CONTENTS
Monday 29 September 1997
Public Sector Transition Stability Act, 1997, Bill 136, Mrs Witmer / Loi de 1997 visant à assurer la stabilité au cours de la transition dans le secteur public, projet de loi 136, Mme Witmer
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
Chair / Présidente
Mrs Brenda Elliott (Guelph PC)
Vice-Chair / Vice-Président
Mr Jerry J. Ouellette (Oshawa PC)
Mr David Christopherson (Hamilton Centre / -Centre ND)
Mr Ted Chudleigh (Halton North / -Nord PC)
Mr Sean G. Conway (Renfrew North / -Nord L)
Mrs Brenda Elliott (Guelph PC)
Mr Doug Galt (Northumberland PC)
Mr John Hastings (Etobicoke-Rexdale PC)
Mr Pat Hoy (Essex-Kent L)
Mr Bart Maves (Niagara Falls PC)
Mr Jerry J. Ouellette (Oshawa PC)
Substitutions / Membres remplaçants
Mr Tom Froese (St Catharines-Brock PC)
Mr Ernie Hardeman (Oxford PC)
Mr Dan Newman (Scarborough Centre / -Centre PC)
Mr Richard Patten (Ottawa Centre / -Centre L)
Mr Bruce Smith (Middlesex PC)
Also taking part / Autres participants et participantes
Ms Shelley Martel (Sudbury East / -Est ND)
Mr John Hill, legal counsel, Ministry of Labour
Ms Katherine Hewson, assistant director,
employment and labour policy branch, Ministry of Labour
Clerk Pro Tem / Greffier par intérim
Mr Douglas Arnott
Staff / Personnel
Mr Mark Spakowski, legislative counsel
PUBLIC SECTOR TRANSITION STABILITY ACT, 1997 / LOI DE 1997 VISANT À ASSURER LA STABILITÉ AU COURS DE LA TRANSITION DANS LE SECTEUR PUBLIC
Consideration of Bill 136, An Act to provide for the expeditious resolution of disputes during collective bargaining in certain sectors and to facilitate collective bargaining following restructuring in the public sector and to make certain amendments to the Employment Standards Act and the Pay Equity Act / Projet de loi 136, Loi prévoyant le règlement rapide des différends lors des négociations collectives dans certains secteurs, facilitant les négociations collectives à la suite de la restructuration dans le secteur public et apportant certaines modifications à la Loi sur les normes d'emploi et à la Loi sur l'équité salariale.
The Chair (Ms Brenda Elliott): Good afternoon, everyone. The standing committee on resources development is called to order this afternoon for the purpose of clause-by-clause consideration of Bill 136, the Public Sector Transition Stability Act. I draw your attention to the packet of amendments and motions before you. In the top right-hand corner, each page is individually numbered. For ease of discussion, we'll refer to that page number, if that's all right with everyone, so we are all working from the same page of the amendments.
To begin, are there any comments, questions, or amendments, and if so, to which section?
Mr Richard Patten (Ottawa Centre): Madam Chair, I'd like to ask if you would rule today on whether the submissions are in order on the basis of the extent, the scope and the significance of the amendments. As the deputy minister said this morning in his briefing to the media, they are substantial changes to the bill. On five or six of the substantive issues of the bill, the heart of the bill, the amendments show a 180-degree turn.
I contend that this is out of order and that what should proceed is a redrafting of a new bill with these included, with time for the parties required to analyse and digest and consider the legal drafting of these amendments. As you will appreciate, we only had a couple of hours in opposition to look at these and try to digest them and consider what they are. In some cases, I must tell you, I have not had time to complete the full package. There are some questions we have related to some of the legalities of this bill that would make it difficult to respond.
However, having said that, my point with you is to ask you for a ruling on whether you believe, now that these submissions have been tabled from the government side, amendments to their own bill, that they are so significant as to essentially change the bill and require that a new bill be drafted.
Mr David Christopherson (Hamilton Centre): On the same point, Chair, I want to concur with my Liberal colleague. Our caucus feels very strongly that this whole process is just such a sham, and the proof is in the amendments we got today.
I would like to point out to you that Beauchesne, subsection 698(5) on page 207 says, "An amendment which is equivalent to a negative of the bill, or which would reverse the principle of the bill as agreed to at the second reading stage is not admissible."
The most important part of the bill is under the explanatory note, and it says, "The bill enacts the Public Sector Dispute Resolution Act, 1997 and the Public Sector Labour Relations Transition Act, 1997." Well, the content of both of those acts is now being negated, because the purpose was to set up the two commissions. That was the main purpose. If you look at the minister's opening remarks in the House at second reading, she focuses largely on the issue of setting up the two new commissions. That was why she didn't bring in amendments to other bills but rather a completely new bill, and I won't read the ridiculously long name, especially since it's such an oxymoron to what's really going on. But that was the reason that Bill 136 as a standalone bill was introduced.
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You will note, Chair, that the vast majority of the government's amendments go about dismantling the very things that Bill 136 was offered up to put in place. I think the test of Beauchesne, "which is equivalent to a negative of the bill, or which would reverse the principle of the bill," is met.
I would also ask you to consider the process. I realize that you can't make that the focus of your ruling, but to ignore it is to deny us in the opposition and, quite frankly, the citizens of Ontario natural justice. Our position all the way through has been that the hearings last week were a sham, because people were coming forward and either commenting on a written bill that the government had already said it was going to gut completely or they were trying to second-guess what the minister might or might not do in an amended Bill 136.
That wasn't known to us until 10 o'clock this morning. It's now 3:45. Well, 150 pages of legally written amendments cannot be adequately dissected, considered, analysed, thought through and compared to existing legislation in an attempt to do a thorough enough job not just to come in here and comment, but as lawmakers we're actually going to vote on these amendments today. It's absurd. In my opinion, every member of the government, whether they admit it or not, in their heart knows that's the truth, and they also know that if they were sitting over here instead of having to follow the marching orders of the minister's and Premier's offices, they would be also outraged, because common sense dictates that this process has nothing to do with democracy.
Back to my point: I realize from some discussions between the clerk and my staff that there's a question of when the amendments are tabled and whether or not things are properly before us at the time that we're now making this request.
Two things: First, I ask you to consider that the amendments are there in front of us, and the time allocation motion says that now they're in front of us, they will be deemed by 5 o'clock tomorrow. I would say to you with great respect, Chair, that whether or not individually they've been presented to you, the fact is that the process forces them to be in front of us; therefore, in my humble opinion, you would have to rule it in order that you consider all the amendments when you consider the point my colleague from Ottawa Centre and I raise regarding whether or not these amendments negate the principles contained in Bill 136 at second reading.
I would ask you to rule on that first. If you rule in the negative, I'd like an opportunity to respond to that, if I could. But I very much ask you to consider that now. If you need a recess to talk with the clerk, I find that totally acceptable. This is a serious point of order, Chair. There's no small-p politics being played here. Richard and I are offering you the very legitimate argument that these amendments stand the test that Beauchesne lays out on page 207 about negating the principles contained in second reading. I've got to tell you, I don't think a clearer example has happened in the history of Ontario.
To end my comments, our remedy would be that in ruling these out of order, you would in effect be telling the government that because they have negated the main principles in 136 at second reading, they must do the right thing, and that is submit a new bill, because that de facto is what we have in front of us, a new bill. With that in mind, we deserve to have some proper hearings; we deserve to have an opportunity to review these properly, not this ramming-through process where at 10 o'clock in the morning we get 150 pages of what basically amounts to a new bill, and by 3:30 in the afternoon we begin debating and voting on them and enacting them into law.
Mr Bart Maves (Niagara Falls): To speak to this, in my opinion and I believe in the opinion of my colleagues, the principles of the bill are still there. Those principles, I would reiterate, are to provide necessary tools for restructuring, to ensure the smooth transition and deal fairly with union and non-union employees, to minimize service disruption and have better-quality services at less cost to the taxpayer. Those principles are still preserved in the bill.
The long title of the bill speaks to those same principles. That is An Act to provide for the expeditious resolution of disputes during collective bargaining in certain sectors and to facilitate collective bargaining following restructuring in the public sector and to make certain amendments to the Employment Standards Act and the Pay Equity Act. Each of those things is still very much a part of the bill.
The parts of the bill that made up the Dispute Resolution Commission, the choice of procedures in the expedited proceedings, those powers that were to be given to the Dispute Resolution Commission, are still in the bill. They have simply been put over, as was discussed when we consulted with labour and the other stakeholders. They wanted those same procedures in the expeditious resolution of these disputes, but they wanted those things to be turned over to a different body, a body other than the Dispute Resolution Commission. By doing so, the bill still does look after expeditious resolution of disputes. Granted, it doesn't do it through a body that had been named in the bill, but it does do it through existing procedures, procedures which have been followed in Ontario for quite some time.
As well, there were new rules and new procedures for the Labour Relations Transition Commission to help engage the same broader public sector services and help them with the transition to new bargaining units, new bargaining agents and how that was going to occur. Those things are still very much in the bill. In fact, they've just been given to a different body also, to the Ontario Labour Relations Board, a board that has looked after adjudicating in these areas for quite some time. The expeditious procedures that were in the bill, that are a principle of the bill, have just been transferred to another body, but they haven't really changed. I think that's something to consider.
There are also points about, for instance, seniority in the bill, ways to guide the labour relations board in how it looks at seniority of, for instance, non-union employees. It's still very much in the bill and germane to the bill. It was something that was vital and was one of the principles we followed.
The second principle I talked about was to ensure the smooth transition and deal fairly with the union and non-union employees. That's still there and therefore the bill still speaks very much to its original intent.
We also talked about minimizing service disruption as a principle of the bill. When these functions of the DRC and the functions of the LRTC are given over to bodies like the OLRB and to arbitrators who will arbitrate disputes, that indeed helps us to minimize service disruption in all those sectors, which was a principle of the bill which is still being met by the bill.
Better-quality services at less cost to the taxpayer: We believe the bill will add to this through aiding the smooth transition of the process to different bargaining units in amalgamated municipalities, school boards and hospital boards. We think that's going to help us to deliver better-quality services at less cost to the taxpayer.
I believe that while there have been several changes made to the bill, changes which we've talked about for quite some time, the cut and thrust of the bill is still very much there.
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I would also point out, concerning Mr Christopherson's claim about getting late notice of amendments, that amendments on all bills are always filed prior to clause-by-clause and not before. This is not new. This is something that has happened with all bills under this government. I might point to the social contract, where, for the two days of committee of the whole they had for the social contract, the amendments were brought in in the morning, the two mornings they were to debate those amendments. To say that a large body of amendments to a bill being brought in just before the bill gets into clause-by-clause is highly unusual is not true at all; it's in fact quite standard. I don't think that is a reason to say that the bill is out of order. I think I'll let those arguments rest for the moment.
Ms Shelley Martel (Sudbury East): I want to speak to the same point of order and follow up from where my colleagues from Hamilton and Ottawa have been. I think the test you are being asked to consider is a fairly straightforward one. It goes back to the test been laid out in Beauchesne, which my colleague from Hamilton has already put to you and I will repeat: "An amendment which is equivalent to a negative of the bill, or which would reverse the principle of the bill as agreed to at the second reading stage is not admissible."
The argument we are making is whether you as Chair should use the following test, and we argue that you should; namely, has the bill been so significantly altered since second reading to the extent that a new bill would now be in order and that the amendments the government proposes, which were dropped on the public today, should be then declared out of order? In other words, have the fundamentals upon which the original bill was based been so changed since the debate at second reading that the government itself would be well advised to do the right thing, withdraw the bill and bring in a new bill which would accommodate all the changes that we gather the government is trying to accommodate through the amendments?
If I might, Chair, I listened to the minister's second reading debate. I listened very carefully to it. Much time on that second reading debate was spent dealing with two particular acts: first of all, the Public Sector Dispute Resolution Act, 1997; and secondly, the Public Sector Labour Relations Transition Act, 1997. The explanatory note sets it out very well. The first act, the Public Sector Dispute Resolution Act, 1997, "creates the Dispute Resolution Commission and authorizes it to resolve collective bargaining disputes with respect to certain workers in the broader public sector." Quite a lengthy part of the bill is devoted to the creation of that particular committee, looks at its composition and looks at some of its powers.
The argument I make with respect to that first bill is that now we no longer have the creation of that very commission which formed a fundamental part of the first act the minister was moving forward in Bill 136. It formed a significant part of her comments on second reading debate for Bill 136.
The second act, which she spent a great deal of time talking about and which Bill 136 is also devoted to, had to do with the creation of the Labour Relations Transition Commission itself. That came under a second act in Bill 136, namely the Public Sector Labour Relations Transition Act, 1997. The explanatory note says the following: "The act creates the Labour Relations Transition Commission, and authorizes it to make decisions and orders respecting the temporary labour relations and collective bargaining scheme set out in the act."
Again, the minister spent a great deal of time on Bill 136 talking about the need for this commission, what its composition would be and how it would act with respect to dealing with disputes. That schedule, with respect to the establishment of that particular committee, its composition etc, took up a great chunk of the second schedule of this bill, namely schedule B, and forms a large part of the bill which the government now will be asked to vote against because the government is no longer creating the two commissions that were the basis of the two acts it was moving forward, outside of the pay equity and wage protection plan. The government itself will be in the embarrassing position this afternoon and tomorrow of having to vote against huge chunks of schedule A and then huge chunks of schedule B to reverse totally their position with respect to the creation of those two bodies.
My argument is that as we have moved from second reading and the principles outlined by the minister, we have seen a significant alteration in the intentions of this government, so significant that two bills which form part of the four bills are no longer relevant in many respects and the government will spend its time over the next two days voting against huge sections of both of those two schedules, because they are getting rid of the commission, the composition will change, and of its powers, some will be transferred to the OLRB and some won't.
The argument that we're making with respect to Beauchesne is that the principles outlined by the minister at second reading debate have been significantly altered, not just the principles but the bill itself. As we see in the amendments which were dropped on us this morning, there have also been very significant changes to the government's direction, and the government will face the prospect now of voting against many sections of the original bill.
My argument is that of the 150 pages of amendments, versus the 63 pages of the government bill, many of the principles have been changed, many of the fundamentals upon which the original bill rested have been changed and the government's direction will be reversed. As such, it's incumbent upon you as Chair to rule the government's 150 pages of amendments out of order and to guide the government in determining that a new bill should be brought into this place and that members of this assembly and members of the public should now have some time to deal with the amendments as they appear in black and white, since the minister and this government refused to allow the public to do so last week during the public hearings.
As we follow Beauchesne in terms of talking about whether a bill has been negated, it is our argument that fundamentals of this bill have been negated and the government has switched its direction with respect to substantial portions of this bill 180 degrees; the amendments therefore should be ruled out of order, because the principles of the bill that were outlined at second reading are no longer the principles the government is moving on and substantial portions of the bill have been changed as a consequence. We should be dealing here today with the withdrawal of the amendments, with them being ruled out of order, and the government being forced to bring in a new bill which clearly articulates its changes and which should clearly allow the public to have some ability to read through them and make comment on them before this committee moves forward again.
Mr Pat Hoy (Essex-Kent): We are raising serious points on how we do business and have done business in committee and the democratic process. Bill 136, as introduced, was not needed to take the government where it was heading. The amendments now put, however, are the direction the government has in mind. There are substantial changes in these amendments, many pages of them, and they negate the thrust of Bill 136. To date, no one in the public has spoken to these amendments. We went through many days, long days, of public hearings, and no one spoke directly to the amendments we just received this morning. In that these amendments negate the thrust of Bill 136, I'm suggesting that these amendments are out of order and that Bill 136 should be withdrawn and a new bill is required.
I think the precedent that could be set here is one that takes a lot of diligence on your part, Chair. We must move to protect the way committees do business. We must protect the rights of those who want to comment on government legislation, and to date no one in the public has spoken to the amendments put forth on Bill 136 nor, as we sit here this afternoon, will they have a chance to speak on the amendments to Bill 136. I can't reiterate enough that I think the bill should be withdrawn and that a new bill is required.
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Mr Patten: I would like to support the points that have been made on this side and suggest that the bill essentially is a means of achieving a purpose. There are five major areas of activity. The two sections that are also considered part of the bill are truly amendments to other acts that have nothing to do with transition. The Employment Standards Act and the Pay Equity Act have essentially nothing to do with the smooth transition other than being irritants and causing difficulties for employers, negative factors in the bill.
Having said that, I want to reinforce the point made by the member for Hamilton Centre that technically, with the time allocation motion, once we open up comments for clause-by-clause they are officially on the table. Whatever we get to tomorrow night, the balance is deemed to go forward and be passed. I would argue that you can't deem something to be passed one by one, because they are viewed as a collective, total package. I would make that argument first.
The other thing I would say is that the bill has 79 sections. Through the government amendments, 76 sections are amended or struck out either by being voted down or deleted. I would think this adds to the point Beauchesne makes in this comment on page 207.
Mr Maves: In citing Beauchesne as the equivalent to a negative of the bill, which is what Ms Martel has argued, I want to say that quite clearly it is not the case that's it's a negative of the bill. With the changes that labour, employers and the government have agreed to, the bill doesn't now promote the unexpeditious resolution of disputes; in fact, it still promotes the expeditious resolution of disputes. It doesn't hamper collective bargaining; in fact, it encourages it, which is an original principle of the bill. It still deals with restructuring in the public sector. It still deals with the ESA and the Pay Equity Act.
The structure of the bill is very much the same as it was before. Many amendments -- there are many -- simply eliminate the two proposed bodies that were to carry out these duties and allow them to stay with existing bodies. Also, many of the amendments, even about a third of the Liberal Party's amendments, are simply a name change. To concentrate on the number of amendments is a little misleading when so many of them just concentrate on changing from the Labour Relations Transition Commission to the Ontario Labour Relations Board, so I don't think that should be given that much weight.
The principal argument here that it's equivalent to a negative, as I've said, is completely incorrect. It is the choice of procedures and the guide to seniority decisions, the guide to deciding bargaining units and bargaining agents that are the key to the bill. It's not the bodies that administer these things; it's those guides themselves and the procedures and the guidelines that are the keys to the bill, and they remain in the bill. Therefore, the bill still very much has its original intent and should be ruled in order.
Mr Christopherson: I won't repeat anything, but I would like to add to our case for an out-of-order ruling by pointing out that the bill itself is made up of two pages of explanatory notes and six pages of bill, the legal part of what we would normally call the bill. The rest of it, from page 7 through to page 63, is split between schedule A and schedule B. Given the shortness of time, I wish I had opportunity to give you a fuller, more detailed, itemized argument, but I can only do so much in the time frame this government has given us. But let me point out what I've been able to do so far.
Given that the schedules are obviously where the action is, because they're such a large percentage of the bill, and given that that's where the changes are, I would like you to consider -- and I stand to be corrected on perhaps one or two of these. I've done it quickly, but I'm sure I'm correct on the vast majority of them.
In schedule A, the government is going to vote entirely against section 3. They're going to vote against the entire section 4. They're going to vote against the entire section 5. They're going to vote against the entire section 6. They're going to vote against the entire section 7, the entire section 8, the entire section 9, the entire section 10, the entire section 11, the entire section 12, the entire section 13, the entire section 14, the entire section 15, the entire section 16. They've got a nine-page amendment to section 17. Section 18 is out, followed by four or five amendments, from what I can quickly count, one of them being a five-page amendment that goes in a completely different direction from the section they just voted against. They completely eliminate section 19, eliminate and replace major parts of section 20 and completely eliminate section 21.
If I had enough time, Chair, I'm sure I could make the case to you that schedule B is exactly the same way. All you need to do yourself is take a cursory look at the number of amendments, as I just did, in schedule B, where the government's motion is, "Strike out section so-and-so." My point is that there is evidence.
If you look at the explanatory notes, which take up a page and a half, a page and a third are devoted to talking about the Public Sector Dispute Resolution Act, which creates the Dispute Resolution Commission; and the Public Sector Labour Relations Transition Act, which creates the Labour Relations Transition Commission. It creates those two commissions. The explanatory note is a page and a third out of a little more than a page and a half on those two acts. Those two commissions are not going to be created at all. All the processes the parliamentary assistant talks about are going into other pieces of existing legislation, amending those pieces of legislation. We're glad they are, but that is so fundamentally different from what Bill 136 is about.
Further, the balance of the page I spoke of, the second page of the explanatory note, is on the Employment Standards Act. They're making amendments there, but not to the wage protection plan. The Pay Equity Act is the last piece on the second page of the explanatory note. They're making some significant changes there; again, we're very supportive of those, but they change the nature.
In other words, even where they aren't offering up a completely different new principle, there are at least amendments. There's nothing in Bill 136 that remains untouched. But when a page and a third of the explanatory note is taken up talking about the creation of two commissions and schedule A and schedule B provide the details of how those commissions are going to work, and they represent 85% of the pages of the bill, and you're no longer going to create those commissions, Chair, I humbly and respectfully submit it's not a stretch to suggest that the test of Beauchesne is met. It's a new bill. It deserves to be stopped and offered up as a new bill and given a reasonable period of time.
I can tell you, members of the government benches, I'm prepared, and I'm sure that the member for Ottawa Centre is, to sit down and talk about what a reasonable period might be. I mean that. Quite frankly, at this stage, according to our legal people, given the short time we have, so far it looks like the amendments have met the words of the minister.
Use common sense. If you called a lawyer and said, "Give me an interpretation on" any one clause, do you know how much time they're going to spend looking at it, the best of lawyers, analysing it and couching it 16 different ways from Sunday? Then if you said, "Check another 200 clauses for me," they'd say: "What do you think I am, some New York law firm? I can't do that in a few hours. Don't be ridiculous."
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The fact of the matter is this is not an unreasonable position. Given the fact that it looks like it's okay, all we want is a decent, democratic, fair length of time to have it looked at, to have a few people come in and put it on the record, and if they've got some problems, let's hear what they are.
Please, members of the government, bear in mind that we can't make any changes to the amendments you've tabled, even if we find out sitting here that there's something screwy -- because we've had a chance to look at it maybe a little more than the lawyers, who have probably been working, God bless their souls, around the clock getting us to this point. The rules don't even allow us by unanimous consent to change any of the amendments. We couldn't change an amendment even if we all looked at it and said: "You know what? We agree with the intent, we agree with what you want to do, but we see a problem here. Look at this, it's a glaring mistake." We've all seen it; it happens. We can't do it at this committee. We don't have the power. The time allocation motion handcuffs us. We can't change any of the amendments. At 5 o'clock tomorrow, they're all deemed and that's it.
I submit to the Chair and to the members of the government benches that I'm prepared, and I'll stand by my words, to sit down and negotiate in good faith at the subcommittee level a reasonable, quick process that allows us the opportunity to do some natural justice to this, respecting the government's majority desire to get it through quickly, but to give us a process that at least has some kind of fairness to it. You're going to wear this from now until the end of your term, and you're going to wear it in the next election. You know that.
Chair, you could help that process. I realize you've got two hats to wear. I want to say, and I mean this sincerely, that by and large, with a couple of exceptions, I think you've tried to be as fair a Chair as you could, recognizing you're still a member of the Tory government; but you have been. On a couple of rulings I think you blew it, but not major ones -- other than shortening my time when it was my time to speak and giving everybody else all the time they wanted. But I don't want to be picky about it.
But you've got an opportunity now to give some serious consideration to what we are suggesting here. Should you rule that it's not allowed, I'm prepared to immediately move into a meeting of the subcommittee and I'm prepared to stand by the fact that I will be reasonable and fair and talk about an efficient process that allows a new bill to get through relatively quickly, but allows us at least some opportunity to have real input, because this current process has no credibility.
I would ask you to please give our submissions the serious consideration we're requesting, because they're meant very sincerely.
Mr Maves: I have two points that I think are relevant to make. It's true that there were many sections in the bill to establish the two bodies, the Dispute Resolution Commission and the Labour Relations Transition Commission. Therefore, obviously to eliminate those bodies and transfer the responsibilities to existing arbitrators and the OLRB would require eliminating the many sections that were there to create the bodies in the first place. But that alone doesn't change the principle of the bill. We transferred those responsibilities from one body to other ones. Because there are many sections of the bill establishing a body, that alone does not change the principles of the bill.
The member also talked about the fact that other acts, for instance the Fire Protection and Prevention Act and the Hospital Labour Disputes Arbitration Act and so on, are opened up and changed by this bill. That was the case before. The bill did that when it was initially introduced and the bill still does that now. That is not a departure from the original bill as it was first brought out.
I just wanted to make those points.
Mr Christopherson: Very briefly in response to the parliamentary assistant, I hear what he's saying. My arguments still stand, but I would say in response to what he's just said that our point in asking you to rule, Chair, is not to be obstructionist, but rather, that could be the step that forces this to be a new bill. Why do we want that? Because that will ultimately allow people to come forward during quick, short hearings, for a chance to make submissions on a real bill.
I don't argue that the parliamentary assistant is correct when he says they've offered up a different way of doing things, but they are equally complex, they are equally wrapped up in legalese and procedure. As we all know, when you're dealing with commissions and processes and appeals etc, the actual wording of the amendment is crucial. I am not a labour lawyer. I would like to have the benefit of someone from both sides of the argument, from the employer side and the employee side, who is a labour lawyer, expert in the field, to come in and say, "This will work," or perhaps, "This won't, and although it doesn't here's another way of doing what you're setting out to do."
That's why we want you to rule this way; that's the purpose. It's all up front. There's nothing hidden here. It's about forcing the government to bring in a new bill because we just can't get them to realize they've got an obligation to take these amendments and run them back through. They won't do it. The only way we can force it is if this is ruled out of order. The purpose in doing that is so we can have some public hearings, but unlike the sham of last week; that people can come in and comment on a real bill. Every comment that was made last week by and large was useless, because they were either on a bill that you've now thrown out the window or they were second-guessing what you might put in front of us, which we've only had for a few hours now.
Yes, I agree with the parliamentary assistant's points, but what he fails to say is that democracy and fairness also dictate that people have a chance to comment on the complex processes that are eliminated from 136 and now replaced by amendments. We don't even get that opportunity as legislators, as parliamentarians, as lawmakers; we aren't given that chance, let alone the public. They should have it, and it'll make for a better law.
Mr Patten: I have two points to make. One is related to Mr Maves's comments. The LRTC, which has been done away with but is replaced by the OLRB, is not a modification of the transition commission. This is a body that exists, has its own procedures and its own jurisdiction, so to say you're transferring something in name only is not the case in this particular instance.
My comments are short, but I would like to read, just to remind ourselves of the principles of parliamentary law, the very first principle of Canadian parliamentary law:
"To protect a minority and restrain the improvidence or tyranny of a majority; to secure the transaction of public business in an orderly manner; to enable every member to express opinions within limits necessary to preserve decorum and prevent an unnecessary waste of time; to give abundant opportunity for the consideration of every measure, and to prevent any legislative action being taken upon sudden impulse."
Madam Chair, I want to leave you with that thought, particularly "to give abundant opportunity for the consideration of every measure," which I believe applies in this instance.
The Chair: Colleagues, you have given me a few things to think about. With your indulgence, I'd like to take a recess of perhaps 15 minutes to consider this. We'll stand recessed for 15 minutes.
The committee recessed from 1619 to 1637.
The Chair: Colleagues, the standing committee on resources development is once again called to order for the purpose of clause-by-clause consideration of Bill 136, the Public Sector Transition Stability Act.
In response to requests by Mr Christopherson and Mr Patten and after listening very carefully to a number of members, to the I would say compelling arguments presented on all sides, I have thoughtfully considered what you have said to me.
As you know, I tremendously respect the institution of our Parliament, and I have taken this very seriously in consultation with the clerk's office and with legal counsel. Although I'm sure this answer will seem frustrating to several members of the committee, I think the wisest ruling for me to make at this point is to indicate that it would be inappropriate for me to rule on the entire package of amendments, that it would be most appropriate and the best procedure for me to rule on individual amendments moved before this committee. That, therefore, is my ruling on this particular request.
Mr Christopherson: Just a clarification before I make a statement. Part of our concern is that if you take each amendment individually, in and of themselves they may not -- they may, but they may not -- meet the test of Beauchesne, but taken together, the cumulative effect is, in our opinion, that they do. Therefore, my question to you is, in making your ruling, will you limit yourself to just the amendment that's in front of us, or, given what I have just said, will you consider the cumulative effect of a number of amendments on the original bill?
The Chair: Normally, there shouldn't be debate on the Chair's ruling.
Mr Christopherson: I was asking for clarification.
The Chair: I would take this as a question for clarification. My answer to you is that it would be appropriate that when each amendment is before us, we would consider it from a number of perspectives, the individual amendment itself and in the bill as a whole. I guess my answer to you would be that we would be looking at all those aspects.
Mr Patten: I kind of expected something along those lines. With all due respect to you personally, I must offer a challenge to that ruling. I would be prepared to ask for another ruling. You said you'd be prepared to respond to the individual amendments. The basis of my challenge is that if these amendments as put forward are not controlled and dictated by the time allocation motion as a package, then why is it that all those that are not dealt with, that complete package, is deemed to go forward? I submit it's a package.
Mr Ernie Hardeman (Oxford): On a point of order, Madam Chair: I was just wondering whether a challenge to the Chair is debatable. I understood the member was challenging the Chair and then proceeded to discuss the issue. Either he is challenging the ruling of the Chair or he's not.
The Chair: You're quite right. It is not debatable. The Chair's ruling has been challenged. It is now appropriate, then, for me to put the question, shall the Chair's ruling be appealed to the Speaker?
Mr Christopherson: Recorded vote.
Ayes
Christopherson, Hoy, Patten.
Nays
Froese, Hardeman, Maves, Newman.
The Chair: It is lost. All right. I shall now put the question again: Are there any questions, amendments or comments to the bill, and if so, to which sections?
Interruption.
The Chair: You're out of order, sir.
Interruption.
The Chair: I'm sorry, sir. This is a committee for committee members only. You're out of order. I'm going to have to ask you to leave.
Interruption.
The Chair: Sir, public hearings are completed on this bill. We are now in committee clause-by-clause. Kindly take your seat and allow the committee to continue its business.
Interruption.
The Chair: Sir, you're able to comment at any time, but you are not able to do it in this particular forum at this time. This is the committee members.
Interruption.
The Chair: Kindly take your seat. Take your seat, please. We must continue.
Interruption.
The Chair: Sir, we cannot continue if you disrupt this meeting. Would you please take your seat or I shall be forced to call a recess.
Interruption.
The Chair: Sir, we must continue. You are not in order. This is a committee meeting for members of the Legislature, of which you are not, sir.
Colleagues, I put the question again: Are there any comments, amendments or --
Interruption.
The Chair: Sir, I ask you to take your seat and do not continue to disrupt this committee.
Colleagues, I put the question again to committee members: Are there any questions, comments or amendments to the bill, and if so, to which sections?
Mr Christopherson: Chair, if you're not going to allow him a chance, which these rules don't, then you've got to be a little clearer in telling him that under these rules he doesn't get any say and neither does anybody else from the public, and after 5 o'clock tomorrow we don't get any say. You ought to be very, very clear and tell the member of the public and anybody else who asks, "When do I get to comment on the new amendments?" that they don't, that Mike Harris and Elizabeth Witmer have said, "Your opinion doesn't matter." They've listened to all those they're going to and it's over. Whether these are good amendments or bad amendments, nobody else in Ontario gets another say and elected members of the opposition don't get a say after 5 o'clock tomorrow. Tell him the truth.
The Chair: I have no questions, comments or amendments to the bill on the floor. Shall section 1 carry, then? Shall I put the question?
Mr Christopherson: Section 1?
The Chair: Section 1. All right, colleagues, I put the question: Shall section 1 --
Mr Christopherson: No, Chair, I want to speak to it.
The Chair: Sorry, Mr Christopherson. Comments to section 1.
Mr Christopherson: Section 1, interestingly, is all of schedule A, approving all of schedule A, yet a vast number of the amendments are to eliminate schedule A and a vast number of other amendments are to change parts of schedule A. I find it strange that the first thing we're doing is to pass section 1, which is to give effect to schedule A.
I know you're ruled on the whole thing overall, but I am asking you, Chair, specifically on section 1 how it is that we would be in a position of voting on section 1 which legalizes, if you will, schedule A, yet the government's about to massively change schedule A? How is that? We're voting on a schedule that's about to change dramatically. I would suggest to you, Chair, with respect, that this vote can only happen after the amendments to schedule A have been passed or turned down so that we know exactly what schedule A is.
The Chair: Is there further comment or discussion on this?
Mr Maves: It's an enacting clause. In several bills we've had public hearings on, this is a similar process. It allows us to enact schedule A of the bill in its final form, which will obviously occur at the end of this process. This is the correct spot for the enactment of schedule A to be in the bill, the preliminary part. It's no different from any other bills in the procedures, the order of doing things in other bills.
Mr Christopherson: I'm not wholly convinced of that, but could I ask the parliamentary assistant to explain to me the difference between current schedule A and what it's going to look like in its final amended version? Obviously, he must be comfortable enough knowing what the new one's going to look like that he's ready to vote on it. Maybe he can help me.
Mr Maves: This allows the enactment of schedule A, once we have a schedule A. It's appropriate to be in this position.
Mr Christopherson: But my question, since section 1 is to approve schedule A, is that I'm asking the parliamentary assistant to explain to me -- because that's part of what clause-by-clause is. It's an opportunity for us as members of the committee to ask the government representatives what certain things mean and then determine whether we think they should be supported. With that in mind, my question is, what is the detailed explanation of what the difference is between schedule A as it now stands and schedule A as it will be by the time your amendments are concluded?
Mr Maves: That gets us into debate about all the amendments of the schedule, and those are inappropriate to have --
Mr Christopherson: But we're voting on the whole schedule. Chair, I think it's --
Mr Maves: It's an enactment clause.
Mr Christopherson: It says, "The Public Sector Dispute Resolution Act, 1997, as set out in schedule A, is hereby enacted." Not schedule B, not other clauses prior to schedule A, but schedule A. You've said, by the sound of it, Chair, that you're going to allow this vote even before we amend it. I'm asking at the very least for an explanation from the parliamentary assistant of the difference between the existing schedule A, as was printed in Bill 136 that we approved at second reading, and what schedule A will look like and mean in detail by the time his amendments are concluded. How could that not be in order?
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Mr Maves: If it pleases Mr Christopherson, I'm willing to stand down sections 1 and 2 until after we've gotten through schedules A and B. That's fine with me.
Mr Christopherson: Good. That's what I asked for.
Mr Maves: I don't know if my colleagues have any comment on that or feel the same way, but it's fine with me.
The Chair: All right. In order to move to another part of the bill, to change the order of the way we deal with a particular part of the bill, unanimous consent is required, colleagues. Do we have unanimous consent? We have unanimous consent.
Sorry. Did you refer to sections 1 and/or 2 or just 1?
Mr Maves: Mr Christopherson had said sections 1 and 2, which is the enactment. Section 1 is the enacting clause for schedule A and section 2 is the enacting clause for schedule B. I'm assuming his logic for schedule A carries over to schedule B; in fact, I think he said that in his opening comments.
The Chair: I thought you had. I just was doublechecking.
Mr Maves: I'd just ask the clerk if this poses any problems at any point in time with regard to procedure.
The Chair: I'm informed that it does not.
Mr Maves: I didn't think so.
Mr Christopherson: With your time allocation motion everything gets rammed through at 5 o'clock tomorrow afternoon. Let's not kid each other.
The Chair: Moving on to section 3, we have an NDP motion, but unfortunately I must rule this particular amendment out of order. It violates the standing orders with regard to a financial matter that shall be proposed only by a minister of the crown.
Mr Christopherson: Chair, since it's our amendment, the purpose of this is to restore the wage protection plan that this government is eliminating. It's not an expenditure of any new money. It's maintaining an existing program. If you look at the motion, it says, "I move that subsections 3(3), (4), (5), (6) and (7) of the bill be struck out and the following be substituted." This merely puts back in place what's already there. I'm not seeking any new money, but I am trying to amend and ameliorate the fact that the government is gutting and eliminating the only protection that workers who face bankruptcies, who are owed back wages, have. How can it possibly be out of order?
The Chair: I can only say to you that I looked closely at this and at the standing orders and I am of the opinion that this particular amendment is out of order.
Mr Patten: I'd like to underline the fact that I think it says in the standing orders "any new financial commitments" or additional financial commitments. I don't believe this does that. This is essentially maintaining --
Mr Tom Froese (St Catharines-Brock): On a point of order, Madam Chair: I think you ruled on this. If they're challenging the Chair, they must state that they're challenging the Chair's decision instead of debating the issue.
The Chair: You're quite right. I refer my colleagues to section 56 of the standing orders for the reasons for the ruling.
Any further comments or discussion on section 3? Then I'll put the question. Shall section 3 carry? All those in favour? Opposed? Section 3 carries.
On section 4, we have a government amendment, on page 5.
Mr Maves: I move that subsections 4(1), (2) and (3) of the bill be struck out and the following substituted:
"(3) Subsections 13.1(3) and (4) of the act, as enacted by the Statutes of Ontario, 1993, chapter 4, section 8, are repealed and the following substituted:
"Same
"(3) Clause 14(2)(a), subsections 14.1(1) to (6) and 14.2(1) and (2) apply, with necessary modifications, to the negotiation or preparation of a new plan."
The Chair: Do you wish to speak to this?
Mr Maves: Chair, I ask Ministry of Labour counsel to speak directly to this, initially.
The Chair: Please introduce yourself for the Hansard record.
Mr John Hill: I'm John Hill. I'm a lawyer with the Ministry of Labour, legal services branch. The difference between the text of the Pay Equity Act, as it would be enacted if this motion is passed, and the version that appeared in the first reading version of Bill 136 is this: On a sale of a business, the purchaser of the business under the Pay Equity Act can make a new plan. Under the current law and under the law as it would have been made by the original version of Bill 136, the purchaser is still bound by the seller's gender-neutral comparison system. It was considered that this was inappropriate, so the change made by this motion, which is to make clause 14(2)(a) of the act applicable, which it wouldn't have been under the original Bill 136 version -- the effect of that is to relieve the purchaser from the obligation to continue using the seller's gender-neutral comparison system.
Mr Christopherson: To the parliamentary assistant, does this have the effect of relieving employees from the burden of carrying the pay equity increase in their wages that they'd received prior to the merger or amalgamation, or could it at least lead to that?
Mr Maves: This allows the purchaser to have a new plan which is relevant to the new entity.
Mr Christopherson: My question is, though, that the reality for some women, as I understand this amendment -- and God knows I could be wrong. I mean, I may have wasted that whole three or four hours I've had to legally analyse every one of the amendments. My understanding is that without this amendment you're putting in, if there was a pay equity plan in place and a woman had received an increase that she was entitled to, any merger or sale or amalgamation could not, by law, result in her having that money taken away. My further understanding is that your amendment would allow that to happen. Is that true, yes or no?
Mr Hill: Under the original Bill 136 amendment in this area the purchaser would have been relieved from the requirement that's currently in the Pay Equity Act to abide by any adjustments in the seller's pay equity plan. The amendment made to the act by Bill 136 in its original version would have relieved the purchaser from that obligation. This motion doesn't change anything in that respect.
Mr Christopherson: So you're saying these amendments don't necessarily cause that, but when Bill 136 is passed into law, amended or otherwise as a result of amendment 5, it's my understanding that a woman who has received pay equity increases, which means she's among the lowest-paid workers in this province or she wouldn't have got any increase anyway -- if she were receiving pay-equity-adjusted wages, under the existing law that was protected and no one could lower that, and the effect of Bill 136 as amended here today is that her wages could be lowered. Is that correct? Yes or no.
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Mr Hill: The effect of the amendment is to deal with adjustments that were called for in the seller's plan. It doesn't deal directly with the question of whether or not adjustments, once made, could at some later date be rolled back. The amendment simply doesn't deal with that issue.
Mr Christopherson: I don't mean to be difficult. I realize you're doing the best you can, which is why it would be helpful if the parliamentary assistant would answer me in everyday language, as opposed to the need -- and I respect the position you're in. I truly do. That's why I don't want to turn the heat up on you per se. Maybe the parliamentary assistant would answer in the same kind of language I'm using.
I'll try again. It's my understanding that as result of Bill 136, pay equity increases that otherwise would have been protected by law will now be vulnerable to having those increases, and therefore their wages, cut. Bart, is that true or not? An explanation, please.
Mr Maves: Yes, in a sense that's true, because the purchaser has to make a new plan which is relevant to the new entity. If there is a different comparator that's able to be used where there is a lower wage, it can be moved to that lower comparator.
Mr Christopherson: I want to be very clear on the ground we're on here: If you didn't move this section as amended in Bill 136, under the existing law could that vulnerable, low-wage earner have any of their pay equity adjustments taken away from them?
Mr Maves: No. My understanding is that it could not.
Mr Christopherson: So the current law protects low-paid women who have received a pay equity increase, bearing in mind that we're talking about people who earn -- well, the Red Cross folks the other day: $9.15 an hour. That's less than $18,000 a year. We're talking about very low-income women. They would have their pay equity adjustments protected under the current law, and you are now, by virtue of this amended section in Bill 136, going to make it possible for an employer, after a sale, merger or amalgamation, to lower their wages, wages that were otherwise protected before you brought in Bill 136. Is that accurate?
Mr Maves: Yes, it is. Mr Hill, if you would.
Mr Hill: You have to distinguish between the current wages and a set of future adjustments that employees are entitled to. What the amendment as done in Bill 136 would do, and the motion doesn't change that, is to free the purchaser to make a new plan which may result in a different set of adjustments, perhaps lower adjustments. Under the current law, even if the purchaser makes a new pay equity plan, it would be bound by whatever adjustments were called for in the seller's plan. It's that obligation that the amendment in Bill 136 would relieve the purchaser of, and the motion doesn't change that.
Mr Christopherson: To the parliamentary assistant: Can you tell those women who are affected how that represents any kind of fairness in labour legislation?
Mr Maves: I'd simply say that it reflects the new reality of that workplace. A pay equity adjustment, if there is a more accurate comparator in the new workplace, can be adjusted, up or down, I believe.
Mr Christopherson: Oh, give me a break: up. You've got a minister who -- and you mouth the same words. You talk about "fair" and "balanced." We've alleged and made accusation that this government has, in disproportionate ways, hurt women. I'm now pointing out to you another scenario where low-paid women's wages are protected currently. All our fights with you haven't been about anything new; they've been about maintaining and preserving rights that people already have, rights that can only be taken away by you changing the law. That's what you're doing. I want to know how you can square all the words that you and the minister run around this province saying, about being fair to people, with opening up the wage package of women who earn less than $18,000 a year. How the hell is that fair to them?
Mr Maves: The amendment doesn't relieve the obligation for pay equity of a successor employer; there's still that obligation there. It just allows them to have a pay equity plan in place which is more appropriate to the new entity.
Mr Christopherson: Listen. I asked you point-blank, could this lead to a woman receiving lower wages as a result of having her pay equity adjustment taken away, and you said yes. So which is it? It's either a technicality that doesn't matter -- I hear what you're saying legalistically, and all that is fine and wonderful. I care and my caucus cares about what happens to women who finally got some small piece of justice through a pay equity increase that's protected under law in the existing legislation, and you feel it's okay to take that protection away. I want to know how you square doing that to low-paid women workers and still go around saying you've got fair and balanced labour legislation and that you care so much about working people.
Mr Maves: My answer really doesn't change at all. There will be a new entity, and the pay equity plan of that new entity should reflect the new conditions within that new entity. The employer is still obligated under the Pay Equity Act, but this allows the plan to now reflect more closely conditions in the new entity.
Mr Christopherson: You still insist on debating this with me at one level. I'm asking you to get down where the people are in the real world. What do you say to women who could now, as a result of your law, be subject to having their pay equity increase gone, when they're already earning wages that are probably a quarter of ours -- that that is somehow fair legislation for them? What do you say to those women workers, many of whom, by the way, are supporting families on that wage?
Mr Maves: As I said, there's a new entity being created --
Mr Christopherson: Stop talking like that. Talk to me straight up.
Mr Maves: There are new categories of employees within the new entity. They still have the pay equity obligations to the women in that unit, in the new entity. They still have those obligations, but the obligations might change, up or down, in the new entity. It depends on what's appropriate and what the new comparables might be in the new entity.
Mr Christopherson: I'll end now, because obviously I'm not getting anywhere. You can appreciate -- you don't necessarily have to answer this -- how a woman would feel if, after her wages have been cut as a result of you taking away her legislatively protected rights, she were to read the Hansard answer you gave and then watch the parliamentary channel and listen to Minister Witmer stand up and say: "We want to be fair to everybody. We care about working people. We want to make sure that everybody gets a fair deal in our legislation."
You can appreciate how they would be sick to their stomach to listen to one thing happening in the House, and then look at their own reality, when in large part we're talking about the working poor. At the same time, you're giving hundreds of thousands of after-tax dollars back to your rich friends. You can appreciate how that fits and how that sits with people who are going to be affected by your legislation. This is disgraceful, disgusting. I don't know how the hell you guys sleep at night.
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The Chair: Mr Patten, did you wish to comment on this amendment?
Mr Patten: I don't see the amendment doing anything to enhance what was there. I will still vote against the section, especially in light of the court ruling. Anybody can appreciate that if you have a new entity you need a new plan, but it does nothing to address the issue of whether there is social justice for pay equity; in fact, it takes away. I gather the retroactivity is somewhat mitigated under one part of this, which is one small improvement, but it still does not address the issue of pay equity. I imagine it will probably still be vulnerable to the court ruling, so we may see this come around again as being challenged. Those are my comments.
Ms Martel: On the same point, I want to ask this question of the parliamentary assistant. I am assuming that if the ministry is taking the time to bring forward an amendment on this section, out of the many amendments they're bringing forward which basically gut two other schedules in this bill, the ministry must have some idea how this is going to work in workplaces where mergers and amalgamations are taking place.
I would like to ask the parliamentary assistant, can you tell me in how many and which workplaces women can expect that the obligation of the employer is going to increase and they are somehow going to see an increase in their pay equity? How many workplaces and which ones?
Mr Maves: I don't have an estimate on that and I don't think staff does, either. I'll ask Mr Hill if he can respond to that, but I don't think they do.
Mr Hill: No, I would have no idea.
Ms Martel: I suspect that's because there aren't any workplaces where you're going to see women's wages increase after this happens. That's what we're dealing with. You may have a technical amendment which says, "We're going to allow the employer now to post a new pay equity plan." The reality for women working in those workplaces is that they will not get from that any more pay equity or an increase. The whole purpose of this bill, from the obligations you're placing on arbitrators, is to drive down wages. Everyone recognizes that. That's why this is part of the bill, that arbitrators have to take into account the ability of the employer to pay.
Now, by the change you're making in this section, you're going to let that employer cry poor and, in posting a new plan, they'll see even less, if any at all, pay equity increase actually being provided. Isn't that what's really going on here? Isn't that what this amendment is all about?
Mr Maves: I don't think it's about crying poor. I think it depends on the comparable. It is possible, for instance, in the case of municipalities, that if some smaller municipalities are merging with larger ones, it might end up that the comparable is indeed higher. We haven't conducted any studies on that other than -- I believe the Jean Read study said most of pay equity within the broader public sector had reached compliance. There may be new comparables in these new units. It could be higher and the possibility is there that it could be lower. It depends on the comparable, though, not a municipality crying poor.
Ms Martel: It also depends on the ability of the employer to pay. The government has made sure that becomes part of the test that arbitrators have to apply for some of these broader public sector workers. If you're talking about mergings of nursing home assistants, for example, or, if any happen, amalgamations of child care centres, you're going to be comparing the poor to the poor and no one is going to be better off under this scenario.
Our argument is that what you have set up here is a mechanism for any number of women, perhaps thousands and thousands of women, after a merger to see no pay equity increase at all that they would have seen were it not for the changes you're trying to make. That's what's happening here.
Mr Maves: Pay equity is unaffected by the ability-to-pay criterion in the bill.
Ms Martel: If you've got a new employer that's a municipality?
Mr Maves: Pay equity provisions are unaffected by those provisions. That's my understanding.
Ms Martel: If you have municipal employees who are affected by a merger?
Mr Hill: The pay equity obligation is not subject to an ability to pay. If you're suggesting that as a result of wage increases that are awarded, and to the extent that the ability-to-pay criterion would result in a lower wage increase to, say, male-dominated job groups than would otherwise have been the case, that may affect what the pay equity job rate for the female-dominated classes is. But the pay equity obligation is not itself subject to an ability-to-pay restriction.
Ms Martel: Why is the government moving forward on changes to pay equity, given the court ruling, which clearly stated that this government violated the Charter of Rights when it came to women, especially poor women? The court ruling was very clear with respect to pay equity. Why would the government now be making any further changes without having provided the assembly or the public with some of kind of ruling in response to the court challenge?
Mr Maves: This pay equity clause speaks to the principle of the bill, which is to facilitate collective bargaining following restructuring in the public sector. This is a pay equity component that might come into place upon the restructuring of the public sector, and that's why it's in the bill.
Ms Martel: But some of your current changes on pay equity have already been shown to be violating the charter. What makes you think that if this section is appealed you won't find yourself in the same boat?
Mr Maves: I'm not really a lawyer and I can't give the legal opinion on that. I don't have the legal opinion of the lawyers on that. Mr Hill might be able to speak to that.
Mr Hill: It is a difficult question to answer, to say exactly how far the implications of Mr Justice O'Leary's ruling extend. Certainly if one reads the decision in a certain way and assumes it's correct, there are provisions in the amendments that would have been made by the first reading version of Bill 136 that are vulnerable as a result of that ruling.
The particular provision we're talking about here, which is in subsection 4(3) of the bill, is one that in my view is not vulnerable to challenge. I say that because pay equity job rates are not determined on the basis of science; it's an art. There isn't anything that says a pay equity job plan that uses a certain methodology couldn't arrive at one particular pay equity job rate, and a different plan, using another equally legitimate methodology, might arrive at a different pay equity job rate.
I don't think there is anything magic about any particular rate, and I don't think that a provision that allows an employer who is purchasing a business to use a different plan, with different methodology, which ends up indicating a different pay equity job rate is necessarily in violation of the charter, even under a fairly broad interpretation of Mr Justice O'Leary's ruling.
Obviously, there may be further cases on this. I don't think anybody can say at this point how far it goes, but I certainly think this provision is defensible in charter terms. I'm not speaking to policy -- that's not my job -- but in terms of the Charter of Rights, I think this is defensible.
Mr Hoy: Earlier this afternoon, as we were discussing the amendments, we put forth the argument that government amendments were making substantial change to Bill 136, that the complete package of amendments was changing the bill drastically and that a new bill would be required. In your ruling that allowed the amendments to be in order, Chair, you said you would not look at the amendments as a total package and that you would rule on them individually. As our contention is that government motions substantially change Bill 136, since this is the first one we have arrived at today, I ask you to rule whether this motion substantially changes Bill 136.
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The Chair: I am of the opinion this is in order. The pay equity amendments were in the bill as first proposed, and I believe it is in order.
Mr Christopherson: First, further comments to pick up on where my colleague from Sudbury East left off, and then I have a very specific question.
I have a copy of the presentation made to this committee -- of course not directly relating to this amendment, because they hadn't see it when they came in -- from the Equal Pay Coalition. Mary Cornish was the main speaker. In appendix A of their presentation they outlined very clearly what the courts said. I think it's important that it be part of the record.
"The court ruled that the Tories' schedule J in the Savings and Restructuring Act, 1996" -- that's Bill 26, by the way, the omnibus bully bill -- "'discriminates against proxy sector women by denying them the opportunity of quantifying and correcting the systemic gender-based wage inequity from which they suffer, a benefit the act grants to other women working in the broader public sector.' The judge further went on to say, 'I declare that schedule J of the Savings and Restructuring Act, 1996, amending the Pay Equity Act, is unconstitutional and of no force and effect.'"
I noted that the lawyer for the ministry believes that this is defensible. Having been the Solicitor General, I learned how to do my own interpretation of certain code words lawyers use. "Defensible" is an honourable and accurate word, but it does not give any meaning to the weight of how effective it might be. It merely means you can mount an argument, that you aren't standing there stuttering with nothing to say.
The government's been there before. The submission of the Pay Equity Coalition goes on to say, "The court found that the government argument that the proxy method was a flawed tool to identify gender-based wage inequity was false. Instead, the court accepted the evidence of the union's renowned expert witness in pay equity, Dr Pat Armstrong, and found that 'the proxy method was and is an appropriate pay equity tool, in keeping with the intent of the Pay Equity Act, to relieve women, including those working in female-segregated workplaces in the broader public sector, from systemic gender-based wage discrimination.'"
Yes, your defence of Bill 26 was there, it was defensible, but the court ruled that defence was flawed. With great respect, just because a lawyer says, "Yes, this is defensible," it does not mean you've got the best case, the winning case or even a good case. It merely means you have a case. The last time you had that, the court said your case was false.
The report goes on to say: "The court held that the Tories passed schedule J 'essentially for fiscal reasons,' as it was a program with substantially expanding costs. However, the court concluded that the government's reasons for enacting schedule J did not warrant overriding a constitutionally protected right of women in the public sector to equality under section 15 of the charter."
I realize that the issue of the detail is not directly applicable, but I think to say that the government has a defensible argument does not mean anything beyond that they could go into a court of law and give a defence. I think it's very germane to the point that the last time the government walked in and mounted an exercise in attacking a woman's constitutional rights under the pay equity legislation, the court shot it down in flames.
In that context, to have the parliamentary assistant, on behalf of the government, admit, "Yes, under the changes we've made, women are losing some constitutional protection, and yes, there are some women who may have their wages go down" -- he admitted that their wages may be decreased. I'm taking from that to mean that there may indeed be another constitutional challenge, and that women once again have to use scarce money to fight their own government to protect their constitutional rights under the charter. And it's within a couple of months of when it happened the last time.
My specific question to the parliamentary assistant is to help me determine how this amendment affects the original section in Bill 136. What exactly is the law now? What would Bill 136 have done as it was originally printed and passed at second reading? What is the implication of the amendment before us? There are three different things to explain. I'd appreciate hearing the difference between the three.
Mr Maves: The amendment --
Mr Christopherson: No, start with what the current law is, please.
Mr Froese: He can start with whatever he wants.
Mr Christopherson: No, he wanted to talk about the amendment. I want to know what the law is now, what was in the original Bill 136, and then how this changes that.
Mr Hill: The law as it now stands, on the sale of a business, allows the purchaser to make a new pay equity plan. But when the purchaser does that, it is still bound by any adjustments called for in the seller's plan, if those were higher than what would be indicated by the purchaser's new plan.
Mr Christopherson: Can I hold you right there, just to get a further clarification? You're saying that as the law stands now, the buyer has an obligation to take with them the pay equity increases that were outlined in the seller's plan. If I can use an analogy, it's just like in the private sector -- OPSEU doesn't have that right any more, thanks to Bill 7 -- if there's a business sale, the buyer takes the collective agreement with them. Whether that makes them competitive or not is not the issue. They have to factor in that the existing collective agreement, with all the wages and benefits spelled out, goes with the purchase.
If I understand you correctly, under the law as it now stands, that pay equity plan goes with the business or the service, and the buyer, knowing that ahead of time, has to honour the pay equity increases contained therein. Am I accurate?
Mr Hill: That's right.
Mr Christopherson: That's correct? Thank you. Please continue.
The Chair: Any further discussion?
Mr Christopherson: Whoa. That's only the first part. I've got three parts here.
The Chair: Excuse me; sorry.
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Mr Hill: What is now in Bill 136 changes the law by saying that in that situation, in a sale situation where the purchaser takes over and makes a new plan, it will no longer be required to abide by the seller's adjustments where they were higher. It can do whatever adjustments were indicated by the purchaser's new plan instead.
Mr Christopherson: Which, as a result of earlier questions, means that some women could conceivably receive a decrease as a result of a sale or a merger.
Mr Hill: You have to distinguish between current wages and adjustments that are indicated by a pay equity plan. Whether or not wages can be lowered is a very debatable issue within pay equity law. There is a school of thought, which I think has a lot of credibility, which suggests that wages can't be lowered. But the act is not specific in that; it never has been.
With respect to adjustments, how current wages are going to be adjusted in the future in order to achieve pay equity, as a result of the amendment which relieves the purchaser of having to abide by the adjustments indicated in the seller's plan it may be the case that when the purchaser does a plan, since they no longer have to abide by the seller's adjustments, the increases the employee would get would be smaller than they otherwise would be, or perhaps -- I don't know, but perhaps -- there would be no increases at all. But that's different from saying wages would be lowered.
Mr Christopherson: What you're suggesting to me -- and if I slip into the political arena, I mean it for the parliamentary assistant, not you. What I'm hearing you say to women is: "The good news is that at best you might be forfeiting future raises that you otherwise would have gotten, but hey, there's a chance you might be able to keep some of the pennies you've gotten already."
Mr Hill: I find it difficult to answer your question expressed in those terms.
Mr Christopherson: That's fine. That's why I suggested it may have to be the parliamentary assistant. But you're clearly saying that increases they would have been entitled to under the seller's posted plan were constitutionally protected and they were guaranteed to get those increases.
Mr Hill: "Constitutionally protected" is, in my view, a very debatable --
Mr Christopherson: Legally protected, then, protected by law, and now they're going to lose that. You're saying that very easily, a new plan by the buyer could have no or lower increases than the seller had, and it's still a possibility that yes indeed, their wages may go down. You're not prepared to offer up a legal opinion that says they can't.
Mr Hill: That's right. Whether wages could actually go down is not an issue that's addressed by this amendment either in its current form or in the motion. That's simply something that the Pay Equity Act does not explicitly address.
Mr Christopherson: The only thing I lost was the distinction between what this amendment number 5 does specifically.
Mr Hill: The third part, which I was coming to. The change that's made by the motion, if you look at it, would add clause 14(2)(a) of the Pay Equity Act. Basically, what that clause does is to allow a change in the gender-neutral comparison system that is the basis for the pay equity comparisons to be negotiated.
Under the current legislation, the purchaser, although free to make a new plan, is bound by whatever gender-neutral comparison system was being used by the seller in its plan. The motion would allow the purchaser to adopt a different gender-neutral comparison system in making a new plan.
Mr Christopherson: Just as an aside to help me understand, were you here when Red Cross presented on Friday?
Mr Hill: No, I was not.
Mr Christopherson: Are you aware of their presentation? Have you had a chance to read it at all?
Mr Hill: I don't know enough about it to comment on their presentation.
Mr Christopherson: Can anybody here comment on that presentation? Parliamentary Assistant, you took as keen an interest as I did in their presentation. Can you tell me how all of this will affect their problem?
Mr Maves: My understanding is that it doesn't affect the Red Cross situation.
Mr Christopherson: But does it help them?
Mr Maves: I don't think it affects it one way or the other.
Mr Christopherson: Of course, you didn't have time, because that was Friday and today's Monday, so there may not have been time to listen to what they said. You remember what they said, don't you?
Mr Maves: Yes. As you stated at the time, their situation is a very difficult one to follow, and the Pay Equity Act itself is a very -- if you're not an expert on the act, it's tough to talk about a section and so on and so forth. Their situation is a complex one, and my understanding is that this does not affect their situation one way or the other.
Mr Christopherson: So really Red Cross might as well not have bothered making a presentation because you haven't done anything about what they said anyway. They came in and expressed serious concern and you're not offering anything to them at all.
Mr Maves: I don't see an amendment from either the Liberal Party or the NDP either. I think part of the difficulty is in understanding their situation and probably finding out the best way to deal with their situation.
Mr Christopherson: But that is why they came in. You've been telling us all week: "Yes, we're listening. We care what people have to say." Red Cross rolled in here, talked about a major concern they had affecting the pay equity stuff, and now you're telling me that your amendment to the pay equity portion of Bill 136 does nothing to solve their problem. It doesn't address it in any way, shape or form, and we're supposed to be happy because it doesn't make their problem worse.
Mr Maves: It's my understanding that --
Mr Christopherson: Why did they bother coming?
Mr Maves: You might ask them that. They felt they had to do that.
Mr Christopherson: I might ask them that?
Mr Maves: They felt they had something to add and they thought perhaps their situation could be addressed by coming to the public hearings and putting forward what they put forward.
Ms Martel: They sure were wrong, weren't they?
Mr Maves: At this point in time we weren't willing to accept that amendment. I think the Ministry of Health is aware of the Canadian Red Cross difficulties and they may decide to do something; I don't know. But at this point in time, this amendment doesn't affect the Canadian Red Cross.
Mr Christopherson: Two things on this one and I'll move back to the main issue: Let me tell you, first of all, I was clear on one thing they said, that they needed legislative relief of some sort. I don't know whether I necessarily agree with what they were suggesting, because it was so complex. But given the fact none of us have had any time to deal with anything, let alone the micro but important issue of Canadian Red Cross, I'm not surprised that none of is 100% sure and I'm not surprised that you haven't done anything about it in your legislation. But I can tell you that they're going to be very disappointed when they read the Hansard and realize that they might as well not have bothered coming in on Friday.
Mr Maves: My understanding of their proposed amendment was to relieve long-term-care employers of pay equity obligations, to that effect, in the homemaker part of long-term care.
Mr Christopherson: No. Let's be clear. We can debate this till the cows come home, but I remember very clearly saying at the end, because we only had a few minutes with them, that this stuff was really complex and I don't pretend to be an expert on pay equity legislation, but I wanted to hear from them as a humanitarian organization that their goal was not to see anybody who's had a pay equity increase adjusted downward, but that they wanted some relief so that their competitors, now that you're putting more and more of this stuff out into the competitive arena, would have to meet the same minimum wages as they do.
They answered very clearly, yes, they weren't looking to take away any money. They wanted to make sure they remained competitive. Their goal was to make sure that those who might compete with contracts they're bidding on are at the same level as they are. As a humanitarian organization, they were very clear, in my opinion, that it was their preference that other women's wages be brought up, not that their employees' be brought down. Let's remember we're talking about people who earn $9.15 an hour.
Mr Maves: I've just spoken with Mr Hill, but I have the Canadian Red Cross brief. Their proposed wording regarding Bill 136, within the section dealing with the Pay Equity Act, for homemakers' services, says:
"(1.2) An individual who, on or after the effective date, provides homemaker services as defined in section 2 of the Long-Term Care Act is not an employee for the purposes of this act."
The effect of that, in my understanding, is that it would relieve those employers of the pay equity obligation. That was not considered or brought forward by the government as a way to deal with their problem. I think the Ministry of Health will continue to talk to them about methodology to deal with their problem in a more appropriate manner.
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Mr Christopherson: So you're taking responsibility for fixing their problem and you're suggesting that they stated in their brief that they were prepared to see wages go down. That may be, because I don't have the Hansard in front of me, but I remember very clearly that at the end, when I asked them point-blank, "Is that what you're trying to do, or is it your preference that everybody else be raised to the same level?" they answered yes. I stand to be corrected, but that certainly is my recollection.
Mr Patten: My recollection is that the Canadian Red Cross voluntarily took it upon themselves to establish a pay equity program when they were not obligated. Once they had negotiations with the legal department for the Pay Equity Commission or whatever, they then were bound by this.
However, they were saying they are no longer competitive and they have a funding problem, living up to what they have made a commitment to, and they can't get out of their commitment. So they said, "If we're going to be in a competitive position, then across the board should also be bound by the same pay equity provisions." That's my understanding.
Mr Christopherson: The discrepancy was because there were different formulas being applied and they were legislatively locked into certain formulas and certain results -- again, very complex, but certainly a very legitimate issue and one that I'm very disappointed this government didn't see fit to try and do something about. But you have taken ownership of it by saying that the Ministry of Health is looking at it, and I'm sure that the Red Cross, when they get a copy of these Hansards, which I can assure you they will, will be pleased to see that the government has embraced this issue and will work to finding a solution that doesn't attack any women's rights, particularly as they pertain to pay equity increases they may have received.
Before I leave this, I want to come back again to the final piece. I'm still not clear on what this last one does to the original amendment, if you can help me.
Mr Hill: It might help to look at the motion. If you compare it with the wording of what is in the bill, you will see that what is new about the motion is that it adds a reference to clause 14(2)(a) of the Pay Equity Act.
Mr Christopherson: Which is?
Mr Hill: The addition of that clause enables the purchaser of a business to use a different gender-neutral comparison system than the seller used when it prepared its pay equity plan.
Mr Christopherson: How did that differentiate from 136 originally and existing legislation?
Mr Hill: Under 136 there hadn't been anything that addressed the gender-neutral comparison system, and the provisions of the existing Pay Equity Act that were incorporated by reference into the amendment made by Bill 136 did not include this clause 14(2)(a), and that's the clause that would enable the purchaser to use a different gender-neutral comparison system.
Mr Christopherson: So you're just sharpening the knife with the amendment. I say that to the parliamentary assistant. You had a knife to go after pay equity increases, and the amendment just sharpens it to make sure you can go after it.
You personally, Parliamentary Assistant, are comfortable defending a clause in your law that takes away lawfully protected wages of low-income women. Is that correct?
Mr Maves: I'm supporting the amendment and the change that Bill 136 brings forward in allowing a new entity to develop a new pay equity plan, which may --
Mr Christopherson: Even if it leads to someone's pay being cut?
Mr Maves: If there is a comparable which is a more appropriate comparable for that workplace, there is still the pay equity obligation there, but it's a more appropriate comparable to be used in the new workplace.
Mr Christopherson: Do you think it's fairer? That's a word you guys like so much. Do you think what you're doing is fairer than what is already there?
Mr Maves: If the Pay Equity Act is a fair act and it allows comparables, then this is no different.
Mr Christopherson: Is it fairer to a woman whose wages might go down? Do you think it would be seen to be fairer to them, when before you rammed through 136 they had lawful protection?
Mr Maves: I think it is appropriate in a case of a new entity, if there is a new, more accurate comparable for the purposes of the Pay Equity Act, that it be used.
Mr Christopherson: So if somebody is earning $16,000, $17,000 or $18,000 a year and couldn't have that touched under an existing law, but because of your changes now could lose it and have their pay go down, you're okay with that? You think that's fair?
Mr Maves: If under the Pay Equity Act, the comparable is a more accurate comparable --
Mr Christopherson: What do you mean by "accurate"? Accurate what? Just because it's lower?
Ms Martel: If they're going to get less, that's okay?
Mr Christopherson: Don't you understand? This is not just some academic exercise, Bart.
Mr Maves: I guess then we get into debating all the different scenarios of deciding comparables in the Pay Equity Act.
Mr Christopherson: But you guys already tried that kind of phoney argument under your Bill 26 attack on pay equity, and it was found unconstitutional.
The Chair: We have a question from Mr Hardeman.
Mr Hardeman: It's to the ministry legal beagle, I guess. I'm getting somewhat confused about the pay equity and the lack of pay equity or what this amendment will do. I just want to put a case and you can tell me if I'm right, and make sure you tell me if I'm wrong; I wouldn't want to go through this and then find out -- if we're talking about a merger of employers and a merger of pay equity, is it reasonable to assume that both the new employer and the employer where the workers would be coming from have a pay equity plan or both have comparators?
Mr Hill: Yes, that would quite often be the case.
Mr Hardeman: If the new employer presently does not have comparators, does not have a pay equity plan or any employees to compare to, when the employees come over to that new employer who doesn't have comparators, would it be reasonable to assume that the new pay equity plan would have to use similar comparators to what the old plan did because he doesn't have any new comparators to compare to?
Mr Hill: If it's a new entity, it didn't have employees before. If it does a new plan, the comparison will be across the entire establishment. If A and B amalgamate to make C, there will be employees from stream A and there will be employees from stream B coming, and the comparison would go across the entire establishment.
Mr Hardeman: But it's reasonable -- or maybe it's not; maybe it's unreasonable -- to assume that if B presently has a pay equity plan that has interior or in-the-organization comparators, that's who A would be compared to if you put the two together?
Mr Hill: You would have to look at the whole establishment. If A and B are coming together, there's a new establishment consisting of C, all those employees coming together, so the comparison would be --
Mr Hardeman: I'm still confused. If A presently doesn't have a comparator so they have had to use outside comparators to get their pay level and B has no interior comparators, then when A and B become C, is it reasonable to assume that neither one has interior comparators?
Mr Hill: Now I'm getting a little confused. You're saying that A didn't have any employees, that it was just --
Mr Hardeman: To compare to, so they compared outside the organization.
Mr Hill: When you're talking about comparing outside the organization, that's what the proxy provisions of the act do, the provisions that were repealed by schedule J in Bill 26, which repeal Mr Justice O'Leary has found unconstitutional. Are we talking about the proxy?
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Mr Hardeman: I was referring to any form of comparison they've used.
I just want to finish off with -- now that we've got A and B put together and we have the employer creating a new pay equity plan under the present pay equity legislation, is there any reason to assume that all the people who would be covered by that plan would be covered any less fairly than they presently are?
Mr Hill: I've said before -- and I'm not political so I don't want to get into politics -- that I think pay equity is not a science. You can do it with one plan, with one methodology, and it might point to a certain pay equity job rate, in other words, the rate at which pay equity is finally achieved; and somebody else might do a different plan using the same employees but use a different methodology, equally legitimate, and come up with a different pay equity job rate. It's not a science, so you can't say that one is necessarily wrong and the other's necessarily right. There are restrictions on what you can do in pay equity and there are methodologies that are good and bad, but there's no reason why two methodologies, even though they end up with different rates, couldn't both be quite legitimate and quite legal.
Mr Hardeman: Finally, then, if we have A and B put together to have C as the employer, with this amendment to 136, is it reasonable to say that every employee of C is covered by the pay equity legislation as it presently exists? It would be a new plan created but they would all be covered by pay equity.
Mr Hill: That's right.
The Chair: Further discussion?
Mr Christopherson: Yes, I want to go back to A, B, C. I'm fascinated by A, B, C. Any time we can get this government to go back to the ABCs, we're doing real good. There are a number of different scenarios. C would equal the new entity. If entity A has a plan, you said it is possible they could merge with B, who may or may not have a plan, and likewise A could or could not have a plan.
Mr Hill: The provisions of the Pay Equity Act require most employers to make plans.
Mr Christopherson: But we know that they all didn't and the government has relieved them of that responsibility, or tried to. There are some employers that don't meet the requirements of pay equity in terms of having a plan posted and in place, correct?
Mr Hill: That there are employers who may be violating the law?
Mr Christopherson: Right.
Mr Hill: I don't know personally of any, but obviously there could be, yes.
Mr Christopherson: Obviously there were because the government relieved them of their responsibility and their requirement to meet the deadlines. Anyway, for the point of argument, for discussing this, A could or could not have a plan and B could or could not have a plan.
Mr Hill: For the purposes of argument.
Mr Christopherson: We'll do the first one, the most likely as you see it, which would be that both have a plan. You've said that one may have calculated based on one formula, the other calculating on a different formula. Let's just go back a bit. Why would they end up doing different formulas?
Ms Martel: Because one gets them to less money than the other. One allows them to pay less than the other, that's why.
Mr Froese: That's your legislation.
The Chair: Order, please. Mr Hill has the floor.
Mr Hill: I'm not an expert on calculation of pay rates so I can't speak to it on a technical level. I do know, from talking to our policy people in the ministry, that different methodologies may arrive at different rates, that they both may be legitimate; both of them may be quite acceptable under the law.
Mr Christopherson: Is there one that tends to give a higher rate than another?
Mr Hill: I suspect that may be the case, but I don't really know.
Mr Christopherson: Isn't that why proxy was brought in?
Mr Hill: When I'm talking about methodology, I'm talking about how you do your comparisons, what sort of criteria you use, how you evaluate factors like skill, responsibility, effort, that sort of thing. I'm not talking about proxy as opposed to the job-to-job basis of comparison or the proportional value basis of comparison.
Mr Christopherson: But the law provides for the different formulas. With respect, we're talking about an amendment to the Pay Equity Act which could have the possible effect of lowering some workers' wages in this province. Perhaps we should ask, during the dinner break, to have one of the legal people from that department come down who is more qualified in that area.
Mr Hill: My colleague Katherine Hewson, who is a manager in our policy division, has just come in. She may be able to speak to some of these issues more knowledgeably than I can, so I'm going to turn it over to Katherine.
Ms Katherine Hewson: I didn't hear your first question, so perhaps you could just repeat your question.
Mr Christopherson: Okay, we'll start over. The overall question --
Interjections.
The Chair: Colleagues, Mr Christopherson has the floor. He's about to briefly outline his question for our guest.
Mr Christopherson: I am attempting to find out what the implications are for working women who may have received or are entitled to receive pay equity adjustments under existing law, where those rights are protected; what implications Bill 136, as originally passed at second reading and as amended here today, would have on those rights and therefore on those women. That's my ultimate goal in what I'm doing.
Along the way, in response to questions from Mr Hardeman, Mr Hill began to talk about mergers and designating A and B and then you'd end up with C. I wanted to take that discussion a little further because I found it helpful, but I still had some questions. I was trying to use some scenarios and how they would play out under existing legislation, under the existing Bill 136, and then ultimately this amendment, so I can understand fully what it is we are voting on here today, because this is the first chance I've had to look at it.
Company or entity A more than likely has a plan, but I was pointing out that it's not necessarily so because there were a lot of entities that were behind in their postings. I feel more strongly than Mr Hill that one of the two may not have a plan, but we'll deal with that as a second scenario. In the first scenario, entity A has a plan and entity B has a plan. They're different, because they've been calculated differently. The first thing I was trying to determine at the point your name was mentioned was, why would we have two different calculations to start with?
Ms Hewson: You'd have two different calculations for two main reasons. One of the reasons is because in a pay equity plan it's necessary to compare female job classes to male job classes in the organization, so it will depend on which male job classes were used for the comparator to the female job classes. You could in your company A have a female job class of, let's say, secretary that was compared to a driver; I'm just making these up. You could in company B have a secretary job class that was compared to accounting clerks. So the adjustments will be different in both those situations. That's one reason they'll be different. Another reason could be that they may have used different gender-neutral comparison systems, and that is basically the system that allows you to compare value of the job to the salary or wages paid for that job. Those are two main reasons that they may have different comparators, different wage rates for even the same job.
Mr Christopherson: Let's, for the sake of argument --
The Chair: Mr Christopherson, I'm sorry to interrupt but it is 6 o'clock. I think this is an appropriate time to recess. Colleagues, we'll reconvene at 7 o'clock and we can resume the questioning then. I hope you'll return at that time.
Ms Hewson: Certainly.
The Chair: Thank you. We are recessed until 7.
The committee recessed from 1759 to 1904.
The Chair: Colleagues, the standing committee on resources development looking at clause-by-clause consideration of Bill 136 is called to order. We were in the midst of discussing the government amendment moved by Mr Maves on page 5. Mr Christopherson, I believe you had the floor. Did you wish to continue?
Mr Christopherson: Yes, thank you. I believe we were doing our ABCs and we had left off with the scenario where, under entity A, there's an existing pay equity plan in place that, just to pick a figure -- since that's what Red Cross said and it sticks in my mind, say $9.15 an hour. A huge amount of money, eh? Let's say entity B is only making, again to make it simple, $8.15. They have a plan also but clearly it's not as good a one. Then C will be whatever happens after A and B are merged and whatever applicable laws are then applied.
Under the existing, pre-136 legislation, the $9.15 as a pay-equity-adjusted wage is protected and I would think, by extension, so is the plan. The plan would have been protected also?
Ms Hewson: What the act says is that the pay equity adjustment is protected.
Mr Christopherson: Right, and therefore, by extension, the plan also would have been protected. Is that correct, or just the existing wage?
Ms Hewson: I'm not altogether sure that the plan would be protected. I don't know what that would actually mean, but certainly the adjustment is protected.
Mr Christopherson: Okay, so it may or may not include the plan, but definitely the adjustment itself is protected by law.
Ms Hewson: Yes.
Mr Christopherson: Whether it's constitutionally protected would depend on whether there was a challenge and whether it was upheld or not, but under law it's protected.
Ms Hewson: Yes. Under the Pay Equity Act, previous to Bill 136, that adjustment could not be changed.
Mr Christopherson: Under the existing legislation, could that be adjusted upwards for whatever reason?
Ms Hewson: Yes, it could.
Mr Christopherson: But it couldn't be adjusted downwards.
Ms Hewson: That's correct.
Mr Christopherson: Now, under the new law, Bill 136, as amended, it could go up, but it could have gone up under the original law. Obviously that's not -- you don't have to answer this, but that says to me that's not why they're doing this. If it could go up under the existing law, you don't need to change the law to let it increase. However, after Bill 136 becomes the law of the land, that lawful protection of that $9.15 is now in doubt and it is possible it could be reduced.
Ms Hewson: The way the Pay Equity Act worked previous to Bill 136 and the way it will work after Bill 136 is that it provides a process for determining a pay equity adjustment. Upon a sale of a business, and let's say it's a unionized environment, the employer and the bargaining agent must negotiate a pay equity plan that provides for adjustments. When there's a sale of a business, if the plan that existed previously is no longer appropriate, the parties can bargain a new pay equity plan. That provision remains and they will need to find the appropriate comparator in the new organization. Previous to Bill 136, the only thing that could happen would be that the new comparator may raise the pay equity adjustment. Now there is flexibility to find a comparator that is appropriate, and that can be higher, lower, the same.
Mr Christopherson: But under the existing law, before Bill 136, there were no conditions on which that wage could be lowered.
Ms Hewson: That's correct.
Mr Christopherson: And under Bill 136 it could be.
Ms Hewson: That is also correct. If there is a pay equity plan that is negotiated and there is an appropriate --
Mr Christopherson: Negotiated or not, if there's no union there may not be so much negotiation.
Ms Hewson: In a non-unionized environment it is the employer who does it, with the ability of the employees to file objections to the plan.
Mr Christopherson: True, but there's a whole world of difference between the protection provided those who can file objections under the Pay Equity Act and those who have a collective agreement to protect them -- light years of difference. Anyway, you don't have to respond to that.
All I'm getting to is that when we reach C, which is the outcome of the sale or merger or amalgamation, we now have a law that takes away the protection in the existing law for that $9.15 under any condition. I realize there are lots of different scenarios and different things have to happen and different comparators, but the bottom line is, under existing law, when you got to C, the new entity, that $9.15 couldn't go down, and under the Tory law it can. Or am I wrong?
Ms Hewson: It could go down after Bill 136 if these amendments are passed, yes.
Mr Christopherson: Right. Thank you. I'm done.
The Chair: Mr Hardeman.
Mr Hardeman: First of all, I want to get it clear on a plan that's in place. In the unionized environment where both parties have to negotiate, is it right that the negotiated settlement of a pay equity plan is not necessarily pay equity; that in fact after you've gone through the process, the bargaining agent can settle for and both parties can agree to adjustments that are not what came out in pay equity?
I stand to be corrected but it seemed to me that's what happened at home when we were doing pay equity in the home for the aged, that once the differentiation between the job classifications was agreed, the union and management together agreed to how much adjustment each category should get and at what speed that adjustment should be made. So the end result of the package was not necessarily pay equity. Is that true?
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Ms Hewson: It's hard to say what is pay equity if you're looking at an outcome, because the Pay Equity Act provides for processes for agreeing or determining in a pay equity plan an appropriate adjustment to deal with wage discrimination. The way the Pay Equity Act works in a unionized environment is that much is left to the union and the employer to work out together. There are some requirements. For example, the minimum requirement the employer must pay every year is 1% of its previous year's payroll. But subject to some of those requirements, the union and the employer have a fair amount of latitude to agree on; for example, a comparison system that they both agree on to evaluate the job classes. There's a fair amount that's left to them.
Mr Hardeman: The other question, going back again to how one achieves pay equity, of course the principle of pay equity was that there were a lot of female-dominated workplaces that were not paying what they should to the female as compared to the male employees. The main thrust of the bill was to make sure that an employer was not discriminating based on gender, and my understanding was that the female job classes were compared to the first lower-paying male job in that workplace. If that's the approach one uses prior to an amalgamation and you put two workforces together, under the present structure, before we get to Bill 136, if you have to stay with the plan of both workplaces, would you then not have a very inequitable situation where one female employee could be getting paid so much an hour more than another female employee doing exactly the same work?
Ms Hewson: Yes, exactly. You could end up with that very easily. You would have quite inequitable pay structures in your new organization in some cases, because you would carry over the comparisons to jobs that may no longer even exist in the new organization, for example. The female job classes may be paid quite different amounts, depending on the comparators that existed in the pre-existing employer.
Mr Hardeman: Going back to our ABCs, am I right to assume that if C had existed -- first of all, A is the first employer, B is the other employer and C is the amalgamated -- when the plan was being prepared for both workforces, if it had already been amalgamated at the time of pay equity, would the results of that have been a plan similar to one that would come out of this process that we're putting together in Bill 136?
Ms Hewson: I would expect that it would be very similar because the amendments in Bill 136 give an opportunity to use the Pay Equity Act to develop a plan that is appropriate in that structure, with comparators that actually exist in that structure. So I would think it would be very similar to what it would have been if the original pay equity plan had been developed just for C.
Mr Hardeman: From my perspective -- and I think it was questioned earlier about whether we considered what's happening with the amendment to Bill 136 as a fair and equitable way of dealing with pay equity -- it's reasonable to say that had this restructuring taken place the year before the pay equity law had come into place, this is exactly what would have happened. So this is in fact pay equity according to the pay equity law that was put in by the former government.
Ms Hewson: You could certainly say they're in a very similar position, as if pay equity were just being applied to it for the first time.
The Chair: Further questions or comments on this motion? Seeing none then, I shall put the question. To refresh everyone's memory, this is a government motion found on page 5 of our packet. All those in favour of this amendment? Those opposed?
Mr Christopherson: Recorded vote.
The Chair: A bit too late, sorry. It has to be asked before I put it. This amendment carries.
Our next amendment is also a government amendment, page 6.
Mr Maves: I move that subsections 4(5) and (6) of the bill be struck out.
The Chair: Would you like to comment on this, please.
Mr Maves: Yes. These sections limited the retroactivity of the pay equity plan on an employer in the BPS. We're removing that exemption. As of January 1, 1998, although there's compliance pretty much throughout the BPS, if an employer hasn't complied yet, then this says that pay equity is retroactive back to 1988, when the act came into effect.
The Chair: Comments or questions? Seeing none, I put the question. Shall this amendment carry? All those in favour? All those opposed? This amendment carries.
Any comments or questions on section 4? No? I then put the question. Shall this section, as amended, carry? All those in favour? Opposed? The section carries.
Section 5: Any comments or questions on section 5?
Mr Christopherson: Yes. Section 5 states:
"The following are repealed:
"1. Employment Standards Amendment Act (Employee Wage Protection Program), 1991, sections 5 and 17.
"2. Labour Relations and Employment Statute Law Amendment Act, 1995, sections 76 to 79."
This of course is the evil piece of business that eliminates the employee wage protection plan. What I want to know, first of all, from the parliamentary assistant is, in his words, exactly what does this clause in Bill 136 do to the employee wage protection program?
Mr Maves: This eliminates the employee wage protection program. Paragraph 5.2 eliminates changes that were made to that program in Bill 7. If the program is eliminated, obviously the changes to the program that were made in the previous bill are eliminated.
Mr Christopherson: Right. And would you kindly explain for us all what changes were made in that paragraph 2 that's referred to there? That would've been the changes under Bill 7, correct?
Mr Maves: That's correct. Under Bill 7, an employee wage protection plan compensated for up to $5,000 in lost wages, vacation pay, severance and termination pay. Bill 7 said the employee wage protection plan would compensate only for wages and vacation pay up to a maximum of $2,000.
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Mr Christopherson: I believe it also eliminated the right to severance and termination. Did you say that?
Mr Maves: That's what I said, yes.
Mr Christopherson: Did you say that also? Okay, sorry. It limited wages and vacation pay to $2,000 from $5,000 and eliminated severance and termination, correct?
Mr Maves: Correct.
Mr Christopherson: Correct. What was the justification for eliminating severance and termination and reducing wage claims from $5,000 to $2,000?
Mr Maves: The desire now is that we're trying to eliminate the taxpayers compensating for employers who haven't made these payments to their employees. We're trying to get them where we think they rightfully belong, under the Bankruptcy and Insolvency Act. So we reduced initially the government's liabilities in Bill 7 under the EWPP and now we're reducing them further.
Mr Christopherson: We'll come back to the whole issue of how it's funded in a moment, but can I ask you why you did it in two stages? I remember at the time railing just as loudly then as I am now about what's left with regard to any touching of this very minimal protection for working people in the face of bankruptcies and closures and orders of non-payment. Why did you do it in two stages?
I remember alleging at the time that this was what you were planning to do. Oh no, you weren't going to do that. This was just a minor adjustment necessary for fiscal reasons, yadda, yadda, yadda. Here we are, sure enough, Bill 136, and you're killing the rest of it. Why weren't you just up front with people and do it all the first time? Why did you do it in two stages?
Mr Maves: I wasn't the parliamentary assistant at that point in time and I don't know what went into the decision at the time, but I would say the thinking was to reduce the taxpayers' obligation under this program. For whatever reason, they did it partially initially, and now we're doing it completely. The idea was to reduce the obligation at that time, and now we've decided to reduce the obligation, except we still have the obligation to attempt to collect these lost moneys for these employees. We still have that obligation, we still keep that obligation, but not to upfront the money to them.
Mr Christopherson: I can recall your minister being so proud of the fact that even the gutted version, she said, was still better than anything anybody else had. She thought it was wonderful.
Mr Maves: I guess under the previous government there was a very poor record of collections, and some of the changes with regard to privatization of the collection of the debts, we're hoping we'll have a much better record of obtaining moneys owed from bad employers.
Mr Christopherson: We'll come back there in a second too.
I want to ask you, say you or a family member of yours or a constituent or somebody you cared about -- because we're going to start putting some human faces to these things -- were faced with a situation where you had a company that you knew was teetering but they kept coming to you saying: "Don't worry, we're going to make sure you're covered. We wouldn't leave you high and dry. Don't worry, Bart. We wouldn't do that to you. You're a swell guy and you've been a real good, loyal employee," until you showed up at work one day and the doors were either locked or you got the word from on high that it was time to go home because there was no longer a job, there was no longer a business. "Sorry, we really meant to give you that money but we can't."
You're out high and dry for weeks and weeks of pay and vacation entitlement and severance and termination that you're entitled to by law, but your employer is refusing to pay it, and you knew that the NDP had brought in a program that said, "If you're faced with that disaster, you can come to the ministry and we will make sure that you don't go under, we will make sure you're covered, and then as best we can, we will take responsibility for getting that money back."
You, Parliamentary Assistant, can argue all you want about how successful it's been or not, but if the full force and effect of the provincial government can't collect the money that's owed, there is no way on God's earth that the single employee who's been stiffed is going to be able to get it. The only thing in many cases that saves them from total destruction in terms of their family finances and survival is this plan. I want to know how you justify to that worker why it was okay once again for Mike Harris and Elizabeth Witmer and now Bart Maves to take away rights they already had protected in law. What are you going to tell them?
Mr Maves: My response is simply that I would hope the ministry had a better program to collect money owed, perhaps private sector collection agencies being one example. I would also hope that I, as an employee -- I'm at the bottom of the list currently under the federal government's Bankruptcy and Insolvency Act, and that hasn't changed for years. This government has asked them to change that so that individual employees will be moved up in priority to collect moneys owed to them. If that were the case, I think there would be a lot better reception of moneys owed for employees who are in this position.
I don't know if your government lobbied at all to have the bankruptcy act changed in this manner. I don't know if the Liberal government did before that either. We have been doing it for at least the first portion of this year and to date the Liberal government has not seen its way clear to do that. We'll continue to ask them to do that. That's what I would hope.
Mr Christopherson: I think when you get home at night you ought to sit back and think about how, in the real world, you would react if that were the answer given to you by somebody whose job is secure, at least for the next little while, and who makes a whole hell of a lot more money than they do, and that was the answer you got.
Let's just explore what you've said a little bit. First of all, when you say you're recommending to the federal government, I sure hope you're not pulling out the heavy artillery and getting really heavy-handed like Tsubouchi did with his resolution on gas prices. I hope you're not getting that nasty with the federal government, where you would take a whole resolution off to Ottawa. We've got a Confederation to keep together here and those kinds of acts of extremism don't help.
That's a nice, convenient out to talk about the federal Bankruptcy and Insolvency Act, but the fact of the matter is New Democrats brought in the employee wage protection plan just because the federal government wouldn't do anything -- and I don't care what political stripe it is -- and that is unfortunate. They had a piece of legislation that amended that law, as I understand it. There was a clause in there that would have helped and they dropped it. That's a crime and that's a shame, but it's the reality.
Workers aren't coming here on bended knee at the end of this committee room asking you to create this program. We already responded to that need when we were in government. You're the one taking it away.
You say it's about money and about collection and about taxpayers and how this is funded. If that were the case and if you have so much faith in your privatization of the collection services within the Ministry of Labour, then why don't you just offer up a new funding mechanism, a new funding formula, rather than killing the whole thing? How can you say, "We hope we're going to be better at collecting money than the ministry has been in the past, but we're not confident enough we'll collect the money that we're prepared to keep this program in place"? If you don't think it should be taxpayers who pay it, you think it ought to be employers maybe, there are an awful lot of working people who agree.
We, at the time, were concerned about adding any kind of what were seen as payroll taxes at a time when we were going through a terrible recession, we were being ravaged by the free trade agreement. Even a left-wing social democratic government of the NDP was concerned in that kind of climate about those things.
If you want to turn around and remove it from general revenue funding into a payroll tax, that's fine, but what I want to know is, if what you say is true -- and I don't believe it -- that you care about this program and you care about these workers, why aren't you offering up an alternative funding program rather than saying, "Because it's not being funded properly, we're going to kill it"?
Mr Maves: I guess to that directly I could say I think you knew the position of the government on this and I don't see an amendment of an alternative funding program from either your party or the Liberal Party. I thought that might have been forthcoming since you did talk about it during the hearings.
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Mr Christopherson: The Chair of the committee ruled our amendment out of order, Bart. Stay on the point.
The Chair: Please let Mr Maves finish.
Mr Maves: Secondly, as I said before, it's the position of the government that taxpayers shouldn't pay for bad employers. Taxpayers already pay to try to collect the bad debts. The new funding formula goes to the points I just made, and you did talk about the fact that you don't believe the government is making serious efforts towards having the federal government change the Bankruptcy and Insolvency Act. I think we've gone way beyond what previous governments have done; in fact we've brought it to a meeting of labour ministers, and governments from all three parties have agreed to it.
Mr Christopherson: Oh wow. Not to a meeting?
Mr Maves: We have the agreement from 10 provincial governments now that the federal government should indeed change the Bankruptcy and Insolvency Act in this manner. Those are a lot of steps in the right direction to have that act changed. I think we even heard from people during the hearings who said this would be the most appropriate way to have these moneys reimbursed. So we'll continue on that path.
Mr Christopherson: Who did?
The Chair: Mr Hardeman --
Mr Christopherson: He was responding to me.
The Chair: Briefly. Mr Hardeman is waiting, but go ahead, finish.
Mr Christopherson: No, put him on, because I've got a lot more to go through on this. We're going to spend some time here.
The Chair: Mr Hardeman, then.
Mr Hardeman: I guess it's somewhat on the same lines as my good friend across the aisle there was referring to, the cost of the program and the fact that the employee -- whether I knew anyone who would find themselves in that predicament and whether one would look at it slightly differently, that's true. I think there's nothing as critical as getting paid for one's work. But I guess I have some problem and maybe that's why I agree with the suggestion in the bill to remove it. As much as I see the need for employers to pay their employees and employees to be able to collect their pay, I'm not sure that my mother should be responsible for those employers who do not pay their employees. I think it's not government's job to take tax money and make up for the bad employers or for those who go bankrupt. The government should be putting forward best efforts in order to collect this money and make sure that all employees get it, rather than taking tax money and just covering the cost of all the losses that may occur.
Mr Christopherson mentioned that the NDP put in a good program and covered the shortcomings that were there for these employees who were being done out of their pay. I think at the time it was put in place they may even have had the thought that they intended it to fund itself. They did a reasonably good job of paying out the money, but they did a dismal job on collecting any money to cover the cost. When you look at the numbers from the time the program was in place, it would appear that they not only didn't collect it from the companies that went bankrupt and no longer could pay their employees but they didn't collect it from all the ones that could have paid either. It was easier just to spend the fund and spend the taxpayer's money than it was to go after it.
I think it becomes very important that the government proceed and put more teeth in the collection, get more of that money collected and give it to the employees who have it coming, rather than just keep funding it with taxpayers' dollars. Like I say, I think it's very important that these employees are protected, but I have a lot of people I represent -- I know Mr Christopherson only represents a certain part of his community; at least it's the only ones I've heard him say he represents. I have a lot of different types of people in my community that I have to represent. I have some taxpayers who have trouble paying their taxes. I have people who do well to get around. They're not in the position that they have need of this program but they have trouble getting around and they're telling me that they can't afford to pay more taxes.
I think we have to look at where tax money is being spent and whether it's being appropriately spent, and I think this is one area where the government should be collecting it from those who owe it, rather than just taking it from the general taxpayers and passing it out again. So I support this change that we're making and I would hope the rest of the government members would do the same. The only reason I say the rest of the government members is I kind of gather from what I've heard so far that the opposition may be considering voting against it.
Mr Patten: I'd like to ask the parliamentary assistant, during the hearings I recall two groups specifically -- one was the Employment Standards Work Group that gave a good history of the stimulus for the actual program that was put in in 1990. The case was cited of course of the 300 Chinese-speaking garment workers who showed up at a factory one morning and there was nobody there. They were left stranded. They went on to say that over the course of a four-year period more than 50,000 -- that's a lot of people -- Ontario workers utilized this program and that from 1993 to 1997 the average claim was $2,146. We're not talking big bucks for anybody getting rich or exploiting this kind of situation. We're talking about a lot of fairly low-paid people who are going to be at the end of the line and be out.
Of course you will recall the Chinese Workers Support Network. They were one of the final groups to speak to us on Friday. The cases they talked about certainly convinced me that the need is still there, that there's a lot of people -- and it tends to happen in certain industries more frequently than others. But they were concerned enough to make that representation.
So my first question to you is in response to that, and there were others as well. While it wasn't a primary one, I think these were the two that addressed the issue in a primary sense, or almost in an exclusive sense. What was responded to in terms of the government re their submissions?
Mr Maves: I think it's obvious to say, Mr Patten, that any government, every government, when they have public hearings on a bill, don't take every single presentation and say, "We have to make a change in the bill in order to say we responded to this particular presenter." That's just not the case. We made it clear to that presenter at the time that it is the government's view that it's inappropriate for Ontario taxpayers to cover employer obligations and that we would be seeking other avenues in order to help these folks receive moneys owed. That's still the position.
There was talk I believe from one of the presenters, and it might have been the presenter that you are referencing right now, that they agreed it would be appropriate for this to be covered first and foremost by the bankruptcy act, and so they lauded our attempts to do that at the time. I'm not trying to intimate that they supported the direction we're taking here, but they did say they supported the direction of putting this where it rightfully belongs, the Bankruptcy and Insolvency Act.
The other thing too is, I don't know at the time if they brought it up but I know it was a discussion around their presentation -- I think it was Mr Christopherson who brought up, "Maybe you can fund the program a little differently." I think if someone, the third party or the opposition party, wants to come with a program where this is funded differently, perhaps the government of Ontario would look at it, but at this point in time we're not in the position to do that. Also, it's still our view that Ontario taxpayers shouldn't cover these employer obligations.
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Mr Patten: Here is another example, Madam Chair, where not having the amendments beforehand, you're not sure what the hell you're dealing with, and there's been nothing put forward in terms of an option or an alternative.
I take the criticism with my federal colleagues, and I will take it up with them too. But the sad fact remains that the lowest-paid people are the ones who get it in the neck time after time. While your principle may be, "We don't want the general taxpayer to pay for this," it's the same sort of thing as in the workers' compensation bill. It's a no-fault employer's program. Maybe there is something along those lines that could be developed or negotiated, but at least something, rather than just throwing it out. You know it's going to help bad employers and it's going to hurt a lot of people in the bargain. That's the sad part about all this. As you might expect, we will vote against doing away with it.
Mr Christopherson: I have a couple of responses to what has been said, and then I want to pursue a few more lines of questions. First of all, I feel no need to be defensive about not putting in an amendment to talk about alternative funding. I was part of the government that put this in place in the first instance. You are now the government. If you are telling me that the only reason you won't leave it in place is because of funding, then it's your job to come up with that alternative.
But I know that's not the truth, that's not the case; that's just your cover story for going after something that takes care of workers in an area where you have no interest. In fact, everything you have done to date in terms of labour relations that affects the lowest-paid working people in our province has gone after them, taken away their rights, made things worse for them, emboldened bad bosses to be even worse, denied all kinds of privileges and rights they have earned and deserve.
I don't buy for one second that it has to do with funding and I merely have that line of questioning to prove the point. If you really believed this was important, if you had some compassion and understanding for what it's like for these people, you and your government would have put your efforts towards finding an alternative funding method you could live with rather than using that as a cheap excuse to go after these vulnerable workers. That's your responsibility, not ours, and our amendment had the effect of putting things back in place.
To Mr Hardeman, a couple of things: Towards the end of your comments, you said you have people who have trouble getting around. Don't talk to me about people having trouble getting around under the Mike Harris Ontario. I've got people in my riding in downtown Hamilton who have had reduced public bus service that affects their ability to get around. Do you know what? I've also got the disabled transit system in Hamilton-Wentworth, called DARTS, and they have had to cut their service too because of your government and the cutbacks to our community. Don't for one second start talking to me about how you care about all the poor people in your riding who can't get around when your government and your agenda are hurting people more than any other government in the history of Ontario.
The other thing -- and I raise this lightly and I won't stay on it long, but you started it -- is that you talked about, as an example, your mother paying taxes. Fair enough. But as I mentioned the last time we discussed this, your mother also pays the police and every other public service, including the justice system, to go after bank robbers. That's not her money in the bank, that's the bank's money, but her taxpayer money is going to pay to put the cops on the street and the prosecutors in the courtroom and the judge on the bench to put those people in jail -- the bank's money. We all pay for that. It's just part of our system of justice.
She also will pay for the victims of crime compensation fund. Somebody gets hurt in a community that has nothing to do with her, in another part of the province, in a crime that has nothing to do with her, and there is a victim who has nothing to do with her, but we have a fund that is there to help those people. We all pay for that.
You certainly wouldn't ever expect a rape victim to pay the cost of the police and the hospital and the court system for what it takes to try to give them justice. You wouldn't imagine it; not even you hard-hearted people would think that way.
Yet it's okay to kill a program that's there to protect workers. What gets me so enraged about this is that you are the party that always talks law and order, the work ethic. Here are people who have followed the law, broken none, have lived up to the work ethic, have gone to work every day, in many cases some of the worst jobs in our society, in many cases don't have the benefit of unions, the benefit of collective agreements, are earning minimum wage or just a little better, who have been left high and dry. It's okay to leave them out in the cold.
Again, we're not asking for something new. It's already in place. This is a right and a protection that is already there. You say the reason you don't support it is not that you disagree with the principle but that it's not funded properly, but you offer up no alternative for funding it differently. That's not your amendment. Your only answer is to find an excuse and then kill it.
I'm asking now, Chair, letting you know well ahead of time that I want a recorded vote on this, please. I'm also letting each of the backbenchers in here and in every other Tory riding know that at every opportunity I have, when there are closures in your backyards and these vulnerable workers are left exposed, you can bet your ass they are going to know all about what used to be in place and what you took away. You explain to those workers why it wasn't fair that this be funded out of general revenue.
Of the people who have claimed -- do you know who we're talking about? That seems to be the problem. I don't know how the hell you do this to people, I just don't. They had over 50,000 people from April 1, 1993, to March --
The Chair: Mr Christopherson, I'm sorry to interrupt. I just want to remind you about your parliamentary language and how much we all appreciate it when people's parliamentary language is appropriate.
Mr Christopherson: What did I say now? "Bet your ass"? Was that the line?
The Chair: That was your language, it wasn't mine, and I don't think it's appropriate for the committee.
Mr Christopherson: That's in the Bible too. It's always words that are in the Bible you don't like: "hell," "ass" --
The Chair: Usage, in context.
Mr Christopherson: I don't want to get off the point. I withdraw if it makes you feel better, Chair. I feel like Harry Truman sitting here. I think we're doing real good if I'm limited to "hell" and "ass." But all right, we'll keep it under your rules.
Between April 1, 1993, and March 31, 1997, there were over 50,000 workers -- bankruptcies are going up, so more and more people are in this position -- who got an average of $2,100. Do you know how long it takes to be owed $2,100 at minimum wage and what it must mean to some people to have that taken away from them or not have it given?
The thing I started to talk about earlier, and I want to come back to it, is that they have worked for this money. They are entitled to it. They have been stolen from. If somebody broke into their house and stole the money, I'm not hearing you say they shouldn't be able to call the police to find out what happened, but just because it's an employer that robbed from them, you seem to say that's okay. I don't understand the difference.
These people have had this money stolen from them, and right now there's a program that says, "If it's your employer, here is your redress." If it's your home or your car, call the police, and their efforts are your redress. If you are hurt and you are an innocent victim of a violent crime, there is some money available through the victims' compensation fund. All of them are funded through taxpayer money. But because it's an employer who is doing the stealing -- and it is stealing -- that's different. That's okay. It's okay to let that kind of theft go unchecked.
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I can remember when we did Bill 49. Boy, there were so many promises about what your privatization of the collection agency was going to do. The world was going to be upside-down. How much money have you collected? How much of an increase in what you have collected under your privatization method, Parliamentary Assistant?
Mr Maves: The tender contract has just gone out on that, so they haven't selected the collection agent yet. That will be done soon, I believe.
Mr Christopherson: You passed that law 10 months ago. What have you been waiting for?
Mr Maves: I don't have the details of the tender itself and why the tender took until now to come to this point.
Mr Christopherson: I would assume that all the employment standards officers that this privatization was going to replace are still on the job. Nobody has been laid off yet?
Mr Maves: I'm not sure about that. My understanding is that it was the previous government that actually laid off everyone who was in the collections unit. When we tender the contract to the private sector, it doesn't replace anyone at this point in time because they've already been removed. My understanding is that there is no one there. The collections unit is not there making these collections now and the private sector contract will fill the void.
Mr Christopherson: That's what I was saying. No one has been laid off as an employment standards officer in this area since you passed the bill because you haven't got your collection agency in place yet.
Mr Maves: No.
Mr Christopherson: I will wrap up, simply because I can only do what I can do. At the end of the day, you guys have the power and you're going to use it. But like the pay equity and like Bill 49 and like what you did with scabs and other such things -- but I don't know why this one really does to me what it does. It just seems so obvious to me that no government should be able to do this to people. Watching it happen around me -- I don't know how you do it, I honestly don't.
You should think about the fact that your own minister, as I mentioned at the last meeting, when she was faced with workers in her riding who were looking at a closure and wanted the difference between Bill 7 and what we had in place, if you read her letter, she goes out of her way to assure those workers in her backyard that she will fight for them to make sure they get the money they're entitled to. The money they were entitled to at that time was the difference between the $2,000 you brought in under Bill 7 and the $5,000 we allowed. When she acted as a local MPP faced with those workers, she did the only thing any of us could do at a human level, and that is to say, "I'll fight and do everything I can to get you this." It's just that "this" was something she was opposed to. That was what the NDP put in place. You're taking whatever little is left of that, because you've gutted half of it under Bill 7, and killing it.
Every one of you who votes here today and in the House who reads in the paper about what happens to individuals and families when their company has gone bankrupt and they were owed wages and benefits and didn't get any termination and severance pay, when you see the life they and their kids end up with, you remember the day you stood up and backed taking away this program from vulnerable workers. You remember that day, because you had the power to do something about it and you didn't. People like Mr Hardeman and Bart Maves even had to go so far as to sell their soul and sit here and defend this kind of evil activity.
The Chair: Further questions and comments on section 5? Seeing none, I put the question. This is a recorded vote. Shall section 5 carry?
Ayes
Hardeman, Maves, Newman, Smith.
Nays
Christopherson, Patten.
The Chair: Section 5 carries.
Moving then to section 6, we have a government amendment on page 9.
Mr Maves: I move that subsection 6(1) of the bill be struck out and the following substituted:
"Commencement
"(1) Except as provided in subsection (2), this act comes into force on a day to be named by proclamation of the Lieutenant Governor."
A quick explanation is that as this section sits now, it refers back to the previous section 4. Since that has been withdrawn, we no longer need to refer to it in this section. It's really a technical amendment.
Mr Patten: This is the proclamation date when the bill comes into effect. What does this section do?
Mr Maves: If you look back at subsection 4(2), there was a date of commencement, January 1, 1988.
Mr Patten: So that does away with that?
Mr Maves: We struck that out in a previous amendment, all of 4(1), (2) and (3). Since we struck that out, we no longer need to refer to that in this commencement.
The Chair: Further comments or questions? Seeing none, I call the question. Shall this amendment carry? That's the government amendment on page 9. All those in favour? Those opposed? This amendment carries.
Any further discussion on section 6? Seeing none, I put the question. Shall section 6, as amended, carry? All those in favour? Opposed? Section 6, as amended, carries.
Moving then to section 7 -- my apologies. We go to schedule A. The next amendment is a Liberal amendment. You'll find that, colleagues, on page 12.
Mr Maves: On a point of order, Chair: There are several amendments here that you've been passing over; ones that say one of the particular parties recommends voting against a section. You've just glossed over them. I'm assuming you've ruled them out of order by not referring to them.
Mr Patten: They're not motions; they're just information.
The Chair: Yes, that's correct.
Mr Maves: Normally, the Chair says something is out of order or -- I'm sorry. I'm just clarifying that because it was unusual.
The Chair: Maybe that will be easier. What I'll do is that I will mention --
Mr Maves: It doesn't even matter if you don't do that, Chair. I was just trying to find out. I didn't want us to find out later that we were missing amendments that were in the package.
The Chair: We'll go to page 12. This is a Liberal amendment.
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Mr Patten: I move that paragraph 3 of section 1 of schedule A to the bill be struck out and the following substituted:
"3. To ensure the delivery of quality, effective and adequately funded public services to the people of Ontario."
My comment related to this is that we had deputations and witnesses and representations that addressed the two issues in this bill, and this is in the purpose of the bill. A lot of people talked about the whole ability-to-pay issue, affordability and best practices.
While I don't know the parlance of a lot of these pieces of jargon -- a lot of these words tend to take on certain kinds of meanings; you develop managerial language cultures that use words for convenience to describe something. In the labour relations area, "best practices," we were told by witnesses, suggested that this really meant the best price, not necessarily the best product, that it's really a euphemism or a code word for comparing what you might get. It's a term that can be used in privatization to talk about getting a better price even though the product may be inferior.
The whole question of ability to pay has been said many times. No one can cite an example of where -- I have never heard that even Microsoft would say, "We have such a big surplus here that we're going to continue to give money." I don't know whether they have employee collective agreements or not -- they probably don't -- but I bet some of the contracts they have will do that. But my point is that nobody says, "We have extra money to increase wages." The employer's position, by virtue of the nature of the negotiations which are often positional -- they're not principled negotiations.
This is really to do with the purpose of the bill. It seems to me that the primary concern is "To ensure the delivery of quality, effective and adequately funded public services to the people of Ontario." I'm advised, whether you want to put it in or not, that arbitrators do consider the reality of the day for the employers. We all know what the reality of the day is in Ontario in many areas, especially with the public services that have been cut back by the provincial government.
This is the background to this. I would say most people, certainly more than not, addressed specifically both those issues. That's why I submit my motion.
Mr Hardeman: First of all, I have some problem understanding how one would define "adequately funded." I have no problem understanding "best practices." My problem arises in trying to understand why anyone would define best practices as a race to the bottom. If it said, "to encourage the lowest price that ensures delivery of quality and effective services," that would be a problem, but I don't think best practices necessarily means the lowest price. I think it has to relate to the quality of the service, the effective and efficient way of delivering that service and delivering it at a price affordable to the taxpayer.
Quite a number of years ago when I was involved in municipal government and the municipality decided to institute a door-to-door garbage collection and waste recycling initiative, it was put out to the private sector for a bid. Through a committee of local government, a program was designed in terms of what we could do it for as a municipal service. I think best practices showed that that approach worked; in fact, at the end of the day it was a municipal service that was created with municipal employees, not the contract from the private sector. Best practices showed that the municipality, with its own workforce, could do higher-quality and better service for less money than could the private sector.
The effect of the Liberal motion would indicate that we should change nothing, that we should stay with the status quo of delivering services and the municipality should be asked just to fund whatever it takes to fund that service. It makes far more sense on behalf of all the people involved, including the municipal employees, to encourage best practices so they can look at how the service is presently delivered. Maybe they can compare to how it's delivered in neighbouring municipalities of a similar nature if they are doing it for less money with their own forces, to be able to look at that and see why the neighbours can do it more economically, or, if they're doing it with the private sector, is that a better approach?
In the last number of months, there have been many instances where the municipal employees have put in a bid against the private sector and won the competition. I don't think best practices automatically eliminates municipal employees. In a lot of municipalities the best practice is the present workforce. I don't think we should take that away from them, to suggest that the only way the present employees can be protected in municipalities is to have them protected by legislation. I think they can very well be the best practice, the most cost-effective and efficient delivery of public services. I can't support the wording of the amendment to "adequately funded," because I think that just means we should suggest they stay with the status quo and that municipalities should pay whatever it takes to do that. In my opinion that's the only way you can define "adequately funded." I have some problems with that.
Mr Patten: I'd like to respond to that.
The Chair: Mr Christopherson first, and then to you.
Mr Christopherson: I'll be very brief and allow Richard to speak to his own amendment, but I felt it necessary to at least add the support of my caucus to the amendment and also to point out to the government that if you think about it, the labour movement couldn't afford to be focusing on things that didn't matter. Politically speaking, go back and look where they were prior to your gutting the bill, prior to you bringing in the amendments. They had to pick the key spots they were prepared to go to the wall on. They raised this issue not because they needed to find a bogeyman in here but because they have a serious concern, as the member for Ottawa Centre has said, that it's code words.
They've got examples in that world where this has been used as a way to compare private sector, usually non-union, wages to their own. As a rule, union contract wages are higher. That's why you join unions, so you can focus the strength of a collective at the bargaining table, so that individually you're not taking on the power of the employer, but together you try to get as close to a balance as you can. It's not unusual to see in union and non-union such a difference. It also points out the fact that there's more money to be had there than is usually admitted, unless there's a union to force the truth on the table.
However, the other thing I would remind the members of this government is that it's you who have stated -- my words -- that you want to privatize everything that moves that's in the public domain. This is a real big part of your philosophical foundation.
Interjection.
Mr Christopherson: That's right. I'm reminded that you even have a minister of privatization. This is a big thing to you. If you were going to buy any kind of service or run any service, there's almost always more profit to be made, certainly in terms of small corporations, if you can keep the pesky union out of there. With the policies of this government, you've got it made in terms of keeping people on edge. It just stands to reason that workers and their representatives in the public sector are really nervous when they see the Mike Harris government making changes that their experience suggests mean lower wages, greater job insecurity, also knowing that underneath everything with you is the possibility and the desire for privatization. I think there's very good reason why the labour movement and the opposition parties in this case should be very sceptical of the government's stated purposes here versus what they're really up to.
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Mr Patten: In response to Mr Hardeman, I would like to say that we didn't go into all the measures and quality control programs out there, but I would bet that every single recipient affected by the transition, whether it's a school board, a hospital or a municipality, has upped their resources in terms of trying to minimize their costs and remove waste. They're not going to be starting to do that now; they've been doing it for the last several years, I suspect. Certainly the hospitals you know have been doing this for several years, and a number of school boards and municipalities as well.
Adequate funding works both ways. Adequate funding relates to your program, and if you're looking at an effective program you want to look at how cost-effective it is and whether there are other ways of doing things. I'm convinced that the energies at the municipal level -- you've got some experience there, and I'm sure some of your former colleagues will tell you that they're scrounging and scraping and looking at all kinds of ways in which they can not raise tax and continue to deliver at least the same quality, maybe looking at reorganization or different techniques, this kind of thing.
"Adequately funded" is a condition I did not see in this section and I think it's important. The value is on really best practices and affordability. Quite frankly, I believe the government is in a conflict of interest. The government is controlling to a large degree the funding of many of those areas, the total funding package, is cutting back, and then at the same time is saying, "By the way, we're going to give a criterion to look at affordability."
The Minister of Education continually talks about the affordability of the system. He even propagates a myth that Ontario spends more than the Canadian average of a billion dollars a year. We had a witness who came before us, and I followed up with him. He provided some research that showed it was nowhere near a billion dollars; it was $243 million. That can be readily offset by, alone, the cost of living in Ontario, which is about 13% higher than the national average. That would more than take care of that figure. Indeed the government has already cut back $533 million in education, which is double what the proposed reason for cutting back is. Yet the Minister of Education is talking about an additional $1 billion and we understand is trying to freeze the social contract payments, and so you're maybe talking about $2 billion.
I can only conclude that that comes from the same source, the master plan. The boys in Mr Harris's office are looking for money from all the ministries, and this is one way they can provide some tools for municipalities to not raise taxes, because it would be an embarrasment for the provincial government if municipalities did that. Of course the municipalities, or whatever the institution or organization, are pressed to the wall, and they would be able to use affordability as a negative term, which means, "We're going to try and balance our budget, and therefore we can use our collective agreements as a way to deal this out," to pay less or maintain the same or whatever.
I think affordability takes care of itself, certainly given the present climate, and "adequately funded" means that if you're going to have services, make sure you've got the resources to provide quality of service effectively to the people of your community.
Mr Dan Newman (Scarborough Centre): I guess we get a little insight tonight into the opposition, in listening to them speak about this section of the bill. It's little wonder that we had 33 tax increases on the part of the NDP from 1990 to 1995, and there's little doubt, listening tonight, about why we had an increase in the provincial debt of over $50 billion during their reign. I guess they just don't want to see effective, efficient government. I don't know what they have against it. Maybe it costs less, I don't know, but maybe that's why they're against it. Fundamentally, they're opposed to having efficient and effective government.
But we have a responsibility to the taxpayers of this province, be they male or female, union or non-union, public sector or private sector, young or old, rural or urban, and that is to have good public services at an affordable cost to the taxpayer. I know that's what we stand for on this side of the committee. I hope our friends in the opposition parties feel the same way, but I don't think they do.
When Mr Christopherson spoke about privatization, I don't know what he would have against privatizing some services if it was proven that the cost was lower and that the services were of as good a quality. He speaks about having a minister of privatization, that the government seems to want to go the privatization route. I think we have a responsibility, as a government, to look at every possible expenditure and to see if we can't provide it to the taxpayers in a more efficient and cost-effective manner. I don't see why the opposition would be afraid of that, but perhaps they are.
In this entire bill, with the amendments, it's proven that as a government we have listened. We listened to the concerns the opposition parties raised and to the concerns the union leaders raised on behalf of their members, and it's still obviously not enough. I guess the goalposts have been shifted, and it just doesn't seem to be enough for the opposition parties.
On the topic of adequate funding, in our health care system today we're spending $17.8 billion. In the Common Sense Revolution we made a commitment to $17.4 billion, so we're exceeding that by over $400 million. The provincial Liberal Party, in their red book, promised to fund health care at $17 billion, which is $800 million less than we're funding it at today. With the major reinvestments we're making in health care across this province, not only in hospitals but in home care, in long-term-care centres -- a couple of weeks ago I had the good fortune of being able to open the Bobier Villa in Elgin county, right near the riding of Middlesex. Mr Smith was there for the opening of that, and he saw at first hand in his community what those reinvestments meant and how happy the people were in that community to see those reinvestments. Those reinvestments are coming from finding the efficiencies within the entire health care system, whether it's hospitals, whether it's waste and duplication at whatever level. We're finding those efficiencies and pumping every single dollar back into the health care system.
The long-term-care centres I mentioned. We're providing community-based long-term-care services in this province, providing an adequate level of funding right across the province. We have seen MRIs in northern Ontario. For example, I had the good fortune of being able to open the MRI in Timmins and saw what a difference that made to the community. I was quite surprised to read in the local Timmins paper just last week that the local NDP member for Cochrane South had been talking about how health care was in bad shape in Ontario, yet when I was there in Timmins, the people of Timmins, including the local member, were quite pleased to see that we had funded that MRI.
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With that MRI up and going and the other ones we have committed to, we'll have more MRIs in Ontario than the rest of the provinces combined. Think about it: nine other provinces, and Ontario has more MRIs going than the rest of Canada combined. So I think we're definitely funding health care at appropriate levels.
In my own community we have a dialysis centre at Scarborough General Hospital, which is good news for our community. This means that people in my community don't have to drive and face the traffic in downtown Toronto and park. I can tell you first hand on the traffic note that there's more traffic in downtown Toronto today because more people are working. There are more people working in this province. Knowing and seeing that my constituents don't have to travel all that distance and park their vehicles and be away from their jobs and be away from their families, that they can go right to the local hospital and get the dialysis service they need, is wonderful.
All this came from finding the efficiencies within the system. I know that every single member in this room knows that there have been reinvestments in their own ridings. I had the opportunity to be in Mr Ouellette's riding of Oshawa and make an announcement --
Mr Christopherson: He likes to keep his head down on this.
Mr Newman: No. He was quite happy, Mr Christopherson --
Mr Christopherson: Of course you mentioned his name --
Mr Newman: He is the hardworking member from Oshawa. They love the job that he's doing in Oshawa. In fact, when I was at the Oshawa seniors' centre a couple of months ago, I guess it was, there was an announcement of a reinvestment of over $40,000 at that centre to directly help the seniors in Oshawa. I think it was absolutely wonderful news. I saw, looking through the clippings, that you were there with a shovel, along with the Minister of Health and the member for Wellington, who had popped by tonight to listen. He was in the picture as well, and there was a new facility being --
Mr Christopherson: His secretary and Ward and June Cleaver were there.
Mr Newman: I think you should leave the Cleavers out of it, Mr Christopherson -- again more reinvestments in ridings, whether it's a Conservative riding or a Liberal riding or an NDP riding. I saw that picture of the Chair there at the groundbreaking of that facility.
There are reinvestments as far north as Moosonee and beyond. They received an extra $232,000 this year at the James Bay General Hospital, which serves the coast of James Bay and Attawapiskat and Fort Albany and Moosonee and Winisk and Peawanuck. Right across this province, whether it's here in Toronto, in the north, on the coast of James Bay, this government is reinvesting those dollars right into front-line services.
I travel the province. I was in Kingston a couple of weeks ago and spoke to the local district health council. They were quite pleased to see that the number of district health councils was being reduced, and they understood that. They had a lot of questions and they spoke about health care cuts. When I explained to them that it was actually the federal Liberal government that was cutting health care in this province, they understood and they started to realize -- I saw their heads nodding up and down.
Mr Christopherson: They were falling asleep.
Mr Newman: No, they weren't falling asleep. They were listening very attentively and they realized that it was the federal Liberal government that has slashed health care funding in this province by $2 billion. When you think about it, it's just an outrageous amount of money. When I explained that to the ones who didn't understand that, they got a much better grasp on what was happening.
The opening of the MRI in Newmarket, which had three hospitals, York Central, York County and Markham Stouffeville Hospital, coming together with one MRI in place at the hospital in Newmarket is an effective use of money in York region. The local members were quite pleased to see the MRI go into their area. These are just many examples of adequate funding in health care.
Again, the $17.8 billion we're spending is $800 million more than the provincial Liberals, and then you hear the Liberals in the House talk about health care and taking shots at health care workers and that, when their own critic is literally banned from going to some hospitals for tours because they know his motives and what he's doing and what he wants to present. I think their attempts at "mediscare" are simply not working and people understand that there's this fearmongering.
In Sarnia recently they spoke about someone talking about the level of health care, and of course there's the leader of the "mediscare" movement, Mr Kennedy, talking about how this is happening right across the province. He couldn't be further from the truth. We're finding more and more that they're not even allowing him into hospitals. They're banning him from going into hospitals because he spreads nothing but doom and gloom right across the province.
It's just a shame, because when people see what's happening, that increased funding in health care, they see what it means in their community. You look at the opposition, you listen to them and you look at the number of hospital beds they closed: They closed well over 10,000 beds. They just kept funding the administration and the waste and the duplication right across the province. That number of beds, those 10,000-odd beds they closed, were actually the equivalent, if you can believe it, of 33 medium-sized hospitals.
The Chair: Excuse me. Just to remind you, to bring you back to the amendment before us speaking about best practices --
Mr Newman: I was talking about best practices, adequate funding; I was just getting back to that. They saw that there are all these reinvestments right across the province, whether it's in mental health services, long-term-care services, dialysis, breast cancer screening, all valuable programs that the people of Ontario need, and it's through a more efficient health care system that we see those benefits in our community today.
Some people will shake their heads and say that no, it's not going to happen, but believe me. Talk to the professionals, talk to the people who are working in the health care sector and they'll tell you we have a more efficient, more effective health care system right across this province. Far too long we've all been led down the path to believe that health care equals hospitals. Health care equals more than hospitals. To see those community-based services through the community care access centres, the 43 that are in place across this province where people can make one phone call, not 15, not 20 but one single phone call and be able to get the long-term-care services they need right in their own community by people from their community, is absolutely wonderful. Professionals tell us it's bringing more dollars towards the front-line services, more dollars to home care, more dollars throughout the entire system. The bill talks about best practices, and these are just more examples of being more efficient.
If the opposition wants to be against these sorts of things, let us know. Let us know that they don't want the reinvestments in their communities. What they're telling me in my community is that they appreciate the reinvestments. They see that these reinvestments are working, that we have a better health care system today than we had in June 1995, before the election.
When the opposition party and the third party were the government, they spent their money on bricks and mortar. They didn't put the patient first. We're trying to put the patient first, to have a more efficient and effective use of taxpayers' money.
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I'm sure Mr Hardeman's mother, whom he spoke about as a taxpayer, probably says to him that the health care system in Ontario is far better off. The reason I know it is because my own mother talks about the health care system. She says it's a better health care system today than it was when the NDP or even the Liberals were in power, when they started cutting hospital beds and not providing for more effective and efficient services.
With that, and I see everyone not nodding their heads, I will finish off and say that I see no reason to oppose encouraging best practices as they relate to health care.
Mr Patten: I'll be brief. First of all, it's good to know that Mr Newman has a sense of humour, but I don't know where he gets his data from. I guess he's been travelling around the province in the place of the minister to deliver speeches and one thing or another. He wanted his mother to know what his itinerary was or something of that nature.
Mr Newman: That was just last week.
Mr Patten: That was just last week.
Mr Christopherson: That's what we need more information on. They're doing far too much travelling.
Mr Patten: First of all, the $1.8 billion you're talking about in health care is not in health care at all. As a matter of fact, the information I have is that the operational budget for health, not the capital budget -- that the extra costs that are pushing $18 billion are all related to the restructuring, capitalization, severance pay and all the costs that go on there and that the actual medical budget, the health budget, is a little bit less than or maybe exactly at the same level it was at 10 years ago even though in the last 10 years the population of Ontario has grown by 1.3 million. Don't give me that stuff about better quality. You can say it, but just because you say it, that doesn't mean it's true.
There were two studies this past week that maybe, because you were travelling, you didn't see: the CIBC study and the study done at University of Western Ontario that was commissioned by the OHA, because sometimes the people who are the direct managers or associations you don't like to listen to said, "We want an independent assessment." They came back, and what was their story? In a nutshell it was that health care is suffering from the funding levels of this government. They've taken hundreds of millions of dollars out of the operational budget.
Just to set you straight on that in terms of our commitment during the last election, it was that it would be no less than $17 billion. We put a freeze and worked with the hospital sectors on that. We said the same in the education sectors, to try and find efficiencies jointly, and that there would be a freeze for a three-year period. That was our commitment. Some people had worries about it at the time. Now it looks bloody good to those people in education and to those people in the health care sector, believe me.
You talk about reinvestments. The expectation is that we'll lose $60 million out of the Ottawa area. The original commitment was the reinvestment back into the community, yet we're talking about $60 million just from my own area. Anyway, I don't want to dwell too much on that particular area.
Every time I hear "affordability" from this government I get worried. If it truly were, "Let's take a look at cost-effectiveness; let's take a look at our quality of services," fine; I have no trouble with that. But "affordability" out there now is a scare word. If you want to talk about scaremongering, believe me: When you talk to anybody who's looking at education or health services and they use the word "affordability," they start to take deeper breaths.
My point is that the purpose statement here talks about delivery of quality and it talks about effective and adequately funded public services. Mr Newman took a shot at our fiscal capacity. I would say to him that only once in the last 32 years was there an actual no-deficit situation, a surplus. Only once in the last 32 years was there a contribution to reduce the accumulated debt. That was in 1989.
You are each year adding to the accumulated debt by $5 billion or so. Every year the accumulated debt is going up. By the time you finish your mandate, it will be well over $100 billion; it'll be up around $110 billion, $120 billion. So if you think that's responsible, I don't. Anyway, that's a little off the issue, Madam Chair. As you know, I like to stick to the issue, so I will stop there.
Mr Hardeman: I wanted to commend my colleague for his accurate description of our health care system in Ontario. I want to go to the amendment that is before us, which is the Liberal amendment, as it relates to "adequately funded." Someone pointed out the inability of government or any sector of government to define "adequately funded." Obviously the federal government, as Mr Newman stated, decided that health care in Ontario would still be adequately funded if they took $2 billion out of it. The province decided that doing that --
Mr Patten: They didn't take it out. You took it out.
Mr Hardeman: No, the federal government sent Ontario $2 billion less that was intended for health care. They decided we didn't need it. The provincial government decided that to adequately fund health care, you could not take that $2 billion out. In fact, you had to put it back in, which of course we did. The only reason I bring that up is not whether it was right or wrong --
Mr Patten: There was $35 million for immigration settlement and you didn't even apply for the program.
Mr Hardeman: I would point out to the member opposite that I didn't interrupt him when he spoke, so I would appreciate it if he would extend me that courtesy.
I don't bring it up to say whether it was right or wrong. I only bring the issue up as to the inability to define "adequacy." That would be different depending on who was looking at it. The wording presently in the bill -- and the reason I will be voting against the amendment -- the present description of providing the best practices I think relates to all the other issues that Mr Newman spoke about. Finding the most cost-effective and efficient and quality way of delivering the services is what "best practices" is. I think all levels of government are well served by looking at a best practices approach to delivery of government services. With that, I will relinquish the floor and say that I will be voting against the amendment.
The Chair: Any further comments or questions on this Liberal amendment?
Mr Maves: Chair, are you about to put the question?
The Chair: I'm about to put the question.
Mr Maves: Can I request a 10-minute recess before you put the question?
The Chair: Certainly you may. Colleagues, we'll stand recessed before we call the vote and we'll reconvene in 10 minutes.
The committee recessed from 2041 to 2049.
The Chair: Colleagues, we have a motion on the floor and I'm about to put the question. This is a vote on the Liberal amendment which is found on page 12 and has been moved by Mr Patten.
Ayes
Christopherson, Patten.
Nays
Hardeman, Maves, Newman, Ouellette, Smith.
The Chair: It's lost. Any further discussion on schedule A, section 1? Seeing none, I put the question. Shall schedule A, section 1, carry? All those in favour? Opposed? Carried.
We move to the next amendment, which is a government amendment on schedule A, section 2, Mr Maves.
Mr Maves: I move that section 2 of schedule A to the bill be struck out and the following substituted:
"Arbitrations
"2(1) This section applies to,
"(a) arbitrations conducted under section 50 of the Fire Protection and Prevention Act, 1997;
"(b) arbitrations conducted under the Hospital Labour Disputes Arbitration Act;
"(c) arbitrations conducted under section 122 of the Police Services Act;
"(d) arbitrations respecting a matter concerning the amendment or renewal of an agreement or anything that may be the subject of bargaining under section 26 of the Public Service Act;
"(e) arbitrations under section 43 of the Labour Relations Act, 1995 as it applies under section 32 of the Public Sector Labour Relations Transition Act, 1997;
"(f) arbitrations under section 40 of the Labour Relations Act, 1995 involving a successor employer within the meaning of the Public Sector Labour Relations Transition Act, 1997 and a bargaining agent representing employees of such an employer.
"Purposes to be considered
"(2) In making a decision, an arbitrator or arbitration board shall take into consideration the purposes of this act.
"Other criteria not excluded
"(3) Nothing in subsection 2 relieves an arbitrator or arbitration board from any requirement under another act to consider criteria in making a decision."
The Chair: Do you wish to comment?
Mr Maves: A quick explanation is that this ensures that arbitrators making decisions within the scope of subsection 2(1), which is the fire, hospital and police sectors, consider this act's purposes.
The Chair: Further -- Mr Christopherson.
Mr Christopherson: Thank you, Chair. I wish to raise a point of order now that this has been moved. My point is that all this, or some part thereof, which would have the same effect, is out of order and should not be allowed by you to be placed for consideration or vote. My reason for that is that first of all it affects section 2 of schedule A on page 8 of the original Bill 136, which reads as follows:
"2. In this act,
"'collective agreement' includes an agreement negotiated under part VIII of the Police Services Act, an agreement as defined in subsection 26(1) of the Public Service Act and such other agreements as may be prescribed."
This is about definitions. The amendment talks about arbitrations and directions to arbitrators, which first of all, in my opinion, are outside the scope of the bill, certainly outside the scope of this particular clause. I believe that this amendment seeks to accomplish certain things with regard to arbitrations that have no relationship to clause 2 as I've read it from the original Bill 136. I would also point out that what I've said so far applies to all of it.
I would also point out that 2(1)(f) refers to a part of the Labour Relations Act that is not opened up by Bill 136. To the best of my knowledge there's nothing in Bill 136 that gets us anywhere near where (f) attempts to provide amendments, particularly when we look at section 2 of Bill 136. Again, everything comes back to that. But there's nothing in here that even gets close to that. I'm suggesting that this amendment is seeking to do something the original bill did not attempt to do. As I can see it, you're adding things to definitions and directions and interpretation of arbitration that bear no relationship to the original 2 within Bill 136.
Given all of that and given the fact that it goes beyond the scope of the amendment -- it goes beyond the scope of Bill 136 in the case of 2(f), it goes into areas that are not opened up in any other area -- and if they attempted to open it up by way of separate amendment, Chair, I suggest that you'd have to rule that alone out of order. But here it is as part of a series of definitions and directions and interpretations of arbitrations to all kinds of various acts and bears no resemblance to section 2 of schedule A as defined in Bill 136.
Therefore, I believe that there is a serious consideration on your part to rule this out of order in that it's beyond the scope and seeks to do things you cannot do by amendment only, particularly as it relates to what you've attempted to do in part 2, and would reserve the opportunity to comment again to you, Chair, when and if the parliamentary assistant wades into this.
Mr Patten: I agree with the point made by the member for Hamilton Centre. I've got a couple of additional points. I'd just like to underscore that right at the beginning of the schedule A contents it says "Interpretation," and under "Interpretation" it's got "Purposes" and "Definition." Then it goes on to another section which deals with "Commission." This is under "Definition," which is in the "Interpretation" section.
I'd like to point out that in May 1970, Speaker Lamoureux ruled on a similar point to the one that has been raised here and that it now forms part of Beauchesne's Parliamentary Rules and Forms. I'll tell you what he said at that particular time in relation to a similar amendment that came up in the House: "Although the preliminary sentence of motion number 2 appears to be in the form of an interpretation provision, what follows is a list of prohibitions and objectives to be observed in the administration of the act."
This, Madam Chair, is the exact sort of case and has now been incorporated into Beauchesne. I'll quote the section for you in a moment. It seems to me that this is the exact case we now face, where section 2 is to be struck out, which is part of the clause, and we have substantive provisions which go beyond the scope of the interpretation section that have nothing to do with the interpretation of the act. They are a list of provisions and objectives to be observed, really, in the administration of the act itself, which is another part of schedule A.
Beauchesne on page 208 -- I refer this for the clerk and the Chair -- and subsection (10) has incorporated this, says, "A substantive amendment may not be introduced by way of a modification to the interpretation clause of a bill." I gave you the background to that, one of the bases in which Beauchesne identifies his precedents. This is also in the Journals of the House of Commons, likewise in terms of Lamoureux's ruling, which we have here.
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I know that the government purports to amend section 2 of schedule A, which is found here. But section 2 of the bill is an interpretative clause. The government motion is a substantive amendment in both form and substance. It deals with the list of provisions and objectives to be observed in the administration of the act, not in the "Definition" section here.
A further point related to clause (f) -- I think the member from Hamilton dealt with that one already, but just to reiterate it -- is that the government's amendment makes reference to a section of the Labour Relations Act, section 40, that was not to be part of the original Bill 136. It is a new provision. It doesn't amend a section of Bill 136 and it is beyond the scope of this particular section in the bill.
The Chair: Thank you. Further comments or questions on this?
Mr Maves: Schedule A, as you will see, starts off by striking out a definition of part 2 and replacing it with an application section with regard to arbitrations, specifically purpose clauses of the act. Once that's struck out -- the definition was needed previously because "collective agreement" wasn't defined in the Police Services Act and it appears in much of the rest of sections 3 to 16 with regard to the Dispute Resolution Commission. That's why it was no longer needed on the elimination of the Dispute Resolution Commission and the references to collective agreements throughout, from 3 to 16, so it has been struck out and replaced with an application section.
What we've done, Chair: For instance, at the top of page 18 you'll see point 6, where we have clearly said that purposes set out in section 1 will apply in the case of arbitrations in the Fire Protection and Prevention Act. On page 21 of the bill we've said the same thing with regard to the Hospital Labour Disputes Arbitration Act, and so on with regard to the other acts, so we've clearly stated previously in the initial Bill 136 before amendments that it was the intention that this purposes clause be considered in each of those acts. We've simply brought this together in one section, in section 2.
Clause(f) is relevant and applies because there's a thematic connection in the rest of the bill in that these are broader public sector employees that are a part of the amalgamations we're talking about. So the purposes should also be considered, obviously with regard to them as the broader public sector employers. There is that thematic connection in clause (f), so in my opinion it's very much in order. All this was really in the bill already. We've just kind of collaborated it and put it into section 2.
Mr Patten: I don't necessarily disagree with this. I just think it's in the wrong section. According to Lamoureux's ruling and Beauchesne you can't do that. This may very well stand on its own and be a good thing to do, but it should come under the administration section. It shouldn't be in the purposes or the definition section in the interpretation section -- they're quite clear -- or even in the complementary section. Our point is that it's just not supportable in that particular section of the act. It clearly gives direction and advises on how an arbitrator should behave and what he or she should do. That's not a definition. That's an administration direction or guideline.
Mr Christopherson: A couple of quick things. I would again draw to your attention the fact that notwithstanding the arguments the PA makes about (a) to (e), because I'm not sure that stands alone, it certainly doesn't stand when we get to (f). It can be as thematic as he likes, the fact is that under the rules of what you can do by amendment and what you can't do, we make the case that this clearly is an attempt to amend through the back door. They're also attempting without really amending. I would strongly make the case that none of this bears any kind of relationship to what was clearly the intent of "Definition" under section 2 of schedule A and believe very strongly that you have no alternative but to rule all or part, which would have the same effect, of this amendment out of order.
Mr Patten: Were you able to capture that statement on Beauchesne?
The Chair: Yes, subsection (10). We have that.
Mr Patten: "A substantive amendment may not be introduced by way of a modification to the interpretation clause of the bill," which is where this is. All of these sections can be fully dealt with, completely, under the complementary amendments sections.
The Chair: Further comments? With your indulgence, colleagues, I would like a five-minute recess to confer with the clerk and the legislative counsel on this matter.
The committee recessed from 2107 to 2118.
The Chair: Colleagues, the committee is called to order, and I was asked to -- Mr Newman?
Mr Newman: Can I ask for a 15-minute recess?
The Chair: I must confess, colleagues, this is a very complicated ruling you've asked me to make and I haven't got my decision made yet, so a recess would be a good idea. However, I am mindful that we are at 9:20, which means we would then be recessed for the remainder of the day, and that means adjournment.
Mr Christopherson: If you need until five minutes after, we can wait five minutes.
The Chair: I would appreciate the time, if that is not a problem for you.
Mr Newman: It's 9:19 right now.
Mr Christopherson: If I can, Chair, the request was for 15 minutes, which really is out of order because there aren't 15 minutes left. But if you need upwards of 15 minutes I would be quite prepared, certainly as one member representing one of the three parties, to remain here the extra five minutes to hear your ruling. This is a very important ruling to us.
The Chair: Why don't we reconvene just before 9:30.
Mr Newman: On a point of order, Madam Chair: The committee sits until 9:30 and I have an appointment and a call to make --
Mr Christopherson: What are you afraid of?
Mr Newman: I'm not afraid of anything.
Mr Christopherson: You can go. They've still got a majority.
Mr Newman: -- but I have a couple of calls to make back to constituents and I think it's important.
Mr Christopherson: You've still got four votes. Go. You left before and we had only three and we did just fine, so go.
Mr Newman: It says till 9:30 and that's the time --
Mr Christopherson: Go. Go make a health speech. Practise in the mirror.
The Chair: The only way we could have a recess that is within the standing orders would be to have a motion to that effect at this point in time, according to the standing orders.
Mr Newman: Okay, I would move that we have a 15-minute recess.
The Chair: All right. There is a motion on the floor, then. Any further discussion?
Mr Christopherson: I'd like to ask you a question. Given the fact that that takes us past 9:30, are you still going to bring us back at that time and give us your ruling? If that's the case, I have no problem. If the government is trying to stall and avoid getting a ruling from the Chair, I have a great deal of trouble.
The Chair: The difficulty is that pursuant to the time allocation motion we can't go beyond 9:30.
Mr Christopherson: Then the motion is out of order, I would think. If he asked for a two-hour recess, would you give it to him?
The Chair: Hang on. One at a time. We'll go to Mr Patten.
Mr Patten: I believe the motion is out of order because it goes beyond the time we have allocated to sit, so it's not a recess at all. It effectively becomes an adjournment, so I believe it's out of order.
The Chair: I want to make sure we get this right. We can't sit past 9:30 because of the time allocation motion. A motion can be made for a recess. That's perfectly in order. If we're about to make a vote and you yourself called for a 20-minute recess, that would be granted automatically and wouldn't be considered an adjournment. It would be considered a recess and we would move into the next day's proceedings.
I don't think this is any different. It wouldn't be considered an adjournment in the middle of the day. It just happens to be happening at this point in time.
Mr Christopherson: No problem, Chair, I just wanted to be clear that at the end of the 15 minutes you are going to bring us back together and give us your ruling.
The Chair: But I can't after 9:30. Herein lies the complication.
Mr Christopherson: Then how can you give him a recess? Clearly, he's trying to run the clock. What's the point of a recess if we don't come back after the recess? He's trying to adjourn the meeting. The difference with a vote is that you can come back and vote and do something.
The Chair: The standing orders do not include a motion being on the floor for a recess, and if that motion passes --
Mr Christopherson: Then we don't have a motion.
The Chair: -- that's not the equivalent to an adjournment; that's a motion for a recess.
Mr Christopherson: On a point of order, Madam Chair: I'd like the ruling that you asked for five minutes to determine. You called us back to order. I assume you have a ruling for us. I don't know why we're dealing with this. All I want to hear is the ruling.
The Chair: I haven't had a chance to finish. It's more complicated than I had anticipated and I haven't finished my determination. If Mr Newman weren't moving this, I would be moving it. I would be seeking your consent to allow me time to properly consider the request you've put before me.
Mr Patten: How much time do you need, Chair?
The Chair: I don't know; 15 to 20 minutes, maybe, something to that effect. Mr Newman.
Mr Newman: We're sitting this evening under prescribed times under the time allocation motion, which clearly spelled out when the standing committee on resources development would meet and the various days and times. Whether it be today, sitting from 3:30 until 6 -- it didn't say from 3:28 to 6:01 or 3:27 to 6:02. What it dealt with was 3:30 pm to 6 pm, and then the standing committee on resources development again would meet from 7 o'clock, not 6:59 or 7:01 or 7:02 or 7:03, but 7 o'clock, that's 7 pm, until 9:30, not 9:29, not 9:28, not 9:31, 9:32 or 9:33 or any other time. It clearly spelled out when the committee would sit, when it was eligible to sit.
I think of all the other days we had committee hearings on this and listened to people, listened to the various groups like the Ontario Hospital Association and CUPE, and we had Sid Ryan and Judy Darcy in the other day, and I thought they would have agreed with all the changes that have been brought forward to Bill 136. When I look at the time allocation motion, which was debated in the House, and all parties had an opportunity to comment on it, that time allocation motion dealt with the specific times this committee could meet.
Some days there are three shifts of this committee. There's a morning shift from 9 o'clock in the morning until 12 noon, and that wasn't 8:59 or 8:57, although I know we wanted to get started as quickly as we possibly could. But we weren't able to do that because the time allocation motion said 9 o'clock -- not 9:01, 9:02, 9:03, 9:04 -- 9 am until 12 noon, so during that three-hour period, which was the first shift, that's when we had to deal with Bill 136, during that time frame, and then in the afternoon the second shift of the committee, which was right after we finished question period.
The Chair: Excuse me. We'll move to Mr Christopherson for a minute.
Mr Christopherson: Thank you, Chair. Clearly, Mr Newman is attempting to run the clock. It doesn't take a rocket scientist to figure that out. What I would like from you, and please do not take this as a personal insult -- I don't mean it that way. I would ask this of whoever was in the chair right now. We're in a rather unusual situation. I think you're beginning to understand the seriousness of the point of order we raised on this matter. We all understand the implication for the government's legislation. This is a very critical moment.
With that in mind, we're about to adjourn and go off to the wind. Unlike the Speaker, Chair, you're not elected, you're appointed as one of the government's lineup of appointments they can make. Although you're trying to be as fair as possible, and again please don't take this personally, I would like your assurance right now that you will have no discussion with anyone outside the clerk's department or legislative legal staff without the presence of the two other opposition parties between now and when you render your decision.
The Chair: Oh, I see. Mr Christopherson, when I recessed at 9:10 to review this, I didn't think it would take me as long as it's taken me to go through this. It is 9:30 and it is time for us to adjourn, and you have my assurance that I will not discuss this with anyone in any caucus without the other members present. I will consult with the clerk and with the legislative counsel on this matter.
Mr Christopherson: I accept your word on the matter. Thank you, Chair.
Mr Hardeman: On a point of clarification, Madam Chair: My understanding was that the Chair of the committee was elected in exactly the same manner as the Speaker of the House.
Mr Newman: Same as Floyd Laughren was elected in government agencies.
The Chair: Yes, and there is a point I'd like to make as someone who has to make the decision. Speaker Stockwell has from time to time been asked to make a ruling, has gone out, considered and come back and said, "I need more time on this one." That's how I feel at this moment in time.
Mr Christopherson: Your position is different from the Speaker's. I just wanted the assurance I need so I can sleep this evening and you've given me that.
The Chair: Sleep well. Colleagues, we are adjourned until tomorrow at 3:30.
The committee adjourned at 2129.