Friday 26 September 1997

Public Sector Transition Stability Act, 1997, Bill 136, Mrs Witmer  / Loi de 1997 visant à assurer la stabilité au cours de la transition dans le secteur public, projet de loi 136, Mme Witmer

Ontario Public School Teachers' Federation

Ms Phyllis Benedict

Mr David Lennox

Ms Christine Brown

Mr Terry Godwin

Ontario Federation Of Labour

Mr Ross McClellan

Mr Howard Goldblatt

Provincial Association of Ontario Fire Fighters; Ontario Professional Fire Fighters Association

Mr Bruce Carpenter

Sunnybrook Hospital Employees Union, Local 777

Ms Michelle Sherwood

Chinese Support Workers Network

Mr Daniel Yao

Mr Ken Cao

Ontario Council of Hospital Unions

Mr Michael Hurley

Service Employees International Union

Mr Ken Brown

Ontario Coalition for Better Child Care

Ms Kerry McCuaig

Ms Maureen Myers

Ontario Chamber of Commerce

Mr Wallace Kenny

Ontario Taxpayers Federation

Mr Brian Kelcey

Canadian Red Cross Society, Ontario Division

Mr Allen Prowse

Mrs Gabrielle Moule

Ms Deborah Clark

Canadian Union of Public Employees, Local 771

Ms Christina Duckworth-Pilkington

Mr Len Roach

Mr Rob Rolfe


Chair / Présidente

Mrs Brenda Elliott (Guelph PC)

Vice-Chair / Vice-Président

Mr Jerry J. Ouellette (Oshawa PC)

Mr David Christopherson (Hamilton Centre / -Centre ND)

Mr Ted Chudleigh (Halton North / -Nord PC)

Mr Sean G. Conway (Renfrew North / -Nord L)

Mrs Brenda Elliott (Guelph PC)

Mr Doug Galt (Northumberland PC)

Mr John Hastings (Etobicoke-Rexdale PC)

Mr Pat Hoy (Essex-Kent L)

Mr Bart Maves (Niagara Falls PC)

Mr Jerry J. Ouellette (Oshawa PC)

Substitutions / Membres remplaçants

Mr Jim Brown (Scarborough West / -Ouest PC)

Mr Steve Gilchrist (Scarborough East / -Est PC)

Mr Ernie Hardeman (Oxford PC)

Mr Tim Hudak (Niagara South / -Sud PC)

Mr Richard Patten (Ottawa Centre / -Centre L)

Mr Bruce Smith (Middlesex PC)

Clerks Pro Tem / Greffiers par intérim

Mr Doug Arnott and Ms Rosemarie Singh

Staff / Personnel

Mr Ray McLellan and Mr Avrum Fenson,

research officers, Legislative Research Service


Consideration of Bill 136, An Act to provide for the expeditious resolution of disputes during collective bargaining in certain sectors and to facilitate collective bargaining following restructuring in the public sector and to make certain amendments to the Employment Standards Act and the Pay Equity Act / Projet de loi 136, Loi prévoyant le règlement rapide des différends lors des négociations collectives dans certains secteurs, facilitant les négociations collectives à la suite de la restructuration dans le secteur public et apportant certaines modifications à la Loi sur les normes d'emploi et à la Loi sur l'équité salariale.

The Chair (Mrs Brenda Elliott): Good morning. The standing committee on resources development is called to order for the purpose of hearing witnesses presenting on Bill 136, the Public Sector Transition Stability Act.


Our first representatives this morning come from the Ontario Public School Teachers' Federation. Good morning and welcome. Please make yourselves comfortable. As I'm sure you know, you have 30 minutes for presentation time. If you would please introduce yourselves for the Hansard record first, you can begin any time.

Ms Phyllis Benedict: Good morning, Chairperson. My name is Phyllis Benedict. I'm the president of the Ontario Public School Teachers' Federation. With me this morning I have the first vice-president, Stan Korolnek; my general secretary, David Lennox; and research officer, Christine Brown.

The OPSTF has 32,000 members who work in the public elementary schools of Ontario as occasional teachers, educational and professional support personnel and contract teachers. Our membership includes teachers, librarian technicians, educational assistants, itinerant music instructors, school support counsellors, adult basic education instructors and several other groups. Our members are proud of what they do and proud of the high quality of educational services available to the students in the public school system with whom they work.

Because they care about quality education, they are alarmed at the way this government has gone about introducing changes to the legislation surrounding labour relations for the upcoming transition to the amalgamated school boards. On September 16, the government invoked closure on Bill 136 and announced that there would only be four days of hearings, and all of them in Toronto. This would appear to contradict the minister's earlier statement, which was: "I commit to you that there will be full public hearings. We will travel the province, we will be in Toronto and we will listen." We feel it has come up somewhat short in light of the subsequent events.

What is even more disturbing is the shape which this already truncated process has taken in light of the minister's recent announcements. Five days before the hearings were to begin, the minister suddenly rose in the House with news of major amendments to be tabled to Bill 136. So we ask, what do the amendments look like? We do not know, for we had been given to believe that the wording will not be tabled until after the hearing process has concluded. It is our experience and the experience of those with whom we have consulted that this is unprecedented.

Will the amendments meet the objections which labour has voiced to the provisions of Bill 136? In the minister's view, yes. The references to maintaining the right to strike and the elimination of the Dispute Resolution Commission and the Labour Relations Transition Commission are most welcome. However, we cannot assess the impact these changes will have on the transition process until we have seen the actual wording of the amendments. We cannot analyse a legal text which is written in invisible ink. The present process forces unions and employer groups alike to take up their crystal balls, turn the globes from side to side in their hands and try to discern what flaws and facets the glass may contain.

While we are genuine in our appreciation of the work of all members of this committee, we believe the government has made a mockery of this process. The Ontario Public School Teachers' Federation is obligated to monitor, analyse and comment upon all legislative developments which may affect its members. We are unable to do so in the present case, so we are here this morning to present to you our arguments.

With the passage of Bill 104, the Fewer School Boards Act, our employees also come into the potential for widespread disruption, which we will see in both the public sector as a whole and the corner which our employees who work for school boards occupy. Indeed, the disruption has already begun, as employees and management alike find more and more of their time engaged in sorting through large and small issues attendant upon the all-too-imminent changeover.

OPSTF would therefore be the last to argue that this government should not turn its mind to measures to assist those in workplaces where these transitions are to be made. In the school sector, measures should be made to have the least possible disruption in the delivery of quality educational services to students, a productive and enthusiastic workforce ready to take on the challenge of new structures and a sensible use of the public purse.

As any specialist can attest, the labour relations regime in any given workplace is an entity characterized by complex human relationships, competing interests and a subtle but none the less real sense of precariousness. Some labour relations situations are more stable than others, if stability is defined as a low incidence of strikes, grievances and other forms of industrial conflict. By this measure, labour relations in public elementary schools, where OPSTF members work, are remarkably stable. In fact, among the 65 OPSTF bargaining units which fall under the purview of Bill 136 there has never been a strike.

Nevertheless, OPSTF members value the right to strike. Contrary to the perception fostered by the Financial Post, public sector unions really do see the strike tool as a weapon of last resort. It is a cornerstone of those societies with any claim to calling themselves democracies. Remove this stone and the integrity of the structure is compromised.

The minister has indicated that free collective bargaining should remain the mechanism for the settling of contract disputes, rather than the creation of a tribunal whose impartiality may very well be suspect. We applaud these intentions. Furthermore, the minister has stated that upon restructuring, "the first-contract provisions of the Labour Relations Act would apply."

There are rumours that certain fetters may be placed on either arbitrators or the arbitration process. It is our view that the previous system of genuinely independent arbitration has served this province well. What makes any system of third-party intervention work is the fact that both sides recognize its legitimacy. However unhappy one or the other party may be with a particular outcome, both, of necessity, buy into the result. They do so because there is at least a perception that the process is fair, that it allows for input and the presentation of one's case, for the ability to fully know the case being presented by the other side, for a transparent and stable process and for adjudicators who, regardless of their leanings, are seen to retain minds open to the power of rational argument. We await legislation which addresses these concerns.

We welcome the recognition that the Ontario Labour Relations Board, with its broad and respected spectrum of panel members and its decades of expertise in the resolving of labour relations disputes, is indeed the obvious venue for the coming amalgamation exercises.

The fact that appointees to the OLRB hail from both sides of the great labour divide has been an important component in the public confidence which the board enjoys. The widespread perception that board members are able to make their decisions independently and without fear of reprisal is key to our shared understanding of the nature of justice. The alternative to a system which enjoys public confidence is chaos and a lack of trust in public institutions.

We would also like to point out that the labour board's workload is about to increase dramatically and that its funding has been cut substantially over the past few years. This is not a happy combination, given the government's desired outcome of a smooth and expeditious amalgamation process.

There are rumours that the labour board may be offered new powers and procedures to assist it in its new task. We would hope that any such initiatives would reflect the need to maintain the spirit of impartiality, due process and fairness which has served the province in the past. We await legislation which addresses these concerns.

In the area of seniority, one of the reasons why seniority is often the last item to be resolved at the bargaining table is the amount of care, creative thinking and attention to detail and nuance required in the crafting of appropriate language. No item in any collective agreement is more bargaining-unit specific than this one. Issues such as breaks in service, bridging provisions, the rights of part-time and probationary employees, the impact of changes in job classifications and the intricacies of bumping are but a few which must be given careful thought when seniority provisions are negotiated.

We would like to make a general comment, however, that given the intricacies of this question, cookie-cutter solutions will just not work. Unions have lengthy experience in sorting out these disputes on their own, as they arise regularly within bargaining units. Perhaps the expertise of the parties directly affected should be drawn upon in the first instance. Again, we will await legislation which addresses these concerns.

On pay equity and the Employment Standards Acts, the ministers announcement the other day that amendments are being considered in light of the recent judicial proceedings is a welcome one.

In conclusion, I know normally such presentations end with a few recommendations on the specifics of the legislation, but it's clearly out of the question for us to do so here today. Unions are often accused of being greedy and demanding, so we will fulfil the stereotype by concluding with a list of items which OPSTF members want.

We want the right to continue to offer the highest possible level of educational services for children in the public elementary schools of Ontario. We want minimal levels of disruption to our working lives as the government undertakes to reshape school boards. We want clean, safe schools with reasonable class sizes. We want the resources to enable us to do our important jobs properly. We want decisions about collective bargaining to be made in a reasonable and democratic manner. We want any third-party decision-makers who are brought in to be fair and impartial. Finally, we want future legislation to be given to us in written form.

The Chair: Thank you very much. You have given us lots of time for questions, about six minutes per caucus. We'll begin with the NDP caucus.

Mr David Christopherson (Hamilton Centre): Thank you very much for your presentation. I think I'd like to begin where you left off and reiterate, because according to the government members and certain other entities in society, you're all evil and you want to rob the taxpayer blind so you can have as cushy a life as possible, with total disregard for anything else. It's that bad when you listen to some of them sometimes, both publicly and privately.

You state in concluding -- this is the radical agenda you're demanding of this government: "...the right to continue to offer the highest possible level of educational services for children in the public elementary schools of Ontario"; you want "minimal levels of disruption" to your "working lives as the government undertakes to reshape school boards"; you want "clean, safe schools with reasonable class sizes." How dare you? "We want the resources to enable us to do our important jobs properly. We want decisions about collective bargaining to be made in a reasonable and democratic manner," and you want "any third-party decision-makers who are brought in to be fair and impartial."

There's got to be more. If you listen to the government, there's got to be more that you're demanding than just this. It can't be that straightforward, can it?


Ms Benedict: Yes, Mr Christopherson, it can be that straightforward. In our federation we have 57 bargaining units that will be affected by this bill, 57 bargaining units that do the most marvellous jobs within classrooms and outside classrooms. They're doing so in a manner that does not deserve to be disrupted. They need to know they have stability and they can go in and do it. Our list is very specific.

You're right: We've been challenged that our education in Ontario is at the caboose of the education train in Canada. I put to you that it's not. We're in the lead in very many cases and we will continue to be in the lead. We need the stability. The children in this province deserve that and their parents deserve that.

Mr Christopherson: You know, it's funny: Anybody who's been listening to these hearings, if they take a look at the submissions of just about every entity that represents public sector workers, a key part of their presentation is the importance they place on the service they provide, whether it's bus drivers or hospital workers or municipal workers, across the board; and we're going to hear from firefighters pretty soon, and I can guarantee you they're going to put up front the issue of their service to the public. That's what's so frustrating about why this government is doing what it's doing, what it attempted to do with 136, and God knows what's still on the books.

Given the fact that the government is claiming it is backing off because it's listening, why do you think the government introduced 136 in the first place, the way it was?

Ms Benedict: I would be the last person here to presuppose why this government does anything it does. We're questioning Bill 136; we're also questioning quite deeply the bill that was introduced on Monday. We can't figure that one out either other than that it looks to create chaos, to continue to create instability in this province. Piece of legislation after piece of legislation continually sets our public on edge, sets employees on edge, and in the education sector the impact, as we can see, is in the classroom. We just cannot allow that to happen.

Mr Christopherson: We've always maintained that John Snobelen actually should have been thrown out of cabinet right near the beginning for giving away cabinet secrets when he said he needed to create a phoney crisis. Not only has he managed to do that, but just about every other minister who attempts to do anything always puts up front: "We've got major problems. We've got a crisis on our hands and that's why we have to do what we're doing." They never bother to explain why it is what they're doing makes whatever the situation is worse. They just say the fact that they're doing something is supposed to be good in and of itself.

How much input did you have beforehand? The government says the reason the minister, after she lit the fuse of the time allocation on the Wednesday, got up on Thursday was because they were listening. We've suggested that had they met with the parties ahead of time, before they dropped Bill 136 on the floor of the Legislature, we could have avoided all this chaos, all this crisis, everything that has brought us to the brink of social disaster, quite frankly. Therefore, the obvious question is, did you have a chance to have input into the development of 136?

Ms Benedict: OPSTF has had as much chance to have input into Bill 136 as we have in any other piece that affects the educational sector. I challenge any minister who brings forward that they've had a full consultation process, because we haven't seen it and we haven't been part of it.

Mr Christopherson: I haven't found a labour leader yet who's had an opportunity.

Thank you very much for your presentation. I appreciate it.

The Chair: We'll move now to the government caucus.

Mr Bart Maves (Niagara Falls): Thank you very much for your presentation. I have several points and a couple of questions.

You talked about disruption in the amalgamation exercise and that the disruption had already begun, "as employees and management alike find more and more of their time engaged in sorting through the large and small issues attendant upon the all-too-imminent changeover." I would say that any change, whether our government undertook the reduction of school boards or a different party did, it's obvious that when you have a change like that, you're going to have disruptions. I don't think we would deny that's occurring. One of the major reasons for having this legislation in the first place is to try to help mitigate some of those disruptions.

I wonder if I could just ask you a couple of quick questions. We talked about how school board and municipal employees would go back to having the full right to strike they had before but that they would be covered by first-contract arbitration. I wondered if, when a new employer and bargaining unit come together, you support that existing arbitration process.

Ms Benedict: No.

Mr David Lennox: If I could just expand upon that, the problem you have is a difference between a group that is amalgamating, that needs to consolidate some collective agreements, and first-contract agreements. There are very distinct differences in this. I go back to 1969, when we had the amalgamation of school boards. Having been a negotiator of the first consolidated collective agreement for the Essex County Board of Education, we had about 28 collective agreements to consolidate. We didn't need first-contract arbitration. We sat down with the school boards and we put them side by each. We didn't get the best of all worlds, but we got a new collective agreement.

The difference here with regard to first-contract arbitration is that you have two or three strings out on the end of first-contract arbitration that leave some interesting power disputes. I think if we had left it straight to school boards and their employees to sort out their new collective agreement, you wouldn't have the anxiety that first-contract arbitration leaves you.

Mr Maves: There's quite a threshold to even get to first-contract arbitration, that there must be collective bargaining. The act, prior to any announced changes and even since announced changes, requires a great deal of collective bargaining before you could ever get to that process. That collective bargaining is still going to occur, in fact has to occur, before you'd ever get to that arbitration process.

In your experience with arbitration, do you believe that expedited choice of procedures, expedition of arbitration, needs to occur in some cases, and do you believe that the increased choice of procedures for arbitrators is a good idea? The police association the other day mentioned it's particularly pleased with the idea of mediation arbitration, that it would help disputes. Do you have any thoughts on that?

Ms Benedict: I would like to refer that question to our research officer, Ms Brown.

Ms Christine Brown: Not to belabour the point, but I think part of the difficulty is that we don't know exactly what you're looking at in terms of expedited arbitration. Expedited arbitration obviously means it's done quickly, and there is a certain logic to that, but until we see some concrete details of how that process will look, whether or not the arbitrators will be fettered, whether or not there will be the kinds of procedural restraints there were with the Dispute Resolution Commission or anything approaching that, I don't think we can give a thumbs up or a thumbs down to the idea. We're in a vacuum here.

Mr Maves: For instance, the police like the idea of mediation arbitration instead of just having a hearing process, almost a courtroom process on arbitration, that now they could mediate a lot of parts of their dispute beforehand. They thought it was going to be very valuable. That would be part of the choice of procedures that would be added.

Ms Brown: In general, OPSTF has a lot of experience working with mediators, and we're not closed to the process of mediation. It can often be very useful.


Mr Maves: I appreciate your comment, "We welcome the recognition that the Ontario Labour Relations Board, with its broad and respected spectrum of panel members and its decades of expertise in the resolving of labour relations disputes, is indeed the obvious venue for the coming amalgamation exercises." We appreciate that recognition.

You also said further down, though, "We would also like to point out that the labour board's workload is about to increase dramatically and that its funding has been cut substantially over the past few years." I want to assure you that the minister will be addressing this issue with the OLRB.

Finally, you talk in your brief about seniority. We've had a few presenters says that non-union employees shouldn't have seniority recognition. Do you take that view?

Ms Benedict: I'm sorry, would you repeat it?

Mr Maves: A few presenters have said they don't believe that non-union employees should have seniority recognition if they come together with unionized employees in the new bargaining unit. Do you take that view or do you believe they should have seniority recognition?

Ms Benedict: Looking from an educational perspective, with Bill 104 and the amalgamation of school boards, we are going to be facing that. Some of the groups that are coming together, we have non-unionized and unionized in various parts of the province. It's obviously something where we would move to unionize the non-unionized groups within OPSTF. Seniority rights, regardless, are going to be a horrendous problem in some places when you have so many existing ways of dealing with seniority. To come up with a reasonable solution is going to be quite difficult.

The Chair: We'll move now to Mr Patten from the official opposition.

Mr Richard Patten (Ottawa Centre): Good morning. What do you see as being the relationship between Bill 136 and Bill 160?

Ms Benedict: I could give you a very glib answer, sir, but I won't, because it's so serious in nature. We mentioned throughout our brief here this morning that what we want is stability. That's what the students of this province deserve; that's what the parents of this province deserve. The combination of Bills 136 and 160 is guaranteeing the minister's premonition of a crisis.

Mr Patten: Do you think both bills begin with a negative supposition of the employees?

Ms Benedict: My answer would be yes. When you are constantly being denigrated as a profession, that the work you do in the schools is just not good enough and you're told that repeatedly, and then you're faced with two pieces of legislation that in the government's minds confirm that, it's very difficult because you are always in defence of your profession and the fine job you're doing in the schools.

Mr Patten: I share that with you. It seems to me that many of these pieces of legislation are designed to find different avenues to take money back or to limit the transfers or expenditures of the government. I think this is one of the avenues that provide an employer, or a school board in your case, with another tool to try to balance the budget.

A number of representatives who made presentations felt that the government was in a conflict of interest because it was both controlling the purse-strings and calling the shot, and still adding the criteria to be applied if measures move to arbitration, that ability to pay and the capacity and authority by arbitrators to recommend the extent of service cutbacks, which to me says they will be fettered arbitrators, regardless of whether they're with the OLRB or not; or in the case of some of the essential workers, police or firefighters or hospital workers, those arbitration bodies will have new requirements they have to consider that they didn't have to consider before.

If you're worried about fettered arbitrators, what do you see in terms of what the minister has said, or what do you fear she might do that she said she might not do?

Ms Benedict: We're never quite sure, with this government, what they're going to do. Half the time the things they say they're going to do they end up not doing anyway because someone puts some pressure on them and they flip back on the decision. We also question the research. To give a fair answer to that I will refer to my general secretary.

Mr Lennox: Any time you're not using impartial arbitrators -- we're most familiar with the process we used under the Education Relations Commission to get arbitrators for our teachers. We've also used mediation arbitration under the OLRA. When you walked into that room with an impartial arbitrator, you knew you were going to find some wins, some losses and some relooking at things.

Our concern here is that the minute you start into any type of use of a panel that's subjective, that is government-appointed or government friends, they come with a preconception of what the goal has to be. When you have the criteria and they are set out in the School Board and Teachers Collective Negotiations Act as set out in Bill 26 on the ability to pay, then we know you've got your hands tied going in. To not even have an impartial arbitrator will make a circled mockery out of it, because they say you'll have the right to arbitrators, and here's a nice process, but it never gets any integrity into the process.

The Chair: Very quickly.

Mr Patten: I have two questions. I'll go to one.

The minister keeps referring to, "Ontario is overspending by $1 billion in education." While he never answers the question -- I'm amazed that interviewers on television who do the news can't pinpoint the minister when he doesn't answer the question, because they could go back to him. It's hard to even nail him down in question period. He says we overspend by $1 billion. Do you agree with that?

Ms Benedict: Having been part of the discussion group with the ministry officials when they came in to see if we could have some agreement prior to Bill 160 coming forward, the areas they are suggesting they can get their $1 billion are areas where this education system cannot take further cuts. If you look at all aspects of it, what it does is go back to reduction of services for our students.

It places our teachers and our educational workers in a very difficult situation. They are delivering service and delivering education now in difficult situations due to ongoing cuts that this government has done over and over again. To take out a further $1 billion is just absolutely deplorable. For them to suggest that we continue to take some part in the cuts for their $1 billion on the backs of other unionized workers in our schools -- I go back to the safe and clean schools, because that won't happen when they're considering going to outsourcing. The safety of our children is a primary question in our minds, when you have someone you don't know coming in to clean your buildings on a basis where there are no checks and balances.

Mr Patten: I have a document that disputes that $1 billion. I'll be happy to share it with you.

The Chair: Thank you very much, on behalf of all the members of the committee. We appreciate your taking the time to come before us with your views this morning.



The Chair: I'd like to call now on Mr Terry Godwin. Good morning and welcome to the committee.

Mr Terry Godwin: Good morning. I'm sorry, I don't have a printed text. I was notified last night that I was invited to speak, so I'm here somewhat bleary-eyed after putting a little presentation together.

I want to thank you very much for inviting me to speak on Bill 136. For the purpose of my conversation with you, I'm making a few assumptions. I'm assuming that the government is well-meaning and truly believes that Bill 136 is good for Ontario, and I'm assuming that those who are protesting this legislation are equally well-meaning. I'm assuming that the government hasn't sprouted horns and that its critics aren't naïve people who are "out of step with global realities." I'm assuming that a government which is eroding democracy in Ontario is doing so because it thinks its actions are necessary in the present economic circumstances. I'm assuming that the members of the government take no joy in slashing assistance to the needy and to the disadvantaged. I'm going to assume that the government is making these changes because of globalization, because it believes that for Ontario to say competitive in a global economy, Ontario must offer multinational businesses and those local businesses which compete with multinationals a favourable economic climate.

I shall take a look at the assumptions which underlie the belief that these drastic changes are necessary. Then I shall show how, in playing by the multinationals' rules, Ontario is not setting itself up to reap future prosperity but future chaos. Last, I'm going to suggest that this dance we do, this passionate conflict of debate, is absolutely necessary to wake up the populace of Ontario if we are not all to become indentured to economic institutions, the multinationals that care only for profit and nothing for our society.

In this excerpt from Tony Clarke's book, we can set the stage. Here is a brief look at these global economic circumstances in which Ontario finds itself and the direction in which they are taking us.

"In this new global economy, a massive transfer of power has been taking place out of the hands of the nation-states and into the hands of the transnational corporations. To compete for transnational investment, nation-states and governments" -- including Canada -- "have surrendered some of their key sovereign powers and strategic tools required to improve the economic, social and environmental living conditions of their own citizens. This power grab has been carried out through a series of 'structural adjustment programs' promoted by big business, including the deregulation of foreign investment and national economies, the privatization of crown corporations and public utilities and services, the negotiation and implementation of free trade regimens, the reduction of public deficits through massive social spending cuts, the erosion of national controls over monetary policy and the reduction of public revenues through lower corporate taxes and higher interest rates.

"Through the application of these structural adjustment programs, the role and powers of governments and citizens in a liberal democracy have been altered radically. It is no longer the prime role of governments to intervene in the marketplace on behalf of the public interest in order, for example, to stimulate job creation, redistribute wealth through social programs or ensure that industrial production meets environmental standards. Instead, the prime role of government is to serve the interests of big business by providing a favourable climate for transnational investment through lower corporate taxes, lower wages, lower social spending and lower environmental standards.

"As a result, the basic democratic rights of citizens to adequate food, clothing and shelter, or education, employment and health care, or a safe environment, social equity and decent public services are either being hijacked or rapidly eroded."

Is this the stage for Bill 136? Let me read a few lines from John Sewell's analysis of the role of the DRC in Bill 136. It's only about two sentences.

"Among other things, these factors put the DRC in the position of forcing municipal employees to accept the lowest wages paid in the private sector for comparable work. These principles will be used not to create labour stability, but to drive down wages in an insane race for the bottom, making all of our municipalities poorer places."

Certainly, this is a draconian piece of legislation, but do we have any choice but to fall in line with the rest of the global marketplace? The following selection is a look at the nature of this global economy. These are two short sections from John Ralston Saul's book The Doubter's Companion, under the heading which defines "global economy."

"Global economy: The modern form of ideology is economic determinism. It is presented as if neither the presenter, a coalition of interest groups, nor the receiver, the public, have any active role to play, because a global economy is going to arrive whether they like it or not. In this way, a complete ideological policy can be advanced without any discussion of its implications or any admission that it is an ideology.

"The global economy is a 19th-century concept dressed up in high-tech in posing as the future. The fundamental question which this raises is, how can the developed nations protect a century's worth of social progress unless they agree to cooperate in regulating both the transnational corporations and the international money markets?

"Passive acceptance of the global economy as an unregulated international demolition crew would mean a return to the past. Any use of the word 'future' as a concept suggesting economic advancement would require the consolidation of our social and economic progress over the last century by concentrating on new international agreements.

"So far, the Japanese and Europeans have treated the global economy as an ideological screen put forward by foreign special interests. They have therefore resisted its tenets. The American academic community, however, has tended to fall in line with its own corporate structure. As a result, the words 'global economy' are more often than not used by Americans as if they represented a disinterested truth. This passivity is mimicked in countries such as Canada and Britain, where the influence of American acolytes is strong.

"So long as the ideology disguised in the words 'global economy' has an institutional base inside western civilization, any sensible resistance will be undermined. That is why the 19th-century disorder promised by globalization seems to be inevitable, when in practical terms it is not."

John Ralston Saul is saying that perhaps this tidal wave of economic submission to the multinationals is not so inevitable. He suggests that societies must realize they are dealing with business entities whose overriding mandate is profit, not social welfare or the common good. This is okay. It's up to the people who work and play in these societies to direct their governments as to which parameters are necessary for society to function in a manner which will create caring and decent cultures.

Mr Saul indicates that we, the members of our society, must place controls, restrictions and regulations on transnational corporations and the international money markets. If we do not, we become slave to business entities whose overriding mandate is profit, not social welfare.

Let's take a closer look at transnationals. Again I read from John Ralston Saul's book.

"Transnational corporations": The seat of contemporary feudalism.

"The rational corporatist assumption of western education makes it difficult to face up to the return of feudalism. The technocrats, with their mechanistic ways, see all structural movements as inevitable. Structural inevitability is their replacement for the concept of the public wheel.

"Most of those who reject this mechanistic determinism see the transnationals as villains in an international plot. If it were only that simple.

"These complex structures resemble centipedes, with sections spread around the world. They have an internal logic tied to lower costs and higher sales. Their sections die, prosper, move or divide according to that logic. Local populations are of no concern. Nor are the local chapters of the serving technocracy. As with the medieval social order, it is the order which matters, not any particular holders of specific titles.

"The transnational has no direction or purpose. That is why it can benefit or destroy individual societies with equal disinterest. The whole system is a negation of the idea of civilization. Humanism and a citizen-based equilibrium are impossible in such circumstances."


Ontario will play this economic development game of the transnationals only so long as it can offer lower and lower wages and higher and higher profits to these economic entities. That is, unless and until the citizens of Ontario demand with the citizens of this country that restrictions be placed on the devastating operations of these profit-driven engines.

How can we hope to exert influence over these transnationals? Again, I read from Mr Saul's book:

"Theoretically, the counterweight to the abstract power of the transnationals should be a large national group. This may help, but not if used in isolation. International economic feudalism is based on the constant ability to shift investments or production from one national area to another in an ongoing auction for more favourable conditions. The ultimate weapon is the threat to decamp each time there is discussion of wage levels, job security, health standards, environmental standards or any standards at all relating to people and place.

"The feudal economy's power lies therefore in the patterns of production. The power of the concrete national groups lies in the patterns of consumption. In other words, the only realistic counterweight to economic feudalism is an agreement on common standards among a group of national areas sufficiently large to control the patterns of consumption. Consumption, after all, is the transnationals' source of income. The key to a corporation's success in the feudal order is not its ability to produce, however low the cost, but its ability to sell.

"The European Community is an attempt to create international standards through control over consumption patterns, but so long as the United States and Japan follow different rules, their group is not large enough. The free trade agreement between Canada and the United States, and NAFTA, Canada, Mexico and the United States, were both sold to the public with emphasis on the advantages to consumption. These treaties were really about patterns of production. They restructure large geographical areas to suit the methods of abstract economic feudalism."

Lastly, "The citizens' problem over the next few decades will be to control feudalism without denying the possibility of humanism. This means making use of the nation-state, because that is the practical, concrete shape of our existence as citizens, but using it in a cooperative manner to establish international agreements on standards which spread far enough to make them enforceable. If we fail, we'll soon find ourselves trying to rebuild society from scratch, having dismantled it in the name of abstract determinism."

David Suzuki, Canada's noted geneticist, environmentalist and author, once spoke of an encounter he had. He said he was very impressed by the advice he was given while he attended a meeting in the US. The gentleman to whom he was speaking had written a book on the state of the environment and environmental policy. That man stressed to Mr Suzuki that changes in environmental policy are not to be won by directly pressuring politicians. The politicians, he explained, could only respond to their constituents' demands. He urged Mr Suzuki therefore to try to change environmental policy at the grass-roots level by educating the public. The man who gave this advice to Mr Suzuki was in a position to know about the workings of political life. He is the vice-president of the United States, Al Gore.

If we both understand that we must avoid the fate which Mr Ralston Saul and Mr Tony Clarke describe, then we must inform the public. Perhaps one very useful way to alert the public is to create much white heat here. I shall leave that theory to others who are much better at it than I, but it is absolutely necessary that this drama take place, and as loudly as possible.

In conclusion, many citizens have complained about one part or another of this bill, but if the government believes that this bill is necessary for economic reasons and conditions which go far beyond the scope of this bill, then one part or another is viewed by the government as a necessary evil to achieve prosperity in the future. So the criticism falls on deaf ears.

What I have tried to do here is to clarify that the believed underpinnings for this government's hope for prosperity for the future are false. Marching to the tune of the transnationals only invites a downward spiral of societal and social decline. It invites chaos.

I encourage you as representatives of your constituents, about whom you care deeply, to seriously analyse the very basis upon which all this legislation is being enacted. If you find, as many do, that the future you are currently leading Ontario into will be a desperate, frightful one, then please join with us in order to find a better future for our children, a future in which we work with, not for, the transnationals.

The Chair: Thank you very much, Mr Godwin, for your presentation this morning. Unfortunately, there isn't time for questions, but on behalf of all the members of the committee, I thank you for coming. We appreciate it was short notice, but we thank you again.

Mr Godwin: As long as the optimism is based on fact.


The Chair: I now call upon representatives of the Ontario Federation of Labour, please. Good morning, gentlemen. Welcome. Please introduce yourselves for the Hansard record.

Mr Ross McClellan: Thank you, Chair and members of the committee. My name is Ross McClellan. I'm legislative director of the Ontario Federation of Labour. With me is Howard Goldblatt, from the law firm of Sack Goldblatt Mitchell, who has been acting as our solicitor as we move through the Bill 136 process. I've asked Howard to join me to talk about some of the technical aspects of the impact of Bill 136 on public interest arbitration.

First, let me say there's been a fair bit of conversation about the process between the labour movement and the ministry. I just want to make it clear that it's been a process of conversation; it has not been a process of negotiation. We have not been mandated, nor have the ministry officials been mandated to negotiate a mutually satisfactory outcome. In fact, that hasn't happened. Our position has not changed, even though the government's position has changed. Our position is set out in our document, which was distributed to you this morning. We want to spend a little bit of time talking about some of the major concerns we have about Bill 136.

Just so you're clear, Bill 136 represented a major affront to fundamental principles of freedom of association and democratic rights and a fundamental assault on the integrity of the public interest arbitration process. There are still major concerns, even after the government's restated position.

Our position, to recap, is that Bill 136 is totally unnecessary, that the broader public sector was thoroughly capable of dealing with all issues arising out of restructuring, mergers and amalgamation by relying on the existing system of free collective bargaining, the existing system of interest arbitration and the existing system under the existing statutes including HLDAA and the Ontario Labour Relations Act.


I've also distributed a letter from the director the United Steelworkers, District 6, Harry Hynd, and a letter from the president of the Ontario Federation of Labour, Gord Wilson, both to the Minister of Labour and to the Premier. The assault that Bill 136 continues to represent has to do with the integrity, independence and neutrality of the Ontario Labour Relations Board and the public interest arbitration process.

If I may, I want to focus just for a minute, before I turn things over to Mr Goldblatt, on the government's approach to the Ontario Labour Relations Board. When we talk about the independence, neutrality and integrity of the Ontario Labour Relations Board, we're increasingly required to use the past tense. That's because of the actions of the government over the past two years. First, the government fired the chair of the Ontario Labour Relations Board. Let me quote from the letter:

"The attack continued with the unprecedented termination of four vice-chairs in 1996. These vice-chairs, three of whom had union backgrounds, were terminated without notice and in the midst of their term of office as vice-chairs. In the entire history of the board," Mr Hynd writes, "I understand that no vice-chair has been terminated in this manner.

"Furthermore, it appears that the decision to terminate these vice-chairs was not made entirely by the chair of the board. It appears that the government, and particularly the cabinet, played a part in the decision both to terminate the vice-chairs and in the decision as to who was to be terminated. This is unprecedented."

If I can digress from the letter, apparently a list was presented to political officials in the government. Some people were chosen and some people were delisted. Going back to the letter:

"While your government was terminating members of the OLRB, your government was also attempting to interfere with the appointments of vice-chairs by making them 'at pleasure' appointments so that they can be terminated at any time.

"This last effort appears to have failed when opposition at the board and elsewhere apparently persuaded your government to amend the 'at pleasure' appointments to the normal three-year-term appointment. Nevertheless, the message your government was sending to the OLRB vice-chairs was clear: The government is watching you and you will be terminated if you do not toe the government line."

The process has continued even recently, but before that, let's recall -- it's not in the letter -- the Chair of Management Board mused out loud as to the impact of an OLRB decision that he didn't like, and indicated that he, a member of the cabinet, intended to have the decision reviewed. Normally, I would think if a cabinet minister threatened to interfere with a judicial procedure, that cabinet minister would soon be out of the cabinet. That's my understanding of the way things work. But that's not the way things work in Ontario in 1996 and 1997.

Going back to the letter from Mr Hynd:

"The most recent action taken by your government, and the action which makes it clear that the board has no independence from your government, arises from the termination of three experienced vice-chairs, Sherry Laing, Ken Petryshen and Kathleen O'Neil. All three had been at the board for between six and 12 years. All three of them had union-side backgrounds.

"Instead, your government has appointed Sharon Laing and Mary-Ellen Cummings to sit as vice-chairs. Both of these individuals have management backgrounds....

"What is of more concern, however, is that this latest round of decisions were made apparently without consultation with anyone at the OLRB itself, in particular without consultation with the chair of the OLRB. These decisions were 'handed down' from the cabinet office. This is unprecedented."

Mr Hynd concludes:

"It's clear that the board is being run directly by your government as a political entity without consultation with the board itself. The board is not a ministry. It is supposed to be a neutral quasi-judicial tribunal."

When we express our concerns about the fairness, integrity, independence and neutrality of a quasi-judicial body, it's for good reason. This government has been systematically undermining that independence and neutrality, and this has to stop. If you don't believe me or Mr Hynd, I think you have also the testimony of Ron Ellis, a distinguished member of the Canadian bar who made a speech on September 24 calling for a royal commission inquiry into appointments to quasi-judicial bodies in the province of Ontario because of the behaviour of this government.

I flag this as a matter of the utmost concern to most fairminded citizens in this province. This kind of interference with an important part of our judicial system simply has to stop. We'll be watching as appointments are made to the OLRB, as it assumes new responsibilities with respect to mergers and amalgamations, to make sure this government pulls back from the brink to which it has led itself.

I'd like at this point to ask Mr Goldblatt to talk about some of the fundamental aspects of Ontario's public interest arbitration system that still remain very much at risk as a result of even the government's revised position announced by the minister last week.

Mr Howard Goldblatt: As Mr McClellan has indicated, I am a practitioner of labour law. I have been practising labour law for perhaps too long, but none the less I have been quite involved in the opposition which organized labour has mounted in respect to Bill 136, because both as a lawyer and as an advocate on behalf of working people, it was and remains my fundamental belief that Bill 136 represented a total abuse of the principles of natural justice and a fundamental attack on the underpinnings of the labour relations system that has developed in this province in respect of public sector employees.

We do not have an additional text to present to the committee this morning, because we want to emphasize the position of labour as set out in the OFL document which was distributed. While a lot of attention has been paid to the alternatives that labour has put forward, I think it's also significant that the committee be reminded of the fundamental principles which underlie labour's approach to Bill 136. Those principles bear repeating, and they're found at page 1 of the brief that Mr McClellan has submitted. They include the following:

(1) In our democratic society, employees are entitled to have their terms and conditions of employment negotiated through a process of free collective bargaining. I emphasize the word "free."

(2) The right to strike -- and I pause to put in "unfettered" right to strike -- is essential to free collective bargaining.

(3) In the case of workers providing essential services, if the right to strike is curtailed, it must be replaced with independent and impartial arbitration to determine employees' terms and conditions of employment. I will return to that theme in a few moments.

(4) Employees should not lose their collective bargaining rights as a result of restructuring and are entitled to standard successor rights protections, including continued trade union representation and application of their collective agreement.

(5) Any changes to bargaining units or bargaining rights as a result of restructuring must be based on recognized labour relations principles and be determined through a democratic, open, fair and independent process.

(6) Legislation must ensure that tribunals responsible for determining the rights of employees are governed by basic principles of fundamental fairness and natural justice.

I would submit to the committee that there are few who sit as legislators and few who participate in society's processes who could disagree with those six fundamental principles.

More significantly perhaps, as we sit here today, we don't know with certainty what Bill 136 will look like when it's finally passed. We don't know with certainty what the amendments to Bill 136 will in fact read. I don't propose to submit to the committee that the minister is not at this point to be taken at her word and that the changes she spoke of in the House will not be reflected in some way in the amendments as tabled. But with great respect, it's not enough to simply pay mouth service to some of the principles that fundamentally drive labour and all those who seek a fair process in respect of this matter.


It has been said that the devil is in the details, and the details are important. Whatever amendments are put forward in respect of Bill 136, if they don't meet the fundamental principles which labour has outlined in its submission and the fundamental principles which we trust have governed and driven labour relations in this province for many years, they will be far short of labour's objectives in respect of this campaign.

Let me say a few things by way of specifics. I say these things in no particular order, but merely to emphasize some of the points we've made.

As Mr McClellan has clearly stated, the importance of the adjudicative process depends not just on what's being heard and the forum in which it's being heard, but who is making the decision. As labour has stated in its brief, the DRC was critically flawed with respect to appointments, procedures, criteria and policy. It lacked independence and fairness.

It is incumbent on this committee to ensure that whatever replaces the DRC, integrity, independence and fairness are the hallmarks of the arbitration system. It is not appropriate to have a selection made, by whoever is making the selection, from a list which is stacked, which is made up of people who are not consensual or made up of people who do not have acceptability within the broad labour relations community. That has been the way in which things have worked in the past. We are not certain that is the way things will work in the future.

We look with great respect to the example of the labour relations board as an indicator of what may happen, what could happen in respect of the appointments process. Arbitration must be independent, must be impartial, and must have integrity and the respect of the parties. As I said, it's not just how the matter is heard, but it is who hears the matter.

In respect of the way in which a matter is determined, we urge upon the committee that if the minister is to be taken at her word that there will be a return to the current arbitration system, then that current arbitration system is a tripartite system where both parties have chosen their representatives to assist in the determination of the dispute. This process has worked well. The nominees of the parties are their representatives in what is an extension of the negotiating process into the arbitration. It assists in mediation efforts, it assists the chair in understanding the complexity of the issues, it makes the hearings go more smoothly and, more importantly, the results are better for all concerned. So we urge upon you that there be no deviation from the current practice of a tripartite arbitration system unless the parties themselves agree otherwise.

There has been a lot of talk about the arsenal-of-weapons approach: mediation, mediation arbitration and perhaps, in extreme circumstances, final offer selection. I don't think we can say categorically we disagree with the arsenal of weapons. In fact, in practice, mediation arbitration takes place throughout the public sector and throughout the system of interest arbitration.

The question is, who will decide what weapon will be used, and when will that decision be made? It is apparent, with great respect, that the person who is in the best position to make that decision is not the person appointing the arbitrator, but the arbitrator himself or herself, together with their nominees. They will be in the best position to decide if in that particular circumstance a particular weapon is appropriate.

It seems to us to make little sense for someone who doesn't know the parties, who doesn't know the dispute and who doesn't know the issues to determine as a matter of policy that, "This is the weapon that will be used." The arsenal of weapons was designed to ensure that the appropriate weapon -- I really don't like the word "weapon," but the appropriate weapon or technique -- was used in respect of dispute resolution. It's not something to be used lightly. When the technique is chosen, surely it should be chosen by the person best suited to decide whether that technique is now appropriate.

With respect to final offer selection, we'd just like to go on record as saying that it does not work unless the parties agree at the outset that it is to be used. I know of no system where final offer selection is imposed at a time after the parties have conducted their negotiations and have reached impasse. The suggestion is that at some point when impasse is reached, final offer selection would be an appropriate method of proceeding.

No matter what Bill 136 does, it cannot in any way restrict the rights to a full and fair hearing. A full and fair hearing does not require that it be extended over a period of many days or months, but it does require that the parties have a right to be heard, a right to know the case they have to meet, an opportunity to meet that case and the right to know that the person who is hearing the case is the only person or persons who make the decision.

The way in which it has operated in the past and the way in which it operates now on a daily basis is that the arbitration tribunal decides how the process is to be conducted. That's the way the hearing process goes in virtually every judicial and quasi-judicial tribunal. There should not be -- there must not be -- any restrictions set out in legislation, in policy, in any other way which would restrict in any fashion the right to a fair and independent hearing.

There has been some talk with respect to criteria. Let me make two points on criteria.

The minister stated that we would be returning to the current legislative system. The current legislative system has in some respects criteria with respect to Bill 26. We are not in favour of those criteria, but we are certainly in no way supportive of additional criteria to be put into any piece of legislation which would attempt to or in any way direct the attention of the arbitrator to something which would fetter their decision-making ability.

Turning briefly to comments with respect to the transition process and the labour relations board, let me make the following comments.

Labour asked that there be no LRTC, for a couple of reasons: (1) because it would be an unnecessary duplication of an existing tribunal; and (2) because there exists in Ontario a body which has had a long and respected history of independent decision-making in areas which would be at the essence of the LRTC process. Mr McClellan made it quite clear that that was the past tense, increasingly, to talk about the labour relations board. He quoted from a couple of letters and he also made reference to Mr Ellis's comments recently.

It is essential, no more so with respect to arbitrators than it is with respect to the labour relations board, that fair and independent decision-making be preserved and that fair and independent decision-making be reinstated into the labour relations process. That requires decision-making without criteria based upon the board's history and long-established practices.


One final comment before I receive any questions which the committee may have. Let me say this: There is no need for current interest proceedings to be terminated and for new proceedings to begin all over again under Bill 136. That is a waste of resources; that is a waste of taxpayer dollars. The processes which are currently in effect should be allowed to continue to their conclusion, and whenever the amendments to Bill 136 come in, that would be for the next round of bargaining. There are many hearings which are ongoing right now, and to start all over again when there has been an expenditure of time and effort would in our submission be contrary to the concept of financial integrity and responsibility which this government professes to espouse.

The Chair: We have two minutes remaining per caucus. We'll begin with the government caucus.

Mr Maves: Thank you very much for your presentation. I think, Mr McClellan -- I don't know about Mr Goldblatt -- you've been in on the discussions with the Minister of Labour for quite some time now.

Mr McClellan: Yes.

Mr Maves: During those discussions, you've talked about your concerns with OLRB appointments and you've had assurances from the minister, I believe.

Mr McClellan: We've had assurances from the officials. I think it's important that the entire record be put out plainly, as I tried to do this morning. This government has a lot of work to do to restore its credibility with respect to the independence, neutrality and integrity of the OLRB.

Mr Maves: Mr McClellan, I think you were the gentleman who worked for the NDP when the social contract was brought in. The principles that you enunciate here, I think a lot of people in labour and a lot of people not in labour would agree with.

My problem comes in the fact that if you look at the Social Contract Act, it overrode collective bargaining by rolling back the wages of hundreds of thousands of employees; a three-year wage freeze; no merit increases or other compensation increases; pay increases in existing agreements cancelled; employers given freedom to implement other measures to meet spending reductions. The minister could decide whether any agreement met the required wage reductions and could even declare if a sectoral agreement existed, even if the parties themselves did not come to any agreement. The minister could recognize as a bargaining agent for unorganized workers any organization that in his opinion represented them. I think section 48 said an arbitrator could bring forth an award, but any award that went outside the Social Contract Act provisions would not be in effect.

Quite frankly, that social contract probably offended every single one of these principles. It's difficult for me to sit here and have you say that Bill 136 is just terrible, that parts of Bill 136 may offend some of these principles, when you were basically, as I understand it, the architect of the social contract, which violated every one of these principles. Why was it okay at one point for some of these principles to be violated, but at another point in time it isn't?

Mr McClellan: I modestly disclaim being the architect, but I would say that some of us -- apparently not you -- learned some valuable lessons from the social contract. I think the previous government paid a pretty heavy price for the social contract, and the democratic verdict has been rendered. That chapter is closed, and I think there are lessons to be learned that you could afford to learn.

Mr Maves: We didn't deem outcome. That's a lesson we learned.

The Chair: We move to the official opposition.

Mr Patten: Good morning. You alluded to some of your worries about the criteria. Even though you don't like what's in there, you acknowledge the criteria of Bill 26 or any other criteria. In reading the minister's statement, there are a few words which suggest that there may be additional criteria that will be added that may not have been stated.

It seems to me that although the selection of arbitrators is now opened up and it's not arbitrarily set, as it would have been, the arbitrators will still be fettered. I see things like the minister saying, "As well, we will continue to require arbitrators to consider various criteria such as a public sector employer's ability to pay and the extent to which services will have to be reduced if funding and/or taxation levels were to remain unchanged," such as to consider, in terms of the OLRB -- just a minute.

"I would like now to turn briefly to the criterion 'ability to pay.' The government will be extending the ability to pay and the other criteria Bill 136 proposes, that arbitrators consider for the hospital, police and fire sectors, to new post-amalgamation," etc, and then it refers to kicking in section 43.

She does not say, and I guess that's your point, "This is all we will have." I guess your worry, if I interpret it, is that we may see, and perhaps one of the reasons why we don't have the amendments before us for witnesses to see or for the committee to review is that there may be, other additional criteria imposed on that process.

Mr Goldblatt: That's correct. The position we made quite clear throughout the course of our discussion is that we don't want any criteria imposed upon the arbitration system. We're not suggesting that the current criteria are acceptable. We don't want any criteria. We want assurances that there will be no fetters on the way in which arbitrators decide these issues.

The Chair: To Mr Christopherson of the NDP.

Mr Christopherson: I'll try and get two questions in if I can, if time will allow -- one for sure.

The first one is, I have asked every labour representative and every labour leader who has come forward whether or not they had any opportunity at all to have any discussion, dialogue, negotiation, contact with the government prior to the introduction of Bill 136, which of course set the province on the brink of a real crisis. I'd like to ask you, as one of the key officials at the umbrella organization representing labour in Ontario, officially whether you are aware of any contact or negotiation, discussion, prior to.

If you wish to comment on how that compares to the social contract, feel free, but more importantly, just how much dialogue was there before that bomb was dropped on the floor of the Legislature?

Mr McClellan: There was absolutely none prior to the introduction of the bill in June. That's of a piece with the introduction of every other piece of labour legislation since this government was elected. So the answer to your question is very simple: There was absolutely no consultation prior to the introduction of the bill. There has been conversation subsequent, but I want to repeat that it wasn't negotiation. Our position is set out in our brief, and we tried to explain again that our position remains unchanged even though the government seems to have changed and continues to change its position.

Mr Christopherson: One of the key things that has come up from a lot of presenters is the absolute need to see the amendments, given the fact that 136, as it was, other than pay equity and the employee wage protection plan, has been gutted, according to the minister; she's pulling back on everything.

In our opinion, that completely changes 136 if she follows through. It won't be anything like what 136 was. In effect it's a new law, and therefore the amendments ought to be in front of us now, during these hearings. If that can't be done, then once they are tabled there ought to be renewed hearings to give people an opportunity, rather than addressing phantom legislation, as it's being called.

You are not only --

The Chair: Very briefly.

Mr Christopherson: This is important -- the director of legislative matters for the OFL and a key adviser to a former Premier; you're also a former MPP in your own right. Are you aware of any process that's similar to this? The government is saying that this is just like every other time; you always do the amendments afterwards. Also, how critical is it to have public hearings and public input on the amendments in this particular case?


Mr McClellan: I've been around here since 1975 in one form or another -- probably too long -- but this is the worst process I've ever seen. I have to say that. It's completely insane to be having these hearings without having the amendments in front of you and the people who have an interest in the issue. It's just complete madness to be having this kind of farcical proceeding when we haven't the slightest idea -- even after days and days and days of discussion, I can't tell you what's going to be in the amendments, and I've probably had more opportunity than almost anybody else to talk to officials about the details. Nobody will know, until it's too late on Monday morning, what in fact the government's position is.

So these hearings are totally preposterous. It cries out for an extension of the hearings once the amendments have been introduced so that the law may be developed in a rational manner, and not this completely cockamamie system.

The Chair: Gentlemen, on behalf of all the members of the committee, I thank you for coming before us this morning with your advice on this bill.


The Chair: I'd like to now call upon representatives from the Provincial Federation of Ontario Fire Fighters and also the Ontario Professional Fire Fighters Association. Good morning and welcome to the committee. Please introduce yourselves for the Hansard record.

Mr Bruce Carpenter: First of all, I'd like to take this opportunity to introduce myself. My name is Bruce Carpenter. I'm the president of the Provincial Federation of Ontario Fire Fighters. To my left is my colleague the vice-president of the Provincial Federation of Ontario Fire Fighters, Mr Jim Simmons. To my right is the executive secretary-treasurer from the Ontario Professional Fire Fighters Association, Mr Wayne DeMille, and to his right is Mr Henry Labenski. Henry is one of the vice-presidents of the Ontario Professional Fire Fighters Association.

I'd just like to say first, before I begin my report, how disappointed professional firefighters in the province are that the process for this committee has been set up such as it is. We have had a number of our locals -- and we represent over 80 locals in the province -- which have been approached with one hour to spare to present before this committee. That's extremely disappointing, seeing that it would be impossible for members of any group to prepare and present a presentation as important as this before this committee with less than one hour's notice. That is extremely disappointing to professional firefighters in this province.

Let me begin my presentation. Members of the committee, my name is Bruce Carpenter. This submission is being presented on behalf of the Provincial Federation of Ontario Fire Fighters and the Ontario Professional Fire Fighters Association. We have a combined membership of over 9,000 full-time professional firefighters in the province of Ontario.

With the events that have transpired since last week, one hardly knows where to start. Bill 136, as tabled, is in our opinion the worst labour bill that we have ever seen, and this government's record on labour legislation has been quite simply dismal.

When the Minister of Labour announced that significant amendments taking into account labour's alternative proposals would be tabled, we could see some light at the end of the tunnel. However, we have yet to be presented with any specifics of any forthcoming amendments.

Professional firefighters in this province have in only two years witnessed a litany of bills from the Harris government that will have a detrimental effect upon our members and, we believe, the public that we serve. They include Bill 26, the omnibus bill; Bill 84, the Fire Prevention and Protection Act; Bill 99, the Workers' Compensation Act; and now Bill 136. Thus, you can understand that our good faith and trust has worn very thin indeed.

We would very much like to see the proposed amendments that have been promised. This would not only be the honourable thing to do, but it would allow us to make a presentation based on actual data rather than what we believe the minister might have meant when she announced upcoming amendments.

We must in all honesty tell the committee that we are not convinced that this government even understands the concept of open consultation. We sincerely hope we are not wasting our time here today. In the absence of any specific amendments, it will be more difficult to intelligently discuss Bill 136, but we will try.

Although we share and support the labour movement's concern with Bill 136's attack on public sector workers' right to strike, as essential emergency service providers we would have been greatly and detrimentally affected by the proposed Dispute Resolution Commission. We view this as an arbitration system where, quite frankly, the fix would be in. Government appointees would hand down unjust, lopsided awards. We are encouraged that it has been announced that the new Bill 136 will do away with this body. We encourage you to keep this promise and not reinvent the Dispute Resolution Commission under another name.

Even before Bill 84 officially legislated away any possibility of a withdrawal of services by firefighters, we had voluntarily agreed never to strike. Both the Provincial Federation of Ontario Fire Fighters and the Ontario Professional Fire Fighters Association's respective constitutions contain articles prohibiting strikes by firefighters. There was no need to coerce us with Bill 84 to protect the citizens of Ontario. We have always known and continue to know where our responsibilities lie.

We therefore have six points to make with regard to whatever amendments are forthcoming from the Minister of Labour:

Until now, provincial governments -- the Conservatives, the Liberals and the NDP -- have responded by providing us with a fair arbitration system staffed by independent and knowledgeable arbitrators. Also, as an integral component, association and corporation nominees have been provided to bring some understanding to the process when required.

Further, firefighter associations believe that the interest arbitration has been well served by the use of nominees by the parties. Nominees are uniquely familiar with the terms and conditions under which firefighters work, and provide invaluable assistance to chairs of boards of arbitration in determining a fair and reasonable award. Nominees provide experience and expertise as well as a more detailed understanding of the dispute, and are able to assist the chair in arriving at decisions which may better reflect the interests of both parties.

We understand that it is the intention of the government to include the arbitration process in the statute itself. The professional firefighters support and encourage this change. Unlike other groups, firefighters have traditionally prepared and presented their own boards of arbitration. It is of significant assistance to us and the process itself if it is spelled out in the legislation rather than left to the changing whims of regulations.

Some of our members have already proceeded or are proceeding to arbitration for resolution of their 1996-97 collective agreements. It would be neither cost-efficient nor productive to force firefighter associations and corporations to change horses in midstream. It is only reasonable that they be allowed to see it through under the present conditions. If we can believe that the minister intends to abolish the Dispute Resolution Commission and return to a fair, just and independent system, this should not be a problem for the government. It only makes sense. In fact, we urge the government to make no changes whatever to the present interest arbitration system.


Professional firefighters have considerable faith in the arbitrators who presently adjudicate our contracts. In fact, in most cases our locals and the cities and towns they deal with have been able to agree on an arbitrator to hear the case. Only rarely must the parties resort to the Solicitor General requesting an appointment. This suggests that both parties have confidence in the present list of arbitrators. We recommend, therefore, that before the present list of arbitrators is tampered with, full and meaningful discussions take place.

Interest arbitration boards have traditionally been quasi-judicial events. This is as it should be. Both sides must be treated as equals, with mutual access to the data that is being considered by the board. This flows from natural justice, a concept left out of Bill 136 altogether. This leaves absolutely no room for final offer selection, mediation arbitration or any other combination of tactics that the government may conjure up.

Bill 84 has already introduced conciliation into the process. One would expect that if the parties could not agree and a conciliator could not breach the gap, then full and independent arbitration is the next logical step.

Finally, we absolutely oppose any further restrictions on an arbitrator's right to arbitrate. The criteria for arbitrators spelled out in Bill 26 and reinforced with Bill 84 have led one prominent and respected arbitrator to declare that he will no longer sit on interest boards. This is a great injustice, since the firefighter associations, the corporations and the public have been well served by a process that has worked. It has been the cog upon which firefighters have been able to deliver uninterrupted, 24-hour-per-day, 365-day-per-year fire protection to the people of Ontario.

We are opposed to the introduction of new criteria based on undefined best practices. We believe that reliance on these criteria may well be an attempt to justify contracting out of essential fire protection services. It is our belief that any proposals which may facilitate the privatization or contracting out of services which are essential to public safety are contrary to the public interest.

There seems to be a prevalent attitude that the present arbitration system is too costly, too lengthy, and does not encourage the parties to settle. This has been the position of the Association of Municipalities of Ontario, and is patently not true. In 1994, in a document entitled Reform of Interest Arbitration in the Municipal Sector, they stated:

"Many municipal employers believe that during prearbitration negotiations labour has little or no incentive to commit in earnest to the process since they have little to lose, and as the record of rewards shows, much to gain from proceeding to the arbitration process."

If AMO's contention were remotely true, we would expect to witness firefighter locals trotting off to binding arbitration very often. Indeed, our data from our affiliated locals shows quite the opposite. We submit that the overwhelming majority of contracts are settled at the bargaining table between the parties. It is always better to negotiate a collective agreement than have one settled by arbitration.

Using the example set out below, we have outlined the various years that locals of the Provincial Federation of Ontario Fire Fighters have taken advantage of the interest arbitration provisions under the terms of the Fire Departments Act. As can be readily observed, the vast majority of agreements have been successfully concluded at the bargaining table. We have chosen a time period from 1980 until the end of 1992, a span of 13 full years. We have not included statistics from 1993, 1994 and 1995, due to the effects of the social contract. These statistics are found on the bottom of page 9 and the top three quarters of page 10. I'll leave them for your perusal, but I think we can draw a number of conclusions from our data.

Nine of the locals have never resorted to arbitration. Each and every one of the affiliates has signed agreements at the bargaining table more often than they have resorted to arbitration. Approximately 85% of contracts are freely negotiated. It is wrong to suggest that arbitration is overused. In the vast number of cases, the present system clearly works.

It is the submission of the professional firefighters of Ontario that arbitrators must be independent and devoid of legislative restraints which would inhibit their impartiality. The arbitration process is crucial to firefighters in the province. As noted earlier, it replaces our right to strike and quite simply must be fair, equitable and impartial. Although sometimes disappointed, we believe that arbitrators have generally been extremely competent in their awards.

Currently in Ontario, there are a number of arbitrators who have dealt extensively with firefighter boards and are cognizant of the issues and arguments presented to them. Usually, the arbitrator has been agreed to by the parties. Their awards are reasoned, just, and based on the facts presented to them at the arbitration hearing, and are greatly assisted by both nominees.

We have taken the time to focus on the firefighter arbitration process, as it would obviously impact most heavily on our members. This does not mean that we do not feel strongly about other aspects of Bill 136.

We have significant concerns about the transitional arrangements proposed in the Labour Relations Transition Act. We oppose the creation of a new commission to deal with successor rights issues and support the transfer of all of its functions to the Ontario Labour Relations Board.

We are concerned, however, that there is no clear provision in the legislation which prohibits any commission or the labour relations board from placing firefighters in the same bargaining unit as other employees. Firefighters have a long history of bargaining separately with their municipalities under separate legislation which recognizes the essential nature of the duties which they perform. The legislation must at the minimum ensure the continuation of separate bargaining units for firefighters.

We oppose the termination of ongoing interest arbitration proceedings in the context of restructuring, since it is our belief that the continuation of such proceedings would be more cost-efficient and productive, unless both parties agree otherwise.


Finally, the small lack of commitment to fairness and due process with respect to procedure is evident in relation to the procedures adopted by the LRTC. It is our hope that the requirements of natural justice and a fair hearing presently observed by the Ontario Labour Relations Board will be incorporated into any legislation. The powers granted to the LRTC to develop policies and which allow them to dispense with public hearings should be removed from this bill.

Firefighters believe the government should simply withdraw this ill-advised, undemocratic legislation and let the present solutions prevail. Rather than encouraging stability, Bill 136 virtually ensures instability when regions amalgamate and workers inevitably fight back.

It is dishonest on its face to entitle it a "transition stability act" and then change our arbitration system permanently. It leads firefighters to the conclusion that the labour legislation emanating from this government, especially Bill 136, has more to do with downloading, cutbacks, tax breaks and privatization than the delivery of quality public and emergency services. We sincerely hope this committee will make the necessary amendments to allow Bill 136 to conform to the alternatives presented by labour's common front.

Further, once the proposed amendments have been tabled, we urge the government to continue public hearings to allow for public input into the amendments, followed by meaningful negotiations with the parties that will be impacted by these changes.

I want to thank you for this opportunity to appear. Hopefully our time has been well spent and firefighters will be heard.

The Chair: Thank you very much. We have two minutes remaining for each caucus. That's time for a brief question and answer. We'll begin with the Liberal caucus.

Mr Patten: An excellent presentation; very well said. I couldn't say it better myself.

We share some of your concerns. You worry about new criteria, which I've been trying to dig out here. I'm going to read a section and then I'm going to ask you to respond to it, because the evidence does not warrant the intrusion in the process, based on the history of labour relations and collective bargaining thus far. This is the minister talking last Tuesday. She said:

"The government's proposed changes to Bill 136 will change the Fire Protection and Prevention Act, the Police Services Act and the Hospital Labour Disputes Arbitration Act to create expedited time lines to ensure the quick and timely resolution of disputes in the police, fire and hospital sectors. It will continue with the Bill 136 changes which provide arbitrators with more choice to deal with collective bargaining disputes in the police, fire and hospital sectors. More choice is going to include the use of mediation, mediation arbitration and final offer selection during the arbitration process.

"As well, we will continue to require arbitrators to consider various criteria such as a public sector employer's ability to pay and the extent to which services would have to be reduced if funding and/or taxation levels were to remain unchanged."

How do you feel about that?

Mr Carpenter: I don't feel very good about it at all. We're living with criteria now that were imposed on us as a result of Bill 26 and reinforced in Bill 84. We didn't ask for them; we got them. We don't think the arbitration process requires them. As we've said, we think the process has been fair and we think arbitrators have taken into account all the data that have been put forward to them. We believe it's a tactic by the Association of Municipalities of Ontario, who have not presented well to arbitrations over the years and have continually whined that the results have not been in their favour. So we absolutely don't support that process at all.

Mr Patten: They've given you the chance to participate in selecting an arbitrator. Your reference to one of the arbitrators in this comment wasn't particularly encouraging.

The Chair: We have to go to Mr Christopherson.

Mr Patten: They're adding criteria that will truly make it very difficult for arbitrators to operate as they have done heretofore.

Mr Carpenter: Absolutely. The arbitrators are --

The Chair: I'm sorry. We have to move to Mr Christopherson.

Mr Christopherson: Bruce, thanks very much for your presentation. I'm pleased to see that the president of the Hamilton firefighters, Henry Watson, is here today too. It's always good to see Henry up front in these things.

I want to ask you a very specific question. Every labour leader who has come forward has expressed shock, disappointment and outrage at not having any input into 136, especially when the government says, "Hey, we made all these changes because we were listening." The argument is, why didn't they listen and talk beforehand?

You have even more reason, in my opinion, to be upset, because I remember that infamous tape. When I was the Solicitor General, Mike Harris was leader of the third party, where Howard Hampton is right now, and he made an explicit promise -- and you still have that tape -- that he wouldn't do anything to firefighters without absolute, total consultation, input, every word you can think of.

What I'd like to know is not only with regard to 136, but how much of that promise was kept for you with Bill 84 and Bill 26? How much of the promise that Mike Harris made to you has been kept?

Mr Carpenter: Absolutely none. Professional firefighters have never been consulted in regard to any legislation. That includes Bill 26 and it particularly hit home with us with Bill 84. You're absolutely right: The Premier promised on video that he would consult with professional firefighters before the Fire Departments Act was changed. That was a pre-election tape, unfortunately, but we held him to that promise. When somebody tells us something, we expect them to carry out what they say. We do that; we expect others to be honest with us. In our opinion, he absolutely was not.

I can say that the 9,000 professional firefighters and the people we represent -- 200,000 people signed a petition that we brought forward on Bill 84, and we consider those people to be our constituents as well as our members -- are disappointed in this government.

Mr Christopherson: I want to say on behalf of hundreds of thousands of other public sector workers in this province that they appreciate the unity you've shown around 136. I know that firefighters have incredible respect and credibility in all our communities, in Hamilton and right across Ontario. The fact that you're up front in saying, "This is public sector people who care about Ontario, care about services," and that you're all being hit means a lot. I want to thank you for being up front and being a part of that united coalition that says 136 is not fair, that public sector workers care about what they're doing and you can't do this to us.

Mr Ernie Hardeman (Oxford): Thank you, gentlemen, for your presentation this morning. Contrary to popular belief, I want to echo the comments of the member across the aisle. I think the firefighters are well respected in the province for what they do, and the public appreciates the service you provide for them. In fact, in a lot of polls taken, that service is one of the highest-ranking municipal services being provided in the province.

I wanted to go quickly to the issue of Bill 84 and the process. I understand your association did have a certain amount of consultation with the minister during the committee hearings and after that, and the minister made amendments. One of those amendments was to make sure the association was protected, that it was not an open vote that your members could be members of other unions, that you would represent your workers as you had done in the past.

My understanding was that the amendment was agreed to and was required on behalf of your members, but you didn't see it until it was put into the clause-by-clause and was put forward that way. Is that not the same as what is happening here, the discussions, the changes being made, that what the minister said he was going to put in the bill, he did put in the bill, and now the professional firefighters are the bargaining agent for all the firefighters, as they were before?

Having said that, if that is the case -- and I see in your proposal that is one of your concerns, that you retain that right -- I would suggest that if that was important then and was put in Bill 84, it would be important that it be maintained in this bill. Is that a reasonable assumption to make?

Mr Carpenter: Let me try and answer all your questions. To say that we were ever consulted with respect to Bill 84 is certainly wrong. We consider consultation to be sitting down with people who the legislation affects most, and that was professional firefighters and the public, prior to that legislation being drafted. That was never done. The legislation, Bill 84, was imposed on us and then we spent considerable time trying to convince the government that they should make changes to that legislation. It's our opinion, and we are right, that we got absolutely nothing in return from the government. What the government did in regard to Bill 84 was correct all the mistakes they made and then answer none of the questions in regard to public safety, absolutely none. That's what happened.


Mr Hardeman: Let me finish the question. The question was the issue on the bargaining rights. Isn't that what was guaranteed with the amendments?

Mr Carpenter: It was guaranteed with the amendment after we convinced the government, after many meetings following the presentation of the bill, following the bill being tabled in the Legislature, that it was the thing to do. Don't ever, ever try and convince us or the public that the government freely offered that, because they didn't. They offered it as a result of pressure put on them by firefighters and by the people we represent. That's how that ended up in there. We feel we continually have to protect our members and our organizations through Bill 136, which is just another attempt by this government to try and reorganize unions in this province, and we're part of that.

Mr Hardeman: I appreciate that is what you're doing --

The Chair: Wrap up, please.

Mr Hardeman: -- but I would suggest that is why you are the bargaining agent for the firefighters; it is your job to protect their interests, and here you are.

Mr Carpenter: Sir, the only reason we continue to be the bargaining agent for firefighters is that we protected the rights we believed we had. If it was your government's way, we may not have been the bargaining agents. There may have been votes and other unions may well have been the bargaining agents for firefighters in this province. Sir, I put to you that that is patently wrong and that does not represent the best interests of the citizens of this province.

The Chair: On that note, thank you, gentlemen. On behalf of all members of the committee, we thank you for coming before us this morning with your advice on this bill.

Colleagues, I was a bit concerned about the comments about the notice, particularly because my draft schedule for Wednesday and Thursday included the Provincial Federation of Ontario Fire Fighters and the Ontario Professional Fire Fighters Association. I've asked the clerk for some clarification just on this one point.

Clerk Pro Tem (Mr Doug Arnott): As directed by the committee, I did schedule the Provincial Federation of Ontario Fire Fighters and the Ontario Professional Fire Fighters Association with two separate presentation times of half an hour each on the first afternoon that I was directed to schedule witnesses. That was Tuesday afternoon. It was at their request, I believe yesterday, that the two presentation times were joined together. A couple of their locals, I understand, were contacted to be offered presentation times that were open today, but I do believe advance notice was more than one hour.

The Chair: Thank you for that. It was just a concern I had about the difficulty of booking, and I wanted clarification of that.

Mr Jerry J. Ouellette (Oshawa): On that point, could the clerk advise us: He said "scheduled" on that date. Does that include "notified" them as well? Just because we schedule somebody doesn't mean we actually notify them or have communication with them.

Clerk Pro Tem: I actually had personal communication with Mr Simmons and Mr DeMille at the committee room here on Tuesday afternoon.


The Chair: The presenters at 11 o'clock and at 1:30 this afternoon are switched, so at this time we'd now like to welcome representatives from the Sunnybrook Hospital Employees Union, Local 777. Thank you very much for coming this morning. We appreciate your flexibility in being able to switch with this other group. I understand the gentleman missed his plane, so your cooperation is much appreciated by the committee.

Ms Michelle Sherwood: Thank you very much. We certainly appreciate the committee's cooperation in allowing us to reschedule.

The Chair: Please introduce yourselves for the Hansard record.

Ms Sherwood: My name is Michelle Sherwood. I'll be presenting on behalf of the Sunnybrook Hospital Employees Union. To my right is Michael Phillips, who is the president of Local 777. Sunnybrook Hospital Employees Union is part of the Service Employees International Union, which represents over 44,000 employees in the health care sector, the vast majority of whom are governed by the provisions of the Hospital Labour Disputes Arbitration Act. Sunnybrook Hospital Employees Union represents 1,200 employees at Sunnybrook. Accordingly, I think we're in an exceptionally good position to comment on some of the changes that are proposed to HLDAA.

At the outset, I wish to thank the committee for giving us the opportunity to present this morning, but I do wish to place on record the concerns we have both with respect to the short time lines that were set aside for this process and the fact that notwithstanding the minister's announcement last week that there would be substantial amendments altering the focus and nature of this bill, we're in the position of having to comment on a bill for which we haven't seen the proposed language or the substance of the amendments. Accordingly, we're very concerned with the difficulties of making informed comment on legislative provisions that we simply haven't seen.

Within those limitations, however, our brief does attempt to provide feedback to the extent that we're able to give it, given the limitations of our understanding of what the government is proposing to do with Bill 136 in amendments that are to be tabled next week.

Turning to page 2 of our brief, I would just ask you to note that HLDAA has remained essentially the same over the period of the last three decades. In our submission, it has functioned extremely well to meet the needs of both the workplace parties, with no major disruptions to the public service over the entire period that the act has been in force. We understand that the government has committed to return to the current system of interest arbitration and that the various appointment processes associated with the Dispute Resolution Commission will be removed, and our comments are based on that understanding.

In our submission, it is simply absolutely critical that the appointment and selection process for the selection of arbitrators be and be seen to be independent, neutral and impartial. In this regard, we have a number of concerns with the proposal that we understand to be on the table, that a Ministry of Labour official will be selected to meet with the parties in the event that the parties are unable to arrive at a negotiated collective agreement. That same official will then be in a position of both choosing the dispute resolution mechanism and appointing the arbitrator.

In our submission, it is absolutely essential that the appointment process be an arm's-length one and that the person making the appointments be separate from any involvement with the parties and with determining the dispute resolution mechanism. In our submission, it's inevitable that at the very least an apprehension of bias in the system will creep in if these functions are all legislated to reside in the same individual.

The second point of concern that we wish to raise is with respect to the proposed amendments to introduce a choice of procedures; in other words, moving away from conventional arbitration as I understand it towards a process of mediation arbitration, and even possibly in some circumstances final offer selection.

SEIU has used both arbitration and mediation arbitration to good effect in the past, and we certainly don't have a problem with continuing to have recourse to both those systems, although in our submission it functions most effectively when those options are made with the consent of both parties. We do, however, have serious reservations with respect to the option of final offer selection being imposed. Our submission is that this is a discredited system which neither employers nor unions have shown any ability to use. It's simply a system that's acceptable to neither party, and as I understand it, neither employers nor unions would wish to function within the confines of a final offer selection system. We would strongly urge the government not to consider this option or to give it any weight in determining what dispute resolution mechanisms would be offered to the parties.

Third, we are extremely concerned with the government's proposed purpose clause, specifically the best-practices clause which is contained in both section 1 of the dispute resolution act as well as section 1 of the public sector transition legislation. In our submission, the effect of this clause can only be to attempt to fetter both the board and the arbitrator's discretion to make awards in accordance with current government fiscal policy. In our submission, it can only have the effect of compromising both the integrity and the independence of both of these decision-making bodies. In our submission, in order for this system to be workable, both arbitration boards and the OLRB must be seen to be fair and impartial, with the ability to exercise their decision-making powers in accordance with the evidence which is before them.


As this government is well aware, ability-to-pay criteria already exist which arbitrators are directed to take into account and do take into account in the course of making their decisions under the existing interest arbitration system. In our submission, there is no benefit to be derived by imposing a purposes clause that will have the effect of fettering the discretion of the arbitrators in a way that has been found to be unacceptable by all parties.

In particular, I would ask you to consider the jurisprudence of the International Labour Organization, which I believe we've referred to at page 4 of our brief, which talks about the risk of compromising the integrity of the whole system where arbitrators are directly appointed by a government which lays down in legislation certain criteria which arbitrators are bound to follow in the determination of their awards. It is our position that this purposes clause should simply be eliminated in the whole, but if the government is determined to insert some form of purposes clause, we would urge you to impose a criterion that requires the decision-maker to take into account the criterion of fairness to workers.

The other features of the dispute resolution process that we would like to touch on: First, the importance of nominees in ensuring a balanced and expeditious process. In our submission, nominees are not only important to ensure the balance and accountability of the process, but they also play a very effective role in furthering mediation and settlement of disputes. In our submission, that role is entirely consistent with the stress of the government's amendments to move towards more mediation arbitration in the system. We would suggest that nominees should be available at the request of either party, and we would urge the government to make those amendments.

With respect to proposed expedited time lines to expedite the interest arbitration process, we've set out our position at page 6 of our brief. While we're clearly not opposed to time lines that expedite the process, we would submit that those time lines must be realistic, given the importance to the parties of a full and fair hearing. Accordingly, we would suggest that there must be provision for waiving those time lines where the time lines prove not to be realistic.

One of the time lines we've heard suggested or proposed is a period of 60 days from the date of appointment of the board to the date of issuance of the award. In our submission, this simply is not a realistic guideline since many arbitrators will not be available or simply will not feel able to assume the appointment if they are required to adhere to these types of guidelines. We would suggest that it's absolutely essential that the time lines not be used to skew the process by narrowly confining the slate of arbitrators who are available and willing to undertake the arbitration process. We would suggest that in setting time lines, you consider a period of perhaps 60 days from the date of hearing, as opposed to 60 days from the date of appointment, as being a more realistic time frame which is also consistent with the rights of the parties to a full and fair hearing.

With respect to the effect of the amendments on existing proceedings, we deal with that issue at page 6 of our brief. We are strongly recommending that section 50.2 of the dispute resolution act be eliminated in its entirety. In our submission, there's simply no principled reason for requiring parties who have already engaged in days of negotiations, hearing dates, and in many cases a final exchange of submissions to go out and commence the process in accordance with the new government procedure. It's contrary to all the principles of expedition which the government has indicated have triggered the changes which are proposed to the interest arbitration system. It also, in our submission, will cause grave prejudice to the parties by requiring them to incur further expense to go out and relitigate issues that have already been completed or effectively completed but for the issuance of a hearing and will put the workplace parties, and in particular the members, in the position of having to undergo further delay before having their collective agreements finalized.

The second section of our brief deals with the issues of restructuring. Again, we reiterate the comments which we made earlier with respect to the imposition of a purposes clause, and most particularly the best-practices section of that clause. We submit that the effect of such a clause can only be to fetter the discretion of the board and to compromise its long and trusted history as an impartial adjudicator of labour relations disputes.

The essence of our position is that, although some expanded powers should be given to the board to deal with issues arising out of restructuring and the mergers that are taking place, those powers should be in line with and in accordance with the board's established policies, precedents and procedures. We would urge this government not to deviate from the jurisprudence and the practice which has been established for the board.

Finally, I wish to touch on the issue of the pay equity amendments which are contained in Bill 136. SHEU strongly opposes those amendments. We have adopted and we endorse all of the arguments that are set forth with respect to that issue in the Equal Pay Coalition brief. We urge this government simply to eliminate all proposed changes to pay equity.

Those are all the submissions I have to make at this time.

The Chair: Thank you very much. You have left us with almost seven mminutes per caucus, and we'll begin with the NDP.

Mr Christopherson: Thank you very much for your presentation. I want to ask you how you felt preparing for this submission, not knowing exactly what you're preparing for, and how you would feel about the need to have an opportunity to come back and make a further submission when you have the actual detailed amendments in front of you.

Ms Sherwood: Frankly, it has been almost impossible to formulate a coherent brief without having seen what the legislative provisions are, particularly in a case where we understand that there are amendments forthcoming that are essentially going to change the whole thrust. That's what the government has advised us. Certainly, in the interest of any kind of full and public debate of these issues, we would like the opportunity to respond to those amendments once those amendments are tabled. In our submission, anything less basically compromises the integrity of this process, quite apart from our concerns with respect to Bill 136.

Mr Christopherson: I don't think we in the opposition have had a chance to explain further that not only do we have these hearings in the absence of any kind of knowledge of what the real bill is going to look like, not only was there no lead time even for those submissions to be created for a phantom piece of legislation, and not only is it all going to be rammed through starting Monday morning at 10 o'clock, but under the process the government has rammed down our throats against the wishes of the opposition, no further amendments can be made after 10 in the morning. Not only are they not going to give you at this stage an opportunity to comment on those amendments, but if during our discussions, the short two days that we have to go through those amendments ourselves, we should feel that there need to be amendments, even if it's not a philosophical or political thing but just to make the law better, it can't be done. They've made it so tight that there's no way to amend anything.

There's going to be one shot. The government will bring in their amendments -- we'll bring in our amendments, but they are going to vote against them; if they didn't, it would be historic in its significance -- and they're going to ram them through. There will be no opportunity to make any changes at all to those amendments. So the sham continues, and people need to understand that not only is it a sham for them, but even internally, in the legislative process, it's a sham. It's so frustrating to have group after group come in and express the fact that they feel they're being used for a publicity stunt rather than any real, meaningful dialogue.


I want to state again the fact that the government hasn't left itself any time for any kind of cabinet meeting. I'm still not aware of any special cabinet meetings that have been called which would be necessary to deal with anything they've heard that might cause them to want to change their minds. These decisions were taken, at the very latest, at the last cabinet meeting, which was a week ago Wednesday. So the whole thing is a sham.

I want to ask you about your concern, and everyone's, about the need for unfettered arbitration decision-making and the fact that they be allowed to make decisions in the absence of any kind of bias; no criteria that might fetter their decision-making. Do you have any real concerns that the legislation that's coming down, the amendments we'll finally see Monday morning at 10 o'clock, will be minus things you need or rather things that are in there? Do you have reason to believe or do you have a reasonable concern that those amendments may not, or are you prepared to accept the minister's word, "Don't worry, it will be all right"?

Ms Sherwood: Obviously we're not content with accepting the minister's word and that's the reason for the concerns we've placed on the record. We have no reason to believe, on the basis of what we've seen of Bill 136, that those amendments will be responsive to all of labour's concerns particularly with respect to the independence and impartiality of the decision-making process.

Mr Christopherson: Can I ask you another question? I know you're not in a position to speak on behalf of all of labour or even for all of your union, so I accept this may be just your own opinion, but could you just start to give us some idea of what you think could happen, after the amendments are tabled at 10 o'clock Monday morning, with this airtight process, where you're carved out of it -- and basically the opposition is carved out of it too because the time allocation rams it -- if it doesn't meet the major concerns of labour, if it doesn't in legalese commit to the words the minister has given us? What do you think are some of the things that might possibly happen if we see that? Is labour just going to shrug their shoulders and say, "Oh, well, we gave it a good shot"?

Ms Sherwood: Clearly I'm not in a position to take a position for the leadership of labour. Obviously people will feel that they've been used, that it's been part of a public relations ploy on the part of this government to indicate a concern and a willingness to listen without any real substance to that concern. The position of labour has been very clear that if this government attempts to ram through legislation that will not have any credibility to one of the workplace parties, the effect of that is inevitably going to be massive public service disruption, if not next week, at some time.

The Chair: Mr Christopherson, I owe you an apology. It must be the watch. It's only five minutes per caucus.

Mr Christopherson: Oh, sure. Once I'm on a roll, then you cut me off.

The Chair: We must move to Mr Hudak.

Mr Tim Hudak (Niagara South): Thank you, folks, for your presentation. In respectful disagreement, I think there's quite a bit of substance to this process and quite a bit of change in the government's initial position. For example, the labour movement said, "Don't encourage contracting out," and we didn't put that in the bill. They said, "Make sure successor rights are maintained," and we agreed. It's in the bill. They said, "Don't take away the right to strike for those sectors that can strike," and we agreed. We took it out of the bill. They said, "Don't use the Dispute Resolution Commission or the Labour Relations Transition Commission," two government-appointed commissions. We listened, Chair, as you know, to the labour movement's recommendations and we're going to use the Ontario Labour Relations Board, which has a long-recognized history of no bias and fairness.

We think that's a good way of going to where we want to go, that is, to an era where government is more efficient and responsive to taxpayers, in other words, affordable to taxpayers. The minister has set out that direction. Through these hearings we're asking, what principles do we need to follow to get to that place, with input from the labour movement and the firefighters and all those we've heard today and from AMO? How do you get to that era?

Mr Christopherson's approach, that we should have had the amendments beforehand, would have been getting the cart before the horse. We're here to listen and decide how best to reach those principles. It would be unprecedented to bring amendments forward before the committee hearing process began. The minister clearly outlined her recommendations on where we want to go, so the amendments will tell us how to get there. If there's such a cry for amendments, I haven't seen any NDP amendments and I haven't seen any Liberal amendments. In fact, Frances Lankin, one of the leading intellectuals in the NDP organization, said on the CBC the other night that they're not planning to bring amendments forward until Monday. That's the routine process. The expectation is, how do you get there and what's the best way, and then all parties will bring their amendments forward.

We've heard why Bill 136 is important. You mentioned that you didn't see any reason why we would need to change the legislation in any way. We heard from the hospital sector. The Ontario Hospital Association talked about the merger of the Toronto General and Toronto Western, which in 11 years still haven't sorted out many of those collective bargaining agreements. For example, a carpenter working at one site cannot go across to the other site to perform any kind of work. They would have to contract out. I don't think that's fair for the employees there. Certainly when you're wasting resources, that means fewer resources available to the patient, to better health care, to kidney dialysis.

I think it's essential that we get through this process, through this transition fairly for union and non-union workers, but to assume that we can let the status quo be maintained and have 11-year or 12-year mergers of hospitals, or more, I think could be a radically inefficient use of resources. I don't want to see the model we've seen at the General and Western, where carpenters managed by the same group of people can't even go from one work site to the next, spread out through the rest of Ontario.

You talked about final offer arbitration. That's used, I think, in some other jurisdictions and used in other labour-management organizations. What I like about final offer is that it encourages people to get back to the bargaining table, to sort out the issues locally, because you either have a big win or a big loss. I remember talking to somebody from the police association about this and he talked about the Toronto Blue Jays. He said the Blue Jays don't like going to final offer arbitration because they want to settle the issues. I think essentially that's what we wanted to encourage in this legislation. We like to see you bargain at the local level as much as possible so you don't have to rely on the arbitration process.

I think too if you look at the statistics, the health care system relies very heavily on arbitration. I think almost 50% of the agreements covering 50% or more of hospital employees have gone to interest arbitration.

By having a tool like final offer arbitration, I think that encourages the workers to get together with the employers to sort out their issues so that either side, facing great uncertainty, has every incentive through final offer to get to the table and hammer out these issues and not have to go to what is often a costly, legalistic method of arbitration.

I'm going to get back to that point. Do you disagree that final offer arbitration encourages people to sort out those issues at the local table?

Ms Sherwood: I entirely disagree. My view is, and our experience has certainly been, that it has a chilling effect on the negotiating process, where both parties are very reluctant to take a position for fear of having that position rammed down their throats at a later point in the process. It simply doesn't work.

Mr Hudak: So your view is a final offer.

Ms Sherwood: Could I have an opportunity to respond to some of the other points?

The Chair: Very briefly. We should be moving to Mr Patten.

Ms Sherwood: I'm sorry, but I didn't have any opportunity whatsoever to respond to any of the comments he made. I'm wondering if I could just take it briefly.

The Chair: That's up to Mr Patten. It's his time.

Mr Patten: Go ahead.

Ms Sherwood: Thank you. The first point I would like to make is with respect to the MPP's comments that it would be unprecedented for these amendments to be tabled so that parties could have the opportunity to have a full and fair discussion of the issues that are set out in the amendments. In our submission, it's simply unprecedented for the government to announce a week before the committee hearings that the legislation is going to be changed entirely in its substance and effect.

Mr Hudak: Well, we could have done that during amendments but we chose to do it beforehand to listen to the committee process.

Ms Sherwood: If I could have an opportunity to respond, please.

Mr Patten: Listen to her now. It's my time.

Ms Sherwood: Thank you. In our submission, it is simply unprecedented to expect parties to engage in any kind of full and informed comment with respect to legislative provisions they have not been able to see. In Mr Christopherson's words, it makes a sham of the entire process.

In the second point you made, you indicated it would be unprecedented for the government to table those kinds of amendments. I believe there is precedent where legislation has been substantially altered for those amendments to be tabled prior to committee hearings. Although I was not in the position of making submissions at that time, my understanding is that with respect to the long-term-care legislation, where substantial amendments were proposed to the legislation, those amendments were tabled and left for public discussion so that parties were able to engage in full and informed debate with respect to the legislative provisions that were going to be enacted.


Mr Patten: Okay. Can I --

Ms Sherwood: Certainly. Thank you for giving me the time.

Mr Patten: You're welcome. Just to build on that, we must remember that the process is that the government is putting forward the legislation.

Ms Sherwood: Yes, of course.

Mr Patten: It's their legislation and it's their bill. In an instance like this, some would say you should really call the bill out of order, because it is so substantially different that it should be redrafted and resubmitted. That the opposition should somehow make their amendments beforehand is absolutely ridiculous, because we're in a position of responding as critics, responding as loyal opposition, and we're responding to what's there and responding to people like yourselves who come to make representation. Then we draft our amendments and hopefully we have fair time -- which we don't in this instance at all -- to make them, knowing what we have to deal with. So it's complete nonsense when you talk about that. It's complete crap, you know it is, so don't even talk about it.

It's not what they're taking out. He says they've already explained what they're taking out. The problem, and the question of course, for anybody who has any degree of scepticism, which prevails, is what will be put back in; that's the major concern. That's why people want to see these amendments, because they're worried that there will be additional criteria etc.

Along those lines, I don't know if you were here when I read this to the firefighters. They said they would be very, very worried that this kind of thing would happen.

In the minister's statement last Tuesday at our hearings, she said that the government proposes to change Bill 136, the Fire Protection and Prevention Act, the Police Services Act and the Hospital Labour Disputes Arbitration Act "to create expedited time lines to ensure the quick and timely resolution of disputes in the police, fire and hospital sectors. It will continue with the Bill 136 changes which provide arbitrators with more choice to deal with collective bargaining disputes in the police, fire and hospital sectors. More choice is going to include...mediation," -- I almost said "meditation;" it might not be a bad idea -- "mediation arbitration and final offer selection during the arbitration process."

This is the one that worries me and I think worries most, and I'd like your reaction to it: "As well, we will continue to require arbitrators to consider various criteria such as a public sector employer's ability to pay and the extent to which services would have to be reduced if funding and/or taxation levels were to remain unchanged."

Ms Sherwood: Much of those criteria are already contained in HLDAA, but the difference would be that there's a distinction between arbitrators being allowed to consider that and arbitrators being required to consider it or required to make their decisions in accordance with those criteria. In our submission, once arbitrators are required to make their submissions in accordance with the criteria, the credibility of the whole system is undermined.

Mr Patten: That's right. Their changing all those acts, and also the purpose statement, as you identified, with best practices it seems to me really will restrict the arbitrators from going in with the natural procedures of trying to be a fairminded person. There's no word "fairness," for example, in this piece of legislation or in all the recent ones you may have observed. That word "fairness" has been completely taken out.

Ms Sherwood: That's certainly our position.

The Chair: On that note, on behalf of all the members of the committee we thank you for coming before us this morning, and again I want to thank you for your flexibility in switching your times with another deputant.

Colleagues, I'd just draw your attention to the materials presented by our clerk this morning. These are the briefs from the deputants in Thunder Bay yesterday for the teleconferencing. I think, Mr Patten, you were particularly interested in this.


The Chair: We're now about to hear from the Chinese Workers Support Network, if you'd come forward please. Good morning. Welcome to our committee. If you would please introduce yourselves for the Hansard record.

Mr Daniel Yao: Good morning, ladies and gentlemen and members. Thanks for the opportunity of letting us come here to express our views. I would like to introduce us. We come from an organization called the Chinese Workers Support Network. My name is Daniel Yao. Here is Mr Ken Cao. Ken Cao is one of the committee members in the network. Ken will start by presenting our views, particularly regarding the wage protection program.

Mr Ken Cao: Good morning, ladies and gentlemen. It gives us great pleasure to express our views to all of you. First of all we'd like to give a brief introduction of the Chinese Workers Support Network. It is organized by workers as a self-help and mutual-help group. At present we have about 200 members in Metro Toronto, coming from different occupations. The objectives of the network are to enhance networking among workers, facilitate skills of members, promote mutual-help initiatives and share information and access to job search, employment and training opportunities.

Recently, the Minister of Labour proposed as part of Bill 136 to cancel the employee wage protection program. We regard that this will only jeopardize the existing employment standards which already do not adequately protect the basic rights of workers. Under the existing poor economic times, employees tolerated their utmost to keep their work, and unscrupulous employers could easily squeeze and exploit their employees. Such a move would only grant irresponsible expediency to employers. After discussion in our group, we would like to submit our views to the government. We desperately hope the Ministry of Labour could change their mind and maintain the existing EWPP and also improve the scheme so it could be more beneficial to government.

Coming next are the reasons for objection to cancelling the EWPP.

First, the very basic rights of workers -- work and get pay -- cannot be protected. Currently workers use the EWPP in three ways: when an employer does not pay a worker, when an employer does not follow the ministry's order to pay or when an employer is bankrupt. If EWPP were cancelled, whenever employers refused to pay wages to workers, owed wages or during bankruptcy, employees would end up with nothing. They worked and did not get paid.

Some of the Chinese workers worked and tolerated their employer to the last minute even though they knew they were owed wages and the company was under threat and risk of going down. They had all the best intentions to help employers overcome these difficult times. They did not want to see themselves depending on employment insurance or welfare support. In return for their understanding and tolerance of employers and support of the government, how could our government penalize them by just laying their hands off completely? "Work and have your wage" is the very basic right of workers; it is not even comparable to pay according to your work. If the Ministry of Labour couldn't even take up their role in protecting this very basic right of workers, we really wonder what would be the purpose of setting up the ministry.

Second, social justice cannot be maintained. In business activities, the basic rule of conduct is that employers pay for work done by employees and employees have to work to earn their pay. When employers violated this basic rule of conduct, EWPP helped to realize the efforts of government in maintaining social justice. It also showed the will and ability of responsible government towards unscrupulous employers. It revealed to people that their government took up their duties responsibly. These efforts of government helped to build a country of justice, human rights, and gained people's support and confidence. Once the EWPP was cancelled, it indicated that government would not take up the responsibility any more. Undoubtedly, social justice could not be maintained and people's inherent support and confidence in government would be lost.


Our arguments: Somebody said that cancelling the EWPP would help the government to save some money. First of all, government should only save money that should not be spent, but for this kind of protection of the very basic workers' right, it should be treated as essential as basic medical care services and should not be abolished. Furthermore, if employees could not get their wages, they would have to apply for support from employment insurance, and as a result money would still be spent by the government. You could also consider changing the existing financial arrangement of drawing revenue only from the government and let employers pay for their share. In this way, it could really help government save some money, yet achieving the goal of realizing social justice.

Somebody said that to cancel EWPP was to get away from too many controls and regulations on business activity which hindered market development. Our point is, government should not have too many regulations on normal business activity. However, owed wages or refusal to pay wages apparently are not within the context of normal business activity. It is a matter of violation of rule of conduct in which government should intervene. It is good and essential for government to intervene, just like government needs police to intervene in unlawful activities.

Some said that owed wages should be settled in court. However, most of these cases happened in smaller workplaces where employees were not working on high-skill jobs and wages were usually low. For the group of workers who earn barely minimum wage to pay the high legal fees to go to court is unrealistic and is just like adding frost to snow. If even the big and mandated Ministry of Labour had difficulties in collecting money from employers, one could imagine what a vulnerable worker would be faced with in such pursuit.

Our suggestions: We suggest maintaining and improving the existing employee wage protection program, first, to give more power and flexibility to the Ministry of Labour in collection from employers. Status and authority of orders to pay issued by the ministry should be raised. The Ministry of Labour's own statistics for 1995-96 showed 75% to 83% of amounts assessed for unpaid wages, vacation pay, termination and severance went uncollected. This reflected inadequate authority and power for the ministry to enforce the protection, so the ministry should improve on its existing conditions and raise the mandatory functions of the order to pay.

Second, the employee wage protection program should be contributed to by the government and employers. Money from employers could come in as part of their business registration or a percentage of their annual business transactions. Companies frequently violating labour law and seeking compensation from EWPP should be required to pay for additional deposits when they open new businesses.

Third, for proven cases of employers violating employment standards a penalty should be issued and the penalty should go in the EWPP.

Fourth, the existing ceiling amount of EWPP is $2,000. It should be changed to a maximum of a month's salary and no more than $2,000 to limit the time and dependency on the program.

Finally, amend existing bankruptcy law so that owed wages could come as the first priority, even before banks and secured loans. Usually the proportion of owed wages to a company's total debt at bankruptcy is not that high. However, owed wages to workers mean they could pay their rent, food and daily necessities. The bad debt to banks definitely affects their annual returns, which were in billions of dollars. However, problems arising from unpaid owed wages would be a matter of survival to the workers. Lowering priority to banks might stimulate active monitoring of their debts on business.

The Chair: Thank you very much. We have plenty of time for questions. We'll begin with the government.

Mr Hardeman: Good morning, gentlemen, and thank you very much for your presentation. It was a very thorough presentation, not only pointing out some of the concerns you have with the bill as it is before us but some recommendations that will help make the situation better.

Recognizing that the bill eliminates the government-funded part of the program as it relates to where companies go bankrupt and there is no money to pay the workers, the government pays the workers out of general revenues. The program, of course, has been set up for a number of years and the original intent, and honourable intent, I'm sure, was that the money would be paid out to the workers and then it would be collected to a great extent from the employers and the government would just make up a small portion of that cost.

Time has passed and the program has been in place for a while. In fact, $200 million has been paid out and $8.5 million over that period of time has been collected back. It becomes quite obvious that the program was not working the way it should, and our government's position is that we don't think it's appropriate that taxpayers should make up that shortfall. I appreciate in your presentation that you make some suggestions that would help that.

As it relates to, just quickly going over some of your suggestions, the ability of the Ministry of Labour to be more involved in making sure that these collections take place, Bill 49 includes that the minister can bring in the private sector to collect on behalf of employees who are owed wages.

My understanding is that presently there are tenders out for the private sector to put forward their proposals to get the job of helping to collect wages owed. Again, it becomes very difficult to do that from a company that has gone bankrupt, but we heard in a presentation the other night that a lot of this money was people not paying the bill, not because they were bankrupt but just because they didn't want to pay it. The example was given of a lady working as a nanny for a doctor who, at the end of the time when the nanny was not required, refused to pay.

That type of thing, now the Ministry of Labour will be able to make a decision based on whether the money is owed, and if the money is owed, turn it over to a collection agency to get it on behalf of the employee who is owed the money. I think that will go a long way to help deal with some of the employers who are unwilling to pay. That part will not deal with those who are unable to pay but it will deal with the ones who are unwilling to pay.

I think it's also important to point out, as you mentioned, that the Ministry of Labour has not been as vigilant as it should be in enforcing the Employment Standards Act. I think it's fair to say that they have been more vigilant in the last few years than they were prior to that. If my statistics here are right, the Ministry of Labour in the previous government, enforcement was one area that they didn't --

Mr Hudak: It was weak, wasn't it?


Mr Hardeman: I would suggest that wasn't one of their highest priorities. They cut the number of employment standards officer positions. There were 181 in 1991-92 and down to 166 in 1994-95. That was one of the areas that the government didn't deem it was necessary. The backlog of cases in that time went up to 9,985, the highest-ever backlog. They cut the Ministry of Labour by $63 million, more than 33% over five years. I guess the intention at that point was not to enforce the employment standards and, of course, also not to enforce the payment of the money that was owed to workers. We have increased that and we think that's where the emphasis should be put, that we should enforce the employment standards and also the paying of the wages.

One other area you talked to was the issue of the alternative, unemployment insurance, that workers are staying on the job because they don't want to go on unemployment insurance. It would seem to me that if they're not getting paid -- unemployment insurance is money they've put in to cover them if they are not working. That is not a government subsidy, that is not a government grant; that is money owed to workers who find themselves unemployed. I have some concern, even in a presentation, that anyone would consider that unemployment insurance is the same thing as having someone help you. That is not help; it's insurance that you've bought. In fact, presently there is more money going into that than is coming back out. I think it would be important that we recognize that.

The other issue you mentioned was bankruptcy. I think the provincial government is on record with the federal government to suggest that they should look at the Bankruptcy Act to make sure that workers' wages take priority over other expenses. As it presently is written, in most bankruptcies wages go far enough down the line that they re not a preferred creditor, and in most cases they do not get their money. We think that the workers' wages should be at the front of the line before some of the other secured creditors. At this point in time, the federal government has not seen fit to change that but we are still hopeful that they will in the near future.

The Chair: Mr Hardeman, your time has expired.

Mr Hardeman: Again, we thank you very much for your presentation and we want to assure you that we will be working towards solving that problem.

Mr Patten: I just have a few short comments -- excellent presentation, by the way. It's significant that these are your concerns and you're addressing just this one area. We have been suggesting that for Bill 136 purposes this particular program has nothing to do with the intent of the bill. It has absolutely nothing to do with it. When you address the issues of this program that's there, you're really talking about helping probably the lowest-paid people in our society, the people who are the most vulnerable, people who are exploited, and it's being removed. We have concerns about that. We're against taking this program away, by the way, but it will be up to the government to determine that because they have a majority.

It seems to me your statement, "If the Ministry of Labour can't take up the role of protecting workers, we really wonder what would be the purpose of setting up a ministry," is a very good question. One of the problems they had is that the ministry has been cut significantly, so a lot of the follow-up to check on programs -- what's happened is that they have fewer investigators to do that. There go the employers again getting off on things. It's not only in this program; it's the same thing with workers' compensation. It tells you about this government's values, where they place them. It's not with the workers, it's not with the employees, it's not with the average person who is trying to scrape out a living; it's with the employers, and they are usually the ones who have more resources and are usually the richer in our society. So it tells you where their values are.

You point out that if people don't get their wages, then they don't even have money to carry them over, they may lose their credit at the bank, they may not be able to feed their families, they have to go on UI and then perhaps even on welfare and it's very destabilizing. I think your point is well taken. We accept your arguments on this. We will propose to maintain the program, but I think you'll find that this government will not support that and that they will do away with it, which we find regrettable. Thank you for your arguments. We will certainly use these in trying to make the argument that the government should retain it.

Mr Christopherson: Thank you very much for your presentation. This piece here is just one of the most ugly aspects of Bill 136. As my colleague Mr Patten has said, it has nothing to do with municipal restructuring, absolutely nothing, and like the pay equity take-aways, it's like a drive-by shooting: "While they've got Bill 136 on the floor and everybody is looking over here, let's grab a couple of more benefits from the most vulnerable workers in society." That's what we're talking about. In many cases, in most cases, the lowest-paid workers in our entire province have some protection under pay equity, and the employee wage protection plan has nothing to do with restructuring, and those are the two things this government is going after, in addition to everything else, in Bill 136. It's just so ugly and so obvious to anyone who looks at it that that is what they're doing.

Let's go back. You well know that it was the Lark case, as the Employment Standards Working Group point out on Wednesday, that pointed out where there were hundreds of garment workers, Chinese-speaking garment workers, as it turns out, who showed up for work one day and found the doors locked. The place was closed, they were owed thousands of dollars and the same board of directors went on to open up at least two other factories and shut them down in the same fashion and left hundreds of more minimum-wage workers out in the cold with no money.

We stepped in, as an NDP government, and said: "Enough is enough. If the feds aren't going to act" -- unlike the government backbenchers who mouth the party line about it being up to the federal government. The federal government has not done it so far. That still doesn't help; telling workers that doesn't help anybody, although it is true that the federal Liberals had a chance and they dropped that part from their bill in the last term of government. That doesn't help workers who are left out in the cold.

This plan came in so that workers who live from paycheque to paycheque making minimum wage in most cases have a chance to survive when they've been dumped on. The argument from the government is just so thin and specious and unsupportable. First of all they say that because the Ministry of Labour hasn't been able to collect the money after it's been paid out to the workers -- and that's the plan. The workers don't have the ability to go after these big employers. They're making minimum wage. How are they going to hire a lawyer to do it? So the government covers their money for the time being and uses the force of government to go after them.

The current Tory backbenchers argue, as Mr Hardeman did, that because that money hasn't been collected, therefore the whole thing is a failure. But that's to suggest, in my opinion, that if the force of the provincial government can't get the money out of them, how the hell do you expect a bunch of workers who are owed a lot of money, minimum wage, to do it? You're prepared to just write them off.

The fact of the matter is, you're so proud of the privatization of your new collection agency, you ought to be standing on the hilltop saying, "Don't worry, we'll be able to take care of it now because we've got this new-fangled system." But you're not saying that either.

The fact is that it's a question of justice, and again, the Employment Standards Working Group raised this the other night. We don't say to rape victims, "All the money that is spent to catch the person who raped you is your bill." We all share in that cost as a part of society. In fact, the victims of crime compensation fund gives money, compensates people, for pain and suffering when they've been victims of violence. We all pay that. There's no collecting back. We recognize that as a natural piece of our justice in this society.

When banks are robbed and the police spend who knows how much money going after the bank robbers to return the money, is the bank sent a bill for the police work, for the prosecution work? No. If there's credit card fraud and months are spent on an investigation by undercover officers to find out what's going on with all this fraud, is that money then billed back to the bank? No. We pick that up as the price of making sure there's justice in our society. But when it comes to workers, minimum wage workers who have been stiffed for money they're owed, you're prepared to turn your back on them and say: "Oh no, we're not going to pay that. That's not part of our responsibility."

This is such a crime and it's so vicious and mean-spirited and points out the direction of this government that it's just beyond words. I want to tell you that this one -- because I was there when we developed this and I grant you it's not perfectly funded and the employers should pay for it. But you're not offering a different way of funding it. You just want to kill it and leave all those tens of thousands of workers out in the cold. With the other changes to your labour laws, a lot more of those people are going to be left out in the cold and now they won't even have this to go to.

I guarantee you we will continue to fight about this and I personally will argue and scream about this long after they've rammed through Bill 136, because this is just patently unfair and morally bankrupt.

The Chair: Thank you very much, gentlemen, for coming before the committee with your advice this morning. We appreciate it.

Mr Yao: Could I have a quick response?

The Chair: Very briefly. Mr Christopherson used his time.

Mr Hudak: You can have my time.

Mr Yao: I'd just like a quick response. From our experience, a lot of the workers who are using the program are the people who are coming from places that are bankrupt and have been closed down. From my experience, not too many are cases of employers that are unwilling to pay. Most of these cases are closure and bankruptcy.

Mr Christopherson just talked about the Lark case. Actually, the Lark case is just part one. To me there are always other cases very similar in nature to Lark that are still continuing in society. Recently, I met with a worker who told me he worked here for five years and he had at least three different experiences of getting into closure or bankruptcy and he didn't get the money. Something has to be done in this area, how to stop this thing or how to provide the kind of minimum protection to these workers before the wage protection program is going to be killed.

The Chair: Thank you very much. You didn't actually have any time to give away, but I'll assume that was unanimous consent. Colleagues, that's our last presenter this morning. We'll reconvene this afternoon at 1 o'clock.

The committee recessed from 1203 to 1303.


The Vice-Chair (Mr Jerry J. Ouellette): We'll call this afternoon's session to order. If the presenters seated could identify yourselves, your organization and your names for Hansard, you have 30 minutes for presentation. Any time remaining after you make your presentation is divided equally between the three caucuses for questions and answers.

Mr Michael Hurley: Thank you very much. My name is Michael Hurley. I'm with the Ontario Council of Hospital Unions of CUPE. With me today is Margaret Evans, research officer from the Canadian Union of Public Employees, and Vanessa Kelly, also a research officer. We thank you for the opportunity to make a presentation about Bill 136.

I would just like to start off by saying that we represent 20,000 workers at 90 hospitals across Ontario. We represent people who do cleaning, registered practical nurses, dietary staff, laboratory technologists and technicians, laundry workers, paramedics, ambulance staff.

So you get a reference on where our membership is at, about 80% of them are women. Many support their families on their incomes. Their average income is $26,000 a year. They're spread out in communities like Port Colborne, Stratford, Owen Sound, Lindsay, Oshawa, Perth, Smiths Falls -- all across Ontario.

These workers don't have the legal right to strike, as you know. They've been under compulsory binding arbitration since 1966 when the Hospital Labour Disputes Arbitration Act was introduced. I know that you're aware that it's the policy of the United Nations International Labour Organization that when the right to strike is taken away from a group of workers because they're deemed to be essential, there must be a fair, independent, impartial system for resolving disputes for those workers. Otherwise their actual condition is not too far removed from enslavement, really, because they are chained to work, they are deprived of the right to strike and yet they are doomed to a system for resolving their contract disputes that can strip them, in round of bargaining after round of bargaining, of any of their contractual rights.

But more significantly, in your deliberations around Bill 136 you want to consider that groups of workers in our situation need to have a just, independent system for dealing with disputes. Otherwise that system is going to fail, and when it fails, that means people will exercise strike action whether they have the legal right to do that or not. That would then disrupt essential services, which of course no one wants to have happen. So societally, Ontario and other jurisdictions have a real interest in ensuring that groups of workers in this situation are treated appropriately.

Just again to reference you in terms of where members are coming from, you know that they are employed in the Ontario hospital system, which is undergoing a radical restructuring. Up to 60 hospitals are in the process of merging or closing. I'd like to put on the record for you, because I know part of this legislation deals with the need to resolve restructuring issues, I'd just like to make it clear that wherever hospitals have restructured there have been agreements reached, voluntarily or through arbitrated processes which the parties have agreed to, that have resolved all of the complex issues, including seniority rights, which have arisen as a result of restructuring.

There's a huge downsizing going on. There were 220,000 people employed in the hospitals in 1990; there are 160,000 today. So 60,000 people have lost their jobs, and the Health Sector Training and Adjustment Panel, which is funded by the government, predicts the loss of another 50,000 people over the next three years. So you're going to see the workforce cut in half.

At the same time the Ontario population is increasing, there are fewer hospital beds, people are staying in hospital for shorter stays, the patients we're caring for are sicker. In 1995, the Ministry of Health indicated that the productivity of this workforce had gone up by 18.5% in that one year alone. I think you're aware the OHA's just recently released a report that substantiates that the work these people are doing is back-breaking, emotionally, physically and mentally exhausting. They are collectively working very hard to try to keep a health care system together despite deep funding cuts. They're working very hard for the people of Ontario.

They're working in an environment where everyone is afraid of losing their job. Nobody expects that they have a job for life in the hospitals by any means. The threat always exists that these places can be closed. Again, half the workforce will go in a 10 year period. No one expects they have lifetime job security, but people do expect that the limited job security they have in the contracts they've negotiated with the hospitals and the hospital association will continue.

It's in that respect that they're very concerned about Bill 136. They're especially concerned because in the briefing that the labour unions received from the Ministry of Labour, the contracting-out protections that exist in the hospital collective agreements were specifically mentioned as the kind of provisions that the government wanted to have access to, to change or to remove, and that they were prevented from doing as a result of the current arbitration systems.

I just reiterate that our members are working in a very insecure working environment and that, as you know very well, they don't do this work as a summer job. They have families to support. They cannot afford additional risks of being insecure and they cannot afford a future where their wages could be cut by three or five dollars an hour. They look to how the government dealt with the doctors who work in our system with us, side by side, and they see the doctors in a situation where there will be no layoffs for that group and where there are in fact generous wage increases. This of course is much different from the proposal before you and before us in terms of how our terms and conditions of employment will be dealt with.


Bill 136 would set out some fundamental changes to the way in which we bargain our contracts. I'd just like to touch on some of them, if I could.

First of all, the theory for changing the current arbitration system is that there are delays in releasing an arbitration award and that the arbitration process can take a very long time to achieve an end product. That is true. Arbitration can take some time in order to reach a decision. In the essential service system, I think the test of whether the arbitration system works is whether the parties have agreed to live under it and whether there have been disruptions of essential services during this period. There have not been. Police have not been going on strike because they're dissatisfied with the results of arbitration awards, hospital workers haven't, and firefighters haven't. There are delays in the arbitration system. Often those delays are caused by the fact that there are lengthy periods of time spent in collective bargaining rather than in arbitration itself.

With respect to the statutory criteria and the best practices in Bill 136, we'd like to be clear that if arbitration is to be independent and if it is to be impartial, then the government can't skew the arbitration process by directing arbitrators to be cognizant of only some factors in making their decisions and to give those factors special weight, especially when those factors favour the employer and especially when the government, in the case of ability to pay, is actually ultimately responsible for how much funding these employers receive.

With respect to imposing time limits on arbitration boards, the effect of time-limiting the arbitration process will be to restrict the ability of experienced arbitrators to hear cases in the public sector. People who are well respected and people to whom the government turns to resolve difficult labour disputes -- for example, to mediate -- are quite busy. There are major contracts for huge groups of workers. CUPE has some 26,000 under central bargaining; ONA has tens of thousands under a central collective agreement; the service employees do also. These are very complex negotiations. They resolve issues for tens of thousands of people at one time. They need to be dealt with from a perspective of experience and impartiality. We fear time limits would have the result of restricting the participation of people who could hear these cases to those who are not busy, to those people to whom the parties are not looking to resolve disputes because they're not that experienced.

With respect to the additional powers being given to the Ministry of Labour in the proposed Bill 136 to not only identify an arbitrator but also to impose a process on the parties, I'd like to talk about that for a minute. It is in everyone's interests that as many decisions as possible be made and resolved by the parties to the particular labour dispute, because they have to live together after this is over and everybody has to live with the end result.

The process that's appropriate to be used in collective bargaining is a process which should be worked out between the employer, in our case the hospitals, and the union. If the Ministry of Labour imposes a process like final offer selection on the parties, then that is going to have a very serious impact on the future relationship between the parties to collective bargaining. I think we should be very, very careful about that. If the union and the employer cannot identify the process, then surely it should be in the hands of the arbitration board. I would just like to flag for you that the tripartite arbitration system which has been working successfully in health care, and other essential services, very much needs to remain in place. The roles of nominees to these boards of arbitration are extremely important in helping to resolve issues, in helping to ensure that the award itself is a balanced one and that it will not result in upheaval afterwards.

I'd like to talk about the processes of mediation-arbitration and final offer selection. I'd particularly like to put on the record our difficulty with final offer selection. I'm sure you know very well, because you've been examining this legislation, what final offer selection is and what it implies. Basically, it's possible for the employer to put together a proposal to take from the collective agreements the job security sections of those agreements; for example, notice of layoff or work in the bargaining unit or contracting-out protections. It's possible to put a proposal like that together, it's possible for the union to put a counterproposal and it's possible that the union could loose all of its job security out of its contract in one fell swoop, in one decision at the very time when our members are most reliant on that job security.

I can tell you with absolute confidence that we will not submit ourselves to that level of risk. We won't. We would not go to arbitration under those circumstances. We need to talk frankly about that. I'm going to come back to that in a second.

The limitations on the hearing process: There are proposals that the unions would not necessarily be able to produce evidence at arbitration to substantiate their position if it had not been produced during the mediation phase of mediation-arbitration. I want you to think that if the true purpose of this act is to encourage people to engage in collective bargaining and resolve disputes wherever you can, then when you approach mediation from the perspective of having to disclose all of the evidence that you will subsequently want to put in play at arbitration, otherwise you would be forbidden from doing that, then you burden the bargaining or the mediation part of the process with all of this technical information which is just going to cloud things and obscure for the parties any middle ground in terms of reaching agreement. We're quite concerned about that.

We're quite concerned also about the proposal that the arbitrator could restrict the right of the parties to produce evidence in the sense that they could say: "We heard a lot from both the hospital and from the union about the wage issue in bargaining. There's no more information that we need to hear. We don't actually have to have a hearing on wages. I know what I need to do. I'll just make an award." There are natural justice, due process implications in those kinds of limitations which are very frightening from the perspective of the union. I would urge that you reconsider those and the other sections of the legislation I've touched on.

I'd just like to come to the goal of this legislation. One of the stated goals that we heard for introducing this legislation was that the government was interested in having a smooth transition during restructuring, and that particularly they were concerned that there not be labour disruptions during restructuring. I can tell you -- I'm not making an idle threat, and it gives me no pleasure to be here today to make this statement to you -- with absolute confidence that the hospital workers represented by CUPE will not submit to an arbitration system which is not impartial, which is not independent, which is burdened with restrictions that limit our rights under law and due process and natural justice, which imposes upon us risks that are totally unacceptable. We would not do that. We would not go there. We would strike first.

I ask you: What would be the possible sense in introducing amendments to the arbitration system that could result in this kind of disruption of essential services? Does that not completely contradict the purpose of this legislation? I would also put to you that if on Monday, when we see these amendments, there are restrictions proposed on the right to strike and if those restrictions result in people coming to arbitration and if that arbitration process looks like the one which you have set out here, you're going to face massive disruptions across the public sector, because workers will simply not put up with this. What the government has proposed here in Bill 136 is very serious. It goes far beyond the scope of restructuring.


I'd just like to conclude by reminding you that in the hospital sector in Brockville, in Ottawa, in Windsor, in all the communities which have restructured, where agreements have been required to work out complex issues like the transfer of workers and programs and services and seniority and what rights those workers carry and what will happen to other people and the size of their severance packages, the unions and the employers in the hospital sector have been able to voluntarily work out all of those issues. There is no need for most of what is in Bill 136. I particularly caution you around the changes to collective bargaining either for workers who currently have the right to strike or for those like ourselves who do not have the legal right to strike.

Thanks very much. If there's time and you have questions we would be happy to answer them.

The Vice-Chair: Thank you, Mr Hurley. You leave approximately four minutes per caucus for questions, and we begin with the official opposition.

Mr Patten: Michael, it's good to see you again. This is pretty serious stuff, as you were saying. I've been asking especially those who are the essential worker groups -- the firemen, the police and the hospital workers -- this question. I don't know if you had a transcript of the minister's comments at the opening of the hearings here, so I'd like to read a little section to you which I think addresses your major concern, and that is, we're prepared to live with this if we're convinced we've got arbitrators who are impartial and independent and they're not fettered with a whole variety of additional criteria that are really going to tilt the balance in favour of the employer, or either way for that matter, their job is to be fair and is to provide mechanisms so that the two parties can really work out an arrangement that they both feel they can live with, they may not be perfectly happy with but can live with.

I'd like to read this to you because it sounds to me as if you're headed for a confrontation. This is what the minister said, and she's referring here to the government's proposed changes to Bill 136. These are the proposed changes after the time allocation motion that came into the House.

"The government's proposed changes to Bill 136 will change the Fire Protection and Prevention Act, the Police Services Act and the Hospital Labour Disputes Arbitration Act to create expedited time lines to ensure the quick and timely resolution of disputes in the police, fire and hospital sectors. It will continue with the Bill 136 changes which provide arbitrators with more choice to deal with collective bargaining disputes in the police, fire and hospital sectors. More choice is going to include using mediation, mediation arbitration and final offer selection during the arbitration process."

This is the sentence I think is most crucial:

"As well, we will continue to require arbitrators to consider various criteria such as" -- which means these aren't necessarily the total criteria she's referring to, because we haven't seen the amendments -- "a public sector employer's ability to pay and the extent to which services would have to be reduced if funding and/or taxation levels were to remain unchanged."

I would get worried in not having the amendments before us. That's why I get worried and I suspect why you're probably worried too. But does that provide any consolation to you?

Mr Hurley: No, absolutely not. In fact, it fills us with grave concern. We're anxious, as you are, to actually see the amendments. But unless the government can move off these kinds of changes to the arbitration system, then I'm afraid that the outcome is a bit of a foregone conclusion, for us anyway. We simply will not agree to submit to that kind of system, because it's not a fair system. It's not impartial. It's not neutral. It's basically been told and directed what outcomes are expected and been given the tools it needs in order to achieve those outcomes. That is not acceptable, unfortunately.

Mr Patten: The government side argues that it's standard practice to not have amendments. We submit that the proposed amendments that we haven't seen yet are so essential to the legislation that you can make a case to say you should redraft the legislation and resubmit it, because it's so fundamentally changed. It's normal practice, if you're talking about peripheral issues or non-substantive issues in a piece of legislation, to submit them. Why do you think they don't want to submit the amendments before next Monday?

Mr Hurley: I'm very concerned that the purpose of delaying the disclosure of the amendments is to forestall job action by public sector workers, to limit the amount of time we have available to us to react to the legislation by taking job action prior to passage of the bill. I'm very concerned, not wanting to be paranoid, that some of the commitments that the minister has made may not be evidenced by the amendments. Of course, people would feel very angry and betrayed about that and there would be a reaction. To be honest with you, that would be my --

The Vice-Chair: Thank you, Mr Patten. We move on to the third party.

Mr Christopherson: Michael, good to see you again. I want to come back to final offer selection. We may all have a good grasp of it here, but part of the purpose of having these hearings in the Amethyst Room is that we have the cameras, and with the House not sitting, this is being beamed live across the province right now. I think it's important for people to understand what exactly are the circumstances that you're saying you will not participate in, because the cards are stacked against you before you even start.

What the government is talking about is a process where negotiations break down, there are two positions, the employer's position and the union's position, and they're both put forward to the arbitrator and at the end of the day the arbitrator decides on this package in its totality or this one. It isn't even the cut and thrust of negotiations where, "I think you're asking too much on the wage side and I think the employer is being far too restrictive in the process for grievances," and you pick and choose and come up with a balanced, fair package -- words the current Minister of Labour likes to bandy about but not put into practice.

Your concern is twofold, and please correct me if I'm wrong. One is that the down side of just that system is that if the arbitrator should choose an employer package -- and I would say employers ought to be just as worried about this, which is arguably why they're not keen on it -- but certainly from your point of view if an arbitrator chooses the employer's package and in that arbitrator's mind it makes more sense on the wage side, on the benefits side and perhaps a couple of others, and you have to wear all of it, there may be some clauses in that last position that take away fundamental rights that might not have even been the focus of much of the negotiation, might not have been the primary focus, but that was something they were insisting upon having, especially if it's a takeaway, and if that package gets taken, as outrageous or unfair as those clauses might be, you wear them, they go with the whole deal.

Now, let's step back. At the same time the government is saying that's the process it wants you to go into, it's also saying that arbitrator has to consider best practices, which of course as we know sounds good and makes sense, like you ought to use the best practices to do anything. Well, hey, give me a break, this is revolutionary thinking. The real concern is labour knows those are buzzwords for what is the cheapest cost, especially compared to the private sector, no matter what. If it's cheaper, that qualifies as better. That's the concern around best practices. What do you mean, best practice?

The other is that ability to pay. Again, if the employer who can raise their own taxes and set their own expenditures -- unlike any other employer, they control all of the financial levers -- decides not to have enough money in their budget to put forward, you're stopped. If they, the employer, build a final offer that meets those criteria and then load up the other takeaways and other parts of it, you've got a double whammy. You've not only got an unfair process if it didn't have the criteria, but once you put the criteria in there, they can load this thing so the arbitrator says, "This is closest to the criteria that I have to adopt or follow," and then with that comes all these other major takeaways.

Please tell me if I'm wrong and expand on it to make it very clear to somebody sitting at home saying, "Why is the union opposed to an arbitrator deciding which one gets to win and why are they opposed to best practice and ability to pay?" I think it's important we get this message out.

Mr Hurley: With respect to best practices, you would think that it would be a best practice that the people who work in the hospitals are doing the work that two people did only four years ago and that despite the tremendous increases in the number of people we are caring for, we are working very, very hard, have had no wage increases for years and in fact have had wage rollbacks. You would think that would be taken into account. But "best practices" really is code for driving down labour costs and bringing in private contractors. That's what it really is, which we find offensive because we think we're working hard for the people of Ontario and we expected better.

The prospect we're facing under Bill 136 is that, first of all, with the time limits that exist in terms of the production of awards, we're going to meet an inexperienced arbitrator. We're not going to meet someone with experience to resolve our disputes.

The fact that they are told by the government that they have to look at the ability of the hospitals to pay, and the affordability and efficiency, and to maintain and impose best practices on the party, means that the whole process is tilted now in favour of the employers and in favour of reducing government spending.

Remember, it's the government which has made the funding cuts to these employers and is now saying to the arbitrator who makes the decision: "Oh, by the way, the employer has had a funding cut. You need to take that into account."

The Vice-Chair: We're going to have to move on.


Mr Christopherson: Don't worry. We'll keep hammering on it the rest of the day, I assure you. Thanks, Michael.

Mr Hudak: We have to be careful in thinking about who the employer is, whether it's a hospital or a school board. Ultimately, the employer is the taxpayer. It seems to me sensible that we have to always take into account the taxpayers' ability to pay for those services. Under the social contract, it's true, we in government, MPPs, took a pay cut. We made that permanent. MPPs scrapped their gold-plated pensions and reduced their legislative budget. Because taxpayers are the employers and they pay those bills, it seems to be eminently sensible that when you're talking about any public service, we really have to take into account the people who help pay those bill and ability to pay.

On the topic of best practices, to make sure there is accuracy in the chamber, Bill 136 reads, "To encourage best practices that ensure the delivery of quality and effective public services that are affordable for taxpayers." It talks about quality. I think Mr Christopherson's comments weren't entirely accurate in that respect. Let me give you an example of what that may mean. An arbitrator -- and, mind you, it is arbitrators who are doing this, not the government, to correct the record on that too -- may say that in the example of the Toronto General and Toronto Western hospitals, where it's taken 11 years or more to bring those collective agreements together, a quality issue may be whether there should be one bargaining agent instead of two. So a situation that currently exists where a carpenter can't move from one site to another to do work and they'd have to contract out, we should resolve that. I think that's what a quality issue is. I think when you look at the arbitrators' decisions, they do take into account quality and, importantly too, can taxpayers afford these services.

The other point I wanted to bring up is on final offer arbitration. You talked about the difficulty and uncertainty. I know there are very difficult jobs in hospitals and uncertainty doesn't make that any easier. So it seems to be very sensible that you want to get through the transition, through amalgamations, as quickly as possible -- being fair, but as quickly as possible so that uncertainty doesn't last four years, six years, 11 years. What I see as a strength of final offer arbitration is that it encourages agents to work together as best as possible before they go to that arbitrator. Mind you, the arbitrator has a series of choices. He can send you back for more mediation, he can do mediation-arbitration, or he could do final offer.

The point I want to get across is, the quicker you get through the transition -- quickly and fairly -- the less that uncertainty is and the more quickly we move to more effective and accountable public service; but also importantly, the more we get the agents to work together, the employer and the employees, the less reliance they have to have on arbitrators, I think the happier they are at the end of the day. That's where I'm coming from on that legislation.

Mr Hurley: May I respond?

Mr Hudak: I just had one quick question. We had some suggestions. When you bring in different bargaining units together, does it make sense to have those bargaining units, through a secret democratic ballot, determine who should be the ultimate representative when you're bringing several units together?

Mr Hurley: Can I answer the questions?

The Vice-Chair: Yes.

Mr Hurley: First of all, with respect to final offer selection, there was a study done of the arbitrators in New Jersey who do final offer selection. They have that in place, in law, in New Jersey. They reported that final offer selection has a chilling effect on bargaining and that in fact it discourages people from reaching voluntary collective agreements.

The problem with final offer selection is that one party to the process risks losing everything. I can tell you, on behalf of the people at the Port Colborne and Fort Erie hospitals in your constituency, that the prospect to them that the few provisions they have in their contract that say that you can't just bring in a contractor to do their work tomorrow and displace them permanently, those people who are working so hard to try to keep the hospital system together despite deep funding cuts, they are working their hearts out for the people of Ontario, that's all they've got in there and you're proposing a process whereby somebody can say, "We award the removal of all of the job security out of their contracts," and it's gone.

If your expectation is that people will submit to that process, I tell you authoritatively, and I hope convincingly, we will not do that. We will not put our job security at risk. We've had huge layoffs. We accept that. Nobody has lifetime job security in the hospitals. I think the public knows that we're working hard. But one thing we will not do is put at risk our families' future livelihoods just because the government has put in place a totally skewed, biased arbitration process.

The Vice-Chair: At that, I'm afraid we're going to have to call it closed. Thank you very much on behalf of the committee here. We appreciate you taking the time to bring your perspective forward.


The Vice-Chair: We call the next presenters forward, please, from the Service Employees International Union.

Mr Ken Brown:. My name is Ken Brown. I'm the Canadian vice-president of the Service Employees International Union. With me are Michelle Sherwood, a research associate with the union, and Adrianna Tetley, education coordinator of the international union in Canada.

Before I start with my presentation, I might respond to the last question put by the government. I would remind the government that there are 500,000-plus public sector workers who are indeed taxpayers. It's not the duty of arbitrators to decide what services this government is going to provide; that's the duty of the government. If they want to encourage negotiation, they could institute totally free collective bargaining with the right to strike.

SEIU in Ontario represents some 44,000 employees within the various sectors of the health care industry that are governed under the Hospital Labour Disputes Arbitration Act, roughly half of them in hospitals and the other half in long-term facilities -- homes for the aged and nursing homes. We also represent approximately 2,500 to 3,000 support workers in school boards.

We thank the committee for giving us the opportunity to present. We do, however, have serious concerns about the public hearings process. We are extremely concerned that the minister has broken her promise to undertake province-wide hearings on the bill which would give affected groups across the province a realistic opportunity to comment on the substantial changes to the labour dispute resolution process contemplated by Bill 136.

Like every other group presenting in the province, we are also hampered by the fact that we have not seen the amendments which we understand will be tabled by the minister next week, amendments which we have been told will fundamentally alter many of the major features of Bill 136.

We wish to record our dismay that the short time lines for the public hearing process as well as the inability to debate the actual amendments apparently forthcoming in this legislation have compromised the integrity of a process whose aim is to foster full and informed public debate of the issues.

With respect to the bill itself, the entire premise behind Bill 136 was to speed up the process, to speed up the labour adjustments during restructuring. Yet unions and hospitals say, "Slow down." Bill 136 was originally designed to meet your fast-track agenda to restructure hospitals. The government said that hospitals and municipalities needed it in order to meet time lines. The advice from everyone is that your own time lines don't work. SEIU and other unions have been saying for months that quality of care is deteriorating and workers are burnt out and stressed out.


Yesterday the OHA joined labour's request to slow down. The OHA released a report they commissioned from the business school at the University of Western Ontario. This prestigious business school has said, "Slow down," that hospitals are expected to do in two years what most businesses would take eight years to do. The report stated what labour has been saying all along, that the speed has led to care deteriorating from excellent to satisfactory. I would suggest that in some parts of the province it's less than satisfactory. In my own home town of Windsor I believe that to be the case, not only as a union representative but as a recent recipient of care spending two weeks in the hospital. There are stressed-out and burnt-out workers and there is not enough money or workers to cope during the restructuring process.

The existing labour relations system, while not perfect, is working. We talk about restructuring. There were five hospitals and five unions representing approximately 4,500 workers in Essex county that, under the existing legislative framework, voluntarily came to an agreement on human resources issues that talked about seniority, talked about bargaining agents and bargaining rights, dealt with issues of union representation -- all of the issues ostensibly to be dealt with by this bill. We did it in a timely fashion, we did it without disruption of the services to the community of Windsor, we did it by respecting the rights of both parties and we did it under the existing legislative framework through negotiation and mediation-arbitration.

While the direction we are hearing from Minister Witmer is encouraging, we will need to see the government's amendments before we can be sure that the government has listened to what the public and labour have been saying.

SEIU is ready. We have held job action votes across the province, with over 90% support. We encourage the government to continue to dialogue with labour and to continue to move in the direction of ensuring the unfettered right to strike and an independent, impartial arbitration system for workers who do not have the right to strike.

A particular point of frustration for health care workers is that the media and the government have really been focused on the issue of the right to strike. As you know, health care workers do not have the right to strike and have not had that right since 1963. I heard an earlier speaker say 1966; I thought it was 1963. But at any rate, it has been 30-plus years. The existing impartial, independent arbitration system came as a result of some hospital strikes in the early 1960s. So an independent arbitration system is as sacred to health care workers as the right to strike is to workers in other sectors of the economy.

Given what we understand the amendments are to include, I would like to take this opportunity to make comments on a few specific areas of the bill: the principles of the unfettered return of the right to strike and the need for a neutral, fair, impartial arbitration system. I would refer you to the code of ethics, page 3; I'm not going to read it. You received the brief earlier from one of our SEIU locals.

Changes to the interest arbitration system must contain a process for appointment and selection of arbitrators that is acceptable to the parties. If it's not acceptable to the parties, it just frankly won't work.

The Bill 136 criteria -- the ability to pay, best practices -- those issues really strike directly at the impartiality issue. I'm particularly offended by the notion of the best practices with consideration of affordability to taxpayers. It seems to suggest that cheaper is better. It doesn't take into account the quality of services delivered in that situation, and it doesn't take into account the economic impact of throwing potentially thousands of public sector workers out of work or into low-paid, part-time, minimum-wage jobs.

We had an example in Essex county. A number of years ago the Essex county separate school board decided they were going to use contractors to clean their schools because it was less expensive. Over a period of about five years, about half of their schools were cleaned by contract cleaners. That board was having all kinds of difficulty with quality: The schools weren't clean, they had the loss of the importance of the custodian as part of the school family. For a whole number of reasons -- not one of which was because the union had such bargaining leverage over them; by that point, they had reduced the strength of the union -- that employer came to us and wanted to go back to utilizing their own custodians to clean schools so that they would have the control, the quality and a better environment in their schools. They've since done that, and both parties are quite happy having had the experience of trying something that on the surface looked like it was going to be cheaper.

The importance of nominees on boards of arbitration: As opposed to being a hindrance or something that's going to slow down the system, often in a negotiation system, in an arbitration system they help expedite and mediate and get those items off square one and get them to settlements, as opposed to being something that slows the process down by having the sidespersons.

The alternative dispute resolution processes: Although we are quite open to alternatives -- mediation arbitration is an example that may work; it's something we have utilized voluntarily in negotiations -- we're very concerned that the idea of a final offer selection is something that is not going to work. You had quite a discussion of that with the last speaker, and I'm not going to get into it any further other than to say that on the basis of a system that has to be acceptable to the parties that are using it, none of the parties to these processes has embraced that notion. For that reason alone, I would suggest it's something that's not going to work.

Expedited processes for interest arbitration: Expedited time lines for interest arbitration of course are an admirable goal, but anything that's done in that regard must be realistic and must not stifle the opportunity for the parties to have a full, impartial and fair hearing.

Labour relations restructuring issues: While we are pleased by indications from the minister that the government has abandoned its plans to create a new commission which would duplicate the functions of the existing Ontario Labour Relations Board, we are extremely concerned that the OLRB's credibility as an institution with a long and trusted history of independent and impartial adjudication not be compromised by the imposition of new criteria which will fetter the board's discretion to determine the labour relations issues arising out of restructuring. It is our position that the board has the experience and expertise necessary to deal with the issues which will arise in the restructuring process, with recourse to the existing policies, practices and jurisprudence of the board.

The importation of the LRTC criteria and in particular those criteria set out in section 1 of the purpose clause of the Public Sector Labour Relations Transition Act can only have the effect of undercutting the board's credibility as an impartial and independent adjudicative body. It is our submission that while clearly the board requires some expanded powers to deal with the issues which will be raised by large-scale restructuring, the legislative changes necessary to provide the board with those temporary powers should be restricted to the following areas: reconfiguration of bargaining units where there's intermingling, expedited hearings, determination of bargaining units, determination of bargaining agents, seniority in the new bargaining unit, composite collective agreements and early or common expiration dates.

In conclusion, we say to the government: Slow down. Everyone, now including the OHA, is saying you are moving too fast and have a schedule that is unrealistic. Everyone is suffering: patients, workers, families. Bill 136 clearly won't speed up the process. We know from our members, with the strong mandate for action and the public support we are getting in our communities, that they will take action if Bill 136 goes through as originally tabled. We need to see the amendments. We need time to reflect on them before we can pull back our members' readiness to take action. As you continue to write the amendments, we need to be assured that the main principles are entrenched: the right to strike is unfettered; an independent, impartial arbitration system.


I said in the presentation that SEIU members across this province have voted over 90% in favour of job action over Bill 136. These workers don't want to fight. The leadership of our union doesn't want to fight with this government or with the employers. We are largely deemed to be essential service workers who cannot strike by law, and our members accept that. What we want is to be treated with the dignity and respect that ought to be afforded workers who provide such essential services as acute health care, long-term health care, support services and education. That is not too much to ask.

When treated with dignity and respect, we have a proven track record of working in cooperation with employers. In the examples I gave you, such as Windsor-Essex, Chatham-Kent, Sarnia-Lambton and London, health care restructuring and human resource issues have been resolved. We have undergone massive health care restructuring in those areas and worked them through, in the whole range of issues contemplated by Bill 136: bargaining units, union representation, seniority, treatment of non-union employees etc. We have done it through negotiations and under the current legislative framework.

Bill 136 is not necessary and will not work. Thank you.

The Vice-Chair: That allows us just about four minutes per caucus, beginning with the third party.

Mr Christopherson: Ken, thanks very much for your presentation. It's good to see you again.

Let me just say first off that if I were going to sign into a hospital for two weeks, I'd sure rather be signing my name Ken Brown than Jim Wilson. There are rumours that they've got cabinet ministers on a health kick because they're afraid to send them into any hospital in this province, but I don't know how much truth there is to that.

I want to pick up on something we started to talk about with Michael, just before you. I think it's important in terms of the message that's going out across the province. Every time the government members like to raise this 11-year issue; they're referring to an example of a situation presented by the Ontario Hospital Association the other day wherein they finally reached an agreement and it's been 11 years. It's CUPE that was involved but the principles are the same. This ties in also with the expediting process.

Anyone who is watching this or reads the Hansard will clearly see that the government leaves the impression, although they don't say it outright, that somehow it's the unions' fault, that they've clearly dragged their heels or for one reason or another have found it to their advantage to prevent common sense from prevailing and resolving this, that it's the unions' fault.

We have been trying to get across -- and it's my experience with the labour movement -- that in the vast majority of cases it's the unions that want expedited processes in labour law. They want the system to work fast because it's workers who can't afford to wait to get the justice they're seeking. But unions are only asking in any process, whether it's new or speeding up an existing one, that there's an element of fairness and impartiality and neutrality.

If that issue comes up with them again, I would urge you to hammer that message home, because they continue to leave the impression that it's somehow the unions' fault: "If there weren't that damn union there, we could have got this solved a long time ago." The reality is that it's the union that wants these things resolved because it's their members who need the money, if they're owed money, or who need the justice they've been denied in the workplace and they're going through the labour law to find a resolution to that.

Also, it's interesting that the Ontario Hospital Association did come out yesterday and say they're urging the government to slow down. It's amazing now, through this whole discussion of 136 and other labour law, how many times the labour movement has been proven correct. The labour movement said, from the time Bill 136 was dropped on the floor of the Legislature: "You can't do this. It's unacceptable. It won't work. Communities are not going to back you in putting the boot to us like this." And that's exactly what happened. Then, of course, we saw the great change on the road to Damascus last Thursday when the minister stood up and raised the white flag.

I want to ask you a specific question, though, Ken. Given the fact that right now, so far, the government has not agreed to amend the process to allow you or anyone else in this province an opportunity to comment on the written amendments -- the process doesn't allow it. In fact, we can't even amend the amendments when they come to us Monday. It's their way or the doorway. Given the fact that you're not even being given an opportunity to say anything about those amendments, if the amendments as written don't meet the commitment made by the minister verbally, what are the alternatives left to the labour movement?

Mr Brown: Frankly, in that case we're left with very little alternative than to carry on with the action that we talked about with respect to the massive walkouts of public sector workers across this province, if the government proceeds with Bill 136. I can't speak for the rest of the unions, but clearly we are looking at that happening before this legislation becomes law.

Mr Christopherson: Would it not make sense that you would be given an opportunity to avoid that? You are trying to avoid a strike in this province --

The Vice-Chair: Mr Christopherson, time is up. We now move to the government side.

Mr Hudak: Just to shed some light on the debate, even the NDP in the last government recognized the need for changes in labour legislation. They chose a rather draconian method through the social contract legislation. That was their method of dealing with things. They paid the price for that and are now trying to crawl back into favour as best as possible.

One more added point on final offer arbitration: The example was used that the employer, the taxpayer, could make some outrageous demands and then somehow the arbitrator would select those demands. But the other side of the coin is true too: Potentially somebody could further demand and say, "We want 100% increase in wages and we want expanded bargaining units throughout the particular system," and the arbitrator could choose that. The reality, I think, is going to be -- and I believe and have faith in the arbitrators -- that they are going to pick the most fair and reasonable solution. So if an employer group came forward with some outrageous proposal and the bargaining unit came forward with something that was fair and reasonable, my faith is that the arbitrator will make the right decision and take the fair and reasonable approach.

That's a final comment I wanted to make on final offer, and I pass it to Mr Maves.

Mr Maves: Just picking up on that, we had a bit of a discussion with the Human Resources Professionals Association of Ontario yesterday about that. You said you had good experience voluntarily with mediation-arbitration, and they said that mediation-arbitration would be very helpful because it avoids just being in a court type of process and a hearing type of process and it would be successful.

The HRPAO did talk about final offer selection and that the whole purpose of having final offer selection as a choice of procedure is indeed creating some uncertainty, so that the parties would be more prone to come to an agreement during collective bargaining rather than relying on arbitration. Any comment?

Mr Brown: I can only reiterate what I said earlier, that the process has to be something that the participants have to have faith in. I don't see anybody from either side of this issue embracing the final offer selection as opposed to something that would expedite the process, which is what the government says they want to do. The comments from both sides would suggest that's not going to work, so I guess a better alternative would be totally free collective bargaining. Historically, we have wanted to move the processes along. In a collective bargaining situation, I'll tell you, there's a lot more heat on unions than there is employers when these things don't move.

We had the OHA come to the bargaining table, it will be two years in October, and table proposals on behalf of some 50 hospitals to roll back wages and benefits in the equivalent of what their budgets had been cut, to take away all the job security provisions and to reduce the number of layoff notices for workers who were being laid off as a result of restructuring. They said, "When you're ready to move on those issues, come and see us," and left. That's where we are in negotiations for contracts that will be two years expired. It's not that the unions don't want to have that settled, but that's what we're faced with in the bargaining situation. That's not something that is being dragged on because the unions don't want to bargain; it's because the employers have made an untenable and unrealistic proposal. Final offer selection is not the answer.

Mr Maves: To me, some of the things you say almost confirm that it would be effective as a deterrent to going to arbitration, because both sides, you're saying, would want to avoid it. So if it's a possibility the arbitrator could choose that method of arbitration, then both sides would really want to avoid arbitration and work together more concertedly to come to a collective agreement.

You talked about Windsor. I just want to ask a couple of questions about that. How was the service of the non-union employees treated in that case? We've had a lot of different comments about this.


Mr Brown: If they were non-union -- I'm trying to think. Historically, folks with unions would be organizing, and if they came into a bargaining unit, they came in with service and seniority. If they were non-union management and they were coming into a bargaining unit, they had service for some things such as pension and wage rates but not full seniority for a fixed period of time during the reconfiguration. I don't have the document with me, but following that fixed period of time there was an opportunity for those people -- the completion of the reconfiguration, I believe it was -- to recapture some of that seniority if they came into bargaining unit positions.

The Vice-Chair: Thank you, Mr Maves. We now move to the official opposition.

Mr Patten: Thank you very much. Good to see you, Ken, and good to see you again, Michelle.

Just to reinforce your point on the context in which we're talking, the Ottawa Citizen says that the Ivey study concluded that budget cuts, hospital closings and the amounts of quick change the hospital sector has absorbed over the past two years have hurt patient care. It found hospitals lack the time, finances and capability to cope with the changes and that restructuring cannot continue at the current pace under the current conditions. I won't read it all, but it goes on to cite the Canadian Imperial Bank of Commerce, which found hospitals' fiscal health has also deteriorated in the midst of restructuring and funding cuts so far totalling more than $800 million. I'm sure you've probably read the report yourself. We haven't had a chance to read the full reports, but that's pretty serious.

Now, I'm trying to think. Everybody in that situation is suffering from stress. Hospital presidents must be going crazy trying to figure, "Well, we've just gone through cuts for the last several years of 5% or 6%," now the deferral of 7%. Will that be deferred just one more year? Is it gone forever? Is it part of restructuring costs? They don't know. All of a sudden they're saying: "What the hell can we do? We've got to manage our budgets somehow." So I think they're going to be in a desperation situation.

So something that might be impartial, tilted a little bit to their favour -- I'm not against the presidents of the hospitals, of course. I'm just trying to create a context here. But I think that it is tilting the balance, when you add the kind of criteria to the arbitrators, to suggest that all of the criteria that are being added are not in favour of employees. There is, as you know, the ability to pay. Then there's best practices, even though it runs a variety of things. Then of course there's the aspect that arbitrators can now determine the extent of cuts that may be required in order to work out some kind of agreement.

So I don't know if I'd want to be an arbitrator. As a matter of fact, one of the things I'm sitting here thinking after I've heard so many presentations is that I would have liked to have the committee in a position to be able to invite some representatives of the independent arbitrators' association or institute, or whatever their official title is, and ask them to comment and to react to this, because I keep hearing obliquely or indirectly of anecdotal cases where arbitrators are getting uptight about this or worried about this. They think this is going to somehow compromise their professional standing, and they find this distasteful. That kind of representation has not been before this committee. Normally we would have the power to summon someone and request that they come and share their views with us, and we can't in this particular instance, so we share this concern with you.

We had the benefit of Michelle's presentation this morning, which of course covered some of what you have addressed as well. I think she shared our concern, and that is the worry of the additional criteria that will be imposed. They'll take the mechanism and change it, but now the impositions on the arbitrator we're quite worried will really tilt towards being of more assistance to the employer rather than a fair arrangement between two parties.

Mr Brown: I think it clearly tilts it in favour of the employer and I'm sure we'd be interested if you could hear from some arbitrators because we deal with them and hear from them, and informally they express the kind of concerns you're talking about. At least one learned arbitrator said publicly he absolutely will not accept arbitrations that attack the impartiality or have criteria that would affect his ability to act impartially.

Just lastly on your comment about hospital presidents dealing with hospital budgets, I don't have anything much against hospital presidents either, quite frankly. I guess we need them to run the institutions. But how they've managed those hospital budgets is to lay off caregivers at the front line in hospitals. That's how they've dealt with it thus far.

The Vice-Chair: Thank you very much. That concludes our presentation time. On behalf of the committee, I'd like to personally thank you for bringing your perspective forward.


The Vice-Chair: We would now ask representatives from the Ontario Coalition For Better Child Care to come forward and, if you could, identify yourselves for Hansard. You may begin.

Ms Kerry McCuaig: My name is Kerry McCuaig. I'm the director of the Ontario Coalition for Better Child Care.

Ms Maureen Myers: I'm Maureen Myers, co-director of McMurrich Sprouts Child Care here in Toronto.

Ms McCuaig: We propose to present to you for about 10 minutes. Maureen will add some comments for about another five, and hopefully then we can get into discussions.

The Ontario Coalition For Better Child Care is a province-wide organization of parents, child care workers, child care programs, coalitions, trade unions, and education, health, child welfare, women's, rural, francophone and first nation organizations. Since 1981 we have advocated for a range of high-quality, affordable, licensed child care and early education services to meet the diverse needs of Ontario families. We have worked with successive governments of all parties in their efforts to respond to public pressure for high-quality early education programs.

While the initiatives of each government have varied considerably, the common theme has been to strengthen and expand the fragile network of child care and education services through a variety of measures. Over the years those have included capital grants to new programs, increasing access to child care for parents, improving the wages of child care staff both through direct grants and through pay equity, assisting programs to purchase toys and equipment, and expanding parental leaves. In this effort, various government ministries have been involved, and they have all contributed in a positive, steady progress towards expanding and improving services in Ontario.

However, since June 1995 there has been a significant shift in policy and in action away from a model which improves the quality and availability of child care towards a US model of market-driven child care. What we are finding is that it really doesn't seem to matter which ministry brings forward legislation; we find that it has a disastrous impact on our sector.

There are many difficulties with Bill 136, but we are going to limit our remarks to the amendments to the Pay Equity Act contained in the bill. Our contention is that the amendments are discriminatory and that they violate the equality provisions of the Charter of Rights and Freedoms. In light of the recent decision by Mr Justice O'Leary striking down the restriction of pay equity to women workers covered by proxy pay equity, we are urging the government to withdraw the amendments immediately.

I know that you had a detailed discussion with the Pay Equity Coalition, of which we're also a member, so I'm not going to repeat a lot of what they said, but I would just like to play out for you what those amendments mean in a sector like child care. As you probably know, most of our sector is not directly affected by the amendments to the act. When the proxy amendment was withdrawn, that meant that over 95% of the women who work in our sector were no longer covered. However, there are still implications for all child care workers, for the parents who use child care and for the parents themselves by the amendments in this act.


When we look particularly at removing the requirement of successors or merged employers to be bound by their predecessors' pay equity plans, which prevented new employers from ignoring the equity plans which had been previously negotiated, this has a particular impact on child care. Child care workers in the municipal sector, which will be directly affected by these amendments, have been used as a standard for wages and working conditions in the broader public sector at large. In fact, these were the workers which were our comparator under proxy pay equity.

It's no secret out there that the municipalities plan to divest themselves of their municipally operated programs. So not only will those workers be denied the protection of their pay equity plans, but it will have a downward spiral effect on wages and working conditions in the sector as a whole.

When we look at the other amendment which required public and private sector employers to comply with the provisions of the act by January 1, 1998 -- interestingly, the same date as Bill 136 comes into effect -- what we have here is really a reward to bad employers. It's interesting, because child care is one sector of municipal non-managerial workers who are least likely to be represented by trade unions. So it's these workers who are most likely not to have received their pay equity adjustments to date and who will now not receive their pay equity adjustments. I think that this has larger implications for the signal that the government is sending Ontarians at large, which is saying: "If you can avoid complying with laws, go ahead and do so. Just wait it out until the next government comes in, and we'll petition them to rescind it too." It's rather a lawless message which is being proposed here.

Of course, we like to centre in on what we call the Carol Butler amendment in Bill 136. That is the decision to deny private home child care providers the right to access pay equity. Under the act, and right now it is in front of a pay equity tribunal, home child care providers who are employees of municipally operated agencies were deemed to be employees for the purpose of pay equity. It seems particularly mean-spirited for the government to centre out these 2,500 workers in particular, these workers who make on average $2 an hour, to prevent them from having access to pay equity.

I'm not going to read it, but I would urge you to take the time to read a statement I have attached by Carol Butler, who was the home child care provider who spearheaded this fight, somebody who's been in the field for over two decades, providing care for four children under the regulations in the Day Nurseries Act. I want to make it clear that Carol and other home child care workers are not objecting to operating under the provisions of the Day Nurseries Act, which provide them with support for the work they do. What they do object to is being told that they are some third class in what is already a second-class occupation and should not have access to the basic protection that other workers have.

In taking these steps, this government is continuing on a road which it has employed since it repealed proxy pay equity, set limits on equity funding and closed the Pay Equity Advocacy and Legal Services. Once again we have a situation where the most vulnerable people in the province are being asked to finance a tax cut which will benefit the most well-off in the province. It's often said by government spokespersons that a tax cut will put money in people's pockets, that it will stimulate the economy and create jobs. We would argue that putting money into women's pockets through pay equity will stimulate the economy and also create jobs. It's a far fairer way of doing it.

I would like to leave you with two points. One is that pay equity is about pay, but it's not just about pay. It's about the value we place on the work that women do. The majority of women entitled to pay equity, particularly in the public service, are in human services jobs. How the work they do is viewed by government and consequently by the public at large has a direct bearing on their desire to enter the field and to stay in the field, and on their performance while they're in the field. So by launching an attack on the women who care for our young, our elderly, our sick and our disabled, we are undermining the care they receive.

Finally, this isn't directly related, but I'd like to leave something for the government to consider. The Ontario Court decision of September 5 to restore proxy pay equity to the over 100,000 workers in the broader public sector has ramifications on Bill 136. It has implications for other areas as well.

It's again no secret that this government plans to eliminate the wage subsidies paid to child care workers. The government members in particular should be aware that the wage subsidy was introduced primarily to address systemic discrimination in a predominately female-dominated field. In fact, the wage enhancement grant was openly provided as a down payment on pay equity. Our legal opinion tells us that if your government follows through on its intention to eliminate the wage grant, it will not only lose in the court of public opinion; it will lose in the courts of our nation, which are bound to uphold the equality rights in the Charter of Rights and Freedoms.

Ms Myers: As a director of a child care centre here in Toronto which has been the recipient of operational grants, capital moneys, we are a centre that has grown in the past 10 years in the community from a licensing of 24 children to 118. We have children from birth to 12 years old. We provide a full spectrum of care to families, to the community we serve. I find it very difficult 10 years later to be here speaking again about pay equity or pay equity proxy comparators.

When the law first came into effect on January 1, 1988, we were excluded. I looked through my files and I found our first pay equity plan, which basically says nothing. "Here we are posting our plan; there are no adjustments because we don't qualify." This has been a long, hard battle for a lot of staff, parents and community members for us to be included and have a proxy comparator.

The down payment has been through wage enhancement grants, which have had a significant effect on the quality and the service that we're able to provide to the community. If we were to lose this, which looks like the way we're going now, our staff salaries would be reduced by approximately 33%. I don't know any other sector or community or group of people in the workforce who for the past five years have had no increases to salaries, to benefits, no cost-of-living-allowance increases, and then reduce their salaries by 33% puts a big dent in the quality of the service that we have been providing.

We have taken great pride in the work we do. All our staff are qualified, educated, trained child care workers, and since we opened 10 years ago, we have retained every single staff member. We have grown over the years from less than 10 -- we started out with two -- to 25 full-time staff.

If we lose these wages for these staff, we won't have qualified workers. We will be able to hire anyone over the age of 18 who breathes to look after children. This will have a definite impact on the quality of service, which we will no longer be able to provide. The money can't come from increases to fees to the public. Our infants' parents pay $1,218 a month for care for children between the ages of six months and 18 months. We can't possibly price ourselves right out of the market. We simply wouldn't be able to provide the service that we provide. I would really like you to take this all into consideration.

As a non-unionized setting, we are part of the broader public sector. We have in the past joined and will in the future join any sort of organized union demonstrations to make our point clear and heard.

The Vice-Chair: Thank you very much for your presentation. That allows us approximately five minutes per caucus, beginning with the government side.


Mr Steve Gilchrist (Scarborough East): Thank you both for coming before us here today. Mr Maves will be dealing with a couple of other points, but I just wanted to follow up on your comments and the insert you put in your presentation about the matter raised by Ms Butler. I must say I was not aware of the specific case. Because, as the brief and you yourself have said, it's before the Pay Equity Hearings Tribunal, it would be inappropriate for me to comment on the specifics of the case, but she raises some generic questions.

I'm genuinely surprised, I guess, at the direction that she and you are taking in this, the underlying premise, it seems, in her own comments: "If I was self-employed, why do I sign their agreement? If I was self-employed, why do they set the rate of pay? If I was self-employed, why do I have no say in the conditions I work under, such as training and qualifications?" Well, I could fall back on any number of examples in the workforce.

A significant percentage of real estate agents are deemed to be self-employed. They do not set the rate of pay; the broker does. They have no say in the training; that's set by their association. You either are qualified or you're not. You sign the agreement with the brokers. But Revenue Canada considers them to be self-employed. They're individual business persons.

Quite frankly, from my background at Canadian Tire, I appreciate the scale is different, but no one would suggest a Canadian Tire dealer didn't own his or her own business. But the prices are set by Canadian Tire head office, you sign their dealership agreement, and if you do anything wrong or you don't follow the training protocol, you lose your dealership.

The bottom line is, with any number of other comparables, it seems to me that if someone sets up a business in their house -- and again I stress that the question is raised here in the context of home day care. Why would that not be considered a home business? Why would you, if anything, not be considered an employer instead of an employee?

Ms McCuaig: Because under the Pay Equity Act as it now stands, a worker who has her working conditions and her wages set by an outside agency is considered to be an employee for the purpose of pay equity. What Ms Butler has done is to take advantage of what the law provided, which is her right to establish that it was the agency which set her wages and working conditions and determined whether or not she will have access to the families who require her care. I think that may be the crux of the difference. A real estate agent is free to go and find who he or she wants to sell a home to. In the situation with the child care agencies, the caregiver is restricted to the pool of families which are made available.

Mr Gilchrist: Excuse me, because her own submission says that when she launched her application, she was down to only one county child, so presumably in her business she'd picked up a number of people from private placements in day care. I'm not aware of anything that would prescribe any home day care operator in my riding that I've ever spoken to from taking people, just neighbours, children, that sort of thing. So like the real estate agent that could go to a different broker if they don't like conditions, or find different clients, why couldn't she go and find other children if she doesn't like what the county's offering her?

Ms McCuaig: Because the county agencies, and this is true across the sector, limit the providers to taking children which are in their eligibility. It's a reasonable thing for them to do. If they're providing the monitoring and all the supports to the providers, why should they provide them to parents who aren't paying for that service?

But I guess the bottom line, Mr Gilchrist, is that the Pay Equity Act is very clear that if a worker is in a situation where in reality the wages and working conditions are set by somebody outside of herself, then she is eligible for pay equity. That's what the tribunal ruled. That is what is being appealed right now by a number of municipalities. And in the middle of all this process, your government steps in and does the job on behalf of the municipalities and says: "This is no longer the case. You don't have to worry about the appeal process. We'll just take away her right and the right of other home providers to access the provisions in the act."

The Vice-Chair: I'm sorry. That uses the time. We now move to the official opposition.

Mr Patten: Thank you very much. Good to see you again, Kerry. I think we talked last at one of the education bills of the importance of early childhood education, at which you were very articulate.

We had a chance yesterday via teleconferencing to at least see in kind of a slow-moving, moon shot type of picture Carol Butler, who was commenting from Kincardine. So that was interesting.

I'd like to ask you right off the top, either of you, what does pay equity have to do with the amalgamation of hospitals or school boards or municipalities?

Ms McCuaig: Well, if anything, pay equity should be strengthened in a period of restructuring to ensure the equity rights of women are honoured. It is a surprise that this is exactly the time that the government would move to take away those provisions.

Mr Patten: I think the two opposition parties probably share the same view, but I won't speak for them. It's revealing: The two programs they address tell you somewhat the motivation for the whole bill. They have nothing to do with transition per se. The wage protection program doesn't either. These are two programs that affect probably the lowest income grouping, mostly women in probably both of these areas, certainly in the pay equity one obviously. So it's telling. It's a money issue. It has nothing to do with, "Who is affected most, and under what circumstances? What kind of a society do we want to have? How does this affect our wives, spouses, friends, children?" big questions like that that I think are substantial.

So we agree with you. We're concerned about this too. We don't think it should be taken away. My hunch is that they will probably stand it down because it has nothing to do with the bill anyway, because they can slip in something elsewhere, into another bill, as they've done in Bill 136. So you might want to cross your fingers, but given the court ruling, which is the most optimistic thing, although there may be some appeals, for that reason, I suspect the government will probably withdraw that particular section.

I don't have any questions, but I have some time. If you would like to use up some of my time to elaborate on some points, please go ahead. Thank you for coming.

Ms McCuaig: It's been interesting listening to the comments of different spokespersons from municipalities as they thank the government for this particular provision around the home child care workers. Their bottom line is, "Well, we can't afford it, particularly in times of restructuring."

I'm not without sympathy to the difficult position that municipalities in general find themselves in as they're dealing with more and more downloading with fewer and fewer resources to provide for the services that their citizens tell them they want, but I guess we can turn it around and say, "How long can women afford not to have the wages which address their needs?" If there was simply no money -- women have provided care forever for no money, if it was simply a question of no money. But when there is money to be found for a tax cut on the provision that this is a good way to put money in people's pockets, I think an equally strong argument can be made that pay equity puts money into people's pockets, and it puts money into the pockets of those workers who are not likely to invest it offshore or to vacation offshore, but those who will really stay and use their wages to build their communities.

Mr Patten: The ones most likely to spend it --

The Vice-Chair: Thank you, Mr Patten. We now move to the third party.

Mr Christopherson: Thank you both very much for your presentation. Fortunately, there have been quite a few people coming in and commenting on this issue.

The employee wage protection program, as Mr Patten has said, has nothing to do with Bill 136 in terms of any kind of municipal restructuring, but it's what we've characterized as a drive-by shooting. While they've got everybody looking over here at what's happening with Bill 136 and all the attention about potential strikes and problems and all that, they'll just take a couple of good swipes at a couple of programs that affect the most vulnerable people in our society and hopefully nobody will even notice. You're not letting them get away with that, and I commend you for that.


You've got to love the verbal voodoo dance of Mr Gilchrist, who begins by saying, "I can't and won't comment on the immediate case that we have in front of us because that would be inappropriate," which of course is a position reserved for ministers. I still am not aware it applies to anybody other than ministers, but hey, I guess we all have to have our fantasies.

But then he moves from, "I can't comment on it," to spending his whole five minutes talking about it. The first thing he does is offer up an example -- and of course examples are usually used to go from a specific to a broader point of view, to allow a broader audience to understand and sort of get your point -- and then he talks about what's it like, as he is and his family are, to be a franchise owner of a Canadian Tire store.

Mr Gilchrist: Was.

Mr Christopherson: God bless anybody who does that. It's honourable work and I'm not questioning anything wrong with that, but to suggest that somehow all the people who are watching and the people you represent are going to connect with somebody who understands what it's like to be a franchise owner of a Canadian Tire store --

Mr Gilchrist: Or real estate agents.

Mr Christopherson: -- gives you some idea of why we have so much trouble with this government, because they don't understand the lives of the people this legislation is going to damage.

Mr Gilchrist: My sister is a day care operator.

Mr Christopherson: I listened to you, Gilchrist. You can listen to me, whether you like it or not.

The Vice-Chair: Order, please.

Mr Christopherson: Secondly, for a government represented by a member who says, "I don't want to comment on this because it's before the courts," their legislation is bringing down the biggest hammer there is to get involved in this.

Lastly, it comes about at a time when the courts have already ruled that their first whack at pay equity under Bill 26 is illegal, unconstitutional, and infringes on the Charter of Rights for women who are affected by this legislation.

There's absolutely no defence on either one of these issues. I can appreciate that on some things that come before these committees there are differences of opinion, different philosophies, and one goes one way and we go another and we battle it out. That's the way our democracy works. But these issues are so clear and so mean-spirited and hurt people to such a degree that is unbelievable, people who can't afford to be hurt, that it always drives me to anger every time I get involved in these kinds of discussions, because they don't have any legitimate arguments. There's no defence for what they're doing, absolutely none.

Just so we set the context here, what's the average wage for child care workers?

Ms McCuaig: It's $24,000 for a trained child care worker.

Mr Christopherson: Trained, experienced: $24,000. What's the average education?

Ms McCuaig: The minimum to work in the field is a two-year ECE diploma. Most child care staff have more.

Mr Christopherson: An ECE diploma is?

Ms McCuaig: It is a two-year diploma from a recognized community college in early childhood education.

Mr Christopherson: So we're talking about people who have to be really committed to this issue to put that much time in. Of course, doctors and lawyers make the case, and it's a good one, that they put in so many years learning and going to school and they can't be earning, but at the end of the day there is a good payout for those professions, which is why so many people want their kids to be one. But the fact is, if your goal is to go to post-secondary school for two years so you can earn $24,000 a year, you've got to be committed to what you're doing, because you ain't getting rich.

The last thing I want to raise with you is, are you going to give up the struggle now that you've been beaten back a bit?

Ms McCuaig: We have been beaten back a bit, but I'd just like to register -- I think this government had real plans for child care. I think they thought, because it was a small sector, it was something they could dispose of in their plans quite quickly. I think they have been shocked by the amount of resistance from this sector and its willingness to fight on its own behalf, on behalf of the workers in it, and the parents on behalf of their children. So I see no sign.

Ms Myers: There are no signs of backing down, as I had said too. This is 10 years later, and here we are sitting talking about the same issues.

Mr Christopherson: I raised the question because I wanted it on the record and I want him to hear that you're not going to back away. I'll tell you, all the allies and friends and people who recognize there's a serious social justice issue here affecting women are going to be with you every step of the way. We'll get back everything that's been lost by this vicious Tory agenda and then we'll get back on a path of making things better, the way they ought to be.

The Vice-Chair: That concludes your time. On behalf of the committee members, I want to thank you personally for bringing your presentation forward.

Ms Myers: Thank you very much.


The Vice-Chair: We would now ask the representative or representatives from the Ontario Chamber of Commerce to come forward, please. If you could identify yourself and your organization for Hansard, that would be appreciated.

Mr Wallace Kenny: My name is Wallace Kenny and I am the chair of the Ontario Chamber of Commerce. I thank you for the opportunity to speak to you today on Bill 136. If you look at the title of our paper, you will note that it might appear that we're speaking on Bill 137, but seeing as how I don't know what Bill 137 is, I think I'll contain my comments to Bill 136.

The Ontario Chamber of Commerce is a business organization representing over 65,000 employers in the province of Ontario. Our members include large and small enterprises in all sectors of the economy. We believe the diversity of our membership gives us a unique perspective on the business interests related to the implementation of Bill 136.

Bill 136 is a bill which concerns the public at large and certainly concerns the business community. We are critically interested in ensuring that the government services that are provided are provided and implemented in a cost-effective and efficient manner. Disruption to municipal services, education and hospital services can have a significant impact on the economic wellbeing of the province and obviously the ability of our membership to conduct business effectively.

While we are generally supportive of the government's initiatives to streamline government services and provide a more cost-effective and efficient service to the public by eliminating unnecessary duplication, we are very concerned that the government ensure it provides the necessary support to these institutions to ensure the transition is accomplished with a minimum of disruption.

The integration of hospitals, municipalities and education boards will present a major challenge to those institutions. Each amalgamated organization will be faced with a myriad of collective agreements with different bargaining agents and different terms and conditions of employment. A sensible and pragmatic method of integrating the existing terms and conditions of employment is essential.

The private sector has had some significant experience in restructuring organizations. In our experience, when unions are asked to determine who should retain the bargaining rights of an amalgamated bargaining unit, the internal union wranglings and political issues often overwhelm the interests of the individual employees and the interests of the employer. We therefore view it as critical that the resolution of these bargaining unit issues be dealt with in a comprehensive manner in Bill 136. The current provisions appear to outline a pragmatic approach which is sensitive to the interests of the various unions, the employers and the employees, and I include in that both the non-union and unionized employees who will be affected by the amalgamation.

We understand the government has indicated an intention to transfer the determination of these issues to the Ontario Labour Relations Board. Provided that the actual provisions which dictate how these matters will be resolved continue to be in the bill, we see no reason why the jurisdiction cannot be transferred to the labour board.

However, the board's current discretion in dealing with business amalgamations provides the board with a wide degree of discretion. As a result, the integration of employers' and unions' bargaining rights requires protracted hearings and complicated, expensive decision-making processes. The current provisions of Bill 136 have the potential of simplifying this process greatly and allowing for an expeditious transition of bargaining rights, and a fair one for all parties concerned. We strongly urge the government to maintain the existing bargaining unit transition provisions in Bill 136 even if they are to transfer the decision-making power over those provisions to the labour board.

The other fundamental challenge in ensuring a sensible transition of employment issues on these amalgamations is to ensure an adequate dispute resolution mechanism exists to resolve and integrate the terms and conditions of employment, which vary from bargaining unit to bargaining unit in these amalgamated entities in a very significant way.

As is evidenced by the public sector unions' general reaction to the proposed amalgamation of these entities, unions will naturally resist any changes which have the potential of reducing existing terms and conditions of employment. We shouldn't be surprised at that; that's the business they are in. This means that during negotiations for the resultant collective agreement of the amalgamated enterprise, the unions will attempt to ensure that the best terms and conditions of employment that exist in any of the bargaining units will prevail in the amalgamated entity.


This interest has a serious potential of increasing the costs of employment in the amalgamated entity over those costs which prevailed in the prior institutions. Obviously, this is likely to be resisted by the amalgamated entity and could therefore create the potential of significant work disruption in those areas of the public service that have the right to strike. I think this disruption is evidenced by the willingness of the unions to encourage illegal strike activity in the firefighters' sector or the hospital arena, where strikes have long been prohibited by law. We are therefore very concerned with the government's expressed intention to allow those municipal workers and education workers who presently enjoy the right to strike to retain that right in this transition phase. However, the union's expressed intention to deal with this right in a responsible manner will be demonstrated by their conduct throughout this ongoing process.

We think it is critical that other dispute resolution mechanisms be available should the conduct of either of the parties to any set of negotiations be contrary to the overriding public interest we all have in ensuring a smooth transition.

To the extent that the government intends to amend the legislation to use the first-contract interest arbitration provisions of the Labour Relations Act, some other criteria for accessing those provisions ought to be introduced. There is presently very limited opportunity to access the first-contract provisions of the Labour Relations Act. In addition, other dispute resolution mechanisms, such as final offer selection, should be considered.

One of the things that was quite interesting about the way in which Bill 136 was drafted is that it provided a myriad of potential dispute resolution mechanisms and, by offering those various options, it encouraged the parties to make every effort to negotiate the terms and conditions of the amalgamated collective agreement themselves. Obviously, any collective agreement that is negotiated between the parties will be a better expression of their mutual intent than one imposed on them by a third party. However, some option to the strike or lockout weapons should be maintained in order to ensure that the interests of the public are not sacrificed to the interests of the individual parties. It is for that reason that we think the government should be very cautious with respect to simply eliminating the option of other dispute resolution mechanisms.

I would be happy to answer any questions.

The Vice-Chair: That allows us about six and a half minutes per caucus, and we begin with the official opposition.

Mr Patten: Thank you very much for your presentation. I have a few questions that I would like to ask you. I must say that your presentation is a little more balanced than some of the other chambers I've heard come before committee hearings, and not confined to this committee hearing, in that you seem to be seeking out an approach that really will be and acknowledge that this has got to be something that is fair to everybody. You inserted that word in one of your sentences here. I would like to reinforce that particular point, and naturally from your sector's point of view: what's good for business development, what's good for helping to create jobs and all this kind of thing.

I met someone recently who has just moved to Toronto, and I think this will underline your point that if we have social chaos, it's not going to be attracting people from one place to another. This individual was saying: "Listen, I don't think I'm going to buy a home at this stage" -- they're talking about having moved to Toronto -- "because I don't know what the heck I'm going to be paying in my property taxes. If they're $3,500 now, I may buy a house and all of a sudden they're $7,000. I want to wait and see, so maybe I should cool it and rent.

"Where should I live? Which schools are going to be amalgamated, which boards," etc?

This is just to underline your point, which is that when we have a time of instability, we want to get through that as rapidly as possible, hopefully in a manner that is going to be a win-win for everyone.

When you said, on your second page, "A sensible and pragmatic method of integrating the existing terms and conditions of employment is essential," do you think this bill is a sensible, pragmatic method of integrating the existing terms and conditions?

Mr Kenny: We actually thought the existing bill was an eminently sensible way to deal with the transition provisions, because what it did was it took a very temporary period and said: "Fine. We're going to go through this. Let's have an independent third party be a resolution dispute mechanism and avoid the process."

Franklly, what happens on the amalgamation of most businesses is that where you have complicated issues, you don't tend to deal with the peripheral issues. You tend to deal with the basic, fundamental way to integrate the enterprise. So any first contract, so to speak, which would be dealt with in any of these enterprises would most likely focus on those limited issues, and they could be resolved in an expeditious way.

We frankly thought the reaction to the bill by the union movement was somewhat inflammatory, given what we thought was a rather modest adjustment to get through this transition phase, much more modest than some that we've seen other governments impose in the sector.

So yes, we did. However, the government having been responsive to that, and I hope not naïvely, it's why there still must be some kind of opportunity, should the parties act irresponsibly, to access some other kind of dispute resolution mechanism.

Mr Patten: When you make these comments, are you confining yourself to the original bill? Are you including any of the comments the minister has made subsequent to that?

Mr Kenny: No. I'm saying that we thought the original bill was quite rational. The changes that the minister will make hopefully are not overly responsive and hence overly disruptive to the transition process. We haven't seen the actual wording and whether or not there is still going to be some access to a dispute resolution mechanism. If the parties act irresponsibly, we think it's very important that there be an alternative.

Mr Patten: There is some difference of opinion from different quarters.

Mr Kenny: I'm sure that's the case.

Mr Patten: The minister did say last Tuesday that there would be more choice, certainly for the arbitrators, in the fire, police and hospital labour dispute acts. These acts would change in order to allow the arbitrators to broaden their use of mediation, mediation arbitration, and final offer selection during the arbitration process if it got to that particular stage.

Mr Kenny: I expect that's in the sector which doesn't have the right to strike. The interest arbitration process is in place already in many of these institutions that are being amalgamated.

Mr Patten: That's right, plus other criteria on the other side.

You had mentioned here that the current provisions -- by the way, you started off by saying "Bill 137." I just wanted to make a comment --

Mr Kenny: Yes. What is Bill 137?

Mr Patten: Bill 137, I would like to suggest, should be the bill that includes the amendments that the minister alluded to but we have not seen. It's been somewhat of a handicap for the witnesses before us to comment on such substantial issues that the minister has identified without seeing the actual text. So that's what I would like to think. That would be wise. It's so essential that they should really withdraw this bill, redraft it and introduce Bill 137.

Mr Kenny: We don't have time for that.

Mr Patten: It could be done, believe me, in a week or less.

Mr Kenny: Quite seriously, this process has been delayed much too long already in order to ensure a smooth transition.

The Vice-Chair: We now move to the third party.


Mr Christopherson: Thank you for your presentation. Let me pick up on your last point, that there's not enough time and we have to rush things through because we can't afford the possibility of all that disruption. I can appreciate the point of view, but the facts paint a different picture. The reality is that no one has yet been able to show an example where there's been a strike as a direct result of an amalgamation anywhere, not just provincially but nationally.

Mr Kenny: I think they are being threatened illegally all over the province right now, aren't they?

Mr Christopherson: No, no, I'm talking about the specifics of an amalgamation that takes place. The unions have put forward for quite some time now and have said categorically, so if there was contrary evidence, the government has had time to research it out, that there have been no strikes, not just in Ontario but in Canada, that are the direct result of an amalgamation. So the evidence says --

Mr Kenny: Mr Christopherson, that suggests the unions shouldn't be making the threats that they are making now. In other words, they are idle threats, and if that's the case, that's good. I applaud that if that's the case, but it certainly doesn't appear, from what we're reading in the press, that that's a likely scenario to come out of this event. That's what we're concerned about.

Mr Christopherson: Let's be clear, sir. We're talking about two distinct things: One is the political actions taking place around the question of whether or not 136 should become the law, and the other is what happens when you are going through an amalgamation, community by community or institution by institution.

All I'm saying is that the fact is, and no one has refuted it yet -- never mind what's going on in the politics of 136, but straight-up amalgamations -- there is no evidence of any strike directly relating to an amalgamation.

Mr Kenny: That's good.

Mr Christopherson: That's excellent, but it also suggests it might be a little bit over the top to suggest that we can't afford to even wait to hold hearings on the amendments to 136 because we've got this potential crisis waiting for us out there. The evidence is that we don't.

Mr Kenny: Mr Christopherson, our concern is that the municipalities that are being amalgamated and the unions enter into discussions at a very early stage to ensure this transition takes place smoothly. At the moment, what the parties seem to be doing is arguing about the passage of this bill as opposed to speaking to one another, and we think it would be more prudent for everybody if they started speaking to one another.

Mr Christopherson: In terms of speaking, it sure would have been a hell of a lot more prudent if the government had been speaking to the unions before they dropped 136 on the floor of this place, because we could have avoided all of this.

Mr Kenny: I can't speak to that.

Mr Christopherson: I can.

It's interesting, and I would ask if there's any particular reason why -- it's not paginated, so I would just point out and read that you talk about the union's right to strike, that they enjoy the right to strike and retain it.

Mr Kenny: It is actually paginated at the top.

Mr Christopherson: Forgive me; you're right. There it is under "Commerce."

Page 4, third paragraph, the last sentence: "However, the union's expressed intention to deal with this right in a responsible manner will be demonstrated by their conduct throughout this ongoing process." Fair enough. But why only the emphasis on the union? What about the emphasis on the employer to be responsible also? Employers are as much a cause of strikes as unions are.

Mr Kenny: That's why I indicated that I think it's important that there be an alternate dispute resolution mechanism if either party is acting in an irresponsible manner through this transition phase. The reason I referred to the unions in that paragraph is that they are the ones who at the present time seem to be suggesting that they're likely to take that kind of action.

Mr Christopherson: Again, though, we're talking about the political action around 136 versus what happens under the reality in our society if 136 is the law. They are two very distinct processes.

Mr Kenny: As a member of the public, I'm having some trouble distinguishing those two things in practice.

Mr Christopherson: That's why it's nice to have public hearings where we can lower the temperature and look at these things in a calm, rational fashion.

One of the things you mentioned too about 136, aside from calling it modest, is that you call it "pragmatic" in that it is "sensitive to the interests of the various unions, the employers and the employees."

One of the real difficulties the labour movement has is that if you've got a situation where you can't resolve an important matter through negotiation, you send it off to a third party, an arbitrator. Under 136, that third party is no longer seen to be neutral or unbiased. Currently the system works because the list of arbitrators is developed by a consensus method where employer and employee reps say: "These are people we trust and respect. We're prepared to put our case in front of them, like a judge, and we'll live by their decision." It's that credibility that gives them their moral as well as legal authority.

Under 136, that process was scrapped and those arbitrators are handpicked by the government of the day. Regardless of which party, the fact is that they are handpicked by the cabinet. You lose that impartiality, and without that, you can't have an arbitration system that will work.

Mr Kenny: I think it's important that there be impartiality in the arbitration process. I think, though, that you misinterpret the existing legislation in the area. I happen to work in the area rather extensively, and frankly, if the parties can't agree on an arbitrator right now, it's the Ministry of Labour that appoints them. So the process under Bill 136 is not radically different, but I admit it's different.

Mr Christopherson: But the one is a fail-safe mechanism and the other one is the first stop.

Mr Kenny: No, actually. The parties are still able under Bill 136 to agree on arbitrators themselves. It's only if they cannot agree, in the same way that is the case now, that the commission would appoint.

Mr Christopherson: But the commissions are the ones that are being appointed by the government.

Mr Kenny: Yes. I just explained that that's no different than it would be now.

However, if I could just say one more thing, the reason I think there's an alteration in Bill 136 is because of the frustration that employers have had in these sectors with their experience with arbitrators. You have so many provisions in these collective agreements that are not normal in the private sector, not because they've been negotiated freely but because they've been imposed. So I think it's that frustration which has led to this response by the government.

The Vice-Chair: We will have to move to the government caucus now.

Mr Christopherson: Fair enough, but given an imperfect system, what do you do when people don't have the right to strike? What other mechanism --

The Vice-Chair: Order, please, Mr Christopherson. We will move to the government members now.

Mr Maves: Thank you for your presentation. There have been all kinds of examples, I must say, though, during these hearings that have been brought forward of amalgamations that have occurred and actually are still occurring that have taken two, four, five, 11 years and they still haven't solved some of the issues in these amalgamations. I think that's something we would really want to try to avoid. I think you'd agree with that.

In other areas of the country where they've done amalgamations, governments have brought in legislation which just deemed outcomes. I think we've tried to avoid that. Perhaps part of the reason we've tried to avoid it is because the previous government brought in legislation which deemed outcomes, and we wanted to try to have a process that would allow collective bargaining to continue to take place. We didn't want to put labour through that deeming of outcomes again. You could go to arbitration under the social contract, but the award had to be within the confines of the social contract. It was a deemed outcome. We tried to avoid that for the express reason of not having disruptions, to try to allow collective bargaining to continue.

Labour has said, "Don't touch successor rights. Don't go into our contracts, open them up and take out contracting-out provisions," for instance. We didn't do that because we didn't want to have a disruption which, as you said, is bad for the economy.

We then went into a consultation period with regard to the bill and there were three major requests the government asked for: to replace the LRTC with the OLRB, and we've done that; to get rid of the Dispute Resolution Commission and move to a first-contract arbitration process, and we've done that; and to return the existing right-to-strike provisions, and we've done that. It's all an attempt to avoid large disruptions, because we agree with you. The economy is clicking along as well as it has been since the late 1980s, I think. We don't want to lose that. We want to have a smooth transition. So we've taken a lot of steps along those lines to make that happen.

It's disappointing to see that while we're not going as far as deeming outcomes, some of the non-right-to-strike unions are now saying they're still going to walk out. Even after all of these concessions have been made, they are still making plans public to walk out. Have you got any comment on that? It wasn't really done to this extent in the early 1990s under the social contract, but it seems to be done here even though we've made as many concessions as we have.

Mr Kenny: I think I've already expressed our point of view that we think you have attempted to be sensitive to the various interests. I think realistically what you're seeing here, and Mr Christopherson really alluded to it, is that this isn't a protest about Bill 136; it's just generally a protest by public sector workers and unions with respect to the political direction of this particular government.

This happens to be the current legislation in place, and though I can't speak for the unions, I think some of them would be sorely disappointed to lose some of the provisions of Bill 136, particularly with respect to the transition provisions relating to bargaining unit amalgamation.


Mr Maves: You have said in your paper -- I want to get to something very specific because today we've had some discussions on this -- that it's a good idea, actually, to have other dispute resolution mechanisms such as final-offer selection. I wonder if you can expand on that a bit, because it's the government's position that introducing a little bit of insecurity around the type of procedure that might be used by an arbitrator will force the parties to say, "Gee, I don't want to have that -- for instance final-offer arbitration -- as my method of choice of procedure, therefore I'm going to bargain a little harder at this table and try to avoid going to arbitration." That's our position. I wonder what your experience is with that.

Mr Kenny: I'd say that's exactly what happens in the labour relations community. That's what strike and lockout is. It's something both parties wish to avoid at all cost in a normal circumstance. It encourages settlements.

Similarly, the most ironic thing about the noise in this bill is that it's the unions that are concerned about interest arbitration when mostly in the public sector it's the employers who are horrified of having to go to interest arbitration. They are afraid that what will be imposed is something they can't live with. That encourages the parties to sit down and try to resolve their differences themselves. The options with respect to dispute resolution mechanisms encourage parties to settle their differences, because otherwise the settlement is taken out of their hands.

Mr Maves: You also talked about a test. If we have first-contract arbitration -- there's a difficult test right now to get to first-contract arbitration -- and now, if municipalities have first-contract arbitration, it could take some time to get to that test. I'm wondering if the labour movement had something a little easier --

Mr Kenny: You need to have a public interest test.

Mr Maves: -- to get to first-contract arbitration before. Do we need that now?

Mr Kenny: You need some kind of public interest test to be included within the parameters as to when the labour board ought to impose interest arbitration. It is not just these parties that are at issue here. The public is at issue, whether it is students, whether it is patients or whether it's the general public that uses municipal services. This is not an issue simply between the parties to this collective agreement. You have to ensure that the public's interests are protected in this transition period.

The Vice-Chair: Thank you, Mr Maves. That concludes our time. On behalf of the members of the committee here, we thank you for taking the time to bring your presentation forward.

Mr Christopherson: Just briefly, on a point of privilege, Mr Chair: I'm sure that Mr Kenny, being an honourable man, would not want to leave the record incorrect to the extent that I was not alluding to political action on the broader Tory agenda. I was saying there is political action but it is specifically directed at Bill 136.


The Vice-Chair: The next presenter, the Ontario Taxpayers Federation, if you could come forward and identify yourself for Hansard. You may begin.

Mr Brian Kelcey: Thank you very much, Mr Chair and members of the committee. My name is Brian Kelcey. I'm the new director of the Ontario Taxpayers Federation, also known as the Ontario division of the Canadian Taxpayers Federation. I want to start by apologizing to the members of the committee. I only received the invitation to speak before this committee yesterday, so my apology goes to the members and to the clerks of Hansard for not having a written presentation for you today.

With that start I want to say, however, that obviously there has been considerable public discussion about this particular bill, and well before having spent the time to read through the published draft of the legislation, there are some things that come to mind, not just about the actual text of the legislation per se but some important comments the CTF as a taxpayers' organization can throw your way in relation to the politics, if you like, surrounding this bill and in relation to a couple of specific issues in terms of the process of getting passage of this bill completed.

The first thing that deserves mention is our comments as an organization on the government's decision-making on this so far. I thought it was important to put us on the record as being somewhat baffled by the position taken by a couple of so-called pro-business groups that are arguing that the government has unduly caved in to union demands and that the government is being weak-kneed in terms of its commitment to try and deal with public sector union concerns related to provisions on the right to strike in the early draft of the bill.

I can say that clearly many of our members in their hearts probably were itching for a big fight with the public sector union movement. In their minds it's definitely, I would imagine, their view, from what I've heard so far, that the government made a wise decision in looking instead at this as part of a process towards achieving goals that are necessary for taxpayers rather than indulging in some kind of a one-week to six-month battle with its own employees, which would have done nothing but clarify a single procedural question in the ongoing amalgamation process.

This government has some good things on its agenda and it has some bad things on its agenda. We happen to think that more than most governments in this country, some of the good things are very good things, and we'd prefer that the government would focus its attention on getting the good things done. We are happy, in other words, that the decision taken by the government to step back and try to resolve this issue in a way which focuses on successful amalgamations is a positive step and that this was the alternative chosen.

That leads nicely to my second point, which seems to have been discussed in passing with the earlier presenter, and that is the issue of disruption to the economy. I'd like to stress as well, making a comment more to the government side, that the uncertainty that's being caused here is not simply uncertainty that's giving the public sector labour movement an excuse to step forward and say, "We don't know what this bill is really going to look like." It's not simply a situation that's providing for easy exploitation by those in the public sector movement who are itching for a fight. It's also providing uncertainty for candidates in municipal debates, for staffs who for better or for worse are trying to work on contingency plans for the transition to various amalgamated collective bargaining processes. It's causing uncertainty in the business community and among ordinary taxpayers who are our members, who are a little baffled as to what Ontario is going to look like in a few months' time, because with every passing day, whether or not the government has made commitments to step back, the rhetoric seems to be getting louder and louder.

My caution to the government as well, although I suspect it can't do much good at this point, is that if you're working doubly hard on trying to get some iron-clad amendments to this legislation now -- and my understanding as of this morning is that those drafts have not yet been released -- as a taxpayers' organization I don't feel any qualms about representing its opinion in saying: "Spend the money on overtime. Work very hard. Get those details out." At least then we'll be having a substantive debate over what the government's intentions are, rather than playing this game of shadow-boxing which not only, I think, benefits those who see this as an opportunity for crisis but also puts everybody in a position -- whether or not they are members of these collective bargaining units or living in municipalities that are under serious concerns with their amalgamation -- of being left under the threat of chaos, however real that may be.

To deal with the substance of the legislation, I only had the opportunity, in part because of my own scheduling, to go through this in detail this afternoon. I was particularly interested in part because this would be the part of this legislation that survives fairly intact, from what I understand: the transition process.


Frankly, to be blunt, if you're going to go through an amalgamation process, for collective bargaining this seems about as fair as it can get. I walked in on the end of the previous presenter's comments and the questioning back and forth with one of the members in here and I have to say that yes, looking at the legislation, something that hasn't become clear in the public debate so far is how much room is in there for the collective bargaining units and the employers to resolve their differences before they get to the point which has caused so much controversy, namely disagreement over which collective bargaining agreement should be selected for composite units and so forth.

The problem is going to be when you reach a position, if there's a composite agreement in place, where the transition commission is going to be looking through and picking and choosing from among these collective bargaining agreements. Again, a collective agreement, if you're selecting one that has been used already in one of the merged or amalgamated bargaining situations, you've set up the very situation where at least the agreement that's being picked has been bargained by some of the members of that bargaining unit in a fair situation with their employer.

Nevertheless, let's say you've got, for the sake of argument, four different collective agreements, A, B, C and D. If A is selected, you're going to have a municipality that's very upset, assuming A is the most costly of those collective agreements, and you're going to have a very happy collective bargaining unit because they're all going to get the benefits that once only accrued to a smaller portion of that particular unit. In the decision-making process, the transition commission is supposed to look at a number of factors. Specifically in section 34, paragraphs 1 through 5, I believe it is, there's a discussion of considerations: employer's ability to pay, lost services and so forth. My recommendation to the government at this point, again to help clear up uncertainty, for lack of any other better reason, is to take the time, whether it be in the legislation or outside of it, to go into more detail about what is meant, for instance, in section 38 by the most appropriate collective agreement and to go into greater detail, if possible, even whip out a position paper over the next few days, again for clarity of what the government's intent is in the meaning, for instance, of sections like 34(5)1.

Obviously the taxpayers federation strongly believes that ability to pay has to be of paramount concern in that decision-making process. Nevertheless we have sympathy even with our opponents in that to have a debate over the questions of ability to pay. Particularly in an ongoing municipal campaign season it helps to know what the government's intent is in terms of the transition commission as to defining that very question.

In summary, we have here what appears to be a fair solution to a difficult problem that the government is working to enhance, we believe, by ensuring that disputes over questions of process don't overcome disputes over questions of substance. As many of you know, the CTF and the Ontario Taxpayers Federation were virulently opposed to the amalgamation process for municipalities on the grounds that we've seen lots of evidence to suggest that such processes usually end up with higher taxes, overly powerful bargaining units and large bureaucracies. Nevertheless, it's also our obligation to try and be constructive as well while the amalgamation process is going on. I would liken it to walking into a political minefield in the sense that if somebody walks into a minefield, you might scratch your head wondering why they walked into a clearly marked minefield, but at the same time you're also going to try and help them get out.

There are a few different ways to get out. You can walk backwards and go out the way you came. Clearly the government is not going to do that and isn't considering that option any more. The next best way, which is the way we're recommending, is to walk straight out in the other direction. The objective here is that if you walked into the minefield, you did it to get to the other side. Dealing with questions like the right to strike and leaving those in Bill 136 in some ways created a situation where the government was, instead, trying to walk out of the minefield by walking in ever-expanding circles, which is obviously not the wisest way to proceed.

If provisions are changed in this bill to ensure that both sides in the collective bargaining process have some room to disagree, and to disagree hotly, if necessary, and to do so in a way that the employees as well as the employers think is fair, I think you'll end up with a smoother amalgamation process. While that's not often necessarily a position that groups that ours would be too happy with, in our hearts we think that some movement is needed on a number of collective agreements throughout the province to ensure that municipalities are more affordable. The fact is that the process of getting there will be easier once this amalgamation process is solved, and solved smoothly.

The Vice-Chair: Thank you very much for your presentation. That allows us just under six minutes for caucus. We begin with the third party.

Mr Christopherson: Thank you, Mr Kelcey. I'm going to start out by saying I think we can all sympathize with the shortness of time. The majority of presenters have been faced with that. Unfortunately the process just hasn't lent itself to people being given the time to review adequately what's in front of us. It's impossible anyway, given that we don't even have what's in front of us actually in front of us.

You talked about a lot of the noise that's out there and what is happening out in the public domain. I want to ask you your opinion. I realize that while I don't agree with much of what you said, there were parts of it that addressed accurately what any side in this dispute would agree is the reality. How do you feel about the fact that some of us believe that if the government is now sincere when they say they were listening and that's why they've changed their mind, as opposed to the fact that for the first time they picked a fight they couldn't win, what they would have done at the beginning was sit down with the labour leaders before June 3, when they tabled the legislation, and say, "Look, this is where we're thinking of going"?

I've been a cabinet minister, I've introduced legislation, and that's exactly what I've done, not that I'm any hero; the commonsense thing to do is to pull in the leadership of the people who are affected by laws and say: "This is what we're thinking of here, the broad-brush policy ideas. What are your thoughts on that? What's your reaction?" Do you not think if the government had done that, given where we are today, vis-à-vis the government's 180-degree turn -- I won't say "flip-flop" -- that we might have avoided an awful lot of this and we might have had the time we needed to review it constructively, and if we've got agreement, get it in place and get on with the job?

Mr Kelcey: In response to the member's question, I'd say potentially we try not to make a habit of pretending that we're necessarily in ministers' minds or in MPPs' minds and so forth. The best answer to that question that I think I can give you at this point is that I expect so. I'm prepared very begrudgingly to give everybody some leeway in this process precisely because one of the warnings we gave on this issue was that amalgamations, particularly of municipalities, contain a lot more room for forgotten issues or for things that need to be cleaned up or for logistical chaos than we believe the government expected when it embarked on this policy. That being said, I think in part their actions today demonstrate their sincerity in trying to make this work. I realize there are time constraints and I would lean to the side, as I'm saying, of giving the government the benefit of the doubt, that the speed of work required to make this process an efficient one is resulting in a little bit of uncertainty. The faster that uncertainty is eliminated, the faster we can get on to substantive debates over what precisely is in these collective agreements and what the different bargainers believe.

Mr Christopherson: That's where we'll disagree, because I don't believe they have been sincere. I think they have caved because they did not expect the reaction from AMO: an anti-Bill 136 position. They didn't expect communities like mine in Hamilton, where the city council voted against it as well as the labour council, and that has happened in a number of communities, including in Thunder Bay just the other night. I think, as I said earlier, they just picked themselves a fight that for once they realized they can't win because the meanness of what they're doing is so clear to enough people. But we can agree to disagree on that.

You mentioned that you were urging the government members to have people work overtime and do everything they could to get the material out so there could be a "substantive debate." Those were your words.

Mr Kelcey: To clarify that, there is certainly enough here to have a substantive debate, but obviously the greatest source of concern that is stalling this process right now is the substance that hasn't been clarified. That's the part I'm concerned about.


Mr Christopherson: That's exactly where I'm going in my own roundabout way. Do you not agree that rather than having hearings on this and giving you such short notice -- you probably don't feel really good about coming in here without a prepared text, you probably like to do things in as professional a fashion as possible. But also you're talking about provisions that have either been pulled because 136 doesn't apply or provisions we haven't seen in writing, so the idea of having a detailed debate is rather moot. My bottom line is, wouldn't it make sense to you if you had the amendments in front of you right now so you would know exactly what you were commenting on and had at least a few days to think about it and write down some thoughts?

Mr Kelcey: To respond to the member, I actually enjoy speaking without notes, so this gave me a good excuse, but at the same time I think --

Mr Christopherson: Then why did you apologize?

Mr Kelcey: I'm apologizing to the Hansard clerks in particular because it makes their lives more difficult.

Mr Christopherson: They're pros. They do this all the time. Pat can do it with both hands sometimes. Watch her.

Mr Kelcey: That's good to know, but as far as the text of the amendments is concerned, obviously I could have more interesting things to say if there were more data to work with. That's my point, and I'll agree with you on that, that this debate right now is incomplete until those amendments are provided.

Mr Christopherson: Yes, but you just agreed with the Ontario Federation of Labour.

The Vice-Chair: We now move to the government side.

Mr Gilchrist: Thank you, Mr Kelcey, for your presentation. I appreciate your coming before us.

I'd just like to pick up on a couple of things. Mr Christopherson plays the game very well in here of waiting until the turn of rotation so there's no chance for rebuttal, so you'll forgive me for starting off by making the comment that as much as I'm sure it's less embarrassing to him to believe that the world started on June 8, 1995, the fact is that his party is hardly a paragon of virtue when it comes to consulting with the unions and listening to the people who work in the public sector across this province. In fact, the former MPP, who is now the adviser to their leader, said, "The input we want to see in here is at the bargaining table, not in an all-out effort to defeat this legislation in the legislative committee."

That's why Brian Charlton said it was quite appropriate to have no public hearings on the social contract, which stripped every public sector employee of all their rights for arbitration and to be dealt with fairly, not to mention a wage rollback. I know Mr Christopherson doesn't like to talk about that subject, because it goes far beyond anything that is dealt with in this bill.

We could speculate, looking into the future, that arbitrators may or may not deal fairly in the future. I have no reason to believe arbitrators will be more or less fair in the future, but the bottom line is that the changes we've proposed simply add more incentives for people to bargain fairly.

I also want to comment very briefly that he keeps throwing in that somehow you need to see the specific words of an amendment that says, "The following section is hereby deleted." Mr Christopherson knows the process. He also knows that the Liberals and the NDP normally, you would believe, if they are being responsive to the people they supposedly represent in their ridings -- unless the suggestion is that 100% of the people in his riding agree with the NDP position, and I don't think he could square that with the voting results in the last election -- there would be amendments they would be bringing forward. It would be equally valid to ask, since they have had this bill since June 3, and they have a research budget for 16 people, almost the same size as the 82-person caucus of the Conservative government, why they wouldn't have their amendments out, why they wouldn't have done their briefs and why they wouldn't be prepared to have their amendments scrutinized by you. The bottom line is that they don't want you to see that. They don't want you to be able to comment on, in most cases, the fairly frivolous things that they will bring forward if past bills are any indication.

Let me ask you this: Whether it's three or four significant amendments or 100 minor or medium amendments, would you not agree that any time an amendment to the bill comes forward, it has the potential to change it, and in theory you could suggest you would start the whole process all over again?

Mr Kelcey: In theory you could have processes going on forever.

Mr Gilchrist: Precisely.

Mr Kelcey: If I can just say something, sir, the gist of my comments here is that the way things are going, we will have processes going on forever. It was meant as constructive advice to the government that while it's not my place to be a political adviser, it certainly is the mood of the membership that I have spoken to so far that the faster resolution of this issue through faster release of substantive data would help generate confidence and prevent the kind of economic disruption that the member who is walking behind me was speaking about.

Mr Gilchrist: That's precisely why we believe a relatively short time period, making sure this bill is passed long before the restructuring of these municipalities takes place on January 1, is necessary. We can't continue to belabour the points.

If anyone thinks the union position would have been any different if they had come to the table in July instead of September after they got through their Labour Day parades, they are out of sync with reality. The bottom line is that they are never going to agree to a number of the changes that are in this bill, but they identified the five key issues. What is really quite insulting is that they came to the minister and said, "These are the things that we find most odious," and while the member opposite would suggest we don't listen, we sat down and dealt with all the stakeholders, the employers and the employees, in this case the labour unions, and we made all five of the deletions they requested. What was their response on the day we did that? They came out to the scrum afterwards and said: "We didn't guarantee labour peace" -- even though they did on CFRB on August 18 -- "if you made these concessions. Here is a whole new series of demands." That's their idea of bargaining in good faith.

The bottom line is, if their position is that there has never been a history of labour strikes during restructurings, imagine the irony if now that we have sat down, listened, made the changes and taken out the odious sections, they said, "Because you have listened, now we're going to stage an illegal strike just to make our point." In fact, they went even further. I don't know if you heard the testimony of Sid Ryan saying two days ago, "It's now not even about this bill; it's about the teachers' bill," which doesn't affect one single employee of his union. I wonder if you would like to comment about the appropriateness of that and the sort of social dislocation that would cause.

Mr Kelcey: Part of the point of this discussion is that rather than fretting about anticipating strikes every time they are threatened, we should get on with the business that Ontarians are looking to get on with and get that business done. That business, I hope, for most or all MPPs, is trying to have a government that is affordable, that provides services where government is the appropriate provider of them and doesn't where government isn't the appropriate provider of them. With that in mind, part of my suggestion is that yes, there are lots of threats going on out there. I think those threats will end as the debate becomes more solid and after the amalgamation process begins. Some of our members are upset, but if there are some strikes breaking out, I think that is an issue to be dealt with then based on the substance of what the strikes are over. In some ways it's a waste of time to debate it otherwise, and I mean that with all due credit to the member.

Mr Gilchrist: Thank you, Mr Kelcey, and we share your optimism.

The Vice-Chair: We now move to the official opposition.

Mr Patten: I have to make a comment on this because it is the government's bill; it's not our bill, it's not the NDP's bill. The government puts in a bill, and by the minister's own admission has addressed the fundamental issues that were of major concern, which was most of the bill.

In a circumstance of that nature, if you are sincere about hearings, you would then say, "We could draft them, because in an hour, at 5 o'clock, if we're sincere about listening to you and to all the other witnesses we have heard, and by 4:30 we will have listened to 42 -- right now it's 39 with yourself -- 32 of 39 have commented on shortage of time and, 'We feel somewhat at a disadvantage in that we don't know quite what we're dealing with.'" The hearings are to look at the bill. That's the purpose of them. Mr Gilchrist, in his evangelical fervour, tries to suggest that we have the same kind of power. We don't.

Mr Gilchrist: You have the same rights.


Mr Patten: We do not. We don't have the same power at all. They have five members over there and there are three of us here on this side. Regardless of the quality of the argument or the issue, they can just ignore it and vote it down. For us to react, of course we're working on amendments. We've even stated them. We will say "delete." We do not believe that it's wise to delete the pay equity for women who are in the lowest-income area. We don't see taking away the wage protection act. So we have ideas which we have expressed in the course of the hearings and Mr Christopherson knows that.

I'd like to ask you, though, about some of the worries of the taxpayers association. You referenced that some of them were worried about amalgamations. Frankly, many are too, because we don't believe bigger is best. You're absolutely correct that all the evidence suggests -- maybe not all the evidence but certainly most of the evidence -- that when you get bigger, you get your political leaders and you get your staff working for those units, more removed from people, and eventually they start adding to the bureaucracy because they have to: They can't travel all the way from Etobicoke or Oakville to Scarborough in one afternoon, they can only make one trip, and if they're going to make it, they may as well stay home, all those kinds of issues that go with big units. I appreciate that comment. That's coming on the heels of what this is. So while there is cynicism, some of that is not unwarranted, given that they've had to deal with this particular government.

I wanted to ask you quickly, what are your views related to the proposal of having welfare and social housing and 50% of the education tax still on property tax?

Mr Kelcey: I think there are other fora to go into that issue in more detail, but because you've asked the question today, I'll make the point that in general, one of our biggest problems with the government's agenda right now is the whole process they've been working through related to municipal issues, including amalgamation, including reassessment and including downloading. Particularly, I can say without question on the issue of social welfare and social services costs, I can't think of an easier way to guarantee increasing social welfare costs than putting social welfare costs on the property tax bill. You're dealing with something that fluctuates so wildly in different municipalities and different areas.

One of the reasons for our concern is that you're then setting up a situation where you're going to find people who are just trying to pay for their homes and pay taxes for services that are there watching their taxes rise in a way which is totally out of proportion to their ability to pay for social services which may rise totally out of proportion to a municipality's ability to pay. So we would be seriously concerned about that issue, as we have been in the past.

The more I look at the amalgamation situation the more I'm frustrated, because we're being forced at this point to say that the downloading agreements are of concern, the amalgamations are of serious concern, but we've also got an obligation to try and help these people make these systems work whether or not we think they're actually going to. That expresses, I hope, the paradox we've found ourselves caught in at this point.

Mr Patten: I can appreciate that.

On your point of some of these things being an incentive to bargain, with Bill 136, some of the evidence we've had before the committee, and privately as a member, is that some municipalities have withdrawn from negotiating at the moment, especially when the first draft of the bill commented on by the minister was introduced. They wanted to wait until 136 was introduced because it would appear they felt it would be to their advantage to do so.

If those who think at least the first draft as it is would be an incentive for two parties to get together, the representations I've heard so far have been that by virtue of that testimony, it has shown that the employers anyway would see that to their advantage and therefore would want to wait rather than continue with existing negotiations, let alone have some of the existing negotiations reopened or restarted with some new criteria that may be part of what's recommended, although we don't know what it is.

Mr Kelcey: Excuse me, Mr Chair, may I ask a question?

The Vice-Chair: A quick response.

Mr Kelcey: I'm just curious. You're saying that part of your concern is that the timing of Bill 136 has created a situation where employers are seeking to gain an advantage by sitting on their hands and waiting for that advantage to appear?

Mr Patten: Yes. I've been told, as a matter of fact, in a couple of cases that police forces and firefighters were in negotiations with their municipalities and the negotiations have come to a halt. The word is that the municipality wants to wait until Bill 136 is through. I don't know if they feel that way today. This was prior to the backtracking of the minister in terms of readdressing some of the essential points of the bill, but at that particular time. I'm responding to your comments that Bill 136 would have this effect of encouraging the two parties to resolve their differences prior to going to arbitration or going to the labour board or better.

The Vice-Chair: Actually, that pretty much concludes the time. If you want to have a quick wrapup, you can.

Mr Kelcey: Just a sentence to say that the process that has been set up and structured is as fair a process as I can think of, given the circumstances for bargaining and resolution. If there is going to be any push to go to the table and negotiate, I think the momentum of the amalgamation process rather than any legalese in Bill 136 will be the primary force that creates that kind of incentive.

The Vice-Chair: Thank you very much for your presentation. On behalf of the members here, I want to thank you for bringing your perspective forward.

For the members who are here, the 4 o'clock presenters are assembling in the hall and are willing to come in, so I think we'll take a small five-minute recess and reconvene at 15:45.

The committee recessed from 1537 to 1545.

The Chair: Colleagues, we reconvene for continued deputations on Bill 136, the Public Sector Transition Stability Act.


The Chair: We're now about to listen to presenters from the Canadian Red Cross Society, homemakers division. Welcome to the committee. Would you introduce yourselves for the Hansard record.

Mr Allen Prowse: Allen Prowse, the general manager of field operations in Ontario zone.

Mrs Gabrielle Moule: Gabrielle Moule, volunteer president for the Canadian Red Cross in Ontario.

Ms Deborah Clark: Deborah Clark, director of community health services.

The Chair: Please begin.

Mrs Moule: Thank you very much, Madam Chair. Ladies and gentlemen, we are here today in the hope that together we can resolve a situation that threatens the continued operation of the Red Cross homemaker service in Ontario. Since pay equity was first introduced, successive changes to the legislation have resulted in different rules being applied to the different providers of the homemaker service throughout the province. This has resulted, as you can imagine, in what we are characterizing as an uneven playing field within the home care sector. The regulations that currently govern the Red Cross homemaker service with regard to pay equity will become so onerous January 1, 1998, that we will have no choice but to close down this vital service unless changes are made.

Red Cross has been operating a homemaker service in Ontario for 70 years. We currently employ 6,400 people, most of whom, by the way, are women. Many are single parents. This service is the central piece in our larger community health service that we operate, which includes transportation, friendly visiting, Meals On Wheels, yard work and many other such programs that provide assistance and support to those who are homebound, particularly to the elderly and the disabled. Given the current move towards earlier hospital release and the increased emphasis on caring for persons in their own homes, you can see that this Red Cross service clearly fits the model for long-term care reform in Ontario.

The service also offers another benefit; that is, an opportunity for the homemakers' clients to deal with an already known organization, one that has many other services to offer that they may in fact require.

Our concern naturally focuses on our employees, but there is another very significant group of people that will be adversely affected if we have to close down this operation. That is the more than 70,000 clients that our homemakers serve. We currently operate homemakers in 90 communities across Ontario. Of these 90, 29 are communities in which Red Cross is the sole provider, and they're also mainly rural communities. We are the sole provider, as I say, of homemakers in those 29 communities.

This issue may appear to be a pay equity one to some people; however, we believe that it is more properly an issue of having the same set of rules apply equally to all homemaker providers across the province. We do not want to undo the major gains in pay equity that have already been achieved. At this point I would like to turn things over to our director of community health services, Deborah Clark, to give you more specific details.

Ms Clark: Since the mid-1920s, the Canadian Red Cross homemaker service has provided practical, in-home support to those in need. The first homemaker service originated at the Toronto central branch to provide homemaking support to young families following the First World War. Today, our homemaker service is found in over 90 Ontario communities. In 29, we are the sole provider of homemaking services, the majority of which are in the northern region.

As seen in our submission, appendix A, our services are available to frail and vulnerable groups, including seniors, new mothers, people convalescing, caregivers, persons with physical and mental disabilities, children and palliative care clients. We employ over 6,000 homemakers and 400 office and professional staff who deliver close to six million hours of care to over 73,000 clients. Ninety per cent of our clients are referred through the home care, now known as the community care access centres, through a fee-for-service purchase agreement.

Homemakers play an increasingly important role in helping vulnerable people remain at home and to improve their capacity to function independently in their own communities.

The essential services provided by a homemaker through either daily or weekly visits may include the following, and I reference appendix B. Personal care activities may include bathing, dressing, toileting, feeding, assisting with medication, palliative care, assisting with either exercises or mobility or specific lifts or transfers that the client may need. Of course, there's also some basic home management tasks that involve the homemaker and these may include grocery shopping, meal preparation, general housekeeping, laundry or errands.

Many of our homemakers have completed community college training to provide in-home care for clients of all age groups on a short- or long-term basis. Homemaking services have seen a growing trend in the past few years with special function requests to carry out tasks that were previously performed by other professionals. With the introduction of the Regulated Health Professions Act, homemakers, with appropriate training and supervision, have undertaken such tasks as are referred to in appendix C, such as bowel and bladder care, colostomy care, suctioning, G-tube feeding, medication assistance and operating the specialized lifts or transfers.

The Red Cross homemaker service has participated in a variety of programs and service initiatives to meet the needs of clients and their communities. These initiatives are especially critical in times of hospital restructuring and early discharging of patients back into the community. In the submission, in appendix D, you'll find a listing of our activities. We are involved in attendant services, Alzheimer day and respite programs, early obstetrical discharge programs, shared care and cluster care, supportive housing, palliative care projects and household support, to name but a few. Homemaking services are offered through flexible scheduling to coincide with the client's diverse needs and are available on a 24-hours-a-day, seven-days-a-week basis.

As health care restructuring continues, in-home providers such as homemakers support client choice to receive care in the home and the government's shift from institutional to community-based care.

I'll now turn the presentation over to Allen Prowse, our general manager for field operations.

Mr Prowse: Homemaker services in Ontario are subject to the action that is involved in the long-term care reform and as such will move to a limited competition model which is being initiated this year.

In order to lessen the impact on traditional service providers, for instance, government has established a minimum hourly wage for homemakers at $9.15. This is expected to disappear in 1999, but it's important to point out that not only does Red Cross's current pay-equity-adjusted rate exceed that $9.15, in fact Red Cross homemaker wages and benefits are the highest in 31 or 35 home care areas in the province of Ontario.

With subsection 13(7) of the act requiring full achievement of pay equity by Red Cross by January 1, 1998, because it is a job-to-job comparison and not a proxy comparison and no likelihood of further government subsidization, this balloon payment will prevent Red Cross from continuing to offer these services.

The problem, in brief, is our service providers and other service providers employ primarily female workers. Though there were few, if any, appropriate comparators available for use in our pay equity plans, we adapted the job-to-job comparison method. As a result, where most home care service providers were not required to make adjustments under the act as originally enacted, we obligated ourselves to substantial adjustments to homemaker hourly wage rates, thus ensuring that our homemakers would get the benefit of the spirit of the act. When the act was amended to include proportional value and proxy comparisons, these were not available to us as a result of our existing pay equity plans.

Following the election of the current government, proxy comparison obligations were eliminated from the act and adjustments pursuant to that section of the act were capped at 3% of 1993 wages. As a result, most of our existing competitors were able to meet their pay equity obligations by a one-time adjustment in 1995, which results in rates substantially less than the pay-equity-adjusted hourly rates required of Red Cross. As noted above, this problem is further compounded by the act's current requirements that Red Cross achieve full pay equity no later than January 1, 1998. There's a requirement to dramatically increase what amounts to the best wages in the industry to a point that would prevent us from continuing.

If government's policy objectives are met in terms of fostering competition and no action is taken before January 1 to provide some relief from these inequities, we will have no choice but to cease operation. As the sole provider of homemaker services in 29 rural Ontario communities, 22 of which are in northern Ontario, our principal concern is the 72,000-plus people we serve and our current employees. If the Canadian Red Cross were forced to abandon this program, a significant dislocation in service would result. This cannot have been the intention of the legislation, its amendments or the current government's policies.

We therefore request the amendment of section 4 of Bill 136 as follows and the repeal of subsection 13(7) of the act to require full implementation of pay equity as per section 13(6) in the private sector, and we've clearly laid out the wording.

To further complicate matters, on September 5, 1997, Mr. Justice O'Leary of the Ontario Court of Justice (General Division) declared schedule J of the Savings and Restructuring Act, 1996, repealing proxy provisions to be unconstitutional and of no force and effect. Although no determination has been made as yet as to whether the ruling will be appealed, a ruling by the Ontario Court of Appeal will be a long time coming and it will not help us.

We therefore propose as an alternative that the proxy comparison method be made available to all employers in the broader public sector, including those with existing pay equity plans resulting from either job-to-job or proportional value methods. An amendment similar to that proposed for subsection 4(3) of Bill 136 could then be added to allow employers using the proxy method to replace their own plans and implement the required adjustments, notwithstanding the amounts of adjustments required under the original plan.

The Pay Equity Commissioner, Jean Reid, who conducted a review of the legislation, specifically recommended that government resolve the Red Cross problem. We've reproduced her comments in brief in the report.

Public service staff of both the Ministry of Labour and the Ministry of Health at all levels have been very supportive and responsive to proposals put forward by the Canadian Red Cross Society, but we believe they've done all they can. We're looking for a level playing field for all homemaker providers which does not eliminate the major achievements in pay equity built into present rates. Government support in making this an urgent issue now is essential to avert an unnecessary loss of employment and service to the vulnerable.

Our desire is to support the purpose and spirit of the act, ensure fair compensation for women and to continue to provide essential, in-home services to the elderly and the vulnerable.


In summary, the issue as it affects Red Cross is simply that the patchwork of approaches to determine pay equity liabilities threatens to undermine a large component of the community care sector at a time when it is being counted on as a key component of health services restructuring. At the moment, Red Cross provides approximately 40% of all homemaker services in the province of Ontario. Of this, we provide 80% of all the services that are available in rural communities and 100% in 29 communities, 22 of which are in northern Ontario.

We request your consideration of our suggested amendments.

If it is the will of government that Bill 136 be passed as drafted with respect to pay equity, it would provide the opportunity for an orderly transition of these services to another provider, without the current obligations. We are committed to achieving this because our principal interests are the clients we serve and our employees. If it is necessary for us to achieve an orderly transition, we can be relied on to do this in a competent and a professional manner. It can be expected to result in some upset and confusion for both our clients and our workers. In the end, it seems to us unnecessary to put the many affected individuals and communities through this, simply to have the pay equity legislation apply equitably to all providers.

If Bill 136 contains no amendments to the Pay Equity Act, then the only alternative is business closure. It would be for Red Cross a sad end to 70 years of providing homemaker services in Ontario. We are not opposed to pay equity legislation. We are simply asking to be placed on the same footing as other providers in the industry.

Again, I'd like to reiterate that the public service at all levels has been supportive and understanding in the search for a fair and appropriate solution, but in the end this is a legislative problem and it requires a legislative solution. We appreciate the opportunity to present our case and our proposals and are pleased to answer any questions which you may have.

The Chair: Thank you very much. We have six minutes remaining for questioning from each caucus, and we'll begin with the government caucus.

Mr Hudak: I'll start off, Chair, and I'll be very quick. Could you help us out with some of the details? What's the current obligation that the Red Cross is under with pay equity adjustments? What are you looking at?

Mr Prowse: This would be an adjustment of approximately $5.95 per hour, or a 60% wage adjustment due and payable January 1, 1998.

Mr Hudak: Which would put your cost of delivering the service -- how would that compare to your competitors?

Mr Prowse: It would put us somewhere between $6.75 and $7 away from our nearest competitor.

Mr Hudak: And the result of that would be?

Mr Prowse: We'd be out of business.

Mr Hudak: You'd be out of business.

Mr Prowse: Yes.

Mr Hudak: And what does that mean for a lot of rural and northern communities in Ontario?

Mr Prowse: It means a lot of people, over 70,000 individuals, will not have these services that would allow them to continue to live in their homes, and we'd have 6,400 people out of work.

Mr Hudak: It seems, obviously, that with pay equity, although a laudable and admirable goal, you always have to be very cautious in how you go about it. The market tends to be pretty efficient in terms of determining wage rates. In the public sector, in how to determine the proper wage rates, you always have to be very cautious. This is a good lesson in unintended consequences.

You've brought forward a couple of amendments for our consideration that will ensure that the Red Cross home care services, or those people who are benefiting from them, will continue to benefit from home care services into the future. I thank you for that, and I'll take them into serious consideration.

Mr Gilchrist: I'll be relatively brief. I know Mr Maves wants to ask questions as well. Image the irony in all of this. Pay equity, but the previous government, when they set up the plan, made it so complicated that there was no equity within each industry. I find it quite extraordinary that they thought it was okay to have 92% of the home care workers dealt with one way, and you dealt with another way.

It's unfortunate that none of the northern members -- and I would remind everyone that every seat north of Parry Sound is held by either a Liberal or an NDP member -- are here today to hear your presentation, because you deliver, it's my recollection, 100% of the home care in the north. From what I hear, if the option facing you is closure, that's going to be an extraordinary dislocation to the people who need those services in the north.

Let me ask you quite precisely, what exactly would the impact be of that $5.95 increase? Who pays that? Is it government that will turn around and have to raise everyone's taxes to pay it, or have a lot of your clients contracted privately for home care services?

Mr Prowse: No, the majority of services are provided on purchase of service contracts to government. We would find ourselves in the situation that we would simply have to close this service and we would end up with a net unfunded liability of between $10 million and $20 million. We'd be broke, and $10 million to $20 million in the hole.

Mr Gilchrist: That's extraordinary.

Mr Maves: The requested solution to this is probably going to become a matter of debate, even among members of our own caucus, because the private home day care amendment that's contained in Bill 136 is there because it clarifies that people who provide day care in their own homes under contract to municipalities or other agencies are not covered by the Pay Equity Act. These people are independent contractors, and it was never the intent of the legislation that they be covered. This was also the position of the previous NDP Minister of Community and Social Services. I know you'll know that.

The rationale for that is that they're under contract. There's a whole rationale for that. The people you have working for you aren't quite the same as the people who have private home day care, so I wonder if you've given any thought to any other way that this can be approached besides an amendment like this.

Mr Prowse: We have given some thought, although there wasn't really sufficient time to work through the technical details. This is the challenge, having spent the last 18 months working with many public servants in both the labour ministry and the Ministry of Health. The challenge is to find a technical solution, because it is a challenge. In this case, the suggestion was that essentially to take this approach would provide an exemption opportunity which would essentially leave the players largely where they were.

It's not the best one. A better alternative is the one we didn't really have the time to work through to the point of language, which is to create a situation where the proxy approach would apply and would allow us to use the same rules, the same tests. The same criteria that were applied to all other providers of homemaker services would be applied to Red Cross. It's not a question or a request or a desire to be off the hook; it's a question of being treated exactly the same way as everyone else.

Mr Patten: You said you didn't have enough time to work this out. Is that because there was short notice to come here?

Mr Prowse: Yes. Although we've tried many, many things in terms of different approaches and explored numerous approaches, this is certainly a more recent one for us, so we really didn't have the time to work on the language.

Mr Patten: Just in a nutshell, you're saying your wages were around, what, $10 or something?

Mr Prowse: They are over $10. The average might be about $10.40.

Mr Patten: That would jump to $16 or $17?

Mr Prowse: Yes, at least.

Mr Patten: How was that determination made?

Mr Prowse: It was an internal comparison because the organization was large enough to have some male comparators. I don't know the logic behind the choice made, and frankly, it would be our responsibility whether we made a good or bad choice. However, it doesn't affect the outcome. The challenge is that this is the situation.

Mr Patten: You're kind of stuck with it. If you're already 31st or right up there -- out of 35, you're at 31st place.

Mr Prowse: We have the first place in 31 out of 35 areas.

Mr Patten: Oh, I see. Okay. Having gone through an internal review either in anticipation or in the spirit of pay equity, you arrived at a certain solution. I'm trying to grasp if there was some other body that adjudicated this and said, "We compare you with this group," by proxy or whatever. Then I think we'd have something to work with. But what would you want government to do, go into your organization and do a review? The ultimate solution, of course, would be to give you more money to carry your services.


Mr Prowse: Well, it would be an awful lot of money.

Mr Patten: I appreciate your position, because that's what I wrote down before you were asked the question by the member on the other side, and that is that it places you now in a far less competitive position if you're dealing with, what, primarily regional government or local government councils, town councils?

Mr Prowse: Community care action centres.

Mr Patten: They're looking at what's the least costly service, and sometimes they may even sacrifice quality for cost.

Mr Prowse: The irony in this situation for us is, on the basis of those contracts that have been tendered to date, we've actually done very well in the competitive environment, even though we have the highest wage and benefits costs. On the basis of best price and best quality, we've frankly been winning contracts in this environment. But with an additional burden that no one else in the industry requires, simply because they had no male employees in their whole organization at the time, we're finished.

Mr Patten: Now I understood -- I forget what the figure was, but supposedly over $100 million was committed to at least the long-term care area, which is part of some of your services, right?

Mr Prowse: Yes.

Mr Patten: A good part? What percentage would be related to, say, seniors or shut-ins or retired people?

Mr Prowse: Our homemaker program in Ontario, which would largely be for seniors, is in total about $108 million now.

Ms Clark: Over 70% of our clientele are seniors.

Mr Patten: Well, you probably know better than I do. I know what it is in my area, in the Ottawa area. It was over $100 million, was it not, that Mr Wilson said he was committing to enhancing long-term care and home care and all this kind of thing? Have you seen any reflection of that? Does that trickle down to you, in other words?

Mr Prowse: Yes, it does. It particularly trickles down in terms of enhanced transportation programs which we and others provide to provide transportation to medical appointments etc for elderly people, largely in our case with volunteer drivers; additional Meals on Wheels programs or the reverse, referred to either as Meals to Wheels or congregate dining programs, particularly in Metro, Mississauga and other municipal communities; also things like friendly visiting etc. These things in fact are trickling down. There have been some significant changes.

Mr Patten: I suspect that the government will withdraw this, given the court case you cited; however, they may not. Anyway, that's my judgement; it may not be so. If that happens, that obviously doesn't change anything for you. This act won't address it, and frankly I think the opposition is in agreement that this has nothing to do with the amalgamations directly and neither does the wage protection program. So there might have to be another avenue to address them. I agree that if you're going to implement a qualitative factor on the basis of social justice, than it should prevail in the complete sector.

I appreciate your position. I'm not sure what the answer is, given the circumstances of the time allocation motion we're under, because we can make an amendment but we're not sure what we're dealing with here because we don't have the government legislation before us. So we're in a bit of quandary, frankly, ourselves, but I do appreciate your situation and want to be supportive of your position.

Mr Christopherson: Thank you very much for your presentation. I want to say at the outset that the Hamilton Centre Red Cross is just literally around the corner from my constituency office, and I've always been very supportive of those folks. They went through some very difficult times, but the individuals at that particular centre are well respected and regarded all across our community. Betty Ho and all her staff deserve our continuing support, and they will continue to get it.

Also it's interesting that Mr Gilchrist seems to believe that if he shoots from some lower level, suddenly that's a better shot. Regarding the fact that there aren't any northern NDP members here on this committee, since I'm the only member allowed, because they reduced the size of the committees, I would just say to him, where's the minister of northern affairs and where's the Premier? They're the northernmost members they've got. I wouldn't expect them to be here, so there you go. They could be here listening if they really cared too. It's a cheap shot. I don't mind when it's intelligent bantering back and forth, but when it's just cheap stuff, I'm surprised.

Also, the government likes to say that one of the big problems with pay equity is that it's so complicated, therefore it's evil, because they don't like anything that doesn't fit on a bumper sticker. I would just say that heart transplant operations are complicated too, but nobody is suggesting we get rid of those. The fact that it's complicated merely points to the number of problems that pay equity has to deal with. So let's be clear on what we're dealing with.

Also, I want to ask a question. The pay-equity-adjusted amount reflected in your report, $9.15 an hour, is that total pay or is that just the pay equity adjustment?

Ms Clark: That's not actually a pay equity adjustment, Mr Christopherson; that is part of the long-term-care transition to the managed competition model. So any provider that wants to submit a request for proposal for homemaking must have $9.15 for a homemaker wage, and then there would be a benefit on top of that.

Mr Christopherson: Right, but at $9.15, a quick calculation, we're talking about people right now who at that level are earning less than $18,000 a year for a 40-hour workweek, right?

Ms Clark: Our beginning wage is higher than that $9.15.

Mr Christopherson: Yes. I just want to be clear what we're talking about when you say $9.15 is sort of a minimum amount anybody is going to get. We're talking about people in our province, women predominantly, who are making less than $18,000 a year, at that rate. That's accurate?

Ms Clark: It would probably be in that range, yes.

Mr Christopherson: Okay, thanks. Let's see if I can cut to this quickly, and I honestly don't know the answer to this. I'm not an expert in this field and I don't pretend to be, which is dangerous. Politicians are like lawyers: We don't like to ask questions we don't already know the answer to. If the government didn't appeal the court ruling, and if they flowed the money the court said they should flow, they didn't order them to but they said they had a moral obligation to flow it, would that alleviate all of this problem? That then would leave the proxy still in place and would still have the money flow, correct?

Mr Prowse: Sure, but you'd have mass behind-the-scenes subsidization of the various rates, which I suspect would eliminate any concept of competition.

Mr Christopherson: But my point is that the court said that the government's attack on pay equity under Bill 26 is unconstitutional and of no force and effect and it violated the rights of the women who received those pay equity benefits under the Charter of Rights. That's what the court said. The government is thinking about appealing that. I'm just asking the question, with the problem you brought to us today, if the government would stand down and say, "We're not going to appeal," and flow the money that the court said they had a moral obligation to flow, would that alleviate your problem?

Mr Prowse: No. Our liability was created under the job-to-job method and therefore was not subject to the ruling of the court, since proxy is not the method used to determine our obligation.

Mr Christopherson: So you're not receiving any money on job-to-job?

Mr Prowse: We have up till now, but with the introduction of the competitive model we've been assured that that's not expected to continue.

Mr Christopherson: Now, that's part of the government's move, the competitive model that you mentioned?

Mr Prowse: Yes.

Mr Christopherson: That's an initiative of this government?

Ms Clark: Yes, it is.

Mr Christopherson: So the whole idea of further privatizing a lot of these services is complicating this also?

Mr Prowse: Well, in our case it really doesn't. I guess one of the reasons for our challenge is that there's no opportunity to privatize here. We're out there alone because, as nearly as we can tell, nobody else wants to be there.

Mr Christopherson: Let's go back. Where did the problem start for you? You were okay before Bill 26?

Mr Prowse: No.

Mr Christopherson: You didn't have a problem, or you still had a problem?


Mr Prowse: No. We had a problem right from the beginning, because when the original legislation came into effect, since there were male employees in the national organization, then there was an opportunity for a job-to-job comparison -- no one else in this industry was subject to those rules, because they had no male employees -- so we found ourselves alone then and alone now, and we have to address it.

Mr Christopherson: The problem is further exacerbated or there is nothing new? Something has to have changed with Bill 26 and the court ruling.

Mr Prowse: With Bill 26, with the limitation of other people's obligations, yes --

Mr Christopherson: Your rates are left that much higher?

Mr Prowse: -- it's way out there, with an achievement date of January 1, 1998. I can assure you I would have been here earlier, but I have only been here 18 months.

Mr Christopherson: If you were allowed some kind of adjustment for a recognition that proxy is now allowed by the courts, does that -- there has got to be an answer. For those of us who believe in the concept of pay equity, there has got to be a way of saying this can be solved somehow, rather than going after the income of women who are earning $18,000 a year and supporting families. Surely to God there are enough brains to figure out a way to do this.

Mr Prowse: I concur. This is the alternate suggestion, and we did not have an opportunity to try to sort out what the language might look like, and that is that essentially the proxy method would apply to us, would determine our obligation, just as it has everyone else's in the industry, and beyond that, we would be committed to our obligations and we would take our lumps.

Mr Christopherson: That would require following the court ruling, then, that the proxy stands prior to Bill 26. You would have to do something else to it, but step one would be to recognize the proxy as a constitutional right that women have to have in the law and then look at how to amend it so there isn't the discrepancy between the two.

Mr Prowse: From our perspective, treat us like everyone else, and whatever is the outcome of that decision, we're prepared to live with that, because that's fair.

Mr Christopherson: So you're not seeking to go for the lowest dollar being paid to these women workers; it's a question of you just making sure everyone is fair. I would assume your preference, being the kind of humanitarian agency you are, would be that they receive as livable a wage as possible?

Mr Prowse: Nobody compelled us to be the top payer in the industry; that was our decision.

The Chair: On that note, thank you very much for coming before the committee this afternoon. It's very much appreciated.


The Chair: I'd like to now call upon representatives of CUPE Local 771, please. Good afternoon. Welcome to the committee. If I could just remind you to introduce yourselves for the Hansard record.

Ms Christina Duckworth-Pilkington: I'm Christina Duckworth-Pilkington, and I am the president of CUPE Local 771. I have with me Rob Rolfe; he is the acting vice-president of Local 771. I thank you for the opportunity to present our concerns today. These are the views of my union local and of the central advisory committee of the CUPE municipal workers in Metro Toronto. This is a group of unions which jointly represents some 20,000 municipal public service workers.

I want it to be clear that we fully support the position and goal of the Ontario Federation of Labour that this bill should be withdrawn. Bill 136 curtails our basic freedoms and is utterly repugnant to us. It attacks working people in the name of solving a problem that doesn't actually exist. Further, the process to ram it through has been hasty, ill-considered and undemocratic.

The Minister of Labour's statement of September 18, removing restrictions on the right to strike, retaining free collective bargaining for first contracts and maintaining the responsibilities of the Ontario Labour Relations Board seems to be a step in the right direction. However, no amendments have been made available, and we need to see the proposals in writing, with time for due consideration.

The process for dealing with this bill is undemocratic. We have seen this bill be given stringent time limits, with only four days of hearings. The hearings were not held properly, with province-wide sittings. Notice was very short. I was granted time to speak yesterday, on almost exactly 24 hours' notice. I believe I was phoned at quarter to 5. We know amendments are proposed, but the hearings will be over before the details are revealed. Then the bill will be rammed through in two days, before the public and the other political parties have time to absorb the changes. The employers and the Association of Municipalities of Ontario were consulted, but not the unions.

The unions and employers are going into the biggest merger in the history of Metro Toronto and the other municipalities across Ontario are facing the same problem, yet we don't know the rules we will be working under; we just know they will be different. Perhaps this is why AMO has not supported Bill 136. This is no way to run a city, and it is no way to run a business.

As the bill is currently written, it gives employers the tools to gut our collective agreements. This is supposed to stabilize the workforce during transition; in fact, it will demoralize long-term employees, whose best efforts are needed to make the new amalgamated city structures work. It will also leave a bitter legacy, ensuring difficult labour relations for years to come, as we try to win back what we had. The resentment against the provincial government will be as long-lasting and as bitter, as labour's current massive resistance already proves. The bill also changes the way decisions are made about whether workers will be represented by unions and which local union will represent them. This change jeopardizes stable labour relations.

The act gives the commission the power to make binding decisions where unions and the employers are unable to agree on matters such as bargaining units. These matters should be decided by the local union. Traditional bargaining structures should not be forced apart. For example, CUPE Local 79 represents employees in the municipality of Metropolitan Toronto's 10 homes for the aged. These full-time employees should continue to have the opportunity to belong to the same bargaining unit as other full-timers in Metro.

This government promised to find efficiencies and eliminate duplication of effort in the amalgamation of cities. As currently written, the bill creates a duplication of effort in replicating the very arbitration functions already performed by the Ontario Labour Relations Board. Further, the labour board has earned a measure of trust from its record of dealing with employers and unions, using impartial expert arbitrators. A board filled by cabinet appointments will not be able to create even an illusion of fairness in judging labour relations matters.

The bill isn't needed. Other amalgamations have not been marred and hampered by difficult labour relations. Labour's record is good; so is that of the municipal politicians and administrators. The bill says these people cannot do their jobs. I assure you that we all can.

This government promised us less government, yet Bill 136 has interfered very drastically with the lives of many working people. As written, it curtails fundamental rights of association, imposing restrictions on who represents us and how we can be represented. Bill 136 doesn't do what you want. It won't work. It isn't needed. Please withdraw it.

That was pretty quick. We have lots of time for questions.

The Chair: We do have lots of questions. Thank you very much. We have about seven minutes per caucus, and we'll begin with the Liberal caucus, Mr Patten.

Mr Patten: Thank you very much. It was short and sweet, to the point, succinct. I certainly agree with your analysis of the context in which this bill is being worked through, and I share your view of the insulting manner of the time limitation and the inability of the opposition members to adequately respond and thoughtfully listen to the depositions that are put forward and then have the opportunity to develop our amendments and consider them, as well as to, of course, be able to receive the amendments that the government side has for its own bill.

I would ask you, though, Christina, have you heard the minister's comments? You know she made some comments in the House that she would change some very significant aspects. There was a qualified, "Well, that sounds like we're moving in the right direction, and it looks good if the words that you say translate truly into amendments that are in the spirit of the principles you espouse." Of course, we won't know that until we actually see them, and by the time we see them on Monday, it will be too late to amend any of those. In other words, we cannot see the amendments the government has and then say we disagree with this or that. We have to try to anticipate, just like most of the witnesses have. By the way, I've been keeping a tally, and 34 out of 41 witnesses to the hearings have had trouble with timing or feeling somewhat at a disadvantage in not having the amendments from the government in terms of this particular bill. I think there's a document outside, is there not, in terms of the minister's comments at the beginning of this? Did you have a chance to review that?


Ms Duckworth-Pilkington: I haven't had a chance to see the minister's comments. I only know what was in the papers. As I said, we think it's a step in the right direction if there is not another way around restricting the unions. We hope that something isn't coming that will impose different restrictions on us.

Mr Patten: Let me ask you this. One of the things that has emerged, at least to my mind, is the difficulty for the arbitrators. It would appear -- and I'm reading carefully the minister's comments -- that while those two commissions are dropped, the provisions and the responsibilities and the functions will be transferred to the other bodies. Of course, there are two groups. One is the Ontario Labour Relations Board, which will work essentially with the workers who have a right to strike. Then the other ones break down into fire, police and hospital workers. Each of those acts will have to be amended. The minister explains that the same criteria that were there for the commissions will be transferred to those new bodies, which is hard to get, at least for me, because I'm not a labour lawyer and I'm not experienced in those kinds of negotiations.

We've had some testimony from union members and health care workers and different people that some of the arbitrators are getting nervous and they're feeling that they may be in a situation where they will be compromising their own professional position as an arbitrator with, as I guess the colloquialism is, these fettered conditions that they will have to live by in terms of considering how they're supposed to carry out their job. I wonder if you have any comments on that.

Ms Duckworth-Pilkington: First, I would just like to take a minute to introduce Len Roach. He is from CUPE Local 10, with the city of York. He just made it because we started a little early here. But he has also come down to assist with the presentation if we need help in fielding the questions.

As to speaking about binding arbitration for bargaining, of course we are not subject to that, and I haven't had much experience with it. I am certainly aware that we would look carefully at selecting an arbitrator for other purposes if we felt that they were acting unfairly or were very strongly pro-government, and it would jeopardize the arbitrator's livelihood.

Mr Patten: The reason why it's difficult without the amendments before us is because we don't know. But it breeds suspicion. If the minister is correct in saying, "I will be true to this," then why not have the amendments, for gosh sakes? They could draft them within a day if they were really serious about it. But I suspect that's not the reason; it's because there will be other things in there that perhaps the minister didn't suggest, but by leaving it out she can always say, "I didn't say I wouldn't do it." There are always those kinds of things that can happen, but it does breed suspicion. I'm worried about the fact that specifically now it looks like it's going to be on the quality of the arbitrators and the impartiality, neutrality and independence of that, and yet, these are only some examples. There were three or four, one from Bill 26 and some others that will be added, that are certainly still, in my opinion, tilted towards helping the employers with tools to look at cutting costs.

Ms Duckworth-Pilkington: We still feel strongly that the current system has everything that's needed to deal with labour relations in the way of arbitration.

Mr Christopherson: I was going to refer to the chronology of things and I wanted to be accurate, so I was checking on when a particular vote took place.

Thank you very much. I think it's quite appropriate that CUPE would have the unique position of being possibly the last group on the face of the earth to have anything publicly in a formal way to say about Bill 136 before it becomes the law of the land. In that light, I want to again, because you started out with that too, talk about exactly what has happened here in the process, because again process has gotten lost, and immediately a lot of people's eyes start to glaze over. But it needs to be understood, because the process used here last week is what lit the fuse to the crisis that, quite frankly, this government caused.

Last Tuesday night second reading debate on Bill 136 had gone along and then we broke off from it for a while and the government was doing other business in the House. Last Tuesday night they tabled the time allocation motion and called it up for debate last Wednesday. This is the time allocation motion. I want to indicate as much for people who are watching as for you, and to put it on the record, to understand exactly what they did.

The government stood up on Wednesday and read a time allocation motion that said, "When Bill 136 is next called as a government order, the Speaker shall put every question necessary to dispose of the second reading stage of the bill without further debate or amendment, and at such time the bill shall be referred to the standing committee on resources development." That's us.

That vote took place at 6 o'clock, and that shut down any further debate on second reading of Bill 136. That's when the labour movement went, "My God, they're going to drive this thing through, and they're not going to offer us up any public hearings."

The same motion went on to say that this committee will meet on September 23, 24, 25 and 26. We didn't meet on the 23rd, actually. We did some administrative matters, or tried to. So we've only had three days. That goes on until 5 o'clock now, so we're down to the last 20 minutes of the public process, such as it is. It was during this time, of course, that everybody went wild out there. There had been no discussions at that stage leading to anything conclusive, and the government just said, "We're shutting it all down, and we're ramming it through." This is on the Wednesday. The next day they had the formal vote on second reading.

Then it goes on to say that all proposed amendments must be filed with the clerk by 10 am on September 29. Today is Friday at almost 5 pm. All the amendments have to be in by Monday at 10 am. The government says they're listening. They've got no cabinet meetings scheduled. How are they supposed to pass any amendments at the cabinet level if there is no meeting? So they've already decided. This is just a sham.

Then they go on to say, "The committee shall be authorized...for clause-by-clause" September 29 and 30. Two days. It's the amendments, of course, as you know, that contain the new Bill 136, based on her announcement, because after she riled up the whole province on Wednesday, she stood up Thursday and said, "I give."

Then it goes on to say that at 5 o'clock on the 30th -- this is when we're supposed to be doing the clause-by-clause, the real bill -- at 5 o'clock on Tuesday, "The Chair of the committee shall interrupt the proceedings and shall, without further debate or amendment, put every question necessary to dispose of all remaining sections of the bill and any amendments thereto." That means the government's new bill. That ends the process.

Then it goes on to say: "One sessional day shall be allotted to the third reading stage of the bill. At 5:45 pm or 9:15 pm...the Speaker shall interrupt the proceedings and shall put every question necessary to dispose of this stage of the bill without further debate or amendment." You're out, and we're out. That's what led to this. That's why everybody is so upset.

I want to ask you, as I've asked others, do you think a lot of this process that I've mentioned that got us into this crisis mode could have been avoided if, before June 3, when they tabled Bill 136, the government had reached out to CUPE and other unions and said, "We want to talk to you about this"? Could we have avoided all these unsettling actions we're seeing on everyone's part?

Ms Duckworth-Pilkington: Oh, for sure. I would hope we could have convinced them that they don't have a problem.

Mr Christopherson: Which you ultimately did.

Ms Duckworth-Pilkington: Yes.

Mr Christopherson: I'm just saying you could have done that ahead of time. Sorry, I didn't mean to interrupt you.

Ms Duckworth-Pilkington: I don't have more to say on that, really.

Mr Christopherson: I have one more question, then, and that is, given that the minister stood up and announced that she's gutting her own bill and that the amendments Monday really are the bill -- not this -- how important do you think it is, in terms of serving democracy and fairness, that you and others be given a fair opportunity to comment on that new bill rather than following through on this undemocratic ramming through that their time allocation motion provides?

Ms Duckworth-Pilkington: I think it's quite essential. I don't see why we need a time allocation motion. This is going to affect us for a long time. We're going to have to live with the results of it. If we can't get any further changes -- I mean, I have no idea what's coming down.


Mr Christopherson: Exactly.

Ms Duckworth-Pilkington: It could be something just as bad or just as unsettling for us, and we've got to live with this. We have got to go into a megacity, we have got to merge unions, we have got to merge work functions, and we don't need a poorly conceived labour relations bill when what we probably have now would work fine. We've got something that wasn't broken. We don't need to fix it in the first place. If we are fixing it, let's fix it properly.

Mr Christopherson: The irony is that they ultimately agreed with you. If they had just talked to you beforehand, we could have avoided all of this.

Mr Maves: I just want to clarify a couple of things. Time allocation motions were actually initiated by the NDP, and they've used them a heck of a lot more often than we have to date. So to say it's something that belongs to just us is totally unfair.

The other thing I'd like to point out that I've said several times is that on Thursday last week I tried to move a motion in subcommittee with the two members opposite so that we could start scheduling people a heck of a lot earlier, last week, for instance, for these hearings. They steadfastly refused to allow that to occur. That's one of the major reasons why you have late notice. Not only that, but they continued to filibuster Monday and Tuesday until 4:30, and that's when the clerks started to call people to make presentations. So to throw it on this side is totally unfair.

You've got something, again, in your presentation. You said that perhaps this is why AMO is not supportive of Bill 136. This is a myth that has been propagated quite often because of something they passed at their convention. I want to read from the Association of Municipalities of Ontario's letter dated September 4, 1997, to the Premier.

"Dear Premier:

"At our conference last week I, as president of the Association of Municipalities of Ontario...told you that we continued to support the principles espoused in Bill 136 but that we were of the opinion that more consultation was required. I was very pleased that you clearly understood our concerns, and that you gave me your personal commitment to more consultation on Bill 136. Yesterday we met with the Honourable Elizabeth Witmer, Minister of Labour, to reaffirm our support for the principles of Bill 136 and to indicate areas where we thought further discussions might be in order....

"We do, however, need the tools provided by this legislation to deal with the tremendous challenges we face in the coming year.

"We were pleased to have the opportunity to provide our reaction to the Ontario Federation of Labour's paper on an alternative to Bill 136. Briefly stated, while AMO does not agree with many of the statements made in the paper, it does believe there is some ground for compromise....

"In closing, I would like to extend my appreciation for your government's swift response to our request for consultation around Bill 136."

So, clearly, then, a lot of people are misstating AMO's position. They asked for the consultation.

Mr Christopherson: What was the vote?

Mr Maves: That's what the vote was about, and they've clearly said they support, as I said, the principles of Bill 136. They said they needed the tools provided in Bill 136. To say that they don't support the bill is really not fair, not accurate.

Ms Duckworth-Pilkington: Well, maybe they're supporting the bill as it has come through revised and changed. It sounds like a very tactful letter to me.

Mr Len Roach: I think the point is too that it's ammunition for AMO to take whatever whacks they want at CUPE members and other working people. So I'm sure that they, being on another side against us, would be quite willing to take the biggest bat they could get to offside the game. If you were to offer us the equally opposite offensive and strong position, we'd be fools if we declined it, but hopefully we'd be human enough to turn it down.

Mr Maves: You also say that the OLRB should take on the functions of a Labour Relations Transition Commission. As you know, that was one of the things the OFL asked for and received. You say that would be duplication and that that's the case and the OLRB is getting the control, the power of the LRTC.

Ms Duckworth-Pilkington: Confirmed.

Mr Maves: I want to ask you a question, though, if you don't mind. Sometimes we get making statements across the aisle. I know it's not always fair to presenters. You say, "The bill also changes the way decisions are made about whether workers will be represented by unions and which local union will represent them." We've said that's going to be put to a vote. If the bargaining agents can't all agree, we're saying that's going to be put to a vote. Is that all right? Is that acceptable?

Ms Duckworth-Pilkington: I have been referring to the bill as I understand it to be written, and I would like to reinforce what I see as any positive steps on your part.

Mr Maves: The thresholds have been removed, and if all the bargaining agents agree, then the units they agree to stand, the agents they agree to stand; if not, they have a vote. Do you support that concept, is all I'm asking, of voting for your bargaining unit?

Ms Duckworth-Pilkington: You're going to have to run that one by me again.

Mr Maves: It's just the concept that everyone who will be in the bargaining unit gets to vote for the bargaining agent. You don't have a problem with that, I would assume.

Mr Christopherson: Be careful.

Mr Maves: There's nothing to be careful about. It's that straightforward.

Ms Duckworth-Pilkington: I have some problems with the Labour Relations Board as it stands now. Are you finished?

Mr Maves: The last thing I just want to mention is that you do say in the second-last paragraph, "Labour's record is good; so is that of the municipal politicians and administrators." To that I would say that this bill never did purport to deem outcomes, for instance, like the social contract did. This bill allowed for, and encouraged in several places, collective bargaining. If municipal politicians and labour don't need to go to the OLRB, which was the LRTC, or the Dispute Resolution Commission or arbitration, wonderful. If you can collectively bargain everything, that is completely not only allowed for but encouraged by this bill. It was still that way even after the changes.

Ms Duckworth-Pilkington: Despite the fact it did give the employer one really super advantage if they couldn't work things out.

The Chair: Mr Gilchrist, there's time for about a minute and a half's worth of questioning.

Mr Gilchrist: Very briefly, then --

Mr Rob Rolfe: Could I just, on this last point from Mr Maves --

Mr Gilchrist: Well, could I just pose mine, because we only have a minute and a half, and the Chair is scrupulous about her timing. As we listened to the presidents of your unions, we really did want to get something out of these hearings. But the final point I'd like to get out of you, because it really is somewhat of a serious contradiction, is that we've had an opportunity to sit down. Forget about whether they took the invitations in July. Better late than never, all the stakeholders, employers and unions, sat down with the minister and the staff, and they came to us with a basket of concerns. In particular, there were five major ones. I'm sure these were the things that were articulated when many of the locals took their strike votes that are now outstanding. We listened, and I'm sure they were quite surprised, given the mythology out there, but the fact of the matter is, we said yes to all five.

Now put yourself in our shoes. If someone, as you do when you bargain for your own contracts, sits down and says, "Here are my concerns, employer," and the employer says yes to that, is it then fair to come back and say, "Well, I wasn't serious about that; here's my new basket of goods"?

There may still be a B list. But when you've gone on record, as Sid Ryan did on CFRB radio on August 18, and laid out -- and he used the word "guarantee" -- labour peace, how should we be reacting now if, having listened to the concerns, having met with them, having said yes and having promised to change the bill -- and I absolutely assure you the amendments will be consistent with the minister's promise. What would you do in our shoes in terms of how we should proceed from here? Would it not be fair for us to say we've listened? Any time there's bargaining, nobody gets 100%, but the bill at least as it stands right now does reflect those concerns that Mr Ryan and others brought to us and that we have taken out.

Ms Duckworth-Pilkington: I would like you to continue to withdraw the whole bill, but otherwise, get the amendments out there and give people time to look at them.

Mr Gilchrist: If they're consistent with the minister, then that will assure you that she was serious about her promises?

Ms Duckworth-Pilkington: When you see something in writing, you certainly feel more assured.

Mr Gilchrist: I'd like to trust Sid Ryan, and I would hope that he was serious when he used the word "guarantee." So I respect the fact that you'll wait to see that, but I hope you'd agree with me that when people make a commitment like that, they should honour it at the end of the day.

Ms Duckworth-Pilkington: I certainly agree that they ought to, yes.

Mr Gilchrist: Thank you again for your presentation.

The Chair: With that, we'll call an adjournment to today's hearings. We'll reconvene on Monday at 3:30. Thank you, everyone.

The committee adjourned at 1649.