this section and bringing to the fore the scenario you outline. But let me just say another thing to you about why, in this particular section, it's the employees' right to take a strike vote, as opposed to the necessity of the employer to take a vote on a lockout. It's a first collective agreement; there is no contract in place. So the circumstances under which the employer finds herself are that it's the status quo. There is no change to the economic relationship between the employers and the employees, because there is nothing established as a collective agreement. However, what the employees are doing is trying to put in, I would assume.... My experience is that normally the first collective agreement involves changed economic circumstances and changed workplace relationships. The union is in its first collective agreement. It is different after the first collective agreement is in place, but in the first collective agreement it's the employees who are trying to move away from the status quo. The employer lives with the status quo. And I might also remind the member that there is a requirement that collective bargaining has already taken place.

G. Farrell-Collins: I won't spend a lot more time on this, because I think we're going to finally come down very quickly to what the real gist of this is -- and I think perhaps we're already there. It's that the member believes that there would never ever be a case where an employer would choose to go to mediation of their own volition after going through collective bargaining. They'd rather just let the thing drag out. I'm sure the experiences of the member for Mission-Kent.... I know I've talked with him once about this -- he was at the press gallery dinner last year -- and I've talked with other people about it. In the vast majority of instances, that is the case: the employer has no interest in going beyond the status quo. In fact, in some cases employers drag their feet to the point of being charged with unfair labour practices -- that does sometimes occur -- and not bargaining in good faith.

But is it fair to state that...? Perhaps the member or her adviser can advise us: has there ever been a case...?

[ Page 4531 ]

I suppose there are no statistics on it, but I'm sure it's out there. In fact, I've talked to people who feel that way. Once the collective bargaining process starts and the certification has taken place, many employers aren't adverse to working with the union. They may have had other companies that have worked with unions, and it has gone along quite well. But they find themselves in a process of not trying to circumvent the right to organize or bargain collectively by the employees. In fact, they will have to have bargained in good faith to get to this stage. Maybe they have bargained in good faith, the employee group has bargained in good faith and they reach a point where the employer says: "Look, I don't have time to let this go on. I want to get an agreement, but I don't think the stuff that's on the table is realistic. We need to get some mediation going on, and we need to do this." Can the employer not have the same right to the use of section 55 as the employee group?

J. MacPhail: My experience is, as you outline as well, that there are employers who are very committed to the process, once they are into it. There is the availability of mediation through other sections of the collective agreement. Indeed, I have been in situations personally where employers have exercised that right to a successful conclusion.

G. Farrell-Collins: The difference between what the member is speaking about and what is in section 55 is that there is some compulsion here. There is a process set out if mediation doesn't occur or doesn't produce an agreement within a reasonable length of time; there are other steps to be followed. In fact, I would say that probably the government is going to argue, once we get into those sections, that that's the advantage of this section, aside from outside mediation or some sort of informal process, and that this is more concrete because it provides a process that one is certain of. It's a process that will go on step by step, and everybody knows what is coming next if they don't do the step that's required in order to come to an agreement.

We're offering, I suppose.... I'm just trying at the very beginning to highlight an imbalance in this bill. The reason I'm doing it is that I would hope the government would make a subtle amendment or change the balance of this section. I don't think it would have a huge impact, but it would certainly send a message out that first contract mediation and arbitration is a right or process that, in the government's mind, is a right that should accrue to not just the employer but also the employee group. The employees have the same options as the employer to ask for outside mediation -- or mediation outside this section, as the member says. The employer can do that, and so can the employees.

This section has been brought in for a reason. The government has made a point of stating that this is the direction they want to go. It's a new section. They've spoken at some length about why they feel it's important and why it's a valuable tool to build harmonious labour relations. I would state that if the government is intent on using this type of process, I'm not sure it's going to succeed in the long run, given past history. Let's say the government is confident that it will succeed. If the intent of this section is to get collective bargaining off to a good start, as they would say, then wouldn't it be in keeping with that spirit for the government to make the recourses of section 55 available to both the employee group and the employer group in a parallel, fair and balanced way? Wouldn't that be the message that the government would want to get out there?

J. MacPhail: I have a couple of points in reply. The section that discusses this in the report, Recommendations for Labour Law Reform, is helpful in this area from a historical perspective, but I'm sure the member for Fort Langley-Aldergrove has read that. It is important that this legislation provide a balance for both employers and employee groups. I think this section achieves that.

Let me point out a couple of things to you. Section 55 has some very tight time frames in it for the flow-through. The other thing is that in many circumstances throughout this province, the reality is that there is only a single employer, and a vote would be meaningless. The employer exercises his or her right without a vote -- I'm referring to a a lockout. The third thing that's important is that this section does require some obligation on the part of the union, and the union representing the members does take a break from exercising its full collective rights. I'll be quite clear about it. When the union chooses to exercise its right under section 55, it does say that it is going into this process to reach a collective agreement. In the meantime it's not going to be able to withdraw its labour and is maybe putting itself -- not at risk; it's not a risk at all -- in the hands of the special mediator to recommend a settlement. It is also perhaps putting itself in the hands of an arbitrated settlement. Those matters are not without consequences for the union.

I think you raised some good points about the balance, but really, if we look at this section, we will see it's an assisting section and a balanced section. I think it will resolve that past history of some very difficult first collective agreement strikes that have caused economic hardship not only to the workers but to the employer.

[5:45]

G. Farrell-Collins: I hear what the member is stating, and I know what she's trying to get across. I guess the problem that we see -- and I won't belabour the point to any great extent.... I think that we've quite clearly found another section where rights are given to the employee group but not to the employer in the same measure. That has happened a number of times throughout this bill, and I think that this section, maybe in a small way, certainly does the same once again. I think it's unfortunate, particularly because of the intent of this section and the critical nature of that first contract, that first collective agreement.

If anything, I think the government should be making a very much stronger attempt in this section than in any of the other sections to do whatever is necessary to ensure that the provisions are 100 percent parallel. At the end of the day, that collective agreement has to be arbitrated and is imposed on the employer

[ Page 4532 ]

and the employees. In order to get the collective bargaining process off to a good start, it is important in their minds that the balance be seen to have existed right from square one, that equal access was accorded to both groups in parallel and that they were both treated identically and fairly. I think that's important.

It is a subtle change. It's not a huge issue. As I say, I won't go on about it for a long time. But as we go through this section, perhaps the minister could think about it and come back to us. Maybe that small change would send a bit of a message when we get into this first-contract process that this process is meant to be exceptionally fair and exceptionally balanced. That's important. There are other issues that we certainly will want to canvass in this section. We've scratched the surface of section 55.

If my reading of sign language is appropriate, I believe the member for North Vancouver-Lonsdale is suggesting that the committee rise, report progress and ask leave to sit again, and I would so move.

Motion approved.

The House resumed; the Speaker in the chair.

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

J. Tyabji: I ask leave of the House to move motions of substitution.

Leave granted.

J. Tyabji: By leave, I move that Mr. D. Jarvis be substituted for J. Tyabji as a member of the Select Standing Committee on Aboriginal Affairs and that D. Jarvis be substituted for J. Tyabji as a member of the Select Standing Committee on Environment and Tourism.

Motion approved.

Hon. A. Hagen moved adjournment of the House.

Motion approved.

The House adjourned at 5:49 p.m.

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