CONTENTS
Tuesday 13 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)
Acting Chair / Président suppléant: Duignan, Noel (Halton North/-Nord 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:
*Duignan, Noel (Halton North/-Nord ND) for Mr Huget
*Hayes, Pat (Essex-Kent ND) for Mr Klopp
*Lessard, Wayne (Windsor-Walkerville 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
Murdoch, Bill (Grey PC)
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 1532 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): It's 3:32 and routine proceedings have been done and gone, so we will move right along.
Mrs Elizabeth Witmer (Waterloo North): I had been asked at the end of the discussion on Thursday to speak to the issue concerning a particular labour relations problem. As you know, we had introduced a previous amendment where we wanted to eliminate the combining of bargaining units. We're very concerned about that proposal.
What we're saying now in this second alternative is that we want to restrict combining existing bargaining units and we want to talk about this identifiable problem. What we mean by this is: If there is a problem concerning the functioning of a business, then if the combination of the bargaining units is going to improve the functioning of that business, we would see that as overcoming that problem.
Also, another problem that we would be referring to would be: If it's the employees' wish to combine, then we could support the combining of the existing bargaining units. Those are the type of labour relations problems that we were talking about. I hope that helps.
The Chair: You wanted to debate this?
Mr Steven Offer (Mississauga North): I just wanted to try to get my mind in sync with where we are in the bill. We're at section 7.1 of the bill, dealing with the combining of bargaining units? I think I have an amendment to that which follows this.
Mrs Witmer: You do.
Mr Offer: Thank you. I just wanted to get a clarification.
The Chair: There being no further debate, all those in favour of Ms Witmer's motion? Opposed? The motion is defeated.
Mr Offer moves that subsections 7(2) and (3) of the act, as set out in section 8 of the bill, be struck out and the following substituted:
"Representation vote
"(2) The board shall combine the bargaining units only if a representation vote is taken and more than 50 per cent of the ballots in each of the separate bargaining units are cast in favour of the trade union.
"Secret ballot
"(3) The representation vote must be taken by secret ballot and must be held within 30 days after the date on which the application is made under subsection (1)."
Go ahead.
Mr Offer: I'd like to speak to the motion which we are moving, hopefully to be adopted by the government members. I think the principle underlying this amendment is very much the same as the motion that dealt with the part-time and full-time worker consolidation motion. What was the principle? The principle underlying both motions--but the one I will speak to is with respect to combining bargaining units--is that if individuals in each of the bargaining units feel that they wish to be combined into a single bargaining unit, then they can if there is a secret ballot vote and the vote is held within 30 days after the date upon which the application is made.
There are other sections to section 7, which we will deal with, but what my motion is attempting to accomplish is this: There will be, in my opinion, the situation where, firstly, there are existing bargaining units, and secondly, an application is made to combine those units. I do not have any problem with the application for combination; that, I can understand, may happen some time. I don't think that anyone here can, in fairness, deal with all possible scenarios as to when and where and how that may take place, but I think we can all see that it will. So if we take it as a given that there will be an application for combination of bargaining units, the essential issue which we must deal with is how that is accomplished. Most of my comments will be directed to how that is to be accomplished.
Clearly, under the legislation as it now exists, after the application is made, it is dealt with by the labour relations board, without any input from the employees of each of the units. There is, in fact, no necessary notice to those employees of an application for combination. There is no provision which mandates each employee to be given information not only of the application for combination but also as to what it means, why it's taking place and what his rights are as a result of such an application. I don't believe that's good enough.
I reiterate, because I have found it is absolutely essential to reiterate, that I'm not opposed to combinations of units taking place, but I do believe that if they do take place, there is the necessity for the employees of each of the units to have a say as to whether they do or do not wish to be part of a combined unit.
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Where does this idea come from? It comes from some of the representations we heard. We have to recognize that we're not talking about just an application for certification; we're talking about where there are in existence two already organized units. We heard in our hearings that in some instances a bargaining unit does not have the same interests as another unit. It isn't that one of those interests is more important than the other, but it does mean to say that in some units there may be a different priority that is placed on the interests. Some may be wages, others may be pension benefits, still others may be job security. These are all important issues, but what I heard in the public hearings is that some bargaining units, though probably having all of those interests, place a higher priority on one than another.
I think that is something we can all understand and I hope we can all agree with, because if we agree that there are some units that do have a different sense of priority on those issues than others, then it means we cannot allow the board to make a decision without hearing from the employees.
This section of the bill really does exclude participation by the employees. My amendment would ensure that on any application, a vote must take place. I'm not looking for a low threshold to trigger a vote; I'm not looking for any threshold. I'm saying an application for combination triggers a secret ballot vote. The end result of a secret ballot vote is that there must be a majority in each of the units wishing consolidation before it can take place. There may be other factors that the board will have to take into account, but it seems to me it should have no right to take any of the other factors into account until each of the workers in each of the units agrees that consolidation is something they want.
It's not enough to say that we trust the board to make these decisions on behalf of the workers. I don't think that's good enough. I recognize the board has to take into consideration certain criteria, it has to be sensitive and aware as to what consolidation means, but my amendment is designed to say that it cannot take those into consideration until a majority of employees in each unit in essence asks it to do that.
In our public hearings I believe there was a representation by a union, a person who represented workers, but I don't think it was a large union. It was a smaller union, a smaller unit of workers, but unionized none the less. He expressed the concern that the interests of the men and women he represents might be different from the interests of another unit which would form part and combination of. I think that was an important submission, because it brought forward the point, very nicely and very sensitively, that we should be giving in this legislation the right to workers to make the decision in the first instance about whether they wish a combination of units to take place.
My amendment would allow that. It would be a secret vote. I don't think we ever heard in our hearings a concern in this area, of any intimidation or coercion or anything of this nature, but I believe a worker just feels freer when he or she casts a vote yes or no in the privacy of a booth.
The reason I bring forward the amendment is that I've had reason to look at Bill 80. We know that Bill 80 carries with it five conditions. It's a bill which has been brought forward by the Minister of Labour. It is referred to as a disaffiliation bill; there are those who say that is a proper characterization of the bill and, in fairness, there are others who say it isn't. But one of the areas the bill does address, no matter what one's position on the bill is, is that in certain circumstances it will allow the provincial organization of an international union to break away or disaffiliate from its international. That's what it would allow. We all recognize that that's a possibility under Bill 80.
But when you read Bill 80, it is interesting to see some of the principles.
First, it speaks of a vote that's necessary before disaffiliation or breaking away will be allowed. In other words, before a provincial representative unit can break away from its international, a vote has to take place. What type of vote under Bill 80, as brought forward by the Minister of Labour at the end of June 1992? Guess what? A secret ballot vote. When is that secret ballot vote triggered? My goodness, isn't that strange? When there is a majority request.
There are some who attach certain intentions to that who are very critical of the Minister of Labour. I don't say the ministry. I'm very specific: I say the Minister of Labour. There are those who are very critical of the Minister of Labour steadfastly refusing in Bill 40 to allow secret ballot votes, to allow the majority of workers to decide, while at the same time in Bill 80, for other reasons, allowing a secret ballot vote and allowing a majority of workers to decide. There are a number of people who have some familiarity and history with labour relations in this province who are extremely critical of the Minister of Labour. I won't go further in terms of the adjective given, other than to say "critical" of the actions of the minister, but we all know it goes much further.
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They are asking: Why are the principles in Bill 80 not brought and carried through in Bill 40 and vice versa? Why is there such an apparent inconsistency on the part of the Minister of Labour? No one speaks to me on the part of the Ministry of Labour. No one speaks to me about the policy that has been dealt with and how it's been dealt with by ministry officials. They understand that. The criticism is directly put at the feet of the Minister of Labour.
This is an issue which I believe is in many ways much larger than either Bill 40 or Bill 80, because there is clearly a distinction in principle as to who, why and when workers' rights are recognized and listened to in this province.
My amendment cuts through all of that criticism. It says there are times when a combination of existing units may indeed take place. Again I say that we can't anticipate when and where. I think we can understand that there in fact will be that type of application, but when that application is made, there must be a majority of workers in each unit saying yes to consolidation; if there is not a majority of workers who democratically exercise their right and freedom to choose, then no consolidation takes place. If you cannot get a majority of workers in each unit, then there is a reason for that: It is nothing other than the workers deciding that their interests in one unit are different from workers' in another.
So I am bringing forward this motion, this amendment to the bill, in order to give to the workers of this province who are already unionized and wish to combine one to the other the right to freely exercise their choice, the right to express their opinion as to yes or no. If you don't have 50% in each unit, then it's no. If you do, then the board must take into consideration other factors so that the combination is done in a balanced way, having and giving real understanding to both employees and employers.
My amendment is directed to the rights of workers, allowing them to cast a vote. The government, the bill, are taking that away. It is leaving it in the hands of the Ontario Labour Relations Board--not good enough.
Mrs Witmer: I'd like to register my concern at this time. This is now day five of discussion; we only have eight days, because of time allocation. I would like to indicate at this time that the Ontario PC Party has attempted to listen to people during the five weeks of hearings. We have come up with more than 80 substantive amendments to Bill 40 and, unfortunately, if we continue to proceed at this pace, there will be no opportunity for us to discuss with the members of this committee all the concerns that have been raised by individuals and groups in this community. If I'm going to do my job effectively as an opposition critic, we need to be given that opportunity. Obviously, we're going to have to either limit our remarks or not deal with issues such as replacement workers and third party picketing, all very crucial issues to people in this province.
I suggest that if we're really going to respond to the concerns of people, we're going to have to proceed at a quicker pace; otherwise, the five weeks of hearings were for naught.
Mr Offer: On the same point Ms Witmer has brought forward, there are two areas that I'd like to correct. Yes, we've been allocated eight days. The first day was very short. I don't think we started the day until 4 or 4:30, and we had to adjourn, of course, by 6.
The second point I make to Ms Witmer, in agreement with her concerns, is that if we read the motion the government passed, the eighth day effectively ends at 4 pm. We cannot start the eighth day until 3:30 in the afternoon. I just happen to have the motion before me. It says: "At 4 pm on the last day on which the committee is authorized to consider the bill clause by clause, those amendments which have not yet been moved shall be deemed to have been moved and the Chair shall interrupt the proceedings and shall, without further debate or amendment, put every question necessary to dispose of all remaining sections of the bill."
So we're not dealing with eight days; in fact, we are dealing with not more than six, and each of those days, under our rules and by tradition, starts at 3:30 and doesn't go past 6.
From day one, I have indicated my grave concerns that there will not be sufficient time to deal with the bill. I would like to put that on the record. There are important areas that have to be addressed, have to be discussed. This time allocation closure motion by the government stops us from doing that. Six days to deal with so many sections and so many amendments is an aberration of the democratic process.
If anyone is suggesting that we should deal with these sections on the nod, in other words, read them in, "Are you in favour or against?" and then just go on, I would like to hear that. I would like to hear any member of this Legislature, of this committee, who's saying these bills and these sections shouldn't be discussed. They affect many people in this province, and I invite anybody to say that these sections shouldn't be discussed, rather on the nod. It's not the democratic process, it's not the parliamentary process and it's not the thing we were elected to represent.
If you think we are just going to, on the blink, say yes or no without indicating our grave concerns with some of these sections, I think that's a forum that isn't in this province or in this country, and never has been. If you think we are going to chart some new ground that bills get passed on the nod without voicing our thoughts, our opinions, our concerns and, yes, sometimes our support, I take strong exception to that.
Mr David Turnbull (York Mills): While I have to agree with what Mr Offer is saying, I still have to point out that there is no suggestion of just reading them in and glossing over it. I think it's despicable that the government isn't giving the appropriate amount of time to discuss a bill which--I don't think it's even arguable--is the most important piece of legislation that has been brought by this government since it has been in office--
Mr Offer: Absolutely.
Mr Turnbull: --and probably in the whole of your term will be the most damaging piece of legislation brought before any legislature in North America. It deserves more time, but we have a government that resorts to highway robbery. We know that they stick us up and say, "This is all you're going to get." Nevertheless, we have a responsibility, as the opposition, to get on and show what we would do.
The Conservative Party, as is typical for the Conservative Party, has the majority of well-thought-out amendments. We can go along with a lot of Liberal amendments and I'm not complaining about the thrust of these. But I do believe that a lot of the comments, with the greatest respect, Mr Offer, from you and from the Liberal bench, are of a highly repetitive nature. I've heard the same thing over and over again.
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I agree with what you're saying mostly, but please, let's get on with it and get on with discussing the whole bill, because I really intend to tear into this government when it gets into the House and I won't hold back on the debate at that point. But I do believe it's important to give an airing or the light of day to the amendments that we have prepared, which we believe, given the awful nature of this bill, at least will improve it.
Mr Offer: I'm compelled to respond. I think we recognize how this issue came to the floor and I recognize how some are ready to tear into the government when it hits the floor. The fact of the matter is that you don't have any time to do it. There are two days. The government has already dictated that. To me, since I was first elected in 1985, dealing with a variety of bills, it is at the clause-by-clause stage in committee where we attempt to make the bill better. That's what the committee stage is all about.
The legislative chamber's time is valuable time. They're not going to give us 20 or 30 legislative days to deal with this bill. There are other bills that require second-reading debate, yes, and some committee of the whole. It's the committee stage where you deal with fine-tuning, with improving pieces of legislation. If I am hearing that both the NDP and the Conservative Party are saying, "Let's do away with that part," then let them put it on the record.
Mr Turnbull: I have to take strong objection to that suggestion by the Liberals. The Liberals have seen fit to have only one person at this committee throughout these clause-by-clause hearings, and the obstructionist attitude, to suggest that we don't want to have the airing or the light of the day, is ludicrous because it's our party that is doing more work than your party. We're trying to improve this dreadful piece of legislation because it's going to lose jobs, and that's what we're concerned about.
Mr Len Wood (Cochrane North): Create jobs.
The Acting Chair (Mr Noel Duignan): Can I remind the members of the committee that we are discussing Mr Offer's motion? We've somewhat digressed from that.
Mr Turnbull: The whole point is that we want to move the process along and not have a monologue, where everybody's just about asleep from Mr Offer's sermons from the mount.
Mrs Witmer: In an attempt to move things and make sure that we have a chance to discuss all the amendments that have been proposed, I do agree with the Liberal motion. I feel it's extremely important that we do take into consideration, if you're going to combine separate bargaining units, that the wishes of all employees are considered. I've always believed very strongly, as has my party, that there is a need for a secret ballot, because we are very concerned that Bill 40 does infringe on the rights and freedoms of individuals. What Mr Offer's motion will do is make sure that there is a secret ballot on the issue of combining bargaining units. So we would certainly support this particular amendment.
The Acting Chair: Any further discussion?
Ms Sharon Murdock (Sudbury): Just to respond to the comments by Mr Offer on this section, like Mr Offer, I sat through all the hearings for five weeks. With the exception of the Christian Labour Association of Canada, which Mr Offer mentioned--he didn't refer to it by name but that was the union you were talking about, I believe.
Mr Offer: No, it wasn't.
Ms Murdock: Well, that's the only one I remember specifically directing its mind to this aspect. I heard groups talk about representation votes at certification and I heard groups talk about a strike vote, but in terms of representation votes for a consolidation of unions, I would point out that the unions already represent the groups, that their membership tell the union leadership what they would like to do and whether they agree with it.
Having said that, then of course we're not in support of this amendment. However, I want to respond, and very briefly, because I know Bill 80 has nothing to do with this Bill 40. Because it was mentioned so lengthily, I feel compelled to address the points Mr Offer made in regard to my minister, those being the Bill 80 principles. I disagree with Mr Offer very decidedly in terms of those unions that wish to move away from their international, that they must do so with, first of all--he's right that there would be a secret ballot vote at a later date, but it must do it first with the consent of the international union.
Secondly then, decertification under the existing OLRA also requires the secret ballot vote when union members want to decertify from their union. Those two premises are true and have remained true for years. The distinction, I think, here is in terms of a representation vote as between the certification vote and between a consolidation vote. They are not the same thing, and I think the distinction must be made on the record.
The Acting Chair: Mr Hayes?
Mr Pat Hayes (Essex-Kent): I thought we were voting.
The Acting Chair: Sorry. Mr Offer.
Mr Offer: I think the parliamentary assistant has referred to two things that I want to make clear on the record, if I'm permitted to do so with these new rules. The first is that I believe you referred to the Christian labour congress--
Ms Murdock: Christian Labour Association of Canada, CLAC.
Mr Offer: Association. I believe there was another representation made from an individual who represented workers and clearly indicated that there was a concern he had that in the event of a consolidation, there is firstly the concern about there being a unit of workers with a few individuals being consolidated with a unit with a larger number, and that the interests of the group with the larger number are different from the one with the smaller number, and that, as a result, would impact on the workers he represents. That wasn't from CLAC; it was from the Paperworkers and I think it was an important point that was made.
Second point: Again, if I might be able to clarify matters with these new rules of proceeding, if time permits, it's only Hansard that we're responding to, and that is, if you were listening to my comments on Bill 80, my comments were neither in support of nor opposed to the bill. My comments were premised on what in fact is in the bill. There are five issues within the bill, one of which is disaffiliation, and the point I bring up is that the disaffiliation sections carry with them the principle of a secret ballot vote, which has been rejected by the government in Bill 40. It carries with it the principle of majority rule, which has been rejected in Bill 40. The point I make is that there are many concerned that the underlying principles of Bill 80, in similar manner, are different from the principles in Bill 40, a lack of consistency, and there is a great deal of criticism as a result of that.
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The Acting Chair: Any further discussion on Mr Offer's motion?
Mr Offer: I would like a recorded vote, if that's allowed under the new NDP rules of procedure.
Ms Murdock: Excuse me. I'm going to take exception to that too, because I don't believe, as I recall--
The Acting Chair: Ms Murdock, through the Chair.
Ms Murdock: If you look at the record, we never spoke to this, so the little gibes that are being given are uncalled-for.
Mr Offer: I agree with you.
The Acting Chair: Thank you, Ms Murdock. Any further discussion on Mr Offer's motion? Hearing none, a recorded vote.
AyesB2
Offer, Witmer.
NaysB5
Hayes, Lessard, Murdock (Sudbury), Ward (Brantford), Wood.
The Acting Chair: The motion is lost.
The next motion we're dealing with is Ms Witmer's motion. That is section 8 of the bill, subsection 7(2.1) of the act.
Mrs Witmer: I move that section 7 of the act, as set out in section 8 of the bill, be amended by adding the following subsection:
"Decertification
"(2.1) If the board combines bargaining units, the employees in any of the formerly separate bargaining units may apply to terminate the bargaining rights of the trade union on behalf of the employees in the formerly separate bargaining unit."
The intent of this amendment is to provide for a decertification application by a group of employees that has been consolidated into a larger unit. It supports our concern for freedom of expression and our concern that much of Bill 40 seems to be directed at enhancing union power, however, infringing on the rights of the individuals. We feel if employees were given this right, it certainly would be in their favour.
What happens, we believe, is that it's important that employees who are being organized by a trade union are entitled to know what bargaining unit they are being asked to join. Once they're combined with one or more other bargaining units as part of the certification process, this subjects them to a future bargaining structure without their consent, so they lose their freedom and their wishes are not taken into consideration. If the government insists on proceeding with section 8, as it has indicated it is going to do, we believe very strongly that employees should be allowed to submit an application for decertifying out of the larger consolidated unit if the new bargaining structure does not represent their interests.
If employees are not given this type of protection we are suggesting they be given, local autonomy is going to be totally lost and individual employees are going to lose total control over their destiny. It's for that reason, because of our belief in freedom and democracy, that we are putting forward this particular amendment at this time to allow all employees an opportunity to freely express their wish to decertify, if that's in their best interests.
Mr Offer: I'd like to start by asking a question on this amendment. Does this amendment take effect after a consolidation has taken place?
Mrs Witmer: Yes, after.
Mr Offer: And what this would allow is for employees of a larger unit to carve themselves out of the larger unit?
Mrs Witmer: It would probably be a smaller unit that has become part of a larger unit.
Mr Offer: I understand that, but I'm saying that you might have a unit of--we'll put numbers in--15 consolidated with a unit of 35, so you've got 50 now and they're now one unit. We now have a unit of 50. This amendment would allow some workers, not necessarily the 15 or the 35, but some, to carve themselves out of the 50?
Mrs Witmer: Yes.
Mr Offer: I guess my question is, what are the criteria to do that? How are they going to be able to work in the workplace? I just don't know. If there's no limitation on the workplace strictures, how do they go to work? How does it work?
Mr Wood: They don't work. They stay home.
Mr Offer: I hope you understand, because I think it's an important amendment. If we now have a unit of 50 and we're now saying that 10 people can carve themselves out, does consolidation have to be a precondition? I just don't know what that means.
The Chair: Does anybody want to answer that? You don't have to if you don't want to.
Ms Murdock: Mr Offer has stated our concern on this, because it's not a certification or a representation issue. First of all, it's working on the premise that it's the individual locals of the same union. It has to be made clear here: Under Bill 40, the consolidation can only occur if it's the same union. To use an example of CAW, for instance, if two CAW locals consolidate, those individual locals must decide that at their individual membership meetings, because it would radically change their constitution if they were to join into one bargaining unit. This is not done in isolation, that some higher players make a decision that they're going to do this and that the membership has absolutely nothing to say on it, because that's the sense I got when the explanation was being given.
Secondly, as Mr Offer has pointed out with his question, once they are consolidated and then become the bargaining agent with the employer for that group of 50, for example, the way I'm reading this motion, they would have to be one of--"the formerly separate bargaining units may apply to terminate the bargaining rights."
Therefore, it wouldn't be just any group of 10; it would require it to be one of the formerly separate bargaining units which have voted for consolidation. I just can't see how this would work at all, and we will not support this.
Mr Offer: Can I just ask a question based on that? If we're thinking about it as being one of the former units that can carve itself away, they haven't had the opportunity to vote for consolidation. This would allow the unit that used to be in existence to vote to break away.
The amendment is probably less effective if the workers had been given the right to vote yes or no in the first place. But if the workers, after not being given the right to vote yes or no in the first place, are given the right to vote no in the second place, they at least are allowed to express an opinion. I have a concern that there's no time frame for this.
Mrs Witmer: Just to clarify, it doesn't refer to any group of workers; it refers to a former bargaining unit. Our concern is that throughout this entire process of combining bargaining units, individuals are not being allowed an opportunity to express themselves through a secret ballot vote. The individual wishes of employees are not being taken into consideration, so we believe that once consolidation takes place, people need to have an avenue to decertify. That's what we're suggesting here could happen if there is a former bargaining unit that's not happy with the consolidation that's just taken place into a larger unit.
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Mr Offer: Just before I cast my vote yes or no on this, even though there's been a consolidation, there would still be in one's mind the preconsolidation application in terms of the units. In other words, you could have only one or the other that used to be in existence carve itself out; you couldn't have some sort of hybrid of, now that they're one, you have 10 and 15 from each unit, or something less than what was there before, carve themselves out. I just don't know.
Ms Murdock: This is also working on the presumption that the individual local unions are sitting there and somebody decides for them, without asking their opinion--this is the presumption this is working on--that they're going to consolidate.
Mr Offer: That's right, though.
Ms Murdock: During law school, when I was there, we looked at contracts and constitutions of different local unions. If you're going to remove yourself from local 123, and local 234 is going to join with you to form a brand new local, 750 or whatever, there is no way that would be done without a meeting and a vote being held within their own constitutional agreement and the agreement the individual local would have. That is not part of this bill, not part of the Labour Relations Act, because it's part of their own constitutional dealings; therefore, this has no appropriateness for the issue.
Mrs Witmer: In response to that, that's our concern. It's fine to say that the local union will have a vote and there will be discussion. However, if that is indeed what is going to happen, then why did the government not allow for the opportunity for a secret ballot vote to take place so that the wishes of the individual employees could be taken into consideration? That's not seen to be happening right now, and that's our concern and that's why we feel that employees need to have some local autonomy and some opportunity to express their wishes, so we have moved this particular amendment which would allow them to decertify.
Mr Offer: Actually, Ms Witmer just brings up a point. Why didn't the government move on allowing the workers, by a majority rule in a consolidation, to express their opinions? We heard it in the committee hearings.
Ms Murdock: I believe this allows the flexibility of the individual locals to make the determination as to how they're going to run their own operation. The ones I know--of course, I'm dealing with a Sudbury situation where there are fairly large local unions, but I've checked, and all of them deal with secret ballot votes for major decisions that are being made within their own local. That is not to say that all of them do it that way but that it's their right to decide how they're going to make decisions for their own reasons. It is not for any government--I don't care whether it's Progressive Conservative, Liberal or New Democrat--to tell them how they're going to make decisions about their own major movements to wherever they're headed, and that's why it is not included in either Bill 40 or in the Ontario Labour Relations Act.
Mr Offer: Hopefully just to finish off on this, it's unfortunate, but Bill 40 flies in the face of what you've said. You said it was not right for the bill to demand that, but I just take a look at section 23, which actually has the type of grievance clause that must be in every collective bargaining agreement. The bill goes on with other examples of things that must be in a collective bargaining agreement: must.
Ms Murdock: As you well know, Mr Offer, all of those are things that have been developed with the board over the years. If they aren't already in a collective agreement, then the board will operate on the basis--
Mr Offer: The argument could be made that secret votes have also had some discussion. It would certainly be in keeping with any government to insert in legislation that if there is to be an application for consolidation, a secret ballot vote should take place, and this is the way in which it should take place: under the auspices of the Ontario Labour Relations Board. Take it away from everyone, but make it founded on principles of democracy and freedom and secrecy. I think the government could do this quite simply. I think you should call a vote, unless they have any questions.
The Chair: As you know, Mr Offer, there are no rules restricting the amount of time that somebody can speak to a matter in committee.
Mr Offer: I wish you were here a little earlier, Mr Chair, to hear some things.
The Chair: Wishes, mere wishes. Any further debate on this matter? Mr Duignan.
Mr Noel Duignan (Halton North): I didn't say a word.
The Chair: I'm sorry; I thought you were gesturing. Perhaps you were gesturing.
All in favour of Ms Witmer's motion, please indicate. Opposed? The motion is defeated.
Mrs Witmer moves that subsection 7(3) of the act, as set out in section 8 of the bill, be amended by striking out "or" at the end of clause (b) and by adding the following clauses:
"(d) would interfere with an employer's organizational structure; or
"(e) would reduce employment opportunities."
Mrs Witmer: As you can see, we're very concerned about the combining of bargaining units and the very detrimental impact it can have on the Ontario economy and also on the autonomy of the individual employee. This amendment adds additional factors for the board to take into consideration when it is combining bargaining units.
The existing 7(3) instructs the board to consider the factors of facilitating viable and stable collective bargaining and reducing fragmentation of bargaining units. Both of those factors, as you know, do tend to favour consolidation.
This amendment would require the board to seriously consider whether consolidation will interfere with an employer's organizational structure or reduce employment opportunities. We believe that if this amendment is added and taken into consideration when the board looks at combining bargaining units, this will provide some very much needed balance to the bill as to the economic realities that a business encounters.
We believe that Bill 40 unfortunately is skewed in favour of the unions. It's not balanced for individuals or for the employer community. If you were to take this amendment into consideration, it would restore some of the balance that has been lost and would force the board to look beyond what's already being taken into consideration here and to take a good, hard look at the business side of the equation and what the economic realities will be if there is a combination of these bargaining units. I would hope you support this in an attempt to restore balance to Bill 40 and to take into consideration what the employer community has been asking you to do.
Mr Offer: I guess we will hear from the government as to whether it will be accepting this amendment. It's one of those things where you just cannot--
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The Chair: Perhaps you could put that question to Ms Murdock and abbreviate the whole debate here. If Ms Murdock approves of the motion, there'd be no need, really, to discuss it.
Mr Offer: Could you give us some indication of whether the government is prepared to accept this motion?
Ms Murdock: Given that we have, as Mrs Witmer stated, heard from many businesses during the hearings with regard to their concerns about significantly different methods of operation and ability to continue operating and that we address that in our motion that's coming up, we will not be supporting this one.
Mr Offer: Okay, thank you very much. I note that you do have a motion coming up on this particular area, but I think that we have to continually remember, and in labour relations law and in board applications we have to recognize, that you can't take a look at one section individually, that there is always a folding together of many sections to build the story.
The unfortunate point we are at is that we are trying to anticipate what the board is going to do when we now have a new purpose clause. We haven't had that before.
Mrs Witmer: We don't know that.
Mr Offer: Ms Witmer has just indicated that we don't know, and she is absolutely right. We can look back and say, "The board has done this, it has acted this way, it has dealt with the matter in this way," but it's always been done with the preamble of the act and without a purpose clause. We now have the government repealing the preamble and inserting a purpose clause within the legislation.
I've said from the outset that I believe that really will shape the direction the board must follow. They will not have discretion. It's not a preamble of principle; it is a very specific purpose. When you do that, you limit the board's discretion in the manner it addresses issues. That's what's happened in the first few sections of Bill 40.
So we come to this section which speaks about board discretion, but we can't talk about what this section says without reminding ourselves that the board is going to be driven in a way that is like never before.
We did hear some very important arguments based on reality, not based on something that's like wisps of smoke. Employers require the board to take into consideration certain factors that are important to them, and this bill doesn't do that. This bill just forwards the board in a very imbalanced manner.
We better think about what the long-term ramifications are. To me, I see this as having a direct impact on investment in the province. There will be those who disagree, but I believe that companies, when they open up here, or existing companies looking to maybe expand here, will have regard to the labour relations board, what drives the board and what are some of the areas in which the board can make decisions and which affect them. If anyone doesn't believe they take those things into consideration, my goodness, then I don't know what more is to be said, except that it will be interesting to hear what the government will be attempting to deal with through its amendments.
I think it is absolutely essential that any opportunity we have in Bill 40 to restore the balance be made. This is an amendment which does attempt to restore balance, in one area only, and that's consolidation.
I can tell you, we wouldn't need a lot of these amendments if the purpose clause itself built the balance. If the purpose clause had the balance that was necessary, then you wouldn't need all of these amendments to try piecemeal, in an ad hoc way, to restore balance. You wouldn't need that for consolidation if there was a preamble which already had that. It would apply to every application.
This is extremely important, not only as to its substance, but also as to how one has to, in a word, battle the purpose clause. We must battle and put up a barrier to the discretion, to the latitude, in one way, that the board is going to be able to exercise and what effect that has on employers in this province. I am concerned about that.
This amendment is one which attempts to build in some balance. I think it would have been not as necessary if two things took place: first, if a restructured preamble were inserted--and of course the (b) part to that is that the purpose clause be taken out--and second, that workers be given the right to choose yes or no. I think that's very important, but we will certainly wait to hear what the government has to say in the area of the consolidation of units and how it is going to deal with the very real issues brought forward in our public hearings by much of the business community.
Mr Wood: Time to vote.
The Chair: There being no further debate, all those in favour of Ms Witmer's motion? Opposed? The motion is defeated.
Ms Witmer moves that subsection 7(3) of the act, as set out in section 8 of the bill, be struck out and the following substituted:
"Representation vote
"(3) The board shall combine the bargaining units only if a representation vote is taken and more than 50% of the ballots in each of the separate bargaining units are cast in favour of the trade union."
Go ahead, Ms Witmer.
Mrs Witmer: This amendment is very similar to the one that was introduced by the Liberal Party. It is simply adding a new requirement for a vote of all parties concerned who would be directly affected by the consolidation application and that the board would require a simple majority in each of the individual units before such a merger could take place.
If you remember, on August 13 of this year the Canadian Paperworkers Union asked this committee to prepare an amendment that would require a vote of all parties who would be affected by the consolidation application and that the board should require a simple majority of the individual units before such a merger could take place. The amendment before us is one that has been asked for not only by the Canadian Paperworkers Union but also by the More Jobs Coalition, by Inco and by the Ontario Restaurant Association, so there certainly was quite a bit of interest in this particular amendment.
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As we've already said, currently there is no provision in the legislation that allows the affected employees to agree or disagree with an application for consolidation; there is no opportunity for them to express their opinions. Therefore, we believe that each bargaining unit should be required to hold a secret ballot vote, with the outcome to be determined on the basis of a majority of votes cast. That would allow the individual wishes of employees to be ascertained.
We believe that employees who are being organized by a trade union are entitled to know what bargaining unit they are being asked to join, and if you combine one or more bargaining units as part of the certification process, you are subjecting those individuals to a future bargaining structure without their consent if you don't have a vote. So we believe that before you combine units, before you throw employees into that type of situation, you must first allow them the opportunity to cast a secret ballot vote.
Ms Murdock: We will not be supporting this on the basis of the reasons I gave for not supporting the Liberal motion. I won't waste any time by repeating myself.
The Chair: Mr Offer.
Mr Offer: I think I'm allowed to speak to this amendment.
The Chair: Of course you are, as the rules say.
Ms Murdock: Absolutely. Take your time.
Mr Offer: We're going to be dealing with this issue, as we have earlier, but we're going to be dealing with it again. We're not even at the certification section, and I have a feeling that the secret ballot vote is again going to be an issue.
I just cannot see why the government would not allow workers to cast a vote, yes or no, in an application for consolidation. It seems to me strange, at a time when people across the country are able to cast a vote, Yes or No, in another matter, that the government doesn't want to give workers who will be affected the same right, the same opportunity.
I've struggled with this secret ballot majority vote since day one. I've tried to find out what the reluctance is to allow workers to make the decision. Even in the Labour Relations Act now, in a certification, if 45% have indicated a positive intent to be represented by a union--under 55%--I believe a representation vote can take place. I think we can view a representation vote, in a very narrow circumstance, as a secret ballot vote. If that is correct, and it is now found in the legislation--again, narrowly speaking--why then wouldn't the government seek to expand upon that?
I think they feel that the representation votes and the certification have worked in the past, and maybe that's why there haven't been any major changes to that area except to lower the trigger point from 45% to 40%. But there has been no effort on the part of the government to say that representation votes were difficult, that they should not be able to take place. If that's the case, why wouldn't we want to expand that at every available opportunity?
As I understand the motion--it is very similar to one which I moved earlier--it's not asking for a great deal. All it's saying is that the board shall combine the units only if a representation vote is taken and more than 50% of the ballots in each of the separate bargaining units are cast in favour of the trade union. To me it says, first, that there is to be a vote, and, second, that the vote is a precondition to the board considering other factors.
Time and again we have heard that this is a positive move; we have heard no arguments against it. Earlier on, I asked why not, and the parliamentary assistant provided some kind of response, but we've never heard from anyone of any difficulties that would be anticipated if such a right were given. We've not heard from the government or from anyone else that, "You can't do this because if you did this, this is what would happen." We've never heard any arguments in that area, so the question is, why the reluctance to give workers the right to choose? I certainly don't know.
I hope the government has second thoughts. I'll be the first to compliment the government if it allows a secret ballot vote on consolidation. I'll be the first to stand up and say: "That's a correct decision. That is a decision that respects workers' rights to choose, workers' rights to be informed and workers' rights to make their choice in a free, democratic way." If the government members reconsider, I will be the first to compliment and congratulate them in this area. The question is, will they reconsider? Will the parliamentary assistant reconsider?
Ms Murdock: I think we've made it fairly clear from the beginning that it is the one area where we just cannot agree with the position you've just put forward, mostly because the experience even on the representation votes, in terms of length of time to get a ballot counted, first of all, is lengthy, and often there is so much wrangling before the actual count is even done that it really is not democratic, as much as you would like. In an ideal world, Mr Offer, I believe firmly that it would probably work, but we unfortunately do not live in an ideal world.
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Mr Offer: So the government will not reconsider because it takes too long to count a ballot.
Ms Murdock: If it were counted like an election, on the day of, and counted and held to be true, but that is not the way it happens at the Ontario Labour Relations Board nor in any other jurisdiction where ballots are taken on secret ballot votes. The experience in other jurisdictions, as well as in our own, unfortunately, is that any kind of delay causes influence by either party; I don't care, it doesn't matter which. That cannot be tolerated until we reach an ideal situation whereby labour relations in this province are not met with so much animosity and adversity. Then we can look at that, but until that day we will not be supporting it, as you and I have discussed at other times, when I have told you that.
Mr Offer: I just find it incredible that it is impossible to count the votes on the same day and to create a structure to permit that, when on the 26th of October we're going to be doing that for the whole country. But the government can't find a way to count all the votes in one workplace for all of the employees on the same day.
Ms Murdock: That's right.
The Chair: Go ahead, Mr Offer. You're speechless. I can tell.
Mr Offer: I can't believe it. Can't the government members--
Ms Murdock: You had five years at it and I didn't see you trying it. I think you believed and you knew that it was not going to happen, that you couldn't do it, either.
Mr Offer: Can't the government members recognize that on the 26th of October there will be millions and millions of people casting a vote, Yes or No, on another question? All the votes will be counted. You will be able to turn on your TV and there will be somebody with a tote board who will be telling you the results as they come in.
To the government members, what is being said here by ministry officials is that votes in a company can't be counted and tabulated on the same day. It's easy in the country, but it's impossible, you are saying, for a company. Is there maybe another reason that we don't know? Please don't use that as the reason. There isn't anyone who is going to see that. We all live through elections. We've won elections; we've lost elections. It's interesting; all of the votes are tabulated and counted and made public within a couple of hours. You're telling me that the reason you are not allowing workers in this province to vote yes or no on a consolidation is because they can't be counted on the same day? Geez.
Ms Murdock: Well, I know you sound incredulous. However, you yourself know that the taxicab drivers--in fact, it was presented here and one of the presenters made the point that the taxicab drivers in Toronto alone have been sitting with their ballots in a ballot box for over a year.
Another one: Ontario Hydro, with 6,000 members; the employer argued that 3,000 of them were supervisors. So for two years they kept debating as to who was a supervisor, and whether or not the card that was signed was a supervisor, before they could even determine who would have the right to vote.
The problem we have here in this province is the adversarial nature of the relations that have existed since labour and management came together. Unfortunately, we have a situation which has been pretty evident, I think, with the displays that have been going on for the past 20 months, in terms of they don't trust one another. As I said, Mr Offer, if we lived in an ideal world, I would be one of the first to go forward with a secret ballot vote, where there was a trusting relationship. Until that day arrives, we are in this unenviable position where, no, we will not be agreeing with a secret ballot vote. And that's it; I'm not going to speak to it again.
Mr Offer: So the way you deal with those difficulties is not to deal with the difficulties, but rather to take away the right to vote, so hence there will be no further difficulties in the votes cast because we're going to take away the right to vote.
Don't you think that people would rather have you deal with the issues that cause the problem, instead of saying forget about the issues that cause the problem; what we'll deal with is taking away the right to vote so that we'll never even know the problem?
Ms Murdock: Psychologically, cognitive dissonance says that if you sign your name on a piece of paper you then have committed yourself to an action. You're sitting there saying that the people who sign those cards that determine whether or not they want to join a union don't know what they're doing, that their signature means nothing. I know we have moved on to an entirely different portion of this, but the reality is that's not the case. If they signed their name on a card, they are saying clearly and simply that they want to join a union and that there shouldn't have to be another entire structure set up.
Mr Offer: We've not even dealing with that section.
Ms Murdock: When we get there, if we may.
The Chair: Go ahead, Mr Ward.
Mr Brad Ward (Brantford): Mr Offer, I'd like to thank you for your thoughts on this issue. When you talk about the existing labour relations system that we have in Ontario, I agree that it is adversarial in nature and that what we're trying to do as a government is change that system into a more cooperative effort where real partnerships are developed. That's what updating the labour act is all about.
When you talk about the need for a secret ballot and the ability for individuals to vote during the certification process, the first concern I have is that currently there is a level of intimidation and coercion that occurs from employers who are opposed to the concept of having their employees collectively make the decision to have a trade union represent them. I haven't yet heard one argument on how we can eliminate that intimidation or coercion. There are different ways to intimidate and coerce employees; there are several ways, and I think we can agree on that.
When you look at the concept of trade unions and the ability of employees to have a trade union to represent them, what we're talking about is the freedom to associate collectively by a group of employees. It's as simple as that. It's not a vote where you're electing someone; it's a decision where, if the majority of employees in a workplace say they want to have a trade union represent them, they do so by signing a union card.
Now, in a certification process, if fewer than 55% of the employees in a workplace make the conscious decision to say, "We want a trade union to represent us," but it's more than 45%--and that will be changed with Bill 40--a secret ballot vote takes place. But if it's over 55%, we're saying that, as in the past, the ability of employees to have that freedom of association is duly recognized by having over 55% sign a union card saying, "We want to be associated."
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The problem I have with the secret ballot at this time is the coercion and intimidation that occurs. We've heard it in the presentations over the month of August throughout the province by various segments of the population. How can you eliminate the intimidation and coercion that goes on in the workplace when employees are so afraid of actions of their employer that they're afraid to talk about the concept of unionism during their lunch hour in the cafeteria of their workplace? We've heard that.
When you talk about the secret ballot as the be-all and end-all of the ability of individuals to choose, we on the government side think--and it's your right to disagree and I'm sure you will and I'm sure you'll continue to disagree with us right up until the bill is law, and then, come election in 1995, you can disagree as well on the election campaign. But we think that freedom of association should be guaranteed if, collectively, 55% of the employees in a workplace make the conscious decision to say, "We want to have a trade union representative."
Mrs Witmer: We're not addressing the amendment in question. We're on a totally different issue.
The Chair: I think you're right, Ms Witmer. Please speak to the amendment.
Mr Ward: I'm trying to clarify my feelings on that particular issue, and I think I have.
Mr Hayes: You did a good job, too.
Mr Offer: My comments were all directed to the consolidation of existing units and giving workers the right to freely choose yes or no. Mr Ward's comments were directed to workers' rights on a certification drive. We will be discussing that and how we can allow workers to make a choice in that area, free from intimidation and coercion from whatever source. But the amendment that is before the committee deals with giving the right to workers in existing units the freedom to choose.
The Chair: There being no further debate, all those in favour of this motion, please indicate.
Mr Offer: Recorded vote.
The Chair: Please keep your hand raised until your name is called. There will be a recorded vote. All those in favour? All those opposed?
AyesB2
Offer, Witmer.
NaysB6
Duignan, Hayes, Lessard, Murdock (Sudbury), Ward (Brantford), Wood.
The Chair: Motion is defeated.
I want to remind people that there were eight days, according to the motion passed in the House, set aside for discussion of the bill and its amendments and that at 3 o'clock on the final day, all moving of motions and debate will end and matters will be deemed to have been moved and voted upon.
Today is the fifth day of that eight-day period. It's been pointed out to me by committee members that the eighth day really has a modest time frame for discussion of the bill or of amendments, motions bringing amendments, be they by the government or anybody else. There are clearly some of these motions which may, especially in the mover's mind, have more significance than others. Some may be more to the heart or the viscera of the act.
People might consider discussing among themselves a process whereby some, or however many, of the motions moving amendments might be brought forward out of sequence so that matters that are of particular importance to particular people can be addressed and a record can be made or debate can be engaged in. Obviously unanimous consent would permit that to happen and would be entirely in order.
Ms Witmer moves that subsection 7(4) of the act, as set out in section 8 of the bill, be struck out and the following substituted:
"Employees at different locations
"(4) The board shall not combine bargaining units involving employees at two or more separate places of operations if the board considers that a combined bargaining unit is inappropriate because,
"(a) it will interfere unduly with the employer's ability to continue significantly different methods of operation or production at each of the places; or
"(b) it will interfere with the employer's ability to continue to operate the separate places of operation as viable independent businesses."
Ms Murdock: I just wondered if there was a particular reason why the government motion wasn't read first, because my understanding was that it would be--on the same motion?
The Chair: Because the Chair has relied--
Ms Murdock: Has determined otherwise?
The Chair: No. The Chair has determined otherwise relying consistently on the wise and capable advice--
Ms Murdock: Of the clerk.
The Chair: --of the clerk.
Ms Murdock: Whose wisdom and capabilities I do not doubt--
The Chair: I appreciate your comments and your concern but I think the logic of this will become more and more apparent. It's a hope, so I'm an optimist.
Ms Murdock: Okay, that's fine.
Mrs Witmer: I thought we were going to deal with the government motion first. However, if we're not going to do it, the amendment we've brought forward here considers two factors relating to an employer's ability to operate before it combines bargaining units involving employees at two or more geographically separate places of operation.
This amendment is identical to the government's amendment, with one exception. The government's amendment, which we're going to be discussing, would apply only to manufacturing enterprises. This amendment that we are introducing would apply to all types of businesses. The distinction is particularly important because consolidation of bargaining units will have an impact on the sectors of our economy where until now unions have had difficulty penetrating. These include such areas as the retail, financial, insurance and other areas of the service sector where you have very small establishments predominating.
I would have to tell you that, although the government is going to be speaking exclusively to the manufacturing sector, if they're going to provide protection only for the manufacturing sector, it's not going to give much comfort to the other sectors of the economy that are going to be the most affected by section 8, which is the combination of the bargaining units.
It's becoming very clear to me that the board's power of consolidation contained in Bill 40 is drafted to give the advantage to unions. Now, if we take a look at this section and the amendment which I'm proposing, it becomes abundantly clear that not only is Bill 40 intended to give more power to unions, it's also intended to increase the number of unionized workplaces in the province. It's intended to have a great impact in areas where unions are presently underrepresented, such as the retail, financial and service sectors.
I feel very strongly that we need to take into consideration the amendment which I have just proposed. We need to give protection to all sectors of our economy. I would suggest the expansion that I have proposed.
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Mr Offer: I think this is a type of amendment which, again, tries to reinsert a certain balance. Again, it's an amendment that would not have been needed if the preamble to the legislation allowed for balance. This is an amendment which is necessary because the government has charted the board on another course.
It is my understanding that the next motion is the government's amendment. I really want to deal with that amendment before anything. I know we have to deal with the one on the floor but I think, without question, this amendment is broader in its application than the government's amendment. There are some very curious differences in the government's amendment with the existing legislation that I will want to deal with and get some responses to.
The Chair: There being no further debate, all those in favour of Ms Witmer's motion, please indicate. Those opposed? The motion is defeated.
Ms Murdock moves that subsection 7(4) of the act, as set out in section 8 of the bill, be struck out and the following substituted:
"Manufacturing operations
"(4) In the case of manufacturing operations, the board shall not combine bargaining units of employees at two or more geographically separate places of operations if the board considers that a combined bargaining unit is inappropriate because the employer has established that combining the units will interfere unduly with,
"(a) the employer's ability to continue significantly different methods of operation or production at each of those places; or
"(b) the employer's ability to continue to operate those places as viable and independent businesses."
Ms Murdock: Under Bill 40, in considering an application for consolidation, the board must apply a two-stage test. The first stage, which is found in subsection 7(3), requires the board to consider the three listed factors when judging whether consolidation is appropriate.
The second stage, in subsection 7(4), which we're looking at now, prohibits the board from consolidating bargaining units in certain circumstances. This second stage was designed to respond to the concerns raised by the manufacturers, as Ms Witmer has indicated, who argue that consolidation could affect the organizational and/or economic viability of two distinctly different plants.
After introduction of the bill, manufacturers continued to express concerns in spite of the language that was in 7(4), and therefore we responded, in this amendment, directly to the suggestions of the major manufacturers.
It would change the second-stage test in two ways. It adds the concept of viability, which was mentioned a number of times, of independent businesses to the factors which would lead the board to decline an application for consolidation, which is 7(4)(b), and it also clearly provides that a second-stage test applies in the case of manufacturing operations as noted by Mrs Witmer.
Note that the result of the second stage, the prohibition in 7(4), would no longer apply to non-manufacturing cases. One of the points Mrs Witmer made in regard to her motion is that while it is true other sectors would not be covered under this, they often had great difficulty in organizing. So consolidation of bargaining units would really be the problem here. This amendment came directly as a result of the manufacturers' request.
Mr Offer: I'd like to start off by asking a few questions. On the first line of the amendment, the phrase "manufacturing operations" appears. I'm wondering if you might be able to help us as to what would qualify and fall within the definition of a "manufacturing operation."
Ms Murdock: What kinds of things they would make.
Mr Offer: No. I don't want specifics. I'd like to get some idea from the ministry as to what is the definition of a "manufacturing operation," some of the criteria that make up a manufacturing operation, so that those looking at the section might, with some degree of particularity, find out whether they're in or out.
Mr Jerry Kovacs: In the drafting of the motion to amend, the ministry considered the notion of manufacturing and considered a variety of definitions of the term "manufacturing" and of the concept of "manufacturing sector."
As I'm sure any part of the ministry which is involved in gathering information in the various sectors of the Ontario economy can tell you, it's difficult and it's a difficult test to actually clearly define what the manufacturing sector of this province might be. It's for that reason that a constrictive definition of the term "manufacturing" doesn't appear in the act. The labour board, of course, will be charged with determining what operations fall within or without the manufacturing sector.
You'll note that the Bill 40 version of subsection (4) refers to the ability of employers to continue significantly different methods of operation or production at each of the places. That language, in and of itself, in some ways describes manufacturing operations. But it was clear from interested parties, during consultations and public hearings and this committee's work, that this phrase didn't clearly enough describe the manufacturing sector. The phrase "manufacturing," therefore, was directly added to the section to meet those concerns.
Mr Offer: My concern is that when one uses the phrase "manufacturing operation," I view that as being restrictive. There are numbers of people who might look at that and think they're in and find they're not. In the section which you've taken out, it speaks about methods of operation or production. I think a lot of people will have a clearer sense, in their own operation, what "operation" or "production" means because it's specific to themselves.
Mr Kovacs: Nothing was taken out of the subsection. There were additions made. In fact, the phrase I read to you, "operation or production," remains as part of the subsection but becomes part of clause (a). So the language is maintained. As I say, it was in direct response to concerns that this phraseology didn't clearly enough capture the manufacturing sector that the word "manufacturing" was added.
Mrs Witmer: It's the same, but there's an addition.
Mr Offer: I understand that part, but you've overlaid "operation or production" with "manufacturing operation," so my concern is still there. There wasn't that overlay before. It dealt with operation, it dealt with production; it didn't have the precondition of falling in something called a "manufacturing" thing.
Mr Tony Dean: The concerns that were raised with respect to this section by manufacturers mostly came from large manufacturers, and our discussions with them indicate that none of the people who raised concerns with these sections have any doubt in their minds that they would be covered quite safely under a definition that uses the phrase "manufacturing operation."
Ms Murdock: In any case, if there is a doubt by the employer, then all that employer has to do is apply to the board to see whether or not it is, as per the board's definition. It is the large manufacturing concerns rather than the smaller ones, which may not have multiple operational sites which could be defined as doing different work. Their concern, under this section, is not nearly the concern as it is for the large operations, and that's what both Mr Dean and Mr Kovacs tried to explain.
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Mrs Witmer: My concern with this section is that I'd like to see a definition of "manufacturing operation," but what in essence the government has done by introducing this amendment is narrow down the application of this subsection to only manufacturers. The original subsection 7(4) applied to all employers, not just the manufacturing sector. As a result, it's still going to make it extremely difficult for others in this province.
People in the retail sector are very concerned about this particular section. I know they spoke to the minister's staff as recently as Friday of last week, yet you're not being responsive to their concerns; in fact, you've made it more difficult for them by narrowing down the application of this subsection.
I'm really concerned because again, as far as I'm concerned, it shifts the balance towards unions and doesn't consider what's in the best interests of people in this province.
Mr Offer: I have a few other points before we get into a discussion of the section itself. One is important to get on the record; it speaks about geographically separate places of operations. I take it, and I think we have to get a confirmation, that "geographically separate" can be as far as the province is.
Ms Murdock: The labour act has jurisdiction only in Ontario.
Mr Offer: I want to be clear that "geographically separate" is not viewed as something that happens within a municipality or a regional municipality but in fact applies throughout the province. You can have two manufacturing operations, one in Kapuskasing and the other in Windsor, and a third, for instance, in Cornwall and they could potentially all fall within this section.
Ms Murdock: Yes, that's correct.
Mr Offer: The next question I have is just a point of clarification. There has been a slight shift in this; that is, an onus has been placed on the employer where one did not exist before. It says if the board "considers that a combined bargaining unit is inappropriate" and then it goes on to say "because the employer has established." In the current legislation, it is a board consideration, so not only is there still the board consideration, but you've folded on top an onus on an employer to make the argument that something shouldn't happen. I'd like to get a statement from the parliamentary assistant about why this onus on an employer to make an argument against something happening has been created by amendment, consultation of which we have not heard one word.
Ms Murdock: "Consultation of which"--could you say that latter part over again?
Mr Offer: This is a very substantial change. You have now inserted, after consultation, when we are not going to hear any reflection on this, an onus on employers to argue in the negative. Holy smokes.
Ms Murdock: If an employer has, using your example, three different operations in the province where the work is seen to be similar--mind you, I can't imagine nickel mining in Windsor or Cornwall, but using something I'm familiar with, if that was the operation--to a member at the board or even to members within the union it could conceivably be the same operation. You're smelting nickel, whatever, yet the employer may have cause to believe the operations are different. The onus then falls on the employer to show that to the board for wanting the distinction to be made.
Then again, you could be dealing with a company that has three different operations but they produce three completely different products. Again, the employer would have to show that there is a reason not to consolidate.
Mrs Witmer: It's obvious that this amendment has been introduced in an attempt to satisfy the union and not the manufacturing sector, because it makes it much more difficult now for the employer. He or she must produce the proof.
The other thing that's been added here is the employer's ability to continue to operate those places as viable and independent businesses, and I'm very concerned as to what the government means. What's the definition of "viable"?
Ms Murdock: Okay, again we're into this. The applicant is going to be the employer; it's not going to be the union. The applicant is going to be the employer, and therefore the applicant is going to be giving the grounds for which he or she wants the distinction to be made.
Mrs Witmer: But what grounds are you going to accept as being viable? What is the definition of "viable"?
Ms Murdock: Certainly I would think the company's definition of "viable" would be that it would be profitable, determined on the basis of what its shareholders are accepting as viable.
The Chair: You're suggesting, though, that there are going to be as many definitions of "viable" as there are applicants before the board trying to advance their own causes, subject to what the board might determine indeed constitutes a reasonable definition of viable.
Ms Murdock: Which basically the board does now, yes.
The Chair: Is that what you're saying?
Ms Murdock: Most of the decisions of the board, as you know, Mr Chair, are made on the basis of the individual cases that come before it.
The Chair: And the arguments that are presented.
Ms Murdock: And the arguments that are presented.
The Chair: And whatever prior decisions were made by the board, although it's not bound by--
Ms Murdock: That's true.
Mrs Witmer: I'm still very concerned about the change in emphasis that proof has to be shown by the employer. Also, I'm very concerned about the narrowing down of this application to the manufacturing sector. It offers absolutely no protection to the retail, service, or financial sectors from combining bargaining units involving employees at two or more geographically separate locations. As I said before, it becomes very obvious that the intent of this combination of bargaining units really is to facilitate and increase unionization in the province. I'm very concerned that there's no protection for those other people whatsoever now with this amendment.
Mr Offer: I think the Chair earlier on said that the question of "viable" is really not limited, in fact; it's dependent upon the issues that are before the board, and that I think is correct. But my concern with the section is the process it's creating, the framework. I'm not talking about the decisions that will take place from the board; I'm talking about the process that has been created by this section.
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It is clear that under the old section--about which, by the way, I had some concerns; let me put that on the record--yes, the employer would make the application, but I read section 4 to mean that when the employer in fact contested the consolidation, the board would then ask the employer and the applicant certain questions and then make its decision based on the responses it received.
When you have the onus on the employer, the board need only ask the questions of the employer, and that is a tilt. It is a shift. It is an imbalance. The board must, at the very least, ask questions of both groups in order to satisfy itself in the area of the criteria under the legislation. But when legislation says, "because the employer has established that combining the units will interfere unduly," and it goes on, it means the employer must establish. If the employer must establish, it is putting on the employer the onus to establish, and there is no countervailing responsibility on the other side.
We've already discussed that the employees have no say in this matter. The other side is the applicant who has made the application for consolidation. Under this section, the employer is left with, in some instances, the responsibility of proving to the board that a consolidation will affect its ability to continue to operate its places as viable and independent businesses. That's by legislation.
Ms Murdock: This section only.
Mr Offer: That's correct.
Ms Murdock: Because it is a prohibition as far as the employer is concerned. The employer is the applicant under subsection 7(4); it's not the applicant for the consolidation.
Mr Offer: However you wish to decide who the applicant is, here's what the situation is going to be: You're going to have two bargaining units, same employer, separate location, application for consolidation, contested by the employer, board makes decision, but now the board need only hear the argument from the employer.
Ministry officials are shaking their heads, but I almost see this as a presumption that you've created.
Ms Murdock: But you see, you're forgetting the deeming aspect of subsection 7(3), because the board shall consider the consolidation.
Mr Offer: Wait, wait. Are you talking about factors to consider?
Ms Murdock: Yes.
Mr Offer: Okay. It says that the board may take into account such factors as it considers appropriate and shall consider the extent to which combining the bargaining units would facilitate viable and stable collective bargaining, reduce fragmentation, cause serious labour relations.
We may have discussions over those criteria, but there is no onus placed on one or the other, on one above the other to make that case. What we are doing with subsection (4) is creating a presumption of consolidation unless and until the employer rebuts that presumption. That's not fair.
Mr Dean: Could I respond to this?
Mr Offer: Sure. Help me out on this.
Mr Dean: Let me say that if there was no amendment to subsection (4), Mr Offer--that is, subsection (4) remained as in the printed version of Bill 40--the board would be unlikely to act on subsection (4) in the absence of submissions from either party. Given that this subsection (4), as currently written, was intended to be an exception to consolidation for the sake of employers, responding to employers' submissions, it's likely that even as unamended, subsection (4) would be driven, would be invoked, by submissions and an application by the employer.
Moving from that to the amended subsection, I'd have to say that again, a further attempt has been made to give employers in the manufacturing sector pretty much exactly the kinds of exception wording that they're asking for. Since that exception will still be driven by employer applications, the amendment would place an onus on the applicant employer to prove that the exception should be accepted by the board, so there is not a departure from existing subsection (4) into the amended subsection (4). It would still be applicant-driven, and it's our assumption that the applicant would in all cases still be the employer.
Mr Kovacs: If I might add, Mr Offer, to Mr Dean's comments, I am concerned about your suggestions that there may be a case in which the labour board would turn only to the employer for submissions in an application for consolidation. I just want to reiterate what I think Mr Dean tried to state to you, that in an application for consolidation where the trade union is the applicant, the board will be required to consider at least the factors set out in subsection (3), and the applicant will be required to make submissions in respect of those.
It will likely be the employer, in response, who will attempt to rely on subsection (4) provisions, and under the version presented in the motion to amend, it will be the employer who will be required to establish the factors set out in clauses (a) and (b). Those are employer factors: "the employer's ability to continue significantly different methods of operation or production" and, secondly, "the employer's ability to continue to operate those places as viable and independent businesses." Not surprisingly, those are factors that will be in the hands of the employer to establish. It's not intended to be a reversal of onus in this subsection.
Mr Offer: I know we don't have a great deal of time with this bill. I just have a concern. I appreciate the response, but I can't help but feel that where a bill says "because the employer has established," it puts something on the employer to establish. Where the bill does not have that now--but the amendment does have this--employers will read this and say, "Now we have to establish something." Before it was the board, and it could be--
Ms Murdock: No, it wouldn't, and the thing is, the employer would not be applying under subsection (4) unless he had established something in order to make it different in order to apply for that prohibition in that subsection. If you didn't have those sections in place or those different geographic locations, you wouldn't be applying under subsection (4).
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Mr Offer: That's absolutely correct.
Ms Murdock: Right.
Mr Offer: Under section 7, subsection 7(1) says that the board may combine two or more bargaining units if there is the same representation by the same trade union.
Ms Murdock: Right.
Mr Offer: Subsection 7(2) says that on an application, together with an application for certification, the board may--it doesn't have to, but it may--do the following.
Ms Murdock: Absolutely.
Mr Offer: It may combine, and it's different forms of combination.
Ms Murdock: Right.
Mr Offer: Again the board, under subsection (3), has the ability to take into account certain factors in determining whether an application for consolidation is to take place.
Ms Murdock: Right.
Mr Offer: So it has all of that. There is no argument. There has been no decision to consolidate.
Then we get to subsection (4), which says the employer must establish.
Ms Murdock: No. You only get to (4) if the employer applies under that subsection. Otherwise, if the employer does not have those operations in place, he or she will never apply under that subsection.
Mr Offer: Subsection (4), though, applies when there is an operation that is geographically distinct.
Ms Murdock: Yes.
Mr Offer: So you have that situation. That's what (4) is all about. Subsection (4) kicks in when there is an employer who has two branch plants, for instance.
Ms Murdock: Correction there. That's not geographically distinct, though. They are geographically separate places which have different methods of operation.
Mr Offer: We'll leave it at geographically separate, and that's right. So they're in two different places. That's when (4) kicks in.
Ms Murdock: If the employer applies for the prohibition.
Mr Offer: I just want to be clear on this, because the way I read this section, there's an application for consolidation. There is the same bargaining unit, so we pass that precondition. The employer has geographically separate places of operation, and the board still has not made a decision to consolidate yet. Correct? So the question I have goes back to the first submission--that is, you are foisting the onus on the employer.
Ms Murdock: Subsection (4) would never come into play unless the employer applied through subsection (4) for the prohibition. You could sit there with an employer who had two geographically distinct operations at which each local union would ask for consolidation. If the employer had no objection, they'd only go to subsection (3). It is only when the employer says, "I don't think those two locals should join together, because they are operating distinct, different operations," and therefore subsection (4) then kicks in.
Mr Offer: I have one last question on this. You are saying this amendment is in response to concerns raised by whom? By the manufacturing organizations?
Ms Murdock: Yes.
Mr Offer: So you're saying the manufacturing operations, the people who make--
Ms Murdock: This request.
Mr Offer: They have requested the wording of this section?
Ms Murdock: Yes.
Mr Offer: I just wanted to ask that question. I'm not taking issue with that. All I can do, from my point of view, is express surprise that any manufacturing operation would feel comforted with this section. I will be taking it to many of those groups, of which there are umbrella organizations, to find out whether they take comfort with this onus.
Ms Murdock: Okay. It is at their request, Mr Offer, because they did not take any comfort with significantly different methods of operation or production.
Mr Offer: That I know.
Mr Ward: Ask them which they prefer, the old one or the new one.
Mr Offer: That's not what I asked.
Mr Ward: See what they say.
Mr Offer: Oh, I know they're not happy with the existing.
Ms Murdock: They're not happy with the entire Bill 40.
Mr Offer: I was talking about this one particular section.
Ms Murdock: Oh, I know.
Mr Ward: But if they had a choice, which would they pick?
Ms Murdock: It's pretty evident.
Mr Offer: Oh, sure.
The Chair: Mr Murdoch, you are entitled to speak to this matter, notwithstanding that you're not a member of the committee.
Ms Murdock: Mr Murdoch with an "h."
Mr Bill Murdoch (Grey): Did we get to number (3)? I just wonder if we got to number (3). We were at (2) and then we went to (4). Did we get to (3)?
Mr Wood: This is Bill 40, eh?
Mr Murdoch: I know that; I realize that.
The Chair: Mr Murdoch is well aware of the legislation before this committee. He's a hardworking and attentive member of this assembly.
Mr Murdoch: And I thought we were on television, because I saw you all sitting here and now I can't find the camera, so I don't know what's going on.
The Chair: I can only speculate, Mr Murdoch.
Mrs Witmer: Call the question.
The Chair: All those in favour of Ms Murdock's motion, please indicate. Opposed? Motion carries.
Now Ms Witmer moves that subsection 7(5) of the act, as set out in section 8 of the bill, be struck out and the following substituted:
"Amendments
"(5) In combining bargaining units, the board may amend any certificate or may amend any provision of a collective agreement if the existing collective agreement would be inoperable or uninterpretable without the amendment."
Go ahead, Ms Witmer.
Mrs Witmer: As you can see, we're very opposed to the combining of bargaining units, and this one would restrict the board to making only those changes necessary to allow for continued operation of the newly combined bargaining units, without taking away from the parties their fundamental right and their responsibility to bargain.
We feel that this amendment would preserve the collective bargaining process, which we feel is very important. Under Bill 40 as proposed, consolidation will allow a newly organized group of employees to bypass totally collective bargaining and obtain immediately the benefits obtained by other employees through years of collective bargaining.
We're also concerned that this provision could require the board to merge seniority lists, order layoffs, create wage rates and job classifications. We have introduced this specific amendment then, which supports our contention that the best interests of all parties are met by effective collective bargaining, and I would hope that the government would support this amendment.
Ms Murdock: I'll speak, Mr Chair.
The Chair: You don't have to if you don't want to.
Ms Murdock: I realize I don't have to, but I would not want Mrs Witmer to think that we don't have a position on this, or to at least explain why we are not supporting this motion.
Basically we consider this amendment to be unnecessary because the proposed subsection 7(5) of Bill 40 permits the board to amend existing collective agreements or to make orders as it considers appropriate in the circumstances.
Now, you use the word "inoperability," and that can be expected to be considered by the board, but again, having said that, we think the board should have sufficient flexibility to apply its expertise that it has developed. The other thing is that having changed the purpose clause so that it has removed the fears of the terminology of "improved terms and conditions of employment," this, in conjunction with our subsection 7(5), should alleviate this and make your amendment unnecessary.
Mrs Witmer: That doesn't give me much comfort, but obviously the government's not going to support this amendment, which we did believe was in the best interests of all concerned and would certainly enhance the process of collective bargaining.
The Chair: Do you want an opportunity to try to persuade some of the committee members?
Mrs Witmer: Unfortunately we have about 70 more amendments which I'd like to deal with.
The Chair: There being no further discussion, all those in favour of Ms Witmer's motion? Opposed? The motion is defeated.
Once again, I don't know what committee members have to say about this, but with the prospect of there being only a very short period of time and, as Ms Witmer indicates, a whole lot of motions from all three caucuses, perhaps there can be some unanimous agreement as to motions being dealt with out of order.
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Mr Offer: Just on that point, I'm sure the Chair would want to be informed, if there is some agreement, just prior to tomorrow's meeting.
Ms Murdock: Give us some time. We're not going to lose our time today to discuss that.
The Chair: I want to indicate that I will be dealing with an important matter tomorrow. I won't be here, so the Vice-Chair will be here chairing. But it's clear that this committee agrees that, on unanimous consent, there can be motions taken out of order. That's unanimously agreed on.
Ms Murdock: You can do anything you want on unanimous consent.
The Chair: I just want to make that clear so the Chair tomorrow doesn't feel he or she is prevented from doing that.
Ms Witmer moves that section 7 of the act, as set out in section 8 of the bill, be amended by adding the following subsections:
"No strike or lockout
"(5.1) No employee affected by a decision of the board under this section shall strike and no employer shall lock out such an employee because of a difference relating to the decision of the board.
"Binding arbitration
"(5.2) A difference relating to a decision of the board under this section shall be settled by arbitration and, for that purpose, section 41 of the act applies with necessary modifications."
Mrs Witmer: The intention of this particular amendment is to provide that any bargaining issue pertaining to the board's decision to combine could not be the cause of a strike or lockout and, failing agreement of the parties to resolve any and all matters related to the board's decision, would be submitted to a third-party arbitrator for final and binding settlement, as is the case, as we know, in first-contract agreements.
The source of concern and the input we have received on this amendment has again come from the Canadian Paperworkers Union. On August 13, 1992, the Canadian Paperworkers Union requested this amendment to ensure that a board's decision relating to combining bargaining units could not result in a strike or a lockout. They made the point that each bargaining unit has its own collective agreement, has its own defined terms and conditions, such as seniority rights, job posting clauses, layoff clauses etc. Nowhere does this section in its amended form deal with the problems of conflicting contractual language.
It may be okay to say that that's what we have the arbitrators for, but whose language is going to take priority over the other's, since both of them are going to have equal status? They're very concerned that areas of contention could result in employees being locked out or forced on strike by one or the other of the newly combined units. It's in response to the concern of the Canadian Paperworkers Union that we have introduced this particular amendment.
Mr Ward: The voice of labour.
Mrs Witmer: We listen to everybody.
Mr Offer: On this, and especially with respect to the presentation made by the Canadian Paperworkers Union, I think we all recognize we heard very many good presentations. One of my earlier amendments was also based on the submission made by the Paperworkers union. They made an important presentation, as all did. They shared with us their perception of the legislation and how it would affect them, and I hope that the government is responsive to some of the suggestions made by those who came before the committee.
I must say that I have some growing concerns as to whether the government was listening during the public hearing process. I think that's becoming, in my mind, more evident as the days progress. There were important presentations made by a variety of people, groups and associations, the Paperworkers union and others, business community representatives and others. They came before the committee speaking about a piece of legislation which they had a concern with that should be changed. I know that I've brought forward, my party has brought forward amendments reflective of those presentations. The Conservative member has indicated that this is another amendment.
You know, people are watching the proceedings of committees--not this one over the television, but they still read Hansard and things like this. They want to see whether their positions have been addressed, dealt with and reflected in the legislation. I have a concern as we go on that many of the groups that brought forward some crucial issues are not being reflected in the legislation.
Ms Murdock: Just very briefly, if my memory serves me correctly, it wasn't the Paperworkers union per se, it was the former business rep of the Paperworkers union who made a separate presentation, who offered this idea.
Mr Offer: That evening.
The Chair: He was clearly speaking on behalf of that particular local of the Canadian Paperworkers Union.
Ms Murdock: Yes.
Mr Ward: A consultant. Wasn't he here as a consultant?
Ms Murdock: He was a consultant.
The Chair: Yes, that's what I say. This gentleman would argue that he was speaking on behalf of that particular local and he clearly wasn't speaking on behalf of the Canadian Paperworkers Union, national office or provincial office, but very much on behalf of that local.
Ms Murdock: That's right, yes, and I think that clarification needs to be made.
But this motion that Ms Witmer has put forward requires that all disputes arising out of a decision of the board on consolidation would be settled by binding arbitration, whereas strikes and walkouts arising from such disputes would not be permitted. The act and the board jurisprudence do not permit bargaining to impasse on disputes about the expansion or contraction of any of their bargaining rights, as I'm sure you know. The board has the authority to define the appropriate bargaining units in any disputes where the board decisions may be referred back to the board for reconsideration. So I think and, with respect, say, that this motion is unnecessary and inappropriate.
The Chair: Any further discussion? None.
All those in favour of Ms Witmer's motion, please indicate. Those opposed? Motion is defeated.
Ms Witmer moves that section 8 of the bill be amended by adding the following as a section of the act:
"Notice of organizing drive
"7.1(1) A trade union that wishes to attempt to persuade employees of an employer to join a trade union shall promptly give written notice to the board of its intentions before beginning to do so.
"Information
"(2) Upon receiving the notice, the board shall provide to all employees that may be affected by the activities of the trade union information describing the rights and obligations of the employer, the trade union and the employees under this act.
"Same
"(3) The information to be provided by the board shall include the following:
"1. Details of the number of employees whose consent is required for certification.
"2. A description of the circumstances in which a representation vote is not required.
"3. Details of the amount of the dues that employees will be required to pay to the trade union.
"4. A description of the entitlement of the employees to continue to work during a strike or a lockout.
"5. Details of the process for decertifying the trade union.
"6. A copy of the constitution of the trade union."
Ms Witmer, I trust you want to speak to that, but in view of the fact that it's one minute to 6, are you suggesting that we adjourn?
Mrs Witmer: I would suggest that we adjourn.
The Chair: Thank you. We are adjourned until 3:30 tomorrow or the end of routine proceedings. Thank you.
The committee adjourned at 1759.