ALUMINUM, BRICK AND GLASS WORKERS INTERNATIONAL UNION
ONTARIO HOTEL AND MOTEL ASSOCIATION
ONTARIO COALITION AGAINST POVERTY
CHRISTIAN LABOUR ASSOCIATION OF CANADA
CONTENTS
Tuesday 4 August 1992
Labour Relations and Employment Statute Law Amendment Act, 1992, Bill 40
Ministry of Labour
Hon Bob Mackenzie, minister
Jim Thomas, deputy minister
Tony Dean, administrator, office of collective bargaining information
Jerry Kovacs, legal services branch
Ryan, Pauline, policy adviser
Leo Panitch, Donald Swartz
Aluminum, Brick and Glass Workers International Union
William E. Steep, international representative
Ontario Hotel and Motel Association
George Schmalz, president
Diane Stefaniak, executive director
Ontario Coalition Against Poverty
John Clarke, provincial organizer
Merle Terlesky, Metro Toronto committee
Christian Labour Association of Canada
Ed Grootenboer, executive director
Ray Pennings, promotion and publicity director
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
*Chair / Président: Kormos, Peter (Welland-Thorold ND)
*Vice-Chair / Vice-Président: Huget, Bob (Sarnia ND)
Conway, Sean G. (Renfrew North/-Nord L)
Dadamo, George (Windsor-Sandwich ND)
Jordan, Leo (Lanark-Renfrew PC)
*Klopp, Paul (Huron ND)
*McGuinty, Dalton (Ottawa South/-Sud L)
*Murdock, Sharon (Sudbury ND)
*Offer, Steven (Mississauga North/-Nord L)
*Turnbull, David (York Mills PC)
Waters, Daniel (Muskoka-Georgian Bay/Muskoka-Baie-Georgianne ND)
*Wood, Len (Cochrane North/-Nord ND)
Substitutions / Membres remplaçants:
*Cleary, John C. (Cornwall L) for Mr Conway
*Fletcher, Derek (Guelph ND) for Mr Dadamo
*Ward, Brad (Brantford ND) for Mr Waters
*Witmer, Elizabeth (Waterloo North/-Nord PC) for Mr Jordan
*In attendance / présents
Clerk / Greffier: Brown, Harold
Clerk pro tem / Greffier par intérim: Decker, Todd
Staff / Personnel:
Anderson, Anne, research officer, Legislative Research Service
Fenson, Avrum, research officer, Legislative Research Service
The committee met at 1330 in room 151.
LABOUR RELATIONS AND EMPLOYMENT STATUTE LAW AMENDMENT ACT, 1992 / LOI DE 1992 MODIFIANT DES LOIS EN CE QUI A TRAIT AUX RELATIONS DE TRAVAIL ET À L'EMPLOI
Consideration of Bill 40, An Act to amend certain Acts concerning Collective Bargaining and Employment / Loi modifiant certaines lois en ce qui a trait à la négociation collective et à l'emploi.
The Chair (Mr Peter Kormos): It's 1:30 and we're going to start. There is a report of the subcommittee as a result of a subcommittee meeting Wednesday, July 22, 1992. All members have a copy of that and a copy has been tabled with the clerk. Mr Huget, do you move acceptance of that?
Mr Bob Huget (Sarnia): Yes.
The Chair: All those in favour, please indicate. Opposed? Carried.
There is a motion on the floor. Are you withdrawing that motion?
Mr Huget: I'm withdrawing the motion.
The Chair: Thank you.
It is my understanding that there is unanimous agreement by the committee that the committee will commence at the times indicated in this agenda so as not to inconvenience persons participating, notwithstanding the fact that one or more members of the committee may not be present. Is that correct? That's unanimous.
Mr Mackenzie, Minister of Labour.
Hon Bob Mackenzie (Minister of Labour): Good afternoon. Today marks another important step towards updating Ontario's Labour Relations Act. I am pleased to take this opportunity to sum up the essence of Bill 40, highlight its major features and formally launch this period of public review.
The driving force behind this legislation is the need to update the Labour Relations Act to reflect the new realities of the workplace and our economy. Ontario has much to offer and we need to build on these strengths and successes. We need to allow women, part-time workers and new Canadians the same workplace choices that other workers already enjoy. We need to work together to meet the daunting economic challenge of the 1990s. To achieve this, it is clear that labour and management must work together in a spirit of cooperation, partnership and trust. Economic growth must come down to more than choosing between jobs and justice.
In Ontario we have many options and strengths to work from to achieve the twin goals of equality and security through economic renewal. We have a talented, loyal and skilled workforce in this province. This is an important resource. It should be supported, nurtured and allowed to flourish. We have a standard of living that is among the highest in the world, and we have an educational system that is among the best in the world.
The question is simply this: In the face of a sometimes brutal and competitive world economy, how do we maintain this quality of life and extend it further to include all Ontarians? How do we continue to attract our share of highly skilled, high-wage jobs to our country? Do we have to give up all we have achieved, including all the defining qualities of Ontario's social network, in order to work for companies that will pay 65 cents an hour? Is this really an economic strategy that the people of Ontario would settle for?
Our government's strategy for economic renewal recognizes that we have options, which stem from the partnerships we are trying to cement in Ontario's workplaces. One of the most important is training and developing the skills of our workforce. This year alone we will invest more in this area than any previous Ontario government.
We have gone to great efforts to promote sectorial opportunities for training and labour adjustment. Building on this, we will create the Ontario Training and Adjustment Board, a bipartite board which will guide our future training and labour adjustment activities. We also intend to stay on top by seeking and encouraging investment at every opportunity. That's why, for example, the recent budget provided tax breaks for small businesses and reduced corporate tax levels. The industrial strategy announced by my colleague the Minister of Industry, Trade and Technology last week will further this commitment to the province.
This government has also launched a five-year, $2.3-billion Jobs Ontario Capital fund to maintain and enhance Ontario's current infrastructure edge. Other important measures, such as pay equity and employment equity, will ensure that future economic growth in the workplace takes place in an atmosphere of equal opportunity for all.
Finally, economies that have already moved into the 21st century have managed to bring labour and management together to work for the greater good. Ontario deserves no less. The old adversarial system is obsolete. Involvement, cooperation and partnership are the keys to success. That's why this government has no less than five agencies, councils and task forces made up of business and labour representatives to discuss short- and long-term economic strategies for the province.
Ontario's economic success will depend to a large degree on the extent to which labour and management maintain this dialogue and really bring it into the workplace. One of the time-honoured ways for working people to conduct this dialogue is through representation by a trade union. It is certainly not the only way, but many workers have determined it is the best way to obtain job security, protection and confidence in the future. With these conditions in place, many workers feel more confident and secure about discussing important workplace issues. They feel valued, involved and committed. They have an interest in cooperating and working together with their employers for success.
That's why the indiscriminate attacks on the millions of trade union members, citizens of this province, by opponents of this bill have really saddened me. I believe it is more constructive to look at the growing evidence that union-management workplace cooperation can have a positive effect on productivity, not to mention other benefits which include more efficient management practices, reduced turnover, better training and increased investment in new technology.
It's true that important strides in cooperation and trust have been made by certain progressive companies and trade unions in the areas of retooling, training and skills development, and the introduction of new technology into the workplace. We believe these ground-breaking achievements have to become the norm if Ontario is to survive and prosper. That is why updating our labour law forms a significant element, along with the other measures I have already mentioned, in the government's agenda for economic renewal.
Bill 40 comes to this committee containing amendments to achieve four major goals.
They are, first, updating the act to recognize that Ontario's workforce and workplaces have changed dramatically. The act needs to take account of the growing numbers of women, workers in ethnic diversity and part-time workers in our economy whose numbers alone have doubled in the last 15 years, and I might say, in largely low-skilled, service-sector jobs. Right now these workers face many obstacles to organizing and effective bargaining because the act is designed for a now-vanishing era of large smokestack industries employing predominantly male workforces.
The second goal is to promote greater cooperation and harmony in the workplace between labour and management. Measures in this area will allow for greater ongoing discussion of key workplace issues on a number of formal and informal levels.
The third major goal of these amendments is to reduce the level of industrial conflict in the province by removing the flashpoints and obstacles that only serve to frustrate effective labour-management relations. We intend to introduce a number of measures to promote the smooth operation of the collective bargaining process.
Our fourth objective is to streamline and simplify certain procedures before the Ontario Labour Relations Board and before arbitrators, and this is a win-win situation for both sides. Today's commencement of public hearings into Bill 40 is only one of a number of opportunities for the people of Ontario to have their say on labour law reform.
Earlier this winter and spring, I conducted an extensive consultation tour in 11 communities across the province. More than 330 groups and individuals came forward to comment on our proposals. Two out of every three of these presentations were from the business community. In addition, more than 70 high-level private meetings were held between ministry officials, business representatives and community groups. As a direct result of this process, a significant number of our original proposals, almost half, have been changed or withdrawn altogether. Ten significant changes responded directly to major concerns raised by the business community. These were proposals that gave employers serious concerns.
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Some people say that updating this law will affect job creation and investment in Ontario. I think we should take a closer look at this one. Government figures show that a total of 106 companies in the business sector have announced their plans to invest in Ontario since January 1991 alone. This represents a capital outlay of more than $5 billion in equipment modernization and new business expansion in Ontario. These investments cut across all major sectors from primary industries, industrial equipment, food processing, automotive, environmental, to professional services and wholesale and retail trade. And who can predict the spinoff benefits these investments will generate in the years ahead?
It's no accident that today's successful economies like those of Japan and Germany are built on workplace partnerships that out-compete those nations still locked in an adversarial labour-management relationship.
Let me emphasize that this government is proud to support the dreams and aspirations of all workers whether they choose to organize or not. For those workers who do, Bill 40 will mean better working conditions and more involved, committed workplaces, from which we will all benefit.
In so many ways the potential of our workforce remains untapped. There are some great ideas for productivity out there that just need a vehicle to carry them to fruition. Labour law reform will help to change that.
As the minister, I have been disappointed but not surprised by the vehemence of the opposition to our proposals. Lately, however, I have sensed the debate shifting. I think a growing number of people have thought the issue through for themselves. They have gone beyond the headlines and the deafening pitch and are examining the bill for what it really is. Many of these people are concluding that the government's proposals are in fact quite reasonable and in most cases already in place in other jurisdictions.
Nevertheless, I remain concerned that the lingering opposition to this bill is so far out of proportion to its potential impact that the consequences of that opposition are now more of an issue than the actual bill itself. That's why I wanted to reinforce the fact today that Ontario's investment and employment potential remains high. Somehow investors know this, despite the rhetoric to the contrary.
It's my belief that the conditions are in place for a productive new relationship between management and labour in this province, one that I think it long overdue and something that's already under way at the most progressive companies. Bill 40 will simply allow for much more of this.
I want to thank you very much for the opportunity I've had here today, and for your time and attention.
The Chair: Thank you. The balance of the hour will now be shared by the critics for the Liberal Party and the Conservative Party.
Mr Steven Offer (Mississauga North): I don't believe I will require the full allocation of time. To commence, I think it is clear that this piece of legislation, Bill 40, does not create one single new job in this province. At a time when the unemployment rate is so very high, when hundreds of thousands of men and women are out of work, some for the very first time in their lives, this legislation, without job creation, continues.
I listened closely to the opening comments of the minister, and I think it is clear that the provisions of this legislation currently before the members of this committee, if passed in their current form, would result in this province of Ontario being a jurisdiction which, unlike any other jurisdiction in North America, contains all the provisions found within Bill 40.
To me, this bill is not about the right of a worker to organize, to join a union if he or she desires, and it's not about the right of a union to strike, if that is the process it follows. That is now addressed in the current legislation. Rules dealing with organization, rules and processes dealing with a myriad of areas, including stoppage, are now within the legislation. This is a bill which clearly tips the balance of the Ontario Labour Relations Act, a balance which has always been attempted to be maintained since this bill was first introduced. It tips the balance from one which is an attempt to balance interests between labour and management to one which is mandated to determine issues in favour of organized labour. I have concerns that when a balance like that has been tipped, in fact cooperation is not increased but indeed the opposite results.
Let us also be clear that when we speak to this bill, it does not address those issues confronting the approximately 70% of our workforce which is not unionized. This is not a bill for those men and women in this province.
I believe, Mr Chair, Minister, there isn't a member in this committee or indeed in the Legislature who hasn't had meetings in the past few years with constituents who have been let go from their jobs, hasn't met with them and been told what that means to them and their families. Over the past two years our economy has suffered; bankruptcies, closures, reduced operations have hit every community in this province.
I was somewhat dismayed by the minister's opening comment in terms of the opposition to this bill. I believe his comments spoke to his reaction as disappointed or saddened that individuals who were opposed to the bill had not gone behind the headlines in the local press. I take some exception to that because since I've been involved with this particular piece of legislation I've spoken to a great many people, both for and against the legislation, and those that spoke against the legislation were not just reacting to the latest press report.
They were individuals who had carefully gone through the legislation, carefully looked at what this legislation means to them, carefully looked at what the impact of this legislation may mean to them and to their workers and had concerns and followed that through with a disappointment in the minister in not being responsive to those concerns which they had attempted to bring forward, and accordingly a suspicion of the so-called process of consultation arose. I hope in the time permitted, and I recognize the time restraints, we'll talk a bit about that.
I've heard from many that this bill does not create a positive climate for investment, that this bill does not send out an invitation that this province is a place where people can or should start a business or expand an existing business. We all know, in this room and outside, that to start a business creates new jobs; to expand a business not only creates new jobs but indeed secures existing jobs. This bill without question has created a negative climate. At a time when we are entering into a new era of competition, when our businesses are competing not just with businesses around the corner but indeed over the horizon, the government has moved forward with this legislation. Once more I would add that this legislation, if passed in its current form, as a whole would contain provisions which are found in no other jurisdiction in North America.
This is a time when labour and management should be working together; they are instead locked and focused over this bill. At a time when the concerted efforts of all are necessary to meet the competitive challenges of the day, many groups over the past year have been, and indeed for the next few months will be, keying in on this bill. I believe that this type of expense of energy is one which really cannot be afforded at this time.
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I recognize once more the time constraints and I want to deal very briefly with three major areas: first, the process. From the beginning, this process has not only been flawed but suspect. I won't go through all the difficulties over the process which have been shared with me, except to say that they come from many groups, organizations and associations that have truly not felt part of your process in the early part of this year. They looked at the bill, looked at the consultation paper, looked at the impact and wanted to share with you what that meant, and they felt excluded, shut out, locked out.
This is a very real concern. It's a concern shared by many people throughout the province. Of course we need only to remind ourselves that this Bill 40 was introduced June 4 of this year at approximately 3:30 in the afternoon and the same day, as members of this committee will recognize, within 90 minutes the government tabled new rules of procedure which had the impact of limiting debate; 90 minutes after the introduction of this bill there were new rules of procedure on debate in the Legislature. That didn't help the suspicion and the concern of many people around this bill. In fact it fuelled that fire of concern.
We know that as we deal with this bill, we operate under a notice of motion which limits this committee to but five weeks of hearings, three in Toronto. We know that as a result of a time allocation by the government, following these hearings there will just be eight days for clause-by-clause, following that there will be just a further two days for committee of the whole and following the two days is the only time allocated for third reading debate until this bill is passed into law.
That is an order and a motion which stands on the floor of the Legislature. It is restrictive in terms of the ability of this committee to meet with all those people who have expressed a concern with the legislation. I know the clerk and the Chair have been doing their very best to make certain that as many people as possible can be heard, but I believe there is no question that at the end of but three weeks in Toronto and a few weeks' travel, there will still be many, many people who will not have had the opportunity to bring forward their concerns, Mr Minister, in fact to go beyond, in your own words, "the headlines of the day," but rather to bring to this committee what this bill and these issues mean to the way in which they carry on business, create jobs and maintain existing jobs in this province.
I want to deal a little bit with the impact of the bill. It's an issue which will not come as any surprise to many people here. There has been a great deal of discussion over what this bill means in terms of its impact, an economic analysis if you will. The government has not conducted any economic analysis. They have not conducted any sector-by-sector analysis as to what this bill means in terms of the retail sector, the manufacturing or the agricultural sector. There have been such analyses performed or created by the private sector.
I think it's fair to say, Mr Minister, that whenever confronted with the results of those analyses, you have been highly critical. In many ways you have used some of the words you used today -- "disappointing," "saddening" -- and I think in some cases something even greater. There will be those who say it is your right to criticize analyses performed or conducted by the private sector, but I think others would say that as you have that right, you also have the obligation, if not the responsibility, to say, "I am critical of those economic analyses because we have done our own and this is what they show." That is where your criticism falls short, because you haven't conducted those analyses.
You have no idea what these changes will mean to our tourism sector. We have no idea what this will mean to the manufacturing base of this province and to the retail sector. I believe that the government of the day has the responsibility to conduct such an analysis before proceeding with legislation of this kind. Furthermore, I believe that criticism of others' analyses without having conducted one by yourself is a criticism which is quite empty.
We have to ask ourselves what this means in the area of replacement workers. I will bring forward an example. I know this is anecdotal but, for instance, in the area of public school bus drivers, what does this legislation mean if the replacement worker prohibition on school bus drivers continues? In many school jurisdictions in this province, the major way children get to school is on the school bus. With these provisions, if there is a strike with the school bus driver and replacement workers are not allowed, there is no way the children can get to school. What does that mean to the school system?
I use that as an example of what the impact will be, but I also use this as an example, Mr Minister and Mr Chair, that this is not an issue of labour on one side and management on the other. That is an incorrect characterization of what this bill is. This is a bill which will impact many people, not just the business community. It is not just the business community which has indicated concerns with the legislation.
I note that later on this day we will have the opportunity to discuss with some of your officials some of the aspects of the bill. I look forward to that. We have concerns dealing with this legislation. We have concerns over the objects clause of the legislation. We know that by this legislation the Ontario Labour Relations Board must follow a certain direction or mandate. The labour relations board, Mr Chair, as I know you are aware, is the body which decides issues under the Labour Relations Act. If there is a dispute, the board is the referee. The objects clause, as dictated by these amendments, moves the labour relations board from what was an impartial adjudicator to one which must, and is directed to, favour organized labour. I have concern whether a mandate of this kind is one which will in fact increase cooperation or indeed, as I suspect, deter from cooperation. When the referee is decided to favour one side or the other, that does not enhance cooperation.
We do have concerns with the replacement worker provisions. We do have concerns -- I'm very mindful of the time at this point -- over the provisions of the legislation that talk to third party property where there is a right to picket on private property. We want to be exploring what the impact of that means. Again I will be coming back to that aspect.
Minister, I know you have used the mall setting as an example. I believe the wording of this legislation is much broader than the commercial, industrial, retail mall; it is much broader indeed. But even taking that as an example, one has to ask oneself what happens if there is picketing in one establishment in a mall and what that means to a neighbouring establishment which is not subject to the picketing. What does that mean to its business? What impact does that have on their service? The people who have come before me -- again, Mr Minister, people who have looked very closely at this legislation -- have deep concerns over what that means in terms of the protections afforded to them. They do not see any protection.
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We have concerns dealing with the whole issue of organization: the right of the workers to organize, the right of the workers to freely exercise their choice and to change their mind if they so desire. I believe the provisions of this bill severely take away from the rights of workers, not only to make a choice, but also to change their minds. A right, I add, is one which is shared by everyone in this country, not only to choose, but also to freely change one's mind if one so wishes. This bill takes away from that.
To conclude my opening comments, this bill is not about the right of a worker to organize, to join a union. This bill is not about the right of a union, if so desired, to strike. That is now within the legislation. This is a bill that has an impact that will affect many people in this province and that does nothing for the 70% of the workforce in this province that is not unionized. We want to discuss these issues and others as we proceed through this public hearing process.
In conclusion, Mr Minister, I hope you will certainly take strong consideration over your comments that those people who have been opposed to the bill have really not looked at the bill, that they sadden you or disappoint you, because they have looked at the bill. They have looked at it hard. They have wanted to share what this bill means to them. In fact, your action with them has been most saddening and disappointing.
Mrs Elizabeth Witmer (Waterloo North): As the Ontario Progressive Conservative critic for Labour, it's a pleasure today to respond to the statements made by the minister. I have to tell you, the more carefully I examine Bill 40 the more I become aware of the fact that it is very seriously flawed and I become aware of the fact that it's not going to create one single new job in this province. I'm even more concerned that it's going to infringe on the rights of both employees and employers and severely damage labour relations in the province of Ontario.
Therefore, we either need some very major amendments to this legislation or the government should go back to the drawing board and start again. I have to tell you, the more I look at the bill the more I am convinced the government should abandon Bill 40 and start again, and this time use the tripartite task force approach where we bring people together and, as a result of consensus building, come up with reforms that are acceptable to business, labour and the government.
We have to remember that Ontario has the most comprehensive labour legislation in North America; we cannot forget that. It also has a labour relations climate that is the envy of all jurisdictions in North America and a legislative record that reflects a real effort to balance the interests of the employee and the employer.
I believe it is critical that we continue to have fairness, equity and security in the workplace. I believe that a balance has to be maintained between the often opposing perspectives of labour and management and that any legislation introduced has to be weighed and assessed as to whether it's going to jeopardize the growth of the economy, on which ultimately the wellbeing and the job of the worker depend.
Unfortunately, if we take a look at Bill 40, this government has not weighed the legislation. It has not taken a look at the balance to determine the economic impact on the worker or the job. The government has never answered three very simple questions: (1) What will be the cost to the Ontario economy of these changes? (2) How much investment and therefore future job creation has been and will be lost because of Bill 40? (3) Why are these radical and sweeping changes necessary at this time?
The government has refused to deal with those three questions in a meaningful and measurable way. It has never conducted an economic impact study. Unfortunately other studies indicate that these changes are going to have a detrimental impact on future investment in this province and also on job loss. I ask again, why has the government not done an economic impact study and why does the government continue to put down all the other economic impact studies and not conduct one of its own to disprove what's being said?
At the present time, it is more important -- Mr Mackenzie referred to this -- that workers and management set aside their differences and work together to compete in the global economy. However, I want to tell you that the process used in coming to Bill 40 has simply polarized all things in this province. This government, because of the process, has created a crisis on the labour front where we didn't have one. Instead of working constructively with labour and management to earn jobs, to earn investment for the province, it has introduced reforms which unfortunately will not lead to peace, as the minister has said he wants; it's going to lead to greater turmoil and conflict in the workplace.
Also, I want to dispute the fact the government makes that every change in the labour reform package is already in place in some other jurisdiction. This is simply not so. These proposals have been cherry-picked from different jurisdictions. Some of them have been enacted in other provinces; however, they are not in place anywhere in a total package, and I can tell you that some of them are not in place in any province whatsoever. We simply have to take a look at the purpose clause; you won't find it in any other Canadian province. Take a look at third-party picketing; it's not in place in any other province. Take a look at first-contract arbitration. For this government to say that all these changes are in place elsewhere is simply not true, and the list could go on.
Also, the government says it wants harmony and prosperity. Well, I can tell you that even though Quebec introduced the replacement worker law, there has not been harmony and peace in Quebec. They've had more days lost to strikes than Ontario despite a much smaller population base. The one thing we need to remember too in regard to the Quebec labour laws in the case of the replacement worker section is that Quebec laws let supervisory workers from other plants replace strikers. Also, Quebec laws require a vote from the workers before a strike can be called, unlike Ontario where work can be stopped if a union leader says so.
Again, Mr Mackenzie mentioned today that we need to update the act to reflect changes in the workplace. Well, I can tell you that the act has been amended in the past 15 years. Many changes have taken place. I don't want to indicate all of them here, but just a few of them are: in 1983, professional strikebreakers were banned; in 1986, first-contract arbitration was introduced and the act was amended to bring it into line with the charter. As well, laws affecting labour relations such as employment standards legislation, occupational health and safety legislation, workers' compensation, pay equity, wage protection fund and parental leave have all been dramatically altered during the past 15 years.
Yes, there have been changes made, and the act has been updated and the labour climate has changed within the last 15 years. Although the government claims there is a need to overhaul the act, there's certainly no demonstration that it needs to take place at the present time. Again, as I want to remind you, we already have the most progressive labour relations in North America.
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The minister said today that we need to get rid of the adversarial system in this province. I want to tell you that this bill, in the manner in which it has been introduced, has heightened the polarization in this province. It has increased the adversarial atmosphere. It's because of that process that we now have a very uncertain economic climate in this province, one that has contributed to the loss of investment and jobs.
At the present time, because of the process the minister has used, we now have Ontario being considered by people throughout the world as an area that is increasingly hostile to private enterprise. People throughout the world, whether it's the German investor, the Japanese investor or the American investor, are telling us they have no interest in investing in Canada. You know, if we have no new investment in Ontario, we have no new jobs at a time when people in this province are absolutely desperate for a job.
It's the process the government used that has contributed to the lost investment and jobs. Instead of consensus building in this highly sensitive area of labour relations, instead of establishing a tripartite task force composed of equal numbers of business, labour and government, bringing them together, asking them to review the labour relations system, asking them to identify the problems with the system and to make recommendations for changes, this whole agenda, from beginning to end, has been shaped by proposals that were drafted by the Labour minister on behalf of trade unions. The entire process since March 1991 has used one agenda, and all participants have been forced to respond to the union leaders' agenda -- all the participants in the so-called consultation process.
The cooperative approach to establishing an agenda to determine what needed to change within labour relations, all of this was sacrificed. There was no attempt ever for a cooperative approach. That's unfortunate, because that is what has contributed to the adversarial climate in the province and the uncertain economic climate.
The minister referred to the fact that people have expressed concern about the bill. Why are people concerned? I've just told you: the process that was used, and also the fact that we have here the most radical pro-union set of reforms ever proposed in a single package in any jurisdiction in Canada. Moreover, these proposals tilt the balance of power in favour of unions.
I can understand the government's desire to see some changes made to our labour laws but you know, in something as sensitive as labour relations, it's important that you cooperate, consult and build consensus and not create the adversarial atmosphere and the polarization that this government has created in this province today.
One of the areas that concerns me the most is what Bill 40 does for the individual worker. It's a concern I've had from the outset. There's a real infringement on the rights of the individual and the worker. The minister talked about the need to allow the part-time worker, the immigrant worker, women, to unionize. Yes, I do believe that all individuals should have the right to organize if that is their wish. However, the process must ensure that all those workers are fully informed of what is involved in joining a union, and the process must ensure that each individual can express his opinion freely without intimidation from any source, whether it be the union organizer or his or her employer.
I want to remind you that immigrants are in a very vulnerable position. Their communications skills are poor. I say this because I'm the daughter of immigrants and I know how my parents struggled in that area. These people need to be given the right to organize if that's their wish. However, they should be fully informed of what is involved in joining a union and this legislation does not allow for the complete distribution of information. The bill must make it mandatory that the union provide all relevant information to the workers concerning its constitution, its dues, the significance of strikes, its labour history etc, and the management side needs to be able to present its argument for or against organization, or you're simply going to put these people in a position where they don't understand the step they've taken in joining or not joining a union.
Then you need to make sure not only that the worker is well informed; you need to make sure he or she has an opportunity to express his or her desire by means of a secret ballot. This is the only true way of enabling one to freely express his or her opinion, because we know that all individuals at times are subjected to coercion on this issue from both sides. That's why that secret ballot is so essential. So if we're really concerned about those immigrants and those women, people who are very vulnerable to intimidation, let's make sure we provide them with all the information and give them the secret ballot.
There are many other areas within Bill 40 that I'm concerned about. I'm concerned about the replacement worker section. I'm concerned that it's certainly going to impact on the jobs in this province. Many people have indicated to me already that this is one of the reasons they would leave the province or would build a plant elsewhere. It's going to have a very negative impact. It did in Quebec and it led them to choose other alternatives.
I could go through the bill and talk about other sections as well that I'm concerned about. I'm concerned about the change in direction in the purpose clause and certainly I'm concerned about the first-contract arbitration, where there would be access to first-contract arbitration for either the union or employer after 30 days after the legal strike-lockout date. Again, no other Canadian jurisdiction has this provision and I think we have to take a look at the consequences. Unfortunately, one of the consequences is going to be that it's not going to work towards the goal Mr Mackenzie talked about, the goal of greater labour and management cooperation, because it's going to take cooperation out of the hands of the union and the employer and it's going to put it in the hands of a third party. I'm certainly very concerned about that.
I'm concerned about the third-party property provision because it actually overrides the Trespass to Property Act and it will violate the rights of property owners and innocent consumers. I'm concerned about the opportunity to combine newly certified or existing bargaining units for the purpose of conducting collective bargaining. Again, the consolidation of bargaining units is going to mean that local autonomy is going to be lost and that individual employees are going to lose control over their destinies, all for the sake of enhancing union power. I'm concerned about the full-time and part-time unit proposal. Again, no other Canadian jurisdiction has this provision, and again, individuals are going to sacrifice their choice and their freedom.
This legislation is not going to do anything to create new jobs or to encourage investment in Ontario, and I think on that basis alone it must be considered. It's going to hurt the individual freedoms of individuals. However, if this legislation causes even one company to leave Ontario or discourages one company from locating in Ontario, then it has hurt the people in this province. This government needs to remember that it has a responsibility to act at all times in the best interests of all the people in Ontario. They cannot simply respond to the union leaders' agenda.
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It's unfortunate that up until now all the partners in the process have not been consulted. I want to tell you, Mr Minister, that I've recently started to receive faxes from unions -- obviously smaller unions, not the big ones -- telling me they're upset that they were not involved in the process of Bill 40 and in determining the direction to go in. They're concerned that the big unions had the input.
It is unfortunate that the government hasn't listened to input from all the people in the province. It's unfortunate that there's not a real commitment to ensuring that there's balance in the legislation, and that recognition of the fundamental rights and freedoms are not in the legislation.
I would urge this government either to amend this bill drastically or to send it back to the drawing board. I urge this government to start listening to all the individuals in this province; not only listening but incorporating the agenda of those people who are making presentations.
The one concern I've had and that I want to mention again, before I stop today, is that we're sitting here for five weeks -- we're travelling the province for two of the five -- and that what we're doing is a public relations exercise that's not going to achieve any real change in Bill 40. I would suggest that the government listen seriously to the concerns of people in this province about the impact of Bill 40 on jobs in this province.
We need to develop a cooperative atmosphere -- I agree with the minister -- and we need to serve all the people. We need to ensure the economic viability of this province. In order to do that, we need to make sure that all voices are not only listened to, but that their views are incorporated into the rewritten draft of Bill 40.
The Chair: Thank you. I appreciate your taking the time to be here. We will spend the balance of the afternoon with the deputy minister and three of his staff. If those people could come and seat themselves at these four mikes, there are copies of Bill 40 available, to people who want them, on the front tables.
Please tell us who you are and your titles: Deputy Minister Jim Thomas first.
Mr Jim Thomas: Good afternoon. I'm pleased to be here this afternoon to take you through a technical review of Bill 40. With me are Pauline Ryan, Jerry Kovacs and Tony Dean.
The Chair: Ms Ryan, I understand, is the policy adviser, Ontario Labour Relations Act.
Mr Thomas: That's correct.
The Chair: Mr Kovacs is of the legal services branch.
Mr Thomas: Yes.
The Chair: And Mr Dean is the administrator, office of collective bargaining information.
I understand you're going to give an introduction to the bill and then discuss some specific clauses. Then of course people will be available for questions from members of the committee.
Mr Thomas: Yes. What I thought I would do, if it's agreeable to the committee, is to begin with a basic labour relations overview, then get into the overview of the reforms and then on to the important aspects of the reform and perhaps take you through a reading of Bill 40 and how it plays out.
Before delving into the specifics of Bill 40's reforms, I thought it might be helpful to provide a quick overview of the Labour Relations Act; that is, to whom it applies, how employers, employees, unions operate under it, how it is enforced, and definitions of some of the basic terminology of the act that you're going to be hearing over the next five weeks.
I'd also like to briefly contrast the Ontario Labour Relations Act, which will be referred to of course as we go through as the OLRA, with the Employment Standards Act, the ESA, since Bill 40 does contain amendments to both acts.
The Chair: If I might interrupt, and I'm sorry to do that, people who are watching should know that if they want a copy of the bill they can write to their MPP or to the clerk of the committee, to get a copy of Bill 40, or of course to inquire about or acquire any of the other material you're referring to. So people should note that. It's a simple matter of calling or writing their MPP or anybody else at Queen's Park and they'll get that promptly. Sorry to interrupt. Yes, Mr Offer.
Mr Offer: On a point of order, Mr Chair: I'm wondering if we might be able to get, as best as possible, some idea as to the time required for this very important overview and then the time which would be allocated to the caucuses.
The Chair: We're here till 5 o'clock. How long do you estimate you'll be taking in your introduction and presentation?
Mr Thomas: Without questions, it's about an hour and a half.
Mrs Witmer: In total?
Mr Thomas: In total.
The Chair: Perhaps you could try to accelerate that a little bit.
Mr Thomas: I'll do my best.
The Chair: We'll be watching the clock.
Mr Thomas: The most basic distinction between the two acts is that the Labour Relations Act governs unionized workplaces while the Employment Standards Act governs all employees in the province regardless of unionization.
The role of the OLRA has been to govern the process by which employees in most of Ontario's workplaces may organize and negotiate collectively with their employers. It does not apply to non-unionized workplaces and it does not require that any workplace become unionized. Rather, it sets out the circumstances in which a majority of employees in a workplace may form or join a union to represent them in collective bargaining with their employer.
The OLRA applies only to those persons whom it defines as employees. Managers, professionals, domestics, agricultural workers and a list of others are currently specifically excluded from the application of the act.
Whether or not a workplace is organized, the Employment Standards Act applies to ensure minimum standards of employment terms and conditions. While the most familiar of these terms is the minimum wage, it also sets out rules governing maximum work hours per week, public holidays and a range of other subjects. While the ESA provides minimum standards for unionized employees and non-unionized, the OLRA provides a framework in which employees may join together to take a role in the operation of the workplace and to negotiate for improved terms and conditions of employment.
When employees choose union representation, the union becomes the exclusive bargaining agent of the employees and the employer is required to deal only with the union in bargaining terms and conditions of employment. Unionization occurs either with the consent of the employer, and that is called voluntary recognition, or on application by the union to the OLRB, the Ontario Labour Relations Board, for certification as the exclusive bargaining agent of a particular employer's employees.
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The process of unionization typically begins with a union organizing campaign. Union representatives meet with employees to discuss whether the employees wish to join the union. By doing so, that union would represent those employees collectively in bargaining with their employer about their terms and conditions of employment. The union representatives must gather evidence of support for the union in the form of signed membership cards or applications for membership. The act also requires that the union representative receive a minimum $1 fee from each employee supporter in respect of membership fees or an application fee.
Once a union has gathered signed cards from a majority of an employer's employees, it will file those cards along with an application for certification before the Ontario Labour Relations Board.
In issuing a certificate, the labour board is charged with determining the appropriate bargaining unit which the union will be certified to represent. The "appropriate bargaining unit" is a description of the class or classes of employees that the board decides are most appropriately grouped together for collective bargaining purposes.
After determining the appropriate bargaining unit in an application for certification, the board then identifies how many employees of the employer fall within that unit. The board counts the number of employees who are union members or who have applied to become union members. With 55% support, the union is certified. This result is usually referred to as automatic certification or certification without a vote. In cases of unequivocal and unchallenged majority support for the union, certification may take place without a hearing. If the union has less than 55% support but more than 45% support, the board conducts a vote to determine support for the union.
Currently the board sets a deadline known as the "terminal date" for the filing of evidence of support for or opposition to the union. The act now permits the board discretion to determine that terminal date. The board's practice is to set a date about 10 days after the filing of the application for certification. It's within that 10-day period between the date of the application for certification and the terminal date that petitions of opposition to the union are often filed. If the names on a petition overlap with the names the union has submitted as union supporters such that the union cannot show unequivocal support of 55% of the bargaining unit, the board will hold a hearing to determine whether the petition was voluntarily signed. If it's found to be voluntary, the board will order a representation vote.
After voluntary recognition or certification of a union, collective bargaining in good faith must occur. If the parties are unable to reach an agreement, either may request that the minister appoint a conciliation officer to assist them. If the officer is unable to assist, she or he typically advises the minister that is unadvisable to appoint a board of conciliation before which the parties should appear. This results in issuance of what is commonly referred to as a "no-board report," which is a letter from the minister advising the parties of the conciliator's advice. It is the legal prerequisite to a strike or lockout. The parties are in a lawful strike or lockout position 14 days after the release of the no-board report.
The act provides an alternative to strike or lockout in the instance of bargaining the parties' very first collective agreement. Either party may apply to the OLRB for a direction that a first agreement be settled by arbitration. There must be wrongdoing on the part of the respondent party before the board will issue the direction to permit access to the arbitration process. Arbitration of the terms and conditions of a collective agreement is commonly referred to as "interest arbitration."
The act sets out a number of mandatory provisions that all parties must include in their collective agreements such as a method for resolving grievances by private arbitration. The act governs the jurisdiction and procedural powers and the duties of these private arbitrators. As opposed to interest arbitration, arbitration of disputes under a collective agreement or grievances regarding violation of a collective agreement is commonly referred to as "rights arbitration."
The Chair: Excuse me, if I may. Some committee members have expressed an interest in having a copy, if you do have a text you're presenting this from, to follow along with you. If you have copies, could we have them, and, if not, perhaps they could be made over the next few minutes. The clerk could make them.
Mr Thomas: We can make them over the last few minutes if we don't have them.
The act also provides an expedited system of arbitration by a sole arbitrator for use in resolving grievances regarding breach of a collective agreement. In that case the minister appoints the sole arbitrator.
The act contains provisions governing employees' rights to seek termination of of the bargaining rights of the union that represents them. It governs how and when other unions may seek to displace a union currently holding bargaining rights.
The act governs the transfer of a union's bargaining rights in the event of a sale of the employer's business to another employer company. Further, the purchaser becomes a successor employer and is bound to certain proceedings involving the vendor employer. These provisions also deal with problems that arise when the purchaser intermingles its own union or non-union employees with employees who were already working for the vendor employer. Together these provisions are commonly referred to as a union's "successor rights" under the act, and I raise that with you because there are provisions within the Ontario Labour Relations Act reform that deal with successor rights changes.
The act guarantees basic organizing and collective bargaining rights to employees, prohibits a number of practices or activities by unions and employers and sets out a number of duties for each. For instance, the act prohibits an employer from penalizing employees for reason of their exercise of statutory rights. It also imposes a duty upon unions to fairly represent individual employees. These provisions of the act are generally termed "unfair labour practices." They are enforced by way of a complaint to the Ontario Labour Relations Board under section 91 of the act, and the board's remedial powers include reinstatement of employees who were dismissed for reasons contrary to the act, and the authority to require that a union take certain actions on behalf of unfairly treated members.
The act empowers the labour board as the tribunal charged with administering and enforcing the act. For example, it deals with applications for certification or termination of union bargaining rights and with complaints of unfair labour practices. Arbitrators represent a different sort of tribunal. They are established under private collective agreements for the purpose of resolving disputes under those agreements. The OLRB is a public tribunal and arbitration boards are private tribunals.
Finally, the act contains extensive provisions regarding the establishment of bargaining rights and special procedures for collective bargaining in the unique circumstances of the construction industry.
Unless committee members have particular general questions regarding the operation of the act, I propose next to provide a general overview of the areas of reform contained in Bill 40.
The Chair: Thank you. Please do.
Mr Thomas: The bill's reforms are focused in the following areas. There are 11 areas of reform, and as you will be getting a copy of these remarks, you won't of course need to write them down, but I'll just briefly take you through them: (1) the creation of a purpose clause; (2) enhancing the ability to organize; (3) streamlining the organizing process; (4) expediting the certification process; (5) redesigning the structure and configuration of bargaining units; (6) protecting the negotiation of the first collective agreement; (7) improving collective bargaining -- reducing conflict related to industrial disputes; (8) preserving bargaining rights; (9) approving the adjudication by the Ontario Labour Relations Board; (10) exploiting and streamlining the grievance arbitration process; (11) structuring adjustment and change in the workplace.
After having reviewed the highlights of reform in these areas, I propose then to turn to the language of Bill 40 itself, and I'll make my best efforts to explain the sections of the bill and the manner in which those sections create the changes that I'm going to talk to you about.
The first one is the creation of a purpose clause. The proposed new purpose clause would expand upon the theme of the current preamble. The preamble focuses on the act's purpose of encouraging fair practices in collective bargaining. The purpose clause would give greater guidance to the OLRB in cases where the board finds ambiguity in the intent of particular provisions of the act.
Like the preamble, it focuses on the collective bargaining process rather than on results. However, it is more specific than the preamble and it explicitly recognizes the purpose of encouraging cooperative approaches between employers and unions in workplace adjustment and in promoting workplace productivity.
In other jurisdictions, such as British Columbia, Alberta, Manitoba and the federal jurisdiction, where labour relations statutes contain purpose clauses, the labour tribunals charged with interpreting the statute have relied on the purpose clause when their decision-making must take account of statutory intent that is not clear on the face of the particular provision governing the case. It is intended to resolve ambiguities.
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The second area of reform is enhancing the ability to organize. The effect of this category of reforms is to modernize our labour legislation consistent with many other jurisdictions in Canada. Professional employees and domestics, formerly excluded from the right to organize under the act, are now permitted to organize, just as in most other jurisdictions. There is an exception in the case of certain physicians and interns and residents who are covered by existing collective bargaining regimes. They will not have access to collective bargaining under the OLRA.
As is the case in every other jurisdiction in the country, security guards in Ontario will no longer be limited in their choice of trade union representation. Guards will be permitted to join the trade union of their choice, but the OLRB would be required to place guards in a separate unit if they monitor other employees to such an extent that there would be a conflict of interest if they were included in the same unit.
The bill contains provisions that by way of regulation would permit inclusion of agricultural and horticultural workers. These workers are currently excluded from access to collective bargaining. The provisions envisage the possibility of a separate regime that would not involve the right to strike or to lock out.
As you may be aware, Bill 40 was tabled before the minister's agricultural task force actually submitted its initial report to the government, so these provisions of the bill were drafted before the task force made its recommendations. The government has noted that it awaits further recommendations from the agricultural task force and it has made a commitment to consideration of the task force's current recommendation to a separate statutory treatment of agricultural workers' rights to collective bargaining.
The third area is streamlining the organizing process. Currently there is very little in the act which addresses the difficulties that can occur between an employer, a bargaining agent and employees during the course of an organizing drive. The bill will provide for an expedited hearing process for complaints of unfair labour practices resulting in the dismissal or discipline or improper penalizing of an employee during an organizing campaign. While only a minority of employers engage in such behaviour, such allegations can be very intimidating to other employees and can have a chilling effect on an organizing campaign. These cases need to be investigated and resolved quickly.
Under the bill's provisions, the board will be required to commence hearing of any such complaint within 15 days of its receipt and will sit on four consecutive days each week until the hearing is completed. A decision must be issued within 48 hours of the completion of the hearing. In this way, very emotional confrontations can be expeditiously resolved at a very sensitive time in the unionizing process.
The bill provides employees and union representatives with the right to organize and picket on third-party property, but limits it to entrances and exits of that workplace. The typical example of affected third-party property is the shopping mall. This right will allow unions an opportunity to meet employees in the proposed unit who are otherwise difficult to identify and reach.
Affected parties may apply to the labour board for further restrictions on the number of organizers or pickets, the time of picketing, the location etc. In the event that such activity unduly interferes with business activity of a third party -- for example, if a clothing store within a mall was struck today, the picketing would likely occur at the entrance to the mall, affecting all mall patrons. The new provision allows picketing at the entrances and exits to the clothing store itself. If other businesses in the mall feel their business is unduly disrupted, they may apply to the board for further restrictions.
The fourth area of reform deals with expediting the certification process. The bill maintains the current requirement of evidence that 55% of employees in a bargaining unit are union members before the board will grant automatic certification, but the bill lowers the minimum percentage required for a representation vote conducted by the board from 45% to 40%. Therefore, when the OLRB receives undisputed membership evidence through signed cards that at least 55% of employees in the proposed unit wish to join the union, a vote to confirm these wishes is not required, and where a union shows that it has support of between 40% and 55%, a vote will be conducted. The existing requirement of the $1 fee payment as part of proof of union membership is eliminated.
The act's provisions dealing with the board's processes in determining employee support for the application for certification are modified to ensure that the process is fair and not subject to unnecessary contention. In many cases, current board practice is codified and I will point those out to you in the clause-by-clause description.
The bill would prohibit consideration of petitions filed after the date of the filing of the certification application; that 10-day period from the certification application date to the terminal date is eliminated. As I indicated earlier, the board currently will accept petitions filed at any time up to the terminal date. The bill will make the terminal date the same as the application date. This means that once the union has filed its application for status as the bargaining agent, employees cannot seek to revoke their previous support, other than by disputing the voluntariness of their original choice; that is still possible.
Note that nothing in the bill prohibits consideration of petitions submitted on or before the application date. Further, evidence of intimidation, coercion or unfair labour practices relating to the gathering of membership evidence may be presented to the board after the application date. The amendments related to petitions bring Ontario in line with many other jurisdictions in the country.
Ontario experience has shown that petitions are filed in about 20% of all certification cases and that most of these petitions, somewhere between 80% and 90%, are rejected by the board after extended litigation.
The bill amends the act's provisions regarding certification of a trade union by the board in the event of an unfair labour practice by the employer. Currently, the board must satisfy itself that employer conduct has been so intrusive and intimidating that it makes it unlikely that the true wishes of employees about their desire to join a union can be ascertained. That's one part of the test.
The second part of the current test is that if the union wants automatic certification without a vote because of the employer interference, the union must show evidence of adequate membership support. It may be impossible for a union to demonstrate adequate membership support if an employer engages in effective, unfair labour practices early in the organizing campaign. Therefore, the bill removes the second requirement.
British Columbia's legislation takes a similar approach.
The fifth area of reform is redesigning the structure and configuration of bargaining units. Unlike all other jurisdictions, the Ontario Labour Relations Board has determined that part-time and full-time employees do not usually share a community of interest and the board therefore generally holds that it is inappropriate to combine full-time and part-time employees in a single unit.
Bill 40's reforms in this area of the law follow the evolving nature of the Ontario workforce. The number of part-time workers almost doubled between 1975 and 1991, from 430,000 to 806,000. Part-time workers now form 17% of the province's workforce. In 1990, women made up about two thirds of employees who took up part-time work on an involuntary basis -- because they had to, not because they wanted to. Ninety per cent of part-time work is found in the province's fastest-growing sector, the service industry.
The bill proposes that the act would deem that a bargaining unit consisting of both full-time and part-time employees is appropriate for collective bargaining. This would ensure that collective bargaining better reflects the modern reality of our workforce. In applying for certification, a union would be required to apply for a combined full-time and part-time unit. If the union lacks majority support across that combined unit, the board would be required to separate the employees into full-time and part-time units. A separate count of union support would then be taken in each of the units and the union would be certified if it had majority support in either unit.
The bill also proposes the addition of an important new provision in the act governing the consolidation of bargaining units. Consolidation is the merger of two or more separate bargaining units into a single bargaining unit. As in the case of part-time employee bargaining units, legislative direction is required to ensure that the Ontario Labour Relations Board is authorized to take such actions.
A number of labour boards in other jurisdictions already exercise the power to consolidate existing or proposed bargaining units. The experience in these jurisdictions has been that requests for consolidation are received from both employers and trade unions. The benefits of consolidation extend to both the employer and the employees. Employers can avoid the risk of numerous strikes and numerous rounds of negotiations, while employees benefit from the strength of speaking with one greater voice.
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On application by either an employer or a union, the board would have the discretion to combine two or more units, provided that the units were represented by the same union and involved the same employer. The proposed section sets out a number of factors that the board is required to consider in determining whether consolidation is appropriate, including the extent to which consolidation would facilitate viable and stable collective bargaining or would cause serious labour relations problems.
In cases involving geographically separate locations of an employer, the board would be prohibited from combining bargaining units where to do so would interfere with the employer's ability to maintain significant operational or production differences between the locations. For example, an industrial manufacturer with large plants in different locations in the province may operate the plants in very different manners and for very different production purposes.
The sixth area of reform is protecting the negotiation of a first collective agreement. Currently, after a union is certified or voluntarily recognized as the bargaining agent of an employer's employees, the union and the employer are required to negotiate a collective agreement. As I indicated, they go down the process of attempting to reach an agreement, and ultimately if a no-board report is generated, that becomes the necessary prerequisite to a strike or lockout; 14 days thereafter is the legal time frame.
In the negotiations between an employer and a newly certified or voluntarily recognized union, the union is often in its weakest position and bargaining is often at its most difficult. Furthermore, one or both of the parties may be unfamiliar with the collective bargaining process. In addition, it is the first time the parties are addressing a variety of terms and conditions of employment.
A strike or lockout is often particularly inappropriate for dispute resolution at this opening phase of the parties' relationship. Because of this problem, it may be more appropriate for resolution of bargaining disputes to take place by way of arbitration -- this would be interest arbitration -- rather than strike or lockout. The OLRA already addresses this in section 41's procedures for application for first-contract arbitration.
Where a party contravenes statutory obligations or there are serious difficulties in the parties' relationship, the act presently permits arbitration of the parties' first collective agreement. However, this route is available only after application to the labour board for a direction that the agreement must be settled by arbitration. The applicant must meet one or more of the act's tests for serious difficulty in the parties' relationship.
After the board makes the direction, the parties presently may choose either the OLRB or a private arbitration board to arbitrate the terms of their collective agreement. Practice under the first-contract arbitration provisions has proven to be costly, both in terms of the expense and time required to litigate before the board. On average, it takes 48 days to complete the direction process. It can take several months, and has taken as long as 613 days, to complete the process of defining a direction to proceed to arbitration, and then there is the arbitration time added on to that.
Bill 40 proposes a right of automatic access to first-contract arbitration after 30 days have passed from the point at which the parties have been in a legal strike or lockout position; that's the 14 days after the no-board report. This is similar to the system under Manitoba's statute. Application would be made to the minister, and both the applicant and the respondent would be required to file a complete version of a collective agreement which they would be prepared to sign. This is an attempt to ensure that the parties will make some serious effort at making a collective agreement while not creating barriers to arbitration.
The bill proposes to maintain the current system for first-contract arbitration. Therefore a party will have a choice. A party can choose to go the OLRB route for a direction that a first contract be settled by arbitration, but the OLRB would no longer be the arbitrator; it would go to private arbitration. As a result, under both the old and the new systems, parties would now use private arbitration boards to settle the terms of their first contract. The parties may agree to use final-offer selection -- like the baseball draft -- as a method of arbitration.
Another area of reform focuses on just-cause protection for newly organized employees who have not yet reached a first collective agreement with their employer. Currently, during the term of almost every collective agreement employees cannot be arbitrarily disciplined or dismissed. This is because most collective agreements contain a provision that the employer shall not discipline or dismiss an employee without just cause.
Just-cause protection is one of the fundamental outcomes that unions and employees seek in the collective bargaining process. As a result, unionized employees have a right that non-unionized employees lack, the right to challenge discipline or dismissal and to have such employer action reversed if it was not taken with just cause.
Non-union employees only have a common-law right to sue their employer for lack of sufficient notice of dismissal; the courts do not consider the propriety of dismissals and do not reinstate employees to their jobs, nor will the courts hear complaints of improper discipline. Just-cause protection then becomes one of the fundamental outcomes of unionization.
The bill seeks to address the delay the legal system causes to newly unionized members and the goal of achieving just-cause protection against wrongful discipline or dismissal. Employers would be prohibited from discharging or disciplining an employee without just cause in the period following the certification of a trade union up to the point where the first collective agreement is made. So from the date of certification up to the point where the first collective agreement is made, the bill would add just-cause protection.
In addition, in a second area, the bill provides that all collective agreements shall be deemed to include just-cause protection during the operating of the collective agreement. In both instances, the bill provides that a lesser standard may apply for probationary employees.
Finally, the bill also proposes continuation of just-cause provisions in the period following the expiry of the collective agreement, up to the point of making the renewal collective agreement -- the open period during a collective agreement.
In adopting these measures, Ontario's legislation would follow the lead of the Manitoba and British Columbia statutes.
The seventh area of reform is improving collective bargaining by reducing conflict in industrial disputes. Bill 40's provisions regarding the use of replacement workers during a strike represent a new and unique approach tailored to meet the particular concerns of Ontario's labour relations scheme. The Bill 40 approach is different from the Quebec model and different from the models suggested in the government's discussion paper of November 1991. The government has attempted to design these provisions in a manner responsive to the many comments received during the consultation process.
In addition to those many comments, the government gave special consideration to Ontario's experience with strikes and lockouts. The government has also very carefully considered and attempted to address employers' and the public's concerns regarding the continuation of services in special workplaces and in special circumstances.
Ministry of Labour statistics for 1991 for collective bargaining that is under the Ontario Labour Relations Act indicated, first of all, that there were 94 work stoppages in 1991. I'm at page 21, if you're now following along. Of the 94 stoppages, 56 involved the use of replacement workers. Of the 56 stoppages where replacement workers were used, in 19 of those cases the employer used replacement workers who would be prohibited by the new provisions of Bill 40. Of those 19 cases, only five were in the manufacturing sector and no auto parts disputes would have been affected.
The replacement worker provisions are intended to minimize picket line violence and to ensure that collective bargaining disputes are resolved as quickly as possible. The prohibited categories of persons are those whose employment during a strike or lockout is most likely to engender hostility between the parties.
The replacement worker provisions work by creating statutory prohibitions against the use of certain categories of employees. Where the provisions do not particularize the location where the employees may or may not work, it means that those categories of employees are prohibited from working at any location, whether it be the struck location or elsewhere. One of the categories does focus on location and it lists the sorts of persons who are prohibited from working at the struck location.
It's important to note that an employer is prohibited from using the listed persons only if the union can prove support for the strike from at least 60% of bargaining unit members who vote in a secret ballot strike vote. Failing that, there are no new limits on the employer's ability to use replacement workers.
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The provisions also set out the type of work that the listed persons cannot perform. Bargaining unit employees -- these are members of the striking bargaining unit -- fall under a blanket prohibition and they cannot be employed for any purpose. The other categories of banned persons are specifically prohibited from doing either the struck work or the ordinary work of someone who has been shifted into the struck work to backfill.
As you see, the provisions describe which persons are prohibited from working, rather than those persons who are permitted to work, during a strike or lockout. The list of permitted persons is drawn by inference. I'll describe that list in terms of those who may work at the struck location and those who may work at other locations. I think it's important that all people are proceeding forward with the same understanding of who can work and who can't work so I'll cover it here, but I'll also show you later on how it fits into section 73.1 of the bill.
At the struck location, the people who can work are managers from that location, non-bargaining unit employees from that location who have a right to refuse to work and other people who were usual workers at the struck location prior to the strike, for example, volunteers or independent contractors.
At other locations, the people who can do the work include managers and supervisors from any location, non-bargaining unit employees from any location who have a right to refuse and other persons who were the usual workers at any location prior to the strike: the volunteers, the independent contractors. On top of that, an employer is not prohibited from contracting out the struck work.
Let me go back the other way and tell you what are the prohibited categories of people. First of all, members of the striking bargaining unit cannot perform any work at any location during the strike. Second, new hires, people who have been hired since the notice to bargain was given, cannot perform either the struck work or the work of the person who has been shifted into struck work at any location; that's the backfill one.
At the struck location, the employer cannot use any of the following people to perform either struck work or the backfill work: (1) any manager, employee, volunteer or independent contractor who usually works at a different location; (2) any manager, employee, volunteer or independent contractor who was transferred to the struck location after bargaining had commenced; (3) any person other than a manager; and (4) any person supplied by another person, like the temporary services.
If I can take a minute more on this so that people are clear, if a person has two operations, one in Toronto that is on strike and one in Barrie that is not on strike, the employer can transfer the work if it wishes, if it can, to the Barrie operation. When it's doing the work in the Barrie operation, it is able to use those people on page 23, in the second numbered paragraph: managers from any location, non-bargaining unit employees from any location who can refuse etc. Those are the people who can be used in the Barrie location.
If the employer continues to operate in Toronto at the struck facility, there are more restrictions on who that employer can use, because that's the entity that's on strike. So at the struck location, the employer basically can use managers or supervisors from that location and non-bargaining unit employees from that location who have a right to refuse. They can't use new hires or striking bargaining unit members and they can't transfer people in after the strike has begun and say those are people who are now part of the struck location workforce.
I'll go over this one more time and certainly take questions from you to make sure people are clear on this when I get to the clause reading, which I'll get to very quickly.
As I suggested earlier, the bill contains an extensive set of provisions regarding exceptions to the replacement worker ban. I've told you who an employer can use and who it can't use in the normal case, but there are two categories of exceptions. One focuses on special circumstances in which an employer may use people who are otherwise prohibited replacement workers. The other category focuses on special workplaces where employers may use people who are otherwise prohibited, in order to provide key human services.
The first category, the special circumstances category, applies to all employers generally, no matter what the employer's business. An employer is not bound by the replacement worker prohibitions in circumstances where its business must continue in order to prevent danger to life, health or safety or serious damage to equipment or premises or serious environmental damage.
The second category ensures the provision of a list of certain key human services such as correctional institutions, halfway houses, group homes for the mentally disabled and crisis intervention centres. A strike, then, will not prevent the continuing provision of these services.
In order to continue business in either of these special circumstances, the bill proposes to permit employers to use what the bill calls "specified replacement workers." These are categories of people that the replacement worker provisions would otherwise ban from working, but they can be used either to prevent the harm or to provide human services.
An employer must notify the union of the extent to which it wishes to use replacement workers, in the event that its services fall within the key human services or if it's into the endangerment exception. The union has a right first to agree to use bargaining unit employees. The parties have access to the Ontario Labour Relations Board to resolve differences related to these provisions. In an emergency, an employer must notify the union as soon as possible of the need for use of replacement workers. In the interim, it may proceed to use replacement workers. The union would have a right to replace those workers with bargaining unit employees, provided the employees are willing to work.
To assist the board -- these become matters that need to be dealt with quickly, particularly in the emergency kinds of situations -- the board is empowered to assign a single vice-chair to hear these cases. Further, the board is authorized to make special rules to expedite proceedings.
Another important area of reform related to dispute resolution is the return-to-work protocol. Under the current provisions of the act, employees have a right to make unconditional application to the employer to return to work during the first six months of a strike. Nothing governs returning to work if the strike goes on longer than six months.
The bill's provisions would require reinstatement of employees at the end of a strike or lockout, provided the employer has sufficient work for the employees. If there isn't sufficient work for all employees, the employer must reinstate employees according to their seniority as defined in accordance with the collective agreement's layoff recall provisions. If there are no recall provisions, reinstatement must be in accordance with each employee's length of service as determined at the commencement of the strike or lockout. Similar provisions are already in place in British Columbia, Manitoba, Quebec and Prince Edward Island. They help to eliminate some of the most emotional issues in negotiations to conclude a strike or lockout.
The bill also proposes continuation of benefits granted under the expired collective agreement for striking or locked-out employees during a dispute, provided that the union makes all payments required for such continuation. At the union's option then, employees could continue to receive medical, dental, legal or other such benefits.
The next area of reform is the preservation of bargaining rights. The bill proposes revisions of the provisions in section 64 governing successor rights, which I told you about earlier, in the event of the sale of a business. Currently the provisions of the act require the purchaser of a business to respect the bargaining rights of a union representing employees of the vendor employer. Further, the act binds the purchaser to any existing collective agreement. If a union is in the midst of an application for certification with the vendor employer, the purchaser steps into the shoes of the vendor employer as a respondent to that application.
The bill extends the obligations of a purchaser of a business. On top of its obligations with respect to an ongoing application for certification, the purchaser would step into the shoes of the vendor as a party to any proceedings before the OLRB, or any proceeding under the Labour Relations Act or the Hospital Labour Disputes Arbitration Act, including collective bargaining notices, conciliation, ongoing labour disputes etc.
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For example, service of a notice to bargain is a type of proceeding under the act. Currently, where a union has served notice to bargain and even if it has commenced bargaining, a sale of the employer's business means that the union must start over with new service of notice to bargain. Under the new provisions, if a union has served notice to bargain and has commenced bargaining with the vendor, the union would not be required to start the process from scratch but could take over from the notice to bargain.
The bill will not bind the purchaser to adopt the bargaining proposals of the vendor. Accordingly, if the vendor and the union have reached agreement on some issues, such as wages and job protection, the purchaser would not necessarily be bound to adopt those positions. This would bring the Ontario successor rights obligations in line with the BC, Saskatchewan, Manitoba and federal statutes.
The bill also extends the definition of a sale of a business to include the transfer of a business from the federal to the provincial jurisdiction. There's a provision for special treatment by the board of the unique factors arising from such a transfer, since you're moving from one jurisdiction of labour regime to another.
The bill further proposes the extension of successor rights obligations in the event of a transfer of a contract from one contractor to another if the contractor provides services to a premise, such as cleaning services, food services or security services.
These provisions are different. These provisions are trend-setting, designed to protect a category of particularly vulnerable Ontario workers. Workers in Ontario's building services sector -- cleaners in Toronto's office towers, for example -- represent a stable workforce of employees who regularly work at single premises. Although the workforce may be stable, the employer is not. Building owners or managers usually contract with a cleaning service employer to service the building. They might put that contract out to tender on a regular basis. Even where a particular contractor may have provided services at a building for 10 years with the same employees, these employees have no rights to maintain their bargaining agent or their jobs if there's a change of contractor.
I think these provisions should be read with the extensive proposed amendments to the Employment Standards Act governing the same circumstances. The reason for that is that most of that sector is not unionized. In the cleaning services the figure is something in the order of 6%. Across the sector we're talking about here, the rate of unionization may be 10% to 12%, so what we're talking about here is a workforce that is substantially non-unionized and therefore must rely for its minimum protections on the Employment Standards Act.
Together, the new protections under both acts mean that employees who work in the building will not lose their jobs or their union representation just because the owner or manager lets the building service contract to a different contractor. The ESA provisions require successor contractors to offer comparable employment to employees of the former contractor if work is available and to recognize the accumulated service of these employees. Liability for employment standards-related benefits would be transferred to the successor contractor.
With respect to adjudication by the OLRB, the bill proposes to set out the OLRB power to grant interim relief in pending proceedings. "Interim relief" means on the way to a final disposition. Such relief could include cease and desist orders, for instance. The board might enjoin an employer, might stop an employer from cutting wages pending the board's opportunity to conduct a full hearing into allegations that the employer has breached the so-called statutory freeze position provisions in existing section 81.
Another example might be where the union engages in improper campaigning leading up to a representation vote. The board might again order that the union cease and desist from publishing certain materials or from coercing employees in some fashion.
The board may grant such relief without a full formal hearing. Similar board powers exist in Manitoba and Alberta. The benefit of such a power includes expediting the resolution of acrimonious disputes.
The board will also be given new remedial authority in the event of a breach of the duty on employers and unions to bargain in good faith to make a collective agreement. The board will be permitted to determine one or more terms of the party's collective agreement, but only where it considers that other remedies would not be sufficient to remedy the breach.
Additionally, the board will be able to enforce settlements of any type of proceeding under the act by way of the party's complaint to the board. That power already exists in a more limited fashion.
The bill will provide a new method for the approval of the OLRB's rules of practice. The board's rules will take effect on a date to be named by order in council. The rule-making will become less cumbersome but there will still remain checks on the board's rules development.
The bill also contains provisions for streamlining resolution of construction industry jurisdictional disputes between competing unions. Currently, hearings in a jurisdictional dispute often require 20 or 30 days spread over many months or years. The work in dispute is usually over by the time the board issues a decision. The proposed provisions would permit the board to resolve these matters more expeditiously, and this is based on recommendations of construction industry leaders.
The 10th area of reform is expediting and streamlining the grievance arbitration process. After considering the recommendations of the Swan report, the government proposes clarification of the powers and jurisdiction of arbitrators. Arbitrators would be specifically empowered to grant interim relief, to interpret and apply human rights and other employment-related statutes, and this is intended to codify existing jurisprudence and to ensure a consistent approach by all arbitrators.
The new provisions would state that arbitrators have jurisdiction to determine all questions of fact or law that arise before them. They would be empowered to order particulars and production of documents, to make orders to expedite proceedings and to prevent abuse of process. They will also be permitted to consider submissions in such form or by such method as they consider appropriate.
In British Columbia, where arbitrators have been able to address human rights aspects of grievances for several years, it's considered preferable that human rights issues are dealt with in the context of the continuing employment relationship.
The bill also sets out several provisions designed to expedite the arbitration process. The act's deemed arbitration provision would be changed to refer to a single arbitrator instead of a three-person panel.
Sole arbitrators would be required to give decisions within 30 days; arbitration boards, the three-person boards, within 60 days. The minister would be authorized to make orders to expedite the issuance of delayed orders, including orders related to the payment of the arbitrator.
The bill also creates a new section governing mediation arbitration. Where parties consent and where they have agreed on the nature of issues and disputes, they may request that the minister appoint a mediator-arbitrator. The mediator-arbitrator would of course first attempt to settle the matter. Failing settlement, the mediator-arbitrator would be empowered to carry on to arbitrate the matter with a decision required within five days. It's a fast-track system to try to streamline the process.
Finally, in terms of the overview of the reform, is the 11th point of structuring adjustment and change in the workplace. Recognizing the ever-changing nature of the workplace and the workforce, the bill would authorize the creation of a new service to focus on workplace organization and development of partnerships between employers, employees and unions. Among the goals of the service would be assistance to employers, employees and unions in responding positively to changes needed in the workplace to enhance competitiveness and partnerships.
The service will be developed pursuant to a Ministry of Labour consultation process. We intend to work with stakeholders in settling the structure and purposes of the service.
The bill will also amend the Labour Relations Act to add a duty to make every reasonable effort to make an adjustment plan in the event of closures or mass layoffs involving 50 or more people, and there are several others which I'll cover in the clause-by-clause. The employer would be required to notify the union at the same time as it is obligated to provide Employment Standards Act notice of termination to any employee.
Where the union requests, the union and the employer would commence bargaining towards an adjustment plan within seven days of the union's request. These provisions are meant to spell out, at the very least, an employer duty to sit down and talk with the union about adjustment issues. The labour board would not have the power to order the terms of an adjustment plan in the event of a breach of the duty to bargain.
The bill also proposes amendments to the Employment Standards Act in order to expand the powers of the Minister of Labour to make orders requiring employer involvement in facilitating the adjustment process, including mandating discussion with employees of alternatives to closure or mass layoffs. The ESA's current requirements for provision of information to the ministry, in the case of major layoff, would be expanded to include whether an adjustment committee had been formed, whether alternatives to layoffs had been considered and the nature of adjustment plans.
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Another area of reform intended to encourage workplace partnerships is a proposal to have a new model for collective agreement provisions requiring regular consultations during the life of the collective agreement. If either party requested such a provision during bargaining, the collective agreement would contain a provision requiring ongoing regular meetings between the employer and the union to discuss workplace issues. It is hoped this provision will encourage the parties to engage in more constructive discussions in the periods between collective bargaining; discussions in those periods shouldn't be limited to just grievance proceedings.
That concludes the overview of what the bill is intended to do under headings.
What I would like to conclude with, and it will take me probably 20 to 30 minutes more, is to examine the sections of the bill. I would, though, like to take you through that in the sense that I think it is important, especially on the substantive areas, that people on the committee understand how the various sections of the bill attempt to accomplish what I said the reform intends to accomplish. I do not believe the Ministry of Labour may have another opportunity to present a technical briefing to the committee before you get into clause-by-clause later on. Hence, I would appreciate the opportunity to take a few minutes to take you through that. Is that agreeable?
To do this, you'll need to follow along. I believe you have copies of Bill 40 and copies of the Labour Relations Act. I'll be mostly making reference to Bill 40, but there may also be some references to the Labour Relations Act. In your materials the Labor Relations Act is Revised Statutes of Ontario 1990, chapter L.2, January 1992.
Bill 40 sections related to the amendment of the Labour Relations Act follow in chronological order of the current act. The act is divided into a number of parts, and I will describe the sections in Bill 40 as they propose amendments to each of the parts.
The parts of the Labour Relations Act are as follows: the preamble, the application of the act, freedoms, establishment of bargaining rights by certification, negotiation of collective agreements, contents of collective agreements, operation of collective agreements, termination of bargaining rights, timeliness of representation applications, successor rights, unfair labour practices, OLRB enforcement, administration, general provisions, construction industry provisions, and construction industry provisions related to province-wide bargaining.
Let me start with the clause-by-clause analysis, starting with the preamble. If you turn to page 2 of Bill 40, you see bill section 5, which is about two thirds of the way down the left-hand side. Bill section 5 inserts a section 2.1. That's the way this bill works. Section 2.1 will then become the new section in the OLRA, so that there will be a section 2.1 in the OLRA that will say, "The following are the purposes of this act:"
It goes on to set out the purposes of the act, which in summary are to ensure free exercise of the right to organize; to encourage the process of collective bargaining to enhance employees' abilities to negotiate for improvement in employment terms and to enhance cooperative approaches between employers and unions in adapting to economic change and in promoting workplace harmony; to promote harmonious labour relations, and to provide for fair and effective dispute resolution.
I should point out to you that the intent -- and there's a drafting issue here I need to bring to your attention -- was to replace the current preamble. I'm not sure we've accomplished that. The bill will require amendment to effect the repeal of the preamble. The purpose was intended to replace the preamble. I don't think it accomplishes that, so that is something that should be considered in the clause-by-clause analysis.
The next heading is "Application and Purpose of the Act." If you look at the bill, section 3 at the top of page 2 of Bill 40 -- again, I'll just go through a few of these till everyone has done this -- the bill's section 3 changes the title of the section to allow for the purpose to be in there.
Subsection 4(1) of the bill removes the exclusion of domestics, so that by repealing clause 2(a), you take out domestics as an exclusion and therefore allow them to be eligible for bargaining and unionization under the act.
Agricultural workers: Subsections 4(2) and 4(4) of the bill -- again, I'm still on page 2 -- allow for the future development of a regulation under the act to deal with the inclusion of agricultural workers under the act. I won't turn you to it, but there's a section around page 39 of the bill, subsection 50(3), which would expand the regulation-making powers under section 118 of the act to permit regulations to be passed with respect to agricultural workers and their special cases. But I want to reiterate the government commitment to consider further recommendations of the task force, and a separate statue is under consideration.
Professionals is a bit trickier. Subsection 4(3) of the bill continues the exclusion of certain doctors, so you see a physician to whom the Ontario Medical Association Dues Act etc applies. That continues, then, as excluded from the OLRA. They already have a collective bargaining regime outside the OLRA.
Bill subsection 2(2) repeals the exclusion of professionals under the current definition of "member." Clause 1(3)(a) of the Labour Relations Act is the one that talks about who is a member and talks about who are not members. It excludes most professionals, I believe, with the exception of engineers. So we've repealed the exclusion of professionals under the current definition of "member."
Bill subsection 7(2), which is on page 4 of Bill 40, defines the appropriate bargaining unit for professionals. It follows the current rules for professional engineers, in that if you look at subsection 6(4.1), it would normally put professionals into a separate unit. But subsection (4.2) would permit them to be included in a larger unit, where a majority of professionals desire this and where the board permits it.
How security guards are handled is set out in bill section 13 on page 8. Bill section 13 repeals section 12 of the act. Section 12 is the one -- and if you want to look at the OLRA, section 12 is on page 858 -- that says, "The board shall not include in a bargaining with other employees a person employed as a guard to protect the property...." That's the section that is repealed. Bill subsection 7(3) on page 4 amends section 6 of the act to deal with the appropriate bargaining unit for guards. So back on page 4, you get the rules for guards not being able to be in the same unit if they would be in a conflict of interest, and that the board may include the guards with other guards who have a conflict of interest with other employees.
The next area is establishment of bargaining rights by certification. This part deals with applications for certification and definition of appropriate bargaining unit, and with organizing and picketing rights.
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First, just as a matter of perhaps some important technical note -- important only because it happens a lot in the bill -- subsection 2(3) on page 1 of the bill defines "voluntary recognition" as occurring "when an employer and the trade union agree that the employer recognizes the trade union as the exclusive bargaining agent of the employees in a defined bargaining unit and the agreement is in writing signed by the parties."
That phrase happens a lot in various subsections and parts of the act. To keep it simple, to make it simpler, that phrase has been defined at the front end as "voluntary recognition," and there are a lot of changes here that I will call consequential amendments or technical amendments that simply take that phrase out and put in the words "voluntary recognition." It's a technical change, but because it happens so frequently, I thought it may be important to bring it to your attention.
Combined full-time/part-time units: New subsection 7(1), on page 3, sets out the rules for combining full-time or part-time employees into a single unit and subsection (2.2) requires the board to determine whether the union has the support of the majority of the employees who fall within the unit. Where there's no majority, the board is required to separate the units and determine whether there's majority support in either of the units. Subsection (2.3) exempts the construction industry. Subsection (2.4) requires the board to combine the units if a vote in one or both, or a voluntary recognition in one, results in majority support in each of the separate units.
The next area is combination of bargaining units. Section 8 of the bill, on page 5, sets out a new section 7 of the act, the powers of the board to combine bargaining units. Subsection (2), just going down the page on page 5, sets out the circumstances where application for combination would be considered together with the application for certification. It deals with pre-existing bargaining units versus proposed bargaining units. It's important to note that subsection 7(3), at the bottom of page 5, sets out three factors the board must consider in deciding whether to combine: whether it would facilitate viable and stable collective bargaining, whether it would reduce fragmentation of bargaining units or whether it would cause serious labour relations problems. Those are the mandatory parts of the test. The board is of course free to consider other factors as well.
Subsection 7(4) sets out rules for geographically separate places of operations, and the board is prohibited from combining units if those circumstances are met. I went through those in the overview. Subsection 7(5) allows the board to amend the certificate or the bargaining unit description in a collective agreement, and subsection 7(6) exempts the construction industry.
The next area is level of support that is required for certification and post-application petitions. Now I'm on page 6, starting with section 8 of the act, which will remove the possibility of post-application petitions. They're removed by the operation of the new clause 8(1)(b) and 8(4), which remove reference to a clause at the end of the act which would have allowed the board to establish a terminal date. Now the terminal date must be the same as the application date, and that wipes out that 10-day period that now permits petitions to be filed. It also makes reference in clause 8(1)(b) to "on or before that date." That's the phrase that takes out the extended terminal date.
The bill now refers to members and "those who have applied to become members." That's just to make it clear, as we go through; that is not a change in the law. The $1 membership fee is removed by repeal of the definition of "member," and that's back in subsection 2(1) on page 1.
I'll go quickly through these, because I want to make sure that there's some time to talk to you about some of the more critical ones.
Subsection 8(2) lowers the bottom threshold to 40%. Subsection 8(3) maintains the board's current power to order a vote even where the union shows more than 55% support. Section 10, over on page 7, describes how the automatic certification processes work, and sections 9.1 and 9.2 codify the current board practice around 55% not requiring a vote; if a representation vote is taken, there must be more than 50% of the ballots cast.
Subsection 8(4) again prohibits the board from considering membership evidence or petitions after the application date. Subsection 8(6) codifies the board's ability to consider post-application evidence related to impropriety in the gathering of membership evidence or evidence of objection to certification. The board can still consider whether there's been intimidation, coercion, fraud or misrepresentation, and it can consider evidence filed after the application date related to the voluntariness of membership evidence.
Unfair labour practice certification is covered by the new act, section 9.2 at the bottom of page 7, and it deletes the requirement for adequate membership support as required by the old act. I think I mentioned that to you. The test is now whether or not the employer's conduct is such that you're not likely to ascertain the true wishes of the employees.
Picketing and organizing on third party property: That gets into the reform by bill section 12 on page 8. It provides that organizing and picketing rights on third-party property must be at or near but outside entrances or exits; you see that under section 11.1, subsections (2) and (3). The board may impose restrictions; that's in subsection (5). The board has exclusive jurisdiction to do this, no one else can; that's subsection (6). These rights override the Trespass to Property Act; that's subsection (7).
Sections 14 through 18 at the bottom of page 8 and the top of page 9 are technical amendments that I will not take you through, unless you have questions.
Automatic access to first-contract arbitration, section 19, sets out the new rules for first-contract arbitration by revising section 41 of the act; now I'm in the middle of page 9. Subsection (1) sets out two ways of accessing first-contract arbitration; one is by way of board direction, which is the existing system, and the other is automatic access. These are described as initiation of first-agreement arbitration, and that definition is in subsection (1.1).
Subsection (1.2) allows automatic access only after 30 days have passed since legal strike or lockout and no collective agreement. Subsection (1.3) sets out the current preconditions that must be met for a board direction. Subsections (1.4) and (1.5) are the ones that require the parties to file a collective agreement they would be prepared to sign. The first collective agreement must be settled by private arbitration; the procedures are set out in subsections (3) to (5) on page 10. The parties may choose final-offer selection; that's subsection (3.1).
Subsection (13) prohibits strikes or lockouts after application for first-contract arbitration is initiated. The current rules are restated up at the top of page 11, subsections (13.1) and (13.2); they're split into three different subsections. Bill subsections 19(7) through (10) are consequential technical amendments to ensure that the same rules apply whether parties seek direction or automatic access.
My next area is the duty to make an adjustment plan. If you look at page 12, section 20 sets out the new act's section 41.1. It uses, as you can see in subsection (1), the same guidelines as the Employment Standards Act. In other words, what gets you into this is a mass layoff or closure involving 50 or more people, permanent discontinuance plus any future circumstances as may be defined by regulation.
The employer must notify the union as soon as it is required to give notice of termination to the employees. I am just reading down through the various subsections. The duty commences upon request of the trade union; parties must meet within seven days. Subsection (5) sets out the sorts of provisions, which you may want to look at at the top of page 13, but none of these are mandated. Subsection (6) makes an adjustment plan enforceable, if you can get the one, as if it were part of a collective agreement, by way of private arbitration. If there isn't any agreement in place, the minister can appoint an arbitrator under subsection (7), and thus it remains enforceable even if the parties are not negotiating a renewal collective agreement.
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Contents of collective agreements: Section 21 on page 13 sets out the deemed provisions to be included in the new act section 43.1. I think I've covered these before in my overview. Subsection (1) is the one that says no dismissal without just cause as a term of all collective agreements. Subsection (2) permits the parties to agree to a lesser standard for probationary employees. Subsection (3) extends just-cause protection throughout the freeze period of collective agreements. This is unique. I believe this is the only deemed provision that goes through the freeze period. Arbitration of disciplines and discharges are committed during this continuation period, and the mechanics to get access to the arbitration are set out in subsections (5) and (6).
Consultation provision: Section 22 of the bill sets out the deemed consultation provisions to be included in the new act, section 44.1. That's on page 14. It requires agreement to use the consultation provision; that's subsection (1). Subsection (2) sets out some of the elements of the consultation. Subsection (3) sets out a model provision, if the parties can't agree, and that model provision is that the parties must meet at least once every two months.
Section 23 of the bill, at the middle of page 14, proposes modification of the current grievance arbitration provision that must be in every collective agreement if the parties can't agree on their own.
Subsection 45(2) of the act would require a single arbitrator instead of a three-person panel. This is intended to speed up the processes and make them work faster and more effectively.
Subsection 23(2) provides for greater use of grievance settlement officers from the ministry's office of arbitration.
There are new powers and duties of arbitrators, which are set out in subsections 45(6) through (9) of the act. They go from pages 15 to 17. I don't have any intention of taking you through them, unless you have any questions, except perhaps to point out that on page 16, subsection (8) are the new powers of the arbitrator. Generally speaking, subsection (8.1) codifies the existing powers that are contained in the OLRA. Section 24, at the bottom of page 17, is a consequential amendment.
I mentioned before that the parties, on consent, can have access to mediation or arbitration, and those provisions are in section 25 of the bill. It requires mutual agreement to use the process, and they must have agreed on the issues in dispute; see subsection (2) at the top of 18. The mediator will try to settle first by mediation and, if unsuccessful, the mediator has all the powers of an arbitrator to settle. That's what you see down towards the bottom of that section 46.1.
Terms of operation of collective agreement: Section 26, at the bottom of page 18, sets out the new sections 49 and 49.1 dealing with voiding of collective agreements. Voiding of an entire agreement is limited to circumstances where there's been employer interference in the formation or the funding of a union.
Section 49.1 is new. It prohibits collective agreement discrimination. The decision-maker no longer is statutorily bound to void the entire collective agreement because it found there was a discriminating article. The board or the tribunal is free to fashion a remedy and could in fact void the offending article. Sections 27 and 28 of the bill are consequential amendments of a technical nature.
Successor rights start at the bottom of page 19 and go on to page 23. It revises section 64 of the current act. That's the one that deals with successor rights: What are the labour relations implications of the sale of a business? Currently the successor employer is bound only to the bargaining rights of a union's existing collective agreement. The only proceeding to which a successor employer is bound is an ongoing application for certification.
Subsection (2.1), at the top of page 20, extends the concept of successor rights to cover certain proceedings to which the vendor was a party, including proceedings before the board under any act etc. You can see it there.
Subsection (2.2) ensures that the successor employer is bound to the same stages of bargaining as the predecessor employer, and by "stages" I mean stages as defined in the act, whether it's into conciliation or a notice to bargain or a no-board report or whatever, but the employer is not bound to accept the previous employer's positions at the bargaining table.
Subsection (3) continues the bargaining rights and certification proceedings. Subsections (4) through (6) restate current provisions, except for a new clause 6(e) at the bottom of page 21 which adds new power to the labour board to deal with seniority rights in the case of intermingling, where there are two units brought together upon the sale of a business.
The other amendments are consequential.
Federal to provincial sale: Section 30 of the bill, on page 22, adds a new section 64.1 to apply sale-of-business provisions where a business is transferred from a federal jurisdiction to the Ontario one. Subsection 64.1(2) limits the obligations of the successor employer. Subsection 64.1(3) gives the board remedial authority to allow it to tailor its orders to deal with the special circumstances that occur where there is a transfer from one labour relations regime to another; for example, how to handle a nationwide agreement.
Contract cleaning provisions are in section 31. It adds a new section 64.2 which extends sale-of-business obligations in the event of contract tendering. The scope of included services is limited in subsection (1), and the industries that are covered are limited in subsection (2). The provisions work in tandem with the ESA provisions, and there is an issue with respect to retroactivity. It is included.
These provisions were meant to be retroactive. ESA, which I'll do shortly, is retroactive to June 4, and it was intended, I believe, that the OLRA provisions here, the mirror ones for the OLRA, were also intended to be retroactive to June 4.
Unfair labour practices, limits on the use of replacement workers: This is one I'm sure you will be going through in some detail. They are set out in sections 73.1 and 73.2.
Section 73.1 starts at the top of page 23. It defines the limits on the use of replacement workers during a strike or lockout, so 73.1 is all the information I told you about, who can and can't be used in the normal case. Section 73.2 creates exceptions where the use of replacement workers is permitted in special workplaces and in special circumstances. Subsection 73.1(2) requires a secret ballot strike vote of at least 60% of those voting.
The categories of banned workers are set out at the bottom of page 23. First of all, subsection (4), and it's important to go through these: "The employer shall not use the services of an employee in the bargaining unit that is on strike or is locked out." They can't use them anywhere.
Subsection (5), which I refer to for convenience as the new-hire section, covers employees, managers, independent contractors or volunteers hired after the date that bargaining began. They can't be used to do the bargaining unit work or to backfill others who are doing the work of the struck bargaining unit at the struck location or at any other of the employer's locations. Those are two provisions, the striking employees and the new-hires, who cannot be used anywhere.
The following persons cannot be used at the struck location to do struck work or backfill. First of all -- now I'm looking at subsection (6) -- employees or persons who ordinarily work at other employer premises: You can't bring them in to the struck location. Employees or persons who are transferred to the struck location after notice to bargain is given: You can't bring people in after notice to bargain is given and say they are employees who worked at the struck location. They're viewed as new-hires.
Other non-bargaining unit employees and managers are permissible. That's where I get back to who can be used are the managers, the supervisors and the non-bargaining unit employees.
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The non-bargaining unit employees is the major distinction between the Ontario provisions and the Quebec provisions. In Quebec an employer is not able to use the non-bargaining unit employees. In Ontario that is possible under this reform, with those employees having a right to refuse to do the work. The employer can also contract out the work or have it performed at other sites.
I'm sorry; I missed one category. The fourth category under subsection (6), the temporary help, places "A person, whether paid or not, who is employed, engaged or supplied to the employer by another person or employer." As I said, an employer can contract out the work or have it performed at other sites, with the qualifications I've put on it.
Let me just take you through 73.2, which starts at the top of page 25. Section 73.2 permits the use of specified replacement workers to the extent necessary to permit the employer to provide certain human services and to prevent certain harms. The human services are set out in subsection (2), which goes down the page. Harms are defined in subsection (3), at the bottom of page 25 and the top of page 26, and they apply to all workplaces.
Subsections (4) and (5) require the employer to notify the union promptly of its intention to use specified replacement workers after the appointment of a conciliation officer, and they must give details about the work, as set out in subsection (4).
Subsection (6) sets out the procedures where, if there is an emergency, the employer can go ahead and use the workers. After the union receives notice, it can consent to use bargaining unit employees -- that's subsection (7). The employer shall not use replacement workers until it has complied with the notice requirements and the union has not consented to the use of its own bargaining unit employees -- that's subsection (9). There's an exception for emergencies in subsection (10).
Disputes around the use of specified replacement workers are resolved by the OLRB, and the details are set out in subsections (11) to (14) at the top of page 27. Parties may agree to use of specified replacement workers for the two situations, either the special workplaces or the special circumstances. Their agreements can only apply to the dispute at hand, they cannot agree to use replacement workers as a condition of settling a strike and agreements are enforceable by the board.
There is a return-to-work protocol set out in section 33 of the bill, at the top of page 28, and I've taken you through it:
Subsection (2) requires the employer to reinstate employees to positions they held before the strike or lockout. There are no time limits. Subsection (3) permits the returning employees to displace replacement workers unless the replacement workers were fellow bargaining unit employees with greater seniority. If there's insufficient work, seniority rules prevail -- subsection (4). There is an exception to the use of seniority for startup periods, and that's in subsection (5).
The continuation of benefits: Section 34, at the top of page 29, sets out the new section 81.1 of the act, which provides for continuity of benefits during a strike.
Subsection (1) limits the application of the section to benefits other than pension benefits. Subsection (3) allows the union to continue benefit premium payments. Subsection (4) requires the person who usually receives the payments to accept them, and subsection (6) prevents a person who controls the benefit plan from denying or cancelling employee coverage where the union has tendered payments.
There is a deemed just-cause provision after certification. As I mentioned to you before, it's one of those three cases where there's deemed just cause, and that comes through section 35 at the bottom of page 29.
Very briefly, there are a number of board powers set out in section 36 in terms of powers to settle the terms of a collective agreement where there's a breach of the duty to bargain.
The filing and enforcement of board orders is clarified in bill sections 36, 39 and 56.
Bill section 37 gives the board power to grant interim relief, similar to a court power.
Section 38 of the bill and subsection 42(5) establish expedited informal consultation processes for resolving jurisdictional disputes in the construction industry, in addition to the existing formal hearing process. The difference between the formal and the informal is the word -- "consult" is the informal process. That's at the bottom of page 31.
Then there are a number of consequential amendments which I would just like to read out very quickly. The arbitrator determining damages for an unlawful strike or lockout has all of the new arbitrator powers. That's section 40. Section 41 gives legal status to unions for enforcement of new types of board orders. Section 42 modifies the labour board chair's powers to deal with hearings, problems resulting from reassignments, appointment expiries, deaths and incapacitation of board members. There's also an expanded list of the types of hearings to which the chair may assign a sole vice-chair to conduct the hearing. It permits the OLRB rule-making through order in council.
Section 43 contains further changes to the board powers regarding the relevancy and admissibility of evidence and submissions and reiterates the elimination of the terminal date and of the $1 membership fee. Section 44 expands the minister's power to refer questions to the board. Sections 45, 46 and 47 update and expand the non-compellability provisions of the act. Section 48 expands the minister's authority to delegate to other officials in the ministry other than the deputy.
The regulation powers of cabinet are expanded by section 50 of the bill to address payment of arbitrators, the application of the duty to bargain an adjustment plan and the exclusion of the agricultural workers. Sections 51 to 54 are consequential amendments to the construction industry, which indicate the prohibitions on the use of replacement workers apply to this industry.
Please note that section 57 of the bill is in error and will be deleted. The level of support required for automatic certification in the construction industry is intended to remain at 55%.
The Employment Standards Act: Sections 58 through 63 amend the Employment Standards Act by binding the crown, so the crown is covered by the cleaning services provisions etc. Section 59 creates successor employer obligations for contractors who provide services related to the servicing of premises, such as building cleaning, food services and security services. These obligations are effective retroactive from June 4, 1992, as are the comparable ones in the OLRA.
Section 60 expands the circumstances under which the minister may require an employer to participate in adjustment measures and section 61 broadens the minister's authority regarding delegation of powers.
There are two changes to two other acts. Section 62 authorizes the minister to refer any question relating to the exercise of his power under the Hospital Labour Disputes Arbitration Act to the OLRB; for example, whether an employer is a hospital. Under the Occupational Health and Safety Act, section 63 amends subsection 50(7) of the act to allow an arbitrator to substitute a lesser penalty for those specified in the collective agreement. One that was missed I mentioned in my overview, the setting up of an advisory service. The setting up of the advisory service is provided back on page 1, subsections 1(1) and (2).
I think in slightly less than the time I was asked, those are my comments, Mr Chair.
The Chair: It certainly was. Thank you. I would put this to you. You were kind enough to share what were obviously designed only as speaking notes for your reference to the committee members so that they could follow you. The committee would like to make that an exhibit. However, you may want to prepare it --
Mr Thomas: Take out the references to Tony.
The Chair: -- so that it can be made as an exhibit and if you could have your staff bring it tomorrow, we'll make it an exhibit then, appreciating these were merely your speaking notes that you shared with us.
Another thing that's been pointed out is that if you look at Bill 40, and this is in reference to your clause-by-clause consideration, page 32 of the bill, which deals with section 38 of the bill, in subsection 38(3), referring to subsection 93(4), subsection 93(4.1) speaks of subsection (8) and then goes on in subsection 38(6) to speak of subsections 93(7) and (8) of the act being repealed.
Mr Jerry Kovacs: If I can answer, Mr Chair, there are numbering errors in section 38 of the bill. That's one of them that you've pointed out. In fact, the reference in what would be subsection 93(4.1) to subsection (8) leads you down to what is subsection 38(6) of the bill lower on the page there. Do you see that? Subsections 93(7) and (8) are repealed. There is a substitution, subsection (8), that should be fitted into the bill. It required consequential amendment because of this new consultation process. It's been reworded, and at the clause-by-clause motions phase of the committee it should be addressed.
The Chair: Thank you, Mr Kovacs. Mr Offer, there's an hour and 20 minutes per caucus. If any caucus doesn't use all of its 20 minutes, its remnant of time will be shared equally by the remaining caucuses.
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Mrs Witmer: How long are we going on?
The Chair: We're going till 5 o'clock.
Mr David Turnbull (York Mills): Can I just ask a question, Mr Chair?
The Chair: Sure.
Mr Turnbull: Are we going to go around with questions or are we going to have blocks of time?
The Chair: There's 20 minutes per caucus. A caucus, as far as I'm concerned, can use that all in one 20 minutes or can rotate, because discussion may generate other questions. But each caucus is going to have 20 minutes.
Mr Offer: Your previous comment with respect to the allocation of the 20 minutes is quite helpful. Just on a preliminary point, the minister made a statement earlier on. I wonder if we have that in written form, which would be marked as an exhibit, or whether we do not.
The Chair: That wasn't provided to the committee. However, the clerk will ask the minister's office if it can provide it, so that will be an exhibit too if it's provided.
Mr Offer: Thank you for your presentation. I have a few questions and I recognize that we don't have the greatest amount of time to deal with them. My opening question deals with third-party property, the private property aspect of the legislation. I think it's found in section 11.1.
There's been a great deal of concern with respect to that particular aspect of this legislation. It states that picketing or organizing can't take place, basically, on private property to which the public normally has access. I think in the press releases, and in fact even in the examples you use, is the mall setting.
My question is, if we can envisage a department store: In department stores today there are areas which are licensed out to travel agencies, cafeterias and photo operations, for instance. Would this provision permit picketing and organizing within a department store? Let me rephrase it. For example, for a cafeteria that is organizing or picketing, would the provisions permit that picketing just outside the entrance to the cafeteria within a department store operation?
Mr Thomas: The answer is yes, and the limits on that could be set by the labour board following the provisions that are in the balance of the clause.
Mr Offer: So in essence, picketing would be permissible within the department store just outside the licensed operations.
Mr Thomas: That's right.
Mr Offer: Was there any discussion by the ministry over the impact that might have in terms of the operation of the department store? Were there any discussions that had taken place between the ministry, if you're able to share that with the committee, as to what the ramifications would be of the department store, wherever it is or wherever it would be located, to its customers, if that in fact were the case?
Mr Thomas: The only discussion I'm aware of, Mr Offer, is whether you were in a better situation, from the department store's perspective, to have the picketing or the organizing contained around the travel agency or to have it happen at the entrance of the department store.
Mr Offer: In the current legislation there is what is called a preamble to the legislation. You have spoken to that. Could you share with us what the board has done with the preamble to the legislation as it currently exists? In other words, has it been used by the board in the determination of any decisions?
Mr Kovacs: It has been used both by the Ontario Labour Relations Board and by the Ontario courts in interpreting particular sections of the act when there has been difficulty on the board's part or on the courts' part in interpreting the intent of the particular provision.
Mr Offer: The reason I ask the question is that was the reason provided for the inclusion of a purpose clause. I know this is overly technical, but right now what we have is a preamble which stands somewhat outside the act used in essence by the board to help in its deliberations. What is proposed is something dramatically different which has caused a great deal of concern, that is, the existence of a purpose clause located within the act ostensibly for the same reason. The concern I have heard is that the usage of that clause by the board will be much more dramatic than exists now through the preamble clause.
My question is, if the board has used the existing preamble for purposes of aid for purposes of interpretation, then what is the need for a purpose clause contained within the legislation?
Mr Thomas: I believe there are several responses. One of them is that the purpose clause is certainly more specific than the preamble and outlines some activities I believe the government wishes to see happen in workplaces around cooperation. There are references in the purpose clause to matters involving productivity. There are some matters that are not contained in the current preamble and that are therefore expanded on by the purpose clause. Whether it's a purpose clause or a preamble, it's intended to be used only for the purpose of resolving ambiguity where there's uncertainty with the statute.
My understanding, and perhaps Mr Kovacs wishes to say a few words on this, is that the preamble and the purpose clause tend to have similar weights; at least that is what one gleans from the Interpretation Act.
Mr Kovacs: That's correct. The other point that might be made is that in more recently developed or newly developed legislation, the trend of legislative counsel has been to use a purpose clause rather than a preamble. You might refer to the Pay Equity Act as the most recent example.
Mr Offer: I'm rushing through some of these questions very mindful of the time. I want to talk about the part-time/full-time issue. I listened closely to what was said on the issue, Deputy, and I'm wondering if I can give you an example. Let us say there is a workplace wherein there are 50 part-time workers and 100 full-time workers. A vote is taken for combination which ends up with, let's say, 76 voting in favour; that's a majority. Under the legislation, those two units would then be combined. Is that correct?
Mr Thomas: The idea is correct. It has to be 55%. The principle is correct, the percentage is wrong.
Mr Offer: I thought it was a majority, but if it were 55% --
Mr Thomas: Take it up to a number that would get you over 55%, 90 or something.
Mr Offer: Let's say 80, because I think that would do that. If the breakdown of the vote is such that 20 part-timers have voted in favour but 60 of the 100 full-timers have voted in favour, would there be a combination?
Mr Thomas: Yes. It's taken across the combined bargaining unit, which is treated as one for that purpose.
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Mr Offer: The third part to the question is that obviously we now have a vote where a minority group has been taken into the larger organizing unit. In other words, not a majority, in fact a significant minority of part-time workers, do not want to be part of this unit, yet it is carried because of the overwhelming majority of full-timers. My question is: What is the rationale for the overriding of the interests of part-time workers in that scenario?
Mr Thomas: The rationale is that the concept of community of interest applies to the whole group: 150 people are seen to have a community of interest, and a majority of them, or 55% of that community of interest, choose to want to have this consolidated into one or choose to vote in favour of unionization. This, by the way, is the practice that's adopted, as I understand it, by a number of other boards across the country.
Mr Offer: I have a concern with respect to the deletion of the community of interest concept, because under the proposed legislation the rights and choices of part-time workers in this one scenario are overridden by the legislation. Personally, I think that is a major difficulty. I know my colleague Mr Cleary has a few questions.
Mr John C. Cleary (Cornwall): Thank you for the presentation, Deputy. It's my understanding that an agricultural committee was set up a considerable time ago to review Bill 40. It's my understanding that a copy of a report signed by all parties has been handed to the minister some five weeks ago. What is the status of that report now?
Mr Thomas: The minister's agricultural task force is now proceeding on to its second phase. Its first phase produced a number of recommendations -- I believe six. The government has indicated support for five of the six and is looking very seriously at the sixth, which deals with a separate statute. It is now into another phase over the month of August, sir, where we'll look at other issues that would be particularly important to the agricultural industry successor rights or whatever. I would expect a final report will come out in due course.
Mr Cleary: Has this gone back to the same people who prepared the report, or is there another group?
Mr Thomas: I think that has not been decided. They are going to be meeting very shortly to determine whether or not they are going to reconstitute themselves.
Mr Cleary: Will whatever comes out of this not be part of the bill? Will it be a regulation after that?
Mr Thomas: No. It depends on what comes out of the deliberations. As I indicated, the government has given its commitment to look seriously at a separate statute. If that is the case, it will be a separate statute.
Mr Cleary: A separate statute?
Mr Thomas: If that's what comes out of the government's deliberations after hearing from the task force.
Mr Cleary: Would you expect that it would be in place by the time the bill comes back to the House?
Mr Thomas: I'm not sure of that. Would you like me to undertake to find that out for you, sir?
Mr Cleary: Yes, I would, because there's a lot of confusion out in rural Ontario about what's going on with agriculture. There are a lot of different stories out there and I'd like to get the right one.
Mr Thomas: Mr Cleary, could I get back to you on that? My colleagues here say it's doubtful that it will be ready that quickly, but I'd like to confirm it and get back to you, if I might.
Mr Cleary: Okay, thanks. In your brief you say "certain key human services" on the top of page 25. Right now, as you know, municipal social services departments all over this province are doing a booming business. Would they be included as a key service as well -- you mentioned correctional institutions, halfway houses -- if they were struck?
Mr Thomas: It depends on which ones you're talking about. Could I give you some examples, Mr Cleary, of what we have talked about when we've talked about defining those a bit more clearly? If we're talking about the first one, secure or open custody, the kinds of examples we might be thinking of under there would be institutions like correctional institutions, halfway houses or detention centres. Under the second, residential care for persons with behavioural or emotional problems, we might be thinking of group homes or halfway houses. Under residential care for children in need of protection, it might be custody situations.
In services to aid persons described in those previous two paragraphs, we might be talking about in-home nursing and attendant care, light skills training, whatever. Under the emergency shelter or crisis intervention services, we might be talking about investigation of complaints or counselling. Under emergency dispatch services, we might be talking about the 911 service. I tell you that to indicate to you that I think the answer to your question is that it depends on the kind of service being provided and whether the municipality is providing a service that would fit within those kinds of examples.
Mr Cleary: I think it's a pretty important question, just as important as some of these other services here, because when a municipality administers social services, if those are shut down by a strike, then what happens?
Mr Thomas: My answer is that if those social services are the ones that are covered by those seven numbered paragraphs or some of the examples which I've tried to give you, then those particular services would gain the protection, if you will, from the employer's perspective, of section 73.2.
Could I just add a point? It's perhaps important to indicate that in coming up with this list we consulted with the ministries of Health, Correctional Services, Community and Social Services and Management Board through interministerial meetings. We also talked to providers of critical services such as utilities, municipalities and employers providing children's aid services and various social services to vulnerable persons.
Mr Offer: Mr Chair, how much time do I have? A couple minutes? My question has to do with the 60% strike vote, which would exclude the prohibition. I'm sure you are provided with a number of pieces of information as to what the percentage obtained on a strike vote is. Can you tell me whether, first, you have that information and, second, why 60% was chosen?
Mr Tony Dean: We don't have that information available right now; we can look into it for you. The 60% was chosen mostly in response to concerns raised by people in the business community about the restriction on the right of employees to do struck work during the work stoppage. The 60% was considered to be an appropriate buffer which signified a sufficient magnitude of support for a strike in connection with the access to the replacement worker provision.
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Mr Offer: One final question, just as a response to that answer: I've been told by a number of people that strike votes of less than 85% or 90% would probably be terribly uncommon. It would never be anywhere near 60%, but even if it were 85% or 90%, they would still be quite safe. My last question is whether you are able to inform me on an issue which has caused a great deal of comment from many people; that is, impact study. Have there been any studies conducted by your ministry, the Ministry of Tourism and Recreation, the Attorney General, the Ministry of Industry, Trade and Technology, the small business directorate or any associated, affiliated ministry dealing with what these changes may mean to their ministries and the business climate in this province?
Mr Thomas: We have information, much of which I've gone over with you this afternoon, about the strike record in Ontario, for example, and the use of replacement workers. We have talked to academics about the extent to which this may or may not increase the rate of unionization. You will appreciate that you get different answers depending on whom you talk to.
I guess, Mr Offer, the problem I have with being able to respond the way you might like me to respond with respect to economic impact studies is the fact that there are just so many variables connected with what makes a society, a province, a place to invest in or not. Even within the OLRA reforms, I would expect there would be some competing debate -- I'm sure you'll hear that in the hearings over the course of the next five weeks -- as to the extent to which replacement worker provisions are viewed by the business community as something that would cause it to reconsider a decision to invest.
On the other hand, there are provisions in the Labour Relations Act that deal with encouraging better workplaces and improving the labour relations climate. The extent to which that is successful is obviously just as speculative, and whether it will generate new jobs is just as speculative too.
When you add to that the other 20 or 30 factors people look at when they decide whether they're going to invest in location A or location B, including infrastructure, the calibre of management, the labour relations climate, and generally speaking all the things that go into the investment economy, I have not found anyone yet who is able to isolate the Labour Relations Act reforms and come up with a definite number or even a range.
The Chair: Thank you, sir. Mrs Witmer.
Mrs Witmer: I'm going to let Mr Turnbull go first.
Mr Turnbull: Deputy, perhaps I could pursue that same line of questioning. To the extent you're saying there have been no impact studies, without getting into the semantics of whether it was a study or a poll or a conversation or some presentation that was made to you, could you describe to me the essence of the advice you've gotten from the various factions and tell me what the sources of that were and how many such pieces of advice you have received over the period of time you've been working on this proposed legislation?
Mr Thomas: We have no information that would isolate job increases or decreases or investment increases or decreases for the reasons I've mentioned, Mr Turnbull.
Mr Turnbull: Do you not find it rather strange that the government would proceed with legislation of this magnitude without at least attempting to do some sort of study, from your experience with the ministry?
Mr Thomas: I've tried to explain to you, sir, what the difficulties are connected with trying to do the kind of economic impact study you're talking about. Whether I would find it strange that a government should or should not proceed with respect to a piece of reform that does not have the kind of economic impact study attached to it that you would like to see is difficult for me to answer.
Mr Turnbull: In refuting the privately generated statistics on job losses, what was the basis of the minister's comments? You must have briefed him prior to such questions.
Mr Thomas: There were issues that we identified that had to do with the methodology used in doing those surveys. There were questions about the timeliness of the surveys, as I recall. Perhaps my colleagues wish to add to this, but there were questions around the timeliness of the data. The data, I think, in one survey were based on the previous reforms as proposed in the discussion paper and then the reforms changed. How one assesses the extent to which changing the reform changes the economic impact is an interesting question. It's probably even more difficult than trying to answer the first question about why can't there be an economic impact study that does what you'd like it to do.
Mr Turnbull: Deputy, to the extent that it's clear there are no full-blown econometric models of the Ontario economy, as there are none of any of the provinces, is it not normal practice by ministries to conduct surveys of impacts of legislation or economic policies where there are certain assumptions built in, even if, to use the minister's own words, they are heroic assumptions?
Mr Thomas: You will appreciate that my three months as Deputy Minister of Labour have not given me a full experience in this. But in the time I've been there I have observed, for example, that where we're dealing with something like minimum wage, there are attempts to isolate what happens in terms of minimum wage increases, and that becomes itself somewhat speculative, but there are a sufficiently small number of variables that it is at least possible to do some of the guesstimating that would come out of it. But if I translate that to something like the Labour Relations Act reform and in the context of all the other factors that deal with investment in the economy, we have not been able to come up with --
Mr Turnbull: Was there a suggestion from those discussions that there would be a net job loss?
Mr Thomas: From which?
Mr Turnbull: The discussions you've just described.
Mr Thomas: On minimum wage?
Mr Turnbull: Yes.
Mr Thomas: It was uneven.
Mr Turnbull: Further, have you had any discussions with the international investment community on the impact of the Ontario labour relations changes?
Mr Thomas: I haven't, no.
Mr Turnbull: Has anybody in your ministry or any of the other ministries, to the best of your knowledge?
Mr Thomas: I don't know of any.
Mrs Witmer: I'd like to pursue this line of questioning. Mr Turnbull referred to meetings with the international community. Deputy Minister, I know that you had a June meeting in Detroit to discuss Bill 40. I'd like to ask you who was present and what the reaction was from the people you met with regarding Bill 40.
Mr Thomas: I don't know who was present. There were 30 or 40 business people from a variety of industries in the Detroit area. My purpose in going down there was to explain to them what is the reform, to basically take them through an abbreviated version of the middle part of the presentation I've given you this afternoon. There were a lot of questions asked about the reform. There were some concerns expressed by some of the people there. I think people also appreciated the fact that the government had come down and explained to them what was happening with respect to labour relations reform.
Mrs Witmer: I would ask you specifically, because I know there were concerns expressed, what type of concerns were expressed by the American investors regarding Bill 40?
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Mr Thomas: I don't recall all of the comments that were made, but certainly from the automotive community there were some concerns expressed about whether the replacement worker provisions would impact on just-in-time inventory situations. That was one I remember.
Mrs Witmer: I guess I find it --
Mr Dean: Perhaps I could supplement what the deputy minister is saying, both in response to Ms Witmer and Mr Turnbull. I think it's important to go back more than several months to the pre-consultation period in which we had discussions internally at the ministry about the whole issue of impact.
It's appropriate to put on the record that a considerable amount of attention was given to the impact of these proposals. You'll know we went to Noah Meltz, a Canadian expert in industrial relations at the University of Toronto, and asked him to try to help us draw the parameters of impact. His advice, as you'll know -- and the deputy's talked about it -- was that the whole issue of economic impact, particularly in the early stages of policy development, is enormously complex and that a large number of factors influence impact.
Our own studies internally -- the accumulated expertise, if you like, of people at the Ministry of Labour -- suggested that in our own analysis by far the large majority of the proposals outlined in the discussion paper would have a very limited cost impact on employers. Some would marginally raise costs, others would marginally reduce costs, but the cost impact was expected to net out and be negligible.
It was recognized, though, that there would be a debate about some of the more major proposals, a limited number of them, about their cost impact and their impact on employers. The debate about those costs would for the most part turn on the perspectives that the participants to the debate brought on the question of the impact of unions on the productivity and competitiveness of an enterprise. That, of course, is a debate that has been entered into which much has been written about but which remains unresolved. For the most part, the studies we looked at -- and we make them available -- suggest that union presence at the enterprise level does not impede the competitiveness or productivity of an enterprise and in many cases has been proved to enhance it.
Having done some of that limited work, the attempt was made by the ministry and the minister to design a consultation process that would in fact take the issue of impact out to the players in the system, that would go directly to employers, unions, community groups and employees and say, "Look, here, as precisely as we can give them to you, are the preferred options in as much detail as we can before we prepare a bill."
That was put before the public and, as you've heard, some 300 or 400 meetings were held. In that context we discussed impact with employers, unions and employees themselves. I think it's fair to say that the very significant amendments made when the bill was introduced on June 4 were prompted and initiated by much of what we heard about impact, particularly on employers, the real impact, both economic and otherwise.
In addition to that, during those consultations and learning from employers about impact -- as we moved around the province, we actually conducted some of our own studies and you'll know we took a considerable amount of time and put an enormous amount of energy into looking at the anticipated impact of the replacement workers legislation.
Mrs Witmer: I guess I would like to see some of those studies the government says it has done. It's great to talk about impact studies that you have done. However, you have never made any of those studies or figures available to anyone in this province, obviously, other than yourself. You continue to put down the studies done by others, yet there's an unwillingness to share the information you say you do have. Until such time, there's great disbelief that much has been done to prove one way or another the economic impact.
Mr Dean: If I could just respond, and I'll close my remarks, in looking at the impact of the replacement workers legislation, we actually talked to every employer and union involved in work stoppages throughout all of 1991. Some of the results of that study have been mentioned today. It was an in-depth study. It is available. If you haven't seen it, we can provide it to you today. Anyway, I'll end my remarks there.
Mrs Witmer: I can tell you I continue to be disappointed that the government hasn't been able to construct an economic impact study on a piece of legislation that seems to be having such a detrimental impact on the economy in the province. It's not only the cost to employers; I think what we're most concerned about is the cost of jobs to workers, present jobs and future jobs, jobs which simply will not be created in this province because people are not willing to make an investment here. We've created a barrier around our province, and people are feeling very uncomfortable.
I'd like to go to the replacement workers section. You've talked here about the individuals who do have the opportunity to go into a plant. Obviously there's a great deal of concern in some businesses that if they're not allowed to continue to operate, the businesses could, in very short order, be forced to close because of the just-in-time delivery system. Would family and friends of an employer have an opportunity to go in and help that individual continue with his or her operation of the plant?
Mr Dean: If family or other volunteers were used to supplement the existing workforce prior to the dispute, there is nothing in the act that would prevent those categories of employees or helpers continuing to do that work.
Mrs Witmer: I guess that's really not my question. Would those individuals, even though they've never been there before, in an attempt to continue to keep jobs available for employees, be able to go in and help that employer?
Mr Dean: Not on the current wording of the bill.
Mrs Witmer: Really it's almost impossible then for an employer to continue to keep his or her plant open if there's a time line he or she needs to meet.
Mr Thomas: I'm sorry. That isn't the conclusion our statistics demonstrated. I attempted to point out --
Mrs Witmer: Do you have those statistics that you could share with me?
Mr Thomas: They're in your materials. I read them out in terms of the percentages of strikes. I think I went through all that with you.
Mrs Witmer: But that was just for the one year?
Mr Thomas: Yes, but it was a very in-depth study for that year.
Mrs Witmer: But that was based on just the strikes that took place in 1991.
Mr Thomas: That's right.
The Chair: You're referring to page 21?
Mrs Witmer: Yes.
Mr Thomas: Yes.
Mrs Witmer: With this new Bill 40, obviously there could be quite a change, because so much of the legislation is going to be changed and the impact could be quite different. I don't think it would be indicative of what might be happening in the future.
Mr Thomas: No, but if employers' behaviour continues in the future the way it has in the past, and they end up using replacement workers, which we would prohibit in the reform, to the same degree they used them in 1991, the number of actual times a workplace would be unable to operate as it would have in the pre-existing reform would be very small. I think the number is something like 19 cases out of 94 in a whole year.
If I could just respond to your further comment, I guess that's one of the problems, Ms Witmer, we have in trying to untangle the various factors that all go into the economic impact study you're talking about. In fact, one could make the case that 19 work stoppages in a year in a province the size of Ontario, with 4.5 million workers, is not a large number of work stoppages, and therefore the economic impact statement coming out of that would be negligible.
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How does one measure the economic impact of employers and businesses concluding that the reform is going to be too problematic for them and therefore the message comes out that OLRA reform itself is going to be bad because businesses are not happy with what's happening with the government? How one ever begins to assess that factor, I don't know either, and I don't know how one can isolate it any better than Mr Dean has said that we've tried to do.
There are a number of aspects of the reform, as I tried to point out, that encourage cooperation, that over a period of time hopefully will encourage the workplaces to become better workplaces. The extent to which that is helpful to the economy -- certainly I can't speak for this government, but I believe from my discussion with the Minister of Labour and his colleagues that the government believes the OLRA reform is part of an economic renewal piece to the extent that we're talking about productivity and cooperation, and the studies that seem to suggest that workplaces where workers have a say are as productive or more productive than those where they don't.
Now that's a matter of intensive debate, and I don't intend to get very far into it except to indicate to you that there are competing interests that make the economic impact study very problematic. I think the stats we have on replacement workers, compared to what people think might happen, help to make my point.
The Chair: Very quickly.
Mrs Witmer: You indicated there was a better relationship in unionized workplaces between employers and employees.
Mr Thomas: No, I didn't mean to say that. I believe that this government believes this particular piece of reform contains elements in it, whether it's a workplace advisory service or duties to consult or whatever, that over a period of time will get the parties working more closely together.
I believe you can find lots of examples of unionized workplaces where the productivity is bad and you can find lots of examples where it's good, and you can do the same thing in a non-unionized workplace. I'm not trying to draw conclusions. I'm just trying to explain to you what I think Mr Mackenzie would be saying if he was here: what they hoped came out of the cooperation and partnership parts of the reform.
Mr Brad Ward (Brantford): I would like to thank you for a very in-depth report from a technical standpoint. I'm sure it clears up any misunderstandings that perhaps some of the committee members or the general public had about labour reform. I don't think anyone will argue the point that the workforce or the workplace has changed dramatically over the last 20-odd years.
On page 15 in fact you use some statistics as they pertain to part-time workers doubling in capacity from 1975 to 1991, 430,000 to over 800,000. Part-time workers now form 17% of the province's workforce, and two thirds of the employees who took up part-time work were women. I'm assuming those statistics are correct.
Part of the labour reform is allowing the combination of the full-time and part-time in the one bargaining unit, or recognizing, as you said on page 14, that full-time and part-time may share a community of interest. I believe that this aspect of combining full- and part-time workers into one bargaining unit is in existence in every other jurisdiction in Canada. Is that correct?
Mr Thomas: It's in existence in most other jurisdictions.
Mr Ward: Most other?
Mr Thomas: I don't think it's in existence -- I can check that for you right now. No, you're right, all jurisdictions in Canada permit combined unions of full-time and part-time employees.
Mr Ward: Both federal and provincial jurisdictions?
Mr Thomas: Yes. When we survey, we survey them all.
Mr Ward: So this specific aspect of labour reform is simply catching up with what everyone else in the country is doing.
Mr Kovacs: If I may add a point to that, Mr Ward, you're correct. The legislation is intended to address an anomalous line of jurisprudence that the Ontario Labour Relations Board has followed for some 40 years. In every other jurisdiction labour boards have determined that part-time and full-time employees together form an appropriate bargaining unit because they share a community of interest.
It's in Ontario only that the labour board has maintained an approach adopted originally some 40 years ago, holding rather differently that part-time and full-time employees did not share a community of interest. It's only in Ontario's statute that legislative action becomes necessary to bring the Ontario approach into line with the jurisprudential approaches in other jurisdictions.
Mr Ward: In this specific aspect we're catching up with the rest of the country and recognizing the realities of the changing workforce and workplace.
Mr Kovacs: That's right.
Mr Ward: Just a further question of clarification, if I may. During the certification process when a group of employees of a particular business make the conscious decision whether or not to sign and join a union -- a very tough decision, I think, that we can all recognize -- if 40% to less than 55% agree there is a need, for whatever reasons, to join a union, and collectively make that decision, but it does not achieve 55%, a representation vote takes place?
Mr Thomas: That's right.
Mr Ward: What process would that include? How is that done?
Mr Thomas: The process is set out in the act, but to oversimplify it greatly you'd say it's a secret ballot process.
Mr Ward: There is also the secret ballot process that takes place during a strike vote, again a very tough decision employees must make. Is that correct?
Mr Thomas: Yes, that's correct.
Mr Derek Fletcher (Guelph): Thank you, Mr Thomas. It was a very good presentation. Let me just get something cleared up as far as what you were saying is concerned. Because of the different variables that are impacting on business today, an economic impact study strictly on labour legislation such as what we have here would be irrelevant or it wouldn't even be able to be done strictly on this reform.
Mr Thomas: Yes. There's no disagreement with anybody in the room that if one were available it would be relevant. I'm simply indicating there are a number of factors one needs to take into account in isolating out the labour relations reform from all the other things that are going on in a province at any point in time, and they make it extremely difficult to draw any conclusions from any such study.
Mr Fletcher: That's what I thought also. On the consolidation in one workplace, let me give you a scenario. Office employees are organized by CAW, the shop floor employees are organized by CAW, but they bargain at different times. This can be consolidated. Would this be at the request of both bargaining units, one bargaining unit, the employer, all of the above?
Mr Kovacs: If I may answer that, the provisions set out in what would be section 7 of the act require that both bargaining units be represented by the same trade union. The application for combination of units in the way you've described could be made either by that trade union or by the employer of both of those bargaining units, again represented by the trade union. Before determining consolidation in that example you've given, the board would have to turn to the three mandatory factors that must be considered, which the deputy reviewed when passing through section 7. Those are whether the combination would facilitate viable and stable collective bargaining etc.
Mr Fletcher: Another question: Are these amendments banning the use of petitions? Are they saying petitions during the certification can never be used, or are petitions still able to be used by employers?
Mr Thomas: They're banning the use of petitions that happen after the date of application for certification, but evidence for or against the union is permissible prior to the date of application.
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Mr Fletcher: So you can still petition prior to the date of application.
Mr Thomas: Yes, that's right.
Mr Fletcher: One more question: As far as the first-contract part of this legislation is concerned, is it 30 days after a legal position of strike or 30 days after a union has been on strike? Either one? In other words, if my union can go on strike as of midnight tonight, I can petition within 30 days.
Mr Thomas: No. It's 30 days after you're in a legal position to strike; 30 days after the no-board report.
Mr Fletcher: So I have to go the 30 days before I can ask for a first contract, before we can access that part of it.
Mr Thomas: That's right. You will have been through the conciliation process. There will have been a no-board report, there will be 14 days that have happened since that no-board report, then you're in a legal strike position. Then 30 days after that, when you apply, if you use the automatic access process -- remember I said there were two processes. If you use the new one, you don't have to go to the board for direction, but the provisions contemplate the filing of a collective agreement that you would be prepared to sign.
That is a rather unique provision which we expect will encourage the parties to be serious about collective bargaining, because they're going to have to know what sort of agreement they are prepared to sign. They're going to have to know what are the issues and will have done some serious talking to the other side to be able to do that.
Mr Fletcher: And both parties would present a collective agreement?
Mr Thomas: Yes. One files with the Minister of Labour, and then I think it's 10 days thereafter that the other party must file the collective agreement they would be prepared to sign.
Mr Fletcher: There's one other thing, and I didn't quite catch everything. I think it was non-union employees versus union employees and the right to the courts for wrongful dismissal. Can you just explain?
Mr Thomas: That was back when I was describing the just-cause provisions. One of the reasons why some people wish to unionize is to end up with a collective agreement that provides them with protection so that they cannot be dismissed without just cause. There has to be a very good reason for their being dismissed.
That is not the case in a non-unionized environment. In a non-unionized environment there isn't a just-cause protection. In other words, an employer can terminate an employee and the only issue that will be up for grabs is the amount of money or the amount of compensation the employer might have to pay for having terminated the employee without just cause.
Mr Fletcher: A non-union employee would have to go to the courts for a settlement.
Mr Thomas: Would have to go to the courts and could never get reinstatement.
Mr Fletcher: Right, and would have to pay court costs.
Mr Thomas: Those who are in favour of having a just-cause provision cite that those are the two significant advantages they get out of it. As I said, we have deemed that just-cause provision in three places now in the collective agreement process.
Mr Paul Klopp (Huron): I find this afternoon very interesting. I'm going to deal a little bit with agriculture, as the parliamentary assistant to the Minister of Agriculture and Food.
I just want some clarification, and maybe a question in it also. The minister has made it very clear in a bit of preamble here when he first said he'd like to see agriculture also reviewed. We showed him that it needs to be handled separately for a lot of reasons, and I congratulate him on setting up the task force.
My experience in the last 10 or 15 years in agriculture has always been that we're a little leery of government and working with it. I know I have said on a number of occasions that I believe we are being heard and listened to and that the agricultural task force is taken very seriously. Even as shown today in your preamble, the government's commitment is that the task force is taken seriously.
Mr Cleary asked when the task force will it get its recommendations. It has to get done by the time we're done. My short experience around here for the last couple of years has been that so far, usually for a bill or whatever, all the bricks have to be in place and then it's passed. I guess there's a feeling that, "Okay, here it comes. We've got to get our work done and get all our stuff done at this task force because we're working along here," putting that undue pressure on agriculture.
The way I understand section 50, and specifically section 118, it allows the task force not to be under the gun, thinking it has to get done its provisions, because it can go along at the speed it thinks it can or cannot go at and we can go along with our work here. Is that not the reason for that subsection? I might be using the wrong terminology, but I just would like to know if that could be cleared up for me.
Mr Thomas: My recollection of the task force report and the minister's statements on it is that he and I believe the Minister of Agriculture and Food have agreed with respect to five of the six provisions that came out of that report, including fairly substantial ones around dispute resolution, using the arbitration or using some non-strike mechanism. He's also committed to look very seriously at a separate statutory scheme.
I believe you're right that the reason for in effect taking agricultural workers out but leaving a regulation tag in was to allow the labour relations reform to be completed even if all of the other issues with respect to the agricultural task force hadn't been worked out, and no matter what came out of the final end of the pipe, it could be handled.
I'm advised that the task force is due to report on the rest of the issues around the end of September. I do believe there are some efforts being made to very quickly decide on the composition and to get down to business on that. But I do think the task force made a number of important recommendations in phase one and it was unanimous, so we're looking forward to moving forward with that.
Mr Klopp: Okay, thank you.
The Chair: Thank you, Mr Klopp. I want to mention just a couple of things. One is that transcripts of this afternoon or any other portion of these hearings are available to people. Anybody who wants them has a right. They are able to obtain them by calling their MPP's office at Queen's Park or the clerk of the resources development committee at Queen's Park.
Second, people are entitled to things like the briefing material that the deputy minister used today, his overview of the Ontario Labour Relations Act and these amendments, which many people might find valuable in their approach to these amendments. Again, they can call or write the clerk or any MPP's office who can give them assistance doing that.
We're going to be recessing until 6:30 this evening. We'll be sitting until 9 o'clock. That will be televised, so people who are watching now should be prepared to watch it again at 6:30, and of course people are entitled to be present at these hearings and are welcome here at Queen's Park to sit in on this evening's or any other portion of the hearings.
That having been said, I want to thank the deputy minister, Jim Thomas, Pauline Ryan, the policy adviser, Ontario Labour Relations Act, Jerry Kovacs, legal services branch, and Tony Dean, administrator, office of collective bargaining information, for giving us their time this afternoon and some valuable commentary on this bill and on the legislation that it amends. We appreciate your being here, your candour and your assistance.
That having been said, we will recess until 6:30. Thank you, people.
The committee recessed at 1659.
EVENING SITTING
The committee resumed at 1830.
LEO PANITCH
DONALD SWARTZ
The Chair: It's 6:30 and we're going to start this evening's session. The first participants are Professor Leo Panitch, chair, political science department, York University, and Professor Donald Swartz, department of public administration, Carleton University. Those are the persons scheduled. People, we've got half an hour. The committee's hoping that your presentation and submission will be no longer than 15 minutes so that we can save the second half of the half-hour for questions and dialogue, which are usually a very valuable part of the exchange. Go ahead.
Dr Leo Panitch: We appreciate the opportunity to appear before the committee. Professor Swartz and I are currently engaged in writing the third edition of our book on labour legislation in Canada. Since Professor Swartz came down to Toronto to work on it this week, it was the only time we would be able to appear before the committee together to make a presentation on a subject that we know well, and on a piece of legislation that whatever position one takes in the debate around it, is clearly recognized by all as being of some importance in the political and economic life of Ontario and indeed Canada.
I shall open our remarks by attempting to put this legislation in some historical and comparative context. Professor Swartz will then take over and present our reflections on the positive and negative aspects of this legislation. We shall attempt to leave some time, as you requested, for questions.
There is a certain danger that in the midst of arguments over this or that specific provision of the bill, the Legislature and Ontarians in general will lose a necessary sense of perspective, will not see the wood for the trees. We ought, first of all, to appreciate the significance of the rights and obligations outlined in labour legislation for a liberal democracy such as ours.
The evolution of the liberal societies of the 19th century, which were not democratic, into liberal democratic ones is conventionally understood in terms of mass suffrage, the right to vote, when those without property, those who worked for other people who owned property or who, like women, were deemed to be natural dependents on others finally obtained the right to vote. That was the point at which we conventionally define the transition from an undemocratic liberal society to a liberal democratic one. But the distinction between a democratic and undemocratic regime is not in fact based on the right to vote alone.
No less important in the evolution of liberal democracies is freedom of association, the right of the hitherto socially marginalized or politically excluded to form associations to define their needs and advance their interests through those associations. The very long struggle of working people for political representation in government was matched by an equally long struggle against the legal prohibition of the workers' rights to free association.
This entailed the legal requirement of both government and employers to recognize trade unions as associational representatives of working people, and it required that the independence of trade unions from direct interference in their affairs by government and employers also had to be established.
The long process of winning these rights can be traced as far back as 1872 in Canada, but it was not really until the mid-1940s that the above democratic criteria were met to such a degree that it could be said that a comprehensive, stable policy establishing freedom of association for workers had actually emerged.
The salience of union recognition and free collective bargaining to any definition of "democracy" worthy of being taken seriously was made clear by Justice Rand in his famous judgement on union security in the Ford case in 1946.
As he put it regarding the relations of labour and capital: "In industry capital must in the long run be looked upon as occupying a dominant position.... Certainly the predominance of capital against individual workers is unquestionable; and in mass relations, hunger is more imperious than passed dividends. Against the consequences of that, as the history of the past century has demonstrated, the power of organized labour...must be available to redress the balance of what is called social justice; the just protection of an activity which the social order approves of and encourages." That's Rand in 1946.
For the past 20 years in this country -- and this is the subject of our book, which will be elaborated in the third edition -- we have seen a remarkable restriction of these trade union rights in Canada through, now, over 100 instances of back-to-work legislation and through wage restraint policies which, by extending collective agreements by government fiat, remove the right to strike, since you can't strike during the term of a collective agreement.
We have seen, in the case of public sector workers, their right to strike often removed for a temporary period, but repeatedly. Changes to labour codes at the provincial level have involved extensive restrictions in a good many Canadian provinces. Essentially, these restrictions have made collective bargaining more difficult from the workers' side; they've made recognition more difficult and they've made decertification easier.
Most Canadians do not know that in terms of complaints carried to the International Labour Organization's freedom of association committee, among the G-7 countries, Canada has one third of all complaints between 1974 and 1991 despite our much smaller population. The United States has 15%, Britain has 19% and Japan has 15% of the total complaints. Canada has 34% of the total complaints.
A great many of these complaints are sustained. Increasingly, in ILO rulings against Canada, and against Canadian governments, for abrogating or restricting freedom of association -- and these are UN treaties to which we are subject -- the ILO has repeatedly in its judgements introduced a tone of exasperation. Normally, these judgements are highly diplomatic, but in the Canadian case it is repeatedly pointed out that our governments are not adhering to the international treaties which we've signed in this area.
In light of changing conditions in the industrial structure of the developed societies, in light of the globalization of finance and production, the need for more substance in labour legislation guaranteeing workers' rights to organize, to bargain and to strike is greater than before. It requires more of this rather than less if, in Justice Rand's terms, the balance between capital and labour is to be redressed.
Ontario parties and governments are to be commended for having resisted to some extent this general trend in other jurisdictions in Canada. I make this as a non-partisan statement; neither of us is a member of a political party. In terms of Ontario governments having resisted this general trend in Canada over the last two decades, this has been true of all the parties, certainly since the mid-1980s. But this is a small compliment.
Given a commitment to democratic values, given an awareness of changing economic conditions shifting the balance of power away from working people, the kinds of changes that are, for instance, in Bill 40 should have been forthcoming from any party a considerable time ago. They're long overdue.
Efforts of workers to organize, as we've seen through the 1980s in a good number of sectors, have been continually frustrated. A number of communities have been devastated by the closure of plants or the replacement of workers in struck plants. This is the context, it seems to us, in which politicians of any party need to look at labour legislation at the current moment. It's the context in which we want to look at Bill 40.
We want to ask these questions: What will it accomplish in light of the above considerations of democracy and social justice? That needs to be analysed in turn along three dimensions: What is its contribution to trade union organization and recognition? Second, what is its contribution to redressing the balance of bargaining power in today's economic conditions? Finally, what is its contribution to advancing democratic structures and processes? Donald will attempt to address that briefly in terms of our analysis of Bill 40.
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Dr Donald Swartz: Let me begin by talking a bit about the positive facets of the bill. Let me say that in general we find the amendments contained in Bill 40 a step in the right direction. Among the various amendments, the following strike us as particularly significant.
The first set has to do with organizing. Here I'd like to refer to the amendments enabling domestics and other workers to join unions; the prohibition on the use of counterunion petitions as evidence in certification hearings, because those petitions delay the process; the empowering of the labour board to issue interim orders concerning dismissals in the period between certification and the negotiation of a first collective agreement, and the provision of union organizers with access to third-party premises, such as shopping centres. All these things will help advance organizing.
With regard to shifting the balance of bargaining power, we'd like to point to the importance of the anti-scab provisions and the enhanced right of workers to their jobs in the case of lengthy strikes, where previously the right of return to a job lasted only for six months.
Finally, we would like to compliment the government for the clear statement that enhanced employee participation in the workplace is a major purpose of the act. This indeed is a rare and creditable statement. All of these changes should be welcomed by democratically spirited people. The problems with Bill 40 are not the proposed changes in and of themselves. What troubles us and troubles us very deeply is that these changes don't go nearly far enough.
Let us talk a little bit about the limits and inadequacies of the bill. With regard to organizing, there is simply no provision for organizers to have access to company premises or even to the names of employees. This effectively places property rights prior to the right to organize, leaving an inherent imbalance where the object is balance. We give political parties the names of the voters they wish to reach -- we post them on billboards and on telephone poles -- so why shouldn't we do likewise for union organizers?
The prerogative of the employer to voice his or her opinion on workers exercising their right to organize remains in place. The problem here is twofold. The line between opinion and intimidation is very thin when one is dealing with a relationship between an employer, with all the powers of ownership and management, on the one hand, and unorganized individual employees on the other.
The whole idea of having rights is to actually use them. As citizens, we are regularly urged to vote, rather than counselled not to do so by anyone. To appreciate the point, imagine the effect of a campaign by fathers or husbands some 70 years ago urging women not to exercise their newly gained franchise. Far too much control over bargaining units remains with the labour board, rather than being placed in the hands of those who actually want to organize themselves. Why should others judge who are groups and who are not?
Let me now turn to the issue of more balanced bargaining power. The outstanding failure here is to remove the prohibition on strikes during collective agreements, which is now a feature of any acceptable agreement. This must be seen in the context of the continued and arguably enhanced capacity of employers to introduce major changes into the workplace or to close or relocate that workplace to other provinces or countries, against which workers can take no action. We also note that this prohibition precludes workers from striking in sympathy with other workers. Yet such action could be of significant assistance to groups of workers who, on their own, have little bargaining power. Given the changes in the structure of employment and the growth of many small workplaces, this could be significant indeed.
We are very concerned by the failure to redefine strikes so as to exclude collective work stoppages which are a consequence not of action against an employer but of efforts to participate in the broader political process. After all, not only are employers readily able to engage in political activity during the workday, even middle-class academics like ourselves work in circumstances where we can readily exercise this right.
We are also dismayed that employers, in contrast to legal authorities, continue to be able to impose penalties, including dismissal, on their employees in advance of grievance or arbitration hearings. This is equivalent in the judicial system to punishments being imposed before trials are held. Exposure to such enormous and arbitrary powers must be acknowledged as intimidating indeed, especially for people whose financial circumstances place them on the margins of life, who, after all, are the people we are trying to include in this legislation.
Finally, with regard to the general thrust towards democracy and participation, we want to note that the proclaimed goal of enhancing employee participation in the workplace, however laudable, is actually given little substance in the amendments themselves. The amendments include no provision that employers provide employees with financial information or information concerning investment or other long-range plans. They provide no requirement that employers bargain with employees in the event of major technological or organizational changes, although without a relaxation in the prohibition of strikes during collective agreements this requirement would not be very meaningful as workers would have no sanction with which to back their words. They make no provision for workers to meet together regularly in their workplaces to consider such information or to discuss their employers' performance generally, ie, some form of independent workplace council. Without any of these measures, where, in what way, is participation in the workplace enhanced?
In drawing your attention to what we see as the major limitations of Bill 40, we are urging you to take a leadership role in the ongoing task of strengthening and deepening the democratic character of our society. This project is quite distinct from the debate about the proper size of government. What is at issue here is not the size of government or its intrusiveness in the daily lives of citizens. The issue is whether we will have the kind of government which is concerned to empower citizens, above all those citizens whose existence is marked by a relative lack of power. This of course includes citizens who work in the public sector, including the government's own employees. The same leadership role must come to the fore then when the government turns its legislative attention to the rights of these workers.
The Chair: Twelve minutes, Ms Witmer; one third of that time.
Mrs Witmer: First question: I believe it was the first speaker who made reference to the fact that increased unionization was going to help prevent plant closures. I'd like to know how you think that's going to happen.
Dr Panitch: I don't think I suggested it would necessarily help to prevent plant closures. I suggested that, in the context of changing economic conditions where we've experienced a great many plant closures, empowering workers who are weakened by the fact that there is this kind of instability in the economy is necessary to redressing the balance of power. We exist in a situation in which increasingly we see very mobile capital.
If workers aren't given enhanced powers in the face of capital mobility in terms of defending their rights to association, their rights to financial information etc, just by standing still, by having their powers not enhanced, they are in a weaker position than they had been before. That was my point.
Mrs Witmer: But it's obviously not going to prevent plant closures.
Dr Panitch: No, of course it isn't necessarily of itself going to prevent plant closures. On the other hand, I'd point out that those jurisdictions which have introduced more restrictive labour legislation have not managed to save their economies in the process; and that's as true of the western provinces in Canada as it is of the Atlantic provinces which have tightened their labour codes, as it is of Minnesota or Wisconsin. It's a patently obvious illusion to anybody who studies the comparative situation to think that this is what saves a given regional economy. There isn't the slightest shred of evidence for tightening restrictions on workers' rights.
Mrs Witmer: You talked about the need to give workers more rights and also to advance the democratic process. I think we would all agree that this bill makes some people eligible for unionization that were excluded before, and we certainly support those provisions. However, in your comments regarding the democratic process, the need to involve workers, enhance their participation in the workplace, would you support an amendment that would make it mandatory that union organizers and employers discuss with employees the consequences of unionization? For example, the union organizer would have to make all 100% of employees aware of what it is to be a member of a union: what the dues are, what's involved in a strike. The employer also would be given an opportunity to -- I guess it would open up the process which, as you know, right now sometimes takes place in a very intimidating and secretive fashion.
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Dr Swartz: Certainly with regard to unions, yes, they should make all manner of information about the way they operate etc available to members. It's very difficult to organize people into unions if they don't, right? In the spirit of that suggestion, you might well consider amending the legislation to make it mandatory that union representatives in organized plants have the right of access to new employees to explain precisely those circumstances.
With regard to employers, the thrust of our remarks is that it's the wrong way to go because the situation is not one of equals standing together and exchanging views. In most cases, the position of the employer is that one shouldn't exercise this right. Now what we're saying is that this is an inherent part of freedom of association. There should be posters everywhere saying that just as you have the right to vote -- you wouldn't dream of someone sitting down with you and suggesting, "Let's talk about whether or not you should exercise your right to vote." We should have posters saying, "You have the right to vote." We should have posters saying, "You have the right to be a member of a union if you choose to do so," end of story.
The Chair: Thank you. Ms Murdock, please save Mr Fletcher some time.
Ms Sharon Murdock (Sudbury): Okay. Boy, when I went to university I can't remember any professor talking even remotely similar to you, both in the commerce program and in the law program. It's quite refreshing.
Dr Panitch: That's because you studied commerce and law.
Ms Murdock: Continuing on Mrs Witmer's question, we've been hearing from many of the opposition in terms of the certification secret ballot vote. I'd like your comments, if you wouldn't mind, in that regard and also with the provisions under Bill 40 as existing in other jurisdictions, either federally or provincially, individually or collaboratively, if you are familiar with the provisions working within those provinces and how they are working.
Dr Swartz: I'm not sure what the first question was referring to.
Ms Murdock: The suggestion has been made on certification that there be a secret ballot vote by the employees. I don't know how you would work it. It hasn't been suggested whether there would be a time frame or anything like that. But if an organizer went in, the automatic thing would be to have a secret ballot vote and see whether or not those people would choose to form a union without, I guess, any kind of pressure being brought to bear by either the union or management. I don't know how that would happen, but I would like your comments on that particular aspect.
Dr Swartz: This seems to be a call for a requirement that there be a secret ballot vote in all circumstances.
Ms Murdock: Yes.
Dr Panitch: Even when there's 55%, in different jurisdictions there's a different level of concurrence.
Ms Murdock: I don't know. I'm not the one who's proposing that. It's just that if there's going to be organizing of a non-union workplace, there be an automatic secret ballot vote. Any comments?
Dr Swartz: The thrust of this line of thinking is that it be compulsory to hold a vote. I think the whole spirit of promoting the right to organize historically has been that once you get clear evidence of a majority, you don't have to have a vote. A lot of the debate in fact has been over how many people you have to sign up before you're eligible for a vote, because the reality is, either you get 80% or 90% of the people, in which case the vote is redundant, or you put in a lot of time and you've got 30% or 35% signed up.
In a modern city like Toronto where you don't have access to names where people live or access to the employer's premises, you're running all over the city trying to find people, and it becomes a very difficult process. So one of the things experienced union organizers have said is, "Look, our experience has been that once you get 25% or 30% of the people, the chances are you could get 70%, so let's have a vote then." In other words, the issue has been how much evidence you have to have to be able to have a vote, not that it be compulsory that there be a vote.
The Chair: Mr Fletcher, very quickly.
Mr Fletcher: Thank you, Mr Chair. Just on the question of in Parliament, a lot of people have said, and think -- and this is from the propaganda going out -- that if this law passes, bang, you're going to have a union instantly, instant union, right in your workplace. When you were talking about in Parliament, it was interesting. You can give people the right to organize, but they have to take that themselves. Noting the demographic changes in the workplace today, with the number of women who are entering the workplace, and part-time workers, do you see that a lot of people are going to take the opportunity? Once they know their rights, do you see a mass unionization of the province coming?
Dr Panitch: I think our view is that despite the debate and polarization etc, this legislation does something, but not a great deal, to make it easier to organize in these circumstances, certainly speaking of part-time workers, smaller firms, larger retail and service sector etc.
The Chair: Thank you. Mr Offer.
Dr Swartz: I'm sorry. May I respond to that question? This is very important. There is an absolute ton of evidence attesting to the desire of people to join unions, whether they work in the banks, in Eaton's, in insurance companies or smaller, more independent operations. They've organized themselves into unions many, many times. The problem is just as much, if not more, that once they get organized, they haven't got sufficient bargaining power to sign a collective agreement, or the unions aren't large enough to organize on a broad enough scale.
That relates to my point about the importance of removing the ban on strikes during the life of collective agreements so that other workers who wanted to help them, who were prepared to sacrifice one or two or three days' pay to lend some material and moral support to their cause, could do so. Those two things have to be kept separate, I think.
The Chair: Thank you, sir.
Mr Offer: I have a question to Professor Panitch. I note that you're with the political science department at York University, and as that was the university I graduated from, and my major, I will gingerly put this question forward.
You spoke of the right of the individual to organize and the right of individuals to associate, and I think there isn't anyone who would disagree with those very basic and fundamental rights. I certainly would not for a moment. I'm wondering if you might share with me how you juxtapose the rights of individuals to organize and to associate with the rights of, in many cases, those same individuals to continue their operation in the event of a strike.
How does one juxtapose the right to associate with the right to organize, which is clear, which is there, while at the same time not reflecting the same right of an individual, in carrying on a business, to attempt as best he or she is able to continue that operation? Of course, we're talking specifically of replacement workers. Isn't that, in essence, taking away the right of an individual to continue carrying on a business?
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Dr Panitch: To continue carrying on a business in the context of a strike, you mean?
Mr Offer: That's correct.
Dr Panitch: Yes. Here, in a sense, you have right against right. This is the question of balance that Justice Rand was raising. You're speaking of this in terms of the property right and you speak of it as though an employee, regardless of the blood and sweat and length of time that goes into a particular workplace, does not have a right to that employment.
What is being captured here, it seems to me, is the extent to which collective bargaining is about attempting to secure agreements, without the threat of losing your job permanently being an element in employer power. What tends to be forgotten is the fact that a strike is costly not only to employers but also to employees. Income is not being received; families are being supported; the dignity of work is missing for that period. There's a sacrifice on both sides. This appears to me the argument that would be made.
Mr Offer: Mr Chair, I know Mr McGuinty has a question. Forgive me, but when we can establish the right to associate, we can establish the right to organize and we can establish the right to strike, why can we not also continue the right of an individual, in many cases the same individual, to continue his operation without impinging on those other rights? Because they won't. That's just a point that I have made, and Mr McGuinty --
Dr Swartz: The point here is about balance. At one point in time the employer stood up and insisted: "It's my property and I have the right to hire whomever I choose. It's my property. I'll do with it what I want." The thrust of Rand's ruling was that the balance needed to be adjusted. All we're arguing, acknowledging that it is a question of right against right, is that the balance is wrong today, given changing circumstances, that the old legislation is outmoded and much needs to be done to redress that balance.
Mr Dalton McGuinty (Ottawa South): I couldn't help but think, as I was listening to your very interesting arguments, that the people who've come to see me in my constituency office, people right on the street, are very concerned about Bill 40, and they're concerned particularly because, from their perspective, it's not addressing the very real and pressing concerns they're facing.
They're worried about a job. Nobody ever comes to see me and says, "Get me a union job." They say, "Get me a job." They're worried about funding for our social programs. They're worried about our training and educational programs and how we're going to compete in a global economy. I'm just wondering how you respond to that very real concern. On the basis of what they have heard and read, they have developed a very real concern about the impact Bill 40 will have on our economy.
Dr Panitch: Let me say a number of things about that. There are obviously people who represent different constituents. I would be amazed that an 18-year-old working at a franchise of some international hamburger joint who was harassed by a manager would not find it useful to have a union to defend her in that circumstance. I wouldn't be surprised that there are people for whom unions are of no relevance. But to say that this legislation, with the protection it affords in terms of association, is of no relevance to most Ontarians is patently absurd.
Second, the claim that jobs are lost by virtue of unionization is as old as our society. If you go back to 1872 and read the debates, you will find that the same kind of scaremongering existed in that period. There is no necessary correlation.
Finally, I would urge you, in terms of the wellbeing of your constituents, to go see a documentary film, which won the Academy Award last year, called An American Tragedy. It's about the Hormel strike in a meat-packing plant in Minnesota in the mid-1980s. You will see a community and its politicians devastated by the fact that unemployed workers were brought in from proximate towns and cities in Minnesota. They replaced the jobs of everyone who lived in that town, and those people were left with having to abandon their homes and move. I don't know whether your constituents fall into that particular social grouping; I'd be surprised if none of them did.
The Chair: Professor Panitch from York University and Professor Swartz from Carleton, the committee thanks you very much for your contribution to the process. We appreciate your taking the time to come and speak with us. Transcripts of your participation here, by way of Hansard, are available to you and anybody else who cares to ask for them, as well as transcripts, by way of Hansard, of any other portion. Both of you, thank you kindly.
Dr Panitch: I wish the committee good luck.
ALUMINUM, BRICK AND GLASS WORKERS INTERNATIONAL UNION
The Chair: Please come forward and tell us who you are and what your capacity or your position is with the Aluminum, Brick and Glass Workers.
Mr William Steep: International representative with the Aluminum, Brick and Glass Workers, and I've been involved in organizing --
The Chair: You're going to have to sit down so the mike can pick you up, sir.
Mr Decker will distribute your material. As I'm sure you've realized, some of the exchanges and questions and that type of dialogue are very important to the committee. If you could keep your submission concise and leave time for that type of exchange, we would all appreciate it.
Mr Steep: I'll try to do that.
The Chair: Your name is William E. Steep?
Mr Steep: Yes.
On behalf of the Aluminum, Brick and Glass Workers International Union, we are pleased to be able to make this presentation and written submission to the resources development committee.
I'm here today to respond to Bill 40 and the government's proposed amendments to the Labour Relations Act. This act and proposed amendments are most important to our members and to our union. Our daily experience in representing working people provides us with a particular insight as to a few of the key proposals Bill 40 speaks to.
As a representative for the Aluminum, Brick and Glass Workers International Union, I will try to give the members of the committee our view as to what we support in a few of the amendments, why we support it, and where in our opinion the proposals don't go far enough.
Given the extent of the amendments, I have only addressed a few of them. I have provided the committee with our union's written brief. Our intention, in this verbal presentation, is to limit ourselves to some of the key issues and our concerns about them.
The purpose clause: We are pleased that Bill 40 includes a purpose clause and that the objectives are set out. It is our belief that the language could be made more clear and stronger if the act recognized that effective trade union representation is necessary to bring equity between employees and employers. The new purpose clause is an improvement over the current act's preamble, but we feel there is still room for greater improvement.
Organizing and certification: This section represents the government's response to the substantial hurdles faced by employees when they attempt to obtain trade union representation.
Protection of employees from unfair labour practices during an organizing campaign: The proposed amendment, section 92.2, will allow unions to request an expedited hearing where it files an unfair labour practice complaint under section 91 of the act, alleging that the employee was disciplined, terminated or "otherwise penalized" during "organizing activities." Where a union requests an expedited hearing under this section, the hearing must commence within 15 days of the request and must sit on consecutive days, Monday to Thursday, until the hearing is complete.
Thereafter, the board must render its decision, oral or written, within 48 hours of the hearing's completion -- subsections 92.2(3) and (4). This is a step forward and its significance rests in its ability to deter employers from committing unfair labour practices during the course of an organizing campaign. We can only hope the provision is strong enough to deter anti-union employers from deliberately discharging pro-union employees as a means of thwarting a union's organizing drive. I will comment more on this a little bit later.
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Membership fee elimination: The $1 fee will no longer have to be paid by an employee in order to become a member for purposes of certification. While this may make it marginally easier for unions to convince workers to become trade union members, it's main effect will be to make it easier to establish union membership before the board. We support this proposal as it eliminates one of the objections an employer might use to delay or frustrate a certification application. Cards are not too complicated, but invariably there are always questions about whether the dollar was actually paid or whether it was lent by somebody else. We feel that's a step forward.
Petitions: The amendments, subsections 8(4) to (6), place a key limitation on evidence that a board member may consider in certification applications. The board will not consider evidence if such evidence "is filed or presented after the certification application date." The main effect of this proposal will be to prevent the board from considering petitions from employees who claim they do not want to be represented by a union where such petitions are filed after the union's application for certification date.
Restricting the role of anti-union petitions and certification applications is a welcome and major step forward. We therefore ask the government to take the necessary further step and completely eliminate petitions.
It is on this issue of anti-union petitions that I've had the most trouble and experience. I'm going to relate to the committee a story of one organizing drive I was involved with in 1986.
On May 29 and 30, 1986, I signed up 21 of 36 employees at a company in Brantford -- it shows you who it is in the thing, but I didn't mention it here -- and filed for certification on May 30. I took the cards down to the board myself and turned them in. Terminal date was set for June 10, 1986, with the hearing set for Friday, June 20, 1986.
An anti-union petition was presented at the hearing on June 20. It had two people who had signed union cards on this petition, which put the union short of the 55% needed for automatic certification. I did have two more union cards, but our secretary at the time failed to send them in by registered mail and therefore I couldn't count them. This action delayed certification and another date of July 4 was set for continuation of the hearing for certification.
On June 27, 1986, this company laid off four union supporters and kept junior employees. I filed a section 89 complaint. On June 30, the company put in a punch clock, which was never used before, in violation of section 79 of the act in that time frame. The hearings for these complaints were set for October 10 and 17, 1986. On November 6, 1986, our union was finally granted certification. By this time, four more union supporters were laid off out of seniority. They eliminated the afternoon shift and they all went to days.
The section 89 hearings were not held until March 10, 1987. Negotiations were dragged out by the company to go over the one-year period and at that point some employees filed for decertification. The vote was ordered for April 21, 1988, and our union was decertified.
I believe it is important to note that the anti-union petition was found to be sponsored by the company. In fact it was the night shift supervisor who went around to the people's houses and got them to sign it. But the fact is that they could stall the hearings and use delaying tactics. Eight union supporters lost their jobs. When they got the second vote to decertify our union -- they were no longer employees -- they in fact got their way by using the law to their advantage. This use of anti-union petitions to delay hearings should not be allowed and I hope the committee will take this into consideration.
Improving collective bargaining and reducing industrial conflict: This whole section is of key importance to us.
Use of scabs: This surely is the most controversial section of the proposed amendments. The use of scabs and possible prohibitions against this practice has been the subject of consideration and debate since the introduction of anti-scab legislation in Quebec.
Now the government's proposals move significantly in the direction of the Quebec legislation. Sections 73.1 and 73.2 constitute far-reaching restrictions on the employer's ability to have bargaining unit work performed during a strike. Such restrictions will only apply during a lawful strike or lockout. This must be authorized by a strike vote in which at least 60% of those voting authorize the strike under subsection 73.1(2).
The reason for the need of this section is obvious. It would put an end to violence because of the use of scabs. How many more workers must be hurt or killed on the picket line? We've had some experience right here in Ontario where people have been run over by -- call them replacement workers, if you will, who've driven into the plant while a strike was being conducted.
Employee benefits: Section 81.1 requires an employer to continue paying employment benefits, other than pension benefits, when a strike or lockout commences, provided the union tenders payments sufficient to continue the employee's entitlement to benefits. The employer is prohibited from denying or threatening to deny such continued benefit coverage. This benefit amendment parallels that of other jurisdictions such as Alberta, Newfoundland and Manitoba, as well as becoming the norm in most Ontario labour disputes.
I can tell you that we've had problems in various places where I've negotiated collective agreements where there has been a strike and people have gone out. We've had to go out and scrounge to get at least life insurance for people because management wouldn't pay the benefits because we were on strike.
In conclusion, the government of Ontario is to be commended for both initiating a full consultative process enabling all views to be heard and for proposing significant amendments on labour law reform. Bill 40 represents a far-reaching and progressive package of provisions which will help working people in Ontario maintain and advance their standard of living and quality of life. At the same time, we have tried to point out areas where the government's proposals are in our view incomplete, such as the remaining space for petitions.
Our union would like to take this opportunity to thank the standing committee on resources development for taking the time to hear our views. We trust that our concerns will receive serious consideration in the final writing of this legislation, which is so very important to our members and the people of Ontario as a whole. Thank you very much.
The Chair: Thank you, sir. Four minutes per caucus. Mr Ward, and I should tell you Mr Huget wants to get involved too.
Mr Ward: Mr Steep, I'd like to thank you for taking the time to give us this excellent presentation. I think it's an accepted fact that very few people in Ontario will dispute that over the last 20-odd years the workplace and workforce have changed significantly: more women entering the workforce and the part-time changing nature of the economy going into the service sector.
Is it your opinion -- and I know your background; you've got great experience in the labour movement -- that the efforts of this labour reform, although you have some concerns that it doesn't go far enough, will foster a growing environment of cooperation and a development of trust, not only between labour and business but government as well? Do you feel we are moving in the right direction with this labour reform and will it eliminate the aspect that if a group of employees or working people wish to be organized, they have greater opportunity to do so?
Mr Steep: Yes, I really believe that the whole package is a step forward. One of the things is that people are really afraid. I'll tell you, I'm working on an organizing campaign right now and 90% of the people who won't sign union cards -- it's not because they don't want to belong to unions; they're afraid that management in some way is going to retaliate against them.
I think the union movement as a whole has taken a step forward, where we now encourage participation of the union in making the workplace better. It's always been my belief that we can't just leave it up to management any more. We have to become involved ourselves and use the brains of all the workers and not just the managers. I think that this legislation moves towards encouraging unionism and will in fact develop that spirit of cooperation as we move ahead and try to do better. They are our jobs that we're trying to protect.
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Mr Huget: I want to refer to the replacement worker issue. I notice you make a very brief comment about it in your presentation. I guess what I would like from you is whether or not the companies you've worked with use replacement workers, and if they do, what effect has that had on the nature and the length of strikes you may have witnessed. I'd like your opinions on that.
Mr Steep: I have to feel very blessed in that our industry, the glass industry -- and we make beer bottles, pop bottles, ketchup bottles, whatever the case may be -- you can't just bring somebody in off the street who can learn to operate it in a week. It can't be done. So we've been fortunate.
Where they have brought trucks into the plant to take material out, which isn't really replacement workers but taking stuff out, I can tell you that it causes a great deal of conflict and hardship. I can speak about my own plant when I was local president in Brantford. Unfortunately the plant is now closed, but it decided it was going to bring in raw materials. They charged a truck in through the picket line and people had to almost -- well, I didn't -- scatter up the snowbanks to get out of the way of the truck.
The Chair: Mr Offer, four minutes.
Mr Offer: Thank you, Mr Steep, for your presentation.
On page 3, you spoke about the issue of the membership fee, which is now $1, being eliminated under these proposals. You state, "This may make it marginally easier for unions to convince workers to become trade union members." I'm wondering if you can share with the committee why the elimination of the $1 membership fee will make it easier to convince people to become members of a union.
Mr Steep: First of all, I would have to say this: The fact that they pay $1 or not is not so much a big issue any more, except that what invariably happens is that management usually calls into question whether the finances were paid properly or the cards were signed properly, were signed in the right place. It's one more issue that management brings up. In organizing we strictly tell our people they're doing this on the inside; they cannot lend somebody the $1 or lend it to somebody else to lend the $1.
Sometimes we feel that management has put people in there just to see if they can get a card and not have to pay $1. That happened to me in organizing Windsor Tile back in 1984. In fact I said: "No, we don't do that. You've got to give me the $1 or you can borrow it from somebody else, but it can't be anybody involved in the organizing." It's one more tool, I think, that management uses to try to stifle or delay the union organization drive.
Mr Offer: Just as a follow-up. I'll be very brief and maybe we'll have some time to ask further questions. If that's your position with respect to the $1, that it's used by the employers, do you feel the legislation should be changed so that there is an obligation in legislation to inform employees as to what it means in terms of their rights in joining a union? Right now this is absent in the proposals. There is no obligation to inform an employee as to the impact of signing a membership card. Do you believe the legislation should be changed in order to fully inform employees as to what it is when they sign a membership union card?
Mr Steep: I'm working on organizing a drive right now, and I've handed out petitions and addressed issues in the plant that people have talked to me about. They've sent out six different letters turned in with the employee's paycheque on everything about how union dues is something that is going to be taken away from you rather than added to your payroll. The letters have laid out how to go about starting a petition. Management still has those rights and still takes full advantage of them. Like I said, I've been in this place six months and they've sent out seven letters to their employees and it's all about how bad unions are.
Mrs Witmer: I do want to thank you for your presentation and for sharing with us some of the problems you've had in unionizing. You indicate you're pleased the anti-scab proposal is going to do away with workers being hurt or killed on the picket line. I'd like to know how many workers have been killed in Ontario because of this legislation and when that happened.
Mr Steep: Unfortunately I don't have all those statistics in front of me, but I'm sure you'll hear them before these hearings are concluded. Right offhand I can think of three: one in St Thomas and two here in Toronto. Steelworkers were involved in two of them and I'm not sure who the other one was, but it was a case where a truck came in with replacement workers and this guy was standing in front of the gate and the bus charged right in and ran him over. That was right here in Toronto about three or four years ago.
Mrs Witmer: And he was killed?
Mr Steep: Yes.
Mrs Witmer: The other thing you mentioned is the fact that it's very difficult to unionize, and you recounted some of the problems you've had in unionizing. I wonder, in all fairness, if we were really going to make sure the legislation was balanced and that employees were truly going to be well informed, if you would support a proposal -- and I think I'm following up on Mr Offer -- whereby union organizers would have an opportunity to share with 100% of all prospective employees, not just the ones they feel would be supportive of the union, what it means to be a union member and what are the consequences of going on strike, what are the dues and what is the labour history of the union.
Would you also support that employers be given that same opportunity and then allowing employees, through a secret ballot vote, to freely express whether or not they wish to join a union so that the process would be free of coercion from either union or employer? Would you support that process to fully inform employees?
Mr Steep: I'd actually love to be able to address all the employees in any one plant along with management at the same time and tell them the benefits of unionization versus the company's version of what the union will take away from them. We try to tell people when we organize them. I make a very strict rule. We never lie to employees. We always give them our constitution that outlines the salaries of our president and treasurer, how much dues they have to pay and what percentage stays with the local union. We try to give them the straight goods.
I probably should have brought my organizing file. I could have shown our letters we put out when we go to a place we're trying to organize. We're doing handbilling. We try to give that information to employees so they know exactly what it is. My experience has been the worst the union can do is make the company live up to the laws that are already in place. In a good percentage of cases companies are not following the laws that already exist for health and safety and pay equity.
Mrs Witmer: Would you support the employee having the right then to a secret ballot vote to choose whether or not he or she wants to join a union after he or she has had an opportunity to be fully informed of what it means?
Mr Steep: I've been involved in votes before for one reason or another. I think the idea of having a free vote every time in fact delays the time frame in which something can be done and allows management to do more things, send more letters, make more contacts, use the rumour mill to try to influence people through foremen or lead hands or whatever to get them to change their minds. Clearly if you have 55%, as the legislation says, I don't think you need to have a vote. In the experience from the United States, where they can delay a vote for up to a year, you'd be lucky in some cases if any of those people you signed up are left a year later.
If the vote could be done right away and management wasn't allowed to do anything or maybe even the union wasn't allowed to do anything, I might not have a problem with that. But clearly we're working from the dark in trying to organize up to 55% of the employees. In some cases we can't even find out how many hourly rated employees there are in the plant.
Mrs Witmer: I guess that's one of the changes that could be made; that list could be made available to you. I'm just saying we need to open up the process and not make it so secretive, and make sure that it's free of any coercion or harassment from any side.
Mr Steep: I'd be glad of that, if management could keep its hands out of it, for sure.
The Chair: Thank you, Mr Steep. We appreciate your coming here representing the Aluminum, Brick and Glass Workers International Union. You've made a valuable contribution and we're grateful to you. Please feel free to spend time here along with the other visitors.
Mr Steep: Thank you very much, Mr Chairman.
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ONTARIO HOTEL AND MOTEL ASSOCIATION
The Chair: We have the Ontario Hotel and Motel Association, if the people representing that group would come forward and have a seat. I would tell others that there's coffee and soft drinks at the side. They're here for you to make yourselves comfortable and at home.
We've got 30 minutes. Please try to keep your presentation compressed. We've got your written material, which will become an exhibit. All the members have that, and most of them have read most of it already. Please try to save the second half of the half-hour for questions and dialogue.
Ms Diane Stefaniak: Good evening. My name is Diane Stefaniak and I am the executive director of the Ontario Hotel and Motel Association. To my left is Mr George Schmalz, who runs the Blue Moon Hotel in Petersburg, Ontario. He is the president of our association. He will be here if you have any questions after my presentation.
I would like to thank you for giving me this opportunity to speak on behalf of the members of the Ontario Hotel and Motel Association on this very important issue. We are a hospitality trade association of over 1200 members in the accommodation, food and beverage service throughout the province of Ontario, representing over 60,000 bedrooms and well over 15,000 employees. Approximately 90% of our members are small- to medium-sized operators who offer products and services to the tourist.
The tourism industry has been hit hard by this recession, as have all businesses. The increases in minimum wage, taxes, the employee health tax and unemployment insurance have hit our industry the hardest. This has resulted in many closures and staff layoffs, which have meant the livelihood not only of the owners of these closed businesses, but their employees. As you know, the hospitality industry is extremely labour-intensive and is the largest employer of minorities, women and the unskilled worker. We feel that many of the changes, if enforced, would mean further closures, as our industry could not take on another burden and survive.
We acknowledge that changes are needed in the labour act, but feel that the changes presented are not practical and will force many businesses to close because it will be too expensive to operate in Ontario. We agree that there are instances where the recommendations might be needed, but just as there are bad employers, there are also bad employees.
One reason there's resistance by the industry is from personal experience: demands for high wages when there is not much room for profit margins; refusal to complete a job because it is quitting time or break time or, even worse, "It's not my job." It's a little difficult to tell your guests they cannot enter a room for another half-hour because there is a wire on the floor which cannot be moved except by a hotel employee and that employee is on a break. Yes, this is a true story. At the same time, we recognize that the employer must treat the employee fairly and with respect.
Unlike a manufacturing plant, there is no inventory in hotels or restaurants. If the room is not sold that day or a meal not served, that revenue is lost for ever. In many instances, recovery is not possible and the doors are closed. These establishments quite often are family-owned and -run. When the doors close, it generally means the life savings of a family are wiped out, so it isn't just the employees who lose out.
In consulting with my colleagues in the meeting and convention industry, they have reassured me that when choosing a destination for a convention, serious attention is given to see, if the property has a union, when the contract comes up for renewal and past history of service satisfaction. Can you imagine what would happen if the nine hotels in Toronto which are all represented by the same union went on strike at the same time? The cancellations would devastate the economy of this city, which would have rippling effects on other businesses, right to the government and loss of tax revenue.
Not only does tourism employ a lot of people, but it creates jobs through the money generated by the tourists. A study conducted by the International Association of Convention and Visitor Bureaus estimates that the average daily spending of a convention or trade show delegate is $143, or $585 per stay. This amount is distributed to the hotel, restaurants, entertainment, retail stores, agriculture and transportation. To get a more accurate picture of the revenue generated, multiply this amount by seven. If tourism wasn't so valuable, why do so many countries compete for major events such as the Olympics and World Fair? But we cannot invite people to our province and then set up the roadblocks such as high costs, taxes or no services due to labour disputes.
I would like to highlight some of the more critical areas of concern for our members.
The extension of powers to the Ontario Labour Relations Board is of great concern, especially since these will be appointments and there will be no process for public confirmation. How can this board be impartial under these conditions? To suggest that the collective agreements would not be looked at but rather the employee and employer relationship -- that alone is questionable. This fundamentally shifts the body from a non-partisan body to a pro-labour body.
Adding the preamble into the purpose clause changes the focus and clearly guides the board to the interests of unions and not necessarily the employee. This would make it difficult for the employer to take hard bargaining positions or to recognize the necessity of concession bargaining. This bill seems to encourage the board to ignore economic realities.
To allow organizers and employees on third-party premises or property to organize infringes on the rights of the public. What is considered to be the employee's entrance or exit from their employment? What about the case of food courts in malls? This would disrupt many others who are not involved and frighten the public away because they do not want confrontation. How many people walk around an area to avoid picketers? We recognize that it is not the intention of this clause to cost jobs of third-party employers, but without the ability of these employers to state their case as to how and why picketing will affect their business, you will be encouraging further job losses.
We support the rights of individual workers to freely decide if they want to join the union, but we feel that the employee must have equal opportunity to hear both sides, then judge for himself or herself and have the freedom to vote without pressure. I believe it should be through secret ballot.
At all times these presentations should be made in such a manner that it would not encourage or create conflict between management and workers. Eliminating admission of petitions or any other means for an employee to change his or her mind after the union has filed its application for certification takes away that right of the employee. In my mind, this is similar to the cooling-off period presently allowed with contracts and major purchases. It is important that when petitioning employees, they are also fully aware of what additional costs are to be incurred when joining a union. We recommend that union fees be clearly indicated on the membership card. More information should be given in written form by both the employer and the employee.
It is important to review each case on its own merit and not approach it with a broad-brush stroke. If the true spirit of organization is for the rights of the employees -- all employees -- then it must be researched to see if the desire of organization is beneficial for the majority or just a few. Will the employees be better off financially and emotionally? Will they still be proud of their job and ability? Will they still be productive and will the establishment still be able to be competitive and provide employment at the same level if they were organized?
We believe that the workers should have the right to belong to a union, but they equally have the right not to join. The freedom of choice should also extend to the employees if they wish to continue working or to strike. The choice should be the individual's.
To allow the consolidation of bargaining units in the hospitality industry would be devastating as it would discourage investors who are interested in the franchising of restaurants and/or hotels. This would also create pressure on employees who do not want to strike at their place of operation but are being forced to by another unit that happens to have more employees.
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The hospitality industry serves the public and tourists. By not being allowed to bring in replacement workers to service these guests, the hotel or restaurant will suffer, and possibly close, but a great spinoff will occur: Revenue will be lost for taxi drivers, non-striking surrounding attractions, farmers, government taxes and so on. A family-run business must also be able to continue operating. They should be allowed to have their families and friends assist them. If a company has to close down during a strike, it is a very real possibility that it will not be able to reopen after this strike and the employees will not have jobs to return to.
If you want to restrict management from bringing in staff from other locations to work during a strike, then you must limit the picketers to only the striking employees from that particular site.
By uniting the full-time with part-time workers, the rights of the part-time workers are being undermined. Their interests are generally different, and quite often they choose to be part-time and do not want to be organized in the same group as the full-time, if at all.
In summary, I say we must work on a win-win situation. Employers in the hospitality industry know that the employee is their most important asset and that they need to work together to make things work. The employee must be content and the employer must create an atmosphere in the workplace to encourage career satisfaction.
Today is not the time to impose these recommendations. We agree that some changes are needed, but further consideration should be given. We believe each case should be judged on its own merits. If something is not working now, review that particular case to see if there is a better solution. We agree that labour and management must work together, but this agreement must take place first, before any further legislation is placed on our industry.
We believe there should be better access of information for both the employees and small employers in assisting them to deal with labour issues and the labour act. The majority of employers in our industry do not have, nor can they afford, a human resource manager who specializes on labour issues.
It is our belief that any legislation must be for the good of all the people, labour and business. On paper recommendations might appear to be favourable, but in practice they could have an opposite effect. The changes should be carefully studied, with case scenarios. The examples must not be slanted in favour of either labour or business, but evenly split, with large and small companies segmented by area and type of establishment. Only then can you really have an idea of the impact these recommendations might have.
The proposed ease of organizing a union will be a deterrent to investors and continue the exodus of many businesses out of Ontario. With technology today, many central reservation systems and offices are already operating outside our province, and in many cases outside of Canada. Reservations for hotel rooms in Ontario are taken in the United States. The mail order business is growing with orders being processed elsewhere for delivery in Ontario.
Other job losses have occurred with chain operations moving their payroll, marketing and even buying departments out of the province. The buying departments have already put together a list of front-line suppliers to purchase their products if a strike happens. This shows a real job loss, not just in the restaurant or hotel, but down the line to the truckers, the food processors and, most important, Ontario's agriculture. If we continue on this road of roadblocks for the employer, we will soon have a block of buildings with nothing but machinery that connects Ontario to the rest of the world.
We also question why unions that have had no experience in the service industry are so interested in helping the service industry. Are we the scapegoats because they lost members through so many job losses in manufacturing because companies were closing and moving? The unions that presently service the hospitality industry have been building a good working relationship with us. They understand our needs and our industry. We suggest that when unions are petitioning to organize an industry they have some experience in that field.
This present legislation has made changes that will not only treat employers unfairly, but will encourage further closings and cross-border exodus of businesses. There must be a solution whereby employees and employers can be treated equally, and the recognition that the rights of the employee are important but so are the rights of the employer. It doesn't serve anyone well if there are job losses which will result in lost revenue, thus lowering the spending power that ultimately will create jobs once again.
The Chair: Thank you, Ms Stefaniak. Five minutes per caucus.
Mr Offer: Before we get into some of the more substantive aspects, because you are such a very important association which really is found in every community in the province, can you share with the committee any sense you have as to the degree of unionization that now exists in the Ontario Hotel and Motel Association?
Ms Stefaniak: I think it's in the minority. I'm afraid I don't have exact statistics. There are some hotel properties up in northern Ontario and Dryden that have some organized unions on their property. I'm just gathering statistics now as to how many of them are unionized, but I don't have an exact count.
Mr Offer: Okay. What I'm hearing in your presentation, in the area of organization and whether or not to join the union, is the concern of your association not to take away that right of the individual, but rather to make certain the individual is fully informed before he makes his choice. I'm wondering if that's a proper characterization of your position.
Ms Stefaniak: I think that's very accurate. That's exactly what we're saying. It has to be freedom of choice, and they have to have full information before they can make that decision.
Mr Offer: If I can address the issue of the replacement worker -- because right now, though we don't know the percentage, there is certainly some incidence of unionization in your association -- is your concern with respect to the impact that will have on any establishment? Is there any suggestion that you are making on this issue as it affects your industry?
Ms Stefaniak: If I could address it as an example, why we are concerned about the replacement worker is that it is vital to keep the operation going. Because our industry is service, that indicates labour, and it's labour intensive. As soon as you take away the regular staff, if you have guests in your hotel -- and I repeat that word is "guests," and tourists, and they are invited -- what type of perception or what image are you giving them if you cannot give them at least partial service? By taking away the right to have replacement workers, you would have to actually close down and there would be no way of recovering, maintaining service or even having a business open.
Mr Offer: I'll be brief in this question. I have heard in the convention trade, certainly in an urban area, that whatever the group coming in is, if it's a major group, questions are always asked are whether there are collective agreements, when they expire, and if they expire, whether a guarantee of service can still be given to their members. In many cases, I'm sure in some of the larger conventions, that might entail service to 30,000, 40,000 or 50,000 people. I'm wondering, first, if you can affirm that, and second, what your feeling would be if that assurance of service can't be given.
Ms Stefaniak: I can categorically agree with you that this is one of the things. When people are looking for destinations to hold their conventions -- and it really doesn't matter what size -- there is the issue of whether the property they're going to is organized and when its contract definitely comes up. If there is a choice of two or three cities, and maybe the city they choose is Toronto, if there is a fear that the property will go on strike or there is any labour dispute, they will not go there. They will go somewhere else. In Canada, as it is, we're competing. We have enough competition with prices, and as I say, that's just one more thing to chase the person away, if he feels he's going to come to unfriendly territory.
Mr Offer: I have no further questions, Mr Chair.
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Mrs Witmer: Thank you very much for your presentation, Ms Stefaniak, and I'm pleased to see you, Mr Schmalz. I guess we're neighbours.
I think Mr Offer has referred to one of the major concerns about this legislation, and that is the anticipation that it will create job loss in the province, and that it already has. I guess I'd like you to expand on the last page. You mention here that already central reservation systems and offices have moved outside of the province and that people are moving their payroll, their marketing and their buying departments as well. I had heard this rumour several months ago. You're saying this is definitely happening. How fast is this type of move taking place where we're actually losing jobs in this province?
Ms Stefaniak: I think that with the economy people are looking at the most efficient ways. You're going to find places like even Pizza Pizza having a centralized phone system. I'm not saying they would move down. I believe Best Western has a central reservation system in the United States. Granted, that's an American company. When they're looking at other offices to hold it because there's too much for one location, Ontario is not on their list for consideration, even though maybe a lot of business is done here. Again, these are just things that you hear about as you go along, more and more of these offices being opened up outside the province.
Mrs Witmer: Then that definitely does confirm the rumour I heard. This is happening, and I understand there are many other companies that are looking to do the same thing if Bill 40 is approved.
It appears that Bill 40 is going to have a unique impact on your industry because of the need to service your clients at all hours of the day on an ongoing basis. Do you have any recommendations for amendments this government should be looking at as far as your particular industry is concerned? Is there any proposal you particularly find offensive that needs to be dramatically altered or removed?
Ms Stefaniak: As I stated, I firmly believe that there is a time and a place for everything. I cannot say that unions should be entirely wiped out in the hospitality industry, because I don't think that is the answer; I think they're needed in some areas. But I think consideration has to be made as to the type of industry, the ramifications if an establishment is organized, the fact that the majority of people in the hospitality industry are small or medium-sized businesses where they just simply cannot afford all these roadblocks that are set up.
I guess my main thing is that when they're looking at any labour legislation, the tourism industry be carefully considered: that it is not a large manufacturing plant; consideration that we do not store inventory; that the job losses are a real thing. If a restaurant or a hotel has to close down because of a labour dispute, that could be permanent closure.
Mrs Witmer: I appreciate the information you've given us and I hope the government would certainly look at making some serious amendments in regard to your particular industry.
Mr Turnbull: Ms Stefaniak, can you comment on the potential of having a first-contract arbitration imposed upon an establishment in your industry? I know your profits are very slim, if they exist at all at the moment. What would be the impact of an arbitration agreement being forced upon you, typically, today?
Ms Stefaniak: I think the economic impact would really depend on the size of the establishment or the number of employees. As I say, many of them are family operated businesses. They do not have management staff that have human resources. I think when it comes to anything like that, just being able to cope with it, to understand it, is one issue. I don't know if they'd be prepared for that first step.
Mr Turnbull: You understand that this would not take into consideration the capacity of the establishment to pay higher wages. It would be mandated upon you.
Ms Stefaniak: That's right.
Mr Turnbull: Do you feel that would lead to bankruptcies? I'm not trying to coax you to say this, I just --
Ms Stefaniak: No, I understand. Unfortunately, I also am a layman. I'm not an expert on the Labour Relations Act or anything. I know that many of my members right now are on the brink of bankruptcy. Throughout the province, there are a lot of hotels, large- and medium-sized properties, that are in receivership. It's just adding one more nail. As you've said, the fact that there would be no negotiation as far as the size of wages is concerned, any consideration of what that particular operation can afford, really would be devastating.
The Chair: Mr Fletcher, please save time for Mr Klopp.
Mr Fletcher: I will try to.
Thank you for your presentation. I have a comment on what was said. Some of the large companies in Ontario have reinvested in Ontario. We look at Ford, Chrysler, General Motors, Glaxo; they're putting money into Ontario. They know about these laws that are coming through, about this legislation, and they do have confidence.
Getting back to the tourism industry, I have two questions. First, do you feel that with this legislation, if it passes, bang, you're going to have a union in every hotel and motel throughout the province?
Ms Stefaniak: No. I know realistically that won't happen, nor do the unions intend for that to happen.
Mr Fletcher: Stealing another page from the Conservatives, right now you have the opportunity and you will have the opportunity to present your side to your employees about unionism. Would you allow union representatives to come in and talk to your employees and tell them about the benefits of joining a union, if it were legislated that way?
Ms Stefaniak: Providing that the employer would have equal rights and equal time.
Mr Fletcher: You have that.
Ms Stefaniak: They don't have it to the same degree. Again, I have been involved, many years ago, and I don't think there is that same even playing field, as I said in my presentation.
Mr Fletcher: What if you both did it at the same time? How's that?
Ms Stefaniak: If we both did these presentations at the same time and gave the employees the chance to digest what was being said without any extra influence and the opportunity to vote on a secret ballot where they would not feel intimidated by both the employer or the employee, then I think that would be a fairer way of doing it.
Mr Klopp: He stole my question. To you, sir, Blue Moon: I've been there many times in my few years around the world. You've been an owner for a long time?
Mr George Schmalz: That's why I have the grey hair.
Mr Klopp: You have really good food and good staff. I guess that ties in. I don't know if it's unionized or not. I never look at that. I go by the people. If they have smiles on their faces, they're happy employees, and that's reflected in the tip they get from me.
Mr Schmalz: That's another issue.
Mr Klopp: I'm a farmer and you mentioned agriculture. I've been hearing rumours too out there in the system, I guess, that unfortunately a lot of companies -- the information can be true or not -- actually import a lot of their processed food to hotels. I have a few friends -- I'd like to think they're friends -- in fairly big hotels in this province, just connections. I ask where they get their food from. When I look, I have a hard time saying that it's probably imported, that it isn't Canadian beef, that it isn't even western beef. They say, "Oh gee, it says, `Packaged in Canada.'" Would you have an idea how much Ontario agricultural products are used in the industry? I'd really like the information.
Mr Schmalz: I believe that in my establishment, it's 100%. Sometimes we don't know the manufacturers -- through agencies and so forth down the line -- but we do profess to try to use local foods and things of that nature.
Mr Klopp: But we have a lot of big hotels. I wouldn't be surprised. I would bet that as a family run operation, that's a plus. I wish we all had more smaller hotels rather than bigger hotels. I'd like to know, if you can get that information for me, is it 80% of all the companies or whatever? It would help me along for a lot of other issues.
Ms Stefaniak: I will make a note to see if I can find out the sources.
The Chair: Thank you, Mr Klopp, Diane Stefaniak, the executive director of the Ontario Hotel and Motel Association, and George Schmalz, the president and also the operator of the Blue Moon Hotel in Petersburg, which has won accolades from at least one member of this committee. What is the address of the Blue Moon Hotel?
Mr Schmalz: Between Kitchener and Stratford.
The Chair: The Blue Moon Hotel between Kitchener and Stratford. Paul Klopp frequents it often and is very pleased. I want to thank both of you for appearing here on behalf of your association. You obviously represent a large constituency of business people, small and large, in the province. We appreciate your taking the time to come out and help us in this process. We're extremely grateful. Please feel free to stay for the rest of the evening.
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ONTARIO COALITION AGAINST POVERTY
The Chair: The Ontario Coalition Against Poverty, please seat yourselves at a mike and give us your names and your titles, if any. We've got 30 minutes. Try to keep your presentation down to the first 15, max, so we can have some dialogue, which is inevitably important.
Mr John Clarke: My name's John Clarke. I'm the provincial organizer of the organization. Making a few comments after me will be Merle Terlesky, who is with our Metro committee.
I should begin by explaining that the Ontario Coalition Against Poverty is a coalition of anti-poverty groupings throughout the province. We're an organization, at least to the extent that we've been in the public eye, that has been associated with issues concerning welfare rights.
That being so, I think it's extremely important that I stress that in our estimation the poor of this province have a very vital stake in the question of labour law reform. Members of the committee will be painfully aware of the fact that enormous numbers of jobs have been lost during the period of economic recession. But we also must point to the experience of the recovery of the mid-1980s, when enormous numbers of people who went back to work found themselves going back not to their former jobs but into the low-wage ghetto.
In the situation we're in today, where recovery is on the agenda and people start to go back to work, when there have been so many plant closures, we can only imagine that the process is going to be worse this time around than last time. That's something we need to bear in mind, because the plight of the working poor becomes an extremely desperate phenomenon in Ontario, even more desperate than it has been to date.
It is impossible to overstress the extreme vulnerability of the working poor in today's situation: inadequate minimum wage, recourse only to the Employment Standards Act. We have a situation where a whole layer of extremely exploited workers exists in our society today, a disproportionate number of whom, of course, are to be found as youth, women and members of minority groups.
It seems to us, therefore, absolutely vital that this segment of workers have access to the benefits of trade union membership and trade union organization. That's one of the chief ways in which people are going to be able to work to improve their wages and working conditions. Of course, low-paid workers are concentrated precisely in those sectors of the economy that historically have a dismal record with regard to rates of unionization. We're aware of the fact that within manufacturing some 44% of workers are organized, but within the retail sector it's down to 14.9%. I was at a committee meeting of Metro council today where a representative of the Bay was able to testify that within his operation it's down to 8%. Therefore I would like to put on record here that our coalition believes the right to unionize has to be a key part of an anti-poverty strategy for Ontario.
Before offering an evaluation of Bill 40, I'd like to place it in a certain context, because I think it's extremely important that legislators carry out their deliberations with regard to the fact that what they decide is going to go out and have to be actually practised in the real world. If you are talking about providing safeguards to people to ensure that they can enjoy the benefits of union organization in a climate that is free of fear and intimidation, you have to consider the realities of the workforce in the 1990s. You have to ask yourself if a small potential bargaining unit made up of mainly immigrant women, for example, is able to proceed without fear and intimidation. You have to consider the situation of the enormous numbers of people returning into employment from the welfare system and you have to ask, "Are those people going to feel free of intimidation and ready to go about participating in union-organizing drives?"
That being so, having placed it in that context, I think I'd like to say that this bill we're dealing with here seems to us timid in some ways, but none the less an enormously important piece of legislation that needs to be supported if it needs to be strengthened. I'd like to give a few examples of that.
We note that it offers some measures to help domestics and agricultural workers. That's very important, but in a situation where lone domestics are not to be given the opportunity to organize, in a situation where agricultural workers are not to be given the right to strike, we think that weakens the thing considerably.
It's certainly necessary, in our opinion, in the whole question of the right to organize, to take a very bold approach to the situation. It's important that a review, as we understand it, of the situation of home workers and domestics is under way, but we would support the proposition advanced by the Ontario Federation of Labour that it's necessary to carry out a major study of the whole question of broad-based bargaining.
We are not back at the end of the war in the postwar boom period. The potential bargaining unit today is often very small. We understand that in 1985, 85% of workplaces consisted of less than 10 workers. We can only imagine that this continues to get worse. The whole question of broad-based bargaining is therefore a very important one and needs to be looked at seriously.
Around questions of organizing and certification, the comments that were just made about the real world apply here, I think, with great effect. We certainly support the notion of expedited hearings before the board in a situation where workers believe themselves to have been victimized for organizing activities. However, the Ministry of Labour document that was circulated last year calls for a seven-day delay in the process. We now notice that Bill 40 talks in terms of 15 days. In a climate of fear and intimidation, in a climate where people are reluctant to proceed, we think that having this kind of situation hang over people for as long as 15 days would be a grave mistake and that it's necessary to return to the seven-day provision.
We are glad to see increased access to third-party property, but we see no reason why union organizers should not have access to non-productive areas in workplaces like cafeterias and parking lots. We certainly would support the position that a number of unions have advanced, that union organizers be given access to lists of employees. I think that would be extremely important. In today's situation, where just about everybody has everybody's name on file, I really think questions of privacy are not ones that can be taken as seriously as the need to give union organizers and potential union members an opportunity to have access to the benefits of union organization.
Certainly, on the question of petitions, we are extremely glad to see some moves in the direction of anti-union petitions being removed, but we think they should be banned outright. In our opinion, they are a thoroughly discredited mechanism that is so open to abuse that their utter and immediate destruction is certainly well warranted.
I would like to take up briefly the question of scabs. That's one that has attracted great public attention around the whole debate on this legislation, but it is a vital question for the anti-poverty movement. We have always been opposed to pitting unemployed and employed workers against each other. We consider that to be something that is vile. We consider it to be an exploitation of the desperation and misery of the unemployed, and very often more than just simple economic pressure is used in that regard.
When I was with the London Union of Unemployed Workers during the postal strike in 1987, I well remember that the welfare department was caught out telling people that if they failed to take strikebreaking positions at Canada Post, they were in jeopardy of losing their welfare cheques. When that kind of pressure is applied to people, we think it's completely and utterly unacceptable, and indeed we think the anti-scab provisions need to be strengthened.
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We note that a 60% strike vote is necessary for the protections to kick in. We don't think that's necessary. We certainly believe that non-bargaining unit members being able to work at the strike location is unacceptable. While in some heavy manufacturing industries the provision around the ability of employers to move work to new locations may not have a rampant effect, in something like the garment trade it could threaten to make a complete mockery out of the intent of an anti-scab provision. It's something which certainly should be reconsidered.
By way of conclusion, I'd simply point out that we're operating today in a climate where social legislation generally is under enormous attack. The watchword, the buzzword, of the level playing field gets raised everywhere you go. The altar of competitiveness is something that social programs generally and progressive legislation seem to be being sacrificed on on an enormous scale.
In that situation it's hardly surprising that Bill 40 has become something of a lightning rod for corporate criticism. We see absolute hysteria in this regard. Just the other day, I was driving down the Danforth and noticed a billboard with a caricature of Marx, Lenin and Bob Rae and a slogan about Bill 40. When that kind of hysteria emerges, we're clearly dealing with something completely ridiculous.
Based on that, I think it's necessary to deliver a special word to the government members here and that is simply that the corporate lobby is never going to be reconciled to labour law reform. I think there's a need to recognize that and recognize it very frankly. The truth is that if you water down this legislation, you will hurt the workers and the poor people of Ontario, but you certainly won't stop the criticisms that are going to continue to be thrown at you. Based on that, my advice to you would simply be to let them howl. Go ahead and introduce the legislation. It's absolutely right. If strengthened in the way it needs to be, it will provide a vital handhold to people. Go ahead and do the thing. Thank you.
Mr Merle Terlesky: My brief will only take about five minutes.
It is the opinion of the Metro council of the Ontario Coalition Against Poverty that the issue in front of this government today, that of labour reform, is of fundamental importance for the enhancement of workers' rights in Ontario. We believe that the result of passing this bill should be a radical shift of power away from the domination of the employer to an equal relationship with that of the employees.
I recall riding on the subway yesterday and seeing a billboard promoting one of Toronto's many temporary work agencies. It asked the question, "Is your workforce as flexible as the economy?" I believe today that is how the business lobby would like to keep its workforce -- in a state of constant limbo, workers never really sure of their job security or rights in the workplace. For too long business has had a rather secure position in this province of dictating to its workers how they should be treated and putting incredible stumbling blocks in the way of union organizing at the workplace.
While Bill 40 in our opinion represents a long overdue change to the Labour Relations Act, as welcome as it is, it does not go far enough. Non-unionized workers in the hotel-restaurant industry, in which I have worked over a number of years, are in desperate need of legislation to protect their rights, particularly in the area of the right to organize without intimidation and with the assurance that workers' concerns will be addressed in an expedient way. Speeding up the process by which certification can be finalized is vital if labour law is to have any teeth at all.
The previous discussion paper proposed a maximum of seven days to address wrongful dismissal of an employee during an organizing drive. It has now been changed to 15. Why? Already the system is geared far too heavily in favour of the employer, with a history of judges hearing arguments in the wee hours of the morning for an application for an injunction, as happened with Canada Post. Surely this government can give workers a guarantee that their rights will be dealt with in as quick a fashion.
All morning today I sat in a Metro boardroom listening to the business lobby tell Metro's management committee that Bill 40 will hurt investor confidence, kill jobs and hurt the economy. Not once did I hear any specifics of how this would come about, just alarm bells sounding off in hopes that the public will react with angry letters to government ministers. Their strategy, I believe, is to create an unnecessary atmosphere of fear among the residents of Ontario that somehow labour reform is not in the interests of the workers of this province. The majority of workers however, I believe, know full well what these proposed changes will mean to them and that they will help their situation.
I want to relate to you a quick story of a worker I worked with at the Il Fornello restaurant located on Bloor Street, quite a popular pizza place. He was an Iranian middle-aged man who worked from 9 in the morning until 11 at night, got one lunch break, one dinner break and didn't get overtime pay. I offered to go to the Ontario Labour Relations Board on his behalf. He was completely terrified. He had only arrived in Canada a year earlier and was very fearful he would lose his job. What, may I ask, is the business community doing for a man like that? Where are the billboards defending his rights?
I want to reiterate today what I have told the Minister of Labour on other occasions, that the well-financed business lobby is not interested in amendments to Bill 40 in hopes of finding an even balance; on the contrary, they are working as hard as they can to see the complete destruction of this piece of legislation. It is sad to see this government, which was elected by people who wished to see these reforms go forward, now trying to dance to the tune of these forces.
Does any responsible member of this government believe for a moment that by watering down even more of what Bill 40 represents, it will guarantee the support of business in the next election? No, I think you all realize -- and I can assure you -- that when the next election rolls around, big business will turn up its machine to do a royal mowing job over the changes this government is trying to initiate, and will try to ensure the election of a government far more subservient to its interests, such as the Tories or the Liberals, or even the Reform Party.
With so many workers in Ontario now being threatened with succumbing to a level playing field philosophy being put forward by employers and the Conservative and Republican governments re the proposed North American free trade agreement, many workers' last hopes now rest with this government's promise to act on labour reform.
To act is exactly what the Metro council of OCAP is asking you to do. We're asking you not to waver on anti-scab legislation. Strikes are not meant as a tool to give employers the option to ignore their workers, which is exactly what they will do if their businesses can continue to function in the strike situation, whether that be at the plant site or moving it a few miles away. Clearly, we can see that had this type of legislation been in place earlier, the Toronto Star strike would most likely not have lasted as long, because scabs brought in from the US to drive trucks could not have been used to deliver the papers, and other replacement workers keeping things rolling in the plant would not have been possible.
We urge you not to continue listening, or paying much attention at least, to the lies and deception of big business continuing to say that Bill 40 will kill investor confidence and result in huge job losses. What I believe they are really trying to say is that they would rather see Ontario as a state like Alabama, where businesses can feel comfortable investing with the promise of minimal levels of unionization and having an unfettered right for employers to treat their employees as they wish.
I have more but I'm going to wrap up, to provide some time for questions, with this word to you, members of the government: It's been the history of governments worldwide that whenever they tried to bring in legislation that is going to better the plight of workers in their country or in their province, they are hit head on with opposition from business. It's all at different levels. We can recall the government of Salvador Allende in Chile, which with simple land reforms that he tried to bring in, was met with a violent coup d'état. I don't think that's going to happen in Ontario, but the fact remains that big business does not see a role for labour legislation reforms. They are not interested in reform in Bill 40. They're interested in killing it. The damage will be to us, not to them.
The Chair: Thank you, sir; Mrs Witmer.
Mrs Witmer: We have no questions, thank you.
Ms Murdock: I just want to ask two questions. One is in terms of the equal relationship that both of you mentioned, how, in terms of the anti-poverty group you represent, you would even see that. Are most of your members or the people you deal with predominantly working in a part-time organization? Are they predominantly women? What is the breakdown of your group and what would its representation be like? It sort of goes into my second question, which is that I'd like you to explain how, in your particular organization, broad-based bargaining might work.
Mr Clarke: In terms of the membership structure of our organization, we're a coalition of local organizations. The composition of those organizations would vary somewhat, according to the particular group. We have, for example, unions of unemployed workers and single parents' associations, but in general I think the composition of the member groups of OCAP would reflect precisely the social physiognomy, if you like, of the poor throughout the province, which is to say that part-time workers would be disproportionately represented, women would be disproportionately represented, certainly visible minorities and, increasingly, youth; I think that in the period we're now going through, poverty affecting young people is becoming an absolutely rampant problem.
In terms of broad-based bargaining, we reach the limits of my own expertise. I don't think I could speak to the question of broad-based bargaining nearly as well as many in the trade union movement, particularly garment workers and others, would be able to do, but I think the point I sought to get across, my lack of a blueprint notwithstanding, is the essential point that today bargaining according to the old pattern, when it was modelled on the structure of large-scale enterprises forming a unit, has become to a large extent outmoded and it is necessary to develop beyond that.
Around the issue, for example, of domestics who may be employed as individuals, who may work as individuals in an individual workplace situation, the notion of a hiring hall has actually been advanced. So I think what it's necessary to do is to begin with a realization of the fact that fundamental change is necessary and then to grapple with the problem in some detail.
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Ms Murdock: Since there is a disproportionate number of the groups we intend for this to predominantly impact upon, I presume you've been hearing examples of how the existing legislation is impacting upon those members or those people, and can you give us a couple of examples?
Mr Clarke: I think we're simply dealing with a situation where for enormous numbers of people, the opportunity to unionize is simply not there under the present arrangement. That's true for a number of reasons, but in large measure it's there because people are enormously intimidated.
We're just arguably coming out of a situation of mass unemployment and I think it's something of a commonplace that a little bit of unemployment is not a bad thing in terms of disciplining the workforce from an employer's point of view. I think that is a real reality.
We're dealing with a situation where people in some cases may have been through an extensive period of having to go on to welfare. They then find themselves working for the first time in perhaps a year. They realize what's going to happen to them if they go back to the local welfare office and tell them they got fired from their job. It's not a very encouraging prospect.
I think the climate of fear out there is extreme. If you are going to be able to carry out meaningful and successful union organizing drives, that level of fear and intimidation has to be brought down and I think some of these proposals go some of the way to addressing that.
Mr Ward: I agree with your perception, and I think everyone does, that the workplace and workforce have changed dramatically since the 1970s and that labour reform is long overdue in this province.
I can relate to my own community. In the beginning of the so-called boom years of the 1980s in Brantford, the hardworking people at Massey-Ferguson and White Farm were simply unemployed because of the bankruptcies of those two large farm implement manufacturers. I also agree that the workers from those two corporations who were fortunate enough to find new jobs were at a drastically reduced wage rate. To this day, some have not worked at all.
I'd like to hear your views on the fact that it has been since the mid-1970s, I guess, where significant changes have occurred to the Labour Relations Act in this province. Governments should not allow that aspect to happen, because economies change and workforces change on an ongoing basis. Do you feel that reviews should be ongoing so the act is kept up to date to what is occurring in the province now and in the future?
Mr Clarke: I can only concur with the concept that the review should be ongoing. I think it needs to be stressed that what we're talking about here in this particular situation is really to be addressed -- I think this bill could be presented as a measure of partial redress.
We're talking about giving people something of a handhold in a situation where the ranks of the working poor have grown enormously. We're not talking about handing some enormous advantage to working people. It seems to us, because of the whole change in the economy, not just because of the recession but because of the whole restructuring process that is going on, that people are being forced into the low-wage sector in enormous numbers.
Giving people the opportunity to unionize is of course not going to be a panacea for those people. Somebody who was working at Massey-Ferguson who is now working for Wendy's hamburger chain, should he or she be able to find union membership a reality tomorrow, is not going to be back to the situation he or she was in when working at Massey-Ferguson. What we are talking about is giving people some opportunity to make some progress and some opportunity not to be crushed by the present situation.
Mr Cleary: Thank you, gentlemen, for your presentation. I guess this would be to you, John. In your presentation you showed dissatisfaction with the agriculture part of the bill, and I take it from comments like that you must be very familiar with the agricultural operations of this province. What I would like from you is to hear your recommendations on how agriculture should be handled in this Bill 40.
Mr Clarke: You mercilessly expose my lack of expertise in agriculture and I can only throw myself at your mercy and concede that point. None the less, we are aware of the fact that the bill is proposing to give the right of union organization. However, the right to strike is not there. It seems to us that in many sectors of agriculture -- I have some familiarity with workers working in the tobacco fields in the Tillsonburg area -- workers do not find themselves, should we say, at the pinnacle with regard to the situation they're in, the wages and the working conditions they have, and our sympathy lies entirely with those workers. We believe the benefits of union organization would be very important for them.
While we're ready to listen to evidence to the contrary, we always believe that workers who have the power to withdraw their labour are workers who are strengthened by that and we would therefore, on that basis, suggest that agriculture workers too should have the right to strike. We think to compare them to firefighters or other workers who are deemed essential is, in our opinion, a mistake.
Mr Cleary: That might be all right in tobacco, but in other parts of agriculture it just wouldn't work. I would hope there wouldn't be too many changes in the bill to do with agriculture because agriculture is the second biggest employer here in Ontario, and when you get out into the dairy and other industries, you run into lots of problems.
Mr Clarke: We would trust there are spokespersons for the agricultural business who would be able to make their case. We sincerely hope, however, that the voice of agricultural workers too would be heard. We would ourselves, lack of expertise in this specific area notwithstanding, certainly say our sympathies lie with the struggle of agricultural workers to improve their situation.
Mr Cleary: The other thing is that municipalities are having a difficult time now with social services and social assistance and most of them have a great burden on their employees. I'd just like your comments on that. Say the union decided to strike where social services cheques were being dispersed to the residents. How would you handle that?
Mr Clarke: We certainly, wherever possible, like to see a situation where people can continue to receive social assistance cheques. In the situation of the postal strike, for example, postal workers were able to offer very concrete measures to ensure that the cheques were still processed. I've generally found that workers who are contemplating an industrial action are not interested and don't wish to harm people who are going to receive government cheques. I imagine that would be the same situation in the hypothetical case you're talking about.
Mr Terlesky: I would just add to that actually. I know that during the last Canada Post strike, I happened to be on welfare, and it was the offer of the union to distribute those cheques when necessary and it was the decision of the company not to allow them to. So it wasn't the workers who made the welfare people stand in line; it was the company.
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The Chair: Mr Cleary, do you want to let Mr McGuinty ask a question or did you want to ask another?
Mr Cleary: Go ahead. I have another one, but that's okay.
Mr McGuinty: Gentlemen, thank you for your presentation. I don't think there's any doubt that when you spoke to us this evening, you spoke to us in all sincerity, honesty and heartfelt belief. However, I am concerned about your urging -- I guess it was directed to the government members -- that they dismiss outright submissions made by big business, I think you called it: the corporate sector. I just wanted to put that on the record. I think it's unfair.
For instance, would you have us dismiss all that Ms Stefaniak, the woman who occupied your seat just prior to your presentation, said? I think that would be unfair, and I'm going to assume that you did not intend your remarks to be taken to that extreme. I think that we sitting on the left hand of the Chairman have heard from a number of groups which have legitimate concerns which ought to be advanced. To urge the government members to dismiss those outright is inappropriate. I don't think you intended that to be taken to the extreme, but of course I stand to be corrected.
Mr Clarke: Certainly I think you've effectively thrashed out our partisanship, and we make no apologies for that. But at the same time, I think that were we to be construed as advocating that the opinions of big business should not be heard in this forum, we would be in any case be irrelevant. It seems to us that if there are any criticisms to be made of the government side in this matter, one is its inordinate readiness to extend consultation in this matter. There's been a great deal of consultation. But I think we did come here with a very clear intention of driving home the point that business is certainly not going to be reconciled; that its arguments around competitiveness are something that, in the final analysis, government has to be prepared to stand up to.
We're hearing in some cases language that borders on irrationality with regard to the risk to Ontario's competitiveness that this very modest piece of legislation would entail. I made the point today at Metro management committee that there isn't one piece of social legislation worth anything that was ever implemented without business saying that competitiveness would be destroyed and the country would go to the dogs. That's true of medicare; it's true of everything going right back to child labour laws. That's the way it's always been, and I just think that sometimes it's necessary for governments to have some resolve and to proceed, even in the face of doom and gloom.
The Chair: Thank you, sir. John Clarke, the provincial organizer, and Merle Terlesky, leader of the Metro committee of the Ontario Coalition Against Poverty. We thank you for taking the time to come here. We appreciate your views, and you've made a valuable contribution to the process.
Mr Clarke: Thank you. We actually have something in writing, if somebody would like to take this.
The Chair: The clerk will take that from you, and that will become an exhibit. Of course, you're welcome to stay for the rest of the evening.
CHRISTIAN LABOUR ASSOCIATION OF CANADA
The Chair: The next participant is the Christian Labour Association of Canada. Would you please come up and seat yourselves in front of a microphone. Tell us your names and your positions, if you have titles of that sort.
Mr Ed Grootenboer: My name is Ed Grootenboer. I'm the executive director of the Christian Labour Association of Canada. Next to me, on my left -- although after Mr McGuinty's remark, I don't know what connotation I should give to the word "left" any more. Is this the left or is that the left?
Mr Ward: You never know. Everybody is in the middle.
Mr Grootenboer: There we go.
The Chair: It's peculiar for Mr McGuinty to identify himself as being to my left, but far be it for me to pass judgement.
Mr Turnbull: Can I just point out, as a point of order, I feel far left.
The Chair: There goes a hard-won reputation on my part.
Mr Grootenboer: Next to me is Mr Ray Pennings. He is our promotion and publicity director.
We have a prepared submission that I think is being distributed to you. Unfortunately we were told that we should not submit a prepared submission ahead of time, so we're bringing it to you now. I don't know if we were operating on right or wrongful assumptions in doing that. In any event, I intend to take you through most of our submission in the time that is allotted to us and I hope there will be time for discussion and questions from all sides.
First of all, we want to thank you for the opportunity to make this presentation. The Christian Labour Association of Canada is a trade union that operates in all sectors of industry, including construction. We represent some 13,000 members in Canada. About half of those work in Ontario.
In all its verbal and written presentations on labour law reform, CLAC has attempted to give expression to its main objectives as a trade union, namely, that progressive labour relations must include practices that stress the dignity and responsibility of workers. Workers are not pawns in an adversarial struggle; they must be given their place in the labour relations process. We must respect the differences of opinion among workers and among trade unions. That's the issue of plurality, which we'll come back to later. We would like to create a cooperative as opposed to an adversarial labour relations environment within the places we represent. Last, we would like to maintain the integrity of the trade union as a voluntary organization which workers choose to join freely. In other words, we are opposed to practices of forced membership in groups where a trade union has bargaining rights, and in fact we do not practise that.
While CLAC derives these objectives from a Christian view of life and from biblical principles about human activity and relationships, they are and can be shared with people of all walks of life. Our experience has been that these objectives make a positive difference in the workplaces where we represent employees and hold bargaining rights.
We have stressed in our previous submissions to the ministry, of which there have been two, as we noted in our introduction, a number of points.
1. Trade unions, we feel, are missing the boat when they claim that employer opposition and interference is the major, if not the only, reason for the low proportion of trade union membership among workers. Surely employers are not powerful enough to persuade two thirds of the province's workers not to belong to trade unions. We believe there are other reasons. While we agree that employer interference in the matter of union membership must be checked when and wherever it occurs, unions must also be prepared to examine their own practices. Workers, in our experience, do not want to belong to unions that are dictatorial, undemocratic or unresponsive to their needs.
2. Labour law should strike a careful balance between collective and individual rights. For example, in our 40 years of experience in labour relations and collective bargaining, it has proven to be unnecessary to force trade union membership on workers in the bargaining units we represent. For similar reasons, we have serious reservations about any measures in the Labour Relations Act amendments which needlessly restrict or ignore the freedom of workers on the matter of union membership.
3. Labour law cannot guarantee good results and desirable behaviour. The purpose of law is to influence and direct people towards just relationships. Attempting to do more than that creates all kinds of distortions and contradictions which only serve to diminish the freedoms and responsibilities of individuals and the institutions to which they may or may not belong.
4. It follows that, to be useful, cooperative labour relations structures must include a willingness on the part of management to respect and recognize the responsibilities of employees and their trade union and on the part of unions to give responsible leadership considering the needs of the whole enterprise. Certainly an adversarial mentality has no place in cooperative labour relations. But the outrageous claims and assertions by both business and labour interests in the past year are not promising indicators for a new era of cooperative labour relations, no matter what the law may prescribe.
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5. Trade unions must respect and deal with each other as equals, even though they may have very different viewpoints. Plurality is a vital hallmark of a tolerant and diversified society. It is totally unacceptable that organizations such as the AFL-CIO building trades unions should be permitted to act as if they are entitled to a monopoly in the construction industry and that they are allowed to use exclusionary practices against non-AFL-CIO unions in that industry, such as our trade union and its members. Such intolerance is undemocratic and contrary to the spirit and the intent of law on every other level of society. We would not stand for a minute in any other area of our society the kind of practice these unions are allowed in the construction industry. We'll make some definite proposals on that towards the end of our submission.
On the specific discussions of the Labour Relations Act amendments, we have numbered our interventions in three ways. I hope it's less confusing rather than more confusing.
The first reference number, section 8, is Bill 40. The second is the LRA designation, which in the first instance happens to be the same, section 8. The third designation is the page of Bill 40.
Under section 8 of Bill 40, while we understand the desire and recognize the need to minimize opportunities for employer interference in the organizing and certification process, we do not agree with the proposed remedies. Our disagreement stems from our conviction that employees' rights to make a considered decision on the matter of union membership and representation should not be abrogated or compromised by efforts to neutralize employer interference.
We believe the whole certification process would become much more open, aboveboard and understandable for both employees and employers if the legislation were to require a secret ballot vote on all applications for certification within a short period of time. In British Columbia and Alberta such mandatory representation votes within 10 days of the date of applications have worked well. All the employees can exercise their right to choose freely, and the employer is still enjoined from interfering with that right. We urge the committee and the government to adopt this democratic way to decide union representation and bargaining rights. This suggestion will come up again under other areas of our submission.
Under section 12 we have two points, which are more to deal with wording than anything else. In subsections 12(2) and 12(3) of Bill 40, a distinction arises between the use of the words "employees' workplace" in describing access for organizing and the word "operations" in describing the area in which picketing is permitted. As they stand, these subsections will be subject to two different interpretations, and we do not believe that was the intent.
The intent of this section was to reach employees working in operations located in malls and in other public properties, and we agree with that. However, the use of the phrase "employees' workplace" would allow the disruptive effect of organizing within a public access operation, such as a hospital, a freestanding store, a retirement home, a chronic care facility or any other freestanding operation to which the public normally has access, which is the qualifier. We would suggest that in subsection (2) the word "operations" be used instead of the words "employees' workplace," lest we get into difficulties. There can be a difference, as we outline in paragraphs that I haven't read to you.
The second issue under section 12 of Bill 40 is another wording thing. We believe the word "respecting" should be replaced with the word "restricting" in subsection 11.1(6). The 11.1 is the LRA designation, so it would be subsection (6) of section 12, I believe. I think that is the proper word that should be there. It could be a typo; I'm not sure.
Under subsection 19(3) of Bill 40, as it stands, the effort to promote serious collective bargaining and to provide for an expeditious resolution of first-agreement interest disputes is not maximized by the provisions of subsection (3). The effectiveness of the final offer selection process hinges on it being mandatory; thus, subsection (3.1) is virtually ineffective in that it only "forces" serious bargaining where parties voluntarily agree to abide by a final offer selection process. Of course, when parties voluntarily agree to do that, they should be able to bargain in any event. It is in cases where they remain in dispute that they should be forced to use the final offer selection process, so we believe it should be mandatory.
Section 22 of Bill 40: In promoting regular labour-management communications, the provisions of the bill in this section go about as far as they can go. Again, we stress that legislation can only direct and enable, but it cannot produce or guarantee results.
In this connection, we cannot help but observe that much of the current public rhetoric about cooperative labour relations is shallow and not backed up with action on the part of most trade unions or employers. The extremely polarized debate on the current OLRA reforms and the amendments indicates the persistent presence of a class struggle mentality among people. I think that persists in people on the right as well as on the left. The adversary system in labour relations, I think, is an exhibition of that class struggle mentality and I think it's rotten to the core. It's bad for labour relations and it least of all serves the employees it's supposed to serve, because they get caught between the two sides fighting it out.
Under subsections 23(2) and 24(1), we have a notation that we believe the last sentence of subsection (4.1), and similarly under subsection 24(1), should be deleted. The reason we say that is because we would like not to draw the attention of an employer to the fact that he can resist the appointment of a settlement officer. We think the settlement officer procedure has been very, very helpful in labour relations, but in many instances, employers are not aware they can refuse an appointment, so why wake up sleeping dogs? Whether they allow the officer to come in willingly or unwillingly, it's results we're interested in, so why flag it?
We would prefer to leave the language as it was in the current act, "the minister may appoint," and the minister always does whenever the parties agree. Usually a phone call from an officer to an employer settles the issue as far as the employer is concerned because the law is now speaking to him or her.
Under section 32 of Bill 40, we ask the government to amend this legislation at paragraph (2)1 so that the required strike vote will be taken, or confirmed if one was taken earlier, at a much later date. We suggest there be a vote within two weeks of the strike date with full disclosure to the employees of all the issues that have been settled and that remain in dispute.
The reason we stress this is that we feel the employee should have a much greater voice as to whether his services are going to be withdrawn from the employer or not. They should be involved more in the process of whether a settlement is reached or not. It should not be left to some union officials and some paid committee members.
Again, we ought to stress that democracy should rule also within the affairs of unions and here is one way to encourage that, that employees, prior to the final decision being made -- and we suggest within two weeks -- be informed of all the outstanding issues and then make an informed decision, not a decision at the time when proposals are made: "Everyone in favour of a strike if we don't get all this? Yea." It's useless and it's not an informed decision.
Under section 32, we would like to point out that we have no problem with the no-replacement-worker rule. We have experienced, in the few strikes we've had, that it's a very tenuous situation when replacement workers come in, and we do not like to see it. We think it's unfair, and it's correct to outlaw them. However, we would like to put a caveat on it, that the employer must refuse an offer to settle the dispute in binding arbitration. Why do we do this? It puts the onus on the employer and that's where it should be.
If the employer has any valid customer requirements that he feels will be jeopardized, that his operation is jeopardized by a strike, and if he is so right in his cause of standing up for the issues, that he's not agreeing, then let an arbitrator or an impartial third party decide that. Meanwhile, the business can continue to operate. We believe such a measure will prevent unions and employers from playing games with each other, with outrageous demands and obstructive bargaining, games in which the employers are often helpless pawns.
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Section 38 -- that's the old section 91 -- the jurisdictional dispute section of the act, in our view has no place in the Labour Relations Act. We would like to see subsection 6(3) and section 93 -- it is now -- of the act removed. We think the craft system of organizing workers is archaic in any industry, not only in the construction industry. We believe it's useless to tie up the board's time and public money in the disputes between unions. Let them settle their own disputes in Washington or wherever.
Subsections 43(1) through (4): We submit that in the matter of applications for certification, membership evidence filed must be in the form of properly executed membership application cards only. Currently, the board accepts a union statement that an employee has been paying dues. We've used them as well, but we always have the employee sign it or certify it so that he knows his membership is being used for another application for certification in a place other than where he was working at the time he took out membership.
We think that's only fair, particularly in situations where an employee was forced to join a union in order to work through the closed shop or union shop provisions and then that membership is used without his knowledge to entertain an application or to submit an application for certification with another employer before the labour relations board. Coupled with the removal of the initiation fee payment, it should be no problem to get an employee to sign a new application card or have him sign his membership certificate so he knows the membership is being used for another application for certification. Again, we want to stress employee involvement.
Subsection 43(5), the removal of the minimum initiation fee payment of $1, is a curious development in our view. Those who say it has become a meaningless amount advocate that it be removed rather than increased to, say, $2 or $5. I think under federal law it's $5. At the same time, many labour unions, especially in the construction industry, routinely charge initiation fees that amount to hundreds of dollars. The question arises, if the dollar payment is only symbolic, why is there such pressure to eliminate this payment? We believe that the payment of an initiation fee, even if it's only a token amount, serves as a meaningful expression of commitment on the part of the employee. In this connection, we refer again to the removal of the petitions, that it also serves to take away employee involvement as a meaningful choice to join or not to join a trade union.
If the legislation would call for a mandatory vote on all applications, we would not be worried at all. In that connection, when it comes to advocating the mandatory vote on all applications for certification, our perspective would be, what are trade unions afraid of, the ballot box of democracy? It's a great way to put certification out of the covert into the aboveboard, out in the open. That's what happened in British Columbia and Alberta, and it's very well accepted and it's worked very well.
In section 57 of Bill 40, we see no reason why the construction industry, in this case, has to have a special status. We operate in the construction industry as well; 55% is just as good there as it is anywhere else. Why? I have heard no cogent reasons why it should be 50%. It appeared all of a sudden out of the blue in the bill and I was rather surprised to read it. I think it should be the same as in any other unit.
LRA subsection 68(2) and LRA section 72: I referred earlier to trade union plurality. We have informed the minister on several occasions of the overt and covert practices by the building trades council unions, the OFL-affiliated unions, against CLAC and its members. We have documented those complaints in an inventory. The current act provides very little protection against these onerous practices.
We have engaged in lengthy and costly litigation before the board to seek enforcement of the right of our members to work, and it has had mixed and inconclusive results. This sad state of affairs should not be allowed to continue in a pluralistic society that promotes tolerance and freedom for all. Hence, we propose an addition to section 68 and a new section 72 which recognize those principles. It is to prevent trade unions from interfering with each other's bargaining rights and the rights of employees to work without regard to which union they choose to belong to.
Section 47 of the Labour Relations Act is something we would like to see added to Bill 40 -- well, it won't be added to Bill 40 any more, but to any amendments to the legislation -- and that concerns the closed or union shop. We believe it's time to no longer permit the practice of compulsory union membership as a condition of employment.
We firmly believe that forced union membership in a voluntary association -- which is what a trade union by definition is -- is a blatant violation of the basic rights and freedoms of employees. Compulsory union membership is unnecessary if the provision for mandatory checkoff remains. All we're talking about is the forced joining of an organization that an employee may not want to join. We're not quibbling with the mandatory checkoff of union dues; we practise it ourselves.
Coerced union membership through union shop or closed-shop provisions goes to the heart of the credibility of trade unions as free and democratic organizations. We cannot help but observe the low level of employee intelligence presumed by those who blame the fact that two-thirds of workers in the province have not joined a union on employer interference. Most employees are not simply helpless, ignorant bystanders in the matter of union representation. People who believe this adhere to an ideology that has more to do with Marxist notions of a perpetual class struggle than with a free and democratic society, and we should not confuse the two issues.
The truth is that many workers choose not to belong to a union because they perceive such a union to be restrictive, undemocratic and often compromising or acting against their personal interests and beliefs. Unions would do well to set their own house in order so as to be attractive to unorganized workers. One positive step in that direction would be to restore unions as voluntary organizations and prohibit the practice of compulsory union membership.
Thank you for your time. We believe our suggestions can be helpful. I hope they will be considered seriously.
The Chair: Thank you, sir. We have time for one question from each caucus.
Mr Ward: Shall we share?
Ms Murdock: No, you go ahead.
Mr Ward: When you look at the economic challenges that we're facing here in the province and in the country, I agree that the old ways no longer work, the adversarial approach. Do you agree that if we're to meet our challenges, head into the 21st century and maintain the quality of life that we enjoy for our children, we have to foster cooperation and trust between labour, business and government all working together? Do you agree with that concept, and is that the direction we should be heading into?
Mr Grootenboer: Yes, as long as you keep in mind when you talk about labour and business and government working together that we don't get into a corporatist situation where you have one of each, that you will offer plurality. That is difficult to do, but it can be done. It's been done in other European countries and it can be done here too, if we are of a mind to do it, as long as we don't adopt the unitarian approach that we've tried to address in the construction industry under one of our proposals, that you allow for differences of opinion, that you allow for choice. I think that only enriches society, if you have different opinions, rather than just one stream of thought operating within society; also on the economic and business level.
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Mr Offer: Thank you for your presentation. As I listened to your presentation, indeed read along, it seems that it's premised on full disclosure and freedom of choice for those involved in the workplace. I am particularly interested in page 10 of your brief, where you speak about the issue surrounding a strike vote and your concern -- I think it's a fair representation -- that in many cases the strike vote is taken at such an early point in time that the percentage of those in favour of a strike may not be reflective of those in favour of a strike somewhere down the line.
One issue I want to ask about is not contained in here. As you know, in the proposals the strike vote is now additionally crucial in that if there is greater than 60%, the prohibition on replacement workers kicks in. One area that has not yet been touched upon is that the 60% is just 60% of those who voted; it isn't 60% of the actual individuals entitled to vote. Of course, we can think of a scenario where, in a unit of 100 people, if 10 people show up at the meeting and six people vote in favour, that would be the 60%. I wonder if you might be able to comment on whether you feel that this too is an issue which is to be addressed.
Mr Ray Pennings: You indicated the fact that our proposal was premised on the fact of full disclosure and everything else. That's true. What's even more so and what was foremost in our minds was trying to put on paper and present to the committee the source of practices which the Christian Labour Association of Canada has been trying to put into practice for 40 years, not simply because we wanted to put a proposal in front of you today that said, "Listen, this is how democracy works." These are the sorts of things we have currently been able to put in practice in roughly 300 collective agreements representing 13,000 workers, and yes, they work. They have flaws; they have warts and all the rest, but yes, these sorts of proposals can work.
When it comes to the strike vote, the proposal we put forward to you today is the exact proposal we practise at CLAC, that strikes are to be used. It's like a declaration of economic war. No one wants war. War is a last resort. The purpose of the collective bargaining process is to bring the two sides together to an agreement through negotiations. When that fails, when there's an impasse and both sides feel they have just cause, then maybe it is time to declare war. Maybe there is such a thing as a just war. In that case, let's go to our members. Let's get from the members that mandate on the issues that are on the table. Then we're not talking about a bargaining stick behind the door. No, bargaining has failed. We're talking about a situation where there is an impasse.
In terms of your specific thing about the number of people who have been at the meeting, of course you always run into the logistical problem of never having 100% turnout. I think what is important is that the process used is accessible to all, that the meetings have been properly constituted and that everyone has fair notice and a fair opportunity to consider the issues. If that sort of process is followed, then I think you have the opportunity for a much juster relationship in a secret ballot.
Mrs Witmer: Thank you very much for your presentation. It was certainly well presented, and I would concur with many of the points you've made. I think you have made every attempt here to ensure that there is fairness and equality in the workplace and that both the employer and the employee are encouraged to work cooperatively together in the working environment.
One of the things I have tried to do is to introduce a private member's bill which would make it mandatory to hold a secret ballot vote for certification and for ratification of collective agreements and strikes. I have noticed that you certainly mentioned some of these areas. So far, the government's been reluctant to support that proposal. Could you suggest to us some reasons why the government should be looking favourably at the secret ballot vote to give all individuals the freedom of choice?
Mr Pennings: I think we of course travel very delicately when we enter into the issues of partisanship on this committee or on the whole thing. We don't want to venture into why the government might or might not. Obviously we have premised the very existence of a trade union as being a voluntary organization and that runs to the heart of the reasons we have said no to closed shop in our own practices and the way we have conducted all of our affairs. Certainly the argument usually raised is the fact that these sorts of things are needed to maintain union security in the workplace.
We have found, as I said, through 40 years of existence as a minority, independent trade union that has -- and I attached a graph of our membership growth. We had 17% membership growth last year and that's continued this year; 10 consecutive years of membership growth. Why? Because I think workers in the places we have organized have recognized the way we have tried to operate and they have certainly found an attraction to that. As for further reasons against that, I'm afraid we haven't been able to think of very many valid ones, obviously stated by our position here.
Mr Grootenboer: I think there are some good arguments to defend that. First of all, it's the democratic way. I can give you a wild example and this is a real example. Currently, an electrical contractor -- I think I used it prior in our submission on the discussion paper -- in London, Ontario, on a given Sunday had seven employees working. The majority, more than 55%, happened to be members of the International Brotherhood of Electrical Workers. They managed to find a post office open. They submitted their application. On the date of application they had more than 55%. Of a workforce of 70, four out of seven decided that issue. That is not democratic at all. That is playing games with numbers. I think if trade unions want to get their credibility back, they better start paying some attention to those things. I think it puts trade unions out in the open via the ballot box.
There are employees who are scared to talk to trade unions within the workplace. Why is it? Because it's supposed to be covert. If we put it out in the open like that with a secret ballot vote, I think some of that smeariness will disappear from it and employers will be able to accept it a lot better too. That would be my argument for saying, "Hey, let's put it out in the open, a secret ballot vote on every application for certification no matter how many cards you've signed, provided there is, of course, a minimum threshold."
The Chair: Thank you, Ed Grootenboer and Ray Pennings, both representing the Christian Labour Association of Canada. The committee thanks you sincerely for your input, for a thoughtful presentation. You've obviously captured the attention of all of the members of the committee. We appreciate it.
The committee's going to be sitting again tomorrow morning at 10 am. It's just a little bit after 9 pm now.
Mr Grootenboer: Mr Chairman, can we stay the rest of the evening too, like everybody else?
The Chair: Mr Grootenboer, it's Queen's Park, it's your building. You can stay all night. The committee's going to be resuming at 10 am tomorrow morning. The Ontario Federation of Labour is going to be here at 10, at 10:30 Mike Menicanin from the United Electrical, Radio and Machine Workers of Canada in Welland is going to be here, the Ontario Chamber of Commerce at 1:30. We're looking forward to hearing from those people tomorrow.
I want to thank the committee members for their cooperation this afternoon and this evening. I want to thank the staff for their skilful job and especially Hansard for its speedy preparation of this afternoon's transcript. Thank you. We are adjourned until 10 am tomorrow morning. That's Wednesday, August 5.
The committee adjourned at 2109.