Assemblée législative de l'Ontario

LABOUR RELATIONS AND EMPLOYMENT STATUTE LAW AMENDMENT ACT, 1992 / LOI DE 1992 MODIFIANT DES LOIS EN CE QUI A TRAIT AUX RELATIONS DE TRAVAIL ET À L'EMPLOI

CONTENTS

Monday 5 October 1992

Labour Relations and Employment Statute Law Amendment Act, 1992, Bill 40

STANDING COMMITTEE ON RESOURCES DEVELOPMENT

*Chair / Président: Kormos, Peter (Welland-Thorold ND)

*Vice-Chair / Vice-Président: Huget, Bob (Sarnia ND)

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

Dadamo, George (Windsor-Sandwich ND)

Jordan, Leo (Lanark-Renfrew PC)

Klopp, Paul (Huron ND)

*McGuinty, Dalton (Ottawa South/-Sud L)

*Murdock, Sharon (Sudbury ND)

*Offer, Steven (Mississauga North/-Nord L)

*Turnbull, David (York Mills PC)

Waters, Daniel (Muskoka-Georgian Bay/Muskoka-Baie-Georgianne ND)

*Wood, Len (Cochrane North/-Nord ND)

Substitutions / Membres remplaçants:

*Hayes, Pat (Essex-Kent ND) for Mr Klopp

*Hope, Randy R. (Chatham-Kent ND) for Mr Dadamo

*Ward, Brad (Brantford ND) for Mr Waters

*Witmer, Elizabeth (Waterloo North/-Nord PC) for Mr Jordan

*In attendance / présents

Also taking part / Autres participants et participantes:

Dean, Tony, administrator, office of collective bargaining information, Ministry of Labour

Kovacs, Jerry, legal counsel, Ministry of Labour

Clerk pro tem / Greffier par intérim: Decker, Todd

Staff / Personnel:

Anderson, Anne, research officer, Legislative Research Service

Spakowski, Mark, legislative counsel

The committee met at 1538 in committee room 1.

LABOUR RELATIONS AND EMPLOYMENT STATUTE LAW AMENDMENT ACT, 1992 / LOI DE 1992 MODIFIANT DES LOIS EN CE QUI A TRAIT AUX RELATIONS DE TRAVAIL ET À L'EMPLOI

Consideration of Bill 40, An Act to amend certain Acts concerning Collective Bargaining and Employment / Loi modifiant certaines lois en ce qui a trait à la négociation collective et à l'emploi.

The Chair (Mr Peter Kormos): Go ahead, Ms Witmer.

Mrs Elizabeth Witmer (Waterloo North): I'd like to speak, at this time, to section 5 of the bill, the replacement government motion that has been proposed. I'd just like to preface my comments by indicating that section 5 would, for the first time, enshrine an extensive, new and very untested purpose clause within the legislation itself. This is going to mean that all other aspects of the legislation will be affected by this purpose clause.

I'm concerned because I believe this purpose clause destroys the delicate balance in the legislation. It's the purpose clause that's going to influence the Ontario Labour Relations Board to favour the interests of unions when it considers issues arising from negotiations or attempts to organize, because that is the intent of the purpose clause.

In the past we had a preamble, but we did not have a purpose clause such as the one that's being proposed here; in fact we didn't have any purpose clause. However, this amendment is going to effectively repeal the preamble and add this new, untested and very extensive purpose clause.

In the past, the preamble was always referred to for guidance by the Ontario Labour Relations Board, and its impact was tempered by its position. It expressed intent, but it was never treated as part of the law. However, by now including this purpose clause in the body of the legislation, that certainly does change all of that, and this purpose clause becomes a very substantive part of the legislation, which is subject to the Ontario Labour Relations Board and perhaps to judicial interpretation as well. We believe this does represent an unwarranted infringement on the collective bargaining process.

I'd just like to talk about the purpose clause a little bit, and share with the government the fact that although this purpose clause does have some precedent in Ontario, there are actually very few recent provincial statutes which do contain a purpose section. Where you do have a purpose section, the purpose, unlike the purpose clause in Bill 40, is expressed in very general terms.

For example, the Pay Equity Act states in the purpose clause, "The purpose of this act is to redress systemic gender discrimination in compensation for work performed by employees in female job classes." Another example of a purpose clause is found in the Environmental Protection Act, which shares the same general approach to articulating the statutory rationale. It says, "The purpose of this act is to provide for the protection and conservation of the natural environment."

These two examples of purpose clauses I have just shared with you stand in stark contrast to the purpose clause in Bill 40, because the purpose provisions of both the Pay Equity Act and the Environmental Protection Act do not add to or supplement the remainder of the statute. One needs to consult the substantive provisions to determine how the "systemic discrimination" in the purpose clause of the Pay Equity Act is to be eliminated, and the environment protected in the Environmental Protection Act. So there is a real distinction.

There's another distinction as well. The Pay Equity Act and the Environmental Protection Act have contained general purpose provisions from the date of their enactment. However, we are dealing here with the Labour Relations Act. It's a very mature statute. Its provisions, over the years that it's been enforced, have been the subject of considerable interpretation. Unlike the other two examples, there is here in this case a tremendous potential for disruption in attaching new purposes to a statute with a history in developed jurisprudence.

The purpose clause does create a number of very specific problems. It has the potential to disturb the existing collective bargaining law, because this purpose clause is really an invitation to the OLRB to revisit its established jurisprudence. This approach to reform could be very disruptive and it could be unpredictable. If the government really has identified serious problems emerging from the board case law, for example with respect to the duty to bargain in good faith, the Legislature should be remedying this problem, not the purpose clause. Inviting a review of the known rules and standards without any specific focus is going to have a very unsettling impact on industrial relations. Neither of the labour market parties is going to be in a very secure position if this law is uncertain.

This is going to change the Ontario Labour Relations Board from being a neutral and impartial referee to becoming an advocate for labour. No longer will the board only interpret a single set of evenhanded rules ensuring that the process of certification and collective bargaining are administered fairly. The board really is now going to become the proactive arm of government, and in some ways it does and will have a relationship to Bill 80. It's going to go beyond the process into the content and the substance of both the certification and the bargaining, as I've just alluded to, and it's going to further the interests of organized labour.

I'm very concerned that if Bill 40's intent is to ensure harmony and cooperation in the workplace, this purpose clause really doesn't do anything to encourage that harmony and that cooperation in the workplace.

In paragraph 1 of section 5 of the bill, we see that the bill is identified as being there to protect the rights of employees to choose, join and be represented by a trade union of their choice and to participate in its lawful activities. My question is, what about the rights, the choice, of those employees who do not want to join a union? Who or what body is going to protect those individuals?

The Chair: Do you want Ms Murdock to respond now or at the end of your comments?

Mrs Witmer: At the end of my comments.

Why is there no equal protection for all employees to freedom of choice, freedom of protection? Furthermore, given the likely role of the purpose clause in influencing the jurisdiction of the OLRB, we believe this is going to lead the board to find in favour of unions whenever the balance in a case is close. We believe this is improper and it must be changed.

The OLRB should remain an impartial arbitrator of the interests of employees, employers and unions alike, and the impartial arbitrator is extremely important, just as it was formerly neutral and an impartial referee. It cannot be perceived to favour one group over any other groups. That's the change, unfortunately, that has occurred. This is where the balance, unfortunately, has shifted. That's why I'm so concerned that we're not going to see the cooperation and the harmony that I know we're all looking for.

If we take a look at paragraph 1 of section 5 where it talks about the purposes of the act, "To ensure that workers can freely exercise the right to organize...," the government has changed the word "facilitate" to the word "protect." I believe that word should be replaced with a word such as "recognize" or "allow" because that would still be consistent with providing every person the freedom to join a trade union of his or her choice and to participate in its lawful activity.

I'm not sure that we should go as far as suggesting that the purpose of this act should encourage, support or help in the process of unionization, because if we do that, we are not giving equal protection to those individuals who do not choose to join a union, and somehow it gives the impression that if this is the purpose of the act, to at first facilitate and now protect the right of employees to choose, join and be represented, the government is solely interested in the rights of those employees wanting to join a union; in other words, the rights of unions rather than the rights of all employees.

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Again, I believe the board is intended to be a neutral third party and should not become involved in the process of protecting the rights of employees to choose and join a trade union. It now appears the board's going to be forced by the purpose clause to take a much more active role.

If that's the case, it should be in recognizing or allowing rather than protecting organization. Let's face it, sufficient facilitation towards unionization is going to be done by the Legislature once we approve the other changes within this bill. We're still going to see that happening afterwards anyway.

If we take a look at paragraph 2, which says, "To encourage the process of collective bargaining so as to enhance, (i) the ability of employees to negotiate with their employer...terms and conditions of employment," the question I have is, what does "enhance" mean? Even though the government has removed from this section "the ability of employees to negotiate" and it's removed "with their employer for the purpose of improving," the word "enhance" still suggests to me that the same purpose could be included within this provision, and I'd certainly be interested in knowing what the definition or the intent of the word "enhance" is here. It could still suggest that this could affect the outcome of the negotiations in some direct way. I'm not convinced. It could have that intent and I'm concerned about that.

If we take a look at the next part, phrases such as "adapting to changes in the economy, developing work force skills" or "increased employee participation" could certainly take on a variety of meanings. For example, could "increased employee participation" be read to decrease the ability of a union to speak on behalf of persons within the bargaining unit? Many terms within this section are very ambiguous and they're not fully defined. Unfortunately it's going to be left to lawyers, to judges, to board members and to arbitrators to give this section and other sections meaning.

Again I ask, what is meant in the next section when we say we're going to increase "employee participation in the workplace"? What does that mean? There is no substantive provision in the act that deals with employee participation. The board may employ this language to create a new obligation to disclose information during bargaining on the basis that the employees cannot participate without that complete information. If that is to happen, then the board would be restoring the disclosure obligation which was originally proposed in the cabinet submission but was dropped from Bill 40.

What is happening here is that we have something in the purpose clause which goes far beyond the promotion of harmonious labour relations. There seems to be some intent of determining results, of deciding what is going to be included in the collective agreement. You could almost interpret this as being a bit of a shortcut or an alternative to collective bargaining.

We recognize that the government certainly does have the authority to introduce legislation to benefit special-interest groups, but we are concerned that this purpose clause is not reflective of the best interests of all people in Ontario and does indicate favouritism towards the unions as opposed to also creating the same protection for the employers and the individual employees. We're very concerned about that.

If we're going to have this purpose clause in Bill 40, as the government is indicating will be here and, unfortunately, we know that it probably will be at the end of the day, there's another concern I have. Because of the expanded role and power of the Ontario Labour Relations Board and the fact that it's going to play a much more active role in future labour relations and collective bargaining, the composition of that board is now going to become very important. If it's going to be promoting the interests of unions in advance of those of individuals and employees, we certainly have to ensure that the composition is as neutral and balanced as possible.

In conclusion, I would just indicate that I believe that all references to improving productivity, as are suggested here, workplace training, are management issues. I really strongly believe that they should not be the mandate of the Ontario Labour Relations Board, which is a third party which is or should be totally uninvolved in management issues or workplace issues. I'm certainly concerned that that's included in this act.

If we are fortunate to defeat this section, we have some alternatives which we feel would be more responsive to the views of all Ontarians in this province, and I hope that I will have an opportunity to speak to that.

Mr Steven Offer (Mississauga North): I was listening closely to the points made by Ms Witmer in this matter. It was, I think, last Thursday when I spoke on and against this particular aspect of the amendment by the government. I hope the members of the government side were listening to the concerns brought forward on this amendment, because if they were listening to this, then I'm hopeful that they too will defeat this section. Shortly we'll find out.

I think there were four points which I jotted down as Ms Witmer was speaking.

She spoke about the purpose clause and the example of other purpose clauses in other pieces of legislation. I think there's an important point that has been brought forward, and that is that where a purpose clause does exist in other forms of legislation, the wording of the purpose clause is much like the preamble in this bill. It is not specific. It is used as a matter of setting out some general principles, some guiding directions, but does not carry with it the particularity as exists in the purpose as suggested by the government in Bill 40. I cannot but be extremely worried that this is going to cause major difficulties in the future. I cannot speak with certainty or definitiveness as to where and when, but I believe that when you put something like a purpose clause in a piece of legislation and attach to the purpose clause something more than general principles, general directions, you may unwittingly be hurting the groups, associations, individuals that you are hoping to protect. I think there is ample example of that taking place.

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It is clear that the purpose clause does shift the balance in the board. It is clear that the strength of our labour relations and the strength of the message that has gone forth in our labour relations in this province is that the board is an impartial adjudicator; that when there are matters which come before the board under the legislation, the board is there to listen, to weigh the arguments, to deal with the sections under the act which it is charged with and to decide. I believe there is a certain confidence that the board will do that, has done that and that the act and the preamble have allowed the board to act impartially.

But now we are imposing--and this is nothing less than an imposition on the Ontario Labour Relations Board--that in any matter that comes before it, it must be not guided but dictated to to make certain that certain areas are taken. The concern is that there's now a shift in the board from one that was an impartial adjudicator to one which must favour organized labour.

The question is: Should the adjudicator, should the referee operating under the legislation, favour one side or the other on any matter that comes before it or should it listen to the arguments, weigh the arguments, look at the section under which the action is taken and act accordingly? I believe that there are many people who hope that's the way the board operates. I believe that this purpose clause now takes away from that operation.

The next two points that I want to make--and I must say on record it was prompted by the comments by Ms Witmer. We speak to the purposes of the act, and it says, "To encourage the process of collective bargaining so as to enhance the ability of employees to negotiate" terms and conditions of employment with their employer.

We have to look very carefully at this. What does it mean, "to enhance the ability of employees to negotiate 'terms and conditions of employment'" with their employer? I can see the argument made, but is it now possible that the enhancement of an employee's ability to negotiate terms and conditions of employment with his employer would allow the board to order, on argument, that financial statements or other matters within the privilege and confidence of the employer must now be made public because it is only those documents, financial statements or other, that can give meaning to enhancing the ability of employees to negotiate terms and conditions of employment with their employer.

I am going to be and am asking a question of the parliamentary assistant and ministry officials. I believe it is absolutely essential that the public record indicate the response to that question. I am not limiting it to financial statements; I am indicating not just financial statements. I note that during the public hearing process, many times we were focused in on the purpose clause and could that be used as an argument for providing financial statements, but I am also aware that there are a variety of other documents that an employer might have that could be important and useful in negotiating terms and conditions of employment.

I'll give you an example. An employer entering into a contract with another firm for the provision of supplies, and in return, dollars: That may be a confidential record; the terms and conditions of that contract may be confidential. It could be argued, I believe, under this purpose clause when the employees of that same company say, "Listen, our terms and conditions should be improved and the only way we can prove that is for the employer to provide information on all contracts the employer has entered into with others," and only by knowing that, in terms of the purpose clause, will that enhance the ability of employees to negotiate terms and conditions of employment with their employer.

So I do not limit this just to financial statements. I believe it must and might very well be expanded. You don't need just to look at the financial statements; you can look at the whole structure of companies and company contracts during the year and in the previous year. We need a definitive statement by the ministry that this cannot under any circumstances, as far as the board is concerned, be allowed nor will it be allowed. If there is anything less than a categorical statement, then I fear the ramifications. I'm sure that you've made note of that.

The second point, while we're on it, is in the first purpose, "To ensure that workers can freely exercise the right to organize by protecting"--I believe that is what the government has indicated--"the right of employees to choose, join and be represented by a trade union of their choice."

I want to hear again from the ministry officials that not only that purpose but indeed anything within that purpose clause would preclude the board from ordering that membership lists be provided. I know that's another area we dealt with during the hearings and the problem we have now is that the government seeks to change an aspect of the purpose clause and we are left without being able to look at the impact those changes will have.

I believe, just so I can put my own opinion on the table, that the purpose clause and the wording of the purpose clause and the fact that it is much more than general principles will now permit, on application, a labour relations board to order the provision of employees lists. I believe what we need is a categorical statement that this cannot and will not be permitted. We have heard arguments on employees lists throughout our hearings. I keep on referring to membership lists, but I think everyone understands I am talking about lists of employees in an establishment. In fairness, we heard those in favour, that lists should be provided, and those opposed, that they should not be, and the reasons are, for one, that it would facilitate organization, and on the other side, that it is a problem with confidentiality.

Notwithstanding that, we have to make certain that there cannot be an argument posed by an individual or group or association to the Ontario Labour Relations Board which, using the purpose clause, might order the provision of employees lists. It is something I and my colleagues have brought forward time and again. I have said over and over again that I am concerned about the provision of employees lists.

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Ms Sharon Murdock (Sudbury): At what point in the organizing process are you asking that? When would that occur? At what point in the organizing process?

Mr Offer: The parliamentary assistant asked at what point. It would seem to me that there isn't necessarily a specific point in time. I am concerned that any organizing group could say: "We want employees lists. We have commenced an organizing drive. It is too difficult. We cannot ascertain who the employees of the association or company are and we now have"--to the members of the board--"a purpose clause which says that `workers can freely exercise the right to organize by protecting the right of employees to choose, join and be represented by a trade union.'"

The argument would then proceed: "Workers cannot be given that assurance in the purpose clause when we as the organizers cannot approach them, and we cannot approach them because we do not know who they are and the only way we can know who they are is if the company provides an employees list."

I believe that argument can and will be made. In the past, arguments such as that have been made. What has been the difference? The difference has been that there has not been a purpose clause in existence. There have not been these words that appear on this piece of paper, that the particularity is much more than broad principles.

What do we say when that happens? What is the impact of that? What rights, protections and indeed freedoms do the employees of this province have if we cannot today categorically indicate from the Ministry of Labour of this province that this cannot and will never take place?

Of course, if the government wished to allow for the provision of employees lists, it could do that by way of amendment, but we cannot as legislators allow such an important issue to be decided outside the Legislature where the rights of individuals are at stake. We have an obligation to categorically ascertain from the Ministry of Labour that this can never happen and will never happen.

We know that public records, as this Hansard will be, may be used. Actually, I'm not absolutely certain that it can be used, except in constitutional cases. I wouldn't mind actually getting a clarification on that, because it would heighten--

The Vice-Chair (Mr Bob Huget): Your first thought might have been close to correct, do you think?

Mr Offer: I'm worried. I'm now doubly worried, because I don't know if even what we say here today could be used as showing intent on the part of the Legislature. I just bring it forward. I think there is some sort of a bar to using these types of Hansard notes in any definitive way, unless it is a matter of constitutional validity. I might want to hear from the ministry officials if that is the case.

To summarize my question on financial statements, but not just limited to financial statements, secondly, the provision of employee lists, hopefully, as Ms Witmer has indicated, the government members may very well see the light--

Mr Randy R. Hope (Chatham-Kent): We saw it a long time ago; that's why we made the changes.

Mr Offer: --and recognize that a purpose clause with the particularity of this is a threat to those who fall within the act. I know that Ms Witmer had also asked some questions which I too am looking forward to a response to.

Ms Murdock: It was the same question, I believe, that you asked, only much shorter.

I'm going to have Tony Dean answer the question on financial statements, but in terms of the employee lists provision, I think it's pretty clear, from the discussion paper to the amendments, that we certainly have thrown that out because it was definitely in the discussion paper as a possibility. It's evident that it is not in the amendments and therefore our intent was not to include it, and I think we made that fairly clear.

In terms of interpreting by the board, that is for it to do; it is not for us to do. I, personally, looking at that, know that obviously, Mr Offer, you have interpreted as a possibility that the board could be asked by a union to provide employee lists now, and you mentioned also that it has already occurred under the existing act. That is true, but it has always been post-application, it is my understanding. As it stands right now, on post-application by a union for certification, the employee lists, once provided by the employer, can be provided by the board right now under the existing legislation. These amendments aren't going to change that on post-applications.

I think your concern, at least from my understanding of what you said, is prior to an application, and as categorically as I can, I would not read that into paragraph 1 of section 2.1. In terms of the financial statements, I'll defer to Tony.

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Mr Offer: Before the financial statements, may I just ask a question to follow that? I am sure that this issue has long been debated within the walls of the Ministry of Labour. It's part of your consultation paper, the employee list. I would find it surprising that as these discussions and deliberations took place, probably along some long table with not many people around, that the issue of employee lists, past arguments made to the board, and folding in the new purpose clause have not been discussed. I don't know, but I find it surprising that this issue would not have been fully canvassed with a view to determining whether, first, the argument can be made. I think the parliamentary assistant is absolutely correct when she indicates that anybody can make any argument about anything and there's nothing that you can say about that; I think that's absolutely right. But there is something else which hasn't been addressed in your response, and that is, what is the potential for that argument to be made? And second, if that argument is made with this purpose clause in effect, what is the likelihood that lists will be so ordered?

I would think that for ministry officials to embark on that type of discussion is totally responsible. I'm not opposed to that; I think it's totally responsible for them to take a look at what might happen. The question is, as you must have done that, what has been--if you can share with us--the final deliberations in terms of these potential applications with this purpose clause and the likelihood that the board will in fact order lists to be provided? You're not telling me you haven't discussed this.

Ms Murdock: That's why I asked you the question, at what stage of the organizing? Obviously, once a union has applied for certification, at that point the employer usually provides employee lists to the board. Prior to that, the board would not have any employee lists, obviously, because it doesn't even know a union is trying to organize until it's notified of the organizing. The board would not know that until the union had applied to certify, so I truthfully don't see what your concern is, but maybe Jerry Kovacs can add something to it.

Mr Jerry Kovacs: Mr Offer, there isn't any way the ministry is able to predict how the labour board might interpret any of the provisions. It was the ministry's job and the ministry's attempt to provide wording which accurately represented the intent of the government in restating the objects of the act more clearly than they were already stated in the preamble. It remains not in the hands or in the capabilities of the ministry to predict how the labour board will interpret this.

It is because the government would prefer that the labour board have some further statement of the government's intent that the purpose clause is as extensive as it is. It's probably already more extensive than other purpose clauses you have proposed in your alternative motions. For it to be any more responsive to your particular question would mean that it would probably have to be a much lengthier purpose clause than is workable within a statute. It's a very particular question. It was a very particular issue raised in the discussion paper and it was a very particular item that was dropped from the matters contained in the bill that is before the committee now.

Mr Offer: But surely the government is expecting that argument to be made based on this purpose clause. I can't imagine that the government is not expecting the argument to be made on the basis of the new purpose clause. I understand all you have said, but surely we are anticipating applications for lists to come forward, because now they have these words, extensive as you've indicated, dealing with the purposes of the act, which do not exist now; we now have principles. The government has deleted, repealed, the preamble to the act, has repealed the guiding principles of the act and replaced them with this mechanical aberration, the ramifications of which are totally unanticipated.

Mr Hope: Where are the words you're saying that interpret--

Mr Offer: Pardon me?

Mr Hope: You're making innuendoes. What wording exactly specifies that which you're making allegations about?

Mr Offer: Mr Hope has asked, where is the wording? As I indicated, I have maintained that where it says, "The following are the purposes of this act: 1. To ensure that workers can freely exercise the right to organize by"--and the government has taken out the word "facilitating" and inserted the word "protecting"--"protecting the right of employees to choose," the argument can be made to the board that to give real substance to that purpose can only take place if the organizers know who those employees are. Mr Hope shakes his head, but the fact of the matter is, there it is.

The Vice-Chair: Mr Offer, do you have a further question? Mr Dean is ready to respond to your previous question.

Mr Tony Dean: I'll start by stating again that within the policy process, in terms of considering Bill 40, very careful attention was given to the issues of lists and the provision of financial and other sorts of information. The ministry consulted heavily on both those issues. A number of representations were made, concerns were raised and both were explicitly dropped.

The business community then shifted its attention to the purpose clause. The same concerns were raised but this time in the context of the purpose clause, and in particular two phrases were referred to. With respect to your concern, Mr Offer, reference to "facilitating" that right was, as I think a business spokesperson referred to it several days ago, one of the lightning rods. The concern was raised that reference to facilitating that right "to choose, join and be represented" and improving "terms and conditions of employment" could still lead conceivably to some of those results, the provision of lists.

So in a further attempt to address that concern, the reference to "facilitating" was replaced with the reference to "protecting," because it was considered to be less active, less encouraging. To the extent that those amendments or changes were made, I think it's certainly our feeling that the predominant concerns raised by employers were addressed.

As to whether the argument conceivably might still be made under the purpose clause or any other provision of the act that access to lists should be made available or that certain kinds of information should be available, yes, it is conceivable, but it's considerably less likely that those arguments will be successful based on the amended language and the amendments to Bill 40.

Mrs Witmer: I had a question. I certainly share the additional concerns Mr Offer has raised. I think by introducing the changes in the purpose clause and new concepts, it becomes very obvious that there's a real uncertain environment that's being created. Obviously, it's going to be left up to the labour relations board to interpret some of the new changes within the purpose clause. I'd like to know, however, what does the word "protecting" mean that is different from "facilitating"? Why would you not use words like "allowing" or "recognizing"? We are basically talking about the right of an individual to join a union. Why would we be protecting the individual who wants to join a union and not offering equal protection to the individual who wishes to remain non-unionized? What does "protecting" mean that's different from "facilitating" and is different from "allowing" or "recognizing"?

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Ms Murdock: Obviously, we initially liked the word "facilitating"--that's why we used it--but in the hearings I think it became fairly clear, particularly from the business groups, that the word "facilitating" was quite fearful for them in that it meant making it easier to unionize, that that's facilitating. So we removed it and used the word "protect."

There was a lot of discussion on which word to use, but given that the Ontario Labour Relations Act represents workers who are unionized or who have a collective agreement or are in the process of trying to get one, you are maintaining or protecting whatever it is they have within their collective agreement or within that bargaining process, so that's "protect." It doesn't increase, which was the fear of business, what was already in that agreement.

Mrs Witmer: Personally, I don't think there's much difference between the words "facilitate" and "protect." I still think this purpose clause favours unions as opposed to individual employees and employers.

Mr Len Wood (Cochrane North): Working men and women.

Mrs Witmer: Regardless, I believe very strongly that this document, Bill 40, is not responsive to the needs of individuals. I think it infringes on individual rights and freedoms. I think it is in response to the demands of the union leaders, just like Bill 80. I've become aware of some of the political background to that particular bill as well, which is really quite interesting. We now have another group of individuals who don't feel that the consultation program has taken place.

Mr Bob Huget (Sarnia): May we return to discussing Bill 40, section 5? Bill 80 is another piece of legislation.

The Chair: Is that what you were discussing, Ms Witmer? Thank you, go ahead.

Mrs Witmer: I'm discussing Bill 40 and simply giving another example of a bill where consultation did not take place with all workers and members of unions. Maybe it did with the union leadership, but I want to express my same concern around Bill 40. I'm concerned about the word "protecting." Unions are protected, but I don't think the worker who doesn't want to become unionized is.

So I don't see any substantive difference between "facilitating" and "protecting." I think this entire purpose clause creates an uneasy environment in the workplace and certainly is not going to achieve the harmony and the cooperation we're looking for. I don't see much of an improvement. I think the government is well aware of the implications of what can happen using the word "protecting." I think all the things Mr Offer has expressed some fear that can happen will indeed happen.

Mr Hope: We didn't want to get too much into comment on that, but when we talk about "protection" in the purpose clause, one of the things that has to be understood is that you're talking about a group of individuals who wish to associate with an organization that will represent their interests. What you have to do is focus the intention of protecting those individuals, the current status in their workplaces, and providing that.

The allegation is that it's protecting the union. Well, the trade union that will be formed eventually will be those workers who are looking for an association. It's not a big union name coming in; it's workers who work in that workplace. Some of us would like to see it strengthened more to put those protections in place for those workers who want to make the choice of a collective right that has never been pursued in a workplace before.

With the allegations of pro-union, that is the mentality and the mindset of individuals who wish to attack the legislation. One of the emphases has to be that you're talking about a group of workers or a worker who wishes to pursue a right to a collective organization that will represent their or his best interests. I think the purpose in the legislation has to be to protect the current existence of that employee in that workplace. I believe this purpose clause is one part of the legislation that allows it.

As to the seniority list, I know everybody would like to have those things, but unfortunately half the time they're not even prepared appropriately.

Mr Offer: There are two areas I want to bring forward. The first would be by question to the parliamentary assistant. You've heard my concerns about how the purpose clause may be used to result in the provision of employee lists, and you've also heard my concerns that the purpose clause may be used to facilitate the provision of confidential documents of an employer.

My question to you is, in order to lessen my concern, is the government prepared to introduce an amendment to this bill which would categorically indicate that membership lists, notwithstanding any of the wording of the legislation, cannot be provided? Would they be prepared to bring forward and support an amendment which would give some lessening of my concern in the area of confidential documentation and financial statements? If you're able to do that, then I must say my concerns are lessened. If you're not, my concerns are far from it; they're heightened.

The Chair: Mr Hope, did you have anything more to add to that?

Ms Murdock: No, his was a question, Mr Chair.

The Chair: I understood that, and I was inquiring whether Mr Hope, having spoken to this, wants to supplement the question Mr Offer asked. If he doesn't, go ahead.

Mr Hope: I just thought the concerns weren't as good as mine, that's all.

Ms Murdock: The short answer to that is no, but the act is silent and it is left to the board to make any of its decisions as it is presently. So I do not share your concerns about the interpretations of any of the subsections you have mentioned. I believe that the board, in the past, in its experience and precedents and so on, has not shown itself to be capricious in making decisions as to what it's going to provide to either party. I don't imagine they're going to change that significantly in terms of how they, as human beings and thinkers, operate within the labour relations process. So the answer is no.

Mr Offer: My problem with your response, of course, apart from the obvious, that my concerns are heightened, is that when one looks at the decisions of the board, one assumes that the rules under which they are governed have not changed. Unfortunately, that is just not correct. The rules and principles under which the board has been governed in the past have been dramatically altered, and they have been so by way of the purpose clause. So I have that concern.

The next point I want to make is in response to the point brought forward by Mr Hope. I think it's a very important point. I don't want to be in any way misinterpreted. I think what Mr Hope has said in dealing with the rights of workers to choose to be represented by a union is something which we can all support. We have said this over and over again. The difficulty I have is that when I am talking and thinking of the rights of workers to choose and the freedom to exercise that choice, it may also entail not only the joining of a union and the participation in the lawful activities of the union, but also not joining a union.

My concern has always been that the worker be given the full range of freedom and the full range of choice. In this purpose clause it doesn't do that, and it is one which I believe will come back to haunt. We want the workers of this province to freely choose to be or not to be part of a union, but they have to have that freedom, and this legislation--even the points brought forward by Mr Hope make the case. We certainly don't want to be misinterpreted as indicating that workers should not have that choice. Of course we want them to have that choice. We've said that from day one. But that also includes and must include the right of a worker to freely say no, and this purpose clause does not allow that for the workers.

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The Chair: Ms Witmer, then Mr Hope.

Mrs Witmer: I'd just like to respond to the point that was made by Mr Hope. I think we have to be abundantly clear what it is we're talking about.

I'm concerned that the purpose clause, as written in Bill 40, is not going to contribute to stable and productive collective bargaining. I think it's going to create confusion and some very unexpected consequences, consequences that both Mr Offer and I have alluded to today.

Now, if the government chooses to have a purpose clause, as they've indicated they're going to have, then I believe we need to be confining ourselves to the essentials of a labour relations statute. We need to give employees the freedom to join trade unions. In other words, we recognize the right of employees to join a trade union and to participate in its lawful activities without any improper interference. That right should be given to all employees, wherever they are. Why can that not be in the purpose clause? Why can it not be a simple statement saying exactly that: "To recognize the right of employees to join a trade union and to participate in its lawful activities without any improper interference"? Why do we have "To ensure that workers can freely exercise the right to organize by protecting the right of employees to choose, join and be represented by a trade union of their choice and to participate in the lawful activities of the trade union"? Why not short, sweet and simple, something that's not going to create confusion and any unexpected consequences?

I'm concerned that the present purpose clause then goes on to dictate some results, some expectations. Also, it's asking the board to experiment with some new concepts and to make some interpretations. I'm very concerned about that. But nowhere have I ever suggested that workers should not have the right to join the trade union of their choice and to participate in its lawful activities without any improper interference.

Mr Hope: I'm getting very confused here, because we're talking about the rights of individuals to freely choose whether to join a trade union or not to join a trade union. It's very hard for me to understand where a worker who does not choose to associate himself with a union is going to lose his job, whereas a worker who decides to form an association is now always faced with that decision that an employer always puts on them.

When I hear about the protection of individuals, the freedom and rights that they must have, I really have to question the knowledge of ever being involved in an organizing drive to understand where a worker who would like to associate himself with a trade union--or a plant association in itself; not necessarily a trade union but a plant association--is victimized by the job being held over his head, but the person who doesn't choose to belong to or associate with an association never is victimized with them saying, "Well, would you like to have your paycheque next week?"

So what we have to do is focus on who the victims are. The victims are those who wish to organize. That's why you need to protect the rights of those individuals. I think the focus of the purpose clause has to be where it is and where the victims lie in the circumstances. But it's very difficult for me to understand when we're trying to put--and you can get all types of interpretations. I can see where Mr Offer's comes, because I heard during the avenues of this that it was his legal profession, but when you're looking at an individual who looks at this and says, "My rights of protection"--never mind interpretation; everybody can interpret whatever they read. But I think the intent is to make sure that people who are changing the work structure in a workplace--which the employer does not want, because if the employer wanted a trade union, the trade union would be there by automatic certification.

When workers are making changes in their workplace that are not pleasing to the employer, those workers who are making that change now become the ones who need protection. The first person who wishes not to associate is never threatened by the aspect of losing a job. I think that has to be put in perspective in order to understand the purpose preamble of this. But you never see a trade union say, "You will lose your job if you don't join a trade union." That threat is never put forward.

Mr Offer: With respect, when I hear those comments, it would just seem to me that you would have been supporting and supportive, and maybe you are.

Mr Hope: Don't interpret what I'm saying. I'll say what I'm saying; you say what you want to say.

Mr Offer: No. I prefaced my comments by saying, "When I hear what you have said." It would seem to me that you would have been supportive, and in fact when we get to the section, may be supportive of giving workers the freedom to choose.

Mr Hope: You can't.

Mr Offer: And you're saying you can't do that. You are saying that you can't, in this province of Ontario, give to workers the freedom to choose.

Mr Hope: You've got to put things in perspective when you're talking about the workers you wish to protect. Which workers are you wishing to protect when you talk about the protection of all workers? Out of all workers, who are the workers who are the most victimized workers of a workplace--the ones who are staying with the employer and not wanting to organize or the ones who are wishing to associate? Which of the two categories of workers are the victimized workers? Then you put things in perspective, Mr Offer, and maybe you'll start to understand where you have to put in the legislation a preamble that will protect the individuals you want to protect.

Mr Offer: The problem is when you say, "In the preamble." Your government has repealed the preamble.

Mr Hope: Excuse me, the purpose clause. I would like both of them in and make it much easier.

The Chair: Is that a motion?

Mr Hope: We've got to vote on this, and if it's voted down then it all goes in.

Mr Offer: However, I think it's an important point that you bring forward, because you have indicated that you do not believe that workers should be able to be given the right to choose and I believe that's exactly what Hansard will show. I'm not saying the government, Mr Hope, but I believe that's exactly what Hansard will show: that the right of workers to choose--

Mr Hope: You'd better read what Hansard said before you make out that that's what I said.

Mr Offer: All I'm saying is that I believe Hansard will show that you believe giving workers the right to choose will not work, and I believe protections can be built into legislation, I believe information can be given to the workers of this province so that they can make an informed choice, that they can be making a choice with full protection and that they can be casting their vote free of any thought of intimidation or coercion. I believe that that can be done.

It is interesting, and I will be so interested to hear the comments of Mr Hope when we get to that very important and critical section.

The Chair: Mr Offer, you indicated to me earlier that you might need some consultation.

Mr Offer: Yes, and I hope we deal with this part of the amendment and move on with the rest of the legislation. Prior to a vote, I would request a short five-minute recess.

The Chair: That's not unreasonable. We are adjourned for 10 minutes.

The committee recessed at 1649 and resumed at 1704.

The Chair: We're resumed. Any further debate? I'll put the question. All those in favour of Ms Murdock's motion amending the bill?

Mr Offer: I'd like a recorded vote on this.

The Chair: Recorded vote. Please raise your hand and keep it raised until your name is called.

The committee divided on Ms Murdock's motion, which was agreed to on the following vote:

AyesB6

Hayes, Hope, Huget, Murdock (Sudbury), Ward (Brantford), Wood.

NaysB1

Offer.

Mr Hope: Mr Chair, I was just wondering, how come there's only--

The Chair: That's fine, Mr Hope. Okay. We'll move on to the next motion, which is a motion by Mr Offer.

Mr Offer moves that section 2.1 of the Labour Relations Act, as set out in section 5 of the bill, be struck out and the following substituted:

"Purpose

"2.1 It is the purpose of this act to further harmonious relationships and industrial peace between employers and employees by ensuring that workers can freely,

"(a) exercise the right to choose whether to organize and be represented by a trade union of their choice; and

"(b) exercise the right to participate in the lawful activities of the trade union."

In view of the motion of Ms Murdock that was just passed, that motion is out of order. I would be, and I think the committee would be, responsive or receptive to another motion, should Mr Offer want to bring it during the course of the balance of the eight days. In any event, that motion is out of order.

Mr Offer: Could I get some idea as to why that would be out of order?

The Chair: Do you want it on the record or do you want to talk to the clerk?

Mr Offer: I wish I would have known, because I would have asked during that five minutes.

The Chair: Yes, during that consultation. My apologies.

Mr Offer: I could have done that. I could have discussed that matter. I would hate to leave this matter. Could I ask for two minutes?

The Chair: Of course you can. We'll adjourn for two minutes.

The committee recessed at 1706 and resumed at 1709.

The Chair: We then have two motions by Ms Witmer, both of which are similarly out of order and would indicate to her that she may want to bring parallel motions to the committee in the near future.

Any amendments to section 6? No amendments to section 6. Any discussion surrounding section 6? Thank you.

We then move to section 7. Ms Witmer moves that subsection 7(1) of the bill be struck out. Ms Witmer?

Mrs Witmer: Speaking then to subsection 7(1) of the bill, the intent of this amendment is to prevent the combining of full- and part-time employees into a single bargaining unit.

There's been a great deal of concern expressed regarding this combination of the full- and part-time employees into a single bargaining unit. Some of the concerns are that it ignores the board's expertise in discerning a natural and inevitable schism in the interests of full- and part-time employees, it falsely assumes that a barrier to organizing exists in the act for part-time workers and it groups or separates the full- and part-time employees based on the union's degree of overall support, creating a scheme to facilitate certifications rather than focusing attention on protecting the wishes of the part-time employees.

This section would mean it would be possible for a union to submerge the interests of the part-time groups under the weight of the full-time majority. If the full-time employees make up the majority, the union could certify the entire group, even if none of the part-time employees were in support of the union and, personally, that takes away the freedom of choice entirely for the part-time employees. As well, those part-time employees sometimes have very different interests and demands than the full-time employees.

I can give you an example of one workplace where you have a split. If we take a look at the Human Resources Professionals Association of Ontario, they have 50 employees. Thirty of their employees are full-time and 20 are part-time. Now, if 28 of the full-time employees join the union and none of the 20 part-time employees join, the part-time employees would still be represented by the union, even though they had unanimously opposed the union.

Personally, the Ontario PC party believes that's wrong, because those 20 part-time people would have been deprived of their opportunity to exercise their choice as to whether they want to join a union. Furthermore, the interests of the part-time employees could be overridden after the certification as well. The union could organize the two units separately and then, later on, ask the labour board to combine them if they represent both units with the same employer. At the present time they can do that, even if the part-time employees again are adamantly opposed.

I'm very concerned that Bill 40 does not advance the interests of the part-time workers and does not allow them the freedom of choice. What you have here is that automatic certification of a combined unit is directed, regardless of the majority wishes of each group, each group referring to the full- and the part-time employee groups.

Sometimes the board may know from the membership evidence before it that it has a majority, or even all of the part-time employees have not joined the applicant union, but is nevertheless directed to sweep them into the combined unit if the union has 55% overall support. If the union is not in such a position, the separate wishes of each group suddenly become relevant again, lest the board dismiss an application for certification that might be successful if the employees' wishes are considered separately.

If you take a look at the retail sector, many of the part-time employees are employed, oftentimes because of their choice, in a very short-term or casual way. Oftentimes they are women who prefer part-time work, want to spend some time at home with their family or prefer to work at certain times of the year, be it Christmas or other times, just to have that employment opportunity, or students who are looking for some part-time work.

Often the part-time employees do have very different interests. Often they view their jobs as very transitional. On the other hand, the majority of full-time employees are usually interested in pursuing a long-term career with their employer or with the sector they're involved in, and as you can see, oftentimes you do have two very distinct employee groups. I believe that the distinct employee interests should be addressed separately.

Also I'm concerned that under this section the employer has absolutely no role in the process and he or she has no opportunity whatsoever to make submissions on the issue of whether or not it's appropriate that there be this combination of the bargaining unit.

The other concern I do have is because the interests of part-time and full-time workers are often so different, and I certainly can relate to that myself. Again coming back to the retail sector, I know when I was a student, I was a part-time employee, and certainly my interests were different from those of the people who were employed in the store on a full-time basis. Your interests are different. Part-time people may be required to strike over long-term benefits or issues that really do not apply to them, and under Bill 40, all people then would be prohibited from working during a strike.

My overall concern is that if you allow the amendment to go ahead as proposed by the government and you have this combination of the full- and part-time employees, you really are taking away the choice of the individuals within each unit to pursue their best interests. They can be placed in a position where although they haven't voted for the change, they will be forced to become part of the bargaining unit or the strike action, even though they don't feel that that group or that strike action adequately represents their views and their best interests. As such, I will then move this amendment which would prevent the combining of full- and part-time employees into a single bargaining unit.

The Acting Chair (Mr Randy R. Hope): Mr Offer, do you have a comment?

Mr Offer: Yes, I do. This is an area in which we heard a substantial amount of comment during our public hearings, and as I recall some of those submissions, there were those who thought that full-time workers did not have the so-called same community of interests as part-time workers, and I believe that has been the practice under the Labour Relations Act in the past, that there was what was called a community-of-interests argument which in essence prohibited the combination of full-time and part-time workers.

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What has happened, in my opinion, is that there has been a growth in the part-time service sector of our economy and where once that wasn't a significant aspect of the workforce, and I say "significant" in terms of numbers, that is no longer the case. It is very important and the numbers are growing. We have heard that because the numbers of workers in the part-time sector have grown, as they grow, the argument goes that the community-of-interests difference seems to be minimized until there is in fact no difference between part-time and full-time, that there is no need for a community-of-interests argument because the workers of a full-time and part-time nature share the same community of interests and hence should be able to be combined.

As I listen to the arguments and the comments--because they weren't arguments; they were comments--as to the realities of the workforce today, I certainly did understand where in some instances it may very well be that part-time workers feel they have the same interests as their full-time counterparts, or if they do not, they think they should. But it also holds that there are those who say: "It doesn't matter what our numbers are, we do not hold the same community of interests. The things that are of concern to us are not the same as in the full-time sector and it should not be for others to decide for us." I think that, to me, is the essential principle: Who is to decide?

This legislation says it is up to the board to make that decision based on a certain voting procedure. As members of this committee will know, I have brought forward on numerous occasions my concerns that the voting mechanism, the percentages required, may in essence take away from the rights of workers, and this is the clear impact of this section. Rights of workers will be taken away if this section is passed in its current form. You will not be able to argue differently. The mathematics make the point. You cannot say that the rights of workers are protected if this section passes. We're probably going to deal with that in some detail.

The workforce has really gone through some real overhaul. I think we all recognize the massive unemployment and job loss that has taken place in the province of Ontario. I don't think there is an elected official in this country, at whatever level, who hasn't felt in his or her area of representation the impact of this recession, meeting with people who, for the very first time in their lives, are out of work, discussing with people how they can survive.

We know that a great deal of that job loss has taken place in the manufacturing sector. We know of that. We know of the unemployment rate, we know of the bankruptcies, we know of the closures, we know that no matter what the unemployment rate says the reality is that it's higher because the unemployment rate--

Mr Pat Hayes (Essex-Kent): That's why Peterson called the election.

Mr Offer: There are members who refer back to a time when there was expansion and creation of jobs in a previous government. I didn't bring this forward--Hansard will show that I did not bring this matter forward--but the point goes that in the mid-1980s there was expansion, there was creation of jobs, there was employment in all sectors. It was a time for young people who in many ways had their choice as to where they wished to choose a job, but now we are talking about today, Mr Hayes. We are talking about what people are feeling today. We are not talking about previous governments where there was job creation and investment and a positive climate. We're talking about today.

The Acting Chair We are talking about subsection 7(1), are we not?

Mr Offer: Yes, we are, and that's what I was talking about. Mr Hayes brought forward the issue and I feel compelled to respond whenever there is a comment.

As I indicated, as elected officials we've met with and spoken to the people who are not employed. We know, as I was indicating earlier, that the unemployment rate, though high in its percentage itself, is in reality higher. It does not take into account those many people who have given up, who are no longer looking for work and who are not factored into that unemployment rate. We know that the unemployment rate in itself is incredibly high. The reality is that it is actually higher.

We also know that in this province a great many of those jobs, though not all, have come from our manufacturing sector. Many people who have given many good years of their lives to working for companies now find themselves unemployed because the companies have either closed down or no longer can remain in existence. We also know that it is not just the manufacturing sector that makes up our economy in terms of employment; there is also the service sector and that's what I was leading to.

The service sector, though, of course has suffered greatly by this recession, however we wish to call it. We can call it a recession, we can call it restructuring, we can call it the new era of competitiveness, but I know that for all of us, when we meet people, it's people who are out of work and who want to work. What has happened in the service sector? In the service sector we have seen a change. Where it used to be, as I will refer to it, the permanent full-time position, it has now been shifted to a permanent part-time position.

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What does that mean to those people who have jobs? They firstly want security, which I think we all understand. They want to have fair and good working conditions, which I think we all understand. They want to have a job with a degree of security, that the job they go to work to today is going to be there tomorrow, and I think we all understand that. They recognize and work beside people who are of the more traditional full-time status.

Do the part-time workers have the same community of interests as the full-time workers? Some would say yes, and some government members have shaken their heads in the affirmative, and my response is, maybe so. Are there some part-time workers who do not have the same community of interests as their full-time counterparts? I think the answer is the same, maybe yes.

Maybe it is up to the worker to make that decision himself or herself. Maybe it is up to the worker to decide, in his or her workplace, not in this committee room, far from this committee room, in the workplace of the full-time--

Mr Wood: Too many maybes.

Mr Offer: Mr Wood says there are too many maybes. I understand that. In fact, in many ways I somewhat agree with that, because as I listened to the people coming before, that's what came to me. It said, "We cannot say in this committee room that all full-time workers and part-time workers, in whatever establishment, all have the same interests." I'm not going to use the words "community of interests"--the same interests. We cannot say that. We can say that they may, just as we can say they may not, but the essential point is, who are we to decide?

It would seem to me that what we should do is put in place the framework so that those workers can make the decision. For some workers, the single-most interest is going to be their pay. For others, it is not just the salary but also benefits. For others, it may be a variety of other items. The point I make is that in this committee we cannot make that decision for the workers of the province of Ontario. All we can do is set in legislation, in legislative form, the opportunity for the workers to make that decision.

Let us not say categorically or, forgive me, mathematically, as appears in this legislation, that the workers' right to make that decision will not be honoured. This legislation absolutely says that. We're going to discuss that matter, and I certainly have some amendments to this issue, but it was absolutely clear to me, as we were dealing with the legislation, that as many people said there were similar interests, so there were those who said there are different interests.

I plead with the members of this committee to listen to that, because it is not for us to decide whether, in all cases, each part-time/full-time worker has the same or different interests. It is up to us to put in legislation the opportunity for them, who know their own workplace, who know their own interests, to make that decision.

We're going to be dealing with this area at some great length, because I fervently believe that this section is a clear example of where the rights of workers have been eroded. I have said during the deliberations that Bill 40 in many ways takes away rights from workers. I recognize that the government and government members have argued against that, but I believe that the point is surely made in this section and others that will follow.

If I understand the amendment by the Progressive Conservatives, it is that all of subsection 7(1) be struck out. I further understand that to mean that in no circumstance can a part-time or a full-time workforce unit be combined. If that is the intent of that amendment, I cannot support that.

Mrs Witmer: No, that's not the intent.

Mr Offer: Oh, I'm sorry. Could I ask for a clarification then?

Ms Murdock: It isn't my motion; it's the PCs'.

Mr Offer: No, it's not a government motion, but that's how I understood the section.

The Chair: Go ahead, Mrs Witmer.

Mrs Witmer: The intent is that employees, whether full-time or part-time, could still be considered by the board to be appropriate for being placed in a single bargaining unit, but it would return the choice. Also, it would force the board to consider the facts of a particular case and to take a look at whether there is a community of interest existing between the two groups. So instead of "deemed by the board to be a unit" if appropriate, I would like it to read that the board may consider whether or not it's appropriate.

Mr Hope: Hopefully, that clarifies it for you.

Mr Offer: Yes, it does. Members of the committee will recognize that these clause-by-clause analyses of bills become very complicated, and it's magic, in many ways, to discuss the numbering.

Having heard Ms Witmer, it is clear that what the amendment really does is take away the power of the board to combine. If that is the case, I think we can see why such an amendment is necessary. In fact, the amendment I will be moving later on not only takes that away but also puts something in its place. The issue of putting something in its place is very important; if you take away the power of the board to combine part-time and full-time units, I believe there is a countervailing responsibility to substitute something in its place. The reason I say that is because I believe there are, without question, incidents and examples where the part-time/full-time worker units should be combined, will be combined. But when I say "when," to me the important point is when the workers in each of those units want that to take place.

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I do not want to leave that decision to the board. I do not want to leave it to the board on the basis of some mathematical equation which can very easily strip the rights of workers who do not want to be combined in one unit. This is a section which is critically important.

Members may question why I brought forward the unemployment rate and the loss in the manufacturing sector and the service sector, and the change from what was traditionally, in the service sector, full-time to one which is now part-time. It is important because there has been a movement from the traditional full-time worker in the service sector to the permanent part-time worker in the service sector.

Many examples have come before the committee. We know of incidents, both personal and not, which substantiate this. Anyone who walks outside this Legislature will recognize that it just happens to be a movement that is happening. It would seem to me that if that is happening--and it is--and if there are the growing two forms of workers, full-time and part-time, and if, on occasion, those units of workers wish to be combined, then there should be a mechanism to allow that to happen. If on occasion, after application, it is the wish of one of those sectors not to be combined, then that also should be respected.

This bill does not do that. It does not respect the rights of workers to not be combined if they wish not to be combined. I hate to talk in the negative, but it is absolutely clear that under this bill, if there is a unit of part-time workers who do not want to be combined with their full-time counterparts, but the numbers in the full-time unit are sufficiently higher than in the part-time unit, then on a vote they will be, shall be, must be combined, even though the part-time unit does not want to be combined.

This is nothing else than the taking away of rights. It is nothing else than subrogating the rights of one to the rights of the other. It is absolutely unnecessary, because it is not for us in this committee room to work on the basis and on the principle that all workers of part-time and full-time have the same community of interests. That's what this section is doing. It starts with a principle--no, it's not written, but it starts with the unwritten principle that the interests of full-time workers and part-time workers are the same. That's the unwritten principle because--

Mr Hope: Where's that?

Mr Offer: As I indicated, it's the unwritten principle, so don't look too hard.

Mr Hope: I thought maybe I had to put on my glasses, because I couldn't see where it's written.

Mr Offer: I say this because when one recognizes that that is the unwritten principle, then one can see why the sections and mathematics read as they do. If one accepts that principle, then one would not be that concerned about subverting, subrogating, the rights of part-time workers in this case.

I do not agree with that unwritten principle. I believe that in some instances the workers in the workforce do share the same interests, not because I think they do or I think they should or someone else has said he thinks the workers do, but because the workers in the workplace think they do. To me, that should be the guiding principle. To me, the guiding principle should be, what is it that the workers believe?

This section puts that aside. This section works on the unwritten principle that it is in the interests of all workers that they have the same interests. That would be just not listening to the submissions that came before the committee. I don't know how many times one will have to say this, but let that choice be the choice of the workers. If part-time workers in a workplace believe they have the same interests as the full-time, then I say well and good; it's good enough for me. However, if part-time workers feel they do not have the same interests as full-time workers, I am ready to accept that as an equally important principle. This legislation casts that part aside.

Having asked for clarification on subsection 7(1) from the Conservative critic, I recognize that the intent of the amendment is much the same as the one which I am going to be moving, but I want to not only strike out subsection 7(1) of the bill but also replace it with a principle that says it is the right of workers to decide whether they do or do not carry the same interests full-time to part-time or vice versa.

So I will be supportive of this motion. It opens the door to what I think will be some important discussion and it opens the door for us to see in a very real way whether the government is ready to give true meaning to the principle of the right of workers to choose for themselves. Let us not use this room and this bill to dictate to workers what their principle should be. It is for them to decide, it is their choice, so I will be supportive of the motion put forward by Ms Witmer.

Mrs Witmer: I think I should clarify the motion.

Mr Offer: Then I'll have second thoughts.

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Mrs Witmer: For the sake of clarification, in bringing forward these amendments we have tried to respond to the views expressed during the public hearings. In our first attempt to make changes to section 7, we actually are indicating here that this would prevent the combining of full- and part-time employees into a single bargaining unit. Later on, if the government votes against the motion, then we are suggesting another alternative because, as I say, we've tried to be as responsive as possible. We would then be indicating that we believe a bargaining unit consisting of full-time employees and part-time employees in a single unit may be considered by the board to be appropriate for collective bargaining. That takes away this "shall be deemed by the board" and does allow some choice.

So just for the sake of clarification, in response to demands from presenters this summer, we are responding initially to the request to prevent the combining of full- and part-time employees into a single bargaining unit. So, Mr Offer, you can later support me when I bring forward my alternative.

Ms Murdock: I think I should be allowed to address the PC motion at some point in time.

Mr Offer: We want to get on with the bill.

Ms Murdock: I'm glad to see that Mr Offer wants to get on with the bill because I noted during his commentary that he has already spoken to his own motion, so perhaps now that he's done that we will be able to kill two birds with one stone.

Just quickly, the Progressive Conservatives are asking that this be struck out--we're not supporting that obviously--but it means then that the present practice of the board would remain in place, and the present practice of the board is to not combine bargaining units, either full-time or part-time, and yet in every jurisdiction in Canada, and we doublechecked this, that is not the case. The exact opposite is the case.

The concerns that were stated by Mrs Witmer I don't think would be addressed by maintaining the present practice of the board, and I believe too that, yes, there's no question the present practice is that full-timers and part-timers are treated differently.

Having said that, when you think about nurses, for instance, if you're a patient in the hospital, you don't care whether they're full-time or part-time, the requirements of their duties and their tasks are the same. If you go in to purchase a jogging suit, the retail person who is serving you has the same duties. Likewise at a bank, those people who work there and are serving you have the same kinds of duties and responsibilities.

The community of interests, certainly in terms of job skills, is the same, and it is given that Ontario is the only one out sync, in terms of looking at full-time/part-time workers, with the rest of this country. What we are going to be proposing when you get to ours will resolve that, and the present motion before us does not do that. So we will not be supporting you, Mrs Witmer.

Mr Offer: I want to respond to this because, as you will remember, I asked for the meaning of subsection 7(1), and the way I read the motion by the Progressive Conservatives was that in essence the status quo would be retained, and the practice of the board has been that because of a community-of-interests argument in essence full-time and part-time units are not combined. I had indicated I could not support that if that be the intent of the amendment.

I could not support it, but I think it's important for me to indicate briefly why not, because I believe--

Mrs Witmer: We're not going to get finished, Steve. We've only got five days left.

Mr Offer: --that it should be up to the workers to make that decision, and that principle is not respected in the Progressive Conservative motion. My motion, which will come forward later on, will deal not only with the rights of workers to choose but also to do so in a way which respects their rights, and so I will not be supporting that motion.

The Vice-Chair: All those in favour of Ms Witmer's motion, please indicate. Those opposed? The motion is defeated.

Mrs Witmer: I'm going to withdraw the motion to subsection 7(1) of the bill, subsection 6(2.2) of the act.

The Vice-Chair: That's identified as PC motion, alternate 2. Is that correct?

Mrs Witmer: Yes, it is. I would like to withdraw that motion.

The Vice-Chair: It's withdrawn.

Mrs Witmer: I move that subsections 6(2.1) to (2.4) of the act, as set out in subsection 7(1) of the bill, be struck out and the following substituted:

"Full-time and part-time employees

"(2.1) A bargaining unit consisting of full-time employees and part-time employees in a single unit may be considered by the board to be appropriate for collective bargaining."

Whereas the bill now says, "A bargaining unit consisting of full-time employees and part-time employees shall be deemed by the board to be a unit of employees appropriate for collective bargaining," we have said that it may be considered, whereas formerly the wording in Bill 40 does not permit the board to consider the facts of a particular case or to determine whether there is indeed a community of interest existing between the two groups of employees.

As well as disregarding the traditional elements of appropriateness, this amendment I am suggesting enables the board to consider the facts of a particular case and determine whether indeed there is a community of interests existing between the two groups of employees. It does allow for employee choice. It is deleting the subsections which would require the board to combine full- and part-time employees into a single bargaining unit and it really adds a new requirement to section 6 of the act.

Section 6 empowers the board to determine the appropriateness of bargaining units. The amendment maintains the board's jurisprudence over determining whether it is appropriate to combine full-time and part-time employees into a single bargaining unit for collective bargaining.

We feel that this amendment would appropriately take all of the relevant factors into consideration and also allow the employees themselves to have input into the decision as to whether or not they would be part of the full-time and part-time unit or whether they wished to be represented in an individual manner.

The Chair: Ms Witmer, of course you have no restrictions on the amount of time available to you to address your motion, but we're just shy of 6 o'clock and there was a matter that Mr Huget had to deal with, so with your permission, Mr Huget.

Mr Huget: I'd like to advise the committee that due to Yom Kippur this committee will not be sitting Tuesday, October 6, and Wednesday, October 7. I'd also like to advise the committee that the long-term policy for religious holidays will be referred to the standing committee on the Legislative Assembly and also make note that the request was in response to the opposition House leaders' request.

Mrs Witmer: I have just one question. Would it be the intent then of the government to take the two following days? We're still going to do eight days?

Mr Huget: That's correct.

Mrs Witmer: However--

The Chair: We're going to deal with this for eight consecutive days that are available to us, as I understand it.

Mrs Witmer: That's right. That means--

Mr Huget: There is no change in the eight days. We are resuming on Thursday.

Mrs Witmer: So we'll be doing it October 15 and October 19?

Ms Murdock: October 13, unless the House is not sitting.

Mrs Witmer: No, no. We were going to do that anyway. We were going to be finished October 14, but I'm assuming then we will also do this October 15 and October 19.

Ms Murdock: Yes.

Mr Huget: We need to do eight consecutive days.

Mrs Witmer: That's right.

Mr Huget: That's what we're proceeding to do. So Thursday will be day four.

Mrs Witmer: Right.

Mr Offer: I think it's clear that this is in response to a point of privilege which I brought forward today and I think that it was and is important that this committee earlier on--I believe on September 1, after some deliberation--unanimously voted for the House leaders to look at this matter. I think we should recognize that was an important part of the argument I was making. I was always hopeful that maybe it wouldn't have been required to be done in the Legislature, but there's no question that the resources committee unanimously had endorsed a request to be made and I think that's an important aspect for this change.

The Chair: You initiated that position by the committee and you did it with discretion and diplomacy and the committee's grateful to you for that.

We are adjourned until Thursday at 3:30 or the end of routine proceedings.

The committee adjourned at 1800.