WELLAND AND DISTRICT LABOUR COUNCIL
OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION
CANADIAN DAILY NEWSPAPER ASSOCIATION
ONTARIO SEWER AND WATERMAIN CONTRACTORS ASSOCIATION
ONTARIO COMMUNITY NEWSPAPERS ASSOCIATION
GREATER TORONTO HOTEL AND MOTEL ASSOCIATION
AMALGAMATED CLOTHING AND TEXTILE WORKERS UNION
ONTARIO COALITION FOR BETTER CHILD CARE
CONTENTS
Monday 10 August 1992
Labour Relations and Employment Statute Law Amendment Act, 1992, Bill 40
Patrick Melady
Hudson's Bay Co
David Crisp, vice-president, human resources
Welland and District Labour Council
Len Hircsu, president, Canadian Auto Workers, Local 275
Robert McCallion, president
David McIntosh, president, Niagara Peninsula Steelworkers area council
Office and Professional Employees International Union
Janice Best, vice-president
Canadian Daily Newspaper Association
Diane Barsoski, vice-president, human resources, Toronto Globe and Mail
Chris Davies, director, industrial relations, Toronto Star
Michael Doody, legal counsel and corporate secretary, Thomson Newspapers Corp
John Foy, president
Orval McGuire, chairman, human resources committee; director, industrial relations, Southam Newspaper Group
Ontario Sewer and Watermain Contractors Association
R.W.A. Cochrane, executive director
Michael Poce, past president and director
Ontario Community Newspapers Association
Ken Bosveld, first vice-president
Lorne Eedy, president
Harry Stemp, executive director
Osgoode Hall Law School
Harry Glasbeek, labour law professor
Eric Tucker, labour law professor
Greater Toronto Hotel and Motel Association
Ernie Nesbitt, vice-president, membership
Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local 172
Jerry Kinsella, business manager
Amalgamated Clothing and Textile Workers Union
Pat Sullivan, manager
Efre Giacobbo, research and communications director
Ontario Coalition for Better Child Care
Kerry McCuaig, executive director
Evelin Napier, education coordinator
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
*Chair / Président: Kormos, Peter (Welland-Thorold ND)
*Vice-Chair / Vice-Président: Huget, Bob (Sarnia ND)
Conway, Sean G. (Renfrew North/-Nord L)
Dadamo, George (Windsor-Sandwich ND)
Jordan, Leo (Lanark-Renfrew PC)
*Klopp, Paul (Huron ND)
McGuinty, Dalton (Ottawa South/-Sud L)
*Murdock, Sharon (Sudbury ND)
*Offer, Steven (Mississauga North/-Nord L)
Turnbull, David (York Mills PC)
Waters, Daniel (Muskoka-Georgian Bay/Muskoka-Baie-Georgianne ND)
Wood, Len (Cochrane North/-Nord ND)
Substitutions / Membres remplaçants:
*Cunningham, Dianne (London North/-Nord PC) for Mr Jordan
*Eddy, Ron (Brant-Haldimand L) for Mr McGuinty
*Fawcett, Joan M. (Northumberland L) for Mr Conway
*Ferguson, Will, (Kitchener ND) for Mr Wood
*Fletcher, Derek (Guelph ND) for Mr Dadamo
*Jackson, Cameron (Burlington South/-Sud PC) for Mr Turnbull
*Ward, Brad (Brantford ND) for Mr Waters
*In attendance / présents
Clerk pro tem / Greffier par intérim: Decker, Todd
Staff / Personnel: Anderson, Anne, research officer, Legislative Research Service
The committee met at 1330 in room 151.
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.
PATRICK MELADY
The Chair (Mr Peter Kormos): It's 1:30 and first we have the Centre for Individual Rights. Those are the people who were scheduled to be here. We've got half an hour. Please try to save at least the last 15 minutes for exchanges and dialogue and discussion. Go ahead, sir, tell us who you are, what your status is, if any, with the group which is scheduled this half-hour, and tell us what you will.
Mr Patrick Melady: My name is Patrick Melady and I'm an executive director of the Centre for Individual Rights. I'm here to speak on my own behalf. The centre doesn't have any difficulty with what I have to say. I'm a self-employed management consultant and I work in the field of labour relations.
I'm here today because I have serious and grave concerns for the future of my province. I believe that Bill 40 and its preceding incarnations -- the Burkett committee report, the leaked cabinet documents and the discussion paper -- will continue to seriously constrict economic activity in the short term, have a negative effect on growth in the medium term and damage the prospects for economic expansion in the long term.
Investment climate is a fragile aspect of any economy, so much so that perception is the reality. Investment decisions are made quietly, and Ontario will gradually disappear as an alternative on the investment priority lists. Bill 40 will be one cause of many in this process. Ontarians will never hear an announcement from a major international enterprise that it has decided to not consider Ontario.
Industrial peace, harmonious relations, economic development and economic expansion cannot be ordered by the Legislature of Ontario. If you believe that you can command, by legislation, industrial peace, harmonious relations and economic development and expansion, then I encourage you to do so, and you should have done so long ago without fear of political reprisal.
Since May of 1991 I, with the assistance of my colleagues at the Centre for Individual Rights and Melady and Associates, have made presentations regarding the changes in the Labour Relations Act in 10 communities in Ontario, Brantford, Burlington, Cambridge, Guelph, Kitchener, London, Mississauga, Waterloo, Windsor and Woodstock. We've spoken to more than 450 employers, to more than 650 individuals, and this represents approximately in excess of 35,000 jobs. The purpose of these presentations has been to educate those in attendance on the labour relations reforms put forward by organized labour and to develop and present an employer-employee agenda for labour relations reform. There was widespread support for the agenda.
I've made presentations of some of my concerns at the consultations on the Labour Relations Act in Windsor, and in writing. I've written many letters to both the Minister of Labour and the Premier. There have been numerous acknowledgements from them, but no answers to my inquiries or responses to my comments.
I have a concern for the need for labour relations reform. The government explanation for the need to change is that there has not been a review of the labour legislation for 15 years. The passage of time is not an explanation; it is an excuse deployed in the event there is no demonstrated need.
I have consistently voiced my concern for the nature and direction of the changes to the Labour Relations Act. I have consistently put forward my concern for individual rights, freedom of choice, accountability and responsibility of all parties in the employment relationship. I believe that the changes put forward in Bill 40 damage and infringe upon individual rights and freedom of choice while ignoring the propriety of accountability and responsibility of all parties to an employment relationship. I believe that individual rights and freedom of choice are being sacrificed in exchange for past and future political support. The politicizing of labour relations will lead to instability in labour relations practice, legislation and regulation. Private and institutional greed are only served by politicizing labour relations. There is no public good served in the process leading to Bill 40 or by the majority of the provisions in Bill 40.
The consultation process is and was flawed. During the consultation, submissions were struck from the record by the minister. You'll have to ask the minister why he did that. I don't know. I haven't got a rational explanation for it. The slow response from the Premier and the minister, the discrepancy between the expectations and the reality of the much-vaunted consultation process and the arbitrary and unfair distribution of time to consider and evaluate the government's Bill 40 all served to undermine confidence in the preparedness of the government to listen and respond to the concerns of the public. The process has been unfair and arbitrary and the government has been intractable and unresponsive to the valid criticisms and balanced input from the public.
During the consultation processes there were a number of presentations made by employees. I want to bring those forward today in part. The first one was from a group of employees at Northfield Metal Products, and the full text of the presentation is presented in the brief that you have. I will read some excerpts from it.
"We are employees of Northfield Metal Products and members of the employee communication committee. We also represent some of the 65% of employees in the province who are not unionized.
"In 1989 and 1990 we lived through the effects of the Labour Relations Act. We do not want to have to face this again. We do not believe that other employees should have to face the same barriers to decertification and denial of freedom of association that we had to overcome.
"We, as an employee group, feel that changes to the Labour Relations Act are way off base....There aren't many" provisions "in the act to support non-union employees who do not wish to be unionized.
"A representation vote was held in November 1988. The union won on a small margin. As an employee group we filed an objection claiming that employees of Vietnamese, Laotian and Cambodian descent had been misled by the union during the organizing and election campaigns.
"The labour board said that it didn't matter if they knew what they had voted for or why they had voted: A vote was a vote and therefore it counted. We had some of these employees at the hearings to testify as to what they were told, but the labour board was not interested.
"We feel that in today's workforce there are a large percentage of immigrant employees. The law protects them from employer discrimination; it does not protect them from being misled by union organizers."
At certification "it is our recommendation to improve communications:
"That the trade union and the employer hold an open forum for all employees, so that we as employees can hear both sides and make an informed decision after hearing all the pros and cons of working within a trade union. At the present time we are only allowed to hear the trade union side.
"Improved access to first-contract arbitration: First-contract arbitration should only be used as a last resort....
"Instead of being honest, the union" in our case "went ahead and asked for first-contract arbitration, then used this application to block a decertification drive that they knew was coming. As an employee group, we couldn't believe that the labour board set aside our termination application in order to go on with the first-contract arbitration hearings. We had 80% of the employees sign for decertification....
"It was only then, after we took the situation into our own hands and suffered financially, that the union agreed to set aside their arbitration request and let us have a vote for decertification.
"Our recommendations are:
"1. It should be made easier for employees to go in front of the labour relations board without representation from a trade union or a lawyer. The board should not take the attitude that all employees need or want a trade union. They should not overlook the employees simply because they don't have the legal knowhow to twist the labour laws to work for them. Trade unions should not be allowed to block any timely decertification drive....
"3. Before any union applies for first-contract arbitration it must be mandated by employees in the bargaining unit by secret ballot.
"The rights of employees should always outweigh those of a trade union."
There are more issues which they addressed.
"1. The signing of union cards should do not more than allow a vote, the same as an employee group signing a petition for decertification....
"5. The rights of an employee should always outweigh those of a trade union. Employees who are forced to join a trade union that they don't want should be allowed to decide for themselves whether or not they want to cross picket lines. We would prefer to see the law relating to this remain unchanged.
"6. Initiation fees: The initiation fees should remain and be raised to the equivalent of one month's union dues....A copy of the union's constitution should also be given to the employee before signing. This should be mandatory to allow for informed decision-making....
"8. The same rules and percentages that apply to union certification should also apply to decertification."
A second presentation was made by a group of employees, and this one was made in Kitchener on February 14. It was made by Cambridge Reporter employees. The full text is included in the brief for you to read. This particular presentation was struck from the record by the Minister of Labour. When you finish reading the presentation you can made your own conclusions as to why the minister struck from the record the words and thoughts of working people in Ontario. I want now to read just very briefly from it.
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On October 17, 1991, the union "asked the employees for a strike mandate, by conducting a strike vote.
"Some employees were not aware of the purpose of the vote. Some employees who were not present were allowed to vote by phone in favour of the strike mandate.
"Others who were not present, who had stated by proxy their opposition to a strike, were denied the opportunity to vote....43 votes were counted; 38 people were present. The vote was not well publicized, the vote was not secret and the vote was not fair....
"The replacement worker restrictions would allow the union the authority to declare legitimate work unlawful. This is not responsible government. To allow a union to contaminate work by making self-serving declarations is wrong. The observation that `the use of replacement workers during a labour dispute can lead to bitter and violent confrontations' is not a statement of the whole truth. In most cases" -- if not all -- "it is not replacement workers who engage in `bitter and violent confrontation,' but rather outsiders or those who are on strike.
"The employer, the union, and their respective supporters have to be controlled in their actions. The use of replacement workers is not the main cause of bitterness and violence. Those subjected to the violence usually are workers who have and want to do a job for the pay they normally receive -- for example, managers, members of other bargaining units, outside suppliers of goods and services, and non-striking employees. These are not replacement workers; they are workers who have their regular jobs to do. Why is the government even considering making honest, regular work illegal? The proposal to restrict workers from performing their regular duties and to further restrict the employment opportunity of others is to prohibit legitimate and appropriate behaviour. This proposal is a reward for breaking the law. The proposal is nothing more than ransom to economic terrorists."
Those are the words of a group of employees, not mine.
I now want to deal with Bill 40 and the character of it. The Minister of Labour, in his statement introducing the legislation to the Legislature on June 4, stated, "Our goal is to promote more dialogue, discussion and problem-solving between workers and employers." I have little doubt that there's a need to improve employee-employer relationships, to promote more dialogue, discussion and problem-solving between employees and employers. I have serious doubts that the legislation will facilitate such an objective. Bill 40 does not address employer-employee relations; Bill 40 addresses union-management relations. Bill 40 is more concerned with unions than with employer-employee relationships. The provisions of Bill 40 undermine employee self-determination, freedom of choice and democratic principles in the workplace. Bill 40 infringes on individual rights for the benefit of unions.
Bill 40 has to be examined for what it accomplishes and then exposed for what it is. These are the accomplishments of Bill 40: Bill 40 seeks to reduce competition for unions; expand the market for unions; ease access to the existing and expanded markets; assure monopolistic control of work normally performed by a bargaining unit; restrict communication to the captive market; reduce and eliminate risk in both new and proven market segments; monitor and evaluate the outcomes of the negotiations process, and increase labour board and arbitrator involvement in evaluating labour relations issues.
Bill 40 is a high-handed, economically motivated political effort by union bosses to achieve monopoly or near-monopoly in labour relations. This has the resonance of a business plan, if you are an 1890's robber baron seeking a monopoly in an industry or a 1990's union boss seeking to secure your pension through the flow of union dues.
Bill 40 does not deal with the needs of employees or employment relationships. Industrial peace and harmonious relations cannot be ordered by the Legislature of Ontario. Bill 40 intends to evaluate the relationship. The move from monitoring the process to evaluating the outcome in labour relations is passing legislative power and authority from elected officials to appointed functionaries. To whom are the labour relations board officials responsible?
I want to deal with some of the specific provisions.
The purposes: Bill 40 seeks to define the nature of relations between an employer and a union, to determine the direction of this defined relationship and finally to evaluate the outcome.
The purpose clause provides the Ontario Labour Relations Board and arbitrators with their marching orders in evaluating outcomes of the processes in labour relations: certification, negotiations and administration of collective agreements.
Historically, in the event of a tie in a vote, the decision would favour the employee-employer interest. The purpose clause directs that the union cause be favoured. The purpose clause builds a systemic bias which favours legislated union rights over individual rights and should not be accepted.
The combining of bargaining units: Bill 40 provides for the combination of bargaining units -- full-time and part-time and by geographic location. This is a denial of local autonomy and diminishes employee control over the outcomes and the decisions which directly affect those terms and conditions of employment that the union is supposed to protect. Bill 40 undermines employee participation in decision-making and problem-solving, clearly not consistent with the stated goal of the government.
Access to third-party property: The Bill 40 intrusion on private property for economic purposes is an assault on individual right to security of person and property. The aggressive and persistent union organizer now is allowed to carry on in a fashion similar to the foot-in-the-door sales technique, without a cooling-off period, an opportunity to reconsider or cost of membership.
The negotiation of collective agreements and mandatory provisions, such as first-contract arbitration, reinstatement following a strike, just-cause provisions and adjustment agreements, is the next area I want to deal with. My summary is that each of these and the other mandatory provisions reduces risk and therefore assures a level of benefit for unions in the negotiation of collective agreements. From an individual perspective, one has to ask, why are the rights of freedom of choice and association infringed upon in order to reduce risk for unions? It's not appropriate.
The arbitration provisions: Under Bill 40, an arbitrator will be empowered to determine what the issue is, investigate alternative solutions through mediative efforts and finally, if, not unlike the parties, he's unable to come to an agreed solution, make a decision.
The Bill 40 solution is to absolve parties from being responsible for clarity and to give the task to the arbitrator. This is a denial of effective problem-solving. To take dispute resolution from the parties is not good problem-solving technique. Bill 40 must require that the parties solve their problems, not pass them on.
Strike conduct and replacement workers: This is an issue of denial of individual right to work. The replacement worker restrictions will be effective only in the event a union gets a strike vote of 60% or more. Any strike vote by legislation today is supposed to be by a method that an individual's choice cannot be known. There must be ample notice of the vote, and all employees, whether members of the union or not, are entitled to vote.
If you read the Reporter employee submission to the consultation process, you will realize that these conditions are not squarely met. A threshold of 75% for invoking replacement worker legislation will significantly reduce the probability of union gerrymandering and will bring Bill 40 in line with the German model.
Bill 40 must be amended to require that a supervised vote take place within 48 hours of the commencement of a strike or after and separate from a ratification vote. Bill 40 must provide for employer communication to the workforce. Bill 40 must be amended to allow employees to decide, without fear of reprisal, to work or not. These are not replacement workers; they are regular workers. It is their jobs they seek to attend to.
The sale of business and contract tendering: Bill 40 refers to these initiatives as preservation of bargaining rights for unions. If the government's concern is for the poor, the poorly educated, immigrants and women in the workplace and if these are intended to protect them, then the government should address those issues, not the workplace. Address the issues of the poor, address the issues of the poorly educated, address the issues of women and address the issues of the immigrant, but not the workplace.
The last aspect I want to deal with is an agenda for change in labour relations. It is our recommendation that the preamble to the Labour Relations Act read, "Where collective bargaining has been established by a free vote of the affected employees, it is in the public interest that harmonious relations and industrial peace be maintained," and that a purpose clause be introduced to augment the preamble which includes the following elements: "to encourage cooperative approaches between employers and employees in developing and improving workforce skills and workplace productivity; to provide for effective, fair and expeditious methods of dispute resolution; and to protect individual freedom of choice to work and representation and security of property."
Certification should be by a free vote in an open campaign. The union should be required to provide employees with a copy of the constitution.
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Union accountability: We need to create a tax on union dues collected in the province which will finance the Ontario Labour Relations Board and the activities of the Ministry of Labour which directly subsidize organized labour.
Individual rights: There should be right-to-work legislation to assure the individual that the decision to work when work is available is upheld. We should allow for the redirection of union dues to a charity or recognized church by the simple completion of a form.
Collective agreements should be ratified by secret ballot.
Strike conditions, preconditions, conduct and guidelines: We believe that if a strike vote is necessary it must be by secret ballot and held separate from and after any ratification vote, making provision for a cooling-off period; second, that the parties file, as a precondition to a strike or lockout, a strike-lockout code of conduct. This code will set out the number of pickets at each location and will provide for a set of mutually agreeable conditions under which the parties will protect the public safety and interest while engaging in their dispute.
In conclusion, evaluating and directing the outcome of labour relations processes is territory fraught with danger. While it may be attractive to certain political parties today, these same political parties may not have the same view at the conclusion of a future election. The workplace in Ontario must not be exposed to the vagaries of the electoral process. Industrial peace, harmonious relations, economic development and economic expansion cannot be ordered by the Legislature of Ontario. There is no reciprocal benefit large enough to compensate for the reduction of individual rights and the diminution of self-determination in the workplace.
I thank you for listening today. I trust that you will prove your good intentions by bringing forward unanimous recommendations to uphold individual rights of freedom of choice in Bill 40.
The Chair: Thank you, sir. Mr Offer, Ms Fawcett, Mr Eddy; two minutes.
Mr Steven Offer (Mississauga North): Thank you for your presentation, Mr Melady.
In the time allowed, I wonder if you could share with the committee some of your thoughts on the secret ballot process. You have alluded to it on more than one occasion in your presentation, but you will know that one of the purposes of this bill is stated to be to facilitate and to streamline organization. You will also know that there have been some suggestions that this could be met if a secret ballot vote were instituted, which is different from what is called for in the legislation. What I'm asking for is your thoughts on a secret ballot where a worker would be given information as to what unionization may mean for him or her and then, after full information, be able to cast his or her choice either for or against, in a secret ballot to be held, I would suggest, at the employer's premises. I'm wondering if you might want to share your thoughts about that.
Mr Melady: Certification can certainly be expedited by allowing for a secret ballot vote or mandating a secret ballot vote. A lot of the delay that takes place today in labour relations and in certification is caused by the dispute as to whether or not a vote is going to be ordered or whether or not certification will be forthcoming. I would suggest that if the union makes an application with 50% or more of the cards signed, the labour board order a vote, and within a time frame. You can accomplish a secret ballot vote without extensive delays as long as the parties, the union and the management, acknowledge and realize that the secret ballot vote is going to be the outcome of a certification application; not automatic certification or the possibility of no certification but a secret ballot vote.
Mr Cameron Jackson (Burlington South): A question of clarification on your brief, Patrick. The quote was "rancid economic terrorism," and that was a unionized worker. Where was the example? What city was that?
Mr Melady: That's from Cambridge. It was "ransom for economic terrorism." Those particular employees had been exposed to crossing a picket line for about four months.
Mr Jackson: Yes, I was here for the brief.
My question then is with respect to page 23, individual rights, point 6. Are you familiar with legislation in Manitoba that offers a very narrow grouping of members of certain religious beliefs to have exemption from union dues? Is that the point you're making here; very simply, that for very strong religious convictions the inability to be a member of a union shouldn't be held against an individual?
Mr Melady: Yes.
Mr Jackson: That somehow that be reflected in the bill.
Mr Melady: The rationale behind the recommendation is that if you examine labour relations board statistics, you'll find that applications for exemption on religious grounds are, for all intents and purposes, acknowledged in somewhat less than 33% of the cases. In point of fact, what we have here is that 60% of the employees or individuals who seek exemption are denied that. All we're saying is, make it simple. Allow them to make their declaration of religious affiliation and not exempt them from the payment of dues but redirect the dues.
Ms Sharon Murdock (Sudbury): Thank you again, Mr Melady. Rather than ask you a question, as we have only two minutes, I just want to go to page 3 of your presentation and the paragraph in relation to the consultation process, where a submission was struck from the record.
As you are well aware, that occurred once in Kitchener. Given that during that consultation period there were so many people who wanted to make presentations, we added days on; when Tara footwear was called it wasn't Tara footwear that came forward at all. The minister stated it was an unfair and improper procedure to have someone who was not scheduled to appear come on misrepresenting themselves. As a consequence, that and only that submission was struck from the record that was kept. However, written submissions were accepted; in point of fact, the very group you're referring to will be appearing here tomorrow.
Mr Melady: I'm pleased to hear there was only one struck from the record. I'm disappointed to hear there were any struck from the record. I fail to comprehend --
Ms Murdock: With good reason.
Mr Melady: -- how you can have consultation and strike information from the record. You have a presentation made to you by a group of people who are citizens in the province of Ontario seeking to make their position known and you strike it from the record. That's inappropriate in my view, but --
Ms Murdock: They did not come through the regular process, Mr Melady.
Mr Melady: -- you're certainly entitled to your opinion on it.
The Chair: Thank you. I have no objection whatsoever to two, three or four people talking at once, but the translation staff and the people in Hansard who have to transcribe this have a great deal of difficulty with that.
Thank you, sir. I appreciate your taking the time to come here and share your views with us. The input of you and others is a valuable part of this process. We thank you.
Mr Melady: I appreciate the opportunity and if you want me back, I'd be pleased to return.
HUDSON'S BAY CO
The Chair: The next participant is the Hudson's Bay Co. Please, sir, be seated in front of a microphone. I want to remind people that there's coffee and other beverages here at the side, so people here as observers can make themselves comfortable.
Sir, you're here on behalf of the Hudson's Bay Co. Please tell us your name and your status with the company. Try to save at least 15 minutes of your half-hour for exchanges and dialogue. That's obviously a very valuable part of the process.
Mr David Crisp: My name is David Crisp. I'm the vice-president of human resources for Hudson's Bay Co. I have a short statement, about 10 minutes in length, which I've prepared in order to take you through this. It doesn't repeat but it backs up and clarifies the handout which I believe has been circulated.
Perhaps I should open by saying that the last time I was in attendance at one of these committee hearings was about 12 years ago. I attended in the room down the hall on behalf of the Ontario Secondary School Teachers' Federation when I was president of the teachers' union in North York and we were embroiled in somewhat the same issues as we are today.
There are four reasons for making the presentation today, and I'll enumerate them.
1. Hudson's Bay is one of the biggest employers in Ontario, outside government, with over 20,000 jobs.
2. We're currently well into a program of progressive employee relations: flexibility that empowers employees. We've done things like doubling our expenditures on training, for example, in the last two and a half years alone, something that none of our unions has ever asked for but which we have undertaken on our own because we see labour relations and employee relations moving into a new context for the future and we want to be there first.
3. I was hired to build those better employee relations, along with my credentials including that previous experience as leader of a union, in hopes that it would enable me to see and to maintain a focus for the company on progressive labour relations, so that I could understand both sides of the issues. I come to you as a collective bargainer of about 20 years' experience, having had considerable time in that period on both sides of the bargaining table.
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4. I believe Bill 40 goes in exactly the wrong direction for labour relations, backward not forward, hurting and not helping better relations for all parties. I'm extremely concerned about that and I believe I would have similar concerns were I still representing the other side.
Let me start by asking: "Was the change necessary? Was any change necessary?" I think the answer is probably, "Yes, eventually." In the middle of a recession is perhaps not the best time.
The next question is, "Are these the most helpful and necessary changes?" I think not. Together they mean business uncertainty for at least another five years. Business is unanimous that these changes will hurt. No one is saying on the business side they will help. I'm not going to play the game of guessing how bad or how many jobs or how many millions of dollars of investment may not be spent or may flee. That's guesswork essentially, best left to researchers, but no one on this side of the fence is saying that it will attract investment. Here are two of what I believe are the key reasons why:
First of all, North America in general is racing to catch up with employee involvement processes -- participation, cooperation, mutual problem-solving -- things that this bill states its intent is to address but which I think it addresses only in reverse. I used to believe, as the government now seems to, that management would only listen to unions if the unions had a bigger stick. This is somewhat like the United States arming perceived weaker nations to promote peace. We know the outcome of that has been continuous war around the world. We need real participation mechanisms, particularly in business where war has no place, where people get to have a say through freedom of speech and the ballot box, not through bigger armies with army commanders dictating the moves independently of the people. That's the participation argument.
Second, we must strive towards less outside -- in this case, government -- intervention and overmanagement, not more. People should solve problems best face to face when facts count more than legal rules of diplomacy. We don't need more legislation with more arbitrators with more powers, but less. To create more of these is even inconsistent with giving unions more power. If we believe that they should have more power, why do we need more outside intervention at the same time? Let's let people, information, free speech, free choice and issues along those lines create the participation. Don't drive a bureaucratic wedge between face-to-face problem-solving.
The proposed legislation is at least as disappointing for its glaring omissions as for the irritating details of big stickism and big brotherism that it does contain. The real power in collective bargaining does not come from restricting replacement workers, which reduces free choice, nor from eliminating petitions and employers' free speech, nor from giving the labour board not only a mandate for automatic first-contract arbitration, which cuts off all bargaining at those agreements, but an even more dangerous power, which has been very little discussed so far: that it would be able to change any term in any agreement if it finds bad-faith bargaining.
What will the word "agreement" mean if it can now be modified and dictated by outsiders, and how can the labour board not accept to dictate terms when it is required to find and remedy bad-faith bargaining? "Bad faith" will be defined by a completely one-sided purpose clause that says you haven't bargained unless the final result is to improve terms and conditions of employment. We've seen, for instance, that when employers want to merge job hierarchies in order to justify and promote cross-training between job classifications, it creates enormous resistance.
How can the labour board not bend to that kind of pressure and agree that somehow eliminating job hierarchies is not improving terms and conditions of employment? And if that's the case, how can we make progress in those training areas? That's a single example of a great many issues that will fall by the wayside if we do not have greater balance in this legislation.
Hugely widened powers of arbitrators will even drag the Canadian Charter of Rights and Freedoms into private collective agreements between private parties when it was properly designed to look at laws and government process only. Settlements under this condition will either take years or be so subject to the whims of individual arbitrators as to be completely unpredictable. We can't even begin to guess what all of this process and new power for these arbitrators and the labour board will produce. Will already powerful unions use the extra power to wield an even bigger stick and small unions use legal processes to slow business, small business especially, to a standstill? We can't guess, and that's why uncertainty will continue.
The claim that existing legislation left unions helpless is obviously refuted by the existence of big, powerful unions and big settlements in some industries. Why make these more powerful to try to get at other industries where the current model didn't seem to work? And why use more of the same old model to do it when that model didn't work?
The proposed new powers by and large will not change bargaining power much except to confuse things. I'd rather not be back here in a couple of years repeating all this.
Here are three items that should be happening now:
First, balance the purpose clause and at the very least delete the one-way handcuff statement "to improve terms and conditions of employment." Bargainers -- I can speak from experience -- will all just play the game anyway if saying that every demand on either side is somehow an improvement and arbitrators will be called in inevitably to split hairs over the difference. Oftentimes improvement is a subjective judgement in any event in a single collective agreement; you can only see it retrospectively over a long period of time and it's often a matter of opinion.
Second, don't multiply the weapons on both sides or either side. Either concentrate interventionist power only with the board and arbitrators once and for all and take it away from other legislation and from unions and business and have an arbitrated society, which I would not recommend as a proponent of collective bargaining, or reduce that kind of interventionist power, focus it on issues, limit it to the scope of the parties' nearest positions or to previously agreed language. It's far too sweeping the way it's designed currently.
Third, by all means open the processes on both sides as much as possible to daylight. Free speech, free secret ballot votes, meaningful times create informed consent, something sorely lacking for many employee groups now. The real power I had as a union leader originated from the fact that we held votes to okay our strategy every month of two and a half years of our toughest negotiations -- votes based on elected representation by population and, finally, votes supervised by the Education Relations Commission by the entire bargaining union, not 10 or 12 people at a strike vote meeting a year before the strike date binding several hundred people in the bargaining unit for the future.
I would urge you to consider these points, the three key issues: balance throughout, especially the purpose clause; focused and fair powers of the board and arbitrators; freedom of information and choice for employees over unions and anyone else. These are the cornerstones of effective, progressive legislation and effective, progressive union-management relationships.
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I won't elaborate on the rest of the issues; they are just detail. I would certainly encourage you to ask me the toughest questions you've got. I think retail has been a target of this legislation. There are a lot of misconceptions about what we do, or don't do, with and to employees in this industry. I think we've got an extremely defensible operation, and I'm more than happy to answer any question you like.
Mr Jackson: On that note, first of all, thank you for your thoughtful brief; you bring with it a lot of experience on both sides of the collective bargaining table.
Visible minorities and women predominantly make up the workforce in retail, and I suspect they do as well with the Hudson's Bay corporation.
Mr Crisp: Yes, they do.
Mr Jackson: Part of that debate has to do with full- and part-time benefits. To what extent are there protections for women in these sensitive areas, even pension benefits, as a woman worker hits her 50s and has enjoyed full-time employment for many years? What kind of protections are there presently occurring in the retail sector?
Mr Crisp: You're quite correct; about two thirds of our total employee population are women, a substantial number, and we haven't completed the figures for employment equity or minorities. The protections are equal all the way around. The benefits are somewhat pro rata; they're smaller benefits for part-timers than full-timers. But I should point out that they're identical where we have full-time and part-time unions, as they are in the non-union setting for full- and part-timers.
We are about 10% unionized in Ontario. I think it's about 8% across the country. In Ontario, that represents about 13 or 14 collective agreements, and the benefits are identical throughout.
Mr Jackson: You referenced in your presentation about the concept of whipsawing smaller businesses, and in the retail sector that's very important. We know that the pending Sunday-opening legislation is going to adversely affect the small operators. Is it your contention that small retail operators will be adversely affected by the processes that may be set out in this legislation?
Mr Crisp: I think both big and small retailers are about equal, and in answer to that, I should make a comment that I've made in a couple of other settings. In Hudson's Bay, although it's one of the biggest companies overall in the retail business, it's sometimes hard to recognize whether you are a big business or a small business because we operate through individual stores, which are relatively like small businesses in some respects.
For instance, 200 or 300 people in a warehouse setting can shut down the entire company with a strike because they can choke off deliveries to the stores, and we'll be out of business within two or three days. A single store with 200 or 300 people in it could go on strike indefinitely. In fact, where we have non-replacement worker legislation in Quebec, in my tenure on the job, two out of the three stores that shut down never reopened after five-month strikes, because it's easy to walk away from a single store, and if you know it's not going to make money as a result of the bargaining, why go on?
So it's very lopsided. Are we a big business that can be shut down on a broad scale by a few people and hurt 20,000 or 10,000, or are we a small business where it doesn't matter?
Mr Jackson: Could I put a fine point on the Quebec example? Would the benefits to the workers vary if it was a corporate decision to close that store in Quebec or if its closure was a function of the adverse bargaining climate and the forced closure of the store due to the strike?
Mr Crisp: No. As many companies do now, we run an internal set of policies and procedures that maintain equity for everybody. As legislation changes and we update those, we update our collective agreements at the same time. So everyone is treated equally, unionized or not.
Mrs Dianne Cunningham (London North): I was wondering if you would remark somehow, with your past experience, with regard to replacement of teachers -- I certainly was there when you were there -- how you have a difference of opinion and how you may feel this law itself may have a different focus for different groups. Or would you say just what you've written in your brief: that is, under no circumstances should we be looking at a ban of replacement workers during strikes?
Mr Crisp: In the teacher setting I was in, there was no ban on replacement workers. In fact, the parents organized themselves into replacement teacher-workers. It wasn't very effective because of the scale of the industry. Quite frankly, I think the major difference between retail and other industries is this scale question.
It has nothing to do with replacement workers or any of the other issues, basically. It has to do with the power a union can or cannot wield by having a large number of members in a single location as opposed to a small number. That's why I think if one is going to make any changes at all in the legislation it would be better to favour participation mechanisms, free choice, cooperation and so on rather than focus on the old format of labour relations.
Mr Bob Huget (Sarnia): Thank you for your presentation. I've been going through parts of the areas you list as concerns. I want to focus on your point 4 for just a second, the organizing and picketing on third-party property. I guess it's important to realize that the amendments would allow for lawful picketing activities, lawful organizing activities, at the entrances and exits, I believe, to a retail business. They also provide that if that activity is disruptive or illegal, there can be restrictions put on that activity. I think it's an important point to consider. I know you mention picketing and leafleting having a detrimental effect on consumer confidence, but I also think it's a fair way for workers who choose to organize to be able to do so.
In broad terms, you raise a number of issues here. Time doesn't permit going into each and every one of them, but I think in very broad terms I would like your views as to how this legislation would specifically affect relationships with your employees now. The reason I raise that is that in your brief a number of times you mention the progressive nature of the retail industry and the Hudson's Bay Co in particular, the fact that you have very much a workplace-responsive, responding and changing attitude as far as addressing workers' concerns. I would assume from this that you have a cooperative relationship with your employees currently.
What I'd like from you are some specific examples as to where this legislation would do anything whatsoever to interfere with your relationships with your employees, which apparently are very cooperative now.
Mr Crisp: We do think they're pretty good. I think there was a second question in there which maybe I can answer briefly first on third-party picketing. Again, this is an issue of the scale of the business. Some pickets outside a Hudson's Bay Co store in a mall are not going to devastate the Hudson's Bay Co business, but for a small employer with one door who can be swarmed by pickets, there's a serious issue here. I agree there are some regulations built in, but in my experience -- I'll give you a Quebec example. It is not unusual for the union to storm through the store on the first day of a strike, smashing glass cases and plastering stickers on all the windows, which are very difficult to remove. Obviously you can't prevent that kind of thing even if you stop picketing in the malls, but I think it would be better for this legislation to address violence on picket lines directly rather than backwardly.
On your second question, how are the relationships going to be affected, the real effect comes from the increased powers of the labour board and the arbitrators. Yes, we think we have fairly good relationships. We work fairly cooperatively. We have very few grievances, for instance.
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One of the reasons is because frequently issues get referred to the labour board. Some of our unions take the position: "If the government has a process for handling this, we give it to the government. We don't want to work it out. We tell our employees that the government has a way of solving this." So we never get to come to grips with the issue face to face and work it out. We end up in front of an arbitrator who doesn't understand the business process.
This legislation introduces an enormous amount more of that opportunity. A first contract is only a start. In any collective agreement the labour board will be able to produce new terms and have hearings on the issues and so on. That fact alone, which has hardly been talked about in the discussion of the bill, to me is probably the biggest issue in the entire legislation. People are overlooking it entirely.
We don't want a wedge. We don't want board arbitrators and private arbitrators jammed in there who don't know what our business is all about. We want to talk to our employees face to face. If the union's there, fine, but don't keep the arbitrators there. We don't want them.
The Chair: Mr Ferguson, briefly please.
Mr Will Ferguson (Kitchener): We've heard the number of dislikes you have about the legislation. Could you tell us what you would be able to support in the proposal?
Mr Crisp: Because the overall key issues are so much in the wrong direction, from our view, it's really hard to pick out single pieces and say okay. We're glad to see a secret ballot introduced in some areas and vote levels set and things like that. There are a number of these issues that have gotten major discussion in the press that from our individual point of view are neither here nor there, but the fundamental, underlying processes are just not right for 1992 and the future.
Mr Offer: Thank you for your presentation. I have a question on the issue of organizing on private property. I ask this question because of the particular business you're involved in. As you know, the legislation does permit that. You'll also be aware that it is not necessarily limited to shopping malls but rather has a much broader application and implication.
We have heard, for instance, that department stores such as yourselves might be involved in licensing out parts of the store. I'm going to use as examples cafeterias, photo marts and travel agency stores. The reading of this legislation on that one aspect would allow picketing in front of, for instance, a cafeteria, a photo mart or any licensee of your operation that would be found within the department store.
My question to you is, first, whether you are engaged in the licensing part of your department store operations; second, whether on a reading of this legislation this could take place, and third, what the impact in your opinion would be to the shoppers coming to your stores.
Mr Crisp: Not only could but most certainly would take place. Yes, we do license a number of operations. I'll speak about our beauty salons because that's a good example. We also have shoe repair, key chains, food services, tailor shops and that kind of thing which are often licensed, but the beauty salon is a good example. The bill would mean that the picketing, if and when it does occur, would occur in front of the beauty salon inside the Hudson's Bay retail store.
In fact, we had a small strike in our beauty salon in the Queen Street store that used to be Simpsons a year or so ago. The picketing was out on the street, but under this legislation it would have been on the third floor in front of the beauty salon. I guess my remarks earlier apply: The more restricted the space, the more danger there is of confrontation, violence and so on.
It is also going to put us in a peculiar situation, because our internal security will have to police this in some way. We're going to be in constant danger of some kind of conflict of interest if our security people overstep whatever the labour board thinks is its jurisdiction.
Mr Jackson: Or they refuse.
Mr Crisp: Yes. Also, I can picture the police not being very happy to come in and stand all day on the third floor and supervise the picket line there, so there are quite a number of problems here. This is one of the unknown areas of the legislation that I referred to. There are many unknowns. We have no idea. It could work; it could be a disaster. A large part of it depends on how the courts, the labour board and the arbitrators implement it. What this does is take away a tremendous amount of power from the parties to sort these things out and throws it into a very lengthy process that just drives people further apart.
Mr Offer: When we think about how the board may make decisions, we have to layer on top of that the new objects clause as proposed under this legislation.
Mr Crisp: Absolutely.
Mr Offer: My second question has to do with an issue which is very important, very serious. It was brought up last week and you have brought it up again today. That is the issue of arbitrators being able to determine absolutely the real substance of issues. To me, when I look at the amendments -- I know this might not be the stuff that things are discussed -- it is really an issue of whether the unions or the management have as a fundamental right that of due process. I know you have operations throughout the country. Could you share with us whether there is, in your mind or in your experience, any legislation which really supersedes the issue of due process, as has been done in Bill 40?
Mr Crisp: No, none at all, to my knowledge. As soon as you open the door to going beyond the clauses in the agreement that the parties agreed to and allow arbitrators to get into "the real substance," we don't know what that will mean. First of all, I think it's going to take 10 times as many arbitrators. I use that number advisedly -- 10 times, not five or three times. About 10 is my guess.
Right now the parties often have trouble choosing an arbitrator and getting one they both perceive as fair in anything under a year or two. A couple of weeks ago I had one arbitrator give me a date for an arbitration two and a half years away, because they're so booked up, the good ones. Now all of a sudden we're going to multiply the number of arbitrators from about 100 to about 700, 800 or 1,000. Are we going to train them? Are they going to know what these issues are about when they start to define "the real substance," which goes way beyond what they could do before? We haven't got a clue.
When we say that it's going to create business and economic uncertainty, this is the kind of thing that even when the legislation is passed and we think we know what it means, we're not going to have a clue what it means until we see what those 900 new arbitrators do.
The Chair: I want to thank you and Hudson's Bay Co for coming here and participating in this process. Your comments were interesting and I'm sure will be valuable to committee members when they develop this to the point of clause-by-clause consideration.
Mr Crisp: Thank you, Mr Chairman, members.
The Chair: I want to remind people that these are public hearings here at Queen's Park; the public is entitled and indeed encouraged to attend. There's seating for members of the public to sit as observers. We're sitting today until 9 o'clock; we'll be here until 5, and then from 6:30 until 9. We'll be sitting here tomorrow from 10 am through into the evening. People are encouraged to participate in person. Of course, transcripts of these proceedings, a portion or all of the proceedings, are available free of charge by way of Hansard to anybody who is interested, simply by calling your MPP's office or the clerk of the standing committee on resources development.
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WELLAND AND DISTRICT LABOUR COUNCIL
The Chair: The next participants are from the Welland and District Labour Council. Please tell us your names, your positions and commence with your presentation. Please save the last 15 minutes for dialogue.
Mr Robert McCallion: Good afternoon, Mr Kormos. I'd like to introduce the delegation with me today. On this side I've got Len Hircsu, who is the president of the Canadian Auto Workers, Local 275, in Welland. My other colleague is David McIntosh. He's the president of the Niagara Peninsula Steelworkers area council.
Mr Chairman and members of the standing committee, the Welland and District Labour Council represents thousands of unionized workers in and around the Welland area and we're here today to speak to the standing committee on the government's proposals for the reform of Ontario's outdated labour laws.
We welcome this opportunity to consult on our proposals for ensuring that workers in all of Ontario's sectors have improved access to the benefits of union organization and collective bargaining.
While the business community continues its intensive campaign of denouncing reform as more sand in the wheels of industry, we are simply saying that workers should finally be given recognition as legitimate partners in the workplace and in the provincial economy and should be able to freely exercise their right to choose to belong to a union.
Even though many employers in Ontario have developed successful relationships with unionized workers, there remains a host of them who practise sufferance at best or outright hostility at worst. Moreover, those employers without organized workers continue to do everything in their power to oppose unionization, publicly branding it as a clandestine or illicit organization which should be feared by all the people of Ontario.
The labour movement has faced this well-organized opposition for decades, and through our proposals for reform, we hope to finally win the recognition and responsibility that workers deserve in today's world.
We would like now to continue on to outline some of the areas where we feel changes to the existing legislation are most needed.
The right to organize: As businesses in the province have and use the right to freely associate and join their unions, for example, the chamber of commerce, the manufacturers' association and so forth, we support the expanded right for workers to organize under the government proposals.
We must point out, however, that unnecessary exclusions still exist, particularly in the area of domestic workers. It's clear that unless provisions for a sectoral type of representation are developed, the right to organize is essentially meaningless.
We have attached to our brief an article from the Globe and Mail of Thursday, August 6, 1992, and this is just one of the examples of the horror stories that have taken place and exist in our province. In this province, there's absolutely no reason for things of this nature to take place, so we feel this should be addressed.
The provision for sectoral organization is one that will have to be addressed in a number of instances if workers are to be given a real chance to exercise their right to join unions.
Organization and certification: We can only say that there is just one way to ensure the protection of workers during a union organizing drive and that is the total prohibition of discipline and discharge unless the employer obtains leave from the Ontario Labour Relations Board in advance. Without this restriction, bosses will continue to destroy the workers' right to make a free choice to join a union.
There are numerous cases -- we've encountered this before -- where people have been threatened, people have been discharged, and we have to go through the process. It takes months and sometimes years to get people back. What happens is that the act of people being disciplined has a very punitive effect. We feel there's no place for that in a workplace.
Part-time employees and appropriate bargaining units: The labour council welcomes the amendments to section 6 of the act, which direct the board to find that a single union of full-time and part-time employees "shall be deemed by the board to be a unit of employees appropriate for collective bargaining." These are subsection 6(2.1) and 6(2.2). To combine these two groups of employees, it will be necessary that a simple majority, 50% plus one, of the combined groups of employees be members of the union. Where the union has less than 55% support, separate full-time and part-time units will be required.
These amendments will help unions address the low rate of unionization among part-time employees, a considerable proportion of which are women and visible minorities. The addition of part-time employees can help strengthen a single bargaining unit rather than create another weak one. At the same time, the combining of bargaining units can facilitate the efforts of an increasing number of part-time employees to improve their benefits and compensation levels as well as their job security.
I'll deal with the legislation regarding the use of scabs in the province. The legislation restricting the use of scabs during a labour dispute is of the utmost importance to all of Ontario's working people. Employers continually take advantage of the unemployed by offering wages generally in excess of the normal and hiring them as scabs.
In addition, these unfortunate workers are not provided with any proper training, correct operational procedures or the health and safety aspects of their jobs, therefore exposing them to possible severe injury and further degradation of their status in our society. It's one of the cruellest exploitations of working people in the province, the continued use of scabs throughout the province.
Since anti-scab legislation was introduced in the province of Quebec, the violence, number and duration of labour disputes have been drastically reduced. Recently, Le Conseils Du Patronats, the largest Quebec employer group, has withdrawn its legal opposition to this legislation.
Finally, coming to the conclusion that this legislation works to the benefit of all, hopefully the employers of Ontario will not take nearly as long to reach this same logical conclusion. An interesting aside is that 95% of industrial disputes in contract legislation in Ontario are resolved without the use of industrial action.
The right to return to work: The Welland and District Labour Council supports the new statutory provision, section 75, concerning a back-to-work protocol that parallels that of other provinces such as Manitoba and Quebec. This amendment will apply whenever the union and the employer cannot agree on the terms for reinstating striking employees at the termination of a lawful strike or lockout. Where there is no agreement on reinstatement, the employer is now obliged to reinstate -- "shall reinstate" -- the striking or locked-out employee to the position held before the strike unless there is not sufficient work.
Where work is insufficient, employees must be recalled in accordance with their collective agreement recall provisions. Where these do not exist, the recall must be in accordance with each employee's length of service. Striking employees are explicitly entitled to displace non-bargaining unit replacement workers.
This amendment will have a positive impact on those few lengthy strikes where employees and their union have little bargaining power left. It will also throw into question whether or not an employer, following an employee's reinstatement, can discipline or discharge an employee for conduct during a strike.
Employee benefits continuation: Section 81.1 requires employers to continue paying employment benefits, other than pension benefits, when a strike or lockout commences, provided the union tenders payments "sufficient to continue the employee's entitlement to the benefits." The employer is prohibited from denying or threatening to deny such continued benefit coverage.
This benefit continuation amendment parallels that of other jurisdictions such as Alberta, Newfoundland and Manitoba, as well as becoming the norm in most Ontario labour disputes.
We've had some bitter experiences with this in the past dealing with some major corporations that commenced with a strike. The first thing they did was discontinue the hospitalization and the drug plans for their pensioners, and we had to take the pensioners out in November and have them picket and embarrass the major corporation back into paying the benefits.
The Human Rights Code: The Welland and District Labour Council feels that the Human Rights Code should be included in all collective agreements. This would save workers untold suffering, frustration and lengthy delays in resolving violations of their human rights. These problems could be resolved by experienced unions in the arbitration process in a more humane and expedient manner.
To conclude, we must comment on the unfortunate stand taken by the business community on the issue of labour law reform. They have convinced themselves that the democratically elected NDP government and its modest proposals to amend the Labour Relations Act will leave the province in a shambles. They would have you believe that upon enactment, these reforms would cause investment to dry up, manufacturers to relocate and businesses to close.
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For example, in our community of Welland, the local development commission was quoted in a brief to city council as saying, "If enacted, Ontario labour laws, already very favourable to unionization, would become the most anti-business in North America." They were asking council to formally oppose labour law reform. Fortunately, the Welland council rejected the request after hearing from representatives of our substantial labour community. They recognized, we are sure, that unions have been good for the city of Welland. In fact at one time Welland was listed as having the highest per capita income in all of Canada, due in large part to the influence of organized workers and their ability to negotiate a fair share of employers' earnings.
The facts are that organized workers have played and will continue to play a role in the structuring of workplaces in Ontario, and have been a positive influence on the economy of the province as well as a driving force behind progressive social changes.
Employers and our friends in the opposition must stop trying to terrorize the citizens of Ontario and begin working with business and labour in order to meet the challenges of the future. They cannot continue to blame the devastation caused by Mulroney and the federal Tories and their free trade disaster on this government and organized workers in this province.
They cannot continue to mislead, either through ignorance or by malicious design, the citizens of Ontario in the manner that they have throughout their anti-reform campaign. As a very recent example, we include an article from the Welland Evening Tribune of August 4, 1992, where our local chamber of commerce is quoted with obvious falsehoods about unions and statements that seem designed to panic our residents on the issue of labour law reform.
We must ask ourselves if the issue is really one of opposition to labour law changes that will bring us into line with other jurisdictions across Canada or whether it is a continued backlash against the democratically elected government as a whole.
Finally, Mr Chairman, I'd like to express our appreciation to this committee for giving us the opportunity to further consult and express our views on labour law reform, an issue we have been concerned about for many years. We urge the government to stick with its decision to update the Labour Relations Act in order to meet the many demands of our rapidly changing society.
We urge you to seriously consider the recommendations that we have presented to add further improvements which we feel are necessary in order to make workers' rights to choose a union free and unfettered.
This concludes our brief, and we're willing to respond to any questions from any members of the committee.
The Chair: Thank you, sir. Mr Fletcher, five minutes.
Mr Derek Fletcher (Guelph): Thank you for your presentation. You've stated that through the years there have been a lot of benefits reaped from unions and how they've worked with business. Can you be more specific, especially in the Welland area? Be specific to your area, if you'd like.
Mr McCallion: Welland has been very lucky. If you go back to the history of Welland, back to around 1930 and so on, a great group of new Canadians, as they call them now -- immigrants -- came to Welland. They organized and they persevered. They fought their bosses. At that time, workers had to line up outside the steel plants in Welland, and the foreman would come out and pick who he wanted. These people fought all this. They raised awareness. They fought for pensions, they fought for health benefits, they fought for a multitude of things. They fought for their proper share of the goods that they produced. It's a very simple concept, that we should do that.
Mr Fletcher: Do you think anything in this legislation -- and I've heard part of your argument -- is going to be detrimental to Ontario as a place to invest, as a province that is, in the words of your chamber of commerce, the most pro-labour place in the world? Is the legislation going to tip the balance?
Mr Len Hircsu: I would like to address that, Mr Fletcher. I think the proposed changes to the Labour Relations Act in fact will enhance competitiveness in businesses across Ontario. The concept behind the changes is to bring forth a more cooperative effort between unions and management. I think the competitiveness argument, which is used by a lot of businesses across Ontario, is false, simply because you can always go somewhere else to find cheaper wages; if you don't go to Mexico, you can go to South Korea. There's always a place for cheaper wages.
The key to making business competitive is for cooperation between the workers -- the grass roots of any business -- and the employers. These changes will enhance the workers' ability to step forward, with the protection of a labour union, and make positive, concrete suggestions and lend their expertise to the business they're employed with.
Mr Fletcher: Do you feel, from a labour perspective, that Bill 40 is promoting the atmosphere of working together? Is it knocking down barriers or is it creating more walls?
Mr Hircsu: No. The anti-scab legislation especially is one, where workers now can freely participate in collective bargaining, without fear of having someone come in to take their jobs, without fear of reprisals. If, God forbid, they ever have a labour dispute, their jobs are safe when they come back, when both management and the unions have sat down and bargained in good faith and reached a fair collective agreement which, as Brother McCallion says, in well over 97% of the cases in Ontario is actually the fact.
Mr Offer: I have a question on the issue just brought forward about cooperation and respecting the rights of workers. You won't find a great deal of argument from me on that issue. However, I want to address the issue in terms of Bill 40, specifically for the part-time workers of this province.
I want to try to give you some sort of scenario. There is a setting where there are, for instance, 100 employees, of whom 75 are full-time and 25 are part-time. There is a vote about the combination of the full-time and part-time and the vote is that 55 of the full-time say yes to combining full-time and part-time and zero of the part-time workers; as far as they are concerned they do not want to be combined. Under the legislation, it doesn't matter; they're combined. I'm asking you the question as to whether you feel the rights and real and true wishes of those part-time workers are really addressed by a provision of this kind and, if so, how so?
Mr McCallion: Brother McIntosh will answer this question.
Mr Dave McIntosh: It's been our experience over the years that when you have two separate agreements dealing with part-time and full-time workers, it gives management a lever to play one off against the other. This happens frequently. It's quite common, particularly in our nursing homes in this province, where they are unionized, where both full-time and part-time help work under the same basic contract but with addenda to address the issues of the part-time workers. I see no reason why that couldn't be done overall in industry, whereas right now it is not a general practice, except for the nursing homes.
Mr Offer: I thank you for the response, but in your response you spoke about management having a lever. My question was really directed to the rights of those part-time workers, the men and women in that category who may have decided that they don't wish to be part of a unit that has in it a permanent force --
Mr McIntosh: Your question was hypothetical. It's pretty hard to answer a hypothetical question. In my experience, I find it very hard to believe that part-time workers would, as a bloc, vote against going into a contract with full-time workers who generally have greater benefits and better wage levels and working conditions.
Mr Offer: Yes, you're absolutely right. My question was hypothetical, without doubt, but the reason for my question was that it has to be hypothetical because this is not now allowed in the act. My question was really directed to the principle of the right of those part-time workers to have their true wishes demonstrated, but I understand how you've responded. I would have liked, if at all possible, to have heard a response dealing with the principle of whether the rights and wishes of the part-time workers of this province should be given equal hearing with those of the full-time workers.
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The Chair: Mrs Cunningham, nine minutes.
Mrs Cunningham: As to the press clipping you referred us to initially with regard to domestic worker legislation, I'm wondering specifically how you see this bill helping in that regard. I consider it a problem and I'm wondering how this bill will help.
Mr McCallion: The only way is that you'll have to have some sort of advocacy program and it'll have to be through sectoral representation. If you're going to try to organize individual domestic workers -- that's what we're talking about, individual domestics?
Mrs Cunningham: You referred to it and I'm aware of the need. I'm just asking, as you put it in the context of this bill, where this bill will be helpful.
Mr McCallion: This is a recommendation to you to improve this bill.
Mrs Cunningham: As a politician, I stand on the stage and somebody waves something like that around to the audience, and it's not unlike waving around the workplace and occupational therapy improvements that went on; it's just out of context and doesn't relate. If that's your point, that's fine, but I thought you were telling us there was something in this bill that was going to be helpful. I wasn't aware of it, and that's why I asked the question.
Mr McCallion: We saw it as a shortcoming. We feel, as responsible citizens, that it's an outrage that this happens in this province, and I'm sure you would support that.
Mrs Cunningham: All I can say is that if I were in government right now, I would be trying to pick those kinds of things and fix them, as opposed to coming out with a blanket statement with some pluses and minuses, as this legislation does. I don't think anyone who has come before the committee hasn't said they need some changes, but with that kind of thing maybe you could have been very specific and told us exactly what section of the bill. Maybe you will, because these hearings are going on for the next six months. Maybe you could take it under advisement and tell us how to make those kinds of changes; that would be most helpful. That's my first point.
My second is this: Last week we heard from one of the presenters that, with regard to the anti-replacement worker provisions -- which is how I refer to it; I think you use different words, but that's how I do it -- in Quebec, there were some 652 more strikes than in Ontario, coupled with higher unemployment. I have to make a statement in this regard, because that has been brought to my attention. I'm wondering how you would refute that or what you could give us, as a committee, with regard to that kind of concern. How can we address it?
Mr McCallion: I am concerned as a union representative. The way I see it, the use of replacement workers is an exploitation of the unemployed in this country. To say the use of replacement workers or their disuse is going to have any great, significant economic impact on the province I think is utter nonsense.
Mrs Cunningham: Then I have to ask the question again, perhaps in a different way. You talked about the importance of bringing the Ontario legislation in line with other jurisdictions. Perhaps you could give us an example of which other jurisdictions, and then we'll go back to my question, which you didn't answer.
Mr McCallion: I'll defer it to Mr McIntosh.
Mr McIntosh: I'll tackle your first question. There were 650 more strikes in Quebec than there were in Ontario? Is that correct?
Mrs Cunningham: Yes.
Mr McIntosh: How many fewer strikes is that in Quebec in the past 10 years?
Mrs Cunningham: Since the anti-replacement worker provisions have come in, that's my information. You see, I'm in the enviable position today of asking questions. It's not my job to influence this committee, it's yours. So I don't know.
Mr McIntosh: I don't have any figures on it, but I would say that in Quebec that legislation has dropped drastically the number of strikes, albeit there are more strikes in Quebec. One strike is one too many in Ontario as far as we are concerned, and this anti-replacement worker legislation would tend to drop that number again in the 3% of contracts that are involved in strikes.
Mrs Cunningham: Can I ask another question? Do you really know whether, since the introduction of that provision in the Quebec legislation, there are more or fewer strikes? Do you know that?
Mr McIntosh: There are fewer strikes. I don't have specific numbers to give you today. Our information from the Quebec Federation of Labour is that there are fewer strikes.
Mrs Cunningham: Mr Chairman, do we have the answer to that question?
The Chair: No, but we can make sure that the research staff -- you're doing it right now -- will make that a priority.
Mrs Cunningham: We're trying to make good decisions here, and the inference was the opposite for the committee members.
Mr McIntosh: All I can do is pass along the information that I have, and I have no specific numbers.
Mrs Cunningham: That's fair, and I'm not arguing the point, but I think all of us have the responsibility to educate ourselves, and we're here for a long time, you know, to try to make things better.
Mr McIntosh: The one thing that legislation has done is to stop the shooting of people during strike situations in Quebec. There haven't been many bodies lying around during a strike in Quebec. That used to be the practice prior to 1978.
Mrs Cunningham: So there may be some good things and may be some downsides, and we should be looking at both of those.
Mr McIntosh: There are definitely some very good things in it if you look at fewer bodies lying around, yes.
Mrs Cunningham: Could I ask another question with regard to the previous presentation? I did note that the three of you were sitting there listening carefully to the previous presenter. Have you looked into or given any thought to the point he made about having more arbitrators and a more costly process? If you have, I'd like to have your views on that. Realizing that none of us has crystal balls, you must have some views on what he said.
Mr Hircsu: One thing I think a lot of people fail to realize is that currently in the arbitration process, and it would be under Bill 40 as well, the arbitrators only have the right to interpret or make a ruling on the current language of a collective agreement. They only make rulings outside of the current collective agreement if the language is ambiguous.
In fact, as to the hiring of hundreds more arbitrators and costing much more money, one has to realize that there are two sides to this. Both the union and the employer have to share equally the cost of arbitration, and speaking from the union standpoint, when the arbitration costs are $3,000 to $4,000 per arbitrator per session, I cannot see, using common sense, that there would be a tremendous increase in the arbitration cases. In fact, going back to my original point, arbitrators can only rule on the collective agreement, the interpretation of the current language. They cannot go beyond the bounds of that collective agreement.
Mrs Cunningham: I can only say as a closing statement that I hope you're right.
The Chair: Thank you, Mrs Cunningham, for making your questions within the time frame allowed. Dave McIntosh, Robert McCallion, Len Hircsu, here on behalf of the Welland and District Labour Council, we appreciate your interest in these matters. You speak for a group of organized workers who have a distinctive and significant history and who have made a substantial contribution to the labour movement in the province. We thank you and that membership for your participation in the process. Take care.
Mr Jackson: Your re-election, too.
The Chair: One never can tell.
The next participants are the Office and Professional Employees International Union. Will you please come forward and tell us who you are and what your positions are.
Mr Brad Ward (Brantford): On a point of order, Mr Chair: Before we begin the delegations, Mrs Cunningham made a request of legislative research. I was just wondering what that request was, so we can make sure we get the appropriate information.
The Chair: Legislative research has taken note of her request and is working on it almost right now in a hurry to get specific data on the frequency of labour disputes and strikes before and after the anti-replacement worker legislation.
Mr Ward: In what time frames, 10 years before?
Mrs Cunningham: No, since it was introduced.
The Chair: He's going to do his best to get as complete a set of statistics as possible so that people can do what they want with them.
Mrs Cunningham: Just to clarify that issue for all of us.
Mr Ward: Does that include how many man-hours are lost?
Mr Jackson: Person-hours.
Mr Ward: What about violence?
Mrs Cunningham: I think I was very clear.
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OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION
The Chair: People, your half-hour has started. Please tell us who you are, what your status is and what your titles are. Please try to give us at least the last 15 minutes, if not more, for questions and exchanges.
Ms Janice Best: I'm Janice Best, vice-president of the Office and Professional Employees International Union, representing the members in the province of Ontario. With me is Carol Dupuis, a representative with the central Ontario council of our organization, and Robert Dury, a representative of our largest local union in Ontario, Local 343.
Just to tell you something about our organization, our total membership is approximately 130,000 with just under 6,000 members working in Ontario. We are divided into regions and the province of Ontario represents one region within our international structure.
It gives us great pleasure to be here today and we appreciate being granted this time to express our concern to the members of the committee. We have submitted a written brief with comments on most issues pertaining to Bill 40, the act to amend the Labour Relations Act concerning collective bargaining and employment.
However, due to the time constraints we would like to take this opportunity to discuss just a couple of areas where we feel we need to put the most emphasis. We acknowledge that the panel members may seek additional information on certain issues and we'll be pleased to answer any questions.
The four issues we would like to address are unfair labour practice complaints, the percentage requirements for automatic certification, first-contract arbitration and replacement workers.
Dealing first with unfair labour practice complaints during organizing campaigns: It is unfortunately not too uncommon for our organization to be involved in cases of unfair labour practice complaints filed by individuals who allege being wrongfully discharged or disciplined during an organizing drive.
At the moment we have two cases pending where workers have seen their employment cease while the certification and first-contract arbitration process unfolds. One location involves a small lumber plant in northern Ontario where at least two men, each with an extremely impressive number of years of service to their credit, allege being unjustly laid off from their jobs. These men supported the introduction of and were active in introducing the union to their workplace. Although several months have elapsed since this occurred, the process is not complete and their case has not yet been heard. In fact, the case probably won't be heard finally until the end of this month or into September. It's been more than six months since these men were discharged.
Still outstanding, as well, is the case of an individual who worked for an organization here in Toronto. The individual was on the union organizing committee at his workplace and was unjustly dismissed in 1991. In fact, he was dismissed in July 1991, more than year ago. No hearing has been held to date.
We'd like to emphasize that we strongly support the amendments to allow for 15-day expedited hearings in cases like the ones mentioned above. We believe that the board's commitment to render a decision within a 48-hour period thereafter demonstrates a firmer commitment to the increased protection of workers.
The reality is that some employers do engage in unfair practices, and delays of months are most unfair to the employees who are discharged during an organizing campaign.
Certainly, seeing a union organizer fired inhibits the other employees from engaging in their lawful union activity. A speedy resolution of such complaints is necessary with no loopholes left to promote undue and unreasonable delay.
Automatic certification: We had strongly hoped that the government would lower the requirements for automatic certification to 50% plus one. For some unknown reason, this has not been done. We are very disappointed that this government has not seen fit to amend the process to reflect a simple, democratic majority vote. We cannot foresee any reason for leaving the automatic certification process at 55%, other than to continue to make it difficult for unions to organize workers or, if I might put it in another fashion, for workers to organize themselves into unions. We are not talking here about empowering unions; what we're talking about with amendments to the legislation is making it less difficult for working men and women who want to be represented by a union to achieve that end.
We'd like to go on record as stating that we regret the lack of movement on this issue and would like the government to reconsider its position. There are no other issues that people vote on that require a 55% majority. Anything else we do in life, including electing people to office, we do with a simple majority. There is no basis for 55% for automatic certification.
With regard to representation votes in the certification process, we are pleased to see that there has been some movement on the required percentage, although it has not been lowered to that of other areas within Canada such as Saskatchewan, where it is set at 25%. We feel that there may be occasions when the change to 40% could benefit some workers.
The next issue we'd like to address is first-contract arbitration. We would like to state that we were pleased with the amendment that will allow either party to apply for first-contract arbitration without having to establish that there have been unreasonable bargaining tactics or undue delays. Oftentimes a group of employees who experience the greatest employer resistance during the organizing drive will also have the most difficulty achieving a first contract. Due to the prerequisites which are in place prior to the amendments, disputes about having access to the arbitration process were often just as lengthy as the organizing and negotiation processes themselves.
However, we are not pleased to learn that the application can only be made once the parties have been in a legal strike or lockout position for 30 days. We would have much preferred to see the amendment reflect the proposal from the Ontario Federation of Labour, which stated that access to first-contract arbitration should be granted upon request by either party. We do not support the theory that this would eliminate the initiative to bargain collectively. As a matter of fact, data produced by the Ministry of Labour demonstrate that in Manitoba, where this process is available 90 days after certification, it has not resulted in all first contracts having to be arbitrated. Therefore, although we support the move to allow for easier access to first- contract arbitration, we do not support the time constraints that have been placed on the process.
Replacement workers: Perhaps the most important improvement in the act has been the move to place tighter restrictions on the types of employees who can perform the duties of striking workers. We are very pleased to see that the government has finally given serious consideration to this issue. The Ministry of Labour data on the subject, which was available on fact sheets on changes to the Labour Relations Act reform, states that the replacement worker law in Quebec has been successful in reducing picket line violence and has been responsible for producing less lengthy strikes. Although there may have been more strikes in Quebec than in Ontario, it's clear that there is less violence, and the number of days lost due to strikes appears to be less.
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The ministry has also released some statistical evidence on the number of strikes in Ontario in 1991. It would appear that of the 94 strikes reported in 1991, 56 employers continued to operate. The data indicate that where strikes occur, replacement workers are used quite frequently. It also indicates that work stoppages last about 30% longer and are much more confrontational when replacement workers are used. As a matter of fact, the ministry data report that all five cases of major violence on picket lines which occurred last year happened where replacement workers were being used.
Most members of the Office and Professional Employees International Union were fortunate not to have had to resort to strike action in 1991. However, at a small workplace where a strike did occur and replacement workers were used, striking workers reported feeling a great sense of frustration during the work stoppage. In fact, the moment the replacement workers walked across their picket lines and through the front doors into their place of work, the morale of the group of striking workers plummeted. They became very fearful about their jobs, about their future, and their will to continue to struggle for the things they were struggling for disappeared. I think that as a result of that employer using replacement workers, those people felt a need to return to work sooner than they would have wanted to.
We feel the legislation is still somewhat too permissive in allowing a variety of other types of workers to perform the duties of the striking workers, such as supervisors and other non-striking employees. We would like the government to consider strengthening the language.
In conclusion, we would like to emphasize that the general provisions of the amendments contained within the act are welcomed by our organization and we look forward to its implementation. The improvements in areas such as adjustment and change in the workplace, where the government has proposed the introduction of a work organization and partnership development service, which is designed to help parties adjust to major change resulting from economic restructuring, is definitely demonstrating a stronger commitment to the promotion of employee-employer relations. Also worth noting is the introduction of the purpose clause, which will provide a clearer definition of the objective of the act.
In closing, we would like to take this opportunity to thank the panel members for granting us this time to express our concerns regarding these amendments.
The Vice-Chair (Mr Bob Huget): Thank you very much for your presentation. Questions?
Mr Offer: I have two areas I would like to explore if time permits. The first deals with your concern that the automatic certification percentage was not reduced from 55% to 50% plus one, as you feel it is a majority that is understood not only in organization but certainly in a variety of other ways as something which is acceptable.
I would like to deal with that principle and how it applies to the part-time and full-time workers, because as you've said that you agree with the principle of majority, I think a lot of people would say, "I understand that full well." You then go and say that the part-time provision is also fine.
The difficulty I have, and I would ask if you could help me out with on this, is that under the legislation the rights of part-time workers -- on page 22 you say, "It is a widely accepted fact that the majority of part-time workers are women and that another large portion are often visible minorities." It is clear under this legislation that the rights of part-time workers may very well not be heard in a vote of combination between them and full-time workers.
I apologize for the lengthy question, but if we accept the principle of majority, then shouldn't it be that if a majority of part-time workers wished to be combined with full-time workers, that should suffice and, as such, this legislation should be changed to reflect that?
Ms Best: I'm sorry. Could you just give me the last part of the question again?
Mr Offer: Here's the situation: You say that majority is fine for automatic certification.
Ms Best: Yes.
Mr Offer: For instance, if there are 100 employees in a unit, of which 75 are permanent and 25 are part-time, and 55% -- 55 permanent workers -- say yes to combining part-time and full-time, and zero of the part-time -- in other words, no part-timer -- wish to be combined, under the legislation they're combined. I want to know from you, how do we reconcile these two different principles?
Ms Best: I don't think there is a reconciliation necessary. They're all employees; they all work for the same employer. We don't view part-time as particularly different. If the majority of the employees wish to be represented, that's the way it should be. I think the existing legislation really continues to discriminate against part-time employees and keeps them from getting the benefits of unionization.
Mr Offer: Mr Chair, do I have time for one further question?
The Vice-Chair: You have two minutes.
Mr Offer: Thank you. I appreciate the response. One area that you spoke about in your presentation dealt with membership lists. You said that though it's not in Bill 40, you would certainly want that list to be provided. I have a concern, and maybe you could help me as to this concern, that when one is obligated to provide a membership list, then of necessity you're providing not only names but in many cases addresses, and if not addresses, then certainly they would be available.
There are an awful lot of people -- employees, men and women, workers -- who might not wish that to take place. How do we reconcile the principle, as you've indicated, of providing that information with the principle that those workers deserve to have their names and addresses kept confidential from anyone?
Ms Best: I recently went through an organizing campaign where the employer, even on the day of the certification application, hadn't properly prepared the lists. We were at the labour relations board from 9 o'clock in the morning until 10 o'clock in the evening, while the employer provided information as to the lists of the employees in the appropriate bargaining unit. This was a complete waste of time and resources. If legislation provided that those lists had to be provided in advance, then the process could have gone much faster and much more quickly. I don't know how you deal with the question. The union still gets to see the list of employees at a point in the process, so I don't think providing it ahead of time makes any difference to the privacy question of the employees involved.
Mrs Cunningham: You seem to have done a great deal of research for this brief and so I'm complimenting you; I'm finding it very helpful. In fact, to some extent you've answered the question I asked before and maybe we'll expand on it. I'm wondering if there's even more that you know that isn't in this brief, so I'm going to ask a question with regard to page 28. It's on the same topic. The reason I ask on this topic, about replacement workers, is because it seems to be the one that I get asked the most questions about. It seems to be the one where, "We're different, other than Quebec, from the other provinces," looking at your graph at the back and the kinds of things that others have in your view gained and are making legislation.
I'm wondering, of those 94 strikes that were reported in 1991 in Ontario where 56 employers continued to operate, and you describe what happened where they continued to operate with regard to the duration of the strike etc, do you know how many of those businesses in either category continued to operate or didn't continue to operate, where they in fact continued to keep their businesses operating at all? Is that something you looked into?
Ms Best: I'm sorry.
Mrs Cunningham: For instance, after the 94 strikes, did everybody go back to work and did all the companies continue to operate?
Ms Best: Oh, after the strike?
Mrs Cunningham: Yes.
Ms Best: We don't know.
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Mrs Cunningham: I just wondered if there was something interesting we should look at in that regard. I base my question again on one of the previous people who came before the committee who said that two or three of their retail stores closed in Quebec. That concerned me a little bit. If we're looking at this, we perhaps ought to look at whatever information we can get with regard to the impact of this type of legislation elsewhere.
Ms Best: We've provided you with all the information we have. The only other additional fact I can assist you with is that we understand the rate of unionization in Quebec to be higher than it is in Ontario. Therefore, it might be more likely that due to that there were more strikes in Quebec. I don't have any further information than what we've provided you with.
Mrs Cunningham: I was interested too that you made some suggestions around the domestic workers. I wonder if you'd like to speak to us in that regard now.
Ms Best: The point we were making when we spoke about domestic workers was that the act requires there be more than one employee at a workplace before these employees can organize. It serves to contradict the amendment, which includes domestic workers, because many domestic workers work in a single home by themselves. We're not sure how the amendments to the act can in any way assist those people.
Mrs Cunningham: I tend to agree with you. It won't be particularly helpful. It's a separate issue. It's something that's going to have to be given a lot of thought.
Mr Jackson: This is a bit of a different question, but since your organization represents 6,000 workers, I would assume that about 80% of those are women workers in this province?
Ms Best: Yes, sir.
Mr Jackson: Is it about 80%? That was a guess.
Ms Best: It was a good one.
Mr Jackson: When the Labour Relations Act is opened, it is deemed to be opened in all areas and therefore any political party can make amendments. One of the areas that's of concern to me is this very difficult area of workplace sexual harassment. Why I raise that is I have heard from women who don't feel they're well served by their unions when there are harassment cases.
Given that you represent such a predominant number of women workers in a field where there has been considerable exposure to the issues of workplace sexual harassment, would you support clearly defined language in the legislation setting out rules, so that a union is not put in a position of bargaining the dismissal of an employee who may or may not have been guilty of sexual harassment? We are currently considering it in several organizations that have bargaining units or are organized in a professional fashion. I think it's fair that all citizens in their workplace be given that protection, but quite frankly, in Ontario I don't think women enjoy the kind of level of protection they deserve.
Ms Best: Are you talking about amendments to the Labour Relations Act that would deal with the question --
Mr Jackson: Right now, it's under a grievance, and it's a grey area whether or not the police should come in. But there are cases where women have not received the support when they go to the union with their complaint. Then they go to management and it becomes a labour issue. It should never be a labour issue; it's a common assault issue. I know you're familiar with this, within your own organization, because it's been discussed extensively.
Ms Best: Obviously, we would support anything that would assist in stopping sexual harassment. Of course, we would have to see the amendments before we could make a broad statement but we would certainly like to see harassment in the workplace stopped.
Mr Jackson: And offenders removed from the workplace; that's the principle we're looking for.
Ms Best: It does present a problem for trade unions with the worker versus worker. I don't think anyone has the magic answer to that. It would take a lot of study and discussion to come up with the formula to deal with that.
Mr Ferguson: I'd like to turn to page 20 in your submission, regarding petitions. We've heard from a number of groups so far today and almost everybody has touched on the whole question of petitions. Some are of the view, of course, that a petition is nothing more than a subtle form of intimidation whereby, once the employees start signing union cards, the employer then comes out with a petition.
If your name isn't on the petition, if you don't sign it, then the employer can take further action at a later date. That's one suggestion that's been advanced. The other is that if an employee does not sign the petition, then of course the employer may use other forms of intimidation against the employee.
The second part of that, which has been suggested a number of times, is that when working people are in the middle of an organizing drive, the reason they should have the second chance through a petition is because they really don't understand what they're doing. That suggestion has been advanced as well, although I don't think anybody's put it as direct as that.
Do you have any further comments on the whole petition process? Perhaps you could tell the committee some of the real difficulties you've experienced personally in the presentation of petitions.
Ms Best: On the question of petitions, first of all, I believe the working men and women in this province, when they decide to join a union, ought to be able to do so without interference. I believe that when they make the decision to join a trade union it's a well-thought-out decision. The people I've met with -- and I've worked for this organization for 16 years and met many people in organizing drives -- they ask the questions, they get the answers and they understand the issues before they sign cards.
My experience with petitions has been that it gives the employer an opportunity -- we know there are employers who do it; all we have to do is read the decisions of the labour relations board. There are employers who intimidate their employees, who make illegal threats and do illegal things. Petitions give employers an opportunity to terrorize people, not into changing their minds but into saying that they changed their minds because they're so frightened. Petitions should be done away with completely.
Mr Ferguson: Would you agree it would be something like people voting in a general election and then, not liking the results, wanting a second opportunity to make a decision?
Mrs Cunningham: Like now?
Ms Best: There always is a second opportunity. The Labour Relations Act currently provides and will continue to provide that people who no longer wish to be represented by a trade union can do so. If that's the case, the mechanics are there for them to do it, and by the way, it's only 50% plus one for them to get out of the union.
The Vice-Chair: Ms Murdock, two minutes.
Ms Murdock: I just want to go through the whole certification process in terms of your workers being predominantly women. What percentage would be part-time and what percentage full-time?
Ms Best: I think probably 70% full-time and 30% part-time.
Ms Murdock: In terms of your organizing and in response to one of the earlier questions, you said you see no difference between the two. Has there been a difference in terms of getting them organized?
Ms Best: No. In fact, under the existing legislation, where there are two bargaining units, you apply for two certificates. Generally, as far as I can remember, the support has been there within both groups, so you could either get one certificate covering both of them if the employer agreed or separate certificates covering the full-time employees and the part-time employees.
There is a desire among part-time employees to be represented because I think they're the most abused portion of the workforce right now. They're not getting many of the benefits that traditionally organized workers are. There's a desire there.
Ms Murdock: In terms of the certification -- it hasn't been asked today and I'm somewhat surprised. It was mentioned last week a number of times about a secret ballot certification vote and how that would operate. Could I have your views on that and your reasons for your answer?
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Ms Best: I think that's regressive; it's not improving the act. People have signed their membership cards and indicated they want to be represented by a union. I'm still of the view that when they did that, they knew what they were doing at the time. I see no need to have a secret ballot vote. If we do that, it only opens up another door for those employers who will use intimidation tactics to sway people, to change their minds for the wrong reasons.
The Vice-Chair: Thank you very much. I appreciate the time you've taken to appear before the committee today, and I think you should know you've played a very important role in the entire process. We hope you'll keep in touch with the committee, either through an MPP on the committee or through the clerk, as the legislation proceeds through the process. Thank you very much for appearing today.
CANADIAN DAILY NEWSPAPER ASSOCIATION
The Vice-Chair: The next witnesses scheduled are from the Canadian Daily Newspaper Association. Please come forward and find a microphone, identify yourselves for Hansard and proceed with your presentation. I should remind you that you have half an hour; try to keep at least 15 minutes of that for questions from the committee.
Mr John Foy: My name is John Foy, and I'm the president of the Canadian Daily Newspaper Association. I'd like to begin by introducing my four colleagues who are now participating in our presentation this afternoon. Mr Orval McGuire is chairman of the Canadian Daily Newspaper Association's human resources committee and director of industrial relations for Southam Newspaper Group. Michael Doody is legal counsel and corporate secretary for Thomson Newspapers Corp. Diane Barsoski is vice-president of human resources at the Globe and Mail and Chris Davies is director of industrial relations for the Toronto Star.
As our background material points out, we represent 84 daily newspapers in Canada; 38 of the 44 daily newspapers in Ontario are members of our association and employ just under 12,000 people on a full- and part-time basis. It is significant that 47% of our employees are union members, compared to the approximately 31% of the overall Ontario workforce and the 19% in the private sector who are unionized.
We're pleased to have this opportunity to discuss Bill 40. Like so many other groups, we welcomed the modifications that followed the white paper. However, we are strongly opposed to seeing the proposed legislation go ahead in its present form. In our view, the newspaper industry will be especially hard hit, but even more important, the overall economy of this province will be put seriously at risk at a time when there is hardly an individual or family or enterprise that isn't suffering from the recession. Mr McGuire will elaborate on this.
Mr Orval McGuire: By now you've heard many groups warn you about how they and the overall economy will be seriously threatened in this proposed legislation. We won't attempt to repeat all those facts and figures, but we feel a responsibility to remind you that our product is different from others. In the case of newspapers, there is far more at stake than just the bottom line or even the welfare of the men and women and their families who depend on us for jobs.
As politicians, you will recognize that newspapers are more than just a product; they're a vital part of our communities and people depend upon them. Many of our newspapers are older than Canada itself and take very seriously their role in being good neighbours, good corporate citizens and participants in the economic and social wellbeing of this country and its future.
Ladies and gentlemen, we cannot emphasize too strongly that you're studying a piece of legislation that has great potential for crippling and putting out of business members of an industry that is an integral part of the fabric of this country and this province. It's an industry that's already struggling to survive in the face of rising costs, competing technologies, shifts in advertising trends, changing lifestyles, demographics and illiteracy. This legislation could well be the proverbial straw, in many cases.
The proposed limit on the use of replacement workers during a strike would make it almost impossible to publish, and a paper which is not publishing is one which is in peril. This is especially true of the vast majority of dailies located in smaller and medium-sized centres. Quite simply, newspapers cannot stockpile news. Frustrated readers either turn to other sources of print information or to electronic media, and in some cases just give up. It is costly and often impossible to reclaim lost readers and advertisers.
As the president of Southam newspapers told you on Thursday, the Sault Star is now on strike but continuing to publish. This means that those who want to continue to work can do so, and strikers will have a job to return to once the strike is over. No one gains when a paper closes, and we're saying to you that the real losers are not just its employees and their families, but the community itself: the readers, consumers, organizations, business people and everybody else.
Michael Doody has some further comments along these lines.
Mr Michael Doody: It's important to keep in mind that our association represents newspapers of all sizes, but they share a common commitment to their communities. With specific reference to Thomson Newspapers, we publish 22 dailies in Ontario in addition to the Globe and Mail. Overall, the average circulation of these 22, in addition to the Globe, is 16,000.
I believe the daily's role in smaller Ontario centres is particularly significant, because local residents depend upon it for their primary sources of information about what is happening in their community. The local daily newspaper in this province provides people in small cities and towns with really the only means of knowing what goes on in the community. Radio and TV do not do it; their coverage is too spotty. Metropolitan newspapers that are distributed in smaller centres do not do it; their concentration is on international, national and regional news.
The local daily provides its community with everything from notices on births and deaths to recreational and social activities, activities of local schools, coverage of municipal government and police, discussion of what local businesses are providing what jobs in town and the expression of local opinion through the "letters to the editor" pages. If a local daily folds, some of its advertising will flow to print competition such as direct mail or a shopper, but it's important to recognize that neither of these kinds of publications will replace the daily as far as editorial content and tradition are concerned.
Ladies and gentlemen, to us it is bitterly ironic that we are dealing today with legislation which could have the effect of closing union newspapers, to the great benefit of non-union print and electronic competitors who share neither the will nor the ability to provide the same service to their community. To us, that is not only bad business; it's also bad public policy that is in the long-term best interests of no one in this province.
Diane Barsoski will now discuss the legislation in relation to the business community.
Ms Diane Barsoski: At the outset of our presentation, John Foy referred to this legislation's adverse effects on the province-wide economy, and I'd like to elaborate on this a bit.
We read our newspapers and we're very aware that some members of the provincial government believe business is overreacting to this bill and its effects. To us, this suggestion warrants a serious response. The indisputable fact is that the bill as it now stands will make it very difficult for some businesses to operate during a strike, and impossible for others; this is its objective.
If the employer can operate during a strike, we still may have some semblance of a balance of power in those negotiations. However, a lot of money will be spent preparing for a possible strike, and the strike will be far more costly to the employer in an already tough economy. It's also significant that when a lot of money is spent preparing for a strike, it often results in entrenchment and inflexibility.
On the other hand, if the employer cannot operate during a strike, and must in order to survive, the employer will give in to union demands, even those which unaffordable. The company may survive if these costs can be passed on to the consumer -- not the trend these days -- if staffing can be reduced or if the employer can relocate. If these options don't exist, the company closes, and there are a lot of losers in the process.
To us, it is self-evident that this proposed legislation will be destructive to our economy. Like it or not, we believe the government has to recognize that the widespread and profound fear among the business community about this legislation can only cause immeasurable harm. Consumer and investor confidence is being shaken by the public discussions of this legislation at the very time when what we need to be doing is restoring confidence. No matter how you dress it up, the reality is that the legislation provides an unfair and unequal advantage to labour and does not improve labour-management relations.
The government's attempt to point out that somewhat similar legislation exists in Quebec provides little comfort. Federal and Quebec government statistics show the labour scene in our sister province has been no more harmonious than here in Ontario with that set of provisions. We should not be following Quebec's lead on this. A previous speaker indicated that under Quebec's legislation, the duration of strikes has decreased. This is exactly the opposite of the truth, and I'm happy to leave some statistics here with you.
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Our brief refers to our belief that labour relations are like a three-legged stool on which the rights of employers, employees and unions have to balance if they're going to work and support the economy. Bill 40 will destroy that balance. Bill 40 will extend the powers of unions over those of employers and employees, and the provincial economy will pay the price.
This is the message that has caused business people at home and abroad to make this legislation a serious factor in their decisions about where they will do business and how much they are willing to invest in Ontario and its future. We believe the government has to view with the greatest alarm the perception that exists about this legislation, because as we know, perception in fact becomes reality. These perceptions are crafting investment decisions, and we're all going to pay a very high price for what is being said and believed about how business is treated in this province.
We believe with almost 600,000 people out of work in this province and business and consumer bankruptcies on the rise, Bill 40 is especially badly conceived.
Chris Davies will now offer his perspective on this issue.
Mr Chris Davies: I'd like to make my observations in the context of the recent strike at the Toronto Star by the Southern Ontario Newspaper Guild, which represents approximately 1,500 employees in a wide range of departments such as editorial, advertising, circulation and delivery.
We believe very strongly, based upon a substantial amount of industry experience both in Canada and elsewhere, that newspapers that cannot retain an effective presence in the marketplace during a work stoppage are going to be adversely affected in communities where substantial competition exists. Our competition, incidentally, does not just consist of other newspapers but of many other media such as television, radio, magazines, billboards, direct mail and so on. The fact that many of these other media are non-union or not subject to provincial legislation is, of course, one of the reasons we have great concern about these proposed amendments to the Ontario Labour Relations Act.
An uneven playing field is never a very comfortable place to be, and we believe Bill 40 will make our viability even more precarious.
In the aftermath of our very ugly strike in which a very substantial amount of property damage was caused by striking guild members, I have given a great deal of thought to many aspects of what occurred. In the first place, could we have operated if we had been attempting to do so under the amended act? In the second place, what might some of the consequences have been had we not been able to operate at all?
The answer to the first question is that I believe we could have produced and distributed a limited paper, but this is because of the financial and human resources available to us due to our size and because six other bargaining units were on the job. However, as a result of this experience, I am convinced that many smaller papers without such resources would have enormous difficulty in publishing.
In our case, under the new law, I do not believe we could have been as effective as we were in terms of the quality and quantity of the newspapers distributed, but we could have retained some presence in the community. There would of course have been a greater loss of permanent revenue and a greater loss of readership, and in the long run, this may have proven fatal, but we would have had no choice but to try.
On the issue of violence involved in the attempted prevention of vehicles coming out of our production facilities and at distribution depots, I believe it made no difference to guild pickets whether the drivers were replacement workers or management personnel. In my view, the union would have made a concerted effort to stop distribution of the product no matter what.
What the no-replacement-worker legislation would do of course would be to make it considerably more difficult for a limited number of managerial and non-union employees to keep a business operating, and operate it must if it wants to survive, especially in our industry.
Far from achieving more harmonious labour relations, it's my belief that this proposed legislation will foster acrimony and increased labour-management friction as newspapers such as the Star struggle to compete with non-union competitors in the electronic media.
For purposes of this discussion, let's suppose the Star had been operating under the provisions of Bill 40 and had not been able to publish. The employees represented within the six other non-striking bargaining units would have been unable to work and would have been without pay or benefits, as would most managerial and non-union staff. The impact of that in terms of taking dollars out of the economy would have exceeded $1 million per week. Adult carriers and others responsible for distribution and our suppliers would also have been losers in this scenario to the tune of an additional $1 million plus per week. Our advertisers would have incurred considerable losses as well due to not having access to a mass distribution vehicle such as the Star. The damage to the Toronto Star, if we had been prevented from publishing for any significant length of time, would have been very serious in terms of market share loss and how many jobs we would have been able to provide when it was all over. So not much good would have come out of shutting down the paper.
There is the other alternative, of course. The company could've caved in to union demands. It could've given the guild the increased money and job security it demanded, and this would've meant going to the six other bargaining units and offering them the same, even though their members, or their union leaders, had already agreed to recommend a settlement which did not include that kind of money or those kinds of job security provisions. I can only tell you that in our competitive field and in these economic times, that kind of practice would almost certainly put us out of business eventually.
I am prejudiced, but I do not believe that putting the century-old Toronto Star out of business is in anyone's best interests -- not the employees', not the unions' and certainly not this community's, possibly not even this country's. But in the opinion of the Canadian Daily Newspaper Association, this is the kind of stark reality we will be facing if Bill 40 becomes law in its present form.
Mr McGuire will now conclude on our behalf.
Mr McGuire: This concludes our presentation. We thank you for your attention and we would urge you to read the background material we have provided. We would now welcome whatever questions you might have of us.
The Chair: Thank you. Mrs Cunningham, three and a half minutes, please.
Mrs Cunningham: Three and a half?
The Chair: Yes, ma'am.
Mrs Cunningham: All right.
Mr Jackson: On a point of order, Mr Chair: Are we not doing a regular rotation? You're always starting on this side.
The Chair: We're doing a pure rotation, which is fair to every single caucus.
Mr Jackson: That's encouraging to hear.
Mrs Cunningham: Obviously my question is going to be along the line of questioning I'm trying to pursue today, because there have been some interesting briefs and a lot of work has gone into them, but I guess my great concern is when we do get information that I don't feel, given the kind of homework I've done, is correct. I think that was referred to by Ms Barsoski.
Mr Davies: Yes.
Mrs Cunningham: We're looking at the length of strikes being longer where in fact there are replacement workers allowed. I think that was what was said previously. It isn't the information I have, and I guess you said you could clarify it and I'd like it on the record.
Ms Barsoski: Our source is the Quebec Ministry of Labour, and we have data from 1976 all the way through to 1990. I have a column here that has average duration of workdays of the strike. Do you want me to read them down? It starts with 39.4 in 1976, 35.9, 32.7, 32.8, 34.1, 40.6, 43.6, 45.4, 33, 37.4, 35.1, 38.6, 41.8, 38.1, 47.5, culminating in 1990. I'd certainly be happy to leave this.
Mrs Cunningham: I think the committee would like to take a look at that, and I thank you for it.
I was going to ask, and perhaps one of the presenters could respond to this, has there been any work done in this regard with respect to the continuance of businesses to operate where there has been a stoppage in a workplace where there has been the opportunity to replace workers versus where they haven't replaced workers? That happens now in Ontario. I'm just wondering if anybody knows anything about that. Who has any information for the committee with regard to whether these businesses that have already stopped working because of a strike -- small businesses, large businesses -- where they're out permanently or where they recuperate and can operate again? Is there information that any of you know about?
Mr McGuire: I can speak generally to the Montreal Star, which went out of business, and the Ottawa Journal, which went out of business, both following major strikes in which they continued to publish, but not nearly as well and at great expense. When they came back they found that the majority of readers and advertisers had gone to their competitors and neither was able to continue. Those are the two Canadian media ones. In the United States, there is a long history of newspapers unable to publish never coming back. As we can see in Canada, we have far fewer dailies today than we had even 15 years ago. Some are labour- related, of course, and some aren't. I'm not suggesting every one of them was because of a labour difficulty.
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Mrs Cunningham: With regard to replacement workers, would most of these newspapers not have had that particular union operating with replacement workers?
Mr McGuire: I'm sorry, I missed the opening.
Mrs Cunningham: With regard to replacement workers -- and you're talking about newspapers -- do you know whether those newspapers would have been operating or ceased to operate because they weren't allowed to have replacement workers? Is that the kind of information we can get from the newspaper business?
Mr McGuire: I don't know what source we would go to. I don't know if anyone has tracked that.
Mrs Cunningham: It might be difficult.
Ms Barsoski: We could certainly ask. There are many people who have been in this business for a long time. If you want us to look into that we could certainly do it.
Mrs Cunningham: Perhaps it would be fair for us to get in touch with you later and ask that question in the broader sense, and ask the research person to add to the information I've already asked for.
The Chair: Research has already indicated that it has broadened its scope in terms of its investigation.
Mr Fletcher: I have a couple of questions, first as far as Quebec and its legislation is concerned. A few years ago the Montreal Gazette was on strike and it continued to publish, and even after the strike things came back to normal. Notwithstanding their anti-replacement worker legislation, they continued to work through that without having to go to the government saying, "Hey, get rid of this piece of legislation; it's harming us." In effect, it did harm them to publish a smaller paper and everything else, but they continued to work even with that legislation in place. Can you not see --
Mr McGuire: I'm sorry, what is the question?
Mr Fletcher: I was just getting to it. Can you not see the same happening in Ontario where you will continue to be able to publish?
Mr McGuire: No, sir, because this legislation is far more restrictive than Quebec's, for openers. We own the Montreal Gazette, so I can speak to it. I was there. There was more violence, I believe, than has ever been seen in a Canadian newspaper strike, in the first two days, until the police finally cleared out the problem.
They had legislation which required people to be on staff well before the strike began, and they were able to publish using some of those people and of course some of the kinds of employees who would be allowed under this proposed legislation. But not everybody was out, by a long shot. There were only the press men and the mailers out. I think it's important to understand that newspapers are multi-union. The Toronto Star has seven or eight unions. Most big newspapers have five, six, seven unions. Smaller ones have three or four.
In the Montreal Gazette, one union was out with two areas and all the others continued to work. The Toronto Star was the same proposition. One union was out, albeit the largest by a long shot --
Mr Fletcher: I beg to differ with you about the strength of their law versus this one, but let me get on to another question, because my time is limited also. The one thing is that as far as the Guelph Daily Mercury is concerned, it just went to a Sunday newspaper. Its carriers, who for religious reasons didn't want to work on a Sunday, were told, "You either deliver the paper on Sunday or you quit; you get rid of your job." If that's the way you're going to treat the carriers, how can we expect that you're going to be --
Mr Jackson: It's the way your government's treating Sunday legislation, Mr Fletcher.
The Chair: Go ahead, Mr Fletcher.
Mr Fletcher: How can we expect the rest of the people working within the newspaper are going to be treated any more fairly? "If you don't want to do it, then quit." This is children; we're talking children who are carriers.
Mr McGuire: I think there's a very simple answer. We can expect them to be treated well because they have always been treated well. We are a very high-pay industry. Our benefit coverage is second to none in almost any city you go to. Whether a newspaper required the carriers to deliver the paper on Sunday -- otherwise, how would you get the Sunday paper on the street? I don't think that's got anything to do with labour legislation, with great respect.
Mr Offer: Thank you for your presentation. There are two areas I'd like to deal with. Obviously one is the replacement worker, but before that, in your presentation you spoke about the 60% strike vote. I'm not clear on your position because, of course, there is the need for a 60% strike vote in order for the prohibition on replacement workers to kick in. I would like to get an idea of your position as to whether you have a concern with that which surrounds the 60% strike vote in terms of its prohibition on replacement, or do you have a concern fundamentally with replacement workers? I think I would just like to be very clear on your position on that.
Mr McGuire: I think the answer is both. First of all, the legislation will require 60% of people, but it's only of those voting. In our experience, about 40% of the membership shows up and if 60% of them vote to strike, that's now 24% of the whole group and that's who leads the people out on the street. But certainly, above all, our replacement worker is our primary concern. If we had to pin it down to one, in the small papers, as the brief said, we cannot possibly continue to operate very long with very few exclusions because the Ontario Labour Relations Board has not been big on allowing a lot of exclusions on the management side.
Mr Offer: Thank you. I appreciate the concern. Would your concern on the issue of the 60% strike vote be eliminated -- if not eliminated, alleviated -- if there was a requirement that a certain percentage of employees had to cast a vote and, second, that there was a definite time period, let us say very close to the actual strike date, where the vote had to be cast? Of course, what we're hearing many times, as you indicated earlier, is that there is not a large percentage of employees who cast the vote and that the strike vote is cast very early on in the bargaining. On that basis I'm wondering if your concerns might be alleviated if that were changed in the legislation.
Mr McGuire: At the very least we would hope and expect that the union would have to take the company's last offer back for a secret ballot prior to a strike. At the moment it's a show of hands, or can be. It need not be supervised by government or any other agency. There are other provinces which require supervised strike votes by the ministry right up near the strike deadline, not take the vote in June and strike in December suddenly when the membership has forgotten about it.
Mr Doody: Our concern is not just a procedural one; it's a fundamental one as well.
Ms Barsoski: If I can add one thing to that -- this, taken together with, of course, the prohibition against crossing picket lines and with what appears to us to be amalgamation of bargaining units on request by the union, becomes very interesting. For example, in our shop one union has about 250; four other units combined do not have 250 members. Therefore, if there was automatic amalgamation of the bargaining units without any concern about other employees' wishes, that one majority would call all the shots.
The Chair: Thank you. The committee wants to express its gratitude to the Canadian Daily Newspaper Association for coming here and participating in this process. I trust you'll be keeping an eye on the committee as it deals with the bill and on the Legislature subsequently. I encourage you to keep in touch with the members or the committee itself. Thank you, people. Take care.
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ONTARIO SEWER AND WATERMAIN CONTRACTORS ASSOCIATION
The Chair: The next participant is the Ontario Sewer and Watermain Contractors Association. Please come forward, those people representing that association, seat yourselves at a mike, let us know who you are and what your titles are with the association. Try to save at least the last 15 minutes of your half-hour for dialogue and exchanges; that is, as you can see, one of the more interesting parts of these presentations. Go ahead, sir.
Mr Michael Poce: Mr Chairman and committee members, my name is Michael Poce. I'm the past president and a director of the Ontario Sewer and Watermain Contractors Association and I'm the owner of Poce Construction Ltd, a sewer and watermain contractor based in Toronto. I am accompanied this afternoon by our executive director, Sandy Cochrane, who may assist me in answering some of your questions.Our industry is very labour-intensive, highly unionized and badly crippled by the current recession. Up to 50 cents of every dollar spent on our projects goes directly to labour costs. When our industry is busy, which it last was in 1989, we are significant employers. But the number of hours worked in our industry in the first three months of this year was down 65% from the same period in 1989. For the full year we expect the volume of work in our sector to be only half of what it was in 1989, a drop of some $500 million.
The impact of this decline on workers in our industry is devastating: They will lose about $250 million in wages this year compared to what they made in 1989. At an average annual wage of $40,000, that's an equivalent of 6,250 jobs. In less than three years there have been more jobs lost in our industry than exist in all of Moore township, adjacent to Mr Huget's riding, or in the towns of Goderich and Clinton combined, in Mr Klopp's riding, or in the town of Nickel Centre, adjacent to Ms Murdock's riding, or in the town of Kapuskasing, in Mr Wood's riding. Mr Chairman, there have been almost as many jobs lost in our industry since 1989 as exist in the town of Thorold, in your riding.
Our industry is hurting badly. The workers in our industry are hurting badly. Recovery in our industry will depend entirely on increasing the rate of new investment by both the public and private sectors.
Approximately 50% of the work in our industry is funded by public sector investment, mostly for the renovation, repair or extension of municipal infrastructure. The Treasurer has made it clear that we should not anticipate any relief from public sector investment in the short term. In fact, Mr Laughren's budget this year calls for a $56-million cut in capital transfers to municipalities for water and sewer projects and reduces the Minister of the Environment's capital budget by a further $49 million.
Therefore, the only way to get workers in our industry back on the job is through increased investment by the private sector in the residential, commercial and industrial projects that comprise the other half of our business.
There is no higher priority for the people of our industry, whether they are owners or employees, whether they are unionized or not, than increasing the volume of work and reducing the tragically high level of unemployment among construction workers. When we look at Bill 40, we're looking at its impact on investment and jobs in our industry in the midst of this cruel recession. What we see is truly frightening.
All members of the Legislature have heard the argument many times that Bill 40 will cause investment and jobs to be lost in Ontario. Some of you may wonder why the same argument is being repeated over and over; surely the point has been made. Yet it appears that, for government members at least, the point has not been made; otherwise this legislation would have been withdrawn. Frankly, many of us in the private sector do not understand why the supporters of this bill seem not to care about its economic consequences.
I can only conclude that some members of this Legislature simply do not believe this legislation will significantly damage job and investment prospects in Ontario. They don't believe the economic impact studies. They don't believe the poll results. They don't believe what business owners in their own ridings tell them. They don't believe what investors in the Far East say to the Premier or what auto industry suppliers in Michigan say to the Ministry of Labour officials. The message has been remarkably consistent, yet it is repeatedly dismissed, ridiculed or ignored by spokespeople for the NDP and the Ontario Federation of Labour.
Yet here I am, making this argument about jobs and investment to you again. Why? Because I believe that if you can be convinced that the argument is true, and not just political posturing or a negotiating ploy, then you will not let this bill become law. I believe even the most ideologically committed members will back away from a measure that would cause enormous hardship to their constituents and to workers and business owners throughout Ontario.
How can I convince you that the threat to jobs posed by this legislation is real and significant? The stories of potential investors who have backed away from Ontario because of this legislation are heard often by those of us who move in business circles. It is unfortunate that not a single member of the present Ontario government is part of that circuit. The source of these stories is often a lawyer who practices in commercial law or an accountant or merchant banker who is involved in new business ventures. For a variety of valid reasons, the potential investor's identity is seldom revealed, but the stories are clearly real.
I most recently heard one such story only last Friday. It comes from a lawyer who was working with the owners of a large, US-based hardware supply business. This business supplies many hardware retailers in Canada with products imported from the United States. The owners found, however, that Canadian customs procedures are cumbersome, so they decided to establish a distribution centre in the greater Toronto area. The new facility was to employ 24 full-time employees. With this new Canadian base, the company also intended to start buying product made in Canada for its Canadian distribution network.
The president of this business came to Toronto recently for a week of meetings and research. He spent time looking for a suitable site for the new distribution centre and found more than one. He had satisfactory meetings with potential Canadian suppliers and other prospective partners. He was briefed about the tax system in this country and many other relevant matters. Then he was told about the labour law changes that are incorporated in Bill 40, and he said in effect: "That makes up my mind. We're not going ahead with this project."
There are many similar stories. The bottom line in all of them is that potential investors decided to stay out of Ontario because they see this legislation as the most glaring evidence of this government's anti-business attitude. In the case I cited, Ontario lost investment, construction activity and permanent jobs, and Ontario and the rest of Canada lost new supplier opportunities.
Who wins? Do Ontario workers win when jobs go somewhere else? Of course not. In fact, those who are hurt most when investment and jobs disappear are the unskilled, the single mothers, the new Canadians and other vulnerable workers who are said to be the beneficiaries of this bill. This legislation will do nothing for those people who cannot get work.
We in the construction industry have focused most of our research and comments about labour law reform on the issue of its economic impact. We have done so because our industry can survive only if people and companies choose to invest in Ontario. Our industry is in trouble because capital investment in Ontario has been dropping for the past two years. Capital investment in all construction in Ontario was down 6.8% in 1990 and by 11.2% last year. It is forecast to drop another 1.8% this year. That's a $4.2-billion decline in construction spending in Ontario since 1990.
A more detailed look at Statistics Canada's construction investment numbers shows that Ontario's position is deteriorating much faster than in the rest of the country. We have looked at private and institutional investment trends and 1992 investment intentions for the industrial, commercial and institutional construction sectors. What we have found is disturbing. Construction investment intentions in Ontario in 1992 are down 15.1%, or $2.4 billion, from actual spending in 1990. That rate of decline is three times faster than in the rest of Canada, which faces a 4.7% drop. In Quebec, the province whose economic structure is closest to Ontario's, the decline in construction investment is only 5.5%.
There are many more statistics that tell basically the same story. The simple truth is this: The investment dollars that create jobs and sustain our industry are leaving Ontario at an alarmingly fast rate.
All of us who care about the economic wellbeing of this province have to ask ourselves, why is Ontario losing investment three times faster than the rest of the country? All of Canada has been affected by the same monetary policy, the same interest rates, the same free trade agreement. All of Canada has had to deal with the negative investment effect of a threatened breakup of the country. What's been different here since 1990? What unique factor is causing investors to abandon Ontario?
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The answer, unfortunately, is obvious. We have a government in this province that makes no secret of its distrust of, and dislike for, the private sector. For almost two years this government's anti-business attitude has been on display, and nowhere more clearly than in these proposed labour law changes. The people from Ontario and elsewhere who create jobs by investing money in buildings and equipment have looked at this legislation and said: "We're not investing in any jurisdiction that has labour laws like those proposed in Bill 40. The environment for our business is friendlier in New York or Michigan or New Brunswick or even in Quebec." If Bill 40 or its equivalent were passed in all these jurisdictions, we would all be on a level playing field. But legislation like this is not even being considered by any of our North American competitors.
We have all heard about the economic impact study completed earlier this year by Ernst and Young for the construction industry. I would like to add to the information provided to the committee about that study last week when the Council of Ontario Construction Associations appeared. The study consisted of interviews of 301 randomly selected senior executives, the people who make investment decisions, including 50 senior executives of large North American firms, most of which have no significant presence in Ontario.
It has been suggested that the answers of Ontario-based respondents may have been coloured because of their desire to defeat this legislation and/or the NDP government. Let's just look at the responses of non-Ontarians.
When those out-of-province decision-makers were interviewed, they were not told that the jurisdiction under study was Ontario. Nine provisions of the proposed legislation, all of which are included in Bill 40, were described to them in a balanced and reasonably thorough way. As much as possible our industry wanted to get an honest and accurate reading of potential investors' opinions about the proposed labour legislation. These 50 interviews were intended to serve in part as a check on the potential biases of the Ontario-based respondents.
Sixty-eight per cent of those non-Ontarian firms, who obviously cannot be accused of having ulterior motives for defeating either this legislation or the present Ontario government, said that operating in any jurisdiction that adopted the pro-labour law changes would seriously weaken their ability to compete. Another 22% said that their ability to compete would be slightly weakened. That is a non-partisan and objective judgement passed by potential investors on this legislation -- 90% of them say it will weaken their ability to compete. These are the people who will decide whether their companies invest here in Ontario or someplace else.
Incidentally, Ontario-based respondents were slightly less negative, not more, about the impact of the proposed changes. Only 85% thought that their ability to compete would be weakened. Seventy-three per cent of the Ontario firms said that the proposed changes would cause job losses because they would become less labour-intensive, scale down or move some operations out of Ontario. Collectively, they forecast an apparently modest workforce reduction of approximately 8%. But on a province-wide basis, that would translate into 295,000 lost jobs.
If you've been told that the Ernst and Young study is biased or hysterical or political propaganda, perhaps you should read it carefully before you begin to write this committee's report. And if you're still not convinced that the price of this legislation in terms of lost investment and lost jobs is unacceptably high, then we urge this committee to undertake its own economic impact study.
The government has declined to commission an economic impact study, but that does not prevent this legislative committee from getting the facts for itself. You should know what the consequences of this legislation are before you recommend that it be adopted. If the Ernst and Young study is right or even half right, do you really want to support a bill that would eliminate, say, 150,000 jobs, an average of more than 1,100 in every riding in Ontario? Is that what your constituents wanted? Is that what you were elected to do? Of course not. Labour law reform was never even mentioned during the last election campaign, and every public opinion poll shows that the major provisions of this bill are strongly opposed by the people of Ontario.
This afternoon I have not directed the committee's attention to the specific aspects of Bill 40 that create disincentives to investment and job creation. Many of the most offensive provisions were raised during COCA's presentation last week. I have instead focused on the fundamental flaw in this legislation: Its provisions collectively say to investors that they are not welcome in Ontario; they say that this government is prepared to pass laws that benefit its friends and allies without even considering the economic impact on the province as a whole; they say that this government does not support the efforts of Ontario's businesses to be competitive in the North American marketplace.
On behalf of the Ontario Sewer and Watermain Contractors Association, I urge this committee to commission its own economic impact study of Bill 40 and to recommend that this legislation be significantly amended so that potential investors will again see Ontario as a good place to create jobs and do business.
Mr Paul Klopp (Huron): Thank you very much. That was an interesting brief. I am finding this very --
Mrs Cunningham: Uncomfortable.
Mr Klopp: No, I find it very interesting with numbers. I have seen a lot of reports, and as a farmer, as a business person, I always go by what someone's trying to sell me and then I go with the facts and just the facts. Then I make a decision and then I go from there -- never just on perceptions.
Many people in my riding are small business people, individual owners who work with their staff and work with their people, and quite frankly I was one of those also. You work with your people well. I don't see where the legislation will affect that tomorrow morning.
With numbers, construction investment has dropped 15.1% in Ontario compared, as you pointed out, to Quebec. You made the statement somewhat to the effect that that's comparable to us and they would never have a Bill 40. Yet many of the discussions that I've seen here today, the main contentious issue is they draw it to Quebec, and our lines in this particular bill are working with the worker protection. They actually have basically what we have here and yet you're saying quite the opposite. Could you explain this to me?
Mr R. W. A. Cochrane: What we see in the situation in Quebec is dramatically different than what's being proposed here in Bill 40, because what you have been looking at mainly has been the replacement worker aspect of what is now law in Quebec. The other components that are in this bill, as far as we are aware, are not effective in legislation in Quebec. That's the main difference.
Mr Klopp: But yet in fact we have in this country, in this province, many companies investing. The fact is that we have everyone from Ford to Sears, many companies, making investments as we speak and in fact continuously in my riding also. So we talk about the whole issue and the fear and all that that goes out with this. On the one hand you say it's driving investment away and yet the fact is, investment is coming here just as well as anyplace else considering the economic times worldwide.
Mr Poce: I don't think investment is coming here. We stated that the construction industry in the last few years has lost $4.2 billion of investment.
If I take my firm for an example, two years ago I employed over 60 people; today I employ 8 people. We've shut our shop staff down to zero, we've cut our office staff in half, because there's not the work out there to keep our --
Mr Klopp: Because of this legislation?
Mr Huget: Thank you for your presentation. I only have one brief point. It's my understanding from Statistics Canada that over 50% -- in fact, about 54% -- of offshore investment in Canada in 1991-92 ended up in Ontario, and I think that's a significant number. More than half of offshore investment in Canada still came here to Ontario. There's the issue of Ford Motor Co. Others have mentioned there are other substantial investments taking place in terms of major dollars and major jobs in the province of Ontario.
You state in your presentation that you had been talking to some corporate executives, I guess, who felt that their competitiveness would be weakened. What was the basis of that fear of being weakened? In other words, what I'm trying to determine is: Precisely why would legislation, for example, that makes it easier for workers to organize, if they so choose, weaken a competitive position?
Mr Cochrane: I guess you have to make an assumption in asking your question and that is that it is not easy for workers to organize in Ontario today, and we do not believe that's the case. If that were so, then you possibly would have a point to make, but workers organize in Ontario as they wish to organize. The unions have been active in this province for many, many years and the level of organization is whatever it is; we believe it's somewhere in the vicinity of 20% across the whole of industry. In our particular sector it's somewhere between 35% and 40% and in the construction industry as a whole, around 40%.
There is every opportunity for very well organized unions which have been active here in this province for years and years to increase their membership, but what we have found through the studies we've done is that the majority of workers in Ontario do not want to be members of unions.
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Mr Huget: That's the basis of my question, sir. If that's the case, how is organizational ability going to impact on competitiveness? You state your industry is 40% organized. Does that mean, sir, that your industry is not competitive?
Mr Cochrane: Our industry has been probably growing less and less competitive in Ontario as a whole over the last several years, but we are particularly concerned about this bill. Of course you've had many, many representations from business as a whole, which is saying, "Don't do this because the risk is far too high."
But if you were to examine one point, for instance, which is the purpose clause which is being introduced, as opposed to a preamble which described how those who were officials at the Ontario Labour Relations Board should use the act. It gave them guidance as to how they should interpret the act. That kept the act on a balanced basis. If you're an employer or a member of a union, you felt that you had a reasonable chance of having a fair and balanced hearing. The purpose clause introduces the need for the board to concentrate on unionization. If you're an employer, if you're a member of an organization such this one, who had a reason to go to the board to become accredited, which is the flip side of being certified, and you go to a board which has a mandate for union organization, how in the world are we going to get any sort of a fair hearing on the need or desire to become accredited?
I think that's only one question which many manufacturers, many of those who are in business who may invest, ask themselves when they consider the question of investing in Ontario.
Mrs Joan M. Fawcett (Northumberland): Union bosses say the present legislation is not balanced, that it certainly is very much on the side of management. Then, of course, we hear a lot of people who say that it is quite balanced; maybe there can be some minor things done, but by and large it's a fairly good piece of legislation right now.
With the new Bill 40, could you just tell me which part of it will affect you the most in your particular business and what would be the kind of imbalance that you might see with Bill 40?
Mr Poce: I'm a union contractor; I have agreements with the labourers' union, the teamsters' union and the operating engineers in the province of Ontario. We've just gone through a one-week strike. We've just finished ratifying, both labour and management, our new three-year agreement. I guess the biggest concern I have is the replacement workers.
As a small company, if a strike was to take place, if I so desired, I could continue to operate with the people I have, supervisory staff etc. The way I read it under the new act I would have trouble operating in that way and it would put me in a much more difficult position in bargaining our collective agreement. Along with that we bargain, as Sandy said, as an accredited organization, which means that the entire sewer and watermain industry in board area 8 negotiates one collective agreement for all those contractors in that board area.
Mrs Fawcett: I can see where the smaller person is going to be really hurt. This is what I keep hearing in my office in Northumberland. They're the ones who are coming in really, very, very worried.
Mr Offer: Thank you for your presentation. I have just a short question. It really is almost to recap some of the things that we've heard since the hearings have commenced. Clearly people have been coming before the committee, some in favour, some with concerns. I think it's fair to indicate that it isn't just the business community that is coming here with concerns; the concerns with respect to the legislation are broader in scope.
My question to you is: Do you see that there is any need for change with respect to the Labour Relations Act at all? If so, how would you propose that be addressed?
Mr Poce: As management, I'd like to see it change the other way. I feel it's too onerous on me right now.
Mr Cochrane: The position we have taken is that Bill 40 in total is bad legislation if it goes into place and that it will have a very negative effect on the attitude of the average investor.
For example, an investor who may be going to make a product to ship into Canada has the option today to go to Michigan, to set up in Michigan and to build at costs, which we understand, based on our own studies, are less than they are in Canada. As free trade develops, he can ship back into Canada with impunity. Moreover, he can move his product into other provinces in Canada, likewise with impunity. One of the things he has to look at when he comes to Ontario is that there are problems moving his product from Ontario into Quebec or other provinces in the country. That is a major concern.
I think if there really is a need to change the act -- we don't believe there is, certainly not now in this particular time when we have a very serious recession, when we're entering into much more difficult competitive conditions as a result of broader trade bases -- then owners, managers, employers, unions and employees should be called together to consider what are reasonable changes that need to be made. The government should act as a broker, if you like, to make sure that good legislation does go in place; that the government does not take a position in the corner with one or the other of the parties, but rather ensures that good legislation is enacted that will allow this province to be competitive and provide jobs for its population.
Mrs Cunningham: Thank you for your presentation. I thought it was interesting at the very beginning where you said that in spite of the economic impact studies, you couldn't believe that "the most ideologically committed member will back away from a measure that would cause enormous hardship to his or her constituents, to workers and business owners throughout Ontario."
I hope at the end of these hearings you will be correct, but I can tell you right now, just given the response by one of my colleagues in southwestern Ontario, Mr Klopp, I'm not sure that he understands the seriousness of this in his own riding. I'm absolutely positive he's heard many representations from the business community, because they've advised me that they've been there.
In southwestern Ontario, especially in London, where I represent the riding of London North -- there are two other ridings plus the county of Middlesex -- I can tell you that where individuals are not satisfied with the response from their representatives, they come to other people's ridings, and in London, Ontario, that happens to be myself. You can imagine how busy we are.
I can only say to some of my colleagues that one has to listen to all sides of this argument. The argument against this legislation, at least in my office, is probably about nine to one, and I truly listen to everybody who wants to be there. I can tell you that things will be different if the ideology prevails.
I'm looking towards your last recommendation here. With regard to their own economic impact studies -- they don't believe anything they've heard so far; that's obvious. All you have to do is watch them in the House. Perhaps after these hearings -- I'm sure they will be overwhelmingly against the legislation; it appears that way, the ones that we hear and especially the ones we're not able to hear -- would you agree or be prepared to participate in a tripartite consultation or would you think that would be a good move for this committee to recommend, given what we hear, with regard to some specific changes to make the bill easier to live with for everybody? Do you think that would be a direction we should be going in? We have to have a way of solving the problem without just passing these amendments. I'm looking for a solution here.
Mr Cochrane: Definitely, yes.
Mrs Cunningham: Do you know anything about it?
Mr Cochrane: About a tripartite committee?
Mrs Cunningham: Yes.
Mr Cochrane: We know nothing about one that is being proposed. What it means to us simply is that the parties sit down and examine the legislation that's in place, identify the need for change, and having done that, draft legislation that is going to correct whatever is wrong, having agreed that it is wrong; moreover, that the legislation that is put in place is going to protect the economy of this province.
If we don't do that, then we're not going to have to worry about who is going to get fair treatment at the Ontario Labour Relations Board. Nobody's going to be bothering to go if there are no jobs to be concerned about. That's our great concern, that this economy is going to further disintegrate. We must protect that at all costs.
Mrs Cunningham: It's certainly a process that we've been recommending.
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The Chair: You've given Mrs Cunningham your question, Mr Jackson?
Mr Jackson: I'm afraid you may rule that way, unless she'll allow me briefly to --
The Chair: You deal with Mrs Cunningham.
Mrs Cunningham: You'd better watch it there, Cam.
The Chair: It's between you and Mrs Cunningham. I'm indifferent.
Mr Jackson: Very briefly, people can't build new housing if they don't have sewer and watermain construction. Since 1988, the majority of new housing construction in this province has been done by the public sector, not the private sector, for rental housing. What that means is if your industry is crippled in any way, or your ability to perform in the public sector, we're looking at thousands of losses of new rental homes for Ontario residents.
Do you feel there should be an exemption in this legislation for any work associated with the public good, such as public sector housing, which would be devastated by this kind of legislation, when the penalty is paid not by these terrible owners of businesses or developers but by the taxpayers of Ontario who have to pay cost overruns for housing construction because of these delays? Would you like to comment on that observation?
Mr Cochrane: I'd say that if this bill becomes legislation, any exemption that is provided will only benefit the economy and the taxpayer.
The Chair: We want to thank you, Mr Poce, and you, Mr Cochrane, for your participation in this process. You've made a valuable contribution and we appreciate your coming here this afternoon. We trust you'll be keeping in touch.
ONTARIO COMMUNITY NEWSPAPERS ASSOCIATION
The Chair: The next participant is the Ontario Community Newspapers Association, if their spokespeople would please come forward and seat themselves, tell us their names and titles, if any, and proceed with their comments. We've got half an hour. Please keep at least the last 15 minutes free for dialogue, exchanges and questions. Go ahead.
Mr Ken Bosveld: We've timed it, Mr Chairman, and it should work out that way. Good afternoon. My name is Ken Bosveld. I'm the first vice-president of the Ontario Community Newspapers Association. Mr Harry Stemp is our executive director. Mr Lorne Eedy is our president. Rick James is a director of our association.
We thank you for the opportunity to present our thoughts in the matter of proposed amendments and reforms of the Ontario Labour Relations Act.
The Ontario Community Newspapers Association represents 274 community newspapers with a total circulation of 2.7 million readers. Many of our members are locally owned weeklies.
I can tell you to begin with that you have brought our board together as never before. We can be a cantankerous, opinionated, independent group and we seldom agree on much of anything. On this matter, we are unanimous. We believe this is ill-advised legislation brought forward at a pivotal time in our history and dangerous to the economic renewal we so desperately require in this province.
The entire process is upside down. We are reduced, as small business people, and specifically as weekly newspaper publishers, to reacting to legislation we completely disagree with. Rather than being invited to be part of a process of examination, we're faced with a fait accompli that leaves us shaking our heads in disbelief. We feel painted into a corner, begging the government to reconsider its actions. We're forced to oppose. We find it an extremely negative experience.
We believe the rhetoric from both sides has been counterproductive. Business, which is scared to death and under tremendous economic assault from all sides, especially the south, has come out fighting like a rabid fox. Labour and government, on the other hand, accuse the business community of fear-mongering and spreading misinformation, yet they offer no specific answers or assurances. They seek to convince the public and especially our workers that businesses oppose these reforms because they seek to oppress their employees. That's an utter lie. Many businesses are simply trying to survive. It's not easy, and this law could make it even more difficult.
We abhor the time wasted in this war of nerves, when we should all be focused on the continued economic survival of this province, which has fallen so far so fast. It's our belief that if you want to change the rules of the road for a business, a community, a government, or for that matter, a family, you must consult all the stakeholders. If you do not, then whatever decisions transpire do not carry the legitimacy one needs to be successful.
The first, and one might argue the most important failure of this legislation is that it's actively opposed by virtually every business organization in the province. It's been poisonous and debilitating to the working climate of the province.
We recommend that the province withdraw this legislation and bring together all the stakeholders and start again. The current ill will, mistrust and anger must be replaced by recognition by all parties that we need to come together and try to leave our politics at the door and consider these new rules of the road together.
We proceed, then, with our specific concerns about this legislation only under the strongest possible protest. It's the wrong venue and it's a negative process. It's a Band-Aid response which sets business, labour and government into defensive posturing which demeans all our efforts.
We specifically object to the provision in the legislation which effectively denies an individual the right to reconsider his or her opinion after he's decided to join a union. The provision that such a petition must occur before the union files its application with the board is a mockery of the freedom to choose. We find it peculiar that in the province of Ontario it will be easier to cancel a contract one has signed to buy a new condominium than to exercise the freedom to disentangle oneself from being sold a new union. It's a double standard and it's wrong.
We find it totally undemocratic that an employee could find himself or herself a member of a union without being given the opportunity to vote. No employee should ever arrive at work to discover he now belongs to a union which he did not vote in favour of joining. We consider this provision in the current legislation and in the proposed legislation to be a totally unacceptable violation of the most basic rights and freedoms.
Membership in a union, like that in a business or trade association, should be absolutely voluntary. Any employee is free to exercise his right of association and join a union, and any employee must also be 100% free to exercise his right of non-association. This right should also be protected through legislation.
No one should ever be forced to join a union in order to obtain or retain his job. In a truly free and democratic society, no job should be dependent upon union membership, no shop should be a closed shop, no individual should be denied the opportunity to support himself or his family because he's exercised his right of non-association.
We do not subscribe to the argument that eliminating the requirement to vote when 55% sign up as union members is the right way to expedite the process. Rather, we believe if something's worth doing, it's worth doing right. There are ways to expedite the certification process which do not carry such an unacceptably high potential for abuse, and furthermore we submit to the committee that as a matter of principle, a minimum or token certification fee be maintained.
In our opinion, the argument that reform of Ontario's labour laws will reduce picket line violence simply doesn't hold water. Existing laws are not being enforced or are being selectively enforced by choice. It's hogwash to say that new laws will solve the problem when from the government on down there's disrespect for the current laws. How can it be that behaviour is tolerated on a picket line when those same actions would result in instant arrest if committed at a shopping centre, the ballpark or a hockey arena? Strikes should not be a legal opportunity for intimidation, vandalism or destruction.
However, our deepest concerns have to do with the banning of replacement workers. In conjunction with the omnipotent powers of labour relations boards to force a first contract, there's little pressure on a union bargaining committee to bargain in good faith. We're to be held hostage by unions many times our size.
The proposed legislation would instantly cripple a community newspaper. The ban against using replacement workers, including management personnel from outside the plant which is the location of the strike, would mean that the newspaper involved would instantly be unable to publish.
As committee members are well aware, a strike vote is often held early in the negotiating process and can be effectively used as a union bargaining chip or wedge, but much often transpires between the time of the strike vote and when a walkout actually occurs. For this reason, we believe employees should be guaranteed an opportunity to reconfirm or rescind their earlier vote. It's unfair to hold employees to such an important decision until they have all the facts, and those facts are often not available at the time of the first vote.
Such a provision not only gives employees more direct control over their destiny, but it forces unions and management to be more flexible, creative and responsible. It also helps to reduce the likelihood of strikes which may in part stem from a difference of perspectives, principles or personalities which may exist between labour and management negotiators. The need for this type of safeguard is further magnified because of the ban on replacement workers. Let's not forget that if the business doesn't survive the strike, there are no jobs to go back to.
Many industries are able to hedge against the impact of a strike by stockpiling inventory. Because of the nature of our business, that's obviously impossible. We cannot produce newspapers in advance. Employers who cannot afford a shutdown will have little choice but to make additional concessions at the bargaining table, but employers do not have bottomless pockets. In today's highly competitive chase for the consumer's precious after-tax dollar, business must be more productive, more efficient, more aggressive, more creative and give better service. Increased labour costs cannot be paid for with magic beans. Cuts must be made somewhere, often a little here and a little there, and it usually ends up meaning fewer people expected to do more work.
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Many industries have sufficient employees to at least provide a skeleton staff during a strike. For most community newspapers, this is also impossible. We often have staff of less than a dozen, each person performing a unique role.
Many industries have large, central locations with all management and non-union personnel in one place. Our business tends to be very different. Many Ontario community newspapers are independent or decentralized units, parts of small or medium-sized chains. Many of our managers are located at external offices and would therefore be precluded from doing the work of striking employees in other offices or the central publishing location.
All of this means the proposed legislation would immediately shut down our newspapers on the first day of a strike.
Our security lies in our ongoing relationship and trust with our readers and advertisers. If that relationship is severed, it can be very difficult, time-consuming and costly to re-establish.
There is an even more alarming possibility. While our businesses would be forbidden by law from functioning, our striking workers are free to found and operate a competing newspaper. Strike papers are not unknown, although until the proposed changes the most they could do was compete head to head with the existing newspaper. This legislation gives the strike paper all the advantages. This creates the potential for entrepreneurial union members to force a strike, close the community newspaper for which they work and start their own paper without competition. This is ridiculous and it's entirely unacceptable to the community newspaper industry.
Labour's legitimate goal is to improve the general condition for its members. This involves entering into collective bargaining looking for a wage and benefit settlement that increases the disposable income of employees. The goal is to at least recoup what has been taxed away since the last collective agreement and build in a cushion for what will be taxed away during the term of the new agreement.
Businesses are not capable of bearing the brunt of the burden for our nation's fiscal woes. Governments of all levels can do their part to improve long-term relations between labour and management by better managing their own finances and not furthering the cycle of debt.
Our association represents hundreds of small businesses from one end of this province to the other. We are trying to adjust to a myriad of new legislative initiatives such as pay equity, new environmental legislation and associated tariffs and new taxes from all jurisdictions, including payroll taxes and the GST. Our postal rates are rising exponentially.
We're facing the worst recession since the Great Depression and a fundamental restructuring of the advertising industry. Many of our small towns are under economic attack. We're astounded to find ourselves here today begging the government to back away from labour legislation which fundamentally alters the workplace.
Small businesses fear that the bad blood which has infected relations between some larger businesses and some larger unions will now trickle down to the small and medium-sized firms. Our fear is that the "we" attitude that employees and owners have together fostered in our workplaces is going to be fouled and turned into "us" and "them." If that happens, everyone loses, with no exceptions.
We find it ironic that the greatest threat of this legislation is towards homegrown small business in Ontario. International and transnational corporations will move their investments to jurisdictions that suit them. It's the small business sector that must be looked to for future growth and innovation in Ontario and we find ourselves under attack from our own government.
We respectfully ask the government to immediately withdraw and reconsider this proposed legislation. Restart the process in an environment of equality, understanding and dialogue which involves small business and deliver a positive and meaningful reform that will meet the changing needs of all stakeholders.
The Chair: Thank you. Mr Offer, five minutes, please.
Mr Offer: Thank you for your presentation. I got the feeling throughout your presentation that this is really founded on a principle of the rights of an individual. I have a specific question but just as a preamble to that question I hear you saying -- please correct me if I'm mistaken -- on the issue of replacement workers that the issue is not the right of an individual to associate, or the right of an individual to join a union, or the right of an individual to strike, or the right of an individual who's on strike to try to obtain some other employment, but rather, if all those rights are recognized and and protected, as I think they should be, then there should still be the right of an employer to be able to continue operations.
I hope you would be able to comment on that, but my specific question is on the rights of individuals around organization. What is your position, in an organizing drive with respect to the secret ballot, whereby workers have the right, first, to be fully informed about what unionization means to them, to then be able to cast their vote in a free and secret manner in order that their true wishes be heard? I would like to get your thoughts on that aspect.
Mr Bosveld: I think, as a matter of principle -- and we each represent different newspapers and we're together on a board that represents 274. As we said, we're a very diverse group. My personal view is that any vote should be free and conducted in secret. That's just as a matter of principle.
Mr Lorne Eedy: With full disclosure bargaining.
Mr Bosveld: Yes, by both sides.
Mr Offer: If I can just go back to the first comment I made on the issue of replacement workers, we've heard various opinions on this issue from individuals in your line of work, in the newspaper business. Are you stating that it is the rights? As we respect the right of an individual to strike and to obtain other employment even during a strike, so should your right to continue operation be recognized in this way. They are not necessarily exclusive of one another, but rather it's a question of consistency.
Mr Bosveld: As the daily publishers referred to, possibly the largest of the dailies might be able to find a way to struggle through a strike. But they made reference to the fact that the ones that will be hit hardest, even in their own association, are their smaller members. We are even smaller yet and, as we say, we believe this legislation has a potential to put us out of business from day one and tie our hands while our employees, whom we've paid to train, can walk across the street, open a competing newspaper and we still will not be able to hire replacement workers. Our hands are tied during that process.
Mrs Cunningham: With regard to worker replacement, we heard from the larger newspapers earlier today and perhaps you are of their positions. But when you talk about putting yourselves out of business, I think it's very interesting when you talk about newspapers starting up elsewhere because, in fact, even without the legislation, that happens. Perhaps you could tell us the difference between now and if Bill 40 comes in. Just expand upon it a little bit.
Mr Bosveld: We have no problem with competition. It's quite interesting, often around our board table we have board members who are in competition with each other and most of the time we can put those differences aside during our board meetings.
We thrive on competition, but we don't believe it's fair competition for us to be in a situation where we are put out of business by the legislation, while the strike paper has all the advantages. They can continue to publish and drag out the process. Technically they still are employees. We're really curious to determine, and we haven't been able to get an answer to this, if that employee leaves and begins a strike paper, at what point does that person cease to be an employee of the original newspaper? To the best of our understanding, it's a process that can be dragged on for quite some time to the advantage of those who've begun the strike paper. They're holding all the cards.
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Mrs Cunningham: Also, could you expand on page 3, where you talk about it being totally undemocratic that an employee could find himself or herself a member of a union without being given the opportunity to vote? How would that work in your newspaper?
Mr Bosveld: Ours is a family newspaper, so I hope that over Sunday dinner they'll let me know if they're going to do anything. But our concern is that we have small newspapers. Oftentimes, as we've said, we can be dealing with less than a dozen employees. I guess a concern would be that if eight or nine of that dozen decided they wanted to become unionized, they could take action against the wishes of the remaining members.
Again, it is our fundamental belief that in a union, like in any other organization, membership is voluntary. As a matter of principle we do not believe that your job should be dependent upon belonging to the union. If that is your choice, that's fine, but you should also have equal freedom of non-association.
Mrs Cunningham: So you're obviously in favour of a secret ballot for everybody.
Mr Bosveld: By all means.
Mrs Cunningham: That's your point there.
Mr Bosveld: Yes.
Mr Jackson: I appreciated your reference to concerns about job violence. I know all of you were present when the large daily newspapers presented their case and they referenced their experience with increased violence and the Quebec model and so on and so forth.
I wondered if you were aware that not only is this a complicating factor -- you make the dramatic point that the violence that is a chargeable offence at a ballpark won't be chargeable. I wonder if as writers, editorial writers, as owners of newspapers, you're aware also of the fact that we've received -- I'm aware of three government nominees to police boards where the nominees have known criminal records for picket line violence.
In fact with the combination of this legislation and the fact that on police service boards the NDP have nominated labour organizers with criminal records for picket line violence who are now in a position of being the bosses of police officers, police officers are saying, "What is the message to me when my employer asks why I charged the individual for smashing in a truck or for hitting a person who is on a picket?" I think there are legitimate concerns that the level of violence in our province is going to increase with the combination of those two factors. I wonder if you are aware of these appointments.
As an interesting side note, the person responsible for these nominees is the Labour minister's son, Andrew Mackenzie. He's the person responsible for selecting and sending forward to cabinet these nominees to police boards. Labour seems to have its fingers into everything these days, but if it means a more violent Ontario, certainly I would hope you were more aware that this trend was part of a parallel trend we're experiencing.
Mr Bosveld: No, we weren't aware, and we believe that the reference that reform of the labour law would reduce violence is just a smokescreen, because there are laws in place.
Mr Ward: I'd like to thank you gentlemen for your fine presentation and for taking the time to come down today. You mentioned, I think in answer to Mrs Cunningham's question about employees perhaps not having an opportunity to voice their opinion during an organizing drive -- recognizing that you are community newspapers with a very small number of employees, some of them family-owned, as you are, which newspapers has that happened where nine employees have made the decision to join a union, more than likely the Southern Ontario Newspaper Guild, and the other three weren't aware? We're receiving a presentation tomorrow from SONG and I'd like to be able to ask them that.
Mr Eedy: I think my comment simply is that we're talking about legislation that's proposed. That's what we're talking about. In the current situation, we're happy with the legislation right the way it sits right at this moment.
Mr Ward: You're satisfied with the present 55% certification process?
Mr Eedy: Yes.
Mr Ward: I was under the impression you weren't and that you had some actual experiences of nine employees signing a card and the other three not becoming aware. So you were just speaking theoretically about a scenario that may develop.
Mr Bosveld: That's right.
Mr Ward: Okay, just so I understand. I think there's common acknowledgement -- we haven't heard from too many presenters or even the opposition on the government side that there is a need for labour reform, that it hasn't been updated significantly since 1975, that the workplace and workforce have changed dramatically in that time frame.
Now you suggested that this entire bill be withdrawn and the process be looked at in a renewed fashion. Some of the amendments are in existence throughout Canada in every jurisdiction. I refer to the facts that full- and part-time workers' right to single-unit representation is in every other jurisdiction including the federal jurisdiction, that the petition restrictions that you have concerns about are in existence in every other provincial jurisdiction, that the professionals' right to organize is in the federal jurisdiction, BC, Manitoba, Quebec, Newfoundland and Saskatchewan, the vast majority of provinces. Why would you object to those amendments?
Mr Bosveld: I think our key objection still all centres on the aspect of replacement workers. That is what will put us out of business from day one.
Mr Ward: Your key concern is replacement workers, not so much the other amendments which I doubt very much would have an impact on your organization at all, such as the security guards' right to join any trade union.
Mr Bosveld: Not yet.
Mr Ward: Now a follow-up question -- I still have a couple of minutes: In Brantford we have a very fine community newspaper called the Brant News. It's unorganized as far as I know and I don't see any reason why it would be. I don't see why the employees would make that conscious decision. You have some excellent staff at that community newspaper. I can think of Doug Farrell and Dave Harrison as two very fine examples and you did have another one, Sharon Slater, but unfortunately due to the times she was laid off.
Using Brant News as an example, why do you think with labour reform those employees, Doug Farrell, Dave Harrison and the rest, would make the decision to suddenly say, "We want to be organized," and if they did, why would they make such unreasonable demands on the publisher of the Brant News that they would be forced to shut it down, in fact take their jobs away and their livelihoods? Why do you think that would happen?
Mr Eedy: The Brant News is part of a chain of newspapers and this might not happen in Brant, but it might happen in one of its sister publications, where there might be interest in joining the guild. More than likely what is going to happen is the guild is going to approach them. They're going to go down the list of the Ontario community newspapers starting at the obvious largest chains, which are already unionized, and they're going to go right down.
I think Brant News is owned by Newfoundland Capital Corp, which probably represents 18 or 20 community newspapers in Ontario. Obviously if I was a member of the guild as part of its negotiating team, I would be very interested in them as being part of that.
Mr Ward: Do you think the vast majority of your employees in your association would think they need to be organized and that this labour reform is going to allow them to make that choice?
Mr Harry Stemp: I don't think they are looking at it as they need to be organized. What we're concerned about is it's going to become easier to organize.
Mr Ward: As far as your organization is concerned, in what way? I just need this information, I'm sure not only for my benefit but this committee's benefit as well.
Mr Eedy: The fundamental problem that we have -- it goes back to replacement workers -- is that a newspaper in a small town is like a Chevrolet dealership or a Ford dealership. There simply can't be two Ford dealerships in the town. I think all of you here can understand that if you are from a small town. Two can't make money; one can.
If you're in a position where you can't replace your workers or you're in a position where, for instance, the only choice you have is to publish a paper with no advertising, our business is probably the only business in existence that is run by goodwill. It's cash-driven; it's driven from week to week. If that cash doesn't come in the door, the publication ceases, so if we're not allowed to continue to publish, we're sitting with an investment that literally we can run out of a suitcase.
Now with desktop publishing, as everybody in this room knows -- I'm sure everybody has their portable computer -- literally with a laser printer you can start printing. You can rent the space. You can --
Mr Ward: But why would Dave Harrison and Doug Farrell --
Mr Bosveld: I would too and I agree.
Mr Ward: I know those individuals and I doubt very much if they would take the conscious decision, and the rest of the fine employees of Brant News, to say, "Look, we're looking to withdraw our services for whatever reason and we know that if we do, Brant News is going to cease to publish and there go our jobs."
Mr Eedy: You're talking about the management of the paper, though.
Mr Bosveld: I think Lorne has a point, though, about the Brant News being owned by a larger organization. What we have seen, for instance, with the Brabant papers around suburban Hamilton, we have an organization there that is owned by Southam and when the guild approaches it is on the basis that community newspapers do not have the financial resources of the larger dailies. The employees are approached by saying, "This is what the dailies are getting."
We do not require, for instance, the same experience sometimes. Community newspapers will often hire a student recently graduated from a college program where only an exceptional student might be able to find placement with a daily in that scenario. But, yes, knowing the folks at Brant News, and having --
Mr Ward: It would never happen.
The Chair: Mr Ferguson, you have one question. You've waited patiently.
Mr Ferguson: Thank you, Mr Chair. Just one question. Gentlemen, as you know, the Canadian Daily Newspaper Association appeared here this afternoon and now of course you're here representing the Ontario Community Newspapers Association.
My question simply is this: Given your overwhelming opposition to this piece of legislation, what reasonable assurance can you give the general public that, in your reporting on not only the activities of the government but the activities of this committee on this particular piece of legislation, you're going to exercise even a limited amount of journalistic impartiality so that both sides of the story are told when it comes to this piece of legislation?
Mr Bosveld: Just because we're a newspaper association I don't think it's fair to deny us the right to express our concerns about things that we feel legitimately affect our industry. I believe that all of the MPPs present represent all their constituents, not just those who have voted for them. I think we can separate our responsibilities, and I believe you do also.
The Chair: People, the committee wants to thank the Ontario Community Newspapers Association for being here this afternoon and for participating in this process. Your presence here has been an important one. We've listened carefully to what you've had to say and you will undoubtedly assist this committee in making its determinations. I want to say thank you to you.
I want to tell people who are paying attention to this on the legislative channel that we're going to be back at 6:30 until 9 o'clock tonight. We trust that they'll watch with interest as they have all afternoon, or come to Queen's Park and participate in person by making use of the observer seats here. We're recessing till 6:30. Thank you very much, people.
The committee recessed at 1704.
EVENING SITTING
The committee resumed at 1830.
OSGOODE HALL LAW SCHOOL
The Chair: We're going to start this evening's session. The first participants are professors Tucker and Glasbeek, from Osgoode Hall Law School. Would you please come forward, gentlemen, seat yourselves and identify yourselves so the people watching know which one of you is Tucker and which one of you is Glasbeek. Tell us what you will, and please try to save 15 minutes for questions, assuming there are enough members of the committee here to pose them.
Mr Harry Glasbeek: I'm Harry Glasbeek and this is my colleague Eric Tucker. We're from Osgoode Hall Law School at York University. We both specialize in labour law and therefore are very interested in this process and what's going to happen to this bill and we're very appreciative of the opportunity to come and talk with you for a little while.
We have circulated a piece of paper which might be too long for busy people like you but which for us as academics of course is just a tiny little hiccup, 20 pages I think it is, or something like that, which is hardly worth writing, and when it takes two of us, it can't go on any of our résumés.
Basically we've divided the paper into three submissions, but there are really only two kinds of submissions we wish to make about bill 40, and we'll put those to you in order. We'll speak to the paper. I won't read it. It's boring enough as it is.
The bill's very controversial, or so it seems to us, controversial because there is an opposition which seems to be concerted and almost way out of proportion, quite amazingly so, considering the actual focus and content of the bill.
The second submission we would like to make is that on the other side of the fence it's almost equally bad: Bill 40 fails to deliver on the NDP's stated agenda in any serious way whatsoever. So as academics, we're in our usual position of: "You're all clods; nobody is worthwhile." Of course we don't mean that; we want to participate and see how we can help.
I'll offer my comments on the first kind of submission, namely, that the opposition is completely disproportionate, and Eric Tucker will address the issue of the NDP's failure to deliver on its agenda.
First, the disproportionate argument in terms of opposition. What do we have? We have basically one premise and it goes something like this: Labour law was just perfect until Bill 40 came along. The balance was just right, with no need to move it one inch one way or the other. Indeed, if you did, the whole thing would come apart, especially if they tilted it in favour of the labouring classes.
Again, as a humble academic, I cavil at that sort of premise. The labour law we have in Ontario right now of course is the result of gigantic political and economic compromises, primarily reached during and after the war, where the forces of capital and labour and government came together and worked out some kind of mediated regulatory system. For a while that seemed the right system at that time, given the balance of forces.
Social and political and economic needs change all the time and therefore compromises change all the time, so the idea that nothing can be altered without endangering the whole fabric of society is absurd on its face, and that starting premise flaws much of the concerted opposition to the bill, that nothing can be changed.
Let me be concrete about that. One of the assumptions of this status quo which is unalterable, certainly not in a way that would tilt the balance towards labour, is that it really had provided just the right amount of material benefit and possibilities to people.
The fact about collective bargaining in Ontario is that it didn't apply to the majority of Ontario workers right from the beginning. It has never applied to most Ontario workers and still does not apply to most Ontario workers. In particular, the people left out are the visible minorities, first nations people, differently abled people, women, the young, the old. They are disproportionately disenfranchised from the supposed benefits of statutory collective bargaining. They have been, always have been and will continue to be so under Bill 40, I may say.
So it was never true, and the results of that, in terms of the right kind of balance and the right amount of material benefits, have been particularly unpleasant. If we actually stopped to think about what the results are, I don't think we'd be all that proud. For instance, Canada, Ontario included, has one of the worst ratios of male to female earnings in the first advanced nations of the world. Canada, including Ontario, has one of the worst, if not the worst, occupational health and safety records of any of the jurisdictions in the first industrialized world. Our benefits, in terms of family benefits, pensions, maternity leave, sick leave, holiday, hours of work, are all worse than their counterparts in Europe. We only begin to look human and advanced if we compare ourselves to some states in the United States and to the Third World.
Now, as a balance, that doesn't strike me as something to be proud of. That doesn't strike me as being unalterable in any way. In that sense, the concerted opposition seems terribly disproportionate.
In addition, what you would say from that is that at the very least, what any labour law reform of any kind ought to envisage is to include the ability for people to help better themselves to avoid these harsh results we do have. The answer to that has been, so far, in Ontario, "The best way to help people to help themselves is to give them collective bargaining rights." So what you would want to give them is the ability to organize themselves better.
Now, this apparently raises the ire of many of our citizenry. This apparently is unacceptable; this will tilt the balance too far. That seems to me a denial of first citizenry rights of all people in Ontario as a starting point, and something that can no longer be tolerated as an argument, not if we're serious about being a decent society. We can see that in many ways. We have food banks in this city where working people go. That can't be because we have the right balance; that cannot be so.
All right. Having said that, what we therefore need is a compromise at a different level. Unfortunately, many of the proposals Bill 40 offers are proposals in respect of organization and collective bargaining power which exist elsewhere in Canada already and haven't tilted the balance very much at all; that is, they haven't brought the house down. Nothing much has happened; it hasn't improved conditions all that much and nothing much has happened. The reason for that is because they do not question the starting points of statutory collective bargaining, which disenfranchise so many people in the first place. Those proposals do not question that.
For instance, what we find in Bill 40 is not an adequate support for organization, little by way of enhanced collective bargaining power and, of course, nothing to address the vast economic restructuring which is going on presently in Ontario.
I'll speak very quickly now to some of those issues in detail; very minor amount of detail. You know the bill very well, I imagine.
Organizational rights: How do we best picture that and conceptualize that? I've already said that we began to have truly a public commitment to statutory collective bargaining well entrenched from the 1950s onwards in Ontario. Up to that time, trade unions were seen as sort of unacceptable bodies because they acted in restraint of trade and inhibited the individual's right to trade; individual workers, individual employer's right to trade.
Therefore, the criminal law and the civil law was used to constrain and restrain them. The need, therefore, to change that, if you're going to have collective bargaining as a reality, was to give them a new status.
1840
Canadian politicians -- and I suspect some people in this room are included in that -- are very proud to stand on public podia and declare that one of our insignia of freedom is free trade unionism. Trade unions have become an absolute mark of a new quasi-governmental type of agency which participates in labour market regulation. By the way, our courts are fond of saying that and our Supreme Court of Canada used that as its basic tenet in deciding the Lavigne and OPSEU case recently. That is conventional wisdom in this country.
If that is conventional wisdom, it suggests that everybody should have the right to belong to a trade union in this free country. Of course, the question is that there are many, many people who so far have been excluded, both practically and legally by definition under the Ontario Labour Relations Act.
Here we find it particularly disappointing that the government saw fit to continue to exclude front-line supervisors as people who ought to be able to unionize and participate in collective bargaining. It would have been a minor step. Employers, I understand, object to that; their ostensible notion is that it will be a conflict of interest if these people organize. Of course, that can be avoided relatively easily by putting them in separate bargaining units if you really are worried about that. The idea to exclude somebody from what is supposedly a basic right in Canada is a denial of some of the freedom tenets which we hold dear.
If the right to belong to a trade union should be free, the right to organize should be even freer; that is, if it's your right to belong to an association in this country, you must have the right to organize such an association and to want to belong to it. Your right should be supported by the law, not impeded in any way, unless it's absolutely necessary.
The Ontario Labour Relations Act up to now has never permitted that to happen. It has balanced the interests, the interest in particular of the employer's free speech, which is of course perfectly defensible, except for the fact that in an organizational campaign the employer's right to speak is vastly disproportionate in influence compared to anyone else who speaks. And of course the employer's right to discipline for productive needs can be easily translated, and often is, into the right to intimidate employees who seek to organize.
We've always had the Ontario Labour Relations Board to guard against that but of course it always guards after the fact, after the atmosphere has chilled. It comes in later and the workers can never be guaranteed that they will win, so it takes courage to organize and indeed it requires people to go about their business secretly. That's an odd thing in a free country. We must remember that unionization often takes place in motels like a tawdry assignation, like a clandestine activity, because people cannot organize at their workplace where they can contact each other openly and freely. They are not allowed to do that because it interferes with productivity and because of some notion that it is wrong. That is not spelled out. This is monstrous in a free country. Unfortunately, Bill 40 does nothing about that.
Its idea that there shall be no petitions after certification has been applied for is after-the-fact remedy. The fact that the OLRB will be quick and it can interfere more quickly is after-the-fact remedy and leaves uncertainty. The crux of the problem remains. This is a sadness. It is untoward.
In addition, no lists are provided. Can you imagine you running an election without having an electoral list? That's what unions are required to do. You wouldn't think of that, as parliamentarians. You would think that's a denial of your citizenry rights. We deny that to workers every day. There is no requirement to give those employment lists to people who want to organize. And of course we've always got a good reason: privacy. As a balance, it's an imbalance.
I'll speak very briefly now, otherwise my colleague will kill me.
Bargaining rights under Bill 40: apparently you're going to give domestic workers the right to bargain. This is not the sort of stuff that's going to shake the economy. The bargaining rights of domestic workers are an illusory and symbolic notion. They cannot bargain in any meaningful sense of the word. We're going to say that a few times. Just to have bargaining rights -- we are arguing, of course, that people should have them -- doesn't translate into anything by necessity. Nothing follows from that. You've got to do more if you're serious about collective bargaining.
What else have we done? Maybe agricultural workers can unionize, but the right to strike is problematic. Think about that. What we ask you to think about is, in this country, why are we so afraid to give people what rights they have in many other countries of the world? Are we less capable of dealing with competition than other parts of the world? Is that our anxiety?
Anti-scab: That's a big issue. I pick up my newspaper every day and there it is. It's almost bizarre. A strike is the means we choose -- a regulated strike, by the way; it's very hard to have a strike in Canada and in Ontario -- to resolve a problem on an economic basis, not a political basis. The party that holds out the longest wins, and that's what brings the parties together, this sword of Damocles of economic ruin.
What workers are afraid of, of course, is that when they withdraw their labour, if the employer can continue to make a profit, their withdrawal of labour will mean nothing. Necessarily, they will ask other workers not to work for that employer and other people not to trade with that employer. That follows as day follows night. Once you give the right to strike, that is a concomitant. Free speech, which is what the Supreme Court of Canada has said this is, is to go out and say to people: "Please don't work for this person; we're on legal strike. Please don't trade with that person; we're on legal strike."
Of course, if replacement workers can be hired, what that means is that speaking doesn't amount to much. "Please don't do that. You're taking our jobs, our livelihood, our children, our families, our houses." Polite speaking doesn't do it. Very soon there is pushing and shoving and violence and police and bad pictures on your TV; ugliness everywhere.
How to stop that? Have a law that says, "There shall be economic pain for both parties." That's the whole idea: Workers withdraw their labour, so the employer doesn't produce. Quite straightforward. "Ah, but," say the employers, "out there, workers go out and get other jobs." If anybody believes this in Ontario, of course they're somewhat foolish, but none the less, "They'll go out there and get other jobs." There's not many about. What jobs? But even if they get them, what's wrong with that? What the worker is doing is selling the only asset she has to withstand that economic pain.
The employer is free to do that any time. If he's really pinching, he can sell one of his assets. That's evenhanded; perfectly equal. But the employing groups don't seem to like evenhandedness; they want upperhandedness. That's the balance they've had until now. That's why they're so keen to keep it.
The bill, unfortunately, only offers a mild change to the scab labour situation in Ontario. By providing that managerial people can do the work, that non-union people can do the work and that work can be contracted out, the likelihood that the replacement worker issue will go away is very remote. It's not enough. The logic of the system requires more.
I've taken too much. I've got much more to say, none of it interesting. I'll turn it over to my colleague.
1850
Mr Eric Tucker: I'll be extremely brief, hopefully to leave you some time to address any questions you would like.
In some sense then, my colleague has identified half of the argument, that is, tried to examine the arguments you've heard so frequently in opposition to Bill 40. One of those arguments, as he's called it on earlier occasions, is the Goldilocks argument, that everything is just right. I think we've demonstrated that things aren't quite just right as they stand now.
A second argument you've often heard is that even if they're not just right, "Well, we just can't do any better." Of course, as you know, other provinces, other jurisdictions seem to do much better. All of these provisions exist in some form in other statutes, so there doesn't seem to be a lot in that.
A third argument you've heard is that somehow what is being proposed in Bill 40 is a radical departure which will traumatically alter the balance of power between workers and their employers in this province. Again, as we've argued, quite simply that isn't the case. It's from that last point that I want to pick up and begin to develop another kind of opposition to Bill 40, which I don't think you've heard or at least not heard enough of to this date; that is, that I think that when the government started out on the enterprise of reforming labour law, they recognized that something substantial needed to be done, that the existing scheme of collective bargaining we have in this province was no longer keeping up with the developments that were occurring in our economy and our society generally; and that in the process of developing labour law reform something has gone wrong.
Beginning with the earliest proposals before the Burkett committee, I think the labour representatives who tried to formulate them had already cut back in anticipation of political opposition, and ever since then the government has been stepping back and back and back. If you trace the history of this, you can see that every concession that has been made in the development of the current proposals before you constitutes concessions to opposition arguments that have already been made by employers. Virtually no significant changes have been made in response to submissions that have been made by labouring groups coming before you saying, "The bill is inadequate and needs to be reformed in this following way." The whole process that's taken place has been one of retreat in the face of employer opposition without any responsiveness whatsoever to some of the concerns that trade unions have been bringing before you in earlier submissions. In effect, what we wind up with then is a bill which really fails to meet the government's own stated objectives.
Now let's take a look at some of those again very briefly. One of the points that the government has been emphasizing is that this legislation will promote cooperation and partnership between workers and their employers. Cooperation and partnership are seen to be keystones to the kind of economic renewal which the government envisions for Ontario, one which will create a high value added economy based on competitive advantage developed through research, investment, development, not through sweating its labour force by paying them miserable wages, lower wages than are paid in the lowest-wage states in the United States.
We want some kind of partnership, but there are all kinds of partnerships we can have. At one end of the spectrum we can have partnerships in which the weaker party participates but on terms that are dictated to it by the stronger party. On the other hand, we could have a partnership in which you have essentially two equals who share in important decision-making. I don't think the government has often been particularly clear about just what kind of partnership it envisions and at what level, but I presume it means some kind of partnership in which organized labour is at least an active and effective participant, not one in which it participates on terms that are dictated to it.
What does Bill 40 do to encourage the formation or the development of this kind of partnership or cooperative arrangement? Let's take a quick look at some of the issues regarding the organization of production.
Under the regime as it existed, employers had the right to contract out bargaining unit work. They had the right to introduce technological change without regard to the impact that might have on the labour force. They had the right to lay off workers or to close down their operations entirely. All of this can occur during the life of a collective agreement, subject only to whatever restrictions unions might have been able to exact from them in the previous round of collective bargaining.
Of course, because employers highly regard these managerial prerogatives, they have been quite unwilling to give up very much in regard to these subjects. The only protections workers got were largely through employment standards; they could get notice of mass layoffs individually and perhaps of severance pay.
This was not a basis on which a partnership could develop. One party clearly had the upper hand; the other was in a very weak position.
What does Bill 40 do to respond to this problem which I think the government initially correctly understood as being a serious problem. What we've gotten in Bill 40 is that there is now a duty on the employer to notify the union -- not the individual workers now: the union -- of when there's going to be a mass layoff and to bargain some kind of adjustment plan.
Now, two points about that in terms of partnership. First of all, it's a kind of partnership that occurs after the major decision has already been taken: "We're shutting down. Let's negotiate an adjustment plan." Where was the participation in the decision about the future of the firm? There's no requirement for unions to be involved in that earlier process. Participation occurs at the tail end of a decision that's already been made and now we're going to deal with the consequences of corporate decision-making.
Second, what bargaining leverage does a union have in those circumstances? Virtually none. What is the meaning of a duty to bargain in good faith when one party has all the party and the other party is just trying to get anything it can out of what has become a desperate situation? It's certainly not a way of organizing the bill that leads to a form of partnership that resembles or encourages some equality or even countervailing power.
With respect to the duty that is going to be placed in all collective agreements to have periodic consultations, again, in the absence of some substantive content, what would one expect to develop from that? It seems to create simply a format unless there's some surprise where employers can simply inform them of what their proposed plans are. Indeed it could become a way of saying: "This is what we're planning on doing. If we don't get these concessions, this is what we're going to have to do." What does it do to address the problem of unequal power?
The problem with most of these provisions is that they fail to come to grips with what the reality of the situation is. We're dealing with a serious imbalance between employers and workers, and in the end saying, "Go out now and try to negotiate something." Unless the legislation takes that imbalance seriously and does something to rectify it, very little can be expected.
Very quickly, the second major objective that's stated in the government's proposal is a recognition that collective bargaining no longer fits the realities of the new workplace, nor does it fit the realities of the new workforce.
We've already talked about the fact that the old model of collective bargaining was only ever available in any meaningful way to a relatively small sector of the workforce. It never worked well in the highly competitive service sector or other highly competitive sectors of this economy. It was a mechanism that was designed to operate for a large employer operating a mass-production industry or a large resource industry where wages could be taken out of competition relatively easily and the costs would be passed on and employers would compete on some other basis.
It was also built on the basis that the typical employee was a white male who had a family to support, so there was a notion that a family wage had to be paid to this individual in order that a working-class family could consume the products that these new mass-production industries were going to produce. For those who didn't fit within that model, collective bargaining didn't deliver and was not the primary mechanism through which the terms and conditions were determined. Rather, that was left to employment standards which provided a bare minimum on which people could survive.
But what does the bill do about this? It's a lot of rhetoric about the importance of addressing the needs of women, of minorities, of the differently abled, the first nations people. At best, what this legislation does is attempt to give these new workers in these new developing sectors better access to an old style of collective bargaining, to a kind of collective bargaining that is not going to work with them. If domestics have to bargain with their individual employers, they have no bargaining leverage. It's an absurd notion. If workers in small service sector, highly competitive industries have to bargain with their own employers, they'll never get anything; they have no bargaining leverage, as their employers have no leeway.
Unless steps are taken to fundamentally alter the bargaining unit structure to allow for some kind of consolidated bargaining by groups of employees in that sector with groups of employers, then the kind of collective bargaining that workers might get access to will be relatively meaningless.
I think I'll sum up there, since there's virtually no time left. I would suggest, when you have the time, that you take a closer look at the paper. You should proceed to pass this legislation by all means, but once you've done that, begin to think about the real issues that need to be addressed and go on to the next stage so that we can get changes in our labour laws which will make a difference for those groups in our society which really need reform in our labour legislation.
1900
The Chair: Thank you, sir. Mr Jackson.
Mr Jackson: Oh, you're not really going to start with me, but I guess you are. I would like to thank the learned professors for what I thought was a very interesting and stimulating discussion. But in the interest of time, I don't have any questions. It's unfortunate that more people didn't get the benefit of the presentation. I suspect we're competing with Polka Dot Door at the moment and that's unfortunate. I'd like to thank the professors. I found it most interesting. I have no questions.
The Chair: We'll even give you time for questions.
Mr Jackson: No, I have no questions.
The Chair: Mrs Cunningham.
Mrs Cunningham: I came in at the end, so it probably isn't appropriate, but I was curious when I heard you say, "Let's by all means pass this and then deal with the issues." Earlier this afternoon I said, "Why don't we deal with the issue" -- and it happened to be the issue of the domestics -- "and then worry about the legislation that doesn't seem to be that popular in this province"? So I was curious to hear you sum up that way, and I may have misunderstood.
Mr Tucker: The reason I would adopt that approach is that so far all we've seen are retreats from the original stronger positions. If this committee would be prepared to recommend that there be a significant restructuring of bargaining for domestic workers so that collective bargaining would be feasible for them, by all means do so; I would welcome it.
Mr Huget: Thank you both for a very interesting presentation; it's one that I'll certainly want to read once, maybe twice again. There's a lot of interesting detail in here. I really appreciate the comments you've made about those who are very strong objectors to this legislation in terms of, first of all, that if it's not broke, don't fix it; everything's fine, we've got a balanced system now. The second major objection seems to be that, at least in some people's minds, this legislation will do something negative to our competitive position.
In reference to a couple of interesting documents -- one of them is the World Competitiveness Report -- right now, under this good system that we allegedly have, we rank 11th among 22 industrial nations in terms of productivity. We come in last in several key areas of merchandise and import-export ratios. We place 15th is management ability. In another document, Canada at the Crossroads, by Michael Porter, a competitiveness expert or guru, he states that Canada was ranked lowest among the Big Seven industrial powers for labour-management productivity. So to me there's enough evidence to say that this competitive position that can't be altered that we have now by this legislation is not in the best of shape. It suggests to me that there is a different role for workers in the workplace and a different role for workers in the economy.
I'm one who believes that stakeholders, workers and communities are as important as shareholders and that those concerns should be taken into the consideration of the operation of any business. Real input from the workforce at the corporate decision-making level in all areas is something that I believe will help lead what we have to do in order to deal with the new world order, and there clearly is one.
Mr Glasbeek: Time for me to comment?
The Chair: Yes, sir.
Mr Glasbeek: I don't feel confident to talk about worldwide competition and competitiveness; perhaps if I can approach it from a more limited perspective. We started off by saying that the statutory collective bargaining regime we have is a peculiar regime which was a particular regulatory mechanism to deal with a specific set of problems. Canada's economic problem from a labour relations point of view has been that it's largely -- and this applies to Ontario -- a resource-exporting country and that mass production has always been conducted as though it were a branch-plant operation. Collective bargaining, it has to be remembered -- and I think people here in this room know this, but we ought to take note of it from time to time -- in Ontario and in Canada generally was adapted as a copy of the Wagner-Connelly act. Now, the Wagner act was introduced in the United States as a Keynesian instrument. When Canada introduced similar legislation during the war years, it was not as a Keynesian instrument, but really to deal with a shortage of manpower as it was then seen.
The possibility that workers in unions would have strong bargaining leverage was quite frightening at a time when production was very much needed, so the model that we've adopted looks like the American model and in large part plays like the American model, but is meant to apply in Canadian conditions and quite differently, not as a Keynesian model; that is, it's not meant to redistribute income. It is not meant to be a standard-setting mechanism. That is why we have all these people left out. That is why we don't have participation of the kind that you speak of. That is what is never envisaged in our model.
Keynesianism never came to Canada in the same way it came to Europe. It came in bits and pieces, one statute after another, years apart -- very slowly, very reluctantly. It is not until about 1974 that we can talk as theorists about something like a social welfare system in Canada. So it is quite a different system.
Our competitiveness, therefore, going back to your comment, has always been based on the notion that we'll export stuff and hopefully get enough inflow of capital to set up our own manufacturing. We've never done so. Statutory collective bargaining is meant to link mass production to mass consumption. We have little mass production and therefore we've had very poor links to mass consumption, which is the plight of the people.
Mr Offer: Thank you for your presentation. I don't have a very long question, though I might take some issue with you on the characterization of those who have come before the committee with concerns to the legislation. My question will not be on that. It will be on your first recommendation and to ask you for an explanation, because your first recommendation, I believe, at the end of all of the discussion, is that every worker in the province should be assumed to be part of a trade union unless he or she says no. Of course, you realize that would mean -- and this is your first recommendation -- you are suggesting that there be legislation which, when passed, would make all workers in this province, no matter what their wishes are, part of a trade union unless they then seek to extricate themselves from it. I was wondering if you might be able to explain to the committee the process and thoughts behind making this type of recommendation.
Mr Tucker: One way of analogizing it is that we all live in different areas of the province, and in each of those areas, in order to regulate our collective lives together, we have local government. Each of us is a citizen of that local government. Each of us is affected by the decisions of that local government. We don't have the option of opting out, even, of that kind of structure in trying to order our relations in some different manner. We can choose not to vote, but we are going to be affected by those decisions. We are members of those communities at a certain level.
What we're proposing is to assume, therefore, that in the context of work relations, again, the norm is that people organize their relations in some collective manner. So the starting point is that you are a member of an association of people who work, at the very least, in a common location for a particular employer, although we can think of variations of bargaining structure.
There could be many ways of trying to organize that, so there's still freedom of association, as there is in our local communities, even though you're a member of a community. We could think of mechanisms for elections that would be held, for example, to determine which trade union would represent them. There could be electoral competition over that representation, and people who were uninterested, as many of our citizens are, may choose not to participate, but the starting point is that you are a member of a collectivity. There is a normal structure through which that collectivity organizes its affairs.
The Chair: Thank you, Professor Glasbeek, Professor Tucker. On behalf of the committee I want to thank you very much for taking the time to come here and for your preparation. You've made a valuable contribution.
I would just remind people who might be watching that your comments on Hansard are available to them, as well as a copy of your submissions should they want to write to the clerk of the standing committee on resources development at Queen's Park. That is available without cost to people who are interested.
1910
GREATER TORONTO HOTEL AND MOTEL ASSOCIATION
The Chair: The next participant is the Greater Toronto Hotel and Motel Association. Please seat yourself, sir, in front of a microphone. Tell us who you are, your status with the Greater Toronto Hotel and Motel Association and tell us what you will. You're going to have 30 minutes. Please try to keep at least the last 15 for comments.
Mr Ernie Nesbitt: I'll attempt to do so.
Mr Chairman, members of the committee, ladies and gentlemen, my name is Ernie Nesbitt and I have been asked to represent the Greater Toronto Hotel and Motel Association. The Greater Toronto Hotel and Motel Association and its members are part of the 1,200 members in the Ontario Hotel and Motel Association of the hospitality industry.
I see around here some faces I do know, so it's nice to see you again.
I have been asked to speak for the Greater Toronto Hotel and Motel Association on these proposed labour changes and amendments. The tourism and hospitality industry is a service industry; I don't think I have to really say that. Sure, we dispense liquor and booze and we serve food but basically we are a service industry.
I may digress from this text a little bit.
The Chair: We encourage you to do that, because we're all going to be reading it, in any event.
Mr Nesbitt: Normally people are looking for service. They want to be looked after by the people of their choice.
The tourism and hospitality industry has for many years provided employment to a great number -- I really like to enforce that -- of persons from minority groups and disadvantaged groups. In one particular tavern that I have, we have a crippled young fellow going to high school and he would be hard-pressed to find other employment. The boy is going to high school and he wants to go to university. He wants to be a lawyer. I don't know why, but he does want to be a lawyer.
Mrs Cunningham: I haven't a clue either; I share your views on that.
Mr Jackson: They make terrible politicians.
Mr Nesbitt: Let's not get into this.
The hospitality industry represents, we estimate, at least 300,000 people in this province. It's probably the largest single employer in this province and, who knows, maybe even worldwide. There are fewer and fewer people, through productivity and various changes, but our industry is labour-intensive and, quite frankly, we recognize many are not organized. Therefore we have really great concerns about the proposals that have been made by the government. On the surface we would say that a lot of the proposals are certainly acceptable and may be timely, but changes don't always end up the way that you think.
It so happens that I'm an owner of three restaurants and taverns: two Pat and Mario's, and I hope you've been to them --
The Chair: Can you tell us where they are?
Ms Murdock: Started in Sudbury.
Mr Nesbitt: Started in Sudbury, that's right.
The Chair: Where are they located?
Mr Nesbitt: One in Oakville and one in Guelph.
The Chair: Pat and Mario's in Oakville, Pat and Mario's in Guelph.
Ms Murdock: And one in Sudbury.
The Chair: And one in Sudbury.
Mrs Cunningham: And London.
Mr Nesbitt: And London. I don't know if you know it or not but Pat and and Mario's, East Side Mario's and Casey's are all in the same chain. I don't know if you know that or not but that is the truth. There are about probably 75 or 90 of them in the province. Collectively they would probably have 3,000, 4,000, maybe 5,000 employees. Our Guelph operation had 82. So it's labour-intensive and we're concerned.
First of all, I would like to clarify that in my opinion the right of people to organize themselves as a group, to improve their quality of life in their workplace, is a basic human right, without doubt, and also social justice in action. I must say this though: With those rights come responsibilities. I would trust and hope that the people involved would act responsibly and be good Canadians. Their actions should not be detrimental to others, financially and materially.
Quite frankly, the way things are today -- three years ago, a little different story -- for these associations or restaurants to survive is the key issue. It's not a case of making a lot of money; it's a case of surviving and coping with the environment we have, which is not good.
With the revisions proposed in the preamble, where the Ontario Labour Relations Board will have wide powers in the exercise of its functions, it would almost appear that it would have powers without limits. We question the labour relations board. Its role, as I see it, should be non-partisan, unbiased, and it should not be in a position to make decisions for people who should be making those decisions themselves. What is being provided to them could well destroy the credibility of the labour relations board.
Referring to first contract, employees and even the company might say, "We'll let the labour board decide it." I think that's opting out of their responsibilities. That's my opinion. "Let someone else make the decision, whether it be good or bad." I think the labour act should provide meaningful ways to facilitate labour and management to work out their differences, but not to enhance necessarily unions in our society. I must say this: I've been a member of a union, I've also been in management, and I recognize the value of both, without question.
The government of Ontario represents everybody and should not place itself in a position of benefiting one particular part of society. It would appear that many of the objectives of the bill being proposed are leading in that direction, and we're concerned.
The automatic access to first contract arbitration no matter what is, in my opinion, an infringement on the rights of management and on the rights of the union. Who knows? They may get a contract they don't even like. What happens then? Also, where will you find people who are non-partisan, extremely fair, who can satisfy labour, management and the labour department and government? I wish you luck, because I don't think you're going to find them. I only wish I had one.
It does appear that the suggested changes will facilitate the organization of new unions, and if there's a need for it, I see nothing wrong with it, but I think the government should not interfere in the process. If people want to be organized, give them the laws that allow them to do so, but don't get involved in the process of almost forming unions out of nothing.
In the bill there is a provision for full and part-time employees in one bargaining unit. The hospitality industry is probably the largest employer of part-time employment in Canada and the United States. In Guelph, the Pat and Mario's there, we had 82 employees and 60 were part-time; nice young people going to university, some of them in the hospitality school in Guelph. Wonderful. Getting some experience. But most of them in the whole industry are part-time.
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How can you build a strong union and labour movement which can function effectively with people who are just not interested in nor understand organizations like a union? I happen to know that most unions, big unions, 2,000, 3,000, 4,000 members -- you know who runs the unions? Probably 30 or 40 people who meet on a monthly basis, and I take my hat off to them because the other 2,000 and 3,000, they don't care. They care only when it comes down to their pay book. Really, they're being run by a very small group of people.
In the case of consolidating bargaining units, I visualize -- in the case of, say, Journey's Ends there are 125 in Canada, at least 50 in the province, with 20 employees each. After three, four or five bargaining units are put into Journey's End, what do they do? They put them into one union. You have 50 in the province of Ontario in one union. What union would object to accepting them? You have 20 times 50 -- there are 1,000 union members.
If they decided to withdraw their services to their employer, it would be tantamount to closing the Journey's End system down. I don't think that's right. I'm not saying they don't have the right to a union, but the Labour Relations Board will have the power to meld and put together bargaining units. I didn't say they would, but I didn't say they wouldn't.
As mentioned earlier today, survival is the situation; not to live well but to survive, and that's what we're going to do. We're going to survive as Canadians and as people in Ontario. No doubt about it.
Replacement workers: In an industry like ours, if the employees withdraw their services -- say, one of your children is going to get married, then all of a sudden, three days before, the union withdraws its services, what happens to your wedding? The hotel has made a commitment to provide a service and, to all intents and purposes, you can't bring anybody in. You can't even bring in your own family, that I read. You can't bring in your friends to help to look after those people. Is this right? That's there and I really question it. In my opinion, I think some work needs to be done in that area of replacement workers.
You also come down to the reputation of the individual place. Is it a good place to go and be served? If they lose that credibility of looking after them, such as up in Sudbury, Cassio's finally found they had a union, and your daughter's wedding, Sharon, was going to be -- because I know you know Melinda -- "I don't have any employees to provide your meal." What do you do? I don't know. I would like to know.
Mr Jackson: Shift it to a union hall.
Mr Nesbitt: It's my belief that legislation should be good for all the people. When you look at the proposed legislation, sure there need to be some changes. "Labour reform" leaves the connotation, quite frankly, that there was an absolute injustice in existence. You know and I know that's not true because labour unions and companies are people. They're not legislation. They're made up of people, individual people with their hopes and wants. To call it reform really, I think, was a mistake. Change it. Change where you need to, by all means, but change it because you need to change it, not because you think it's the thing to do.
I did digress quite a bit.
The Chair: Thank you, sir. Mr Klopp, four minutes.
Mr Klopp: Thank you very much for your brief. As someone who supplemented his farm income for about four years working at the Green Forest as a bartender, I know very much it's a lot of work. In fact, it's like any business that's family-run, like this was. I would have sold my soul for my boss. He was a heck of a good guy and if there had been an opportunity to unionize, which I understand under the law there was even back then -- I think your comments are very fair. I have enough meetings to go to; I don't need another one to go to. If I'm treated fairly by my boss, who's still the boss, although a lot of times he did let me share in his experiences -- but you're not going to have that problem.
This legislation, the changes that are proposed -- you mentioned that you feel that you don't have a problem with making amendments.
Mr Nesbitt: Yes.
Mr Klopp: Just as long as government isn't forcing people, then, to join them, I think was kind of the crux. From my understanding of the bill, and as one who is been on this side and had people come in and lobby, I think we made a number of changes, 10 major ones, and some of those were people who talked about it in my own riding, and I'm glad that we tried to mix a balance.
But coming back, there seemed to be a perception there that these changes then force people to join something. Where do you get that in there? I haven't seen it. If you could point it out to me, please. I haven't seen this in the bill, these changes that are forcing anyone to join anything if they don't want to. It just gives them a right. But can you point that out to me, where?
Mr Nesbitt: Forcing them -- I can't honestly say that the legislation -- I hope I didn't leave you with that impression that you are forcing.
Mr Klopp: That's why I'm asking the question. Maybe I was wrong.
Mr Nesbitt: But the government profile in terms of labour reform -- and that's what they call it -- is to extend union membership without end, and that isn't necessarily the total answer. I've even had union people say to me, "There are some places that just don't need to be unionized." Union people. In fact, my best friend -- he's dead now -- was a union president and a very, very wonderful person. But I don't agree with you with that. If that's the impression I left, I don't want that to be construed. But I really do feel that the government has placed such high profile on this issue that it would appear that they're going to unionize everybody.
Mr Klopp: Well, it's not in here, as you pointed out. I just wanted to make sure. Maybe I was misled, too. Thank you.
Mr Nesbitt: I saw the first draft, and I'm sure you did, too.
I saw the report -- in fact, I looked at it today. There's a report --
Mrs Fawcett: Burkett.
Mr Nesbitt: And as I recall, someone told me that the proposals were to make sure that never, ever again in the province of Ontario -- as in the case of the T. Eaton Co when they were to be organized; they got certified but they never had the first contract -- would it happen again where a union would not be in there, and that, in my opinion, is dangerous.
Mr Klopp: Well, that was the first report. Thank you.
Mrs Fawcett: Thank you, Mr Nesbitt, for your presentation, although I have to admit that with your one illustration you have sort of struck terror into my heart because my daughter, Kristen, is getting married a week from Saturday. I have to ask if you are telling me that with the way you understand Bill 40 there would be a possibility that we would have to call off the reception should the catering --
Mr Nesbitt: That's the way I read it.
Mrs Fawcett: Well, that is interesting because that would be really, really tragic.
Mr Nesbitt: That would be a shock to you, wouldn't it?
Mrs Fawcett: That would be putting it mildly at this point, yes.
Mr Nesbitt: And I don't think that's fair.
Mrs Fawcett: I hope not.
Mr Nesbitt: I hope not.
Mrs Fawcett: But the thing is, you can't replace, according to this legislation.
Mr Nesbitt: That's right.
Mrs Fawcett: I have another question. I have a letter that was given to me by Les Andrews from Kran Management Services, and it does have the golden arches on and so I'm sure that he in some ways feels the way you do with this legislation. He has stated that he is certainly opposed to the legislation because it throws the balance between employers, employees and government completely out of whack.
He has several questions, one of them being -- and possibly you could maybe give me your opinion of this -- that with the government's replacement worker proposal it is removing the fundamental right of an individual to work in the province when he/she chooses. Is this what Minister Mackenzie meant when he said in the Legislature that Bill 40 is all about justice and fairness? I'm just wondering if you would comment on this.
Mr Nesbitt: I don't agree with Mr Mackenzie.
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Mrs Fawcett: I don't think Mr Andrews does in any way, shape or form either, and he's very, very worried because there doesn't seem to be the fairness here.
Mr Nesbitt: In the case of a motel, if the motel has a strike they cannot rent that room. They have nobody to look after it. That's lost money to that association, never to be recovered. You can't rent it over again; it's gone. In effect, I really would like to see the government consider some exemptions in these areas, because that is not in what I term the public interest.
Mrs Fawcett: To say nothing of, say, a large hotel that maybe is going to have the Shriners' convention in a year or something; they plan well in advance and I think they look very carefully where the negotiations are. There is potential loss, I would assume, if this kind of legislation goes through.
Mr Nesbitt: I would like to see this legislation go back to the drawing board --
Mrs Fawcett: I think that's a fair assessment.
Mr Nesbitt: -- and come out as positive legislation as opposed to something appearing to be negative.
Mrs Fawcett: And bring all the players to the table to talk about it.
Mr Nesbitt: Sure.
Mrs Fawcett: Thank you.
Mr Jackson: I would like to pursue this notion of the impact on your service industry because you also are the cornerstone of our convention business in the greater Toronto area and, to a lesser extent, in other parts of this province.
Recently it's come to our attention that we are losing serious ground in the North American market for conventions. I wonder to what extent this kind of legislation, with its ability to coalesce all beverage and lounge workers and so on and so forth, could literally cripple the convention business if it occurred at a significant convention that had significant national attention such as, in our standards, something akin to a national leadership convention occurring in Toronto.
I was always offended when we were competing for the Olympic games that the city of Atlanta was funding the Bread Not Circuses program in this city of ours and interfering with the process. To what extent will we be crippled simply by people marketing the fact that Ontario has such legislation, that with limited notice you could have all your services in your hotel shut down? We couldn't give the guarantees that were necessary. We're talking multimillions of dollars of revenue to this area and to this province.
Mr Nesbitt: It would be a disaster.
Mr Jackson: But other provinces would literally be out competing for those conventions and saying, "Well, you don't want to go to Ontario."
We found it fascinating when we had the summit meeting here in Toronto that -- on two occasions in my life as a legislator we suspended labour bargaining rights: when the Pope visited us and when the six other heads of state for the economic summit visited us. I always thought that was a bit of a contradiction, that a multibillion-dollar industry in this country might be crippled in a similar fashion, but no regard for it.
Mr Nesbitt: You'll have to get that for Joan's daughter's wedding.
The Chair: Thank you, Mr Nesbitt. You've been an effective spokesperson for the Greater Toronto Hotel and Motel Association and we thank you very much for coming to us with your submission.
Mr Nesbitt: Thank you. Can I recommend that you go to Pat and Mario's and to Ernie's Roadhouse in Cambridge?
The Chair: Both are getting accolades from members of the committee, so people watching this on the legislative channel can take heed. Thank you for being here, sir. We appreciate your interest.
OPERATIVE PLASTERERS' AND CEMENT MASONS' INTERNATIONAL ASSOCIATION OF THE UNITED STATES AND CANADA LOCAL 172
The Chair: The plasterers' and cement masons' union, Local 172. Please, sir, have a seat and tell us your name, your status with the union, with the local, and tell us what you will. We've got 30 minutes. Please try to save the last 15 minutes for discussion.
Mr Jerry Kinsella: Thank you. I'm going to ask the committee members to take off their industrial hats and put on their construction hard hats.
Good evening. My name's Jerry Kinsella. I'm the business manager of Local 172, Restoration Steeplejacks. I wish to thank the standing committee on resources development for the opportunity to present the concerns of the plasterers, cement masons and steeplejacks of Ontario.
The Operative Plasterers' and Cement Masons' International Association of the United States and Canada -- quite a mouthful -- Local 172, Restoration Steeplejacks, headquartered in Metropolitan Toronto, is unique in many ways. Chartered in 1966, we're the only trade-specific local for restoration steeplejacks in North America. Also, we are designated as a provincial local by the Ministry of Labour. Finally, Local 172 is an all-employee unit.
As high-rises became the norm in urban centres, the eventual repair work to these tall buildings and the recognition that these people working 200, 300, 400 feet above the ground needed to be organized formed the basis for the beginning of Local 172.
Because the restoration industry has grown so quickly through the boom years of the 1980s, there is a large non-union sector. Many non-union contractors in our trade have had the reputation of being, and continue to be, the worst gougers in the construction industry. They not only make their profits through low wages and no benefits for their employees, but they also save money by not instructing their employees in government-required health and safety practices. These non-union contractors also save much money by ignoring the Ontario Occupational Health and Safety Act and regulations for construction projects, the Ontario Employment Standards Act and the Ontario Labour Relations Act.
How can they get away with this? Because of the shortage of safety inspectors and the difficulty of locating job sites, the chance of getting caught is low. Unlike new construction, the nature of our industry lends itself to being very mobile, with relatively low-profile job sites and projects that last, on average, eight weeks. An employer can put two or three swing stages on a pickup truck with all required materials, travel anywhere in the province, set up a project with relative obscurity and be gone in four weeks. The only indication that work is ongoing would be possibly sidewalk hoarding, brick panels or concrete patches removed on a structure's elevation. Otherwise it would look just like window washers on a building.
For this reason it is difficult to locate restoration job sites for either organizing or policing by both the union and government agencies. Because of this unique nature of the business and the fact that Local 172 must organize provincially, it is very difficult to organize under the present regulations.
It is for these reasons that we applaud the Minister of Labour, Bob Mackenzie, and the government of the day for their attempt to amend certain acts concerning collective bargaining and employment. However, we wish to further state that Bill 40 does not go far enough to create an even playing field in the construction industry.
The right of employees to join a trade union of their choice without fear of reprisal does not exist in the construction industry in Ontario. As anyone who has lived in the real world of organizing will testify, workers' lives and livelihood are subject to levels of intimidation and coercion that should not exist in a society such as ours today.
Employees face substantial hurdles when they attempt to organize in the construction industry, where instability of employment can cover up reprisals. Because the numbers of employees fluctuate continuously, it is well known that so-called troublemakers can be quickly eliminated.
Organizers for trade unions will testify to the fact that the first thing many employees will tell them is that they don't want to be seen talking to an organizer or they will be fired. Whether this fear is real or perceived, it still doesn't allow the workers their rights and freedoms. You must bear in mind that this fear is very prevalent today during this time of depression, when there is a such a high unemployment rate in the construction industry.
Employers use many strategies to frustrate the right of employees to organize. There are firings or threats of firings under the guise of layoffs due to lack of work. In our sector of the industry I have seen employers close down job sites, remove the equipment and lay off their employees, only to reopen the project later. I have been denied access to employees on third-party property even when that property was open to the public. I have seen lengthy examination procedures because of some illegal processes by the employer.
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We believe that the proposals in Bill 40 relating to organizing activity do not go far enough and must be strengthened. We support the reinstatement that a trade union should be given a list of names of proposed bargaining unit employees after it has filed an application for certification.
We also support workplace notices of rights and obligations. There must be emphasis placed in these notices that an employer has no way of finding out who signed cards, because, again, that is a great fear of employees. As a matter of fact, many employees fear that an employer will find out how they vote in a secret ballot.
We support the elimination of the $1.00 requirement when signing cards, because this opens the door for far too many challenges from the employer only for the purpose of delays.
The construction industry is recognized as different from an industrial setting in nearly all of the acts in Ontario. Given the fact that employees are often absent from work due to inclement weather or job scheduling, it is only fair to allow the extra time until the terminal date for the union to submit proof of membership.
There is an atmosphere of paranoia among employees when approached by an organizer because of threats by employers long before a union identifies a company as non-union. These threats usually are directed to the employees when they are hired. To deter any threats by an employer before or during the certification process, there should be substantial penalties attached. We would support and encourage this addition to the bill.
The employers, without a question, play on the paranoia of their employees. This is proven by the amount of petitions or revocations that are disallowed by the board. Petitions or revocations should no longer be allowed. This would not only eliminate an additional opportunity for the employer to coerce its employees directly or indirectly but also shorten the certification process.
Access to third-party property is vital since all work is performed on third-party property. The owners often cooperate with non-union contractors by denying access to organizers even to speak to employees during their own time, ie, before work, during coffee and lunch breaks or after work. This happens even on what we would consider public access property such as shopping malls, office buildings and high-rise apartment buildings.
Surely everyone here is in agreement that there should be a level playing field. Yet when you consider that employers are able to get a hearing scheduled within hours of an application for a cease and desist order while to get a hearing and a quick decision by the OLRB for a complaint of discipline or discharge related to an organizing drive takes months, it is blatantly unfair. It is totally unacceptable for someone who has been wrongfully stripped of his employment not to be able to have a hearing within a reasonable time. The act should require the hearings to commence within seven days of a filing of a complaint and continue every day until completion, at which time a board order should be issued.
Another area of concern is that more and more projects are being performed by contractors acting as project managers. In turn, all of the actual work is being performed by subcontractors contracted by the owner. This is a method which has become rampant by contractors so that they can circumvent their contractual agreements with the building trade unions.
The act should therefore be amended to take into account this significant change. Subsection 1(4) should include the requirement of an employer that acts as a constructor or manager of construction to ensure that all of its contracting or subcontracting obligations are met on all projects where the company is the constructor or manager. Also, the discretionary powers of the Ontario Labour Relations Board under subsection 1(4) should be removed so that a company is automatically bound to the agreements of its related company.
In conclusion, we commend the Minister of Labour for bringing forth reforms to the Ontario Labour Relations Act. This has been long overdue, but we caution this committee that these reforms do not go far enough to be in tune with the construction industry today.
Workers have had their basic rights to organize and bargain collectively frustrated for decades by laws that have no teeth, that are blatantly in favour of the employers and that are subject to abuse by management and their lawyers as to be nearly useless.
We share the belief that a rebuilt Ontario can be accomplished only through workers' participation. Bill 40 is a step in the right direction.
Those who are pursuing a free trade agenda have little commitment to society, and they are making their opposition to any progressive social reforms well known in an attempt to persuade the government to abandon its commitment to social justice. These critics claim that during this recession it's the wrong time to introduce social reform. What they really mean is no time is a right time, but the right time is now.
Mr Offer: Thank you for your presentation. From your presentation -- and I'm really not going to be asking anything specific to the presentation because I'd like to get a fuller appreciation as to the difficulties in your particular line of work -- it would seem that in the restoration work it is, firstly, very mobile. Secondly, the work is of a short duration. I would like to get from you, how is it now that organizing is facilitated? Could you share with us some of your experience as to some of the difficulties that are now before your sector?
Mr Kinsella: I could probably give you one example which would probably sum it up. As you are aware, of course, I'm happy to say it's our members who are working on the Legislative Building here. Most projects aren't like this. They're usually done from swing stages and not industrial scaffolding such as this, and the projects are short-term.
Also, because we're a provincial local -- in the industrial, commercial and institutional sector we must organize provincially, not by board areas -- what was frustrating, for example, was that last year I had an indication from some workers that they were interested in becoming members of our local and that in the company they were working for they weren't too happy with the way they were being treated. It was getting into the heart of the recession and it seemed like on a monthly basis their wages were being dropped, and they weren't very happy at all. It's, "Either work for this or don't work," you know.
I made an attempt to organize this company. You can understand how difficult it is to even identify job sites, as I described, but I found job sites this company had from London through Kitchener-Waterloo, Cambridge-Guelph, Toronto -- of course quite a few -- Brockville, Kingston, Belleville and Ottawa. I found 15 job sites. From the total amount of employees on those sites, I got 80% of cards signed. When it came down to a meeting with an officer from the labour relations board, we found out that we only had 51%, because I missed so many job sites.
Of course, by the time I went through this, it was a two- to three-month process. Job sites had closed down, other jobs had opened up. I had been fortunate enough that he transferred some of the employees I had cards signed with to his new job sites. But it came into the fall of the year. Job sites were shutting down and the employees were being laid off. I made the decision, on the advice of our lawyer, to withdraw the application in order not to have a six-month ban put on us.
I'm not going to get into the details of the other frustrating things, like he laid off two employees who were known to be helping me. We filed a section 89 and were successful on that eventually, and there were other things that employers pull.
I think it should be noted that when you look at the Labour Relations Act, it appears on paper that it's very fair and balanced. I'd like to comment that I have been watching these hearings with much interest and I was interested in your opening statement, Mr Offer, that this new legislation would tip the balance. Just to make a comment, I was really wondering where you were coming from. All you'd have to do is come out and try to organize with me one time. With all due respect, sitting in the ivory tower doesn't give you the real world of organizing. It's in favour of the employers. There's no question about it.
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Mrs Cunningham: I have a couple of questions also along the same lines as my colleagues have been asking. In trying to reach these job sites, do people feel -- they know that you exist or your local exists. People who work in your profession would know that you exist. If they're unhappy with their employer, do they seek you out?
Mr Kinsella: Normally, yes, I get calls. You must understand that because we are headquartered in the Metropolitan Toronto area, we're well known in the Metropolitan Toronto area. The farther you get away from Toronto, we're less well known. But all your major restoration companies usually are headquartered in this area. This is where the greater amount of work is. So I do get calls. That gives me the job site identification to start from and then it goes from there.
Mrs Cunningham: I was interested when you said you had to seek out and find some 15 job sites. You thought you had some 80% of the cards signed and then, when you came down to make your application, you realized you just had 51%.
Mr Kinsella: The reason for that of course is that in the meantime one or two job sites had shut down, and not all the employees were employed on another job site, plus the fact that you just miss job sites. I'm sure many of you on the committee have walked by restoration job sites and never even known they were there because they were hanging 200 feet above you. If you look, they're so far up they look like window washers.
Mrs Cunningham: I was just interested in the conversation because I think earlier, in Mr Klopp's questioning to the person who owned the restaurants, he said that in his particular area where he worked to supplement his farming income, there wouldn't have been a need for a union because people were happy with their employer. I'm just wondering, in your instance maybe your frustration is that many of these people are happy with their work, that they're happy to have their work. I don't know. I just wondered.
Mr Kinsella: No, I disagree with you.
Mrs Cunningham: I'm not saying that I know anything about this, because quite frankly I don't, but on the other hand, you tell me that you're having to go out and find people. You have to wonder, if they really were unhappy, wouldn't they try to find you?
Mr Kinsella: As I said, not everybody knows about us. The people in the Toronto area, when there are employees working for a company in the Toronto area, they seek me out, but I'm obligated, in order to certify a company, to follow the rules of the Ontario Labour Relations Act, which means I have to organize them provincially. I was trying to cite that example for Mr Offer where this company not only had job sites in the Toronto area but right across the province.
Mrs Cunningham: Over the dinner break I spoke to someone -- because I didn't know about this union -- who is working in this field who advised me that he would have had the opportunity to join this particular union but didn't feel the need. In fact, his employer and the other singular employer in this particular city are not organized.
They are part of an organization -- both of them separately -- and have the considerable responsibility of belonging to a profit-sharing group. Both of them are particularly happy in their jobs. I just didn't know how it worked and didn't understand the provincial nature of your union. That's why I wanted to ask you the questions, because neither of those particular individuals would have wanted to, for the very reason Mr Klopp mentioned, and that was that they were happy to be employed by people and actually share in the profits, which aren't up right now, I must say.
Mr Kinsella: I know.
Mrs Cunningham: On a personal note, I should say that I hope you're particularly successful with your work here. Many of us have wanted to see this take place. I am particularly pleased that it's happening. It's long overdue. This is a very important building to the future of our province and country. Having just returned from an opportunity to look at two or three other legislative buildings, I have to say I'm particularly biased. We really do have a wonderful building.
Mr Ferguson: I want to thank you very much for taking time out from, perhaps, one of your organizing drives to appear before the committee, because I think it's really important that we hear at first hand the problems and difficulties you would experience as an organizer. To reinforce what you said, essentially, although on paper democracy is at work and people do have an option whether they decide to join the trade union of their choice or be represented collectively, in actual reality it just doesn't work that way. There are all kinds of obstacles and all kinds of roadblocks in their path.
I'm wondering if you could share with the committee what amount of money would be spent by a particular company that you might be trying to organize on litigation, if you ever get it that far?
Mr Kinsella: I can only guesstimate how much the company spent.
Mr Ferguson: Maybe you could tell us how much you have spent.
Mr Kinsella: That organizing drive for that one company last year cost the local $15,000, not including lawyers' costs, which we are all aware can be very expensive. Labour lawyers, be they union or management, usually charge pretty well the same, with maybe the exception of one corporation. It seems to be quite expensive.
It is frustrating, because you know that people out there would like to be organized, but their fear of losing their job -- that's the first thing I'm told, "Talk to me after work, down at the coffee shop," or something. "I don't want to be seen talking to you because I'll lose my job."
When that fear is there, it certainly is an indicator that there has been harassment somewhere along the line. I've found, through questioning the members we have organized and those we have failed with, the fact that when they are hired they're told, "If a union comes on a job site, you don't talk to them or you won't be there the next day" -- flat out like that.
Mr Ferguson: So a real paranoia sets in. You must be about as welcome as the black plague in some of these places.
Mr Kinsella: I certainly feel that way sometimes. I'm sure, as Ms Cunningham has said, there are happy employees out there and there is no effort by any trade union that will ever get them organized. Those we aren't really interested in, because they're being treated fairly, and that's what we're after. We're after social justice.
When I said that the contractors in our sector of the construction industry really are terrible -- and it's a general statement; there are some good ones that are non-union -- its true. The health and safety offices in the Metropolitan Toronto area know me by my voice now because I'm damning these guys all the time.
Mr Ferguson: Do you have any affiliates in the province of Quebec?
Mr Kinsella: We do. It's strictly the cement masons' and plasterers' locals in Quebec.
Mr Ferguson: Could you share with the committee what the experience has been in Quebec with the prohibition against replacement workers?
Mr Kinsella: To be truthful, it's hard to relate that to the construction industry as such. That seems to be more of a concern to the industrial sector, where there's actually a manufactured product.
Mrs Cunningham: Or a service?
Mr Kinsella: Or a service, yes, correct. In the construction industry, our employers don't really seem to go ahead and put in replacement workers. There are some times on construction sites when they'll have another trade try to do the striking trade's work. Again, strikes are really governed by policies of the various building trades councils, and it seems to be working well with the contractors. Each council throughout this province that I am aware of has a picket policy, and the policy is not to shut down the job site, but at the same time to withdraw services and get the point across.
Mr Ferguson: Of course, that recently happened here with the Labourers' International Union of North America, where many job sites continued to operate while they withdrew their services.
The Chair: Mr Kinsella, we thank you, the whole committee thanks you for what was an articulate expression of the interest of your membership. We appreciate your interest in the process and your attendance here this evening.
Mr Kinsella: I would invite anyone to come out on an organizing drive with me.
The Chair: That's an interesting invitation. You never can tell who'll show up.
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AMALGAMATED CLOTHING AND TEXTILE WORKERS UNION
The Chair: Okay, the next participants are the Amalgamated Clothing and Textile Workers Union. Their representatives will please seat themselves at a microphone, tell us their names, their titles, if any, and then proceed with their submissions. Please try to save the second half of the half-hour for discussion.
Ms Pat Sullivan: My name is Pat Sullivan. I'm the manager of the Amalgamated Clothing and Textile Workers Union in Ontario, and I have with me Efre Giacobbo, and he's our research and communications director.
The Amalgamated Clothing and Textile Workers Union is pleased to have the opportunity to present our views and concerns on Bill 40, the government's proposed amendments to the Ontario Labour Relations Act, to the members of the Ontario Legislature's resources development committee.
The Amalgamated Clothing and Textile Workers Union represents approximately 12,000 men and women in the province of Ontario. The large majority of our membership is women and immigrant workers employed in the apparel, textile and auto related industries.
We are not newcomers to the subject of workers' rights and the struggle to obtain those rights. We have advocated for not only the reforms contained in Bill 40, but many others as well. Some have been acted upon by previous governments.
Our credentials for addressing the issue of workers' rights are well established in our province. We believe that the issue of Bill 40 is clearly an issue of workers' rights. In the simplest of terms, the proposed legislation outlines the manner in which workers will be treated in a modem economy and in the context of a democratic society.
We ask the members of this committee to focus on the fundamental issue: granting relief to countless thousands of Ontario workers who suffer abuse at the hands of their employers. We want to be clear. We do not think all employers are the same in their treatment of their employees. Ontario has many employers who treat their workers fairly and with respect. However, the reality is that many employers act in a punitive and negligent manner and do abuse their workers.
The Amalgamated Clothing and Textile Workers Union believes that more needs to be done for those working people in Ontario who need help the most -- women, visible minorities and youth -- who are increasingly employed in the poorly paid small workplace sectors.
Although we completely support the Ontario Federation of Labour's submission to this committee on Bill 40, there are some issues that we would like to address that are of particular concern to our organization.
Organizing and certification: This section represents the government's response to the substantial hurdles faced by employees when they attempt to obtain trade union representation.
Membership fee eliminated: The $1 membership fee will no longer have to be paid by an employee in order to become a member for purposes of certification. While this may make it marginally easier for unions to convince workers to become trade union members, its main effect will be to make it easier to establish union membership before the board. We support this proposal as it eliminated one of the objections an employer might use to delay and frustrate a certification application.
Support required for certification: We cannot support the government's position that the amount of membership support a union must have before it is entitled to automatic certification will remain at 55%. We believe that automatic certification be reduced to a simply majority and a representation vote to 35%. At the same time, we cannot help but note that in no other election of a representative in our society is it necessary for the candidate to obtain 40% of the eligible voters on a nomination paper in order to be guaranteed the right to appear on the ballot.
Petitions and revocations: The time and expense required to oppose a petition results in substantial delay to the certification process. It prolongs litigation, frustration for employees seeking to organize and damage to newly created and often fragile bargaining relationships. Once a worker has signed a membership card, there should be no further scrutiny by the board except in rare cases for fraud and forgery.
It is our view that if a worker wants to decertify, she or he can do so currently under the act by applying to the board in the months just prior to the termination of the collective agreement. We would ask the government to take the necessary further step and eliminate pre-application revocation petitions.
I'd like to give an example here. I know it's not in just our union but in the labour movement in general when you're going before the labour board on certification. I'll give you one example we have just gone through where we have been before the board for a year and a half. We had spent, I know, for the union's cost in excess of $35,000 in legal costs. There was a petition, and the battle went on at the board. It took us a year and a half and I think about eight dates in hearings. The company changed hands and new ownership came in. Within a month the petitions were withdrawn, the application dropped at the board, and we're now very close, within six weeks, of getting a collective agreement in place.
I think that gives an indication, on the petitions, that it's not necessarily petitioners who may not want a unit to be at their workplace. I probably could spend the next six hours here giving cases where the employers are behind the petitions. It's not necessarily the employees themselves but the company. In this plant, too, that I talked about, we had in excess of 63% of the cards signed. It should have been an automatic certification, and the process of petition slowed that down.
We had a similar case where we had in excess of 55% of the cards signed. It went through the delays of petitions. The board then decided it would give us a vote and we lost the vote. It was only due to the tactics of the employers who had that whole time-delaying process of being able to work on the employees constantly, day in and day out.
The use of scabs: This is surely the most controversial section of the proposed amendments. The use of scabs, and possible prohibitions against this practice, has been the subject of considerable debate. The passing of these amendments should eliminate the emotionally charged and hostile picket line confrontations of the past. It has worked well in the province of Quebec and there is no reason why it can't work here as well.
This being said, Bill 40 also contains significant limitations, notably, the restrictions on performing bargaining unit work apply only to the workplace where a strike is occurring. This means that an employer can still legally shift bargaining unit work to another geographic location. An employer is also allowed under the amendments to contract out bargaining unit work. Supervisors outside the bargaining unit who ordinarily work at the struck location can perform the work normally done by bargaining unit employees.
I'd like to give you another example which we face in the apparel industry in this country. More and more every day, you're finding more of the employers contracting out the work. We've had in excess of 700 or 800 people in workplaces in the garment industry now down to 60 people. If it hasn't been reduced because of offshore trading or the free trade agreement, now we're also taking it where they're contracting out work.
A lot of it is going to home workers. You can't track it; you can't locate where this work is going. Under this situation of a strike, once that work goes out, there have been cases where the employers take advantage of a strike, contract out to home workers and the plant no longer is in existence. They have a business number, but they no longer manufacture up front.
The grievance arbitration process: These amendments try, for the first time, to deal with the frustrating delays of the existing procedure by establishing strict time limits. In the case of a single arbitrator, a decision shall be rendered within 30 days after completion of the hearing. In the case of a tripartite panel, the board shall give a decision within 60 days after the hearings.
We wholeheartedly support subsection 45(7), which specifies the minister's powers of enforcement to ensure that decisions or reasons are provided without delay.
I sit as a co-chair of the labour relations committee of the Ontario Federation of Labour and we get into a lot of discussions on the whole process under labour law. One of the items we talk about is section 45. When that legislation had come in many years ago, it was to expedite the whole process of arbitration and it hasn't done that at all.
We had one case, as an example, that we had applied for under section 45. It took us two and a half years to get the arbitrator's decision on that case. The arbitrator then gave us a ruling. The company felt the arbitration was in its favour, not the union's. We then had to refer it back to the arbitrator to clarify what his decision was. The arbitrator's decision was in favour of the union. Then the company still maintained that the arbitrator had ruled in its favour. We sent it back to arbitration, again to get another clarification. It took us about four years. In the meantime, the company went bankrupt and the employees never got the money that was owing to them. Some of the employees were owed up into the thousands of dollars. We lost it because of bankruptcy and just because of delays at the board under the legislation.
In conclusion, we would like to take this opportunity to thank the resources development committee for taking the time to hear our views. We trust that our concerns will receive serious consideration in the final writing of this legislation, which is so very important to our members and the people of Ontario. Together with the quick passage of other important legislation such as pay equity and employment equity, we are confident that Ontario will prove to be a better place for everyone to work and live in.
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The Chair: Thank you, Ms Sullivan. Perhaps one of the Conservative caucus members would indicate which one of them wants to ask a question first.
Mr Jackson: I haven't heard any discussions about language difficulties with respect to certification. With what I know of the needle trades in our province, there are a lot of English-as-a-second-language, minority, ethnic, women participating. It has presented itself as some bit of a difficulty in organizing. Yet within the language in the amendments, I don't see that issue being addressed. Although it may deviate from your text, it's an area I'm interested in and I wonder if you could speak to that for a moment.
Ms Sullivan: I don't think it has really any bearing at all on the ethnic origin of the language that a working person has. When they want to be unionized, they can get that through to you. It doesn't matter what language they speak. We have used interpreters like every other union has done out there.
Where the problems come in on the language barrier is when it comes to the whole process before the board. It's the intimidation, the tactics that are put on by the employers. You've got a lot of workers who have English as a second language, the majority of them being women, and they're afraid of reprisal, of losing their jobs. Because their skills are limited, the fear is even greater put on by the company that they're going to lose their job or they're going to lose whatever they have going for them, the machine they work on.
That's one of the things, especially in the apparel industry, that people talk about. "If the company finds out that I'm talking union, they're going to take me off this machine, and it's a good machine," or, "They're going to put me on to one of the cruddy jobs that nobody likes to do, stuffing pillows," or whatever the case.
They can communicate the language. We have a staff that speaks a lot of the languages. We have volunteer organizers, like all other unions. Language is not a barrier when people want to join unions. They can verbalize very clearly what they want. The problem is with the employers using it against the workers.
Mr Jackson: You don't have any difficulties with the labour board currently? The issues I'm concerned about aren't limited to simply certification; they're also in terms of the current process with language difficulties.
Ms Sullivan: But if there are any language barriers if you are at a hearing, they bring interpreters in. That's always been provided by the board.
Mr Jackson: What about grievances?
Ms Sullivan: We've never, as a union, had any difficulty with language barriers, whether it be before the board or --
Mr Ward: I'd like to thank you for your presentation. We're hearing basically from the critics of Bill 40 that there is a level playing field as far as perceptions of power are concerned, whether it be from the business standpoint or the employer or from the trade union or the working people's standpoint -- that's in existence today -- and that the amendments to Bill 40 would tip that balance towards the working people or the trade unions that represent them.
Yet we're hearing mounting evidence that in fact it is not a level playing field in existence today under the current act, that there are opportunities under the existing act and a reflection that there is power in favour of the employers. Do you feel that under the existing act there is a level playing field or do you feel that the power is in the employer's hands, based on your experience in the trade union movement?
Ms Sullivan: Based on my experience, if there were a level playing field, you wouldn't have a labour board the size we do and there is the time between getting dates of hearings, when you have to wait two and three, four, six months between dates because of the backlog at the labour board. So if there was a level playing field and it was balanced more towards workers, then you wouldn't have the delays that you do at the board. If anybody in this province thinks it's a level playing field and the employers don't play a role in trying to stop the whole certification process, then you end up living in a fool's world.
Mr Ward: What our government is trying to do with Bill 40 is allow a worker or a group of employees to have the choice whether or not to join a trade union. We've heard that under the existing act there are obstacles employers can use to circumvent that choice. You've alluded to some of the obstacles and the fact that the existing membership fee of $1 can be used by employers during a certification process to inhibit the will of the employees to have a trade union represent them.
I'd appreciate it if you'd give us some examples as far as the obstacles you face pertaining to the membership fee are concerned, as well as the use of petitions, because we're hearing from the critics of Bill 40 that we should not restrict the use of petitions and that everything is fine under the existing act as far as petitions are concerned, yet we're hearing as well from the proponents of Bill 40, the people supporting it, that it is another obstacle employers can use to circumvent the wishes of their employees. Do you have examples as far as the membership and as far as petitions are concerned in your experience with your particular trade union?
Ms Sullivan: In my experience with the dollar, the amount, whether it's $1 or $5, is just an amount and you have a figure there. I guess when the loonie came out the labour movement said it was just another tactic to help hurt the labour movement in trying to collect the dollars.
At one time when you were on an organizing campaign you had to collect the $1 membership fee from the people. If they didn't have the money with them, you had to wait. You had to go back to make another call to get the dollar off them. At the time when we had the paper dollar bill, we used to always write down the serial number, who they gave it to and the date right on the bill so we could verify that this person gave it and when we got it. It's very hard to write on a loonie. There are no numbers. We say it was just another tactic to try to stop us from organizing. The loonie is very difficult.
We've had difficulties in the past when it came to the petitions. We try as an organization, and a lot of the unions will do that, to go in pairs to verify that you did collect the dollar because there have been cases -- and I know in other unions they've all had the same problems -- where people have paid the dollar, you have the facts before you and how they paid it to you, and they will come forward and say, "I never paid the dollar." They'll try to change your whole campaign.
It's set up out there. We know it goes on. We found out after the fact, when you get certified and you start to become good friends again and all the parties are starting to talk, when they say: "Oh, yes, the company put me up to it. They promised me this if I would say I didn't pay it." Yes, it's a problem, and I think eliminating the dollar is going to eliminate a lot of the problems in that area.
I've been with the union 20 years and I am not aware of any petition that's come before our union in the certification process that the company wasn't behind. After you're certified and you work out your problems and the relationships start to settle down after the long process of getting certified, the facts come out about where the petition came from and the reasons behind it. I'm not privy to anywhere where there was a legitimate petition coming out from the workers themselves; the company has always been behind it, as far as I've been aware. There may be some cases out there, but I'm not aware of them.
Mr Ward: Part of the reason our government feels it's important to update the existing labour act is the changing workforce and workplace since the 1970s. I think 1975 was the last time the act was significantly updated. Your union deals in workplaces that have primarily women in them. Have you seen a change in the workforce and in the workplace since the 1970s?
I have a last question because I'm not sure how much time I have. There seems to be a suggestion by the critics of Bill 40 that if their employees make the tough choice to become unionized, collectively joined together, their business is going to be destroyed and forced into bankruptcy. What are your views, as a representative of the Amalgamated Clothing and Textile Workers Union, and your efforts to work cooperatively with employers, and is that an unfounded fear on the part of the critics of Bill 40 when they suggest that if their employees, for whatever reason, make the decision to unionize, in a very short time they're going to be put out of business?
The first question was workplace/workforce changes and the second one is the cooperative sense you feel is important.
Ms Sullivan: With regard to your first question, dealing primarily in the apparel industry you're dealing not only with women but either visible minorities or immigrant women. I don't think there are that many people in this province or in this country who work there necessarily by choice. The garment industry is not the nicest of places to necessarily work. People don't choose to be at their workplace at 6:30 or 7:00 in the morning and breathe in the dust and the fibres and the horrible working conditions because they like working there. It's a point of need. The majority of it is financial.
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There are a lot of single parents in this industry who have no skills. They're very limited in entrance into any jobs, since there's always an entry level. When there are no other jobs available, there's nowhere else to go and you have very limited skills, you end up in a garment factory.
They're afraid. They need their paycheque, as low as it may be, because they're in one of the lowest-paying industries out there. They're afraid to do anything if the company comes on to them, because they're going to lose their job and there's nowhere else to go. Basically, they start at rock bottom in the industry and there's nowhere else to go. If they lose their jobs there, they'll be finished in the industry. So there's a big fear, especially by the women out there. They've got to work. These are second incomes or it's the sole income in their family and they don't want to jeopardize losing their job because there's nowhere else for them to go.
In going into an organizing process with the garment industry in particular, we hear this all the time: "If you unionize, we're going to shut down. You're going to put us out of business." We've had more effects from free trade than we've had from union organizations. In fact, a lot of the manufacturers we represent in the garment industry are quite satisfied and happy to have union contracts because it eliminates a lot of problems that they have in dealing with piecework, setting rates and stuff like that. It makes their operation a lot easier by having a union to deal with rather than dealing with individuals.
I'm not aware of any plant shutting down because a union was certified at the workplace. We have a lot of them, especially in the industry, which work under an association, and the conditions are relatively the same in most of the operations anyway. It's not necessarily for wages and other things -- that is the norm in most industries -- that unions come in. There are other particular items. It's usually health and safety or favouritism and stuff like that which bring in a union into the apparel industry. The wages basically stay the same whether there's a union or no union.
Mr Ron Eddy (Brant-Haldimand): Thank you for your presentation and your answers. It's very educational, I'm finding. In addition to the many criticisms of the amendments that the committee has heard, we've certainly heard a lot of shortcomings not only of the present act but of the amendments themselves, and you've outlined some of those in your presentation.
What do you think is the solution at this point in time? Do you think withdrawing the bill and having it negotiated with employer and union representatives to make some of the changes that you and others are bringing forward would be the proper thing at this time? How do you see proceeding at this time?
Ms Sullivan: Well, I definitely wouldn't want to see the bill withdrawn and trying to rework something that's long overdue. We've been waiting for this for years. To go back to the drawing table -- the only thing you could do is come up with something better than what you've come up with, so I think trying to stop the process and go back is not going to work.
We've got thousands of people out there, literally thousands of women and men, who want to be organized and are afraid to because of reprisals by the employers, the size of their workplaces, whether they're going to be competitive -- just the fears that have been out there. To delay it any further -- at least there's going to be some hope for people if this legislation goes through. At least they've got some hope of there being justice and dignity in the workplace.
Mr Eddy: And under the present rules, you don't have the same hope?
Ms Sullivan: No, because people are afraid. You have to be out there. I guess I go with the brother before you who said that if you want to get awakened to the real world, come out and organize one day and listen to the fears and the stories that people are telling you out there.
We get contacted. We're not going out there and knocking on doors or standing on corners and at bus stops looking for people to organize. We're constantly getting calls, day in and day out, from people who want to be organized, but there are fears of what's going to happen to them if they talk. They won't give their names. It's like they're afraid that the phones are tapped: Is anybody going to know who they're talking to? There's a big fear out there by people. Now, especially with the recession and the economic climate of this country, they're afraid to speak out in case they lose their job and there's nowhere to go. So to go backwards by coming and trying to rewrite the legislation, I think you're doing an injustice to the men and women of this province.
Mr Offer: I'd like to pick up on some of these questions. I find them quite helpful. You've spoken about the difficulties that have been encountered in the area of organizing, and you've spoken about intimidation and a variety of other things. I think it's fair to say that it's your opinion, for instance, that the elimination of the $1 membership, the elimination of petitions, the unfair labour practice penalty within the amendment, would meet some of the concerns which you have.
Where is it in the bill, and should we be concerned that there is no legislative requirement in terms of the worker being informed about what an organization drive means to him or her, about what the impact may be? As you say that the bill deals with some of your concerns in the area of intimidation or coercion during an organization, shouldn't the bill, in your opinion, also contain some provisions whereby, through legislation and with penalty, it is made certain that workers' rights are known to them, that the implications, the meaning of what an organizing drive means to them is outlined?
I would like to get that information from you because I am certain that, through your experience, you've gone through all of the organization drives and you've informed workers about what this means to them. Shouldn't we be putting that in legislative form?
Ms Sullivan: No, I don't agree with you, because if you look at what the act states now, under the Employment Standards Act and Labour Relations Act, the person has the right to join the union of their choice, they will not be intimidated, of course, and stuff like this.
People don't buy it, because even though you do have language under the act now that protects a person, that says they have the right to join the union of their choice and that if you have 55% of the cards signed, it's automatic certification and that whole process that's laid out there now, it's not working the way it's written now. So to try to put some more mumbo-jumbo in there to explain what the workers' rights are without clearly stating what the process will be is not going to do anything, because the language that's already there doesn't do it.
We can hand out copies of the act to people in organizing drives, we will have regular meetings with the workers in those workplaces explaining what the act says, but it still doesn't get over the concerns no matter what words you put in there to try to pacify workers; that's what I call it. It's not going to work.
They need very clear language that says, "If I want to join a union and 55% of us, or 50% plus one, say, `Yes, we want a union,' then the union's in," and we don't have to go through that whole process of the employer deciding that they have the majority even though they have the lesser number of employees that go against the union.
Mr Offer: I thank you for that response, but I was going somewhat beyond that area. Your presentation was all about the difficulties that, in your experience, you have encountered in organizing. In fairness, I think all members of this committee, in the time that we've had these public hearings, have been given examples of where that has taken place. You've also gone forward and said that because of these things this is why you agree with the elimination of the petition and the unfair labour practice sanctions.
Although in your opinion that side has been addressed, is it not necessary -- and I am just restating the same question; I apologize for this -- that there be something in the legislation which mandates -- I know that sounds wrong -- that there is a certain minimum level of information that is given to every worker in this province, making it certain that they are informed as to what the impact of any particular drive is? In other words, putting a responsibility on all union organizers, such as the one that you've already met in your experience. Just for the workers, isn't that necessary to do?
Ms Sullivan: I don't think I'm understanding your question, because I think it's there already and it's not working. I guess I'm getting confused as to what your question is. There are already things that are spelled out under legislation on workers' rights, and I don't think that works. Maybe I'm not understanding what your question is.
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Mr Efre Giacobbo: I can maybe answer that question. For example, I've gone on organizing drives before and the easiest person I've ever signed was when I knocked at the person's door and that person said, "You're the guy from the union, right?" and I said, "Yes," and he goes, "All right, give me the card; I'll sign it right away." That's it. He said: "Now I've got to go. I have things to do. I have to go shopping with my wife." That was it. All he wanted to do was to join the union.
My understanding later on was that this person knew what a union was all about and he knew it was necessary for a union to be in the workplace where he was working. So for us to say, "Well, sorry, but I've got to tell you exactly what all this means now," would be just a waste of his time and a waste of my time, and probably also for litigation later on by the employer to see, "Maybe you didn't explain it to this person and you didn't say it to that person." That would just put more hurdles back into the legislation that we don't need.
Mr Offer: I have one further question, if it's permissible. We have had a presentation dealing with the garment trade, but really from the home worker end, which spoke about not only the aspects of this bill, but I think it's fair to say spoke about the need to enhance the provisions of the Employment Standards Act. I know you'll be well aware of that. Could you share with us your position as to whether those individuals who are in the trade should have their rights enhanced through the Employment Standards Act?
Ms Sullivan: Most definitely I would agree that they would. It's really split on the whole situation of home workers, especially in the garment industry. There are some who are working in the home by choice. Because of day care problems, lack of day care, language skills, travelling skills and stuff like that they prefer to work out of their home. But for every job that's being performed in a home, there's somebody in a workplace who's losing that job, and along with that job they're losing they're losing their benefits, their OHIP in most cases, any drug or dental or social welfare benefits, chances or opportunities of pension.
That is lost with home workers and there's nothing coming under this act that's going to protect any of those rights, and in most cases they're not even paying the standard. I could give examples of shops we have where you have set rates for jobs which aren't being paid for with the home workers. They're getting half, in a lot of cases, of what the workplace sites are being paid for their jobs. But they're losing all the rights to their benefits. They have no vacation pay. They have no right to complain. If they complain about the work or the quality, they don't get the jobs coming to them any more.
I guess in that argument I may not necessarily agree with home workers. I understand the need for it, because it's predominantly women working. It's because of the shortage of day care places that they would want to have that. But I think they should have the same rights and dignity those in the workplace have.
The Chair: Mrs Cunningham, you had a brief comment or question?
Mrs Cunningham: I will just put a question. I must admit I have some sympathy for some of the positions being presented this evening. I know a little bit about the industry and I also know about fair employers and unfair employers.
I'm talking now about the use of replacement workers. I think the committee members who have been open-minded about looking to make changes to this legislation -- because there is good and bad in it. You're even saying, "Add to it in some respects," and others are saying, "Take away in certain areas," so if we're here to make a difference and get the best information we can, we have to be particularly open-minded.
I've been persuaded by some industries that this use of replacement workers really is not an advantageous thing for them in any way because they will just lose the business and shut down. The previous presenter was a restaurant person and I have a great deal of sympathy in that regard.
But I don't know enough about the history of your business in Ontario. Have there been a lot of strikes in your industry -- just in yours, not the two or three I have other opinions about -- and is this something you feel really strongly about? I think this other thing we've been talking about, what I call the cottage industry, is interesting. We could really work something through there. But in this regard, I don't know if there is a history of this in your business.
Ms Sullivan: We represent a large majority of different industries. I just sort of highlighted the apparel, the textile and auto. We have a lot of industries. I can only speak to the apparel, to answer your question on that.
Mrs Cunningham: Yes, that's the one I'm interested in.
Ms Sullivan: In the garment industry, we haven't had a lot of strikes. It seems to go in waves, I guess due to the whole climate of the industry and where it's going. We haven't had a lot of strikes.
It's hard to track, when you have a strike, what's being contracted out and what is being done where. We know it's being done, we know the work is still being performed in a lot of the cases, but it's hard to track. It's no different in bankruptcies. When the companies are going bankrupt, we know the companies are still operating, but we can't find them. It's a hard industry to try and track.
Mrs Cunningham: So you really can't show us where there have been replacement workers.
Ms Sullivan: We could tell you from other companies that are calling and saying, "We're doing your cutting, we're doing this, we're doing that." We have the other unionized shops that are picking up business.
Mrs Cunningham: Because of the strike or just in the day-to-day work?
Ms Sullivan: Because of strikes. But that industry is not an area you get a lot of strikes in.
The Chair: Ms Sullivan and Mr Giacobbo, we thank you for appearing here today on behalf of the Amalgamated Clothing and Textile Workers Union. You've made an effective presentation which has resulted in a great deal of interest being piqued. That's demonstrated by the questions that were put to you. We thank you and your membership for your interest in this process.
Ms Sullivan: Thank you.
The Chair: We trust you'll keep in touch. Take care, friends.
ONTARIO COALITION FOR BETTER CHILD CARE
The Chair: The next participant is the Ontario Coalition for Better Child Care. Please seat yourselves in front of a microphone. We need your names and your titles. We want to thank you first for coming here on short notice. It was only this morning that you were contacted and you have accommodated the committee by appearing here with such a brief period of notice. We very much appreciate that. Go ahead.
Ms Kerry McCuaig: Not only that, there is a tornado outside.
I'm Kerry McCuaig. I'm the executive director for the Ontario Coalition for Better Child Care. With me is Evelin Napier. She is the coalition's education coordinator.
The brief we've prepared for you is short. It's broken down into three parts. Two of the issues we're going to spend some time with aren't included in the amendments to Bill 40, but we would ask you to bear with us anyway because we think these are important additions which have to be seriously examined in any amendments to labour law reform. The other section deals quite specifically with the amendments that are before you.
The coalition itself has just completed its own public consultation process. We held 12 public meetings in 12 communities across the province, in addition to numerous bilateral and round table discussions, with a broad range of child care providers, consumers and advocates. It was interesting that regardless of the constituency that was there, the discussion focused on the quality and the affordability of child care, and it is precisely these issues which we feel intersect so closely with labour law reform.
Where we have women who are working for wages more than ever before, it has not, however, brought us the economic equality that it was supposed to. The lack of access to affordable, quality child care leaves women in a vulnerable position in the labour market. It leaves us clustered in the traditional female ghettos of clerical, sales and service jobs, where a full 80% of women are employed.
The coalition supports labour law reform because we maintain the right to bargain collectively for wages and working conditions is a fundamental human right in a democratic society. Current labour law, coupled with women's traditional role in the workplace and the lack of social supports, including child care, has either overtly or covertly denied women this right.
Ms Evelin Napier: There are approximately 22,800 child care workers in Ontario working in a variety of settings. Approximately 21,000 work in 2,845 centre-based programs run by municipalities, community colleges, non-profit boards of directors and commercial operators. Another 2,800 work as contract employees for 102 profit and not-for-profit agencies providing home-based child care. Another 500 work in 185 resource centres funded by the Ministry of Community and Social Services.
Wages in this sector are largely determined by auspices. Qualified staff employed in programs operated by community colleges and municipalities earn on average $29,000 annually, those in non-profit programs earn $19,000 to $21,000 on average and for-profit programs pay staff an average of about $15,000.
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Almost all child care staff in programs operated by municipalities and community colleges are organized, usually as part of larger bargaining units. Few child care workers outside these auspices are unionized. The low level of unionization has not been for lack of trying, as witnessed by the bitter strike involved in organizing the US-based chain of child care centres, Mini-Skools, by the Ontario Public Service Employees Union. There are legislative impediments to organizing child care workers. Unions are not free to organize only the child care programs operated by multiservice agencies. When dealing with umbrella agencies operating several child care programs in a region, a union is required to organize workers in all the programs.
Attempts to organize private home day care providers have met with long litigation. Agencies argue that the providers are independent operators, even though providers' wages and working conditions are entirely dependent on the agency which contracts their services.
However, the major barrier to organizing child care workers is not legislation; it is the organization and funding of the service. The majority of child care programs are small, independent operations employing under 20 staff. Programs are funded through a combination of provincial government grants and subsidies for low-income families, which are cost-shared at the discretion of municipalities. Child care programs have no control over this income. The only source of income where they do exercise control is in the fees charged to families that pay the full cost of their children's care.
Although child care programs provide an essential human service, they must still operate like a business. Fees are determined by the marketplace. The competition for clients imposes a ceiling on how much individual programs can charge parents and this is where the conflict between child care operators and staff begins. Child care is labour intensive; 85% of a program's budget is spent on staff salaries.
In the absence of public funding, any efforts to improve salaries or benefits must come from increased parents' fees. A centre whose fees are higher than others in the region will not be able to keep clients. Programs strive to keep fees, and consequently staff wages, down in order to remain viable and it's little wonder that programs resist employees' attempts to organize. Child care workers are left to subsidize service through their low wages.
Low wages are not the only burden for child care workers. They affect the quality of child care. Studies have found that staff wages are among the most important indicators of quality care. Despite having higher levels of formal education than the average worker, child care teaching staff still earn less than half the salary of comparably educated women in other sectors.
Low wages lead, in turn, to high staff turnover. Staff turnover has nearly tripled in the last decade, jumping from 15% in 1977 to 41% in 1988. Low-paid staff were twice as likely to leave their jobs as those earning higher wages. Low wages had a direct impact on the quality of care. Children attending centres with high staff turnover were less competent in language and social development.
Underfunding puts tremendous pressure on child care programs to cut costs in other ways. Some programs are under the impression that the demands of the Day Nurseries Act override those in the Employment Standards Act. Examples abound of workers denied even the basic requirements of lunch and rest breaks. Overtime and vacation regulations are regularly bent or ignored.
The presence of a union in a child care setting not only influences the wages staff receive; it eliminates such working conditions. With union protection, staff are also more likely to report violations of the Day Nurseries Act. It has also been our experience that there has been less need to police the distribution of government funding to child care programs in unionized settings, thereby providing an extra measure of accountability for public funding.
The coalition maintains that the organization of child care workers would provide stability to child care programs by regulating the labour market; that is, by taking wages and working conditions out of competition. But in this sector, as in other small workplaces, regulation of the labour market can only occur in the entire sector or at the regional level.
The coalition supports the inclusion of legislation to facilitate sectoral bargaining in this round of amendments. At the very least, we urge the immediate appointment of a task force on broader-based bargaining strategies, with the mandate to review models of sectoral bargaining which would give a remedy to the most exploited sectors of the workforce.
As a founding member of Women for Labour Law Reform, the Ontario Coalition for Better Child Care supports the thrust of the recommendations. However, it would like to highlight some specific amendments in Bill 40.
Ms McCuaig: Specifically, the right to organize: Under the purpose clause, we feel that it should strongly state and facilitate the right of workers to organize and not put up unnecessary barriers.
The removal of restrictions: It is the opinion of the coalition that removing the restrictions on certain groups of workers to organize was a positive step. However, we'd like to point out that simply removing a ban does not facilitate the organization of those workers. Are domestic workers going to organize on a one-on-one basis? We use this as another example of where broader-based bargaining is essential if women workers are going to be able to exercise the right to organize.
We cannot understand the continued exclusion of agricultural workers. These are largely immigrant and women workers and this really continues an historical injustice in Ontario. It is a last vestige of indentured servitude. We ask the government to take steps in this round to afford agricultural workers the same democratic rights as extended to other Ontario workers.
The organizing process: We support proposals to provide for quick access to arbitration for unfair discipline or firing during the organizing drive. This is essential. It has been our experience in the child care sector, particularly when you're dealing with small workplaces, that there has been a tendency to fire the main organizer. When you do that, even though later you may get slapped with an OLRB fine or a reprisal, it is nowhere nearly as bad as the price of keeping the union out. Essentially, if you get rid of the main organizer or the main proponent in a small workplace, you get rid of the union.
Picketing and organizing activity in shopping malls and other areas frequented by the public is a positive step forward. It recognizes the changing façade of the workplace. This provision will also level the playing field, which is popular to talk about, recognizing that employers and employees working in shopping malls, office towers and other large complexes should have the same access to information as enjoyed at other work sites.
The proposal to undertake a public education campaign on labour law reform changes we feel is a poor substitute for the recommendation to make the posting of labour law and employment standard regulations mandatory in the workplace. In fact, such a proviso as already exists with health and safety legislation is a much more effective and efficient way of using public dollars and would signal the willingness of employers to work in partnership with their employees.
Determining the bargaining unit: Again, this is a move towards sectoral bargaining, one which we think is positive. The inclusion of part-time workers in units with full-time workers would increase their bargaining clout. It would be of particular advantage to women workers, as would the combining of bargaining units. Particularly in our sector but also in the retail and service sector, this would be of particular benefit to women.
The automatic access to first-contract arbitration and protection against unjust dismissal and discipline would be helpful to workers who are facing very backward employers who use delaying tactics and intimidation to deny employees the right to organize.
While probably the most controversial of the amendments, the section on industrial conflict or the banning of the use of scabs and providing increased job and benefit protection for workers on strike is to the coalition, however, among the most important provisions in the amendments. Such a provision would safeguard children from the real harm inherent in witnessing the tension that inevitably arises when scabs are used. Also, we'd like to note that the quality of program could not possible be maintained by replacement workers in a strike situation.
We note that the provisions look at maintaining essential services in the service sector. We'd be not at all pleased if we saw child care workers included as essential workers. When strikes have taken place in the child care sector, it's been our experience that child care workers have been most responsible and have worked with parents in order to minimize disruptions. Strikes in the child care sector are, however, an unmistakable sign that the tensions in the workplace are affecting the quality of programming. Therefore, there has to be that release valve. There has to be that method for in fact addressing the tensions that are there.
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The coalition supports the introduction of successor rights for particularly vulnerable groups of workers who work for contractors, such as food services and cleaning. It would support the extension of this provision to other workers. We think, particularly as child care reform moves ahead in Ontario, it would be useful to have labour law legislation protecting the jobs and working conditions of staff who are going through a transition, to ensure that it's smoother.
The final provision we would make is that in conjunction with labour law reform -- this is something we made during the public hearings -- the government has to take a serious look at the Employment Standards Act. While we regard the unionization of women workers as very essential and respect the role unions play in our society, we have to also note that for the majority of working women improved employment standards legislation would have a more immediate impact on their lives than unionization.
Right now, there's no doubt that the employment standards legislation isn't working. The time taken to process a complaint now stands at 100 days, up from 70. Victories such as the one at Lark Industries came after five years. Women workers shouldn't have to wait that long for redress for basic justice issues.
We maintain that the reform of the employment standards legislation has to be made a centrepiece of new labour policies which include improved access to unionization, collective bargaining, pay equity and employment equity. We therefore urge the government to undertake a comprehensive review of the Employment Standards Act with the aim of providing workers with a living wage, ending the exploitation of flexible labour, increasing flexibility for workers to accommodate their family responsibilities and providing income and job protection.
We appreciate that your government is under considerable pressure from the business community and the opposition parties to suspend changes to labour law. Yet these are very modest proposals. None of the amendments in Bill 40 goes beyond legislation which exists in other Canadian jurisdictions. It is therefore difficult for us to understand why, as one news headline put it, Ontario business has "gone berserk" over labour law reform.
The coalition concurs with the original discussion paper's description of the changing nature of the workforce. It is apt that the paper acknowledged the growing numbers of women in visible minorities entering the workforce, often into the low-wage sectors of the economy. The coalition very much concurs with the statement that the Ontario Labour Relations Act, as it currently stands, has left these groups behind.
Women have been told that their concerns can't be addressed in good times. They can't be addressed in bad times either. When would be a good time to extend labour law protection to women workers? The coalition would like to remind the government that it has made a long list of promises to women. Many of these promises are sitting in draft legislation waiting for their turn on the docket. Pay equity has been put on the back burner, as have employment equity and child care reform, while this rather minor piece of legislation dominates legislative discussion. You should all know that our sector will not be understanding if other important legislation is allowed to die because the Legislature is tied up with wrangling.
Women do not reject a working relationship with business. We work with business every day. We do, however, reject the premise that the only way to do business with business is by following its agenda. Women want and need labour reform because it will strengthen our hand in negotiating with business, and the ability to negotiate, we maintain, is imperative in any partnership.
Ms Murdock: Thank you very much, particularly for coming at this late hour, after a long day, no doubt.
I have just a couple of things, starting on page 3, towards the top of the page: "Child care workers are left to subsidize the service through their low wages." I know the argument we're going to get against that proposition is that if workers unionize and wages increase, you're doing yourself out of a job in terms of viability of an organization, particularly in the for-profit sector. How do you respond to that?
Ms McCuaig: There have to be certain justice issues. One is that we're looking at low wages, not only in terms of women subsidizing the system but in terms of the quality of care children receive. Every study indicates that the lower the wages, the worse the quality of care. If we as a society want to provide a level of care to children which is substandard, then we don't pay workers what they're worth. In this sector, you cannot underpay workers. If you do, you're going to pay for it in poor-quality care, so then you have public funding that has gone into a system -- because, don't forget, every sector of child care gets some form of public funding -- you have public funding going into bad care. We also know that a child is made to pay for bad care throughout its life; therefore, we as a society also pay for the bad care a child receives throughout its life.
This isn't an area you can scrimp on. Child care, we make no bones about it, is expensive. Good-quality child care is expensive. Part of that cost, the biggest part of that cost, 85%, is the wages the workers receive.
Ms Napier: And that's an argument for child care reform. It's not an argument for women workers to continue subsidizing a critically important service with low wages.
Ms Murdock: I'm glad you raised the point about women having the right to form a union if they wish, also particularly the domestic workers. They were in here the other day and made the point very clearly on the broad-based bargaining issue. Certainly I will be looking at that a lot more closely.
I'm glad too that you raised the point on contract employees, although you didn't get much into it. Is there a large number of contract employees within your membership?
Ms McCuaig: Almost all private home child care is contract employees. That means these are women who engage in a contract with the private home day care agency provider. They're considered to be self-employed, although their wages and working conditions and everything else is set by the agency, which is in turn set by funding.
There have been some attempts by OPSEU to organize home child care providers. They have always been met with very long litigation. In some cases it's been won, but the process has been very long and hard and drawn out.
Mr Offer: Thank you for your presentation. I have a question dealing with the difficulties in organization which you have clearly indicated in your presentation, and it runs right through the presentation. But it appears to me from listening to you and reading it -- fairly rapidly, I must say; I'll have to go over it again -- that the real impediment to effective organization in the child care sector is the fact that you cannot organize on a sectoral basis.
Ms McCuaig: On a centre-by-centre basis.
Mr Offer: Wait now. It says here that you support "the inclusion of legislation to facilitate sectoral bargaining in this round of amendments." That's what I was getting at.
Ms McCuaig: Absolutely. We think that is a major weakness in the bill, that it doesn't address sectoral bargaining at all. The facts showed it's not through lack of trying. You don't organize child care workers on a centre-by-centre basis.
Mr Offer: It just seems to me -- again, I'm going to have to read the presentation once more -- that the real concerns you have in dealing with the difficulties of organizing have not yet been addressed in Bill 40. Is that correct?
Ms McCuaig: Right.
Mrs Fawcett: Very quickly, you mentioned the agricultural workers and I'm wondering about your thoughts on that, if you had any thoughts on how you take into consideration seasonal work and inclement weather. You're talking about the rights of the workers and I agree with you, but you also have to consider the money farmers get in return for their products and how much they can afford to pay workers and all of those things. One has to agree that we don't want exploitation, yet the facts are that things are rather difficult in the agricultural field right now. Could you expand your thoughts on how you would successfully organize the farm workers?
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Ms McCuaig: When one considers that Ontario and Alberta are the only two jurisdictions which ban agricultural workers from organizing, then I suppose we just look at the other eight provinces and ask how they manage by allowing farm workers to organize. Particularly in British Columbia, where there's a strong organizing drive of agriculture workers, it manages to organize and not undo or undermine the agricultural economy in BC.
Mrs Fawcett: Possibly the subsidies to the farmers are a little different than they are here in Ontario.
Ms McCuaig: I would say there would be nothing the matter with governments responding to what labour conditions are in a sector.
Farmers are small businessmen in much the same way, say, that child care centres are small businesses. If you take the competition, part of what leads to the superexploitation, if you like, of workers is that you can cut corners. If we took the wages of agricultural workers out of competition, then we'd have stability in that sector. What they would know is stable would be their labour cost. We would argue the same thing for the child care sector, that what would in fact give stability to this sector would be one cost for labour, and unionizations would help that.
Mr Jackson: I'm very interested in this brief. I've been reading a lot of briefs from your organization in the last two years. I'm struck by what may appear in my mind at least to be a contradiction.
First of all, what we can agree on is that all day care workers have been grossly underpaid in this province for far too long, regardless of whether they're in the non-profit or the for-profit sector. It's clear the government's moving in a direction to limit, and the numbers of closures indicate we're moving more to non-profit.
When I put your brief in context, it raises some questions in my mind. In all the hearings you and I have attended, you've stressed the importance of parent-run, non-profit corporate boards. It strikes me that we have a little problem here that the non-profit board would negotiate with the union when in fact the model calls for union representation on the board. That's one area I'd appreciate some enlightenment on.
The second is that when you refer to industrial conflicts, when you talk about strikes, you talk about the unhealthy environment, and I can only assume that you're talking to issues which are time-honoured in this province such as work-to-rule, sanctions, reprisals. How does that compromise the strengths of a non-profit board with parent participation when, on the other hand, you're asking those same parents to give to the union the right to strike and bar their child from the program?
Aren't you asking that parent volunteer on the day care board -- you and I both know you'd prefer to take it out of this model and have it as a universal service paid for entirely by government, but we're not there yet and we're many years away from that.
Ms McCuaig: We've never said that publicly yet.
Mr Jackson: This transitional period is in an environment where the non-profit centres are becoming more the norm. That's not all that bad. What is is that we're now overlaying this bargaining process in an environment that is very much trying to discover itself and ensure that it maintains a healthy environment because the children are so important, and that they're not disrupted by work-to-rule and reprisals against children of parents who voted the wrong way for a wage package and things of that nature, which are legitimate concerns of parents. Could you discuss that in a little more detail?
Ms McCuaig: Child care workers now have the right to organize. Facilitating the right to organize for child care workers -- and this again goes back to the question I brought up with Ms Fawcett -- is by taking wages out of competition. We know, and we've been through this in many of the forums, that what affects quality, what affects what rates are and what affects affordability is: "If I can pay my child care staff less than your child care staff, I can charge lower fees. Therefore, I can get more clients and my centre won't be empty and my centre won't go bankrupt."
This is a concern, I agree with you, Cam, whether you're a for-profit centre or a non-profit centre. It's a business. You take wages out of competition and we have regional bargaining taking place. It's not so hard to do. For some reason we can have 10,000 electricians working all over the province, on this site and that site, and it's perfectly reasonable for them to have one wage rate and for them to have one bargaining unit and for them to argue with a megaboard of contractors. We think that model is quite feasible in the child care sector, even though you do have 2,800 different little operators out there, and that's not likely to change for a long time. You take the wages out of competition, you provide stability to the program.
As for putting any restriction on the democratic right of parent boards, we support restrictions on parent boards. The Day Nurseries Act is full of restrictions on what parent boards can do. What we're more concerned about is when we see parent boards and other operators trying to meet the criteria of the Day Nurseries Act by not meeting the criteria in the Employment Standards Act.
That bothers us far more than any restrictions you would put on child care parents like me who are sitting on a board and saying, "Well, no, I want this done, and I don't care whether or not you get your lunch break." Those sorts of restrictions are on them, like there are all sorts of other restrictions on them. The price of getting public money is that you meet certain regulations and you meet certain quality standards and part of that quality is what you pay workers.
The Chair: I appreciate that answer. Ms McCuaig, Ms Napier, thank you very much for appearing here this evening, and again, our thanks for coming on short notice. You've spoken very effectively on behalf of the Ontario Coalition for Better Child Care. I trust you'll be keeping in touch. Thank you.
We're finished for the day. We'll be back here tomorrow morning at 10 am and we're adjourned until that time. My thanks to the committee members and the staff for their cooperation.
The committee adjourned at 2107.