[ Page 1539 ]
Hearing on patent act. Mr. Cashore –– 1539
Drafting of Bill 19. Mr. Sihota –– 1539
Economic impact of work stoppage. Mr. Huberts –– 1540
Drafting of Bill 19. Mr. Gabelmann –– 1541
Taxation (Rural Area) Amendment Act, 1987 (Bill 29). Hon. Mr. Couvelier
Introduction and first reading –– 1541
Industrial Relations Reform Act, 1987 (Bill 19). Committee stage. (Hon. L. Hanson) –– 1541
Ms. A. Hagen
Hon. Mr. Strachan
Mr. G. Hanson
Mr. R. Fraser
Mr. S.D. Smith
Appendix –– 1562
The House met at 2:08 p.m.
MR. WEISGERBER: Mr. Speaker, in the precincts today are 30 grade 7 students from Grandview Elementary School in Dawson Creek, along with their teacher, Mr. Jim Mah. Would the House please make them welcome.
MR. CASHORE: On behalf of the member for Coquitlam-Moody (Mr. Rose) and myself, I would like to invite the House to join us in giving a warm welcome to Mr. and Mrs. Douglas and Dorila Furlot, longtime Coquitlam residents.
MR. RABBITT: Visiting us in the gallery today we have J. Allan Thorlakson, who is the president of Tolko Industries, which recently purchased Balco Industries. They have a division in the Nicola Valley. I would like this House to offer a hearty and warm welcome.
MR. CASHORE: Mr. Speaker, visiting in the precincts today we have 25 grade 4 and grade 5 students from Pacific Academy in Coquitlam, along with Mr. and Mrs. Adrian Cooke, Mr. and Mrs. Randy Robinson, Mrs. Rose Soderlund and Mrs. Ruth Frith. Please join me in welcoming them.
MR. ROSE: Mr. Speaker, I didn't know he was here or that he was coming, but I believe I see — faintly — my old friend Cal Kinsey from Port Moody up in the gallery, and I wonder if everyone would extend him a welcome.
HEARING ON PATENT ACT
MR. CASHORE: I have a question for the Minister of Health. Yesterday a Senate committee held hearings in Victoria regarding proposed changes to the Canada drug patent act. On December 12 last year, the Minister of Health stated the government's opposition to these changes. However, I have a copy of the agenda from yesterday's hearings here, and the government cancelled an already scheduled appearance. I took their place on the agenda, I might say.
Will the minister explain his absence, when he has assured the public that he would take a tough stand on this issue?
HON. MR. DUECK: I was not aware of the meeting.
MR. CASHORE: Mr. Speaker, I find that beyond credibility.
I would also point out that the costs resulting from the changes in the drug patent act are already reflected in the budget, prior to this receiving royal assent. I think we should note that generic substitutions currently save Canadians well over $200 million annually. If the Patent Act changes go ahead, the additional cost to British Columbia will be about $75 million annually by 1995. Is the minister prepared to just accept that increase quietly? Or does he have any sort of plan to try to stop it?
HON. MR. DUECK: For your information, Mr. Speaker, this government has gone on record not once but a number of times opposing that particular legislation, and we were denied any access or any remedy for that. So when you asked if I attended this meeting, no, I did not. I did not know about the meeting. I'm being fairly honest with you. However, we have opposed it on a number of occasions, and we have not had any results in our favour.
MR. LOVICK: Mr. Speaker, just a supplementary to the Minister of Health: is he telling us, then, that the government of Canada neglected to inform the government of B.C. that these hearings were taking place?
HON. MR. DUECK: Mr. Speaker, I didn't say that. I just said I personally was not aware of the meeting. I did not have an invitation to it, but a member of our government did attend and spoke about the alcohol review process that was taking place.
MR. CASHORE: Mr. Speaker, a supplementary question. I'd like to ask the hon. minister how he can say that his government didn't know anything about this, when his government is listed on the agenda as planning to appear at the meeting and the chairman of the Senate committee explained that the reason you couldn't be there was because you were too busy in the House on Bill 19. Why was that stated by the chairman of the Senate committee?
HON. MR. DUECK: Mr. Speaker, I find it absolutely incredible that a person would get up and say that I didn't attend the meeting because I was too busy with Bill 19. I think we have a Minister of Labour who was busy with that bill. I personally wasn't. I was working in my office. I have many duties. However, I did not say that my government was not aware of the meeting. I said I personally wasn't aware, and when I say that, you don't have to get sore at me. I wasn't aware of the meeting.
DRAFTING OF BILL 19
MR. SIHOTA: A question to the Minister of Labour. Yesterday when I asked the Minister of Labour whether or not he was aware of what other consultants were hired by the ministry to provide input after and during the public hearings in drafting Bill 19, the minister did not answer the question. I want to ask the minister again today: has he now decided to tell us who they were or to table a list of the individuals involved?
HON. L. HANSON: The answer to that is no.
MR. SIHOTA: It's difficult to understand what it is that the minister wants to hide. Last night on radio, Mr. Leslie confirmed that there were indeed a number of private practice labour lawyers who did the drafting prior to its introduction in the House. One of those was Donald Jordan of the law firm Jordan and Gall, and in the public accounts of the government it is now evident that last year the government paid Jordan and Gall over $220,000. Was any of that money for work on preliminary drafts of the bill?
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HON. L. HANSON: I can't really answer that. I don't know what the $220,000 was paid to Mr. Jordan for. The drafting of Bill 19 began some time ago and as a result of the various briefs that were received. Starting in mid-November we received briefs from various organizations, and the process has been going on continually, both within my ministry and outside my ministry. So I can't answer that question because I don't know what the $220,000 was for.
MR. SIHOTA: Well, we know as a fact that Mr. Jordan — because he has confirmed it — was engaged to give some advice to the government prior to the introduction of Bill 19. Will the Minister of Labour confirm that Jordan and Gall were paid for that advice? Were they or were they not paid by the ministry?
HON. L. HANSON: Mr. Speaker, I think it's fairly well known that over the years the government has used all sorts of counsel for various reasons, and I know Don Jordan has been used in labour matters as it is involved. What the $220,000 was paid for, I have no idea.
MR. CLARK: The minister has now confirmed that this started some time ago. In his February 28 report to this Legislature, the minister says on page 2 that he had at his disposal "the options which were considered in preparing the 1984 amendments to the Labour Code." Did those options include an already drafted version of the Industrial Relations Council system which appears in Bill 19?
HON. L. HANSON: Is the question whether the present bill before the House, as it relates to the Industrial Relations Council, has the format that was suggested in 1984? I think that there were probably references to a council such as we envision in Bill 19, but I would have difficulty in relating the 1984 information to exactly what we have here.
It's only understandable that we in the Ministry of Labour look at all of the things that have happened over the years before we come up with it. Some ideas we pick up, and some ideas we don't. But if the direct question, as I understand it, is whether the 1984 recommendation appeared in Bill 19, I would suggest to the member opposite that we considered the 1984 recommendations in all of our drafting right through, but the actual form of it was not introduced in 1984, to my knowledge.
MR. CLARK: Let me clarify. Was there a version of the Industrial Relations Council? Was that an option considered in 1984? Was it drafted in 1984 but not implemented until now?
HON. L. HANSON: I wasn't here in 1984, Mr. Speaker, but by the same token I was privy to some of the information that was gone through in 1984. To the best of my knowledge, there was no Industrial Relations Council as we see it in Bill 19 in the information that I was given.
MR. GABELMANN: Would the minister deny that that legislation was already in draft form in the Ministry of Labour when he took office last year?
HON. L. HANSON: Bill 19?
MR. GABELMANN: In reference to the question asked by the second member for Vancouver East, section 62 of the legislation, part 8.1 of the Code.
HON. L. HANSON: That was not in the ministry when I arrived on the scene.
ECONOMIC IMPACT OF WORK STOPPAGE
MR. HUBERTS: A question to the Minister of Finance. As you know, Mr. Minister, our ferry system is of paramount importance to the people on Vancouver Island. Certainly you and I have firsthand knowledge of its importance to Saanich and the Islands. Having said that, following Monday's illegal stoppage, which included a shutdown of the B.C. ferry system, can the minister advise the House what economic impact the work stoppage had on the business community of Vancouver Island?
HON. MR. COUVELIER: I wish to thank the hon. member for the question, which is topical, relevant and current, as opposed to some of the other questions.
I have a long-standing interest in the question of tourism development on the Island, so to the best of my ability I've been monitoring the effect of that one-day stoppage. It's clear that no one universal sort of conclusion can be drawn from the loss of the day's ferry service. However, if you look at it by sector, it is evident that many of the hotels in Victoria and presumably up-Island would be impacted in different ways. Some have had a relatively small impact in terms of vacations: empty rooms Sunday night, people leaving. On the other hand, many hotels, particularly those along Belleville Street here, would have had dramatic declines in room rentals. If you look at the traffic enjoyed by the B.C. Steamships, I understand that their volumes on both Sunday and Monday were down as much as 50 percent below anticipated volumes. Clearly, if you look at services provided by the bus companies on Vancouver Island, they similarly had sort of a mixed performance.
I think it's not unreasonable to expect that a sizeable financial hardship was imposed on the tourism industry of the Island. As it relates to Victoria in particular, I would think that a figure of maybe as much as $1 million wouldn't be out of line in terms of lost revenue. If you extrapolate that figure — what the question was — for the whole of Vancouver Island, you would likely come closer to a figure of $2 million. That explains why it was necessary to make sure that that kind of a stoppage would never happen again, where innocent people would be deprived.
MR. SPEAKER: If the minister would conclude....
HON. MR. COUVELIER: Thank you, Mr. Speaker.
The whole point, I believe, of the questioner was to bring out the fact that there are innocent third parties affected by these kinds of illegal actions. I believe there's sufficient evidence on the record to indicate that you can attach a dollar value to that in terms of lost income.
MR. ROSE: Mr. Speaker, because of the applause by the government members, some of us missed some of the Minister of Finance's reply. I wonder if he'd mind repeating his reply.
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MR. SPEAKER: Sorry, that's out of order.
DRAFTING OF BILL 19
MR. GABELMANN: I also have a question for which a minister has been warned. I want to repeat a question to the Minister of Labour which he did not answer yesterday. The question is: in recommendation No. 43 in his report to the Premier, he recommended the often unique problems of the construction industry should not be addressed by legislation at this time. Yet this legislation, Bill 19, does address concerns relating to the construction industry. Why did the minister not take his own advice?
HON. L. HANSON: I don't know whether that question's in order or not, but I'll certainly answer it. When I made that report on February 28, it was a report that I had drafted as a result of a number of visits and presentations by various people around the province. At that point in time it was felt that there should be some exclusions and that the construction industry was a very difficult one to provide labour legislation to.
If the member looks at the report that I tabled with the Premier and then looks at Bill 19, I think he would see that there are some things in the report that were not absolutely followed through as they were in the report. There's a very good reason for that. The reason is that this Bill 19 is a bill of the government of British Columbia, of the Social Credit Party, and the discussions that went on about my report at the cabinet level, as well as with the Premier and other individuals, decided that some of the issues, as it related to the construction industry, should be looked at in Bill 19.
MR. WILLIAMS: Mr. Speaker, it's now abundantly clear that the bulk of Bill 19 was drafted in the Premier's office, and nowhere else. Mr. Leslie, the former deputy, said last night on the radio that he had expressed his concern and dismay frequently and consistently to the Premier about Bill 19. In view of this, and in view of the tradition in parliaments, and in view of the minister's credibility being in tatters, has the minister ever considered simply withdrawing from his role as minister, because it has been totally usurped by the Premier's office?
HON. L. HANSON: Mr. Speaker, it's very nice to hear all of those compliments coming from such a learned gentleman on the other side, but I would certainly have to dispute that my reputation is in tatters. No, I'm not going to resign. That you think it is doesn't impress me.
Introduction of Bills
TAXATION (RURAL AREA) AMENDMENT ACT, 1987
Hon. Mr. Couvelier presented a message from His Honour the Lieutenant- Governor: a bill intituled Taxation (Rural Area) Amendment Act, 1987.
Bill 29 introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today
Orders of the Day
HON. MR. STRACHAN: I call committee on Bill 19.
INDUSTRIAL RELATIONS REFORM ACT, 1987
The House in committee on Bill 19: Mr. Pelton in the chair.
On the amendment to section 23.
MR. GABELMANN: Yesterday afternoon, as we concluded debate, I had made reference to a 1981 statement by the Chief Justice, Allan McEachern, in which he made the point, in response to queries from our friend Peter Gall, that he had always considered that the courts had the ability to review decisions of the Labour Relations Board — or for that matter, by implication, any other administrative tribunals. That was said at a time when British Columbia had the most restrictive privative clause in the country in respect of labour legislation. It also had other sections in the Code which were as strong as any in the country — in fact, stronger — in establishing the exclusive jurisdiction of the Labour Relations Board to hear and rule conclusively on issues that came before it.
We then were presented with an amendment to the bill in its initial form, which we are now amending again, which said: "A decision or order made by the council is final and binding." I'm told — because I don't know, in this subject — by lawyers of all persuasions that this is the weakest privative clause imaginable for protecting the authority of an administrative tribunal.
We're now debating an amendment which has additional wording included in it, and I'm told by many of these same lawyers that this change makes absolutely no difference whatsoever; that courts, should they choose to interfere in the administrative affairs of a tribunal like the Industrial Relations Council — to quote the second member for Kamloops (Mr. S.D. Smith) — will. He and I, I think, agree about this.
I wonder if the minister could give us his views on this matter — whether he agrees with attempting to restrict the superior courts' review of tribunal decisions or whether he simply believes that they should have the right to come in whenever they so choose. If he believes that, why has he introduced an amendment which, according to lawyers, means absolutely nothing in legal terms?
HON. L. HANSON: Well, obviously we don't consult the same lawyers; maybe I should talk to the lawyers you've been consulting. The advice — and again, the member opposite is not a lawyer, and neither am I — that I've been given is that the other provinces' privative clauses may appear stronger than ours, but it's their opinion, which was passed on to me, that ours is as strong as is constitutionally possible. The existing privative provision in the Labour Code.... My advice is that they are obsolete; they go beyond the provincial powers. This is what legal counsel has told me, and the new section 33 keeps industrial relations matters within the council's jurisdiction, as far as is constitutionally possible.
We can't prevent court appeals in instances of bad faith, denial of natural justice or excess of jurisdiction. But the
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question the member asked me was if it is our intention to open it more up to the courts. That is not the intention. The wording that we have put into the amendment of the bill, on the advice of legal counsel to myself, is as strong as any that we could possibly put in.
MR. GUNO: I think that this particular technical point actually demonstrates the need for having this whole matter discussed at a committee stage, where we can call legal, technical advice so that we can determine exactly whether or not this privative clause is as strong as you say or as weak as we contend. I agree with my colleagues that this particular change renders the whole privative clause useless.
I just want to say first of all that the main intention of any privative clause is to prevent the intervention of the courts in the affairs of the tribunal. In our society today, with its growing complexity, we require these various tribunals to handle various functions which require specialty knowledge. I think that it's sound government policy for any government to delegate certain of these functions, in order that they can be carried through.
In recognition of the sound policy that people ought to be able to resolve their differences with minimum interference by the courts or by the state, we can evolve an effective dispute resolution mechanism, one that would deal in a very expert way whenever there are any industrial conflicts. So I think it's important that we establish a board that has certain autonomy, one that would not invite judicial interference without the present judicial tests. There are two tests that rise to mind. One is whether or not the board is being unreasonable or patently unreasonable. I think that if we were to allow this change to remain and render the present privative clause useless, then we're going to have even more instances of court interference. I just want to quote an excerpt from Paul Weiler's book where he addresses the need to curtail that kind of court intervention in these kinds of tribunals. He states:
"The parties must not be able to sidetrack or even to derail the board's processes by running off to the courts along an open-ended avenue for judicial review. If the labour board is to be effective in the fray, it must be seen by the labour-management community as the body with the final authority on labour law."
I think you would agree with me, Mr. Minister, that if the parties were to recognize that if they were not happy with a decision made by the board, then it's off to the courts.... I have practised labour law very briefly, shortly after I was called, and I would think that if this particular fact of Bill 19 passed, I'd seriously consider resigning as a politician and entering back into law, because I think it's going to be very lucrative for lawyers.
The thing is, that was the very thing we tried to avoid in 1973. We tried to have a less legalistic approach in solving the problems within the labour relations field, and I think it worked. As long as you have the integrity of the board to make those kinds of decisions and to be able to restrict court intervention, then you're going to have a dispute-resolving mechanism that's going to work.
I'd just like to hear more about how you say the changes that are made here would guard against further court intervention. Would you not agree with me that if we can make the case that this privative clause is weak to the point where we can say it's silent — and if it's silent then the court may, in the future, take that as saying that they can interfere on wider and wider grounds than just the two tests that we've discussed — then there is room for changes in terms of strengthening this clause?
HON. L. HANSON: I don't agree to that. I think that I as the Minister of Labour suggest a philosophy that says we want the Industrial Relations Council's decisions not to be contested in court, to the best of our ability, because that's the purpose of the Industrial Relations Council — the adjudication division, that is. When I do something like that or when I develop some philosophy like that, I go to people who are constitutional experts in the field. The constitutional experts within the Ministry of the Attorney-General advised me that that is a very strong privative clause and will in fact do everything that we are able to do, keeping in mind that we can only go as far as is constitutionally possible.
So while I respect the opinion of the member opposite, I don't believe that anything.... When there are two experts, as the phrase goes, legal professionals who have a difference of opinion as to the wording of the clause, then I suppose the only way to do it is to try it. But again, I don't know what further experts you could get. I guess the reason there are disagreements between legal experts is the reason they have courts. This change to the privative clause was as a result of what I accept as reasonable legal and professional advice: that it is a good privative clause and will stop a lot of interference from the courts.
MR. SIHOTA: I'm of two minds as I stand here and decide how I want to deal with the debate on privative clauses. On the one hand, I could stand up and talk about the history of privative clauses and the extent to which they have been opened up by courts. On the other hand, I could sort of go through the law.
I guess the thing that has always struck me as somewhat strange with privative clauses is that on the surface they seem to totally ban and prevent judicial interference with decisions of tribunals, in this case the Labour Code. As a matter of interest, I was looking at section 33, which talks about the board having exclusive jurisdiction to determine, to the extent of its jurisdiction, questions that arise within that jurisdiction. That seemed to me a fairly comprehensive clause. You would scratch your head, I think, if you were a layperson and wonder how it is that someone could find a way for judicial interference. Yet that has been the case not only with the Labour Code but with privative clauses in other legislation. One only has to look again at the current legislation and the section. On the face of it, it appears fairly solid, but within the context of the decisions, in my opinion that is not necessarily the case.
I guess there's room then for a debate as to whether or not my opinion or the opinion of the member for Atlin is justified, and whether or not it ought to override the opinion of solicitors from the Attorney-General's department. If my friend from Atlin wants to continue on that line, I'm certainly not going to stop him, except that I don't intend to do it that way. I think there's a larger issue here, which gets me into the second sphere. If I were to take that line and pose a series of questions that I have here — there are about 15 or 20 of them — I'm sure that at some point things would break down and the minister would say: "Well, my advice from the Attorney-General, or from the best constitutional experts in that department, is that this privative clause will withstand any challenges. It is my view, therefore, that the section is sound.
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The member for Esquimalt is in error in suggesting otherwise." I don't particularly want to erode to that point. But it is of considerable concern to me still, because I tend to think that this privative clause is very weak and is going to invite all sorts of judicial intervention.
The member for Atlin is quite correct. This is a highly technical matter. It is a complicated matter, and it's really something better put before a committee. I don't want to get into name-calling or begin to question the competence of the minister in understanding these matters, but if there's a section that we've dealt with so far where we agree on the principle, it's this one. Taking the minister at face value, there is an agreement in principle that both sides don't think the courts ought to intervene in this matter. But I think there's legitimate room for some experts to argue whether or not this clause is going to serve that principle and serve it well. If there ever was an argument that a clause should be allowed to stand, it clearly applies to this section.
I've purposely been very frank in laying out my concerns and where I'm coming from on this, and also laying out the ways and areas in which it would be appropriate for me to temper my comments. I've done that, I think, largely as a measure of good will, only to implore the minister, if I can put it that way, to allow this thing to stand so that we can have some other opportunity to debate it in detail with experts from both sides. I'm not satisfied at all that it would withstand a challenge from the court. I would venture to say that if the minister is true to his principle, we'll see a whole series of amendments with respect to this section later, because it will get opened up,
I say that in good will. I don't know if the minister is prepared, and I don't know what the etiquette and procedure is, and I don't know if the minister is prepared to entertain that type of thought with respect to this clause. I'll sit down at this point, and if he's not, then I'll make a number of other comments.
HON. L. HANSON: If the member's question is whether I am prepared to stand down on this clause and subject it to debate, no. I think the advice I was given is professional advice. Obviously the advice I was given would differ from the opinion of the gentlemen on the other side who are also qualified in that area. The debates on that, I think, will ultimately be tested by the application in the real world as the IRC gets into.... I just can't say that there's a requirement to stand down on this particular clause for debate, because I believe that it's as strong as we can get. I've been given the advice of a constitutional expert, and I think I have to accept that as being the truth.... I'm not suggesting it isn't the truth, but as being reasonable and fair advice as to what that clause will do.
MR. SIHOTA: Then you've only left me with one choice, Mr. Minister.
A question to the minister. What is the nature of the advice that you've gotten? I guess that is the question. Will you give us some detail as to why you think this clause is superior to the clause that currently sits within section 33? What legal grounds?
HON. L. HANSON: Mr. Chairman, I'm not here as a legal expert, and I don't give legal interpretations. Secondly, I'm not qualified to do it. The system of drafting this was a very simple one, in that we wanted — which we both agree on — to restrict the intervention of the courts into the decisions of the new council. We got the best constitutional advice we could to give us the wording, and this is the wording that has been produced as a result. The effect will be that there will be very little intervention by the courts.
I know the member opposite is arguing that there will be all kinds of intervention. I think a gentleman with all of the qualifications of the gentlemen on the other side has a different opinion, and I have to accept his opinion.
MR. GUNO: Mr. Chairman, I think that we're in agreement that the old privative clause was quite effective in reducing the amount of court intervention. I would just like to canvass the minister's opinion as to why he saw any need to change that if it was working. The old principle is: if it ain't broke, why fix it?
HON. L. HANSON: Again, I go back to the counselling I was given by the constitutional experts that if it was subject to testing, the new wording is stronger than the wording that was in the act, and therefore the privative clause that's there now is more appropriate, I guess, for the new Code. Again, that same legal counsel advised me that the amendment is in fact stronger wording than was in the Code originally.
MR. SIHOTA: There was a section some time ago that dealt with exclusive jurisdiction. That's now been removed, the exclusive jurisdiction clause. Is the minister saying that with the removal of that clause, this privative clause is stronger than what currently sits in section 33?
HON. L. HANSON: The answer to that question is yes, on the advice of the constitutional expert that we called in to give us advice.
MR. GUNO: I can see why we have these kinds of frustrations. I mean, we ask a fairly technical question, and I think the whole process of this exercise is to try to canvass from the other side — from the minister — some of the reasons why the changes are being made. I don't think it's sufficient for us to just accept "my experts told me so, and trust us." I think we require a more detailed and more thorough answer than that.
MR. SIHOTA: If the minister doesn't understand the comments that were just made by the member for Atlin, I'm really.... Maybe he'll understand, just from the body language on this side of the House, that there's all sorts of frustration, and that frustration comes from the fact that we're dealing with a complex clause, a technical clause that has all sorts of ramifications if the courts can intervene. We're talking about a principle where everyone agrees that the courts ought not to be allowed to intervene. When we ask the minister, "How is it that you think this clause is superior to what it was before?" he says,"Well, that's my legal opinion, that it's better," and in all deference to the members from this side of the House, he's going to buy what his legal opinion says.
That's fine; we can live with that if you go one step further, and that's to give us an indication of what that opinion is, what the content of that opinion is, so we can begin to understand either where we may be wrong or where the minister may be wrong. Because as I understand this process,
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it's designed in part to try to strengthen the clauses that are before the House. Surely people on that side of the House do not have a monopoly on all the ideas. If we can offer some suggestions to improve this clause, then it would seem to me that it would be only rational that the minister would embrace those suggestions. But we can't seem to get through to the minister. We get a curt answer based upon what's written down in front of him, which says: "My legal opinion is superior to what you're saying." We don't get to find out what the content is. Nor can the minister explain, either in legal lingo — and I understand he's not a lawyer — or in lay language, what that advice is so we can understand how it is that he's arrived at the conclusion that this section is superior to section 33 as it sits right now, particularly in light of the fact that you removed "exclusive jurisdiction."
It's frustrating when one of us asks a question of the minister and the minister just sits there silently and we have to deal with the situation I find myself in, not knowing where the minister is coming from, what the content is, and we're being asked to vote on approving a section. Will the minister indicate to us in whatever language he wants — legal lingo or lay language — just what the content of that advice is? Why does he think, with the elimination in the last section that we dealt with of "exclusive jurisdiction," that this section is superior as it appears before us now to what is contained in section 33? Why, Mr. Minister? Can we have an explanation?
HON. L. HANSON: I have a long legal opinion here that I'd be prepared to share with my colleague. As a result of a philosophy that we extended to our legal consultant, the amendment simplifies the current privative clause in the act. Such a clause restricts the power of the courts to review decisions or orders made by an administrative tribunal. The amendment will remove a conflict with decisions of the Supreme Court of Canada which held that a provincial legislature is not competent under the constitution to create an entity with jurisdiction to determine its own jurisdiction. The form of privative clause provided in this bill allows reviews by the court if the council exceeds its jurisdiction, either by exercising authority not given to it under the act or by breaching the rules of natural justice, which I said earlier.
The privative clause provided in the bill is not intended to allow unfettered review of the council's decisions by the courts. It is not intended to provide an avenue of appeal by the parties from a council decision or order. The parties cannot ask the court to rehear all the evidence and/or legal arguments, and come to a contrary conclusion which replaces the council's decision. For example, a court cannot intervene merely because it would have come to a different conclusion than the council.
A decision or order made by the council is the final word and is legally binding on everyone to whom it was intended to apply, unless the council has made an error which amounts to an excess of its jurisdiction. Only then may the courts intervene, and only to a limited extent.
Now to me, in layman's language, that says that when this privative clause is there, the courts will not be able to intervene unless there is a serious impairment of natural justice or unless the board has gone beyond its jurisdiction, as it relates to this statute.
MR. SIHOTA: I thank the minister for his response, and I'll thank him without editorial comment.
But let's then move along a bit. Let me ask the minister this question: which, if any, case prompted the change in the section? In other words, you have a section, section 33, which was doing a relatively good job. You now have decided to change it. I agree with my friend from Atlin, who says that if it isn't broken, then don't fix it. Now if that's the case, will the minister explain to me which decision, if any, of the courts prompted him to change the wording from what it sits as now in section 33 to what is being proposed for section 33? Were there any decisions of the British Columbia Supreme Court, the British Columbia Court of Appeal or the Supreme Court of Canada which, as a result of those decisions, the minister came to the conclusion that yes, this section had to be changed?
Let me just fine-tune that a bit. The other day when we were dealing with legislation — the social service tax amendments — the Minister of Finance (Hon. Mr. Couvelier).... There was a new section added, and if my memory is not mistaken, it's section 3.1. That was brought in in light of a decision which had declared certain native Indian bands to be exempt from the social service tax. As a result of that decision, the minister brought forward an amendment to capture that situation, to make sure the social service tax could be collected. Apart from the difference of opinion as to whether or not that should have been done, it seems to me that's the proper way of doing it. You have a section, you have someone challenge that section, you have a decision that as government you don't like, and then you bring in the legislative change.
Now here we have a section, and we also have a change. What I'm trying to find out is: what was the catalyst? What prompted the change? Were there any decisions of the courts? The minister says he's got his legal advice there, so I'd like him to go through that advice and tell me which, if any, decision prompted that change.
HON. L. HANSON: Mr. Chairman, the process that you go through to develop this is that you identify difficulties, and you have a lot of people who are giving you advice. Some you accept; some you don't. There were several instances given to me as examples of cases where there was difficulty with the old privative clause. I don't have those cases here with me, because I can't bring my whole office, but I'd be very pleased to provide the member opposite with copies of those cases.
The only demonstration that was needed by me was that in fact there were cases where there was a difficulty with it. When that was demonstrated to me — that there was a difficulty with it — then it seemed very reasonable to take the advice of the constitutional expert and provide the new wording.
MR. GUNO: Mr. Minister, we have also canvassed our own legal counsel — I mean, opinion.... We are lawyers, but there are lawyers and there are lawyers. At any rate, the combined effect of changing section 33 to include a final and binding clause, and the repeal of section 34 (2), is in effect removing the privative clause. That is the position that we take. A final and binding clause has been interpreted — or has usually been interpreted — by the courts to be not a privative clause. So the result of combining the changes and the elimination is really the deletion of an effective privative clause. I'm just trying to reiterate our position. As my learned friend has pointed out, we can shout across the floor and say
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our experts are better than yours, but I just wanted to put that in a nutshell.
MR. SIHOTA: Now I'm going to do something that I said earlier on I wouldn't do. It is once again a function of the frustration that we feel on this side of the House. I am advised that there haven't been any cases. There haven't been any decisions of the courts that would bring about the type of change that the minister is proposing. There haven't been any challenges to section 33 such as would warrant the radical change in language that's being proposed here.
There aren't any cases, Mr. Minister. Quite frankly, you don't seem to have a grasp of what's involved here. That's the feeling we get on this side of the House. I can go back to a comment that relates to credibility, which the minister made during question period, but you really have to wonder after a while what the motivation is for these changes, and who is putting these changes forward. There hasn't been one case that would invite this type of radical departure from the current language of section 33, and I'm shocked to hear that the minister thinks there may have been.
MR. SIHOTA: The minister says he didn't say that. The fact is that the minister referred in general terms to advice that he had been given from the Attorney-General's department and to conclusions they came to which led them to believe that this section ought to change. But those conclusions were not predicated on any decisions whatsoever.
I'll tell you something: if your principle is quite correct, Mr. Minister — that you don't want the courts to intervene — and recognizing that there haven't been any decisions which invite a change, then clearly the section should not have been changed. If you are going to change it and if you're going to change it in the way that you have, then either you have gotten bad advice or you are not being upfront with respect to the principle you're talking about. In other words, it is your intention to open this up to the courts. Again, you can't have it both ways. You can't bring about a change in the legislation and argue that that change will keep the courts out when nothing has happened to make one think that the courts are going to intervene.
You don't have a grasp of what privative clauses are all about, you don't have a grasp of what the court decisions have been all about, and you don't understand why this section is being changed. You can't offer one scintilla of argument in favour of the change. There hasn't been one case. There hasn't been one decision. There hasn't been one judicial pronouncement. There haven't been obiter on any decisions that would warrant a change as radical as this one. Therefore the advice you're getting is consistent with the views outlined earlier by the member for Atlin and the member for North Island (Mr. Gabelmann). That view is that you'll want to open it up to the courts; that you don't want the council, as it is going to be in the future, to have exclusive jurisdiction in these matters. If you didn't agree with that, you wouldn't have changed the section.
Credibility is an issue on this section. I say that with a tremendous amount of reservation, because I try not to get into personality attacks on this thing. But believe you me, it is very frustrating when someone reads a prepared text, some nonsense and drivel on background to the section, when it doesn't contain any reference to any material factor that would warrant the type of change. Credibility is in dispute, and that is becoming clearer and clearer as we go through section after section of this. I wonder, Mr. Minister, whether you are just a messenger for this awful legislation and this awful amendment, and it's somebody else who drafted it.
Amendment approved on division.
Section 23 as amended approved on division.
On section 24.
MR. GABELMANN: Very briefly, Mr. Chairman, this is the final of the series of sections that deal with the courts, and I just want to make the point that from the beginning to the end of them, we are opposed to the direction that the government is taking, and we oppose this section as well, although we do not intend to debate it at length.
Section 24 approved on division.
On section 25.
HON. L. HANSON: I move the amendment to section 25 standing in my name on the order paper. [See appendix.]
On the amendment.
HON. L. HANSON: The test in the bill for treating two or more businesses as a single employer was seen as being far too narrow to properly restrict double-breasting. The new test, which is "same control and direction," directs the council's attention to the key issue of who has the ultimate and effective authority to make the decisions which would run the company.
Of course, the second one is deliberate. Concern has been expressed to us that it was too onerous to require proof that an attempt to evade collective bargaining responsibilities was deliberate before a decision under this section could be made retroactive, and deleting the word "deliberate" we feel reduces the subjective element of the legal test to be met by trade unions attempting to protect their bargaining rights.
Just elaborating on that a bit, Mr. Chairman, the intent of this section is hopefully to allow for some investment that may have been precluded under the previous legislation — for people in a business or an organization to start another business which isn't the same business but could be seen, under the old act, as being an associate, which would allow them to be certified with a certification that was attached to the parent company.
While I know that the argument is going to come that this section does permit double-breasting, we believe that in the jurisprudence of the council, with the deletion of the "operational" and the "deliberate," it will free up investment to start other businesses but will in fact protect someone from starting another absolutely parallel company, doing the same business and so on, that is non-union.
MR. GABELMANN: On April 2, when Bill 19 was introduced in its original form, the minister said, among other things: "It does not permit double-breasting." He then was told that in fact the bill did permit double-breasting, both in this section and in section 29 of the bill or 53 of the Code.
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He brings in amendments and says to us: "The amendments now do not permit double-breasting." Mr. Chairman, the minister was wrong on April 2, and he is wrong today. If the minister did not want to allow for double-breasting, he would have left the language of the original Code untouched.
He attempted to provide a rationale in his comments now that dealt with the issue of investment — somehow section 37 of the Code has prevented investment in British Columbia. I wonder if the minister would give us a list — it doesn't have to be too long; several or half a dozen — of companies which legitimately were unable to invest in British Columbia because of section 37 of the Code; not companies which used it as an excuse for making a decision that they wanted to make in any event, but rather a list of investment decisions that honestly related to section 37 of the Code.
I'd like to have the minister at some point in this debate.... He'll have some time to get this from his office, if that's what he needs to do, because this section will take some time this afternoon. Our contention is based on advice from a variety of sources, including the man who, for all intents and purposes, administered the Code for the last few years and prior to that sat on the Labour Relations Board administering the interpretation of the language, Graham Leslie. He is quoted as saying this section and the other sections will in fact permit double-breasting. Just because Graham Leslie says it's so doesn't make it so, but many other people have said the same thing. There has also been a concern or an expression that this is only related to the construction industry, that the double-breasting provisions of the bill will only have the effect of deunionizing the construction industry.
We will this afternoon make arguments here which will suggest — and I think prove or demonstrate at least — that, in fact, these changes in particular, and others, will deunionize the industrial sector in this province too. I know for a fact that contractors in the forest industry who contract to TFL holders are slavering at the mouth — if that's the correct term — waiting for this change so that they can begin the process of deunionizing in the forest industry in this province the contracting that goes for TFL holders in particular.
MR. LOVICK: A gyppo amendment.
MR. GABELMANN: Yes, but I don't want to be flippant or minimize the effect of this particular change. It is a serious change, and for the minister to suggest that it will now not allow for double-breasting is simply to misread the case law and, in particular, the American case law, because the language that we're using here now has been tested for decades in the United States.
The test is clear; the results of the test are clear. There will be a variety of ways, and it's not just this section that employers will use. There are other ways in which they can get at it, but big employers will be able, under this section, to double-breast without question. Now I have asserted that, and I think we will spend the afternoon attempting to demonstrate that.
Before we get into a false debate, I don't think it's going to be very easy for small contractors who have a pickup and a half dozen people on occasion — nobody for a long time and maybe a job crew that is half a dozen or a few dozen or that kind of size of operation. I don't think very many of those operations will use this particular section to escape their unionized contract. I think we should make it clear in the beginning that those kinds of unionized contractors will use section 53 of the Code.
The big contractors — and here I'm talking about contractors who employ 50 or 100 or more people, particularly on a full-time basis — will have the door wide-open under this particular section. The test in British Columbia has been ownership in terms of determining whether or not double-breasting has taken place. That will no longer be the test.
The language now has been changed significantly by the change of the word "and" to the word "on." Previously the Code included words that said "common control or direction." The test, then, could be that if either one of those situations were present, then double-breasting was in fact prohibited. Either one: common control on the one hand, direction on the other hand. We have now gone to words which say "the same control and direction." So we have gone from "common control or direction" to "same control and direction."
I'm not a linguist nor a lawyer, so I can't tell the difference between the words "same" and "common." It seems to me they are pretty similar. So I ask people whose job it is to make decisions about what words mean, and I'm told by enough of them, from not just one side of the political spectrum but across the political spectrum, that the change is significant enough to make the test less rigorous, in changing from "common" to "same." But more importantly, the change of the word "and" to the word "or" in the new wording allows for either same control or direction.
AN HON. MEMBER: Now it's "and."
MR. GABELMANN: I'm sorry —"and." That's right. I'm making the point, though. You now have to have both. You now have to have same control and direction. It's one thing, and if you can't prove that you have both the same control and direction, you don't have an argument.
Mr. Chairman, there is no question that the financial control is no longer a test, as a result of this. Once you eliminate that financial element as part of the test, you open the door wide for double-breasting.
I'm not by a long shot the best person in our caucus to make this argument, because I find that using language like this that requires precise interpretation and case law to demonstrate what the words mean.... I find this a dreadful way to do business. I don't like it and so I don't pay a lot of attention to it, in terms of how I operate.
I would rather the government had a line in the bill that said we do not believe that businesses should be able to escape their union contract obligations by setting up another company or by operating in any form, and having general language like that that makes the intention clear. Get rid of this legal mumbo-jumbo. The problem is, we've got the legal mumbo-jumbo, and it allows — according to American case law, given this language — for double-breasting. I know the minister will stand up and say: "No, it doesn't." But when we are faced in this House, as non-experts attempting to have this argument, we point out clearly an obvious flaw with this process in trying to determine this legislation. We should be able to take these words and quiz people whose job it is to interpret these words as to what they mean, and arrive at a consensus about what the interpretation is likely to be.
You may have a different philosophy from ours, but state what your philosophy is and then let's get at it. What we've got now is a situation where we're going to have an argument about what "same control and direction" means or what "common control or direction" means, or a whole variety of
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possible interpretations of wording. I find that an invidious position to put us in on an important issue of this kind. Because if Graham Leslie is right, and if all the labour lawyers in this province are correct — I haven't talked to all the management lawyers, so I don't know what their view is — if all of the contractors who are out there just waiting for this section of this bill to be proclaimed are right, then the minister is wrong in his assertion that double-breasting will be prohibited.
If the minister is committed to his statement of April 2, which implied that he did not want double-breasting to take place, let me ask the question I asked before: why change the law? That goes back to the first point I made, and that is: where is the evidence that either disinvestment or failure to attract investment occurred as a result of this particular issue? I'm sure that the minister has had, over what will tomorrow be the last nine weeks, plenty of opportunity to marshal the evidence, to provide all of the case law, to provide all of the names of potential investors and the industries in which they failed to invest, and that he will give us all that information. I'm surprised he hasn't done that yet in debating this issue in the public forum, but he has an opportunity now to do that. If he doesn't, I will be left with the impression and a clear bit of evidence that what the minister asserts is untrue.
In the course of this debate we will be unable to prove, I'm afraid to say, what the IRC will decide the words mean. As a result of that, we will be unable to predict with any precision how much double-breasting will be allowed and which way double-breasting will be allowed. It's very difficult to predict that because the words don't give us enough clue. They give us enough clue, in my view, that there will be double-breasting, that there will be reinvestment by currently unionized employers establishing operations which are non-union and may not have both the same control and the same direction; they may just have one or the other, which will clearly open the door.
I know that the member for New Westminster (Ms. A. Hagen), who will follow me on this, will talk about how, in the forest industry, this will have a major impact on what is at the present time, in terms of the TFLs at least, a virtually fully unionized industry.
MR. CHAIRMAN: Hon. member, I'm sorry, but your time has expired under standing orders.
MR. GABELMANN: I'll defer at this point to the member for New Westminster.
MS. A. HAGEN: Mr. Chairman, I haven't been involved in the debate for a number of days, although I have been listening and following the debate with a great deal of care and attention. I'd like to begin my remarks by commenting on the member for North Island's last remark on the language we are debating and the actual intent of the legislation. I think that has been to a very large extent the subject of our discussions on this very major legislation. The government and the minister speaking on behalf of his government have spoken frequently on the intent of the legislation in broad terms. It seems to me very important that we understand the intent clause by clause. I consider this particular clause to be one of the most important, both in its own right and in the context of the principles which at various times the minister has enunciated. I want to note that in my remarks this afternoon I will be to some extent dealing with the principle of the bill, but in the context of this particular clause.
I hope that at some point, either through some questions I will ask or when I finish my remarks, the minister will again comment on his statements about this particular clause, clause 25, and what it does allow. But I am working from the premise that this clause does allow double-breasting. I'd like to begin, if I may, by just taking a case that has recently been before the Labour Relations Board on the issue of a common employer. I think it's a very likely kind of scenario in respect to the forest industry. We've noted all along, I might say, that in the analysis of this bill there has been an assumption that this particular clause and its potential for double-breasting will have the effect of deunionizing the construction industry.
But as I looked at the clause, and coming as I do from a town and an area where the forest industry has historically been and still is a very important part of the economics of that community, it seemed to me that the same kinds of reasons that would cause the deunionization of the construction industry would in fact apply to the forest industry, because there, too, we have many small operations. We have operations either in the logging division or in the sawmill divisions that are highly portable, where there is a tremendous amount of movement, where people are in and out of the industry, and where we have both large and many small employers.
I am not sure that I agree entirely with my colleague from North Island that this particular clause will not be used in fact to escape union certification and union setups, although I agree with him that it will certainly be tied in with the successor clause that we will be debating later on.
Let me just cite very briefly the case that I think could very well have been decided differently by the Labour Relations Board with this amendment. It is one where there is a logging licence being allocated to a local firm. It is an interesting case because there has been an Indian band involved, and there has been a concern to have successful logging occur in that area. It is in the area of Zeballos on Vancouver Island.
The particular logging company involved has a family involved in logging. What happened was that the son set up a separate company and tried to have it certified as separate from the company of his father. In fact, in that particular company that was set up the operation of the company was in the hands of the son. So I would presume that in that particular case we were dealing with that son having effective operational control, although that word is now gone from the language. But I assume that that's what we mean when we talk about control.
Now in the old Labour Code amendment we would be dealing with either control or direction. Now we are dealing with control and direction. The Labour Relations Board dealt with this case and its decision was that this was a common company, that the control was indeed in the hands of the son, but that the direction was coming from the father; that the father was providing advice, that the father was very much involved in the setup of this particular company. So in this particular case we had control in one hand, direction in the other. But because it was control or direction, either one of them, the direction caused, as I understand it.... I can't put it in legal language, because that is not something that I can do; I am trying to explain this very much from a lay perspective. Because the direction was coming from the parent in this case, this was one employer, and in fact the
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double-breasting, if you like, the two companies, were not allowed.
Again, we cannot interpret what the results would be for the Industrial Relations Council by that change from "or" to "and." It might very well be that in this particular instance, although the two companies very much had a common relationship, they would be seen to be different because the "or" had been removed. I think we would find in the forest industry — and certainly in my conversations with members of the unionized forest industry this has been expressed very strongly — an extensive process to deunionize that particular sector.
Mr. Chairman, one of the goals of this legislation is to be fair, to be democratic and to improve international investment. I have spoken in the House before about matters relating to health and safety, particularly as they pertain to the forest industry but to many other industries as well. The premise on which I am operating today is that it is healthy for our investment opportunities and for our forest industry to have a strong union sector. I'm concerned about any section of the legislation that would have the effect of preventing unionization of that sector or deunionizing any aspect of that sector that presently enjoys a certification.
The minister today received a telegram from Jack Munro, the president of the IWA, around this clause, and I'd like to take just a brief moment to read it into the record. It's addressed to the Hon. Lyall Hanson, Minister of Labour:
WE UNDERSTAND THAT "DOUBLE-BREASTING" CLAUSE COMING UP FOR DEBATE VERY SOON. THIS IS TO ADVISE THAT WE REGARD THAT CLAUSE AS GRAVE THREAT TO STANDARDS OF WAGES AND CONDITIONS, ESPECIALLY SAFETY STANDARDS, FOR WHICH LABOUR MOVEMENT HAS STRUGGLED FOR A CENTURY.
AS AN INDICAT10N OF THE SERIOUSNESS OF THE MATTER, WE REMIND YOU THAT WITH GOOD SAFETY CONDITIONS AND STRONG UNION SAFETY COMMITTEES, WE STILL KILL ABOUT 35 PEOPLE ANNUALLY ON AVERAGE IN B.C. LOGGING.
THERE IS NO QUESTION THAT THE DOUBLE-BREASTING, IF ALLOWED TO OPERATE IN B.C. WOODS, WILL KILL MANY MORE LOGGERS. WE URGE YOU, IN THE NAME OF SIMPLE SANITY, TO DELAY CONSIDERATION OF ANY MORE SECTIONS OF BILL 19 UNTIL YOU HAVE HAD YOUR FIRST OPPORTUNITY TO DISCUSS THIS AND OTHER MATTERS WITH THOSE WHO HAVE HAD SOME EXPERIENCE IN THESE FIELDS.
AS TO CAMP CONDITIONS THAT INEVITABLY WOULD FOLLOW FROM SYSTEMATIC DEUNIONIZATION, WHICH WOULD BE THE RESULT, IF NOT THE INTENT, OF THAT CLAUSE, WE INVITE YOUR CONSIDERATION OF THE OBSERVATIONS OF FORMER CHIEF FORESTER ORCHARD.
THESE ARE URGENT MATTERS — LIFE AND DEATH MATTERS — FOR MANY THOUSANDS OF BRITISH COLUMBIANS. TO PROCEED WITH THE BILL WITHOUT EVEN DISCUSSING THEM, OR CONSIDERING THEM, WOULD BE THE SHEEREST LUNACY.
It's signed by J.J. Munro, president, IWA — Canada.
Mr. Chairman, there's no question in my mind that unions are important in the forest industry. They're important for two reasons that are very dear to the heart of this government: the first is that that forest industry is still one of the major mainstays of the economy of our country, of our province. I think that has been reflected in some of the initiatives the government is taking around silviculture and reforestation, to ensure that that particular industry remains healthy. It has been demonstrated as well as we have looked at the countervail, which has allowed us to put the forest industry under a microscope and observe how productive and competitive it is in international markets. That's one of the reasons we have the kind of forest industry that we have today.
I want to deal, then, with two issues: the productivity issue and the health and safety issue. I'm going to start with the health and safety issue, because I know how critical this is to the forest industry. I know that studies indicate that where there is a unionized industry, the health and safety of workers is in fact much, much more successfully handled. I'd like to note for the record an article that I have used a couple of times in preparing for discussion of this issue in the House. It's from a magazine called Silviculture Magazine, the January and February issue. It's a fairly extensive article by Thomas J. Smith, who is with Simon Fraser University. It's a unique study, because to the knowledge of the researcher, it's the only study that has ever been done on tree-planting and silviculture in B.C.
Silviculture is a non-unionized industry. The accident rate in that industry is phenomenal: nine out of ten workers. Almost 75 percent of workers in any one year have some kind of injury as a result of their work in that field. The living conditions in which these people live remind me of the stories that I used to read about logging camps in the days before unions; they are living conditions that produce illnesses that I've never heard of, but that are really serious illnesses.
The point I want to make here, Mr. Chairman, is related to this whole issue. We have to debate the principle of this clause, the principle of double-breasting, and I think it's appropriate to debate it in the context of this clause. In the forest industry, the health and safety committees that exist within that industry exist because unions have gone in and have certified, even in the very difficult circumstances, people who are working in many different localized areas under common control or direction. The kinds of conditions that have developed as a result of health and safety measures have very significantly improved the productivity and the success of our forest industry.
Dr. Smith notes in his analysis of the forest industry, and again I would like to quote one brief section from his report: "My own collaborative analysis of hazard management in a B.C. logging company suggests that participatory management represents a promising organizational design strategy for improving tree-planting work."
MR. CHAIRMAN: Hon. member, I am sorry, your time is up under standing orders. Just before we proceed, hon. members, recognizing the particular importance of this section 25 and recognizing the desire on both sides of the House to comply with the requirements for relevancy, the Chair is going to call the question on the amendment to this section.
Shall the amendment to section 25 pass?
On section 25 as amended.
MR. GABELMANN: Now that we've had intervening business, I am sure the member for New Westminster would be able to continue.
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MS. A. HAGEN: I should have prefaced my remarks with the recognition of that amendment and waited until that business was out, so I appreciate your latitude in allowing the debate to continue on what is basically the amendment, now amended, of the Code and section 25. If I may go back to the quote, I will for the benefit of Hansard just pick it up again.
"My own collaborative analysis of hazard management in a B.C. logging company suggests that participatory management represents a promising organizational design strategy for improving tree-planting work. This project established that allowing loggers to participate more directly in decision-making with regard to operational, productivity and hazard management planning was associated with a dramatic reduction, over a five-year period, in job-related injuries experienced by workers in the company's six logging operations."
Mr. Chairman, the intent of this legislation is to improve the competitiveness of B.C.'s major industry within our marketplace; and the contention that I am making today is that in the forest industry, where certification is often difficult to achieve, it is to the advantage of our economy and of that very important industry in the economy to be, in fact, unionized. Anything that makes it more difficult to unionize or that enables small logging companies or large logging companies, through this particular clause, to move to set up parallel operations that are not union will, I fear, have an effect on the improving health and safety conditions that have developed in our forest industry as a result of that participatory management between the employers and the workers and their health and safety committees.
I'd like to raise one other point in the perspective of the productivity matter and to put on the record some information that I am sure is well known to the Minister of Labour, and I hope well known to the Minister of Forests and Lands (Hon. Mr. Parker) as well, that has come out of the analysis of the countervail duties. Again I am dealing here with the importance of this union sector and its having protection in the area of being difficult to organize because of its nature.
Over the past five years we have seen tremendous change in our forest industry, a change that has come about as a result of technology. I think it's acknowledged in this province that we have one of the most highly productive, efficient, economic and competitive forest industries in the world. That has come about as a result of a stable workforce, a workforce that has cooperated with management through the process of tech change and has produced some really phenomenal results in terms of productivity, the very thing that we desire to have to be competitive on world markets, but at the same time to maintain within this province high standards of living, service for our people, the generation of taxes, those conditions that are a part of a modem and sophisticated economy in the latter part of the twentieth century.
The figures I have state that in a sawmill in the interior, the average worker produces three times more in the way of production per hour than in equivalent mills in the United States. If we look at the total compensation package for that worker in U.S. dollars, the unit costs with a huge wage disparity are identical because of that productivity. U.S. dollar terms for that worker in an interior mill in B.C. would be $16; in a southern mill in Georgia or Alabama it is $7 or $8. But in terms of productivity — the cost of producing that wood — they are identical.
But look what that $16 does for the economy that we are seeking to nurture in this province, in the spending power of that particular individual, in the taxes that person pays and in the spinoff that occurs in the community in which that worker lives. That has occurred because of the stability of the workforce and because those operations are ones where working conditions and the collective agreements that have been developed have been developed for the benefit of the workers but also for the benefit of the employer, the community and the province.
Mr. Chairman, by opening up the potential for double-breasting in this regard, with the potential for changes in the logging industry, in sawmill operations and, of course, in the construction industry — which I haven't dealt with because it has already been canvassed, and I am sure other members will speak to that — we are opening up a process that will result in the very things that we have been talking about with other clauses of this bill: destabilization, a lack of security as far as the foreign investor is concerned, and a downturn in our economy rather than a nurturing of that economy to greater productivity.
In the health and safety area, no investor wants to come into a community where he is going to face WCB costs that are high or a workforce that is not looked after in terms of those conditions. No one is going to want to come in to an industry where that productivity is threatened by a destabilized workforce. I want to say very strongly that in the industries that will be affected by double-breasting, having a highly unionized, highly trained, highly productive workforce that works in a participatory way with its management would be to the advantage of our province. I am very concerned that the thrust of this particular amendment suggests, to all those who have examined it from its technical aspect, that we are moving to a destabilization of those working relationships and to an undermining of the conditions that have advanced health and safety working conditions in our forests and in other parts of the more dangerous injuries of the province.
This is an amendment that will counter the intent of the legislation and should therefore not go forward. I notice the minister has taken a brief and probably well-deserved break. I have some questions that I would like to ask of him, but I will stand down in deference to others who may wish to pursue this and then will ask some questions when the minister returns to the House.
HON. MR. STRACHAN: Mr. Chairman, I have listened intently to the hon. member for New Westminster, and inasmuch as quite a bit of her debate, discussion and evidence is centred around the central interior sawmill industry, which we all recognize is probably the most efficient in the world, I would like to respond.
The member indicates that section 25 is going to cause irreparable harm to the central interior logging and sawmilling industry. I really can't accept that. I can advise the member that the comments that she makes about comparisons between Alabama and Georgia are no doubt correct; we are far more efficient than those areas. But we also have to recognize that it is not necessarily because of a unionized sector in the central interior sawmills that we are that efficient. It is because of the tremendous capital investment that the owners and operators of those sawmills have made in their plants. I want, parenthetically to this, to state
[ Page 1550 ]
that modern technology and proper training has caused those mills to be so efficient.
A point I do want to make, because I don't want to be seen as union-bashing.... With that said, I'll advise you that one of the most efficient mills in Prince George, the Lakeland sawmill, is an IWA mill. When they modernized two years ago, the IWA and the principals of the company won a Canadian labour award for modernization in the workplace with the least impact on the working man. The award was a double award to the IWA — Tage Mogensen was the business agent at the time — and to the principal of the company. But there are many non-union central interior sawmills that compete equally on the North American market.
HON. MR. STRACHAN: Oh, yes, I'll agree. That's the point I'm trying to make. But you don't necessarily have to be IWA to have that type of efficiency, and there are many sawmills in Prince George that are not unionized, and they do equally well. They couldn't compete in the market if they were not efficient, if they didn't have a dedicated workforce and if they didn't have the capital investment that the company has made in modernizing the plant. So I cannot accept the argument that only an organized worker is efficient. All workers in that very efficient workplace are efficient. In terms of wages paid, they're competitive in both the non-union and the union mills. They have to be, otherwise the non-union people wouldn't be able to attract skilled workers to the plant. In some cases they'll actually pay a bit more, for pension and health reasons that I'm sure the members are aware of.
The other fallacy that I seem to draw from the member for New Westminster's (Ms. A. Hagen's) comment was about contracting on the logging side. I can advise the member that very, very few contractors in the central interior are unionized. They're mostly non-union, but they're competitive, they're extremely efficient, and they do an excellent job of harvesting and getting the wood to the mill. So I can't accept the argument that only union people can contribute to our efficiency or our good share of the American market.
There appear to be other concerns expressed by the member that I would be opposed to as well. One is that safety would suffer. The WCB is in place irrespective of organization of a sawmill. They simply have to be there, and therefore I can't see section 25 affecting safety in the workplace, whether it be in the mill or on the logging site.
I will not accept the notion that only organized labour can be efficient. Specifically, it's really the investment that's been made by the principals, by the sawmill operators themselves, that has made the central interior sawmilling industry so efficient. And with that said, I would urge all members not to be that concerned about section 25 with respect to the efficiency or level of opportunity for manufacturing in the central interior.
MS. A. HAGEN: Mr. Chairman, just to comment briefly on the remarks of the hon. government House Leader, I think it would be fair to say that the standards that we've been talking about have certainly been set by the unionized sector, both in the health and safety area and in the other areas. I would certainly think that his first example, the Lakeland sawmill, suggests that. I don't think there's any argument that those standards are set by the union sector — in wage levels, productivity, health and safety. I was making that point. Certainly there are others that compete in that same area.
I would like to comment on the assumption that WCB provides an adequate safety net. I know what its mandate is, Mr. Chairman, but the mandate and the delivery, we all know, are far removed from reality. The article, from which I quoted briefly, on the occupational characteristics of planting work.... We're talking about something in the order, I think, of 10,000 planters in the year ahead. The occupational safety record of that particular field of work in the forest industry is shocking, to say the least. The hazards that are a part of that particular occupation in the industry are well documented, and the history.... The point I am making here in respect to this particular clause is that there is a tremendous need for an organized workforce with participation of workers and management around the collective agreement and solid health and safety conditions to provide the conditions that we wish to have for productive, competitive and successful industry in the province.
I maintain, in the context of the remarks of the member for North Island, that it appears that double-breasting is to be allowed, however that will be interpreted by the Industrial Relations Council, and I think it is a backward step. It is unfortunate that we are moving to make it more difficult for the forestry sector and the construction sector to organize, to stay organized and to bring to bear on industry and business the standards that help to establish working conditions and economic conditions that are to the benefit of this province in the spirit of the legislation that the minister has been discussing with us for nine weeks.
MR. LOVICK: Mr. Chairman, I want to make my remarks under two separate headings, I guess. The first concerns language, and the second concerns economics.
First, language. My colleague the member for North Island (Mr. Gabelmann) stated to us that he had some difficulty grappling with the significance of the wording presented to us, the change in wording in the new bill as distinct from the old Code. As one who has a little expertise and a little background in that area, perhaps I can clarify precisely what we are concerned about with this wording.
The change is specifically from the phrase "common control or direction" to the new wording,"the same control and direction." Any student of language can tell you very clearly that the first phrase is restrictive and exclusive; the second phrase is expansive and inclusive. It is precisely for that reason that we read this clause — and indeed we have legal help that gives us the same opinion — to mean that this is indeed a door-opener to the concept of double-breasting.
Now we could solve the problem very quickly if we could get assurances from this government that the intention of this legislation is not — categorically, undeniably not — to allow double-breasting. Unfortunately, however, what we get is a statement from the other side of the House, from the minister — whose sincerity I do not call into question, by the by — that says: "As far as we can interpret, as far as we can understand, this does not mean double-breasting." I am sure that the minister can submit for our attention case law and statements from his legal advisers to support that claim. However, I would make the point that we on this side can present an equally compelling case with the same kinds of evidence.
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My statement about language can lead to just this conclusion: unless and until we can get specific assurances that have the force of law — in other words, an amendment to this piece of legislation — my colleagues and I will continue to stand and speak against this section of the bill, because double-breasting quite simply is not compatible with a free and flourishing trade union movement in the province of British Columbia. That is our contention; it is a contention we are going to argue again and again at every opportunity to state that case.
[Mrs. Gran in the chair.]
Let me then start by stopping, if you will allow that paradox, for a moment to ask the minister if he would care to respond to that first assertion about the language and why we conclude, we think with every justification, that this is indeed opening the door to the concept called double-breasting, namely the operation of union and non-union companies under the same ownership. Would the minister care to respond to that, first of all?
HON. L. HANSON: I guess first of all, the members opposite would have to agree that if we had wanted to allow double-breasting, we would have repealed section 37. It would have been very simple — and brought forward.
I think something else that's forgotten is that there's no concern, or at least nothing in this legislation that says that a organization can't be organized. What we're saying is that an employer in a union company should have the ability to start another company as long as it isn't a deliberate attempt to avoid his responsibilities under his collective agreement. He should be able to invest in another company. We have difficulty with some decisions that happened in the past that a common employer has been related to the fact that the son may have started a business. The intention.... I know you'll come back at me with that word, but my advice.... And I have to take advice. I take advice from my learned friend sometimes. The way I hear the member for Nanaimo (Mr. Lovick) speaking, if I ever have any difficulty with English, he is a person I'm going to go to very quickly. He obviously has great expertise in that area, and I admire the member's ability to debate.
Again, the ultimate test is going to be when the IRC makes decisions. Quite frankly, we believe that this legislation will free up some capital that may be reluctant to be invested because of a concern of a common control decree. We also are concerned that the relativity of a person starting a business should not be an automatic declaration that the two companies are the same employer. But by the same token, I'd like to point out that there is nothing in this section of the act that says there is a deterrent to anyone organizing a company. It appears to me that there's some misunderstanding about this section. It doesn't deunionize the industry. Nothing prevents the organizers from seeking to certify any new operations. That's absolutely allowed, and we would defend that right. I'm sure that those workers who see the benefits of organized labour and the benefits that accrue to it, as is explained to them before there is a drive for certification.... They will see the benefit of that.
The member for New Westminster mentioned some concern that there was going to be a serious decline in safety in the workplace. I think the member was predicating that on an assumption that this section of the bill would lead to deunionization of the industry. I don't subscribe to that conclusion. By the same token, I'd like to point out that the Workers' Compensation Board has a comprehensive safety regulation program, a comprehensive inspection program. It's well enforced by a number of people in the fields. As a matter of fact, if my ministry gets a lot of complaints, it's in the area of fines being levied against employers who have contravened the safety regulations.
It was interesting the other day, as far as safety is concerned. I had a long presentation from a group of forest industry people — and I'm saying forest industry now, not unionized or non-unionized; a combination of all — saying that statistics in the forest industry show that there has been a tremendous decline in injuries in the workplace. They were relating their concern to the rates set at the Workers' Compensation Board, but their charts and graphs showed that there was a considerable decline in the seriousness of the accidents as well as in the numbers, and therefore they were looking for a reduction in the rate. They were both union and non-union. So I'm not suggesting that there has not been a lot of benefit to British Columbia in the form of safety and benefits and that sort of thing as a result of unionization. I think that's good, and it should continue.
I think the member for New Westminster mentioned that for the people in the tree-planting industry there were great safety problems there. I don't know — not being the Minister of Forests, there may be some other difficulties with that. Again, I would say that in the tree-planting industry, the organizers should be talking to those people if that's a concern. They have every right to see if the employees wish to become part of organized labour, and I would defend their right to do that.
MADAM CHAIRMAN: The government House Leader wishes to make an introduction. Shall leave be granted?
HON. MR. STRACHAN: Madam Chairman, it is with great joy that I introduce 12 Girl Guides from Saltspring Island, the Fulford Harbour group, and their leader, Mrs. Gardom. The Girl Guides are visiting with us this afternoon to view the House in session and to earn their citizenship badge. I'll advise the young ladies that we're currently in committee on Bill 19; free-flowing, but nevertheless reasoned debate. That's why the Speaker's not in the chair, but we have a Chairman at the table. The mace is off the table and on the hooks, and that's what we're doing at this time.
In any event, welcome, and we hope you have a good day.
MR. LOVICK: Madam Chairman, let me begin my remarks by extending on behalf of the opposition the same kinds of greetings to the Girl Guide troop. I hope indeed that you all see some example of good citizenship in operation. What you're looking at now, of course, is the very ritualized and theatrical process of having disagreement within our society. That doesn't make it any less valuable; it's just that it's quite different, as I'm sure you've noticed.
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I want to begin by thanking the minister very kindly for his remarks and also for the compliments embedded in those remarks. Let me address some of the concerns that the minister raised. I'll be brief, because again I think it's precisely this kind of dialogue that is requisite and important for this House. If we are ever going to come together on this bill, if we ever are going to find some kind of compromise position and stand between our two sides, it will happen precisely because of this interaction, and I thank the minister for taking part in that.
To address some of the particular points the minister made.... I'm sure he noticed that I was rapidly taking notes as he spoke, and I hope I rendered his comments fairly. His first comment was that if indeed the government were concerned with double-breasting and wanted to introduce it, what they would have done, of course, is just repeal section 37. That strikes me as curious, because certainly if you want to give us assurance, Mr. Minister, that you are opposed to double-breasting, the obvious question is: why not leave the Code as it is? Why change section 37? Because it is precisely the changes to the Code that have everybody on this side of the House wondering what the intention is. That's the first point I would make.
The second point the minister makes is that what we are trying to embrace and enshrine in this bill is the freedom and the right of a particular company to start a new company as long — he stressed this, and I give him his due — as it is not with a deliberate attempt to effectively undercut or undermine the existing bargaining unit that is in place. That again, Mr. Minister, is what opens the door to our concerns and demonstrates why we feel so strongly about this section.
The terminology "deliberate attempt...." Because I think we know, and I've had occasion to refer to this before.... From past legal experience, from other cases, from precedents, we have discovered that to demonstrate a deliberate attempt is virtually impossible. We are therefore suggesting that that terminology, that wording, in effect is what sets an extra barrier and obstacle in the path of the trade union.
The other point the minister made that I'd like to refer to.... Again, I accept the ingenuousness of the proposition: namely, that the purpose of this bill, and indeed this section, is to free up some capital so that in fact owners of capital, holders of capital — or at least those with access to it, rather than owners necessarily — will perhaps invest in areas where they otherwise would not. I would just ask the minister to please consider why it is for just that reason that workers are apprehensive. Because, of course, if we're saying that what we're going to do is free up capital by amending the existing labour legislation, understandably and predictably workers are going to say: "Fair enough, fine; but at whose expense"? If the capital is now not being used, is now not in fact flowing into the economy, the argument must be: why isn't it? And the answer, predictably again, will be that because workers are appropriating too large a share, therefore capital has decided to sit tight or go elsewhere. Again, what we're giving then is a direct signal to workers that we are going to change the law such that capital will have more freedom to manoeuvre; in short, non-union companies.
I think, again, that isn't an inflammatory observation. It's certainly not intended to be. I think, rather, that is a logical conclusion that labour can and will draw from that statement by the minister. I think it's a logical and fair conclusion they can draw.
The business about the relation of one person to a company — the son or daughter. I think we all know the particular case in B.C.'s recent history that refers to. I think it's safe to say that what the LRB concluded in the past about that one is that the attempt did indeed appear to be deliberate; that it wasn't simply some coincidence that it happened to be the son of a particular construction company that happened to want to start another company.
So I guess what I'm saying apropos of that particular point the minister made is that too often we have seen the evidence where the family connection will be used as a means to create another company which is to directly compete with the unionized company. I think we need much more assurances than simply talking about filial piety, or some such thing, as the explanation for that.
The other statement the minister made is that this bill and this measure within the bill doesn't provide any deterrent to any one organizing, i.e. establishing a union in a workplace. I think that is simply transparently not the case. It is a difficult proposition at the best of times to get a union organized anywhere. Some of the reasons for that are sociological; some of them are political; some of them are economic. I'm not about to go into some kind of first-year industrial relations or sociology discourse, or some such thing, to explain that. I think we know that.
The point, though, is that why it becomes more difficult, given this measure, to get organized is precisely because what we do is effectively say to workers — if we allow union and non-union companies to function side by side under the same control and management and direction — who are not organized that you can apparently get virtually the same benefits without the responsibility and effort of organizing. Because organizing is difficult, it's hard to do. I speak from minimal experience on that, Mr. Minister, but I have a little bit. I know how hard it is to convince people that they ought to be members of a union, even if logically one can demonstrate your working conditions will improve, health and safety, wages over the longer term, and so forth.
The fact remains, it is difficult to do. What we're doing by setting up a possibility for parallel streams — union and non-union companies doing the same jobs essentially, which is what double-breasting of course allows for — is discouraging thereby the campaign for workers to get organized. I don't think there is anything esoteric, mysterious, abstruse or complicated in that. I thought I'd throw in a number of different words there, Madam Chairman, because I could see the member for Vancouver South was suddenly paying attention. I know he relishes the multiplicity in language.
MR. LOVICK: The other point that I simply cannot refrain from responding to.... I hear primordial grunts coming from other sections of the House, which is certainly what I'm more accustomed to hearing from certain parts of the House.
The other concern that the minister raised, and it simply must be responded to, is the business of safety in the workplace and the suggestion that, after all, we had laws in place and, more specifically, we had the Workers' Compensation Board in place.
Important and significant though those measures are, they are not a substitute for a hands-on, on the-jobsite safety committee by a trade union. As a former logger, as somebody
[ Page 1553 ]
who worked in the bush, I know that. And anybody else who has ever worked in construction or in the woods knows that's the case.
Let me put that in a context that I think we can all relate to. Some years ago I did some work on a coalmining history of Vancouver Island. As it happens, I didn't write the book, but I worked on it. One of the stories that the old miners told us again and again about working in the mines was that they always knew when the mine inspector was coming. They always knew by some mysterious process when that was going to happen, because suddenly the fire boss would take a little more time getting the guys out of there before the shot, before the explosion went off. Suddenly they'd clean up workplaces a little bit. Suddenly even the mules in the mine would be treated a little better, get a little more hay and maybe the odd carrot thrown in.
That's an old story, and it's obviously an anachronism, but the point and the message of the story is alive and well today. If you're competing in a tough environment and you know that somebody else down the road is going to be able to drag more logs out of the bush than you, at less cost perhaps, then the tendency is to cut corners. And workers will do that just as readily as managers. We as human beings, I think, can all get caught up in the excitement and the importance of the job we're doing. We don't care about the wages we're making and we don't care much while the job is going on about whether we feel we're being fairly treated. Instead, there's a job to do, and we want to get on with it. And all of us, I think, have been caught up in that. What happens, of course, as I say, is that you want to cut corners, and the pressure to cut corners is all the greater if somebody down the road doesn't have to abide by quite the same rules as you do regarding safety, the number of people working at a given job and environmental constraints, for example.
Government, using the Worker's Compensation Board, does all kinds of good things, but that usually happens after the fact. Government simply does not have the resources and the wherewithal, and I submit that the minister's government would be the first to say that we cannot afford to police every worksite in this province, because it would bankrupt this provincial treasury, and therefore we do not have WCB inspectors policing the site to the degree that ought to be the case.
Instead, we have the potential, obviously, for accidents to happen, and Lord knows we have sufficient evidence that accidents do happen. Indeed, B. C.'s labour history is a pretty sorry record of accidents — a record that some would argue is more than sorry; some would indeed argue that it's a criminal record of negligence. Until recently, frankly, we did not do a very good job of policing the workplace in terms of health and safety. To suggest, Mr. Minister, that the WCB is somehow a replacement for an on the-job, on-site group of people whose duty above and beyond what they are doing on the jobsite is safety is, I think, not a very good argument.
I see the chairperson is looking at me with suggestive glances. Is that a message, Madam Chairman?
MADAM CHAIRMAN: Well, hon. member, I don't think some of the language you've used is entirely appropriate.
MR. LOVICK: For example?
MADAM CHAIRMAN: Did you refer to the government with the word "criminal"?
MR. LOVICK: What I suggested, Madam Chairman, was that the history of policing the worksite in this province, until relatively recently, has been called by some"criminal in its negligence." I would suggest to you that any historian of industrial relations in this province would agree with that conclusion. I think the minister would agree with that conclusion.
MADAM CHAIRMAN: The Chair has decided that it isn't appropriate, hon. member. Would you continue.
MR. LOVICK: Thank you, Madam Chair. Those are, then, just responses to statements from the minister. I certainly have some other things, but perhaps the minister would like to respond to some of those counterarguments.
HON. L. HANSON: I thought your colleague was going to get up and give you an opportunity to continue. In any case, I think I mentioned in my remarks about the WCB that credit must be given to union organizations as it relates to safety in the workplace. I am not disputing that; I am just simply saying that part of the safety in the workplace — and certainly organized labour gets credit for their part in it — I think does have some relativity to the activities of the Workers' Compensation Board.
It is sort of interesting to note — I don't know the percentage, but I certainly could get the percentages if it was of interest — that most of the fines that are issued by the WCB are issued not as a result of an accident, although I believe there was a fine issued as a result of a young man killed by a crane truck or some kind of a truck coming in contact with electrical wires. But most of the fines that the WCB do issue are not as a result of accidents; they are as a result of inspections, which in fact are unsafe practices in the workplace. I was pleased to hear that the mules got special treatment when the inspectors came around, as an animal lover also.
HON. L. HANSON: I don't agree that a company forming another company to deliberately avoid their responsibility as it relates to their certification should be allowed. I believe that it will be absolutely caught in the wording in the act. But I do believe that a company should be able to invest its money in another kind of business without fear of having that certification go automatically. I guess I shouldn't say fear, but the members of that new organization should obviously have the opportunity to organize if they want, or they should have the opportunity not to organize if they want.
I don't believe that there is in this act anything that allows a parallel operation that is absolutely an attempt to avoid their bargaining responsibilities. I noted in the member's remarks that he was referring to the word "deliberate." I just wanted to point out that we have removed that word as a result of the amendment.
MR. LOVICK: But you said it, Mr. Minister. You just did.
HON. L. HANSON: Well, I know, but I am saying that we removed it in the text of the....
[ Page 1554 ]
HON. L. HANSON: We certainly subscribe to the view that we should not allow the setting up of another company to provide the ability of the individual or whatever to form a second company.
Again, we do want to liberalize the investment opportunities, and I think that there is a real benefit to British Columbia as a whole to make it as reasonable and enticing to start to invest their money in another operation. But we also believe that in the act we have protected those people who will attempt to avoid their responsibilities under their obligations for collective bargaining. Again I guess I have to say that the ultimate test will come when the Industrial Relations Council's decisions come down as a result of specific cases and specific circumstances.
MR. RABBITT: Madam Chairman, I would like to commend the minister on handling a very delicate subject with some very delicate legislation.
We have heard over the last few days, dealing with this particular bill and various segments of it, about the history of labour and the struggle in labour. I can assure you that over three decades I have been involved in making part of that history. I have been involved in part of that struggle. As a matter of fact, Madam Chairman, I have spent more time serving on a picket line than I have serving as an elected member for my constituents.
I think that when addressing the bill, I want to look at how it is going to affect my particular riding. I have looked at the forest industry, and I've heard different comments today as to how this legislation will affect the forest industry. Even if double-breasting was allowed — only under very stringent regulations is it — I ask any of the members here if they can see a mill operator going out and spending $20 million to establish a new plant in order to bypass the IWA. No, it doesn't make sense, does it? It doesn't make sense. In the bush, out of the thousands of employees we have in that riding, we have approximately nine that are unionized, and not one of those individuals have addressed this to me with any concern.
If we go through the industries — whether it be agriculture or tourism.... You're not going to have a lodge completely relocate to get around a union contract, to void it. We have to see how it's relevant to the union movement and to our own riding. I look at the mining industry. We have the largest copper mine in Canada in my riding. That copper mine is unionized, and it's operating smoothly. They cannot pick up that ore body and move it somewhere else and try to double-breast another company to go in there. We have to look at the realism, and in many cases the realism in the job place is that this legislation will not change the working place; it will not change the conditions which these people are working under.
There is one area and one area alone — and that is the construction industry — where this will have any possible effect. And in my riding that's the heavy construction industry or the road-building industry. I believe that the minister has addressed this. He is not going to allow a deliberate attempt by an employer....
MR. RABBITT: He is not allowing in the legislation.... It is spelled out. And I would suggest to the hon. member that if there was abuse, I would be the first on this floor to see that that abuse was changed at the next sitting of this House. I personally feel that there are scare tactics being put out there in order to posture, in order to see that the ranks of supporters are kept in tune. But I wish to say that in all my years of union involvement, I did not feel that using workers in the workplace was a way to obtain a political goal.
The latitude that's needed is to allow for the establishment of a parallel industry, if that is needed, that could possibly have expertise from the construction field. But again I say that there will not be allowed by this government a deliberate attempt to void a union agreement.
I don't feel that the opposition owns the ground that the union movement walks on. In the last few years — you can check with the Minister of Highways (Hon. Mr. Michael) — on the major construction that happened in my riding, the non-union companies started getting more and more of the contracts awarded to them. I can see in my riding that if this is not addressed, we're going to see the erosion.... One of the major employers in my riding is a union employer, a union road-builder, and I believe the numbers are that on phase 3 of the construction, of the last six contracts that have gone out five are non-union. I do not support this concept at all. I want to see the jobs remain in British Columbia for British Columbian workers, and I'm sure that my colleagues do as well.
I think that the latitude has to be established so that when people do decide to enter into another avenue — another company — they aren't stamped automatically such as they have been in the past, and I think this legislation delicately addresses this particular problem.
I'd like to conclude, Madam Chairman, by stating that I'm not a lawyer. Although I've spent many, many years working in the labour movement, I'm not a lawyer. I do take for granted some of the advice of lawyers, and I do feel that the minister has worked very strongly to take the advice of some very knowledgeable people to correct a very serious problem.
I would also suggest that this legislation will do more to strengthen the union movement than it will to harm it or to kill it, such as is being indicated by some members that have spoken to this already. I would defer to the hon. member for Vancouver South to speak on that particular area.
MR. G. HANSON: I want to rise on section 25 and register my opposition to this clause, as we've registered opposition to the entire bill. But first I would like to say I really found the previous speaker's remarks quite incredible, because I gather he was a steelworker at one point, or was in the mining industry and a union in the valley up in the Yale-Lillooet area for many years. It's always a mystery to me how individuals with that kind of hands-on experience at the working level in an industry can pop up on that side of the House.
We did have a member from Kootenay who moved on, as that member for Yale-Lillooet will move on after the next election. The large unionized mine that he referred to prefers to have a union to deal with. They prefer to have predictability in their contract so that they can sit down, have a tough round of good-faith bargaining, and then sign on the dotted line and try to make that contract work for whatever the duration of the contract is.
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It's in the employer's interest to be able to speak with one voice to their workers, to have an agreed-upon set of working conditions, hours of work, pay and all the inputs that go into running an efficient operation. They prefer to deal with a unionized company. No large mines in North America really want to have scattered, fractious units within their workforce. It's not in their interest to have that kind of working relationship in modern society. They just don't want it.
I'm standing because I have a great deal of respect for the unionized construction industry in the province of British Columbia and the unionized workforce. I think the quality of their work is very high. Oftentimes people who have been assigned to come in to be the superintendent or the chief officer on a large construction project are coming in from the United States or elsewhere, and many of these large corporations are trans-national. They will have a person in charge coming from the United States or from Britain or from somewhere else to take over a project, and they always assume that they're working with a unionized operation. They prefer to operate on that kind of professional basis because they have a clear, high standard of work. The predictability in the way the project will proceed and the reporting procedures on time and on budget are just the way things are done.
I think the philosophy that underlies this bill and certainly this clause is that the Social Credit Party is really not very supportive of unions, period.
MR. R. FRASER: Wrong again.
MR. G. HANSON: We're lucky to be very close to the provincial library here, with very excellent reference indexes and so on. Look at the statements that Social Credit MLAs make through the course of their political lives with respect to.... When they mention the term "union," it's generally derogatory. It's usually about bosses, bullying and so on. It's clear; just check the references.
MR. R. FRASER: Didn't I just hear the first member for Victoria referring to individual members of Social Credit — not the party, but the members?
MR. G. HANSON: MLA members.
MR. R. FRASER: Yes, so it seems to me that it was a derogatory remark. I think it should be withdrawn.
AN HON. MEMBER: Get serious.
MR. R. FRASER: I am serious; it's unparliamentary.
MADAM CHAIRMAN: I want to thank the first member for Vancouver South for the point of order, but the Chair really doesn't think that the member for Victoria said anything unparliamentary.
MR. G. HANSON: This section, as has been pointed out by our debate leader, has an impact that has not been previously fully recognized. It could have an impact on the forest industry, the mining industry and other large economic sectors in the province.
But I'd like to address a few remarks about the building trades. When the minister made his initial presentation in this House, as I recall, in his introductory remarks he said: "The House will be pleased to know that this is not extreme legislation. We are not introducing any sections that have received some speculation in the press that we may be dealing with double-breasting and allowing companies to deunionize, and so on." In fact, the language effectively does that. It deunionizes the construction industry.
I don't know why the minister would want to do that, because my reading of it is that the building trades have put a great amount of their own resources into apprenticeship and training and into educational and safety programs; the quality of the work is high and the reliability factor is high. We have generally recognized competent and highly trained building trades people in this province. I don't understand why this minister would want to undermine and place at risk their total organization. Because my remark to the member for Yale Lillooet (Mr. Rabbitt) that large corporations that are undertaking projects, dams, construction projects of some magnitude.... They don't want to be dealing with a multitude of bargaining units, non-union here, union there, all the problems with the proliferation within the workforce. That does not promote a strong and effective modern industrial economy. So why would the government want to be undermining one of our most stable and best-prepared workforces? It just doesn't make sense.
I think W.A.C. Bennett had a better sense of the importance of having a strong building trades and construction industry than this government does. This government seems to be catering to some middle-level non-union entrepreneurs. It's not really setting its goal for a balanced industrial relations climate, big or small. It's a series of chocolate-chip cookies for the non-union construction industry that is trying to grow and to decertify and create opportunities for other organizations to decertify and drive wages and building standards and safety standards down.
In whose interest is that? The public's? No. It's substandard construction. It will create stress and conflict between ordinary British Columbians who want to earn a living.
I believe the minister's ancestors, some time back, came from Scandinavia. Isn't Scandinavia showing us the way in many respects? Almost everyone in Scandinavia, whether in a professional grouping — like lawyers, doctors, dentists, professionals of various sorts — is in a union. "Union" is not a bad word in Scandinavia; it is a modern word. It means everybody is at the table; everybody is having a say and having some discussion about what their appropriate apportionment shall be in the economy. But here there's the notion — and we hear it all the time — that unions are too strong, and unions had their day way back when, etc. Nonsense. In the modem industrial state, as demonstrated by West Germany, Scandinavian countries and Japan, people are unionized. They are organized so that both the employer and the union can undertake the necessary training and reporting networks so that production is efficient and safe and there is a value to the economy.
Why are we lurching back, as the member for North Island (Mr. Gabelmann), our debate leader, has indicated, to the 1840s and 1850s, into some notion that somehow the economy is more efficient if people are not organized? I don't understand it. The modem examples of countries that are leading the way in living standards, productivity and innovative ways in which production is organized are beating us, and here we are....
When I was in elementary school I learned that British Columbia produced raw resources and that we had very little
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secondary industry. I learned that in Tecumseh Elementary School at 41st and Victoria Drive in Vancouver, and it hasn't changed much since. We learned in grade 1 social studies that British Columbia caught fish and sold fish in the round.
AN HON. MEMBER: That's grade 11.
MR. G. HANSON: Grade 1.
MR. R. FRASER: How long were you there?
MR. G. HANSON: Just a month or two.
The harvesting of timber, with very little value added.... Yet we have industries where the unions are themselves undertaking enhancement of their own people's skills. The operating engineers, for example, run extensive training schools for operating in a safe and efficient way, with all sorts of equipment and so on. They're faced with a government that wants to deunionize their industry and drive their wages down. A fact of life for unionized workers is that they don't work 12 months a year. They normally work — when the job is available — perhaps three, four, five, six, seven months a year, and there's downtime. An hourly wage as publicly interpreted sounds astronomical, but on a year-round basis it's not, by any stretch of the imagination.
What I want to ask — and this more of a philosophical question related to section 25 — is this: if the minister basically wants to see our economy streamlined, its performance enhanced, competing with the world leaders, which are northern Europe, Japan and parts of the United States, why would he not want a highly organized workforce and to encourage and promote the organization of the workforce into a more efficient body, rather than have it become fractious and a proliferation of random units that, by definition, are less efficient?
MR. R. FRASER: Madam Chairman, I would like to join this debate and make some references to the comments just made by the first member for Victoria, suggesting that we did not approve of unions or union members, which is not true. It's conspicuously not true, because members of unions vote for members on this side of the House; otherwise we wouldn't be on this side of the House. It's conspicuously obvious that union members support us.
We talk about what this bill will do. My experience with the construction industry tells me that this bill will be the salvation of the unionized construction industry. If we were against the union movement, we would leave things alone and unionized construction would totally self-destruct. This is the saving grace. This is the opportunity and the hope. I'm in favour of unions and collective bargaining. This is an opportunity that we need and have to have. If this government were anti-union, nothing would be done. This is a salvation stroke.
We talk about training and safety. Those things are great, and if the union movement is as good as it says it is, which I think it is, then they'll build to outcompete and overproduce like crazy, and win over and over again. It's productivity we're talking about. We're not talking about knocking wages and conditions and safety and this and that. If the union movement is as constructive, positive and productive as I think it is, they'll survive — because of this bill. This will help them survive. It's a positive move.
I've been in the business for a long time. I had a unionized company that was involved in the construction industry; I know what I'm talking about. This is a good move: an opportunity for capital to move into different businesses if they want, an opportunity for people to accept capital as they might not otherwise have done, a chance for employees to join whatever union they want, at their choice. What more could you possibly want than an opportunity like this? Not only that, you have a minister and a government who will make changes — as we've seen, amendment after amendment — as a result of the union movement saying: "Would you change this and would you change that?" It's been done.
I personally was opposed to the idea that an apprentice could come into a company and stay there forever and not join the union. I was opposed to that personally. It's gone. Thank goodness. It's a good move. There are still some things that I would change. I don't have a preference for abstention because of religious belief, in fact. However, we'll see about that. It's time to work on some other changes as well. But I'm telling you that this bill, including this section, will save the unionized construction movement, because we want it to be saved.
MR. GABELMANN: I happen to have in my hand....
MR. R. FRASER: Do you want more?
MR. GABELMANN: No, thanks. The only thing that went wrong in the last five minutes, Madam Chair, was that the minister didn't take the customary option to go out for a cigarette — or some other reason for leaving — which he normally does when the member for Vancouver South speaks.
I happen to have in my hand the application made by the Concerned Contractors Action Group to the Labour Relations Board in April 1985 that the member for Vancouver South, although he may not have been aware of it, was actually talking about. These contractors, in their presentation — which I'll get to in a minute — tried also to make the point that if we could just have double-breasting, then we would save the unionized construction industry in this province, which is an incredibly convoluted argument and one without any foundation whatsoever, as is evident if one only reads the 49 pages of this brief.
But before I get to it and quote from it, I want to quote from the first paragraph of an article on page B3 of today's Sun, just to set the stage for this particular....
MR. R. FRASER: That's research?
MR. GABELMANN: It's as good as you're going to get this afternoon.
"Some of the most controversial elements of Bill 19 come from a group of private sector consultants under the direction of the Premier's office and not from a high level labour ministry committee set up to prepare a new labour law, Labour Minister Lyall Hanson confirmed Tuesday."
I want to quote from a brief that I just referred to that was an application to the labour board on April 22, 1985, made by the law firm that wrote this legislation, Jordan and Gall, because I think it's important. This particular application was signed by Peter Gall, not by my friend Don Jordan. I think it's important
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to know what it was and what it is that the authors of this legislation wanted it to accomplish when they wrote it over the last few years, following their first attempt, which failed in 1983-84 because the Premier made a personal decision that he did not want these changes to go through at that time. Of course Jordan and Gall and Peter Archibald and others persisted and managed to worm their way into the good graces of some parts of the bureaucracy of this government, and they managed this time to be successful, because no one with the will of a Bob McClelland or a Bill Bennett was present in cabinet to say no to them.
What is it that Peter Gall and Don Jordan want section 37 of the Code to say?
"A common employer declaration should only be made where there is actual as opposed to potential common control or direction over two companies and there is a definite loss of work suffered by union members. Section 37 should not be applied in the construction industry where two companies are being operated in a separate and independent manner, regardless of whether there is common ownership or other links between the two companies."
This application, interestingly enough, was for a declaration on the part of the LRB that section 37, even as it was worded in 1985, should allow for double-breasting.
"We submit that it is well within the powers of the Labour Relations Board to institute the above-summarized approaches to sections 37 and 53. No legislative change is required."
The board later on, in a decision dated February 1986, denied the application of Jordan and Gall on behalf of the CCAG, Concerned Contractors Action Group, and made the suggestion, under that legislation, that the remedy was in fact in contract language and not in the purview of the Labour Code. So I just want to set the scene a little bit here. We had a law, section 37, that had been in place for, at that time, 11 or 12 years in British Columbia. We had a situation where the current advisers to the government — and, in my view, the drafters of this particular section and others — argued that even under that law, double-breasting in the construction industry could be and should be allowed by the labour board. They argued essentially on economic grounds that — and I can't read the whole of the 49 pages — the nature of the industry had changed, and therefore the board should view the issue differently.
The board decided that this application did not have merit. So what is the government's response to all of that? The response is to get rid of the Labour Relations Board — its structure, its apparatus, its people, its everything — and set up an entirely new process. The response, in addition to that, is to bring in weakened language. I assume that this bill went through Social Credit caucus, so the member for Yale-Lillooet (Mr. Rabbitt) should know what he is talking about when he made references to a large unionized construction company in his riding — obviously Emil Anderson, which is the largest unionized contractor in Yale-Lillooet that I know of — and made it clear that he was concerned that Emil Anderson and perhaps other unionized contractors only got three, I think he said, out of six contracts let recently.
He was concerned that the three non-union bids, by implication he was saying, were from out of province, because he wanted to see the job stay here in British Columbia. Well, the logical conclusion to that is to allow Emil Anderson to double-breast, so that he can get all the contracts, and that what we need to do is allow our local companies to be able to compete against these foreign — i.e., Alberta or points east — companies who come in and underbid B.C.'s unionized contractors.
MR. GABELMANN: I think he is saying I am twisting what he said. But you can't read it any other way. He wants the jobs to go to B.C. workers. He thinks that Emil Anderson is being outbid because it's union; therefore Emil Anderson should be able to double-breast in order to compete with these non-union Alberta contractors. However, that is an aside in terms of the point I am wanting to develop at the present time.
Further on in this argument, which we need to recognize is an argument relating only to the construction industry, Jordan and Gall talk about the National Labour Relations Board, which is the U.S. labour board. Remember, in United States law, unlike in Canada, most of the responsibility for governments of labour-management relations is federal and therefore governed by the NLRB. They say:
"Of course, in the United States, the advent of non-union construction began much sooner" — by implication, than herein B. C. — "and the NLRB has recognized the fact that there is a strong non-union presence in the construction industry in its approach to the issue of whether two companies constitute a single entity for labour relations purposes. The approach of the NLRB has been that as long as the two companies are kept separate operationally, there is no reason why a union contractor cannot become involved in a non-union company, even to the extent of owning 100 percent of the shares of the non-union company."
"We submit that in light of the changed nature of the construction industry in B.C., this is the appropriate approach for our Labour Relations Board to take to the application of the 'common control or direction' criterion in the construction industry."
They argue further in this presentation that even with the old language, the 1985 language, the board was beginning to move in the direction which would have adopted that principle which I have just enunciated. They cite some of the decisions. Then on page 39 of this application.... This is the final quote from it that I want to read. They say:
"If the board allowed unionized contractors to form non-union companies to compete against these few non-union companies, it would have only served to encourage the growth of the non-union sector. The non-union sector is now quite large, and growing tremendously. There is no longer any point, then, in the board taking a restrictive approach to the ability of a union contractor to participate in the non-union marketplace that has developed."
This is the philosophy of the concerned contractors. Clearly, because we know from speeches made by these lawyers and by other presentations and by conversation with them.... We all know that it's their own philosophy as well. "There is no longer any point, then, in the board taking a restrictive approach to the ability of a union contractor to participate in the non-union marketplace that has developed." That's the philosophy of the guys who wrote the bill.
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While I may not be able, as a non-lawyer, to demonstrate — I know I'm not able to — in a legal fashion the conclusion that we come to, which is that these words will allow for double-breasting, I think it is obvious and almost axiomatic that the changes are sufficient to accomplish the goals sought by Don Jordan, Peter Gall, Peter Archibald, the concerned contractors and others who wish to allow for double-breasting.
If I'm wrong about this — if I'm wrong that these guys had a major say in the development of this language — I would ask the minister if he would be prepared, then, to table the 600 presentations he has so far refused to share with this House, with any of its members or, of course, with the public. Because within those 600 presentations, unshared with the public, or the 700 that were received, are formal presentations made by Jordan and Gall and, of course, many, many others. I believe we won't be able to prove from the tabling of those documents whether or not the actual wording was inserted into the legislation directly by this law firm, but I suspect we would go a long way towards having evidence that this is the kind of wording they feel will meet the objectives that they said they wanted in this 1985 application to the Labour Relations Board.
I've referred in passing to the fact that the Labour Relations Board turned down this application and suggested the remedy was in contract language, and I'm suggesting that's why there was a renewed effort on the part of anti-union individuals in our society to get this kind of change into the legislation. If the minister wants to deny this, and he may.... I'm making an allegation, and he may deny it; we then get into the question of demonstrating who is right. If the minister wants to deny that Don Jordan and Peter Gall and others of that persuasion philosophically in our society actually had some major input into the wording of this section and of section 29, which we'll get to soon.... If he wants to tell me that they did not, and that this wording came instead from the normal course or the normal process of the bureaucracy or came from this public hearing process that was held earlier this year, then I will accept the minister's word — when he tables the 600-odd briefs or presentations that were made to him that he refused to table, refused to give to me, despite a personal assurance to me from one of the authors of this legislation, another deputy minister, on April 2 that those briefs would be made available to me.
Now I can't hold a deputy minister accountable, nor do I want to, but I assumed that the deputy minister — and it was not the Deputy Minister of Labour — was speaking on behalf of the minister, because that deputy was doing the briefing on this particular bill, even though he had nothing to do with the Labour ministry.
The assurance was given that those briefs would be provided. The minister later wrote me a letter saying he would not provide those briefs. If the minister wants....
MADAM CHAIRMAN: Hon. member, your time has expired.
MR. GABELMANN: Okay, I'll finish the sentence. If the minister wants to persuade us that these changes did not come from the pen of Don Jordan and Peter Gall, he should table those briefs and submissions.
HON. L. HANSON: Madam Chairman, I think what the member opposite, as it relates to the briefs.... I think he is saying part of it, not all of it. Certainly all of the briefs that were presented in the public hearings.... I believe you did get a copy, did you not? Yes. I'd be most happy to give you any copies that you wish of the briefs that were submitted by mail, provided that the people who sent them to me agree to it. I would also be pleased to give you a copy of the names and addresses of the people who submitted those briefs. Quite frankly, a number of the briefs said that they were confidential and they did not want to be....
Again, the member opposite is suggesting that two individuals wrote the bill. I'm not suggesting that I'm going to reveal anyone who wrote the bill. I'm also going to reiterate that I had advice from all kinds of the world — all kinds of British Columbia, I guess. As a matter of fact, a number of representations that I received on that double-breasting topic said very simply,"Repeal sections 37 and 53 in the Code," and I certainly wasn't prepared to do that.
MR. GABELMANN: The minister was instructed by the Premier to go out and seek opinion and report back to the Premier and to this House on public suggestions for changes to this legislation. Having received submissions — some through public hearings, some through the mail, some in various other ways — the minister is then suggesting that that public process is only one-seventh public. Only 100 of the 700 briefs that were submitted in the public hearings are public. Soon after October 22 — from early November on — the public knew that there was a public process of review of labour legislation, and it was invited to make submissions. Many in the public chose to make their submissions at the hearings; others chose to make their submissions to the minister.
There is no way that you can consider submissions in response to a request for a public process of review of legislation as able to be held confidential if they had any bearing on the results that show up in this bill. I'm suggesting that a confidential process between some lawyers, not just two.... The minister suggested that I said two. There are more than two.
AN HON. MEMBER: Name names.
MR. GABELMANN: I've named three names. No need to do it again.
Because it is clear from the philosophy held by these individuals, because it is clear from the confirmation of the minister that he admits that some private-sector lawyers helped to write the legislation, I'm suggesting that this Legislature which is dealing with the results of that private submission has a right to see what it says. I contend that the philosophy of those particular management lawyers, whom I talked about by quoting from their presentation, is reflected in the changes that we see in front of us in Bill 19 and its amendments. It's clear to me that they feel that these changes are sufficient. They felt that the original wording, which by the minister's own admission is tougher and more restricted....
MR. SERWA: That's speculation.
MR. GABELMANN: It is not speculation. They state categorically in their application to the board — an application that must have cost the concerned contractors several thousands of dollars — that in their view the old wording of
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the law would allow the board to make a determination which would allow double-breasting. They have achieved loosened wording; looser wording now obtains.
MR. LOVICK: Less restrictive.
MR. GABELMANN: Less restrictive wording — thank you — now obtains. No doubt these same management lawyers, some of whom no doubt we will see as members of the IRC before long if they can afford to take that kind of pay cut down to a hundred grand a year or so.... Some of these same people will be now be in a position of administering a less restrictive clause, the ones who argued that the more restrictive clause didn't restrict double-breasting in the construction industry.
So what have we got? All we have to go on at the present time is an assertion by the minister that double-breasting will not be permitted, although we have an implication or more from the member for Yale-Lillooet (Mr. Rabbitt) that what we need is to allow these guys to be able to compete with the non-union guys from Alberta. The only way they can compete is by going non-union. I'm talking about the Emil Anderson construction company.
So what do we have here? We have two sets of assertions, the minister's and ours. Is it any wonder that people whose livelihood will be affected, people who have trained and worked union all their lives when there are jobs, particularly in the construction industry, feel that their jobs are out the window?
They can read. They can read Don Jordan's and Peter Gall's representations. They know what the philosophy is of that sector of the management lawyers in our society. They know that these guys helped write the bill; if not actually wrote the bill, at least helped to write it and certainly influenced it considerably, to understate the case. Is it any wonder that people are concerned that double-breasting will take place?
We are in this invidious position where all we can do is have a debate of assertions. I'm hoping that by tomorrow morning, after the members on that side have had an evening of fun playing ball, they will be in a ...
MR. LOVICK: They'll be in a mood to play ball with us.
MR. GABELMANN: ...mood to play ball with this Legislature. I thought there was a ball game with the press tonight, but maybe the cabinet members don't know about it. It must be the back....
MR. WEISGERBER: Wrong again.
MR. GABELMANN: Not tonight, eh? Well, just to digress for a second so we can sort this out, we were advised earlier today that the House would like to adjourn at 5:30 or, at the latest, 5:40 in order to allow members of the government to....
MR. GABELMANN: Well, I'm delighted to stay here.
MR. GABELMANN: It's only the Premier's office that's playing ball. Now that's a switch. No 5:40, Mr. House Leader?
HON. MR. STRACHAN: The Premier's staff.
AN HON. MEMBER: As usual.
MR. GABELMANN: Well, as usual the Premier's staff won't play ball with its caucus. As usual, the Premier's staff won't play ball with the cabinet. Well, well.
Madam Chair, I am sorry to take time of the committee with what obviously was an error on my part. I did think there was a request that we adjourn early this evening.
I hope that as this debate continues we can.... I am not going to do it on our side; the member for Esquimalt-Port Renfrew (Mr. Sihota) will attempt to do it. I hope that we can have a debate about some of the legal points so that we can have an absolute guarantee before this section passes that no form of double-breasting will occur in British Columbia. When we have ascertained to the satisfaction of this House that this section and the other sections will guarantee that double-breasting will not take place, as was promised on April 2 by the minister, then I think we can proceed with some dispatch to the rest of the sections leading up to section 62.
I think it is important that the minister begin that process of giving us the precise legal precedents that he believes will enable the Industrial Relations Council to refuse — in effect, the reverse of what the application will be — to allow for double-breasting; they will declare that those companies are common employers. We haven't had that assurance from the minister in any way that is meaningful. The only thing we can go on is the philosophy of the people who obviously wrote the bill. Until we get that clarified, we are going to have some problems in getting through on this section.
MR. S.D. SMITH: Madam Chairman, I rise in this discussion in committee essentially in response to the first member for Victoria (Mr. G. Hanson). I think he said he couldn't understand how anyone who was previously connected with unions could show up on the government side of he House. He went on to say that historically he found members of this party made references to union "bosses" and were basically anti-union. That was the thrust of his comments. Madam Chairman, I can't allow those comments to stand unchallenged in any way, because the member is gravely in error in that regard.
The truth of the matter is.... I will use only the experience of the constituency I represent, and that constituency, the constituency of Kamloops, is one of the most highly unionized constituencies in the province of British Columbia. It is not possible to be asked to represent the people of that constituency without demonstrating that you can earn the support of the people who are in the unionized sector in that riding. So it is the case, I would suggest to that member, that one of the things that.... What he said really opens up a broader discussion of an attitudinal difference here. Somehow he and those he represents think they have an ordained right to speak on behalf of one group of our society and that the rest of us are somehow not entitled to do that. And he's wrong. The people in my constituency are highly unionized. They expect their representatives to represent them in that regard. But they don't expect them to represent them to the
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exclusion of everything else that may come before this House or any government.
When I look at some of the discussion that's been going on, particularly around this section, it's interesting to me because there is a notion being advanced that as a result of the words contained in section 25 of the bill — the amendment to section 37 of the Code — somehow the unionized construction sector is going to disappear in the province of British Columbia.
I know the first member for Vancouver East (Mr. Williams) wants to get into this debate. I'm sure he will, but I'm kind of looking forward to getting into debate with him on the estimates of the Minister of Forests, because I think that is where his true colours will probably come more to the fore than they will before then.
In any event, there is an attitude here that the unionized sector is going to be destroyed and will not be able to get jobs in the province of British Columbia. I'm one of two people who represent the constituency where the battle of Kerkhoff was fought a couple of years ago, and I can tell you that the last major government contracts that were let — the hospital, the jail and the major contracts on the Coquihalla Highway — were all unionized. They're competitive. The union sector has been competitive for a good long time, and it will continue to be competitive, and it will not be dependent upon this section or any other section in any piece of legislation that we have around us.
To get specifically to this section, we've been talking about where we get our legal advice and so on. The minister has been asked to receive some sort of gratuitous legal advice from the member for Esquimalt-Port Renfrew (Mr. Sihota). I would like to commend to the minister that quite often I have noted that gratuitous advice would have been worth just about what he's paying for it. So I would urge him to be cautious.
MR. GABELMANN: An old line.
MR. S.D. SMITH: I know, we use it all the time.
I have here a document that I got when I met with the president and members of the labour council in Kamloops to discuss this bill. He shared with me some of the concerns of Rilkoff and O'Neal, who are the secret advisers to the member for North Island (Mr. Gabelmann). In regard to section 37, Rilkoff and O'Neal's greatest concern was that the bill — before your amendments, Mr. Minister.... The bill requires not common direction or control but the same operational control or direction. Their point, from their own legal advisers, was that the word "operational" was in the bill before you amended it. You have taken that out, and that has, it seems to me, brought the parties back into a position more akin to where they were prior to your discussion with members of the B.C. Federation of Labour and Mr. Gautier, who was also concerned about that word "operational."
To get back to another statement that the member for Victoria made about union bosses and about how we and others get concerned about some of the things that go on in the movement on a day-to-day basis that create a reputation that is not seen to be healthy and even-handed, I would point out to him that I had delivered to me today what turns out to be a blacklist. It is a document prepared by someone with a list of all the bus drivers in Victoria who went to work yesterday on the bottom, and on the top the Times-Colonist story about the people who went to work. That little document was put on the dashboard of every bus in Victoria this morning.
The purpose of that, of course, is to draw attention to the names of those individuals in order that they might be blacklisted and in order that harassment could be brought against them. I would urge the first member for Victoria — and I will share that document with him — to stand up and be certain that he advises those people who were part of that group that he as a member of this Legislative Assembly will provide them with all of the defence that they need if that harassment does take place as it is intended to be done by that piece of paper. Many of them are your constituents.
Madam Chairman, I want to say in conclusion — ever so briefly — that the document that Mr. Rilkoff and Mr. O'Neal have prepared indicates that the word "operational" was the thing that they were most concerned about in relation to section 25 of this bill, and you have removed that. I want to reiterate that I disagree very strongly with those who say that this kind of thing is going to eliminate the union sector in the construction industry, because it is not. Those are the kinds of things that were said back in 1983-84 and so on, and it hasn't happened. In fact, the union sector is very competitive.
I want to say, finally, that when you stand and say that people on this side are anti-union and that you don't understand how anyone who has any relationship with a union can show up on this side of the House, you are oh so very wrong. The people in my constituency, where we do have a very strong union movement and where the union movement has contributed mightily to the community and still does, recognize that you are wrong. They have recognized that you are wrong in almost every election since 1933 — save and except one, in 1972. And they would have recognized the wrongness of your position had they had an opportunity to see the former Minister of Forests in action prior to 1972 rather than after 1972.
MR. LOVICK: I guess I will call this part 2, Madam Chairman. When I spoke earlier my focus was on language, and the argument I presented was to demonstrate why it was that people would logically conclude that the language in this section of this bill opens the door to double-breasting. Sadly, the previous speaker either did not hear or did not comprehend those arguments, because he hasn't addressed them. Moreover, it unfortunately seems the case that other members who have spoken subsequent to those remarks have not addressed that issue. I asked the minister, I think in a very civilized tone, whether he would indeed provide us with the assurances that people are asking for; namely, that the intention here is not in fact to make it more likely that companies can double-breast.
Instead, what we hear is the same old argument: "We assure you this is not our intention." But the language, however obfuscatory, however difficult to decipher, is simply legal terminology, and we're stuck with that. I am suggesting that that is not a good argument. Indeed, it is an admission, in effect, of the case we have presented.
So much for the language argument. The second argument that I did not get to earlier and that I want to reintroduce now is the economic one. When I listened to the previous speaker talking about the fact that somehow, in this marvelous world he envisages, union and non-union companies can function together happily ever after, thank you very
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much, I begin to wonder if we're not dwelling in some kind of Alice in Wonderland environment. In simple economic terms, the writing is on the wall for the unionized companies. To be sure, in the short term a unionized company will be able, because of greater efficiency — perhaps better capitalization, perhaps better technology — to compete with its non-union other persons in the marketplace. In the longer term, however, the simple economic fact is that the deck is stacked against the unionized company. If you deny that argument, you have to deny the entire history and development of and justification for trade unions.
Trade unions, folks, are not simply fraternal societies that love to socialize together one and all; they're an economic means of getting what labour perceives to be its fair share in an economy, a share which they perceive — and they base the conclusion on experience — they would not get in the normal operation of the marketplace. I don't know why all the members opposite seem to be oblivious of that simple truth. They're trying to pretend somehow that there isn't an economic component to trade unionism.
I wonder if I can somehow put this in a context that everybody will understand. Maybe I can do so by making specific cases. Try this one out, Mr. Minister: does anybody here believe for a moment that what happened in India with Union Carbide could have happened in North America? Does anybody believe that American workers, educated and skilled to the degree that they are, would allow a plant to operate with minimal regard to safety the way it did overseas? The obvious answer, of course, is no, we don't. We know that one of the movements, in terms of working into the non-unionized sector, is precisely because we get — let's use the term bluntly — cheap labour. It may not be cheap labour in the extreme, as it is in the Third World, but one thing for certain is that it's cheaper labour.
The whole point of unions organizing is, as I say, to appropriate unto themselves a higher chunk of the product: to get more money. There are obviously other reasons, but that's a significant part. They do so because in the reality of the marketplace the pressures on wages are downward. The nature of competition, the nature of the market economy — and surely everybody on the other side ought to know this, given that you embrace the concept with some passion — is to cut costs to the margin. That's the supposed miracle of the marketplace. Well, what costs do you cut? Where do you cut? An obvious cost is a labour cost. If you're competing with somebody else who is not unionized, and you're paying $12 an hour and they're paying $8 an hour — which will happen eventually; indeed, the discrepancy will be wider — you as the unionized company are eventually going to go out of business. That's the essential concern people have about double-breasting.
Again, it's not an abstruse, complex or difficult argument. We could solve our problem right here today, Mr. Minister, in this debate if the minister would simply give us the assurances we have been asking for from the beginning. Declare to us in print, declare by way of an amendment to this section of the bill, that double-breasting will not be tolerated. Instead we have muted assurances from the minister that that is the case. I believe him; I accept his sincerity on that. The trouble is, as we have pointed out to members on the opposite side time and time again — and with quite, dare I say, powerful grounds — that your government, Mr. Minister, doesn't have much credibility when it comes to dealing with workers. That's why you had the one-day work stoppage; that's why teachers did what they did. They do not trust you when you say: "Believe us. We're looking out for your best interests."
If indeed you want to demonstrate to workers that there is no reason to be afraid of something called double-breasting, then change the legislation. Put it in very plain, precise, clear English that it will not be tolerated. However, you tell us you won't do that. We get no assurances that that will happen. We can conclude nothing other than that you're obviously not simpatico to that concept or idea.
I listen to my colleague from North Island talk about a particular legal firm and quote chapter and verse from a submission from a legal firm that tells us that even with the existing Code's language they can achieve double-breasting. Then we see this amendment, which is, as I say, to loosen the language, to give employers more room to operate. I ask: what other conclusion can we possibly draw than that the purpose of modifying and amending this language is to open the door to double-breasting?
I wish I were wrong. I really wish I were wrong, because I am one of those who like to believe that we have arrived at a particular point in the evolution of a modern society where we don't have to play the games; that the adversarial system in its rougher edges ought to be a thing of the past — not entirely, but in its rougher edges. But as long as we continue to see evidence from one side that they are going to try and redraw the map — not only function with the status quo, which is already to their benefit, but are going to try and change it so they have more power — then I despair about labour relations in this province. I despair that this government will ever change its mind and recognize that workers do indeed have the right to organize, and that the organization of the workplace is to the benefit of all of us, not just workers.
The House resumed; Mr. Speaker in the chair
The committee, having reported progress, was granted leave to sit again.
Hon. Mr. Strachan moved adjournment of the House.
The House adjourned at 5:55 p.m.
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AMENDMENTS TO BILLS
19 The Hon. L. Hanson to move, in Committee of the Whole on Bill (No. 19) intituled Industrial Relations Reform Act, 1987 to amend as follows:
SECTION 23, by deleting section 23 and substituting the following:
23. Section 33 is repealed and the following substituted:
Finality of decisions and orders
33. A decision or order of the council under this Act, a collective agreement or the regulations on a matter in respect of which the council has jurisdiction is final and conclusive and is not open to question or review in a court on any grounds.
SECTION 25, by deleting "operational" and "deliberate".