CONTENTS
Wednesday 14 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: Hayes, Pat
(Essex-Kent ND) for Mr Klopp
Vice-Chair / Vice-Président: Huget, Bob (Sarnia ND)
Conway, Sean G. (Renfrew North/-Nord L)
Dadamo, George (Windsor-Sandwich ND)
Jordan, Leo (Lanark-Renfrew PC)
*Klopp, Paul (Huron ND)
McGuinty, Dalton (Ottawa South/-Sud L)
*Murdock, Sharon (Sudbury ND)
*Offer, Steven (Mississauga North/-Nord L)
Turnbull, David (York Mills PC)
Waters, Daniel (Muskoka-Georgian Bay/Muskoka-Baie-Georgianne ND)
*Wood, Len (Cochrane North/-Nord ND)
Substitutions / Membres remplaçants:
*Hayes, Pat (Essex-Kent ND) for Mr Kormos
*Hope, Randy R. (Chatham-Kent ND) for Mr Dadamo
*Ward, Brad (Brantford ND) for Mr Waters
*Witmer, Elizabeth (Waterloo North/-Nord PC) for Mr Jordan
*In attendance / présents
Also taking part / Autres participants et participantes:
Dean, Tony, administrator, office of collective bargaining information,
Ministry of Labour
Clerk pro tem / Greffier par intérim: Decker, Todd
Staff / Personnel:
Fensom, Avrum, research officer, Legislative Research Service
Spakowski, Mark, legislative counsel
The committee met at 1531 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 Vice-Chair (Mr Bob Huget): It's 3:31. We will resume the debate on Ms Witmer's motion.
Mrs Elizabeth Witmer (Waterloo North): Before I begin my discussion of this amendment, I just want to indicate that as each day in this committee progresses, I become more aware of the fact that the consultation process surrounding Bill 40 was an absolute sham.
Because of the time restrictions on this committee and also on the days spent in the House, there is no opportunity to consider all of the presentations that were made this summer to this committee when it sat in Toronto and travelled across the province.
I think to have demanded of people that they put time and effort into making presentations, which we now obviously are not ever going to have a chance to debate, was wrong and very misleading.
We're now at section 8. We'll be here today, we'll be here tomorrow and we have half an hour on Monday. I have over 80 amendments which have reflected the views of people who made presentations and we will never have an opportunity to discuss those amendments in this committee or in the House.
I have to tell you I am totally disillusioned. I believe the government never intended for there to be a dialogue and real consultation on this issue.
Mr Steven Offer (Mississauga North): Can I speak to that?
The Vice-Chair: We're discussing Ms Witmer's motion on section 8, and I was about to remind Ms Witmer to address the motion.
Mrs Witmer: The amendment that I have introduced here adds a new requirement to the act. A union would be required to provide a notice of organizing to the board and the board required to distribute information packages to employees setting out the nature and consequence of their decision.
This would include the number required for certification; the timing and opportunities for decertification; the fact that if more than 55% of the employees sign membership cards, there will be no representation vote; the effects on their ability to work during a strike or lockout; the duties owed by the trade union; the amount of union dues they will be required to pay, and requiring the provision of the union's constitution.
Although the cabinet submission stated that the certification process must be a more open one, by prohibiting petitions and restricting the right to oppose union certification, this goal is certainly not achieved within Bill 40. If the government remains committed to prohibiting petitions, some degree of openness and informed decision-making can only be achieved if unions are required to provide a notice of organizing and the board distributes information packages to employees setting out the nature and the consequences of their decision.
Unfortunately, we have here in Bill 40 a bill which gives substantial new rights to unions, without requiring any new responsibilities. There is absolutely no onus on a union to provide employees with copies of recent collective agreements negotiated by the applicant union, the union constitution and discipline procedures or information on the amount of union dues payable so that employees can make an informed decision. Some employees are even told that joining a union will not cost them anything.
Certification under Bill 40 is going to be based solely on the number of cards submitted. There's going to be no minimum payment and there's going to be no right to revoke your signature after the application. There's no right whatsoever to change your mind. There's no way of knowing whether people knew what they signed and there's absolutely no way of knowing what they were told or what promises or inducements were made to them.
Therefore, we believe very strongly that in the best interests of both employees and employers, there is a need for an open, fair discussion. There is a need for a decision-making process that totally eliminates the undue influence on an individual's decisions by any outside party, whether it's another employee, the employer or the union. The best mechanism that democracies have designed for this is some sort of open, well-informed campaign which would end with a secret ballot vote.
This amendment that I have proposed, which encourages more openness and informed decision-making, is based on the concern we have always had that Bill 40 further eliminates and infringes on the individual's rights and freedoms. I'd like to take a look at the present impact on individual rights.
The Labour Relations Act, as you know, already grants significant opportunities and rights to trade unions. Once unions gain this exclusive bargaining agent status, there is a fundamental change in the employment relationship which employees need to be aware of, because now all dealings between the employer and the employee must be conducted through the union even if the employee did not personally choose union representation.
Individual autonomy has been totally surrendered to collective action. Once employees are forced or choose to join a trade union, they can be required by the union to pay dues which are deducted from their paycheques. The unions also have the means of expanding their control over the workplace by bargaining for a requirement that all employees in the union be union members and that only union members be hired. The dues that employees pay the union can also be expended on political causes which the individual employee may or may not support.
The union has a responsibility to share with employees who are considering unionization all the information regarding the nature and the consequence of their decision, because the decision is far-reaching. It does change the relationship of employment. Unionization also means that individual employees may find themselves embroiled in a strike or lockout they do not support. They need to be informed of that possibility.
Bill 40 gives unions even more power than they had before, because they now have the right to prevent individuals from working during a strike regardless of the degree of support or lack of support of the union position without giving unions any more responsibility or accountability to their members.
Bill 40 and the new requirements for certification do absolutely nothing to enrich the individual's participation in the democratic process, since there's no requirement to have a vote, there's no requirement at the present time to make sure that individuals are aware of the nature and the consequence of their decision, that they be well informed. It appears there's further encroachment at the present time, with the new legislation, on an individual's freedom.
I believe and our party believes that legislation that enhances trade union power must also take into account the increased potential for abuse and it must be offset by accountability to those individuals it represents. Thus we have added this amendment here which requires that information be distributed regarding the nature and consequence of the decision to join a union in order to ensure some accountability and to make sure that all employees are fully informed of what it means to join a union.
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The Vice-Chair: Thank you, Ms Witmer. Further discussion?
Mr Offer: I know that today we're going to be dealing with this aspect of the bill and I think it's probably correct to say that this is an issue which was touched upon more often than any other aspect of the bill during our public hearings over the summer.
It's not to say that the other areas of the bill were not dealt with, because they were, but I think that this area was in a variety of ways dealt with by more people. It was almost a common theme in the presentations that at some point in a presentation the issue of organizing was going to be addressed. So this is an area where we heard a great deal of discussion and, I must say, not only discussion but positive suggestions for change.
Clearly, we heard that up to now--and I say this in no critical sense but really as a reality--organizing did and continues to take place in the shadows and not in the open; that intimidation and coercion have on occasion taken place, not as a general rule, but have taken place; that the intimidation and coercion or misinformation is not the monopoly of one or the other, but rather I'm sure there are examples where it is taking place on both sides of the issue; that workers in this province should have the right to join a union of their choice; that there is the right and freedom to associate. But the legislation is deficient, glaringly deficient, in that it does not create a framework for workers to freely have the opportunity to choose whether or not to be part of a union.
The motion brought forward by Ms Witmer is one which, I must say, is very similar to the motion I will be bringing forward in short order. This is an opportunity before this committee and the Legislature. It is an important opportunity. It's an opportunity to set forth a new system for organizing. It is not based or premised on subjectively determining the value or lack thereof of unions. That's out of the equation.
What we are going to be able to do, if the government will allow, is permit workers to freely choose whether they wish to be part of a union or not. If they say yes, so be it; if they say no, so be it. But one of the things which is absolutely necessary as a condition, and not a single step can be taken unless this is the first step, is that workers should be given notice of an organizing drive.
Many people would say, "I'm sure that's in the act right now," but it is not. Others would say, "I'm sure it's in Bill 40," the much ballyhooed changes to the Labour Relations Act, but it is not. So we bring forward amendments which mandate that all employees in a workplace be given notice of an organizing drive taking place.
It goes on to talk about what is contained in the notice, but surely we cannot expect any system for organizing to be at all viable, at all acceptable, if there is not the right in legislation for employees to be informed that a drive is taking place and what their rights are. If we can't accept that, then the government and the government members must recognize and realize that this is another example of rights being taken away from workers. I would challenge anyone, any time, anyplace, to discuss this issue with me.
The first example was part-time/full-time workers. The second example was workers in a consolidation application. The third example is what we have before us. The heart and soul of the Ontario Labour Relations Act will always rest in the rules surrounding certification. That's what it's always going to be.
Will the Ontario Labour Relations Act give to workers notice of their rights? If it does, then we move on to the next step; if it doesn't, then you have to show why it was so important that workers could not be given their rights. You have to show me somewhere in the legislation or in regulations where it is, and it's clear that it is nowhere.
We are dealing with this section. I noted the opening comments of the member referable to this section, and I talk about the opening comments dealing with the scant amount of time we have with respect to this bill. We are now in day six of our eight-day play. This is day six of the play produced by the Minister of Labour and the Premier. The eighth day is 30 minutes; no time to deal with any sections.
Today we have to deal with what I believe in many people's minds is of central importance in the act, that is, organizing. What regime are we going to create in organizing workers? What protection are we going to place in the Ontario Labour Relations Act when an organizing drive takes place? What is it that is going to be found in the Labour Relations Act that protects workers' rights to choose in a free and democratic way, without intimidation, fear and coercion?
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I always believe that the first thing is giving those workers, in this instance, the right to know. It is as basic and understandable a point as there is, not only in this section but in others. It's almost as if there were a referendum around the country giving people the right to vote and just deciding not to tell them the day they should cast their vote. What right is that? What right is there if you give a person a right to vote but don't tell them the day upon which they can cast it? What right is there to a worker in the Labour Relations Act if there's no obligation to tell the workers their rights under the act?
There are others who would prescribe certain intent behind things like that. I'm not going to get into that, but there are many others who would suggest that maybe the absence of that is there for a reason.
I'll speak in support of this amendment. I am well aware that we don't have much time to deal with this bill. There will be other sections that will never be discussed. There will be matters of substance that will be placed on the legislative floor without any member having the right to talk about it. Think about that. The right of members, not just in this committee but in the Legislature, to speak to an issue will be taken away. For those who don't think that's the case, I will just ask them to read the government House leader's motion. Motions will be tabled and then they will be voted upon and you will have no right to discuss this. You have no right to discuss the issue, the impact and what it means.
You guys are going to pass the bill and then you'll be dealing with the next bill. You are going to leave the impact of this bill to the people outside this committee room. The people who will have to live with this bill won't be able to have their thoughts made known prior to it being passed.
Mr Wood thinks that's sort of funny, that we leave the impact of this bill to the public. I disagree, when there are over 500 people a day losing their jobs, when companies are not expanding in this province. We are now being given the impact of this bill on a month-by-month basis. The government refuses to conduct an economic analysis statement. They refuse to look at what the impact of this bill would be for all the sectors and said it wasn't possible to do it. Everybody else said it was, but the Minister of Labour and the Premier said it wasn't.
So each month we are going to be reminded of the impact. Each month a new chapter will be opened, and that chapter will start off with the Minister of Labour's own employment statistics. Every other province in this country is starting to move forward except for one. Let me tell you something: What's the one that isn't? It's Ontario. Ontario is the only province in this country, and that has started not only since Bill 40 was only introduced but was discussed.
Mr Len Wood (Cochrane North): Because of the business lobby.
Mr Offer: Now we hear from the NDP member that it's because of the business lobby. All I can say is get out of this committee and get into the real world. The fact of the matter is that they're moving out of here because the competitive nature within the world, which the Minister of Labour alluded to today, is such that they have to move to the jurisdiction which guarantees them the ability to service their customers. It used to be Ontario and now it's changing. We heard today that Dare is moving out. They're in Kitchener, I believe. They were going to be expanding, and where did they expand? In Ontario? No.
Mrs Witmer: Two hundred jobs lost.
Mr Offer: Two hundred jobs lost. Think about that.
Mr Paul Klopp (Huron): Are they buying Canadian wheat, I wonder?
Mr Offer: It's very interesting that government members make light of that. That's a company that--
Mr Pat Hayes (Essex-Kent): Hey, we don't make light.
Mr Offer: --was extremely successful, that has been in existence for probably 100 years and has always expanded within the province.
Mr Hayes: On a point of order, Mr Chair: Mr Offer, we have the patience to listen to you ramble and ramble on, and you have the right to do that. But don't start saying that members of this government are making light of a situation where people are laid off work. If your government had fought as hard against free trade and some of the other issues, we wouldn't be in this mess today. That's done a hell of a lot worse than any piece of legislation we could ever bring forward.
Mr Offer: That's an interesting point of order, especially from a representative of a government that's already opened up a trade office in Mexico.
However, the realities of this bill are that the perception and the substance have scared away investment. It hasn't been the business community; it's been the bill. Look at the bill. The bill has done that. It hasn't been anybody making up something; it has been people who are reading this legislation and saying that this legislation creates, in this province, a climate which exists nowhere else in North America.
It's not some billboard that appears on some corner in the city of Toronto. It's a whole group of people within and outside this province, who have never seen a billboard in this city, who are reading the bill and are making decisions. Those decisions are costing investment and costing jobs. Every month--mark my words--you are going to see, chapter by chapter, the economic impact statement come in, and you will see it through loss of jobs and through loss of investment.
But I want to get back to the motion, Mr Vice-Chair.
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The Vice-Chair: I was about to ask you to do that, Mr Offer. Thank you.
Mr Offer: I think it's an important point. Some might say, "Well, you might have wavered a tad from the motion," and they're right, I did. I apologize, Mr Vice-Chair, for doing that, but it wouldn't be necessary if we were given sufficient time to deal with the bill. It wouldn't be necessary if we were given sufficient time to deal with the aspects and the substance of each section.
Mr Wood: David Turnbull told you yesterday why we wouldn't have time, because of your sermon.
Mr Offer: Mr Wood says that the reason is because I speak to the bill; I speak to the sections.
Mr Wood: No, I didn't say that. I said that David Turnbull reminded you of that.
Mr Offer: Maybe you don't agree, but I happen to agree with this amendment in giving workers notice of organizing drives. Maybe you, as a member of the NDP government, don't agree with that, but I agree with it. I agree that workers in this province should be given notice as to an organizing drive. I believe that workers should be given notice and information as to what their rights are. I believe that workers should be given notice as to what the impact and implications of unionization will be to them and to their families and I believe that workers of this province should be able to vote accordingly. We will be hearing very shortly whether the NDP government members feel the same way.
Ms Sharon Murdock (Sudbury): I believe that notice would not be a bad idea either, except that when the Burkett report first suggested that, it suggested not only notice but also access to names and so on be provided, and then following that notices be put up in the workplace. When the minister and I went out and did the consultations, it was very evident from the groups that presented before us that this wasn't acceptable. As a consequence, we rejected the entire section, and as you can see by the amendments, there is not a notice requirement.
I notice in Mrs Witmer's motion that the notice would be sent, rather than to the employer, to the board and then the board would provide to all employees who may be affected by the activities of the trade union the information that we required. While that sounds on the face of it quite logical, the reality is, first of all, that then there would have to a determination made--by whom, we don't know--as to who would constitute the bargaining unit; that's number one.
Number two is that as a consequence of our decision not to include it in the amendments in Bill 40, we then took it and expanded the operations of the information services at the board. Any employee now, as has been the case since the Ontario Labour Relations Act has been around--for what?--over 40 years, can call the board. I think it is now incumbent in all workplaces that there should be a telephone number available. Although that isn't legislated, it would make sense that it be present, just so that workers in Ontario should have that right. As I recall, we committed during the hearings that we would make the advertising campaign and the educational activities of the OLRB and the Ministry of Labour more prevalent and available to all people in the province, not just to people who are employed in workplaces.
We're not supporting this motion because it has been discussed since the Burkett report and ongoing. I know that I'll be speaking again to this when the Liberal motion comes forward, but the notice to commence an organizing campaign, like I said, on the face of it, does not take into consideration all of the ramifications of numbers, of whether or not all members would get it, who would be in the bargaining unit. We are not, as a consequence, supporting that.
Mrs Witmer: I thank Ms Murdock for her response. However, I do believe it's a very weak response. If we take a look at the dramatic changes that the government is proposing to the collective bargaining process and the increased responsibility it is giving to unions and boards, I believe if it were truly committed to making the organizing drive as democratic as possible, it would have been quite possible to incorporate this type of system where information would be distributed to employees which would set out the nature and the consequence of their decision.
It's fine to post notices in the workplace about the board, but our motion here speaks specifically to the union that is attempting to organize workers. What is the history? What amount will be the union dues? What is the union constitution? Employees are entitled to know more than just vague generalities. They should have access to all of the information regarding the union that is attempting to organize that unit.
I would also say that there were numerous such presentations made during the committee hearings. All of the members of the More Jobs Coalition, all of the members of Project Economic Growth--and we know that there were many, many people included in those two groups--the Retail Council of Canada and Tourism Ontario all very strongly supported the amendment which we have provided here regarding notice of organizing.
I guess I would just conclude by saying that Mr Offer referred to the fact that organizing campaigns are often carried out in secrecy, and we know that to be true. If one of the aims of Bill 40 is to promote a more cooperative relationship between business and labour, it's difficult to see how that can be accomplished if the relationship begins in secrecy. If you have a notice of organizing, if you have employees fully informed, if you have an open process, then in the end the employer can be much more satisfied that the bargaining agent the employees have selected does truly represent the interests of the employees, and they have had the freedom to make a well-informed decision.
The Vice-Chair: Thank you, Ms Witmer. Further discussion? Mr Offer.
Mr Offer: I'll be very brief. I think the response by the parliamentary assistant to this amendment is extremely weak. We have to ask ourselves, what is the organizational difficulty in having the labour relations board determine a notice which outlines the rights of employees?
Interjections.
Mr Offer: It's a foul ball.
Mr Randy R. Hope (Chatham-Kent): Let Hansard note that everybody laughed.
Mr Offer: I seem to have been distracted by government members.
What is the difficulty in the posting of that notice in an area where all employees will be able to see it? I guess the point I attempt to make, and I will leave it at this, is that to give some right to an individual under an act is not sufficient if you don't tell the person what his or her rights are. It's not enough to say they can call some telephone number. That isn't enough. There must be the obligation in legislation to tell a worker what his or her rights are. The posting of notices would further that.
We will be calling a vote. We'll be calling a vote to see whether the government members are in favour of giving workers the right to know. That's what this first amendment is: the right to know.
The Vice-Chair: Thank you, Mr Offer. Further discussion?
Mr Offer: I would like a recorded vote on this.
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The Vice-Chair: All those in favour of Ms Witmer's motion, please indicate. Those opposed?
AyesB2
Offer, Witmer.
NaysB6
Hayes, Hope, Klopp, Murdock (Sudbury), Ward (Brantford), Wood.
The Vice-Chair: The motion is defeated.
Mr Offer: I have a motion. I move that section 8 of the act, as set out in section 8 of the bill, be amended by adding the following subsections:
"Notice of organizing drive
"8(0.1) 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 employer of its intentions upon beginning to do so.
"Notice to employees
"(0.2) Immediately upon receiving the notice, the employer shall post notices in a form approved by the board describing the rights and obligations of the employer, the trade union and the employees under this act. Notices must be posted in each workplace that may be affected by the activities of the trade union.
"Communications
"(0.3) Once notice has been given and until a representation vote is held or the trade union ceases to attempt to persuade employees to join it, the trade union and the employer shall,
"(a) ensure that a representative of the board attends each meeting that either of them has with the employees that the trade union is attempting to persuade to join the union for the purpose of discussion the attempts; and
"(b) provide the board with a copy of all materials distributed to the employees with respect to the attempts."
The Vice-Chair: Thank you, Mr Offer. I would guess that you wish to speak to the motion.
Mr Offer: It's a motion which has three areas that I want to address. The first is that there is an obligation on the part of a trade union that if it wishes to organize particular workers that it must inform the employer. What does that mean? It means if you're going to organize, let's do it in the open.
Secondly, the employer upon receiving that notice also has an obligation. We can't have it imbalanced. The first is the obligation on the trade union to inform the employer. The next is the obligation on the employer to make certain each of the employees know their rights and responsibilities.
I am not saying that the notice should be in a form prepared by the employer. I believe it is one which must be approved by the labour relations board. Why? Because we heard that in a variety of ways some instances of intimidation and coercion may seep through in an organizing drive and I don't like it and I think that we have an opportunity to change that and we can do that by having a form approved by the labour relations board which gives to the employees the right to--
Mr Hayes: Yeah.
Mr Brad Ward (Brantford): Home run.
The Vice-Chair: Proceed, Mr Offer.
Mr Offer: Thank you. I just noticed that the government members were applauding my comments.
The Vice-Chair: Sometimes they're difficult to restrain, Mr Offer.
Mr Offer: However, a notice will be approved by the board and there is an obligation on the employer to post that notice in a form approved by the board so that all employees are apprised of their rights.
What is the difficulty in that: first, obligation on the trade union to inform the employer and, second, immediate obligation on the employer to inform the employees in a form approved by the Ontario Labour Relations Board? This, to me, sets in motion openness, discussion, cooperation. It is different from what is in Bill 40, which I believe carries on organizing in the shadow. I believe that these first two areas of my three-part amendment set a new flavour to organizing; organizing in the open, organizing with information as to a person's rights.
The third area deals with communications. I will tell you, we heard lots of submissions on this. We heard that in some instances there is coercion and intimidation and misinformation. We heard in our public submissions that this takes place not only on behalf of the employer but, in instances, through the trade union organizers.
We better start talking about those things, because people had the courage to come before our committee and talk about them. They had the courage to sit down at a committee and say, "Listen, I've been an organizer for X number of years, and there has been coercion." That took courage. There were others who came forward and said, "Listen, there has been intimidation and coercion from the trade union on occasion."
I don't believe we should paint all of those organizers with one brush, but I'll tell you something: It's about time we give some real credence to the people who came before a legislative committee that was televised and who spoke of their particular experiences. For us to turn our back on what they said in committee, for us not to allow their concerns to be met in a legislative framework is, I believe, something which will seriously, critically and fatally flaw this bill. People came before us, they told us their experiences, and so this third area talks about that whole issue of intimidation and coercion and fear.
I do not delude myself to believe that one section is going to do away with it all, but I firmly believe that we can't turn our back on the people who came before this committee; that we have to have in legislative form that if there is any communication, it must be, firstly, approved by the board and, secondly, distributed in the presence of the board. That's the least we can do, the very least to give to the workers of this province. That's the least we can do to the many people who came before this committee and told us their experiences. We can't turn our back on those presentations. We can't leave those workers and employers to fend for themselves. We can't say that what took place in the past will continue, because this act does nothing to stop it. We must give credence to what we heard.
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People said they had been intimidated. We heard people who said they voted one way because they feared for their job. We heard people say they thought when they signed a union card it would entitle them to a vote, and we know that is not a true reading of the bill and of the act. Are we going to turn our back on those presentations?
Communications, the third aspect, says any information given to an employee by an employer or by the trade union must be approved by the board, by the referee. Secondly, it must be done in the presence of a board member, because we've heard that you can sort of give the message and that the way in which it's given sends out a different message. This amendment seeks to correct that. It seeks to give some legislative response to the people who came before the committee. You know what? I hope the government members accept this amendment.
The Vice-Chair: Thank you, Mr Offer. Further discussion?
Mrs Witmer: I will certainly be supporting this amendment. In some ways it's similar to the one I just presented regarding the notice of organizing. Given the fact that the government has decided to restrict the right of individuals to oppose union certification and prohibit petitions, it becomes absolutely essential that the organizing process be opened up and that members fully understand, as well as employers, that an organizing drive is taking place. This also would ensure that any undue influence from any outside party, whether another employee, an employer or the union, is totally eliminated.
So I would certainly support this and I believe it's absolutely essential if we are concerned about the many people who told us that there was intimidation and secrecy in the organizing drive, which was a very frightening experience for them.
Ms Murdock: It is very similar to the motion we previously discussed. Mind you, in this instance, it's information to the employer and posting of information and it would require the union to give notice to the employer of its intention to commence an organizing campaign.
Mr Offer has stated that we can't turn our backs on the presentations that came before us. I agree. I sat here and listened to the presentations during the hearings; I didn't do a particular count on them, but far and away the majority of the statements made in regard to intimidation and concerns about being coerced or being made to feel like they should vote a particular way came from the labour side.
In fact, one was related where, although the employer didn't actually do anything, the president of the company came down and stood by the door as people went in to do a vote on a representation vote. While we might not see that as intimidation, it was evident that the presenter making the statement felt it was and that some of the people felt compelled to vote against the union.
A representative of the board being required to attend each meeting of either the union or the employer would indicate that the trade unions would have full information as to numbers, when these meetings were being held and so on, and there's nothing in here on that.
The board would also receive copies of all information distributed by the union and the employer. That makes eminent good sense except that--and it was evident during the hearings and again today in both the previous motion and this one--it seems the premise everyone works on is that the unions aren't already providing information, that the unions aren't representing themselves in a particular way, explaining about union dues, explaining what kinds of deductions are going to be made, how much it costs, what rights they have under that particular local etc.
Later on, not particularly sections 1 and 3 but when you look at section 6 under this section 8 of the bill, you will see that if there has been any contravention, fraud or misrepresentation by either side, the board will be able to move on that.
A similar notice of requirement was proposed--again I'm going to say this--by Burkett, with a tie-in to the employee lists; we rejected that. Then in the discussion paper a separate suggestion was to put up a notice. The employers made it quite clear during the consultations on the discussion paper that it would be seen as encouragement of a union in the workplace. They made it really clear that they were not in favour of that and, as a consequence, we did not include this in the amendments.
Again, toll-free information lines, expansion of the Working in Ontario booklet.
Overall, when you come right down to it, this motion would make it very similar to the representation campaign that is prevalent in the United States. It assumes that unions and employers have equal access to employees, that unions and employers have similar control over the livelihood of the workers. Experience with representation campaigns in the United States has shown that they prolong the organizing process. The other thing it shows is that the proliferation of unfair labour practices holds a board up even more, also that one out of 10 employees will be fired during this campaign, even though it's open, with notices and unions having the right to speak to the employees at full meetings and so on. In our view, if that's the trend, it would make the worker even more vulnerable than the worker is already today under the existing legislation, and we're not prepared to do that.
Mr Offer: I'm astounded that the parliamentary assistant would think that to inform workers of their rights will cause difficulties. That's what you just said. My amendment says, "Let the workers know what their rights are under the Labour Relations Act." There's no difficulty in that. Your response is: "We can't do that. That will cause a certain amount of difficulty." That's like saying the one way to curb the backlog in the Human Rights Commission is to take away the right of those individuals to know what their rights are. It's ludicrous in the extreme. It's absolutely ludicrous to say that there is something fundamentally flawed in a system that gives workers the right to know what their rights are.
Another thing: The parliamentary assistant has read, I am sure--I will suppose--all of the amendments by the Liberal Party and the Conservative Party. The parliamentary assistant will know that these amendments, because we must deal with them in this way, are part of an overall regime, that there is an awful lot more that goes into the system that is planned. But really, to say that there is something wrong in giving workers the right to know under the act, in letting them know they have the right to change their minds pre-application, in letting them know there are penalties if an employer or trade union intimidates, coerces or misinforms, in letting them know of the penalties that could be laid on people who do intimidate or coerce, in letting them know of each of the groups' position--somehow that seems to the parliamentary assistant to be fraught with dangers. Well, let's have a vote.
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The Vice-Chair: Further discussion?
Mrs Witmer: It's certainly regrettable that the government refuses to support the notion that employees should be fully informed as to what is involved in the nature of joining a union. I can't believe that there would be a problem. We talk about empowering individuals, and certainly this would enable them to be empowered and to make a well-informed decision. Why that is impossible I just don't know.
I guess the only thing that's becoming clearer and clearer to me--and I have to tell you I do feel very frustrated and I do feel very discouraged--is that the intent of Bill 40 is to facilitate unionization. I do not believe that it is in any way, shape or form intended to protect the individual rights and freedoms of the individual worker. That is totally lacking, and I'm very disappointed that the government is not concerned about the individual, because Bill 40--unionization--totally changes the employment relationship. I believe employees are entitled to have that information before they make a decision.
The Vice-Chair: Further discussion?
Mr Offer: I would like to just ask the parliamentary assistant one question. Where in the legislation, either in Bill 40 or in the amendments that have been provided by the government or in the current Labour Relations Act, is there something which mandates someone to inform a worker of his or her rights under the act in an organizing drive?
Ms Murdock: There's no legislative proposal mandating.
Mr Offer: Then I just want to vote, thank you very much, and I want this vote recorded.
Ms Murdock: Nor was there in the existing Ontario Labour Relations Act. There never has been a requirement mandated by any government, Progressive Conservative, Liberal or otherwise, for any of this to be done, and there was certainly lots of opportunity for that to have occurred.
Mr Offer: Except you're looking at two sets of amendments that would allow that.
The Vice-Chair: All those in favour of Mr Offer's motion, please indicate.
Mr Offer: I would like a recorded vote.
AyesB2
Offer, Witmer.
NaysB5
Hayes, Hope, Klopp, Murdock (Sudbury), Wood.
The Vice-Chair: The motion is defeated.
Mrs Witmer: I move that clause 8(1)(b) of the act, as set out in section 8 of the bill, be amended by striking out "on or before that date" in the fourth and fifth lines.
Again, this is intended to give individuals the opportunity to make a choice. The intent of this amendment would allow the board to consider evidence, that is, petitions, after the certification application date.
We talk about the fact that employers were not asking for this; nobody wanted this during the hearings. I can tell you that this has been asked for by both the More Jobs Coalition and the Ontario Restaurant Association. Actually, I have two amendments that deal with petitions, and there is a companion amendment as well.
As we know, at the present time the post-application petition is the only way an individual employee can express his or her desire not to join a trade union. Now we have the government eliminating petitions, even though in the past they've always led to a free and a democratic vote on the issue of certification. We've said that organizing campaigns are often carried on with secrecy. We've tried to open up the process.
The government has refused to accept our amendments to make sure that employees are fully informed and that the process is open and kept honest. Unfortunately, unlike a consumer sales campaign, there is absolutely no legislative provision at the present time to ensure that the worker understands the obligations that he or she is assuming and has a chance to revoke a decision under pressure.
Without legislative protection, unions have no responsibility that requires them to advise employees of relevant information--we've talked about that--such as the amount of dues, their disciplinary procedures. You know, unions are able to tell any prospective member anything. They can exaggerate; they can minimize. Employers have that opportunity too, and it's absolutely essential that somehow you get the facts out on the table.
Frequently, because there is no obligation now to get the facts out on the table and have an open process, it's not until after the application for certification is filed that there's any meaningful employee opposition, because it's only after the fact that employees begin to talk, exchange views, ask questions, and they get a more balanced picture of what it means to be represented by a union.
If you are not going to open up the process beforehand and the government has indicated it's not going to, then you've got to permit employees a period of time following the filing of the application to file a petition to make sure that they know what they're doing and that they are informed as to what's involved.
I believe to deny employees the right to change their minds after they've had an opportunity for more open and balanced discussion and an opportunity to get all of the facts is to prevent an informed decision, and it undermines the requirement of representativeness. I would hope the government would support this, since it's not going to support the open process of organizing.
The Acting Chair (Mr Pat Hayes): Mr Offer, a few brief comments.
Mr Offer: Before my comments, I wouldn't mind hearing from the parliamentary assistant as to whether this amendment is agreeable. It may make my comments shorter.
Ms Murdock: Okay. Section 8 of the bill, as we know, and (1)(b)--it's interesting, you're removing that, but I don't know what date you would put in place of that section. You've stated a number of times, or Ms Witmer has, that petitions have been eliminated, and they haven't been eliminated.
You cannot do it after the application date, but in many instances the organizing drive lasts quite a long time and the employees have the right to notify the board at any time up to the application date whether they've changed their mind or not.
This motion would permit the board to consider evidence of the membership or the opposition to membership in a union following that date of application. A later motion that will be coming up from the opposition--I think there are a couple--will indicate the order to permit the filing of petitions at any time.
However, I guess when you look at the history at the labour relations board in terms of petitions, and we talked about this during the hearings, although not to any detailed extent, they're filed in about 20% of all applications, and the result is, as we've stated a number of times, litigation, delay and extra costs.
Yet out of those 20% of petitions that are filed, upwards of 90%, in fact over 90%, of them are rejected by the board because they do not affect either the union's level of support or, and this is unfortunate, they have been found to be influenced by the involvement of the employer.
We're not taking away the right of employees to change their minds. It is, however, bringing Ontario again into line with other jurisdictions in restricting petitions to the pre-application period only. I believe we asked research to get us some information on that and it is shown that we are one of the few jurisdictions that allow petitions and we're getting in line with the rest, so we're not going to be supporting this motion either.
1640
The Vice-Chair: Further discussion?
Mr Offer: Right now, employees have the right to change their minds. These are referred to as petitions, and I don't like to refer to these things as petitions. What they are is the right of an employee who has potentially signified at any earlier time that he or she wishes to join a union and now has changed his or her mind and vice versa. That's what we're talking about.
Ms Murdock: Right. What do you mean, "and vice versa?"
Mr Offer: The parliamentary assistant asks about "and vice versa." Somebody may decide that he didn't want to join a union at first instance and changes his mind that he wishes to join a union. This is what we're talking about when we speak about petitions. They're the rights of individuals to change their minds, something which I would have thought is a given.
However, the government, under Bill 40, is saying that the individual's right to change his mind is being taken away after the application has been filed. But the government will say it is still allowing the individual to change his mind at any time before the application is filed, all of which is absolutely correct, except there's a small flaw in this, because the government steadfastly refuses to put in legislative form notice to the employees that they have that right. There is no legislative requirement for anyone to inform any worker in this province that he has the right to change his mind until the date of the filing of the application.
My concern has been that this right, even though it has been limited to the pre-application stage, is in fact no right at all, because if you don't know you have this right and if there is no requirement to be informed of that right, then you will never seek to exercise that right. The government has again taken away the rights of individuals to do what is one of the most common things in this land, one which we do daily, and that is second thought, changing your mind.
The Vice-Chair: Further discussion? All those in favour of Ms Witmer's motion, please indicate. Opposed? The motion is defeated.
Mrs Witmer: I move that section 8 of the act, as set out in section 8 of the bill, be amended by adding the following subsection:
"Rescission of membership, etc
"(1.1) An employee may rescind his or her membership in a trade union or application to become a member by delivering a notice of rescission in writing to the trade union within three days after becoming a member or applying to become a member, as the case may be. An employee who rescinds his or her membership or application shall be deemed not to have been a member or to have made an application."
The intent of this amendment I think is obvious. It is intended to give Ontario's citizens the same protection in making their decision to join a union that a consumer has under the Consumer Protection Act in dealing with a door-to-door salesperson. I don't know how anybody could argue that.
Also, for your information, there were numerous presentations during the summer making this request. The Canadian Federation of Independent Business made this request, the Ontario Mining Association, as well as Tourism Ontario.
Let's talk about the Consumer Protection Act. It does provide a cooling-off period of three days, during which an individual can rescind his initial decision to purchase without any penalty whatsoever. We strongly believe that the same cooling-off period should apply to the signing of a union card, because the signing of a union card has a much greater significance in the life of an individual than does the purchase from a door-to-door salesman. We know that the signing of a union card is going to significantly change the employment relationship. It's unbelievable that consumers are protected at the present time from high-pressure door-to-door salesmen by this three-day waiting period yet the government is not prepared to provide the opportunity for sober second thought to the worker who signs a union card.
As we've said so often before, employees are often unaware of a union organizing drive until after the union has made an application to the board for certification, because all that unions need to do is sign up 55% of the employees in the unit. The others can be totally and blissfully unaware. The elimination of post-application petitions will prevent these employees, who are unaware of a union organizing drive until after the union has made an application to the board for certification, from ever having any voice on the issue of certification.
So we are strongly supporting this amendment, which would allow the individual to freely make a choice and make an informed decision.
The Vice-Chair: Thank you, Ms Witmer. Further discussion?
Mr Offer: Mr Chair, I wouldn't mind hearing from the parliamentary assistant.
Ms Murdock: Certainly. I'd be happy to. I guess I'm sitting here having difficulty believing you could believe that an organizing drive could take place in a workplace where it wouldn't be talked about, and that they wouldn't have a clue that it was even happening. Human nature being what it is, just thinking about it is laughable.
But, having said that, in regard to this, petitions or revocations, whichever you want to call them, changing your mind, currently brought before the board are not considered to be resignations but are considered by the board to be private between the union and the individual.
What all these motions and amendments are recommending, basically, is that the board get involved even before it gets involved now, which again would involve inordinate amounts, I would imagine, of time and money.
But we're sitting here and saying that representatives of unorganized employees have not identified the current process--which is the way it has been done since 1950, with cards--as being of concern and have not called for this sort of amendment. If anything, there's been pressure to eliminate petitions entirely, because of the window they provide for interference in the organizing process. We heard enough stories during the hearings to indicate that there is interference.
1650
I think some of the questions that were asked by our side, anyway, in terms of the information that was provided by the union organizers--and it was made pretty clear during the hearings that it isn't the union organizer from the union that they're going to be going to who is asking the employees to join a union; rather, the union organizer provides the information to the coworker who goes into the workplace and explains it and tries to identify the coworkers, if he doesn't know who they are, and tries to find out who they are and through themselves organize themselves into a union which comes under a larger umbrella group.
I don't think I am an unintelligent person, but I'm finding it very difficult to understand why the motions that are being suggested by both the opposition parties would be felt to be needed, unless they think that the employees have no ability on their own to question or to ask questions or to make a telephone call to find out if they don't know, or if they do change their mind, that they go and say, "Hey, I've changed my mind; I've decided I like things the way they are," and somebody wouldn't say, "Well, you're going to have to write a letter," or whatever. I don't think the workers of this province are that imbecilic.
The Vice-Chair: Further discussion?
Mr Offer: I don't know where to begin. The parliamentary assistant has acknowledged that there are in some instances what she refers to as interference. We do not disagree. In fact, we do agree. We heard in our presentations of examples of interference, in the word of the parliamentary assistant. It then becomes doubly difficult when one sees that the government refuses to accept amendments which attempt to, if not eliminate, then reduce interference.
The parliamentary assistant speaks of, "Well, workers talk to one another." Of course we know that, but isn't it our obligation to make certain that there is some information provided to the workers, as agreed to by the labour relations board, that if a worker and his coworker chat about something, if that worker speaks to a representative of the employer about something in an organizing drive, there should be something somewhere that will permit the worker to obtain information for himself or herself, information approved by the board?
The amendment speaks about a rescission of membership. Is there any difficulty in union cards having that information on them? Is there any difficulty when somebody signs a card, that right on the card he is given information that prior to the filing of the application he can change his mind and the place that he can do so, and also, within a shorter period of time, he can just rescind the actual membership form? Is there any difficulty in giving that minimum amount of knowledge to the workers of this province? Is the government prepared to make an amendment which deals with this issue and makes it prescribed through regulation so it is on every union membership form signed in this province? This is not to say one is in favour or against. One is in favour or against information-giving to workers. I ask that question.
The Vice-Chair: Any further discussion?
Mr Offer: I've posed a question and--
Mr Wood: Is that on your Liberal membership cards?
Mr Offer: I'm glad there has been an interjection by a government member. I suggest that if we checked--because I know what our political association membership forms state--in fact there is information provided on each application form.
Mr Wood: For all those misled Liberals?
The Vice-Chair: Ms Murdock, do you wish to respond to Mr Offer's question?
Ms Murdock: I don't know how many times I can say this, but it was one of the options considered in terms of how to provide information to workers or people who might be considering applying to a union for representation. It was one we decided not to include, so I guess the short answer is no.
The Vice-Chair: Further discussion? All those in favour of Ms Witmer's motion, please indicate. Opposed? Motion is defeated. Mr Offer.
Mr Offer: Yes?
The Vice-Chair: Motion, section 8 of the bill.
Mr Offer moves that subsections 8(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 direct that a representation vote be taken if it is satisfied that at least 30% of the employees in the bargaining unit are members of the trade union on the certification application date or have applied to become members on or before that date.
"(2.1) The representation vote must be taken by secret ballot and must be held within 30 days after the certification application date.
"(3) The board shall certify the trade union as the bargaining agent of the employees in the bargaining unit if more than 50% of the ballots cast in a representation vote are cast in favour of the trade union."
Mr Offer, I'm sure you want to speak to the motion.
Mr Offer: I do wish to speak to it. I'm wondering if it's in order to ask if the government--
Interjection.
Mr Offer: Okay, then, I'll speak. The parliamentary assistant--I'm going to speak to it. As I read the motion--
Ms Murdock: You spoke to it yesterday, actually, if I remember correctly.
Mr Offer: Here we have three points that I wish to make. Now, the problem with clause-by-clause is that the whole system we are attempting to deal with is sort of dealt with on a clause-by-clause basis. I just remind members that I recognize they voted it down, but the first part of the new procedure was: organizing drive; the union informs the employer; the employer is under an obligation to give notice to the employees of their rights in a form prescribed by the Labour Relations Act, and all communications thereafter be basically approved by the labour relations board in the presence of a member of the board.
Then we move to this point: If the union has signed up 30%, then that becomes the trigger point. We know the current act is 45%. We know that under the current act, if the union has signed up 45%, it acts as a trigger to at least get a representation vote. We know the amendments to Bill 40 have lowered that trigger from 45% to 40%. My amendment is seeking to further lower the trigger from 40% to 30%. In other words, if a trade union has signed up 30% of the workers in a workplace, then it has met the trigger point.
1700
Why do I pick 30%? I pick 30% for two reasons. First, I believe 30% is a percentage in a workplace that shows a sufficient level of support for unionization that should warrant a vote by all members. Second, I believe if the trigger point is lowered, then all the difficulties that are experienced in the signing of members must of necessity be reduced. There is less opportunity for intimidation, coercion, misinformation and fear if the trigger point is reduced from 40% to 30%; if the trigger point is reduced from 45% to 30%. There's less chance for interference. Hence, I say, let's move into a new era.
Speaking on this issue, I do so in support, of course, of my amendment, but with some concern, because I view my amendments as a package in this section. I'm concerned that to give one part and not the other might not deal with the issue as effectively as I hoped. None the less, I am moving this. So we move 40% to 30%.
Then we move into the second part of my amendment. The vote must take place within 30 days after the application. Why? I'm basing this on the presentations I heard. I believe 30 days is a sufficient amount of time for the employees in the workplace to be informed of the pros and cons of the drive, to be informed of the position of both trade union and employer. Again, I hark back to my earlier amendment, where I wanted this communication package to be done in a system of protection for the worker. The 30 days, I believe, is a sufficient amount of time.
Third, certification, 50%: I want government members to recognize that 50% is an amount everyone understands. We're here on the same principles. That's what we're here for. We've heard other leaders of provinces say that a new Constitution will be approved if we can get a majority in each province. It's something that people understand, that they've grown up with, that they believe in and, in this country, are in fact proud of.
I'm saying, let's put it in. I did not say 50% of the ballots of all the people who were entitled to vote. That would be a little bit of a tricky situation. I am saying that if there are 1,000 members in a unit who are able to vote and only 500 actually cast a vote, and of those 500, 251 say yes, then that workplace is unionized, is certified.
There are three parts to this amendment: representation to 30%, secret ballot vote, certification on majority.
I think it's only fair for me to indicate that this, of necessity, would also exclude automatic certification. I think I have to be fair about that and inform members I am also excluding automatic certification. I'm doing so because I think this process is fairer, is more balanced, is better for the workers. They don't have to feel the pressures of signing or not signing over and above 30%. I'm sure there's great pressure, but we're reducing that. We're excluding that 55% automatic certification. We're folding in a new way. We're folding in a way where there is a minimum number of workers--adequate numbers, mind you--information to the employees, and then letting the employees decide through a secret ballot.
I think we've heard this issue many times. I think there will be those who say, "Something like this is in the United States and it's caused some difficulties." This is not the United States; this is a thing that we can, in a process, implement in this province. Following this, I have penalty provisions for trade unions or employers who contravene these sections, and I think they are significant penalties that will again ensure, if not an elimination, then a real reduction in--I'll use the word of the parliamentary assistant--interference in organizing campaigns.
I guess I'm somewhat fearful that the government will not accept this amendment, somewhat fearful that it will not accept that the trigger point be reduced from 40% to 30%. I'm fearful that the government will not accept a worker's right to cast his or her choice in a freely secret manner, and I am fearful that the government will not accept the principle that majority rules. We will see when this is called for a vote.
1710
Ms Murdock: It's interesting that Mr Offer is fearful when I prefaced his remarks in my comment that we were not going to be supporting this motion.
Mr Offer: I thought you might have changed your mind after the explanation and the benefit that it would be to all in the province.
Ms Murdock: Well, for five weeks you've been giving the explanation and I've listened with care to it. However, although I like the idea that it go down to 30%, I don't imagine you would be willing to let that stand by itself, so I'm not even going to suggest that.
I've already explained, yesterday, and I won't belabour the point, in terms of the time factor in counting ballots.
The 50% plus one is sort of interesting because we recommended that in the discussion paper and the business community came forward saying they wanted it to be left at the 55% that exists in the Labour Relations Act already. They didn't like the 50% plus one, so we acceded to their wishes and left it at 55%.
The representation vote: I've explained on numerous occasions but will take the time to briefly explain it again today. It is basically saying to the employee who has taken the time to sign a card--as Mr Offer and Mrs Witmer have stated today, oftentimes this is done in the darkness of the night kind of thing, or with that attitude. It is not a frivolous kind of haphazard signing. This is something that they have thought about before they've done it. Unfortunately, it's still a situation where the repercussions of signing a union card in the workplace have great import to many workers. So there's that.
I explained the secret ballot yesterday. I used the example of the Hydro case and the taxi drivers, where it took two years to count the secret ballot, because as it stands right now in this province under the existing Labour Relations Act, there are secret ballot votes between 45% and 55%. Under this amendment it will be from 40% to 55%. So there is still a secret ballot vote, and that anything over 55% is automatically certified is not changing. It's been that way now for a number of years under the present OLRA and it will continue with Bill 40. That will not be any different.
You haven't convinced me, Mr Offer and we will not be supporting this.
The Acting Chair: Mr Ward has been very patient here in trying to contribute.
Mr Ward: Thank you, Mr Chair. I'll be brief in my remarks because I can recall yesterday, I believe, expressing my concerns for the concept of a totally secret ballot process in the certification method of having employees decide whether to have a trade union represent them or not. The concerns I expressed at that time were the hidden intimidation and coercion activities that could occur in the workplace that all the legislation in the world would never eliminate.
I think that to have intimidation and coercion eliminated, we need very mature labour relations in this province, and I don't think we're there yet. With the advent of Bill 40 and updating the Ontario Labour Relations Act into the 1990s, and indeed the 21st century, I think we'll be on the road to establishing those mature labour relations so that some day, perhaps, intimidation and coercion on the part of employers will be eliminated. But we're not there in 1992.
I notice in this amendment that there is no avenue for a trade union representative to go on to company property to express his or her views on the benefits of joining a trade union. I'm wondering if that's an oversight on the part of the Liberal member in this amendment, because I think that with the all-encompassing three parts to this, that's one part that is missing. I'm wondering if the Liberal member will be considering that down the road.
The dilemma I'm in is that the Liberal member made very compelling arguments to reduce the ability to have a certification vote from what we're proposing, from 40% to 30%. I think he made very good arguments. Although we heard from the business community that it was totally opposed to lowering the percentage from even the current 45% to what we're suggesting, 40%, the Liberal member is proposing 30%; if 30% of the employees in a workplace have signed a union card, then a vote can take place. So I'm requesting that the Liberal member allow three separate votes on this amendment so that perhaps we can join with him, contrary to what the business community said.
But we can perhaps consider the reduction to 30%. Then, since I do have concerns for the other two, defeat those two, and at the Liberal insistence, perhaps contrary again to what the business community had suggested--we have to listen to both sides of the issue of labour relations--I may be swayed to lower the 40% to 30%; I'm still weighing it in my mind. If we could have a separate vote so I could defeat the last two sections of this amendment but adopt the first Liberal part of the amendment, I may be swayed to support him.
The Acting Chair: Mr Offer, are you willing to respond?
Mr Offer: Mr Chair, there are two points I'd like to make and I thank the members. The first point is: You spoke about communications. It's unfortunate that your party defeated my previous amendment, which permitted communications to be held by the trade union and by the employer with employees in a manner which was permissible by the Ontario Labour Relations Board. Your government, your members, already voted that down.
With respect to the second point, that's quite a novel suggestion the member has. And you know what? I am not terribly adverse to that type of split vote. But I will do one thing, and I would ask you to rule, Mr Chair: We will vote separately, but I would like the vote to take place in inverse order to that which appears in this section. First we will vote on the certification of 50%, then we will vote on the secret ballot and then we'll talk about 30%.
The Acting Chair: Mr Offer, what you'd actually--
Mr Offer: If the members are not permitted to do that, then I am absolutely flabbergasted.
The Acting Chair: Excuse me, Mr Offer. I don't think you can break it up like that. What you would have to do is to amend the amendment if you wanted it to read 30%. Of course it appears that the next motion we'd be dealing with would be the PC motion, which states:
"The board shall direct that a representation vote be taken if it is satisfied that at least 40 per cent of the employees in the bargaining unit are members of the trade union on the certification application date or have applied to become members on or before that date."
If you were willing to go along with the 30%, you could amend that. That's what you could do, but you'd have to amend the amendment.
Mr Offer: Mr Chair, I've listened to what you're saying and I want to be certain your ruling is that it would not take place on my amendment, but rather that there could be an amendment to the following motion. That, of course, could be made by Mr Ward himself. It's unfortunate that we weren't able to deal with it in a piecemeal fashion, because I certainly would have liked to have got the voting procedures of the government on majority rule and secret ballot.
1720
The Acting Chair: There would have to be an amendment to the amendment in order to accomplish that.
Mr Offer: Mr Ward is able to do that.
Mr Ward: It's my amendment.
The Acting Chair: Okay.
Mrs Witmer: I just want to confirm that we will be dealing next with my amendment. Will we?
The Acting Chair: Yes.
Mrs Witmer: I would certainly support the Liberal motion that has been put forward. I believe very strongly in the need for a representation vote and also for the individual worker to have an opportunity to cast a secret ballot. It's absolutely essential that workers be given a choice, and it's absolutely essential that the choice be made in a manner that is as democratic and as fair and as honest as possible. So I certainly would support this.
The Acting Chair: Any further discussion?
Mr Offer: Recorded vote, please.
The Acting Chair: All those in favour of Mr Offer's motion?
AyesB2
Offer, Witmer.
NaysB5
Hope, Klopp, Murdock (Sudbury), Ward (Brantford), Wood.
The Acting Chair: The motion is defeated. Now we have Mrs Witmer's motion.
Mrs Witmer: I move that subsections 8(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 direct that a representation vote be taken if it is satisfied that at least 40 per cent of the employees in the bargaining unit are members of the trade union on the certification application date or have applied to become members on or before that date."
This is the first in a series of amendments that we are going to be introducing concerning secret ballot. You've probably noticed that we have numerous amendments. As I've previously said, we have upwards of 80, and we have amendments that go as far as section 64.
This amendment would make the representation vote mandatory, and this is the first in a series of amendments that contain the provisions of a bill that I introduced, Bill 152; it's currently Bill 76 on Orders and Notices. That was a private member's bill that I introduced on November 7, 1991, which made a secret ballot vote mandatory for certification, ratification of a collective agreement and the decision to strike.
This has been an issue that has been of tremendous concern to me because one of the first letters that I received concerning Bill 40 came not from the business community but actually from an employee in the town of Exeter. That's interesting, because it's someone that I don't know, but this individual--
Ms Murdock: Gee, who do you know?
Mr Klopp: You have to know Exeter.
Mrs Witmer: I say that because I grew up in Exeter, so it was rather interesting that this first letter--
The Acting Chair: If you give Paul Klopp his name, he can look him up.
Mrs Witmer: That's right. It came from an individual who had been involved in a unionizing drive and had a very unfortunate experience and did believe very strongly in the need to ensure that individual rights and freedoms were not restricted. He was very anxious that the secret ballot vote be provided for workers in certification, ratification of a collective agreement and the decision to strike.
I would have to indicate to you that since that time, I have received numerous letters of support for this amendment from individuals, and they have come from all across the province. There has been tremendous support for the Bill 152 that I introduced last November, and I was really pleased when finally the Liberals and the Liberal leader started to support this issue so strongly as well this summer and fall. I realized I obviously was on the right track.
Ms Murdock: Well, gee, I don't know, Elizabeth, your judgement there--
Mr Offer: That I want in Hansard.
Ms Murdock: With the laughter in brackets.
Mrs Witmer: In fact, someone said to me--obviously, they've become aware of the fact that this is a very popular issue and you're being very widely supported, so they're now anxious to get on the bandwagon as well. I would add that.
Mr Offer: Ms Witmer throws down the gauntlet.
Mrs Witmer: However, the bill is designed to protect the individual's right to decide, as I have said many times, free of interference or influence from any source, whether or not to have union representation, to accept a contract or to go on strike.
This becomes more important because Bill 40 eliminates post-application petitions by employees, and we've certainly talked to that issue. It's also important to have a representation vote, because we've now eliminated the opportunity for employees to have a sober second thought, and once they sign a union card, they don't even have the same protection that consumers do with the three-day cooling-off period.
The vote becomes more important because Bill 40 eliminates the membership fee of $1, and without the payment of a fee, there's always the possibility that the worker might be signing a union card without really recognizing the importance of his or her signature.
This representation vote becomes more important because we have now voted down our proposal to make it mandatory that the union provide employees with copies of recent collective agreements, the union constitution, disciplinary procedures or information on the amount of union dues payable. We've eliminated the opportunity for employees to make an informed choice, so it's important that we at least have a secret ballot vote and that it be mandatory.
It's important because Bill 40 makes certification possible based solely on the number of cards that are submitted. There's no longer a minimum payment; there's no longer an opportunity to revoke a signature after the application; there is no right to change one's mind; there is no way of knowing whether people knew what they signed, and there is no way of knowing what they were told or what promises or inducements were made.
Bill 40 appears to say to the individual whose rights we're now taking away and restricting: "We don't care about democratic choice, We don't care about due process. We don't care to ensure that the true wishes of the employees are known." It appears that all we're concerned about is making it easier for unions to certify, so by giving individuals the opportunity to cast a secret ballot vote, we are indicating our concern for democratic choice, we are demonstrating our concern for due process, we are ensuring that the true wishes of the employees are known and we really are demonstrating that we care.
If you look a little beyond the individual and take a look at the impact of Bill 40 on job loss and future investment loss, if you include an automatic secret ballot vote on all certification applications, as we've suggested, it is something that provides a message to those investors, because they might see that in some ways you are trying to restore the balance, that you are interested in democratic choice and the rights of individuals.
We must never forget that the rights of employees should always outweigh the rights of trade unions. It's totally undemocratic that any employee could find his or herself a member of a union without being given the opportunity to vote, yet that's what Bill 40 does. No employee should ever arrive at work to discover that she or he belongs to a union which she or he didn't vote in favour of joining, and that's what's possible right now. This is totally unacceptable. It's a violation of our most democratic rights and freedoms not to have the opportunity to vote, to have a secret ballot.
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I keep asking myself, why does the government not want a secret ballot vote? The government purports to represent the interests of the working people in this province, and yet it's not giving those people the opportunity to be informed on the issue of unionization and what is involved, and they're not being given the opportunity to exercise their right to make a free choice by means of a secret ballot vote. I just cannot understand why the government refuses to allow a secret ballot. John Crispo, in his presentation to us, made the statement that they don't want votes because they don't think they can win. Perhaps there's some truth in that.
I'm so concerned because the government appears not to be interested in ascertaining the true wishes and desires of workers. It's absolutely essential to have a secret ballot vote because, as I said before, the certification of a union dramatically changes the workplace. When a union is certified, it is granted exclusive bargaining rights and the individual workers lose any individual right to bargain with the employer. So unionization is a critical choice for workers. It should be made as democratically, as fairly and as honestly as possible.
I guess my concluding remark would be a question: Why is the government so afraid and opposed to a properly conducted secret ballot? After all information has been presented to the parties involved, why are you not respecting the rights and freedoms of the individual to make a choice?
The Vice-Chair: Ms Murdock, do you want to respond to that?
Ms Murdock: No. I've responded to it numerous times already on the record.
The Vice-Chair: Further discussion? Mr Offer.
Mr Offer: I see this amendment as directing a representation or a secret ballot vote to take place if 40% of the members have signed union membership cards, and I certainly understand the background to this. I just feel that it is an argument to be made in vain. When the government has already rejected a vote with a 30% threshold, why would it accept a vote with a 40% threshold?
Ms Murdock: I would say that's very astute of you.
Mr Offer: Thank you. It is clear that the government is adamantly opposed to secret ballot votes. It doesn't matter what the percentage is. It doesn't matter whether there be a percentage at all.
Ms Murdock: You know that's not true.
Mr Offer: The government members are adamantly opposed to workers in this province having the right, freedom and privilege to cast a vote as to how their workplace is going to be governed. Think about that.
Ms Murdock: There is a secret ballot vote already. You know that. Between 40% and 55% already have a secret ballot vote, so the government is not opposed to a secret ballot vote.
Mr Offer: The government is totally opposed to a secret ballot vote, because a secret ballot vote is premised on information, it's premised on the absence of fear and intimidation, it's premised on the fact that majority will rule, and the government and the government members have consistently voted against amendments which seek to institute and insert provisions of protection for the workers of this province which are not now in effect. I have no doubt that when the vote is called on this, the government members are going to vote against. They're going to vote against because they voted against 30%. If this read 20%, they would vote against a secret ballot vote, and if this were 10%, they would vote against members voting and being allowed as employees to cast a vote.
Ms Murdock: Yes.
Mr Offer: They would be against employees in this province freely, secretly deciding how they wish their workplace to be governed. It is something which is going to be shackled on the necks of the government for the duration of your term. You are going to have to explain why you are opposed, and I will tell you something. It isn't enough to say, "It's pretty tough to count those ballots."
Ms Murdock: I'm not saying that. I'll explain. Because this would require--
Mr Offer: Mr Chair, if I could finish--
The Vice-Chair: Ms Murdock, Mr Offer has the floor.
Mr Offer: Thank you. It isn't enough to say, "It's pretty tough to count those ballots," because what you are doing is using examples of another year at another time and you are not admitting that what we are doing is attempting to institute a new process where the difficulties of the past are lessons that are learned so that in the future we have a process where those difficulties do not exist, where workers are able to cast a vote. You cannot say that because somebody had a difficulty five years ago, it means they will have that same difficulty in five years. It's not intellectually fair, because what we can do is institute a new process so that the difficulties of the past do not have to be followed in the future.
Bill 40, without any question, is a major step backwards. It takes away the rights of workers. Any piece of legislation which takes away the rights of part-time and full-time workers to determine how they are going to be governed, which takes away the rights of workers in existing bargaining units to decide among themselves how they are going to be governed, which takes away the rights of the workers, every worker in this province, to decide how he or she wishes to be governed, is not a step forward. This bill doesn't help. This bill creates roadblocks to cooperation and consultation.
But I will say--and I have had some difficulties, and let me put it on the record--I've had difficulties with Ms Witmer's amendment. Let it be clear: My party is not following that amendment, because that amendment seeks one thing, in that it seeks to abolish automatic certification. That's all that amendment does. It seeks to eliminate automatic certification, without any countervailing right extended to workers of this province.
I understand the principle behind the amendment, and I agree with the principle. I wish the government would agree with the principle. I wish the government would recognize that there should be no fear in letting workers express their own opinion. Unfortunately, the government has, time in and time out, indicated that there is a fear, because you haven't given the workers that right.
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It's a very serious area that we're at. I was hoping we might finish this whole section today. It's a key section in this bill; it's a key section in the Labour Relations Act. I'm not pleased with the way the government is moving. I'm not pleased in the direction and the orders the Minister of Labour has given to the members. I'm not pleased that workers in this province aren't being given the rights they deserve. I am not happy that rights which all people in this province share in elections are something the Minister of Labour has sought to exclude from workers in this province over their own workplace. It's unfortunate. It's not going to enhance cooperation, consultation, or consensus and I fear for the workers of this province.
The Vice-Chair: Thank you, Mr Offer. Further discussion?
Ms Murdock: I just want to remind Mr Offer that 9 out of 11 jurisdictions in Canada, including the federal government, agree with the position the government is taking. Also, based on your comments regarding Mrs Witmer's bill, I'm guessing that you're not going to support this amendment, given that, in effect, it removes the 55% automatic certification vote.
What this does is to require a secret ballot vote in every single circumstance where an organizing drive--and yet, at the same time, it still requires the organizing persons to go around and collect all the cards. It's just unacceptable that they should have to do that.
I think our main point is that we are just falling in line with other jurisdictions and as we've used that example in other parts of this bill, we're utilizing their experience as well, not just the American experience.
Mr Offer: I would like to respond because I think it's important--I believe the amendment which I put forward, reducing it to 30%, having a secret ballot after that trigger, is one I favour most. I will be supporting this amendment because, even though it carries certain problems, it is still better than what is proposed in Bill 40.
Bill 40 takes away rights of individuals. At least this amendment is attempting to institute and insert rights that Bill 40 is ripping out. I believe my amendment would have gone further and it's my opinion, of course, that it meets the needs I've heard at this committee.
I'll tell you something: I have a choice. I think the direction the government is moving in Bill 40 does not help workers in this province, because if somebody doesn't have the right to choose, he doesn't have the right to freely express an opinion as to whether to be part of a union. I believe that is not in keeping with the best interests of workers.
Mrs Witmer: I think it's important to note that we have provided, throughout the discussion, a series of amendments on different issues. We have tried to reflect the views and we've tried to arrive at a compromise position whereby, if the government doesn't like our first alternative, perhaps they can support our second or our third.
I would just like to remind you that I have 72 more amendments that take us all the way to the end of section 64. I have just noted that the Liberals have five more amendments which take us to the end of section 13. I don't think we're going to get finished by Monday.
The Vice-Chair: Thank you, Ms Witmer. Further discussion? All those in favour of Ms Witmer's motion, please indicate. Opposed? The motion is defeated.
Mrs Witmer: Continuing with section 8 of the bill, subsection 8(2) of the act, I move that subsection 8(2) of the act, as set out in section 8 of the bill, be amended by striking out "at least 40 per cent and not more than 55 per cent" in the second, third and fourth lines, and substituting "at least 45 per cent and not more than 55 per cent."
I don't want to spend a lot of time on this amendment. It simply maintains the differential of 10% for the level of support for a representation vote and the level of support for automatic certification. Since Bill 40 does not reduce the level of support required for certification without a vote to below 55%, accordingly, reducing the level of support required for a representation vote to 40% really lacks any rationale. That's all I'm going to say to that particular issue.
Mr Offer: I would just like to get a clarification. Does that not just reinstate the status quo?
Mrs Witmer: The status quo? Yes, it does.
Mr Offer: Then my question to the parliamentary assistant is, given the fact that you are not going to allow workers to express their own opinions as to how their workplace is to be governed, what is the rationale for reducing the percentage from 45 to 40? Apart from the obvious.
Ms Murdock: You premise everything so well, Mr Offer. It's not at all one-sided or biased in any way. No, it actually initially arose when we moved from 55 to 50. We moved both of them down, 50 to 40. Then, when we reached the consultation stage and Mr Mackenzie and I were out on the road throughout the province and had so much opposition to the the 50% plus 1, we maintained the 55% in the existing act; we just didn't move the 40% when we acceded to the wishes of the employers on the ceiling.
Mr Offer: That sounded like some sort of--forgive me--collective bargaining procedure you had gotten yourself into: "We'll see your 50 and raise it to 55; you'll lower that 40 to 45."
Mr Wood: It's called true consultation, Steve.
Ms Murdock: Truthfully, I don't think we actually thought of the floor of the amount--
Mr Offer: The government members say it's called true consultation, but in the end result, the law said 55 is automatic. When your so-called consultation started, the law said 55 automatic, 45 representation vote.
Ms Murdock: That exists in the act right now.
Mr Offer: That's what I just said. When you started the so-called consultation, you were working with 55% for automatic certification and 45% to trigger a vote. Now you've gone through the so-called consultation, and what are we left with? With 55 for automatic certification; 40, rep vote.
Mr Hope: That's what you wanted, though.
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Mr Offer: The question we have is, what is the rationale for moving from 45 to 40?
Ms Murdock: Mr Dean will respond.
Mr Offer: Some would say if you go from 45 to 40, then maybe you should go from 55 to 60 for a cert vote, for automatic certification.
Ms Murdock: I'm sure some would say that, but we're not going in that direction at all.
Mr Offer: I have no doubt.
The Vice-Chair: Mr Dean, did you have a comment to make?
Mr Tony Dean: The two threshold levels were considered separately; that is, there was a proposal in the discussion paper to remove the level for automatic certification down to 50% plus one, and a proposal to remove the threshold level of support for representation vote down to 40%. There was intense opposition from the business community, broad and intense opposition, to moving or relaxing the threshold level for automatic certification. There was nothing like that degree of opposition to the proposal to lower the threshold for a representation vote.
In fact, you'll know, Mr Offer, that the business community has widely supported secret ballot representation votes, and it was felt that leaving in Bill 40 the threshold level of support required for a vote at 40% would, in fact, to some extent respond to the business community's interest in seeing more votes.
The Vice-Chair: Further discussion? All those in favour of Ms Witmer's motion, please indicate. Opposed? Motion is defeated.
Ms Murdock: I move that the French version of subsection 8(2) of the act, as set out in section 8 of the bill, be amended by striking out "sur le caractère représentatif du syndicat" in the second and third lines and substituting "de représentation."
The Vice-Chair: Do you wish to speak to the motion?
Ms Murdock: The English version of this deals with "representation vote" in certification applications. The French version currently refers to votes on "representative character" of the union. This motion would change the French version to read "representation vote."
The Vice-Chair: Any discussion? All those in favour of Ms Murdock's motion, please indicate. Opposed? Motion is carried.
Ms Murdock: I move that the French version of subsection 8(3) of the act, as set out in section 8 of the bill, be amended by striking out "sur le caractère représentatif du syndicat" in the second and third lines and substituting "de représentation." Same explanation as the previous motion.
The Vice-Chair: Further discussion?
Mr Offer: When one speaks to the French version, I always thought that to change the French version to make it in line with the English was almost more of a housekeeping, technical type of situation, as opposed to a motion that might be the subject matter for discussion.
I just don't know. I'm a little concerned. Are we going to find ourselves in committees not only voting and discussing the substance of bills, but also discussing whether the French version truly reflects the English version of the bill? Mr Chair, I'm looking for--
Ms Murdock: We follow the lead of legislative counsel.
Mr Offer: I'm not going to discuss it further, except to say that this is the first time this has come to me, and it's a new area I would like to get some idea on for future bills, because we're not talking about the bill itself; we're talking about the French version of the bill being in sync with the English counterpart.
Mr Hayes: Is that why you refrained from voting?
Mr Offer: Yes, I don't know that it's absolutely--
Ms Murdock: If I may, sitting in legislative regulations committee going through all the legislation regulations, when we do get those bills and when legislative counsel write up the versions for us, they are to jibe one with the other, and they're to mean the same thing. If we are using the term, for instance, in this case, "representation vote," and the French version is using the terminology "representative character," it doesn't mean the same thing. It would have to be clarified in that instance. I'd rather have legislative counsel respond to the French version matching up with the English version.
Mr Offer: I always thought there was just an understanding, if not a motion that was made, that the French version of the bill would automatically be in sync. Of course you know what this means. It means, quite rightly, that in fact by these amendments we deal with two bills: the English version and then the French portion.
Ms Murdock: Oh, come on.
Mr Offer: I'm not saying we should do that, but this sort of amendment caught me by surprise. I always took it as a given that legislative counsel would be attempting to make the French version in sync with the English version or vice versa, but we would have one discussion over one section.
Ms Murdock: We just followed their lead.
The Vice-Chair: If I might intervene for a second, legislative counsel is here with us. Mark Spakowski may wish to comment on the procedure.
Mr Mark Spakowski: The bill before this committee is in two versions. It's not just the English version that the committee considers, and any change to the French version must be done by motion. You may be thinking of motions to amend the bill, which can be moved in one language or the other, and we will make the appropriate changes in the other version. But if the actual bill needs a change in one version or the other, it must be done by motion.
The Vice-Chair: Thank you very much. Further discussion?
Ms Murdock: Pretty soon we're going to have a requirement that all elected people in Ontario must be bilingual. I'm just being--
The Vice-Chair: Further discussion? All those in favour of Ms Murdock's motion please indicate. Opposed? Motion is carried.
Mrs Witmer: I move that subsections 8(4) to 8(7) of the act, as set out in section 8 of the bill, be struck out.
The intent here, obviously, now that our secret ballot amendments have been defeated, is to allow the board to consider petitions, in other words, evidence, after the certification application date. As you know, post-application petitions are currently the only way individual employees can express their desire not to join a trade union. The government is now proposing to eliminate petitions, even though they've always provided a means for a free and democratic vote on the issue of certification.
Again, I have to remind you that oftentimes organizing campaigns are carried on in an arena of secrecy. There is no legislative provision at the present time to ensure that workers understand the obligations they are assuming. They have no opportunity to revoke their decision once they sign a membership card. There's no protection at the present time that unions would have a responsibility to inform employees of what's involved in becoming unionized, what's the nature.
Unfortunately, because of the secrecy surrounding an organizing campaign, what happens is that it's often not until after the application for certification is filed that any meaningful discussion takes place among employees. It's only then that they have an opportunity to exchange views, ask questions, get a balanced picture of what it means to be represented by a union.
If we're not going to allow workers an opportunity to cast a secret ballot vote after they have been fully informed of what it means to join a union, then I would encourage the government to consider petitions after the certification application date.
The Vice-Chair: Thank you, Ms Witmer. Further discussion?
Mr Offer: I would just like to indicate that, by any objective evaluation, this committee has attempted to move as quickly and expeditiously as possible. Let it be known that in one day we have not been able to complete the section and subsections of this bill, and that is not for any other reason except that the bill is complex, carries impact and requires discussion.
Here we are: one day. I say this because the government has limited us to, not eight days, but in essence six days to deal with a bill, the magnitude of which, I suggest, many members are not comfortable with and informed enough about. I'll reserve the rest of my comments on that section, unfortunately, to the next day.
The Vice-Chair: It being 6 o'clock, we will adjourn and resume tomorrow at 3:30.
The committee adjourned at 1801.