CONTENTS
Thursday 15 October 1992
Subcommittee report
Labour Relations and Employment Statute Law Amendment Act, 1992, Bill 40
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
*Chair / Président: Kormos, Peter (Welland-Thorold ND)
*Acting Chair / Président suppléant: Hope, Randy R. (Chatham-Kent 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:
*Hayes, Pat (Essex-Kent ND) for Mr Huget
*Hope, Randy R. (Chatham-Kent ND) for Mr Dadamo
*Morrow, Mark (Wentworth East/-Est ND) for Mr Kormos
*Ward, Brad (Brantford ND) for Mr Waters
*In attendance / présents
Also taking part / Autres participants et participantes:
Dean, Tony, administrator, office of collective bargaining information, Ministry of Labour
Kovacs, Jerry, legal counsel, Ministry of Labour
Murdock, Sharon, parliamentary assistant to the Minister of Labour
Clerk pro tem / Greffier par intérim: Decker, Todd
Staff / Personnel:
Spakowski, Mark, legislative counsel
The committee met at 1552 in committee room 1.
SUBCOMMITTEE REPORT
The Chair (Mr Peter Kormos): Thank you. We're a little late starting because the subcommittee had to meet prior to the committee commencing its meeting. We have a report to the committee from the subcommittee. The report is:
"Pursuant to standing order 123, the following designated matter has been filed with the subcommittee and is deemed to be adopted:
"An inquiry into the circumstances surrounding, and the involvement of the Minister of Energy in, the sudden departure of the president of Ontario Hydro, Mr Al Holt. The inquiry to include the production before the committee of all relevant documentation from the ministry, the corporation and Mr Holt regarding the president's departure and the taking of testimony by the committee from the Minister of Energy, the chair and chief executive officer of Ontario Hydro, Mr Marc Eliesen, the outgoing president of Ontario Hydro, Mr Al Holt, and the members of the board of directors of Ontario Hydro regarding events and matters relevant to the departure of the president of the corporation. This matter to be considered for a period of twelve (12) hours."
That notice was brought on behalf of the Progressive Conservative caucus.
All those in favour of adopting the report of the subcommittee to the committee, please indicate.
Mr Paul Klopp (Huron): Just a minute. Is that a foregone conclusion?
The Chair: Yes.
Mr Klopp: Then why are we voting for it? Do we have to accept the committee's report?
The Chair: If you've got an objection to the validity of that, say so.
Mr Klopp: I object.
The Chair: Tell me why.
Mr Klopp: Well, I don't know. That's what I don't understand.
The Chair: You sound like Admiral Stockdale.
Mr Klopp: No, Mr Chair, just don't be so quick. You had a subcommittee meeting. If you bring it forth--I just happen to have overheard the subcommittee report, and it sure sounded like it was a very straightforward thing, and yet, I don't know if we can talk about it, but somebody in the room made known some concerns about the procedure.
Section 123 is something that is relatively new, I understand, to the business of the House. I think it's a good program, but at the same time I'm just not sure how one political party can have something that it said it wanted to do--and it's very important and we're all allowed one kick at the cat--and then all of a sudden, "Oh, well, we're going to say it was last year or something for whatever reason, and I want to pull a new one."
I'm a little concerned that maybe my party can do the same thing down the road and for that reason, since I'm not in the subcommittee, but at this particular time I feel I do have an objection to just all of a sudden this is voted on by the committee of the whole. I ask you again, is it a foregone conclusion that even if I vote no it doesn't matter, we have to accept the subcommittee's report, period? That's all I ask.
The Chair: You can vote any way you want. You can abstain. You can leave the room temporarily, like so many government members do when unpopular legislation is being passed.
Mr Klopp: I don't do any of that, so let's call the vote.
The Chair: You're right, the government can do the same thing; you can have as many kicks at the can as you want as long as it's only one per year. He had a kick at the can in 1991, he's getting another kick at the can in 1992, and come 1993 he'll have an opportunity for yet another kick at the can. So will the Liberal caucus. It's interesting that these notices are so rare, when one would think that they would be so valuable to opposition parties as a means of investigating particular matters.
Mr James J. Bradley (St Catharines): This should be in the Amethyst Room. It's good entertainment.
The Chair: We do our best, Mr Bradley.
Mr Bradley: Doesn't the government want to be in the Amethyst Room where it's on TV?
The Chair: Now, as a courtesy, in view of the fact that there is a report from the subcommittee, I put that to the committee. Let me put it this way: Is there a consent to its adoption? Thank you. It's adopted.
We'll move on now to the business of the committee. Yes, Ms Murdock.
Ms Sharon Murdock (Sudbury): Just one, before we do that, Mr Chair. I received a letter signed by you today in my office, to the Speaker, in regard to two items: one on child care services for people who are called as witnesses and the second part being some of the difficulties in the interpretation services program.
I would just like to say that one other item I heard many people complain about during the hearings when we were sitting at night--because we had late-night sittings every day during the five weeks--was that when we were sitting at Queen's Park they did not have access except through one door. They would inevitably come to the front door and of course the doors would be locked and there wasn't even a sign there telling them which door to use. I think if there are committees sitting late at night, the Speaker should be advised and there should be some alternative mode of entry.
Mr Steven Offer (Mississauga North): For what?
Ms Murdock: When we have presenters coming here. We had presenters coming here--
The Chair: Quite right. That was a point made. The clerk has paid heed to that and the clerk will write a letter to the Speaker and the Clerk and whoever else is interested, advising him of those concerns raised, and carbon copies will be delivered to members of the committee. Thank you, Ms Murdock.
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: Now, still on Ms Witmer's amendment to the bill--
Mr Offer: Mr Chair, a point of order, if I may: Just prior to us commencing there were two outstanding general matters on which I would like to get clarification from the government.
The Chair: Yes, sir, by all means.
Mr Offer: The first is, the government had indicated that it still had further amendments to this bill, notwithstanding the late date. Notwithstanding the fact that we have less than three hours to talk about this bill, the government has not yet given us amendments.
Secondly, the government specifically indicated it was going to report back to the committee, I believe on the following day, which would have been yesterday, on what the government's position is with respect to the very valid arguments put forward by the Ontario Nurses' Association. The parliamentary assistant said a decision was going to be made and asked for a deferral of that section. We have now passed that section, but they indicated that the decision was going to be made within the day. We have now passed that day.
Mr Klopp: Didn't say the day.
The Chair: Okay, to the first matter: amendments. You got them. All you got to do is ask, Mr Offer. Ms Murdock, to the second matter.
Mr Bradley: It's too bad the Chairman has to provide these to you. It's not the government--
The Chair: Listen, I'm versatile. I'm pleased to help out, Mr Bradley.
Ms Murdock: The government provided them.
The Chair: I do windows too.
Ms Murdock: For those who are new to the committee, the government had tabled these as we had--they just hadn't been delivered. As today, we got the balance of the Liberal and the balance of the Progressive Conservative motions as well. So it will be--
Mr Offer: What balance?
Ms Murdock: I have--no? Okay, I'm sorry, I apologize. Not the Liberals', the balance of the Conservatives'.
In response to Mr Offer's second query, I never said we would have it the next day. I said there were conversations going on and I asked to defer till the end. I haven't heard--
Mr Offer: Today is the last day.
The Chair: Go ahead, Ms Murdock.
Ms Murdock: No, it isn't. I have not heard anything at this point from either ONA or the ministry on that subject, although I put in a query this morning to get that answer. Certainly, we have to have it by 3:30 on Monday, I would say, in order to have any discussion.
The Chair: Is that all, Ms Murdock?
Ms Murdock: Yes.
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Mr Offer: Mr Chair, I would just like to read from the government House leader's motion and I will require some direction on this.
It says, with respect to the clause-by-clause consideration of the bill, after indicating the eight sessional days:
"All proposed amendments shall be filed with the clerk of the committee by 4 pm on the day prior to the last day on which the committee is authorized to consider the bill clause by clause."
"On the last day." I submit this is the day prior to the last day on which the committee is authorized to consider the bill clause by clause.
The Chair: Can I interrupt you for a minute? Is there any argument about whether or not today is the day prior to the last day?
Ms Murdock: No.
The Chair: Good. Okay. Go ahead, Mr Offer.
Ms Murdock: Having said that, the Progressive Conservative Party's Mrs Witmer deferred her motion as well, in which nursing was included as an exemption under that section, so we don't have to provide the amendment. It's already on the record.
Mr Offer: I heard what you said, but it's just not going to wash, okay?
Ms Murdock: Why not?
Mr Offer: The fact of the matter is, if you think that you're going to try to cosmetically get around that, then let's call that section right now and hear your position.
Ms Murdock: You would have to have unanimous consent to call it, would you not? And I'm not prepared to discuss it today.
The Chair: I've got to tell you, I didn't understand your response to Mr Offer.
Mr Offer: I didn't understand what she said.
The Chair: Did you, Mr Hope?
Ms Murdock: I was responding to Mr Offer's comments, and my understanding of what Mr Offer said was that we would have to provide amendments on the day prior to the last day, which is today. There's no dispute. I'm agreeing with you on that. However, having said that, any amendment that the ONA has requested is covered by the Progressive Conservative amendment, which is also deferred, and therefore the government does not have to provide an amendment today.
Interjections.
The Chair: One moment, please. What you're saying is that if the government acquiesces on this particular issue, it would be supporting or utilizing the PC amendment which has been filed as the vehicle to achieve that goal?
Ms Murdock: That's correct.
The Chair: Fine. Now, Mr Offer.
Mr Offer: I just wanted to find out exactly what it is that the government was prepared to do.
Mr Randy R. Hope (Chatham-Kent): Just when you began this whole process today--I want to refer back to some of your comments made through the hearings that only one person should speak at a time for the people who are trying to record this. I notice that you also got long out of range so the people of Hansard were having a difficult time. As it's the last day, I just want to remind you of that process that you referred to the rest of us.
The Chair: Mr Hope, I've never had any complaints from Hansard.
Mr Hope: Point well taken.
The Chair: Okay. Further debate on Ms Witmer's motion? All in favour, please indicate. Opposed? Motion is defeated.
Mr Offer moves that subsection 8(7) of the act, as set out in section 8 of the bill, be struck out.
Mr Offer: My motion speaks to the whole issue of petitions. Subsection 8(7) of the bill reads:
"The Board may consider evidence of a matter described in clause (5)(a), (b) or (c)" with respect to "deciding whether to make a direction under subsection (3)" of the bill "and only if the evidence is filed or presented on or before the certification application date."
The reason I make this amendment, and I must say I was hoping that I might not have to move it. I would have hoped to almost have been able to withdraw the amendment--though I'm not making that motion, thank you--if my earlier amendments with respect to the process of organization would have been carried. Unfortunately, the earlier points made under section 8 were not, and I am still extremely concerned with the barriers that we are putting up around workers and their decisions in this province. I am extremely concerned that we are eroding the rights of workers, in the first instance, to freely make up their minds, and secondly, to change their minds if they wish to do so.
I feel that when you don't have, and have refused, as the government has, a system which gives full, wide-ranging latitude to workers, you must certainly allow them to change their minds by way of petitions. So this motion is directed to hopefully accomplish that. I believe it will.
I am quite concerned that the government is going to steadfastly move in the direction since day one, which takes away the rights of workers in this province. This amendment, if they vote against it, would once more show that the government is consistent in terms of taking away rights of workers. That is a consistency which I believe the members of this government should be profoundly embarrassed about.
Mr David Turnbull (York Mills): To the extent that this is similar to the discussion of the previous PC motion, I'm in agreement.
The Chair: Thank you, sir. There being no further discussion, all those in favour of Mr Offer's motion, please indicate. Those opposed? Motion defeated.
Ms Murdock moves that subsections 8(4) to (7) of the act, as set out in section 8 of the bill, be struck out and the following substituted:
"Evidence
"(4) The board shall not consider the following evidence if it is filed or presented after the certification application date:
"1. Evidence that an employee is a member of a trade union, has applied to become a member or has otherwise expressed a desire to be represented by a trade union.
"2. Evidence that an employee who had become or had applied to become a member of a trade union has cancelled, revoked or resigned his or her membership or application for membership or has otherwise expressed a desire not to be represented by a trade union.
"3. Evidence that an employee who had become or had applied to become a member of a trade union has done anything described in paragraph 2 but has subsequently changed his or her mind by becoming a member again, by reapplying for membership or by otherwise expressing a desire to be represented by a trade union.
"Evidence to be in writing, etc.
"(5) The board shall not consider evidence of a matter described in paragraph 1, 2 or 3 of subsection (4) that is filed on or before the certification application date unless it is in writing and signed by each employee concerned.
"Same
"(6) The board may consider evidence of a matter described in paragraph 2 or 3 of subsection (4) but only for the purpose of deciding whether to make a direction under subsection (3) and only if the evidence is filed or presented on or before the certification application date and is in writing and signed by each employee concerned.
"Same
"(7) Subsections (4) and (5) do not prevent the board from,
"(a) considering whether, on or before the certification application date, section 65, 67 or 71 has been contravened or there has been fraud or misrepresentation;
"(b) requiring that evidence of a matter described in paragraph 2 or 3 of subsection (4) that is filed or presented on or before the certification application date and is in writing and signed by each employee concerned be proven to be a voluntary expression of the wishes of the employee, or
"(c) considering, in relation to evidence of a matter described in paragraph 1, 2 or 3 of subsection (4) that is filed or presented on or before the certification application date and is in writing and signed by each employee concerned, further evidence identifying or substantiating that evidence."
Ms Murdock: I won't speak as quickly, Hansard, so you won't have any difficulty.
Bill 40 represents the revised version of the certification provisions of the act. The main purpose of the provisions is to eliminate the admissibility of post-application petitions. We have never said anything different and we are maintaining that position. Since petitions are a form of evidence, it was necessary to rewrite this part of the act to clarify the admissibility or inadmissibility of all types of evidence relevant to counting the number of employees and the number of union supporters in a case of certification application.
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The Bill 40 provisions revise the act's current provisions and also codify board rules and jurisprudence regarding evidence in a certification application. This motion adds concepts that were inadvertently omitted from Bill 40. Evidence in support of or in opposition to the applicant trade union must be in writing and signed by the individual employee concerned. However, post-application-date evidence, not necessarily in writing, is admissible if it's for the purpose of identifying or substantiating proper pre- application evidence. These rules in regard to what I've just said are currently covered in the board's rules of procedure. The motion also revises the Bill 40 provisions for greater clarity.
In summary, the effect is the following: revises subsection 8(4), prohibiting post-application-date evidence of membership support for the union, of revocation or petition against the union and of further change of mind or what we used to call counterpetitions--in the Bill 40 version, these were covered in subsections (4) and (5)--the revised subsection 8(5) contains the added requirement that the admissible pre-application evidence be in writing and signed by the employee; the revised subsection 8(6) restates what was in subsection 8(7) of the Bill 40 version, that the rule against post-application evidence does not apply where the board is considering fraud, misrepresentation, unfair labour practices or involuntariness in respect of the pre-application evidence in support of or in opposition to the applicant union, and it adds the further exception that the board may consider post-application evidence that "identifies or substantiates" pre-application evidence.
Those are the reasons as to why we're doing this.
Mr Offer: Let's discuss what has just happened here. It's beyond belief what has just happened.
I stated yesterday something which I firmly believe. That is, that when one thinks of the Ontario Labour Relations Act--I'm not just talking to Bill 40 but to the Ontario Labour Relations Act--many will feel that the heart and soul of the act is around the rules of organizing and certification. I'm not saying there aren't other very important aspects, but ask anybody on the street, "What does the Ontario Labour Relations Act stand for?" and they will say, I would suggest, "That's the rules how people become organized." I don't have to know very much more than that. They will think that's a central theme, an important part of the act. I state that as my opinion and something which I believe in.
What do we have? In Bill 40 the certification is found in section 8. Section 8 contains seven subsections. What has the parliamentary assistant done? She has now said that four of those seven subsections, subsections (4), (5), (6) and (7), are repealed and this other stuff is brought in. You have taken out in five minutes and reinserted in a further five minutes what many people will feel is a central focus of the Labour Relations Act.
I'm going to ask some questions. I'm going to ask what prompted the change in subsection (4) to what it is, as you have indicated, from what it was. I think we have to have this on the record, because this is exactly the problem we're going to have. It's exactly the problem when we operate under a closure motion. You will be voting for certain issues, items and sections that you've never heard about before. In fact, you will be voting on things that will not even be read in. I believe that's a fair reading of the motion. Come 4 o'clock Monday, all those motions on the table are taken as being read in, and we vote. It's a totally irresponsible action by legislators in this province.
The Chair is dictated to by the rules. In my opinion, Mr Chair, you must follow the rules and dictates as prescribed by that motion which we operate under, by dealing with these things, motions you haven't even read, and I don't say that in any critical sense whatsoever. There are I don't know how many motions--I would dare say over 100--that will not even be read into the record. You will just hear a number. From all caucuses, you will hear a number, an amendment to section so-and-so by the Liberal member or by the Conservative member or by the government member. You will not hear any discussion about what it means. Any discussion is not allowed, and you will be asked to say yes or no.
If you find that is in any way a responsible action, I think that's just totally out of whack with what people would expect and I think it's totally in sync with what people do feel happens here. That's the reason for the cynicism. That's the reason for the lack of confidence. They think you're going to move along a path and you're going to have your members say yea or nay and I will say yea or nay and the Conservatives will say yea or nay on any issue, and we won't even have had one second of discussion on a matter that is going to affect workers in this province.
Mr Turnbull: Obviously, we're most concerned that this is not only eliminating post-application petitions on sober second thought, but it just goes to the heart of democracy. Somebody may have signed his name erroneously or without a great deal of thought. Surely, you're going to allow them second thoughts on the matter. It just makes good sense.
The other point I wanted to make is that while I agree with what Mr Offer is saying, that we're not getting enough time to really air all these concerns because of the accelerated timetable the government has forced upon us with time allocation, I wish we could get on with all of the sections so that, at least in the short amount of time that's left to us, we could review everything. I note that the Liberals only have four or five more amendments to put.
Mr Offer: That's not absolutely certain.
Mr Turnbull: Mr Offer, with great respect, you went on at some length about the fact that we couldn't introduce amendments after today.
Mr Offer: No, I didn't.
Mr Turnbull: Okay.
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Mr Offer: Mr Turnbull just indicated something and that's not the position I took. In fact my question was to the Chair, because I was not making that up; I was reading from a motion passed by the government House leader and I wanted to get an understanding as to what that meant. I wasn't taking a position one way or the other. I didn't make up those rules. Those rules, that dictate, was already passed.
Mr Turnbull: You have no argument from me on that, Mr Offer, the point being that at this moment we are aware of four or five more amendments by the Liberals, which take you to section 13. According to a Liberal press release in September, you were going to have all kinds of amendments. We haven't seen them so far. The Conservatives still have another 72 amendments, which we would like to get into the record and discuss a little bit, rather than obstruction of this committee.
I agree with you we should have more time. It's quite clear we should have more time. But let's at least get on with the time we have got in reviewing the amendments we've got before us.
The Chair: Further discussion, Mr Offer?
Mr Offer: Yes. I don't think it serves the committee well at all to speak about the lack of time to deal with this from one opposition party to another when the fact of the matter is that the government is the one that brought in the motion. I'm now just looking at another 25 amendments proposed by the government dealing with the issue of replacement workers. I accept that not all, but I recognize that the government has just laid down 25 amendments, many--I would not say all, because I haven't had time to read them--to deal with replacement worker provisions.
I'm saying, let's be frank here. The question we have is that, we know we're not going to be dealing with all the bill. That we knew from day one. We're not even going to be dealing with a tenth of the bill. The point I'm making is that I feel it's totally irresponsible that we are going to be asked to vote in favour or opposed, or just let's say to vote, on a section or an amendment to a section the likes of which we will never read in the committee. It will never even be part of the committee. It will be a number. That's totally irresponsible.
I want to go on with this section. I said even yesterday, when we were dealing with the certification, that we moved about as quickly as one could ever hope to move and we couldn't finish one section. Why? Because it was an important section. We have many more to go.
What I would like to ask is, how come the government seeks to take away the rights of workers to change their minds?
Ms Murdock: We have not taken that right away. Admittedly, the time period is probably different, given the different cases, but the workers obviously have the right to change their minds under this provision up to the date of the applicant union applying to the board, and upon that date can--
Mr Offer: How come then--
Ms Murdock: Just a minute. In response to the latter portion, of the 25 amendments that are here, none of them are different than what was in the press release we issued before this came, but secondly, 8 out of 25 of them relate to replacement workers or specified replacement workers and that is far from the intimation that all 25, or a lot of them, are relating to that. Again, like yesterday, a couple are on the French corrections and are not substantive in terms of the technical aspects of it. So I don't think we're not providing you with enough opportunity.
I believe also that in terms of the section that's before us, you asked originally why this was being changed from the subsection (4) in Bill 40 to what is there today. Mr Kovacs will respond to you.
Mr Jerry Kovacs: You suggested, Mr Offer, that the motion the committee's now considering represents a repeal of the existing provisions of Bill 40 and the substitution of new provisions. I'd like to reiterate the several points Ms Murdock made in her explanation of the bill after tabling it. In fact, the motion represents a revision of the existing Bill 40 provisions after, and you asked--I'm sorry, I missed that.
Interjection.
Mr Offer: It's not a repeal, it's a revision.
Mr Kovacs: That's correct. They are substantively the same provisions that were in Bill 40. You asked also what caused the government to change these. I would tell you that it was after the Ministry of Labour had the very helpful and very generous comments of the labour bar, from not just this city but from other cities around this province, that told us that the way these subsections were presented in Bill 40 wasn't the clearest possible presentation of these issues.
I would finally add that Ms Murdock also indicated there was a substantive addition represented in this motion. That substantive addition was to deal with the necessity that certain evidence be in writing and signed, and that further evidence that isn't in writing and isn't signed might be submitted for the purpose of identifying or substantiating other types of evidence. Ms Murdock also made it very clear that those substantive additions to the certification provisions are added because they exist in the current board rules of procedure that are published by regulation.
Mr Offer: Just a question: I didn't catch it, but did you say the "labour bar"?
Mr Kovacs: Yes. Those would be lawyers practising labour relations law in the province of Ontario, representing employers and unions and individual employees.
Mr Offer: I'd like to get a clarification whether those representatives came before this committee in our public consultation.
Mr Kovacs: Some may have, on behalf of particular presenters to this committee, but many others very generously offered their comments.
Mr Offer: Behind the scenes.
Mr Kovacs: No, not behind the scenes; in meetings with the Ministry of Labour.
Mr Offer: All I am saying is that we sat for five weeks and I didn't hear these arguments made. I didn't hear these arguments made during the public hearings consultation. You're dropping these down with hours to go. I am not--
Mr Kovacs: I would tell you, Mr Offer, that I did make clear and other representatives of the ministry did make it clear to each and every one of the lawyers who offered their comments on the technical wording and the configuration of the bill that they were also welcome to make presentations to the standing committee during the hearings phase or at any point that the committee would accept their presentations. They were all fully aware of that right. If they chose to appear before the committee, then you have heard from them.
Mr Offer: It just seems to me that these changes are being made in response to a labour bar or a certain group of lawyers who discussed issues with ministry officials outside of the public hearings consultation. At a time when we were dealing with areas of the bill and aspects of the bill, they were dealing with some other areas and some other aspects. The areas they were dealing with are now in the bill; the areas the general public was dealing with are not in the bill.
Ms Murdock: I personally spoke to the whole issue of the writing issue in terms of changing their minds. I specifically asked that question during the hearings of different groups in Kingston. I know that as we did the Ottawa-Kingston tour, I was picking up that there was some misunderstanding, so I specifically asked the question. It is on the record there, Mr Offer; it isn't outside.
But having said that, from the day the Burkett report was made public, or the one side of the Burkett report was made public, this has been in the media, on the news. The opposition have utilized it within the House and as a consequence we have had unbelievable numbers come to the ministry to speak to the deputy, the minister and the policy people at the ministry. This has been ongoing on a daily basis since May 1991.
Then not only do we have the physical presentations that were made before the committee, but we also have hundreds and thousands of letters by this stage and other presentations made by groups that were unable to make it on to the committee, and provided it to the ministry and we would advise them to provide it to the clerk of this committee, so that it would get on to the record of this group. All of those are there for public scrutiny.
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The Acting Chair (Mr Randy R. Hope): Mr Turnbull, do you have any comments or questions?
Mr Turnbull: Obviously, we're concerned at that kind of process. We know there were a great number of people who were not allowed any hearing time. Given the fact that this is probably the most significant bill this government will bring in this Parliament, it's unreasonable that you locked out so many people who had very valid points of view, to the extent that you're going and listening to them in camera, so to speak. I can't describe it in any other way. You're having private meetings in the ministry and yet this committee is charged with reviewing all the evidence. You cannot have it both ways.
You're cutting off debate of this matter and it seems reasonable that the opposition parties should have access to these people to question, and we should also have the press having access to these people during the process of it. It really isn't good enough and you come and suggest that this is a fair way of operating. Why bother having standing committees if that's your approach to writing legislation?
The Acting Chair: Any further comments?
Mr Offer: I share those concerns. I feel the committee in some way--I apologize for the word beforehand. I think we were deceived. I apologized beforehand for using those words. I'll tell you why. You shake your head. We brought motions here to extend the hearings for a couple of weeks. I asked for two weeks. You voted against it. At the same time as you were voting against that, I now know that ministry officials, from what you have said here, were having meetings with other people dealing with aspects of the bill. Those people should have been at the public consultation hearing.
Mr Kovacs: If I may clarify, Mr Offer, those people were all informed that public consultations were available. These were people who called the ministry, and as Ms Murdock has said, there have been dozens or hundreds of people calling the ministry on a regular basis since May 1991 who have offered their comments.
Mr Offer: Why didn't you have them here?
Mr Kovacs: If they've chosen not to appear before the committee, that's their prerogative, surely.
The Acting Chair: Mr Offer, do you have any more comments, or Mr Turnbull?
Mr Turnbull: Yes. There are an awful lot of people who would have liked the benefit of being able to speak to the ministry but were refused any access to it. We have a government that only wants to listen to one side of the picture and it isn't good enough. You are apologists for the union leaders. You're trying to ram this down people's throats.
The Acting Chair: We are speaking to section 8.
Mr Turnbull: The workers are fed up with what you're doing.
The Acting Chair: We are speaking to section 8.
Mr Turnbull: Yes, we are. We're speaking to the whole of the bill, as a matter of fact.
The Acting Chair: We're speaking on section 8 right now. We're on section 8.
Ms Murdock: Just in response to Mr Turnbull and Mr Offer, but specifically Mr Turnbull's comments in regard to the numbers, obviously we were five weeks; that's true. I believe there were 240 time slots that were fitted into that five weeks. We had something like 1,100 applicants and that's never been disputed. It's been discussed time and time again and commented upon time and again during the five weeks of hearings.
Yes, we tried and I know that the subcommittee and the committee agreed that the Chair and the clerk would make a determination as to who would be fitted into the time slots. Each caucus was asked to submit its priority list, which we did. Then we hoped that our priority list would make it on to the presentations in each of the cities.
The Acting Chair: This is speaking to section 8?
Ms Murdock: Yes, it is speaking to section 8, because the point has been made that this section 8 that we are proposing had nothing to do with any of the presentations that were made before the committee, so I think it is relevant.
In any case, having said that, when you were sitting down and looking at this list, many of those--it's unfortunate that the person I'm responding to is not here to hear. I'll use the unions since everyone from the opposition side claims that they control what's happening here. Once you've heard from Leo Gerard and once you have heard from Harry Hynd and four or five of the locals from different Steelworkers' organizations around the province, I don't think we need to hear from the 100 locals that were in that list. There is no necessity. The same thing I believe applies to any of the other groups, and I would say my own city of Sudbury, where we listened alternately to either a labour council or a chamber, a labour council or a chamber.
The Acting Chair: But this is speaking to section 8?
Ms Murdock: It is. When you look at who was on that list of 1,100, I don't think we needed to hear from all of them when their points of view were going to be expressed very, very capably by other groups. So this is not something new. As I said, I spoke to this issue in Kingston myself on the record.
Mr Offer: I'm absolutely certain that the parliamentary assistant and the staff of the Ministry of Labour and the members of the government do not understand my deep concern with not only this amendment but the way in which it was brought about. I'm not going to speak any more on it. You don't understand that either committees work or committees are plays. I thought we were trying to make this work. I now find out that there is a totally different thing going on.
I'm just going to ask the question, then. Why in this section that the parliamentary assistant has moved did they feel it was necessary to take away the right of workers to change their minds after an application for certification had been filed?
The Acting Chair: Ms Murdock, do you have a response?
Ms Murdock: I responded to it yesterday.
The Acting Chair: Okay. Mr Turnbull, do you have a--
Mr Offer: No, I don't believe that the parliamentary assistant--if she doesn't want to answer the question, that's fine.
The Acting Chair: Ms Murdock, would you like to respond?
Ms Murdock: Certainly. I actually stated already today that we do not see it in the same light, as a removal of rights. First of all, they still have the right to change their minds up until the date of application, that's true. After the date of application, as I stated yesterday, causes delays and costs because the reality is that petitions, as they are called, or revocations or however you want to word that, end up being not so much revocations as the board then taking time to determine whether or not it's valid. That has resulted in tremendous costs to the Ontario Labour Relations Board, to the employers and to the trade unions of this province in terms of a delay factor, and we are removing it from this act.
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The Acting Chair: Mr Turnbull, do you have any comments on section 8 you wish to make?
Mr Turnbull: Subsection 5 makes it more difficult for an individual to revoke his or her membership, even prior to the certification application. Not only are they eliminating post-application petitions, the sober second thoughts, but they're making it more difficult to revoke pre-application by adding the requirement that the decision to revoke be in writing and signed by each employee.
The government should amend the bill to include a mandatory secret ballot vote in all cases, instead of further restricting an individual's ability to change his or her mind. To the extent that we've heard the government's side, and it is totally unbending to what we're suggesting, I would propose that we now put the question.
The Acting Chair: The question is being put.
Mr Offer: I want a recorded vote.
The Acting Chair: First of all, I'm going to call for a consensus on the question. All those in favour of putting the question? All those in favour of putting the question, raise your hands. Those opposed? Okay.
Mr Brad Ward (Brantford): I'd like to thank the committee for giving me an opportunity to express my opinion on this important--
Mr Turnbull: Excuse me, Mr Chair.
Mr Offer: Are we having the vote?
The Acting Chair: He asked for the question to be put. You have to have consensus for the question to be put, and the motion was defeated.
Mr Turnbull: Is that right?
Ms Murdock: I always thought there was no debate.
Mr Turnbull: There's no debate on that.
The Acting Chair: No. There wasn't a debate. There was a vote and the vote was defeated.
Ms Murdock: Oh, okay. I see.
The Acting Chair: I allow Mr Ward now to express his comments.
Mr Offer: He wishes to speak to this section. Would you allow him?
Mr Ward: Just a couple of minutes.
Mr Pat Hayes (Essex-Kent): He's trying to muzzle the government.
Mr Turnbull: I'll do more than muzzle the government.
The Acting Chair: Mr Ward, you now have the floor.
Mr Ward: I'd like to point out to this committee that there are restrictions on petitions in every other jurisdiction in Canada, both federally and provincially. During the hearings held in the summer, some 240 individuals gave presentations to this committee in the month of August. We heard time and time again of abuse of petitions by employers in an effort to circumvent the wishes of employees who collectively in a workplace made the decision to have a trade union represent them.
In fact, we heard evidence of one employer who listed the Toronto Maple Leafs roster as employees of a certain workplace. Each individual had to be confirmed or they decided that wasn't an employee and held up the process. I think it was the taxi drivers in Toronto. Examples like that, I think, give credence to the necessity of this amendment to this motion. The fact is that in Ontario workplaces have changed, and the fact is that we should remove unnecessary obstacles that are in the way of employees who wish to have a trade union represent them. This is one obstacle that was open to abuse by employers, and we heard it time and time again.
I think it's an appropriate motion to adopt, and I would suggest, as Mr Offer has, that a recorded vote take place on this important issue, so that the working people of Ontario know who stands for removing some unnecessary obstacles that were open to abuse and who doesn't.
The Acting Chair: Any further comments? Seeing none, all those in favour of the proposed amendment?
Mr Offer: I ask for a recorded vote.
The Acting Chair: A recorded vote. Keep your hand raised until the clerk has read your name out. All those in favour of the motion, please signify.
Mr Offer: Which motion?
The Acting Chair: Ms Murdock's motion.
Ayes
Hayes, Klopp, Ward (Brantford), Wood.
The Acting Chair: All those opposed?
Nays
Offer, Turnbull.
The Acting Chair: The motion is carried.
Mr Turnbull, your motion's next.
Mr Turnbull: I move that subsections 8(4) to (7) of the act, as set out in section 8 of the bill, be struck out.
The Acting Chair: Could you repeat the motion you are putting forward? It should be section 8 of the bill, subsections (8) and (9).
Mr Turnbull: Section 8 of the bill, subsections 8(4) to (7) of the act.
The Acting Chair: That has already been dealt with.
Mr Turnbull: I'm sorry, I think my binder is out of sequence.
The Acting Chair: Yes, we dealt with that one already.
Mr Turnbull: This is 8(8) to (9)?
The Acting Chair: Yes, 8(8) and (9).
Mr Turnbull: Okay, I'm sorry.
The Acting Chair: Do you want to read the whole thing into the record?
Mr Turnbull: I move that section 8 of the act, as set out in section 8 of the bill, be amended by adding the following subsections:
"Time for vote
"(8) A representation vote must be held within ten days after the certification application date.
"Secret ballot
"(9) A representation vote must be by secret ballot."
The Acting Chair: Would you wish to speak on that, Mr Turnbull?
Mr Turnbull: Yes. This amendment requires that the secret ballot vote be conducted within 10 days of the application for certification. We believe that the whole certification process would become much more open, aboveboard and understandable for both employers and employees 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 application have worked well. All the employees can exercise their right to choose freely and the employer is still enjoined from interfering with that right.
Ontario Federation of Labour President Gord Wilson rejects the requirement of a secret ballot vote, arguing that it would be a delaying tactic used by business. Yet in British Columbia and Alberta, such mandatory votes within 10 days of an application for certification have worked.
Why is a mandatory representation vote acceptable to NDP Premier Michael Harcourt for British Columbia while it is not acceptable to NDP Premier Bob Rae for Ontario?
The Acting Chair: Any further comment on the motion?
Mr Offer: Yes, I have a few comments. First, I note that the amendment put forward is very similar to an amendment which was put forward by myself yesterday. I think the difference is that I wanted a representation vote within 30 days; this amendment calls for 10 days. I wanted a secret ballot vote and so does this.
I have a feeling, Mr Turnbull, that this amendment is not going to be accepted by the government, and that is because my amendment wasn't accepted yesterday. The arguments put forward as to why these types of amendments should not be accepted are, I believe, flawed. I believe that I have not heard one reason why the government would be so worried about giving workers in this province the right to cast their votes whether they wish or do not wish to be unionized in a secret manner, free from fear, intimidation and coercion.
Mr Ward earlier spoke about, let's make certain the workers of this province know exactly where everybody stands in this matter. I could not agree with him more. I think it's absolutely essential that the workers of this province--I believe 33% of whom are unionized and the remainder, the 67%, not--that every single one of those workers in the province, unionized and not, find and recognize that the members of the government voted against informing workers of their rights, voted against giving workers a free, secret ballot vote; voted against a lower threshold to trigger the vote--let me repeat--voted against lowering the threshold to trigger the vote; voted against increased protection of workers when an organizing drive is taking place, protection to the men and women from intimidation and coercion from whatever source, be it organizer or employer; and continue to vote against allowing workers to express their desires.
I couldn't agree with Mr Ward more than to let the workers of this province know that's where the government members voted against. I'll call the vote.
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The Acting Chair: The question has been put. Is that what you're putting? All those in favour of putting the question, if there's no further debate? Opposed? Carried.
All those in favour of Mr Turnbull's motion, please signify by raising your right hand. All those opposed? It's defeated.
Mr Turnbull, you have another motion?
Mr Turnbull: Yes, section 9 of the bill.
I move that section 9 of the bill be struck out and the following substituted:
"9. Section 9 of the act is repealed."
The Acting Chair: Do you wish to speak on that, Mr Turnbull?
Mr Turnbull: Yes. The amendment removes section 9 of the act. Pre-hearing representation votes are not required if a representation vote by secret ballot is mandatory for certification.
The Acting Chair: Any further comment on it?
Ms Murdock: I'll speak to it, if I may.
The Acting Chair: Ms Murdock, go ahead.
Ms Murdock: Section 9 currently provides for pre-hearing representation votes where a membership support level of 35% has been reached. Such votes are generally held where prolonged litigation is expected. Ballots are sealed in a box and they're not counted until that litigation is completed. That's what section 9 does.
As amended in Bill 40, section 9 would also contain the automatic certification provision. It would also provide for the certification where there has been an unfair labour practice which has made it unlikely that membership support would be able to be ascertained, without a requirement that there be an "adequate" membership support, which is the language in the act.
We've made our views known, through here, on automatic certification. Of course, it's in the existing legislation, so we're not changing that aspect of the act.
There's currently a twofold test for unfair labour practices for certification. First, it would only apply where an employer has committed a very serious unfair labour practice, such that the board believes it's not possible to test true membership support, and then it orders an automatic certification. So if that situation were to occur and the board believed that whatever had been done so tainted the ability to determine whether or not true membership support could be ascertained, they would just automatically certify the union.
And the government is removing the adequate membership support test, because this has the effect of rewarding those employers who do commit grievous offences early in a campaign--and not that we make the determination, but that the board makes the determination of whether or not that has been done. So we're removing that. By Mr Turnbull's motion, that whole aspect of that part of the bill would be completely removed, and we're not prepared to agree to that.
The Acting Chair: Mr Offer, I'm sure you have some comments.
Mr Offer: I must tell you, I'm sort of off kilter today, I must say, for the first time in these--in my opinion, for the first time. I must say I just feel a little off balance today, and I must say I just can't get out of my mind that there were shadow meetings and hearings taking place while we were discussing this bill with the public, albeit in a very minor way. I can't forget the words of the parliamentary assistant, who said, "You know, you heard from some of the big union leaders and some of the major employer groups, so you really don't have to hear from everybody else."
Ms Murdock: You don't.
Mr Offer: And she repeats it just now.
I can't help but feel, honestly, that I was duped into taking part in these proceedings. I was there listening to people, preparing amendments, trying to bring forward concerns, learning about issues and about what it's like, and at the same time, there were some meetings taking place somewhere else which resulted in wholesale amendments which were never part of the public consultation process.
The Acting Chair: Which are you referring to, section 9?
Ms Murdock: No, he's referring to section 8.
Mr Offer: I'm referring to the whole process.
Ms Murdock: No, it's only on section 8 that this issue has even arisen, Mr Offer.
Mr Offer: The parliamentary assistant gets upset.
Ms Murdock: No.
Mr Offer: My point that I am making is relevant, I suggest, to every single section of this bill.
The Acting Chair: If they are important things, then it's relevant to the section of the bill, yes. Mr Turnbull, you have further comments you wish to make?
Mr Turnbull: Yes. All of the members of this committee must be aware that I probably hold the most disdain for this bill of anybody in this room, but I really wish that we could get on with this. I agree with Mr Offer, it's ludicrous that they're having private discussions, but please, let's discuss that in the House, in debate, and let's get on with the amendments.
The Acting Chair: Any further discussion?
Mr Turnbull: I ask that the vote be put.
The Acting Chair: Seeing no further discussion, all those in favour of Mr Turnbull's motion please signify by raising your right hand.
Mr Turnbull: You don't have to do that.
The Acting Chair: No, I just didn't hear you.
Mr Offer: Stop delaying things, Mr Turnbull.
The Acting Chair: All those in favour of Mr Turnbull's amendment to section 9 of the bill please signify by raising your hand. All those opposed? Defeated.
Ms Murdock: I wish I had asked for a recorded vote.
The Acting Chair: Mr Turnbull, you have another motion to subsection 9?
Mr Turnbull: I apologize, but my binder must be out of sequence because I have a Liberal motion next in my binder.
The Acting Chair: Use it anyway.
Mr Turnbull: I beg your pardon?
Ms Murdock: Yours on section 9 is at the end.
Mr Turnbull: I'm sorry. My binder has--
Interjection.
Mr Turnbull: Okay. Subsection 9(1) of the bill, subsection 9(2) of the act.
I move that section 9 of the bill be amended by adding the following subsection:
(1) Subsection 9(2) of the act is amended by striking out "may" in the ninth line and substituting "shall."
The Acting Chair: Would you wish to comment on that, Mr Turnbull?
Mr Turnbull: Yes. The amendment makes a representation vote mandatory in subsection 9(2) of the act. If the government does not support the removal of section 9 from the act, this amendment will make a representation vote mandatory.
The Acting Chair: Any further discussion? Seeing none, all those in favour of Mr Turnbull's motion please signify by raising your hand. All those opposed? It's defeated.
Mr Offer, you have a motion.
Mr Offer: This is section 10 of the bill? I was hoping very much to get to this section.
I move that section 9.1 of the act, as set out in section 10 of the bill, be struck out.
The Acting Chair: Do you wish to speak on it?
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Mr Offer: I do. I think that just before I make some opening comments to this, we have to realize that what follows after striking out this section of the bill will be a new section, which I would like to insert in its place. Section 9.1 of the bill really is, to me, an important aspect that demands discussion. Basically, to me it's that part of the section 10 of the bill that really many individuals were talking about.
The problem that I want to discuss is, the government has already refused to move on the secret ballot. They've refused to move on inserting rights of workers. It is this part of the bill that, in essence, grants automatic certification if 55% of the workers sign union cards. I would like that deleted, and I will tell you why I would like that deleted: because of what I heard in our consultation.
I'm not talking about the shadow consultation being undertaken by the Ministry of Labour and probably the minister and parliamentary assistant. I'm talking about what we heard in the public consultation, that there is coercion that does take place, not in all instances, but in some instances, that the coercion and the fear and the intimidation that does take place in some instances is not a monopoly by one over another. Rather, there are examples that were brought forward to our committee of intimidation by employers over the fear of losing a job, intimidation by organizing unions, indicating that, "If you sign this membership card, you will get a vote," and people did that. Of course, under the law, that's not necessarily true. The members of the government say they didn't hear it, but of course, it was indicated that individuals came before our committee and said, "People say, `Sign this card and you will get a vote.'" Now, that is what was said.
So what are we left with? We're left with that fact, that reality, and the situation is no protections in place for the workers of the province. It would seem to me that if we, in a strange way, get rid of the 55% automatic certification, if we reinstitute, as I hope we will, the right of workers to have a secret vote, in fact the incidence of these types of examples that were brought forward, which should not take place--I am opposed to those things happening. I don't care who is the author of them, they are wrong, but they're a fact.
What we should be doing is looking at ways in which we can minimize those things from happening, minimize those incidents of intimidation, misinformation, coercion and fear. We can do it. We can do it through the institution of penalty provisions. We're going to be getting to that. It would seem to me that one way in which we can really do it is if we lower thresholds, not raise thresholds. Even 55%, people view as: "If I get 55%, that's automatic certification. That's a good thing." But think about the worker. Think about the organizer. Think about the employer: Instead of having to sign up 30%, as in my amendment, they now have to sign up 55%. I believe that is, in effect, a cause of difficulties and something we can deal with.
We can reduce, we can minimize, we can mitigate these examples of interference--I think the parliamentary assistant used that word yesterday and it's a good word--if we reduce the threshold, if we reduce the percentage, if we reduce the numbers that are the reason for these examples of interference.
We have an opportunity here to deal with the concerns that were brought forward to this committee. We have an opportunity to say, yes, we heard and, yes, we listened. I would ask the members of this committee to vote in favour of that part of my amendment dealing with section 9.1, which in no small measure lays the groundwork for these examples of interference to in fact occur.
The Acting Chair: Mr Ward, did you have comments you wanted to make?
Mr Ward: No, Mr Chair.
The Acting Chair: Mr Turnbull?
Mr Turnbull: No.
The Acting Chair: Seeing no further comments, all those in favour of--
Mr Offer: Recorded.
The Acting Chair: A recorded vote, okay.
All those in favour of Mr Offer's amendment, please raise your hand and hold it for the clerk until he's read your name off.
Ayes
Offer, Turnbull.
The Acting Chair: All those opposed?
Nays
Hayes, Klopp, Murdock (Sudbury), Ward (Brantford).
The Acting Chair: The motion has been defeated.
Mr Turnbull, you have an amendment you wish to put forward.
Mr Turnbull: This is on section 10 of the bill, section 9.1 of the act.
I move that section 9.1 of the act, as set out in section 10 of the bill, be struck out and the following substituted:
"Certification of trade union
"9.1 The board shall certify the trade union as the bargaining agent of the employees in the bargaining unit if more than 50 per cent of the ballots cast in a representation vote are cast in favour of the trade union."
The Acting Chair: Do you wish to comment on that, Mr Turnbull?
Mr Turnbull: Yes. The amendment removes the words "if a representation vote is taken" from section 9.1 of the act. Section 9.1 of the act is reworded to reflect the fact that a representation vote will be mandatory in all cases.
The Acting Chair: Any further comments? Mr Offer?
Mr Offer: No.
The Acting Chair: Seeing no further comments, all those in favour of Mr Turnbull's motion, please signify.
Mr Turnbull: A recorded vote.
The Acting Chair: A recorded vote. Then hold your hand until the clerk has called your name out. All those in favour?
Ayes
Offer, Turnbull.
The Acting Chair: All those opposed?
Nays
Hayes, Klopp, Murdock (Sudbury), Ward (Brantford), Wood.
The Acting Chair: The motion has been defeated.
Ms Murdock: I move that the French version of subsection 9.1(2) of the act, as set out in section 10 of the bill, be amended by striking out "sur le caractère représentatif du syndicat" in the first and second lines and substituting "de représentation."
The explanation is the same as yesterday, where it takes away "representative character" and translates it to "representation vote."
The Acting Chair: Any further discussion?
Mr Offer: I just want to speak to the aspect of this motion. I think I made my point yesterday, but I think it's important for me to reiterate that I'm still going to be looking for some clarification on this activity, because I just felt it was a given that where a section is passed in the English version, automatically the French version would be passed and would not have to be part of a motion.
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I know we had some discussion of that yesterday. I do not understand why we are in fact making specific motions of the French translation. I understand the need to make certain that the French version lines up with the English version and vice versa, but I didn't think it would have to be done section by section, motion by motion.
I'll just look for some clarification from legislative counsel--not through this committee, but legislative counsel and others--in order to satisfy myself as to the correct procedure that bills should follow in clause-by-clause.
The Acting Chair: Just so I'm clear, what you're asking is not for clarification right now from legal counsel but later from legal counsel as far as English and French interpretation are concerned. Legislative counsel has recognized that.
Ms Murdock: I don't know if I can help on this.
The Acting Chair: Well, we'll let legislative counsel deal with it, as he's directed his question to legislative counsel.
Any further comments on Ms Murdock's motion? Seeing none, all those in favour of Ms Murdock's motion please signify. Opposed? Carried.
Ms Murdock, you have another amendment?
Ms Murdock: I move that the French version of subsection 9.1(2) of the act, as set out in section 10 of the bill, be amended by striking out "sur le caractère représentatif du syndicat" in the first and second line and substituting "de représentation."
The Acting Chair: Any discussion? Seeing none, all those in favour of Ms Murdock's motion please signify. Opposed? Carried.
Mr Turnbull: Could I just have a little clarification on that? What was the difference between the two motions I've got in my binder, unless we've got the wrong thing?
The Acting Chair: The difference would be one says 9.1(1) and one says 9.1 (2).
Mr Turnbull: Okay, Sorry.
The Acting Chair: Mr Turnbull, do you have another motion to section 10, section 9.2 of the act?
Mr Turnbull: I think it's the Liberals.
The Acting Chair: Not according to my book. PCs.
Mr Turnbull: I move that section 9.2 of the act, as set out in section 10 of the bill, be struck out and the following substituted:
"Certification where act contravened
"If an employer or employers' organization contravenes this act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the board, a trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the board to be appropriate for collective bargaining, the board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit."
The Acting Chair: Do you wish to comment on that, Mr Turnbull?
Mr Turnbull: Yes. The amendment maintains the adequate support requirement for certification. The proposed removal of the current threshold requirement of adequate membership support removes any semblance of respect for the employees' freedom of choice in this context. It appears to punish the majority of employees by taking away their right to choose because of violations of the act over which they often have no control.
The granting of representation rights to a trade union which does not represent the interests of the majority is contrary to democratic principles and violates the employees' freedom of association. It may well be that the union's failure to sign up a sufficient number of employees is not the result of employer intimidation, but rather the result of the employees' independent decision not to participate in collective action or to seek assistance from another union.
The proposed change to section 8 obscures these very real possibilities. An employer, or the representative of the employer, could commit an unfair labour practice by mistake or out of ignorance of the provisions of the act, resulting in a union being imposed when only a small percentage, for example 20%, of employees have signed union cards.
The board, which must protect collective bargaining, as the new purpose clause sets out, will not have to determine if the union has adequate membership support. This will be particularly onerous on small businesses, as they do not have in-house legal expertise to help them avoid an unintentional unfair labour practice. It may well be in the union's interest to be confrontational in the hope of provoking a manager to say or do something which the union could later rely on as support for an unfair labour practice. Without having to mandate the restriction on employer free speech, the government has effectively created one. Such a situation is not conducive to the cooperative relationship the bill purports to foster.
The Acting Chair: Mr Offer, would you like to comment?
Mr Offer: Yes, thank you. This is the section which is crucial. It is my understanding of the Labour Relations Act that if there is an unfair labour practice committed during the organization then certification may take place, if it's shown, first, that there has been an unfair practice, and second, it results in the true wishes of the employees not being able to be ascertained and--there's an "and" there--the board feels that there was adequate support, there was a level of support. There's an issue of number involved. There's a twofold process: True wishes can't be ascertained, and there was a certain level or adequate support. That's my understanding of the Labour Relations Act as it now exists.
Just before I continue, I wouldn't mind knowing if my understanding of the act is correct. I see the ministry officials are shaking their heads in the affirmative.
It is my understanding that under Bill 40, the true wishes test still remains but the adequate support is taken out. So we are left with the fact that now certification without a vote can take place if an unfair labour practice has taken place and, second, the true wishes of employees are not likely to be ascertained.
Under the changes under Bill 40, the board does not have to decide whether there is a certain level of support for unionization in the workplace. I have had difficulties with this section, I must tell you, right from day one. The reason is that I believe, even if there is an unfair labour practice that has taken place which has resulted in some employees' wishes not being able to be ascertained, there still remains to the board the obligation, the responsibility, to determine whether there is an adequate level of support for the union.
The way Bill 40 is now styled, if an employer contravenes the act in such a way that the wishes of some employees, and it could be as few as two, are not likely to be ascertained--I'm using the words of the section--the organizers can then make an application, because they're showing contravention of the act by the employer, and two employees' wishes are not likely to be ascertained, to certify the union as the representative of the workplace.
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The problem I have is not that there should not be a penalty to the employer, because I believe there should be, but what we're left with under Bill 40 is that a workplace becomes unionized even though the vast majority of workers may not wish it to be. We foist a penalty on the employees for the actions of the employer. It's absolutely clear in my mind.
You can have a workplace of 100 people. An employer contravenes the act. It results in two employees feeling that their wishes are not ascertainable. In total, you might have 10 people who want to be unionized. Under the bill and under the application, everybody is unionized, even though 90% didn't want to be unionized.
Why would that happen? Why would one allow a penalty to be potentially foisted on the workers in the workplace? Why wouldn't we leave with the board the responsibility, before it makes that penalty of certification, to ascertain whether there is an adequate level of support for unionization in the workplace?
I am not saying that the employer should not suffer a penalty. I believe that they should not contravene the act and I believe a penalty should follow. But the penalty is not only on the employer; you're foisting the penalty on potentially the vast majority of employees, of workers, who do not wish to be unionized, and you are not making any obligation on the board to ascertain what the support is.
Mr Wood: It's not a penalty; it's a reward to the workers.
Mr Wood: Mr Wood says, as I speak to this, "That's not a penalty to workers; that's a reward." I say you're living in a dream world, because you have no right to say that. The only people, in my opinion, who have a right to say it are the workers. Far be it from some MPP sitting in some committee room, ostensibly dealing with a bill, thinking that you're having some consultation with the public when the real hearings are taking place in the Ministry of Labour, to decide that's a reward to workers. Isn't that disgusting?
I want to ask this question of the parliamentary assistant: Why would you take away the provision for adequate level of support, and what is the reason for not looking at or attempting to find out what the workers want before levying this penalty provision?
The Acting Chair: Ms Murdock, do you wish to comment on that? It is not necessary that you have to answer the questions, but I'll give you the opportunity to.
Ms Murdock: Thank you. In the previous motion, I believe either the one just before this or the other, that's when we removed those words.
The present practice at the board, as Mr Offer knows, is basically that whatever the action was in terms of unfair labour practice, it has to be fairly significant before the board will provide an automatic certification. Even in the instances when they do so, they try and make a determination, if at all possible, to determine whether or not the employees at that workplace even want to be represented by a union.
So you're right. If the board just willy-nilly went in and automatically certified everybody whenever an unfair labour practice occurred, it would be a penalty. But the thing is, they don't apply this section, at least according to the practice and statements we've seen out of the OLRB so far, if they cannot make a determination in any way as to whether or not there would be a true, representative vote of wishes of the employees.
I leave it to Mr Dean to discuss how we arrived at that particular section or why that twofold test is not going to continue to be used.
The Acting Chair: Mr Dean, would you wish to comment on that?
Ms Murdock: I want him to comment on that.
Mr Tony Dean: Just briefly, as you have been told, the board currently exercises its discretion to use this provision very infrequently and only in the most extreme circumstances. There has to be committed first a very grievous unfair labour practice that has such an impact in the workplace that the board is convinced without doubt that there can be no way of truly testing the views of employees with respect to trade union representation.
In applying the adequate membership test, the board has in fact gone well below majority support down to somewhere around the 29% or 30% support region. The difficulty with the adequate membership support test is that it can potentially encourage employers to commit grievous unfair labour practices very early in the campaign to instantly chill the organizing campaign, after which it becomes impossible for the board to test the true wishes of employees.
So the thrust, if you like, the rationale for this option, is simply that having an adequate support test in there in the first place is likely to incline those few employers who are likely to engage in this behaviour to in fact act quickly, act dramatically, and make sure that certification or that organizing process is killed once and for all. That's the rationale.
Let me just add that when I say "frequently," this is used perhaps three or four times a year by the board, and it's used very cautiously by the board. It's not expected that the board's approach in using this provision would change.
Mr Offer: I thank you for that response. I also worked under the belief that the board always looked to something in the area of 30%. That is why, I must say, I was very surprised that the government voted against reducing the threshold to 30%. That is why I was very surprised that the government voted against informing workers of their rights through information provided by the board. That is why I was very surprised that the government voted against making certain, as it could in legislative form, what unionization was, in the opinion of the organizer, and the position of the employer, through the board and under the protection of the board, for the protection of the worker. I was quite surprised.
I want to draw right back to the point that was made about the board infrequently ordering this. My alarm bells ring off the hook whenever I hear the ministry say that, because you're dealing with a board that is different from the board you have created. You are dealing with a board that worked from a preamble, but when you pass this bill, you are going to be dealing with a board that will be dealing with a purpose clause.
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Let's remind ourselves what the government has done. You have repealed the preamble, the direction and principles under which the board has operated. That's done; that's history. That type of argument about what the board has done in the past, let me tell you, will remain in the past. You have inserted not a preamble but a purpose clause. Let's remind ourselves what the first purpose of the board is: "to ensure that workers can freely exercise the right to organize by facilitating the right of employees to choose, join and be represented by a trade union of their choice, and to participate in the lawful activities of a trade union."
I don't have to go very far to remind myself of a lawyer who's going to stand up and say to the board: "Well, now, we have a contravention of the act. We have two employees here who have clearly indicated the employer has contravened the act and they were afraid to sign a union card." They're swearing to that, and we will in fact assume that to be absolutely true. The lawyers will then go on and say: "And board members," or board member, if we're speaking to one person, "let's just remind ourselves as to how you must rule. You must order certification because the province of Ontario has inserted this purpose clause, that workers can freely exercise the right to organize. If you don't certify this union, you, board, are in contravention of the purpose of the legislation."
Don't tell me about how boards have operated in the past, because they've operated under totally different rules, they've operated under totally different principles. I dare say that the fact the level of support is now taken out is going to cause difficulties, is going to cause problems, is going to cause dissension, is going to cause penalties foisted on employees who might not have even known an organizing drive was taking place, because the government has refused to allow them, in legislative form, to be informed. That's the system and regime you want to put in this province. Thank you very much for freedom of choice.
The Acting Chair: Ms Murdock or ministry staff, would you like to respond?
Mr Dean: Can I just correct Mr Offer on one point? A substantial amendment was made to the purpose clause that removed reference to "facilitating" the right to organize and replaced it with the word "protecting," which Mr Offer appears to have taken as the centrepiece of his argument in terms of changes in board jurisdiction. The government, as I understand, responded to the concerns of Mr Offer and the business community about the potential for that change of jurisdiction and amended the wording. Just for clarification, I think that has to be put on the record.
The Acting Chair: Mr Turnbull first. Would you like to comment? I know Mr Offer is burning right here.
Mr Turnbull: Frankly, I'm disappointed with the answers from the government, but then I've been disappointed with every single answer from the government. This is bad legislation, and in the interests of moving along I propose the question now be put.
The Acting Chair: The question is being put. All those in favour of the question being put? All those opposed?
Mr Offer: No.
The Acting Chair: Go ahead, Mr Offer. You have the floor.
Mr Offer: I understand Mr Turnbull's hope, but as the ministry officials indicated that they had responded to concerns of mine with respect to the purpose clause, I must say that if that's how you've responded, you have not responded.
Be clear that what I have asked is for the principles to remain as a preamble. I do not want a purpose clause. I recognize that "facilitating" has been taken out and "protecting" has been put in, the impact of which will be absolutely the same. My argument stands, and I will tell you that you will be hearing those arguments made, without any question. This is nothing less than an erosion, a tearing away, of a worker's right to freely choose and to demonstrate to the board adequate support for unionization or the lack thereof. If you want to call the vote, fine. That's all.
The Acting Chair: Any further comments or questions? Seeing none, then all those--
Mr Offer: Recorded vote.
The Acting Chair: Recorded vote. Please keep your hands up until the clerk has called you out. All those in favour of Mr Turnbull's motion, please signify.
Ayes
Offer, Turnbull.
The Acting Chair: All those opposed?
Nays
Hayes, Klopp, Murdock (Sudbury), Ward (Brantford), Wood.
The Acting Chair: The motion has been defeated.
Mr Offer, you have a motion you wish to put forward.
Mr Offer: Yes. I move that section 9.2 of the act, as set out in section 10 of the bill, be struck out and the following substituted:
"Certification when act contravened
"9.2(1) On the application of the trade union, the board may certify the trade union as the bargaining agent of the employees in a bargaining unit if the board considers,
"(a) that the true wishes of the employees respecting representation by the trade union are not likely to be ascertained because the employer, an employers' organization or a person acting on behalf of either has contravened this act; and
"(b) that the trade union has membership support adequate for the purposes of collective bargaining.
"Idem, trade union
"(2) The board shall dismiss a certification application by a trade union if the board considers that the true wishes of the employees in the bargaining unit respecting representation by the trade union are not likely to be ascertained because the trade union or a person acting on its behalf has contravened this act.
"Expiry
"(3) A trade union whose certification application is dismissed is not entitled to make a further certification application respecting the employees in the bargaining unit until one year elapses after the dismissal."
The Acting Chair: Mr Offer, do you have any comments you wish to make on this?
Mr Offer: Yes, I do. The first point to be made, in my opinion, is that half of this is very similar to the motion to which we have already spoken. I've spoken about that at some length already.
The second half, however, is new. The issue that we're going to have in a few moments' time is, do you wish to protect the worker from intimidation and coercion or don't you? That's the question: Do you wish to protect workers in this province in an organizing drive from intimidation or coercion? You will be voting not yes or no, but aye or no, are you in favour or not.
I must say that I am fearful of the current reading of Bill 40. I discussed why. I've used examples why. I folded in what will happen at the board. The board will not look at just one section. They will be guided--not guided; they will be dictated to in their decision by the purpose clause. I've read that portion of the purpose clause which will say to the board: "You must act in this way. You must make a ruling which follows the purposes of the act."
But remember what we've been doing so far. We have taken it as a given that the only examples of intimidation, coercion or misinformation or unfair practices are from the employer. That's it. The fact of the matter is that we have heard in our public hearings--not in the ones that were conducted by the Ministry of Labour, but in our public hearings--examples that coercion is not necessarily a monopoly of one, but there are examples of interference from organizers. I don't say in the majority of cases, but we did hear examples where workers themselves felt that their decision whether to be or not to be part of a union, whether to sign or not to sign, was interfered with.
Don't we think we should not only foist a penalty on an employer but also on the trade union? The penalty to the employer, if he or she contravenes the act, is automatic certification. I understand that. That's the way it has been in the act. It has had to pass two principles or two criteria. One was that true wishes could not be ascertained; secondly, adequate support. I believe the government is making a drastic error by taking out the adequate support. But there's no penalty for a trade union organizer. If a member has interfered with the choice of workers, what type of penalty can take place? You can't ban the trade union for all time and I don't think you should, but I do believe that there should be a penalty.
1740
There are examples of the one-year penalty in the act as it now exists, so this is not a terribly new penalty. There are examples where penalties are imposed on trade unions--again, a one-year penalty basically. I took that from other portions of the existing act, and said, "You don't have to reinvent the wheel in this case." Let us make a penalty for trade unions in the organizing. It's not that you're against trade unions when you do that. I hope government members would not think that I'm suggesting this amendment because I'm against trade unions. That's of course not the case. I'm suggesting this amendment because I am in favour of workers being able to express their own thoughts and opinions in as free a manner as possible. Penalties for contravention of the act by the employer and the trade union is the only way in which we do not do away with but certainly reduce the incidents of interference. We are going to shortly be able to decide whether you're in favour of, at least, protecting workers from interference.
Regarding the issues of information to workers and secret ballot votes for workers, those are amendments that have already been proposed and defeated by the government. You've lost that. You carried the amendments, but you lost your principle. Yes, sure, you had more people in the room today. You won and carried the amendments, but you've lost and given up the principle of workers' freedom and workers' right to choose. So, we're left with this, as to whether you want to say goodbye to protecting workers. You've already said that to the informing of workers, but now we're going to be asking you through this amendment, are you in favour of protecting workers or not? Are you so certain that the only incidents of interference in this province are by the employers? Are you so absolutely certain that you in this room with a clear conscience can say, "Never, ever has there been an incident of interference in choice by a trade union organizer to an employee"? That's what you're going to be asked to do. You are going to be saying, if you reject this amendment, "Absolutely, never, ever has there been an incident of employee interference by a trade union organizer in any certification drive that has ever taken place in this province or that ever will."
To me, the answer is quite simple. No responsible person can ever say that this will never happen, and if you cannot say that, then you must vote in favour of the amendment or you are saying goodbye to protecting workers from interference in this province.
Mr Turnbull: We're going to be supporting this amendment. I think there's so much discussion about the relevant merits of clauses, but we've got to look at the fact that we've got to get back to having laws which are neutral. I'm afraid that this law that you're putting forward is not neutral. It is very heavily biased towards the labour movement.
The Conservative Party is clearly not against organized labour; it is also not against workers. In fact, I had a union leader visiting my office just three weeks ago and telling me very clearly his disdain for Bill 80, which we'll be looking at very soon, and talking about what is wrong with this bill. He was saying that he's very concerned that the government is wrong. You're tilting too much towards the unions. This is a union leader telling me this.
It's very clear that not just the members over here but you gentlemen on the other side in the NDP have a responsibility not just to represent your union buddies; you have a responsibility to represent the people of Ontario. Mr Ward, I know that there's a gentleman in the audience who's from your riding. He's spent a lot of time here. He introduced himself to me yesterday. He's here to see what you're doing. We do not want laws which tilt in one direction.
Clearly, from all of the evidence we received during these hearings, intimidation, when it does happen--and fortunately it doesn't happen too often in this province--can occur from both sides, from both the employer and the employee. To use that much-used phrase at the moment, we need a level playing field. This amendment would give a level playing field because it would also introduce penalties for labour unions that use intimidation, much in the same way as we've heard discussion from the government that it wants to stop intimidation from employers, which we agree with. But surely to God you cannot be opposed to an amendment which simply creates a level playing field. You are sending the wrong message to businesses and businesses are hearing the message--they're not deaf--and they are saying they're going to be leaving.
Have some sense, have some responsibility to the taxpayers and to the voters and to the people of Ontario and try to think about these amendments, instead of, like sheep, putting up your hands and voting down all of the opposition's amendments. Start thinking about the good of workers in Ontario.
The Acting Chair: Ms Murdock, would you like to comment? No?
Mr Offer: I'm sorry, I just can't let that go. I would like to, if possible, hear from the parliamentary assistant or ministry officials why they would not seek to insert a penalty on trade unions--
Ms Murdock: There is a penalty already, under section 59.
Mr Offer: --if there is interference.
The Acting Chair: Ms Murdock, do you wish to comment?
Ms Murdock: Sure. The first part--as Mr Offer himself has said, there are two parts to this. The one, we've already spoken to. You did at the very beginning.
The part that's new here is the freeze or penalty, as Mr Offer has said. Under section 59 in the existing Labour Relations Act, it isn't a year's penalty; I will say that. But if a trade union has obtained a certificate by fraud, "fraud" being--I would see that as fraudulent if there is any kind of coercion, intimidation or whatever. I don't know what your definition of it is.
Mr Turnbull: The legal definition is completely different for fraud and coercion.
Mr Offer: If we're going to talk apples, let's talk apples.
The Acting Chair: I don't mind how many have a part of the discussion, but I know Hansard would appreciate only one speaking at a time.
Ms Murdock: Thank you very much. There's also, under section 71, which is also mentioned in that section, an intimidation and coercion provision where "No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this act or from performing any obligations under this act," none of which is being altered. So, actually, probably under that section, and under a number of the provisions under this act, the the board can make those decisions.
I know that Mr Offer continually claims--
Mr Offer: There's no penalty.
Ms Murdock: --that there isn't a year, that there is not--
Mr Offer: Don't say that it's already in there. There's no penalty.
Ms Murdock: I'm not saying that there's--well, there is a penalty if your certification is removed or you're not allowed to have one.
Mr Ward: A penalty to the workers.
Ms Murdock: Why is that not a penalty, but it is a penalty if the union gets into the workplace?
Mr Offer: I read the Labour Relations Act. I don't profess to know it backwards, forwards and inside out, but I looked for exactly that point. I said if you're going to insert a penalty on an employer for interference with an employee in an organizing drive and that penalty is automatic certification, then surely there must be something in the Ontario Labour Relations Act to exert the same penalty on a trade union if it interferes--"with penalty." And I couldn't see it.
Ms Murdock: Yes, they take away the certification. That's the penalty.
Mr Offer: That is not a penalty.
Ms Murdock: Just a minute, please. Explain to me how it is a penalty if the union is certified if there has been an unfair labour practice occurring, and that's a penalty to the employer, but it's not a penalty if the trade union loses the certification if the trade union performed an unfair labour practice. Where is the difference in terms of penalty?
Mr Offer: When can they bring back the application?
Ms Murdock: Well, there is that. You're right; there's no time limit. But I'm talking about there is a penalty.
Mr Offer: What you're saying is there's a hockey game and there's a penalty for tripping. A person trips somebody and then is told, "Don't do that again."
The Acting Chair: I would just notify the committee to adjourn debate, as the bells--
Mr Offer: I say there's a difference.
The Acting Chair: Mr Offer, I'm sorry. I have to interrupt, as the bells are ringing and there are five minutes. The committee is now adjourned until Monday.
The committee adjourned at 1754.