Yesterday in the legislature we debated Bill 30: Labour Relations Code Amendment Act, 2019 at second reading. This bill amends the labour relations code to make a number of changes to enhance protections for workers and implement the recommendations of the independent expert review panel.

Below I reproduce the video and text of my second reading speech.

Video of Speech

Text of Speech

A. Weaver: It gives me great pleasure to rise and take my place in the debates on second reading of Bill 30, Labour Relations Code Amendment Act, 2019.

Ending the pendulum swings that have defined labour policy for the last 30 years or so in British Columbia has been a priority for the B.C. Greens. The proposed amendments to the labour relations code are, in our view, a step forward in the right direction — a step forward to reaching balance that’s required while also enhancing the important protection for workers.

British Columbians deserve to expect certainty and stability in labour policy. That is precisely what our caucus has advocated for all along. For the past 30 years, labour policy in B.C. has been defined by pendulum swings between Liberal and NDP governments. Through our consultation with government, we made it clear that progressive changes are needed to protect workers, through moderate, evidence-based policy adjustments. We were thrilled and delighted to work with government to move that forward.

The basic starting point for this was the expert panel review that government commissioned. That panel made balanced and thoughtful recommendations on updating the labour code that are reflected in this legislation. We conveyed to government that we support the recommendations of the expert panel in their entirety.

One of the things that the expert panel talked about was the secret ballot. Retaining the secret ballot while shortening the time frame for the vote from ten to five business days and enacting stronger protections against employer interference, in our view, is a reasonable path forward to maintain balance in the workplace and to ensure that workers are protected as they exercise their choice as to whether or not they wish to unionize.

We support the other significant provisions in this legislation as well. They take important steps forward to better protect workers and to ensure balance in the workplaces. The changes we’re seeing here include extending successorship provisions to protect workers in a number of sectors — I’ll expand on that later — reducing the disruption caused by frequent raids by modifying the open periods, and removing education as an essential service — although that, too, I’ll come to later.

Let’s go back to what the bill does. I’ll start with union certification to provide some context.

The bill retains a secret ballot while making a number of changes to strengthen the regime to ensure that the votes take place in an environment free from interference. The key elements of this regime are canvassed below.

Retains the secret ballot. One of the most contentious issues in labour relations over the past three decades has been precisely that — retention of the secret ballot. As the panel noted, there have been four swings on the code on this issue. Basically, every time government switches from one to the other, the secret ballot comes or gets taken out. Ending these pendulum swings, for us, was critical. A reason why that’s important is that if you start to have these pendulum swings, all sorts of other things start to change as well.

Now, I note that not everybody is pleased that the secret ballot remains. We know that the overwhelming majority of British Columbians support the secret ballot. We know, and I know, from the exchanges of emails, letters and phone calls and conversations I’ve had, that a large number, if not the majority, of union workers actually support the secret ballot as well, including some leaders in the field.

We know that the issue of secret ballot is one that’s very easy to defend, but, and in that context, we also recognize that there have been examples, particularly with the extended time of ten days, of employer interference and intimidation. This is why we felt that it’s important to retain secret ballot while supporting the recommendations of the panel to do so, as well as to support recommendations to shorten the time. Clearly, I recognize that certain of the union leadership are really in favour of the secret ballot, because, for example, we know that, as reported by the panel, the success rate in card check is about 9 percent higher than under secret ballot.

Again, you can imagine, while we hear stories, often, about how the employer has intimidated workers…. It’s true. No doubt, it’s true. There’s lots of examples, and these have been brought to me. They’re examples of shenanigans that have gone on. As certification drives start, we start to have a bunch of new employees hired who vote against it. There are all sorts of shenanigans that have gone on, and I appreciate that. But at the same time, I’ve also had stories conveyed of intimidation to actually sign cards as well. So it’s actually a good thing, I think. The fair compromise we’ve got here, is where we shorten the time frame, which mitigates the ability of employers to interfere in a certification drive or a secret ballot but, at the same time, ensuring that workers have the right to express themselves free from external influence as they mark an X.

The panel also noted that secret ballots are integral to our democratic political system, but they also recognize, as I do, that certification votes take place in a context of power imbalances between employers and workers, so protections are necessary, as I noted, to ensure the vote is conducted in a fair way and employees are able to exercise their choice to join a union, or not — from all interference. The panel found in the majority decision…. It wasn’t unanimous; it was 2 to 1. The majority decision was that the secret ballot “is the most consistent with our democratic norms, protects the fundamental right of freedom of association and choice.” Those are the words of the panel.

The panel said that it’s important to keep the secret ballot, paired with updates to the code that “effectively limit and fully remediate unlawful interference,” and that ultimately is why we supported retention of the secret ballot. Hopefully, as we move forward, recognizing that this is not what everyone wanted and that there are those in the union movement who still, and continue to pressure, for a card-check certification. We hope that the balance here is such that if government were to switch, we might actually collectively agree that this labour code can preserve, and that would preserve stability in labour in British Columbia, which I think would be a good thing.

The bill strengthens rules to restrict what is lawful communication during an organizing drive or certification application through repealing and replacing section 8 of the act. The current section establishes a broad right for employers to communicate as long as they do not use intimidation or coercion. Therein lies the difficulty. And there is process, but actually determining what is viewed as intimidation or coercion can be somewhat difficult and requires some additional oversight. What’s happening now, of course, is that these words are being replaced with narrower language recommended by the panel, allowing persons to communicate “a statement of fact or opinion reasonably held.” That’s important. We don’t want to limit the ability of free speech or the conveyance of facts and opinions that are reasonable, however, intimidation tactics like, “If you vote for this, you’re going to be fired,” or intimidation tactics whereby, in a workforce of maybe eight people in the place, all of a sudden, nine temporary foreign workers show up, and suddenly you’re outnumbered there. These kinds of things, we believe, are actually forms of undermining the democratic process of allowing individuals to unionize.

The change was a recommendation of the panel as part of their recommendation on restricting employer communication with employees during organization, so we’re pleased that government has adopted that. As I noted currently, the language in the code allows broader employee communications during an organizing drive or certification application in every other Canadian jurisdiction. Again, this is something that we believe is not balanced, and what is happening in this legislation is that balance is restored in British Columbia.

The pendulum is not swinging, and this is what I am most pleased about. I don’t view this as a pendulum swinging from the far right to the far left yet again. I view this as the pendulum stopping in the middle in a balanced fashion to ensure that labour policy changes moving forward are ones that reflect the importance of protecting the workers’ rights to unionize, as well as to ensure that the employer has a chance to convey information in a manner that’s factual as opposed to framed in intimidation.

This change, actually, that’s happening returns the code to the pre-2002 language in some sense. In the words of the panel, this is “consistent with virtually all other Canadian jurisdictions and strikes the appropriate balance between employer speech and the prevention of undue interference with employee choice.”

The bill also provides the Labour Relations Board with broader discretion to impose union certification when an employer is found to have unduly interfered with the certification process. That, too, is something we’re proud to support, again, because of the threat of the big stick. You never want to use the big stick. The big stick is something that you have on the side that you hope to never use. But if there is no stick, often people can move forward, recognizing there are no consequences for their behaviour. But now there are such consequences.

So combined with the shorter time period, retention of the secret ballot, the improved regulations in terms of employer communications as well as the ability of the Labour Relations Board to step in if the employer is unduly influencing the certification process, we think this strikes a fair balance — a balance articulated by the committee, brought forward by government — and hopefully, we can unanimously support this in this House.

Section 5 of the bill allows the Labour Relations Board to certify a union when there has been a prohibited act, if the board believes it is just and equitable. The section also lowers the threshold required for remedial certification. Previously, the board had to determine that the union would likely have obtained the support it needed if not for the prohibited act. That’s a very difficult test.

How can you say…? The employer does something — let’s suppose, hypothetically — through messaging and communication that unduly influenced people. The union would have to prove to the Labour Relations Board that this act, this form of communication, if it had not occurred, would otherwise have allowed the union process to go through.

That’s a difficult bar to set. I, again, don’t believe that that’s a very big stick at all. In fact, frankly, I think it’s not even a twig. That’s, basically, not very prohibitive at all.

Again, we are pleased that the threshold required for remedial certification has been lowered. The board simply has to be satisfied that the prohibited act did occur and that it’s just and equitable to order remedial certification — a fair process, as recommended by the panel.

As I mentioned, the bill also shortens the requirements for the on-time between an application for union certification and an employee vote. It was ten days. Now it’s going to move to five business days. Five business days — basically, it has to happen in one week. And it also specifies that mail votes can only be conducted if agreed by the both employer and the union and the board is satisfied that exceptional circumstances exist to require a mail-in vote.

Again, both these changes were recommended by the panel. The shorter time frame limits the opportunity for improper interference while permitting sufficient time to arrange the vote. It also allows employees time in a protected environment to decide whether or not to join said union. The change actually aligns British Columbia more consistently with other jurisdictions in Canada, most of which have time limits of five business days or seven business days. Ontario recently made the change to five days, excluding holidays and weekends, which is, in essence, five business days.

To the issue of successorship. Let’s start with what the bill does. The bill now extends the issue of successorship protection to re-tendering of service contracts in specific areas or future areas that may be prescribed by regulation. These include building, cleaning, janitorial services, security services, bus transportation services, non-clinical services in the health care sector and food services.

This goes slightly beyond what the panel recommended. The panel recommended successorship protections to most of these sectors, and government also added the food services outside of the health care sector in addition to the panel’s recommendation. We support that.

A very real example you might imagine is at YVR, Vancouver International Airport. When you have service workers in the food sector being employed by one contractor and then the bidding process comes up again and some other contractor undercuts and wins the bid, claiming it’s going to deliver the services at a lower cost, the only way they can do it is to rehire back the same people at lower wages. This is not fair, and nor is this right.

We don’t believe that the tendering process should undermine the ability of the people who’ve been there for many, many years to actually retain their job or build on their seniority. Ultimately, they are the heart of the food sector, and were they to not be given this protection, a new contract comes in and all their benefits are gone. All their salary negotiations have gone. They have to start again. That’s not right.

The panel actually recommended a measured approach that addresses the problem in an incremental sustainable manner. In fact, their exact words were: “…a measured approach that addresses the problem in an incremental sustainable manner. Successorship protection should be extended to re-tendering of contracts for specified services.” They gave some examples. There may be other examples that we haven’t thought through, but again, you can imagine security services or janitorial services, or, in health care, food services. To have a new contract bid and having the same workers doing the same job just a day later now, suddenly having to take a salary cut because the new contract came in at a lower bid and ultimately, it threw those workers under the bus. If they want their job, they have to take a pay cut. That’s not right.

The employers recommended a conservative measured, approach to any extension of successorship protections. The code, section 35, already provides that collective bargaining rights and obligations are assumed by a successor employer where a business, or part of it, is sold, leased, transferred or otherwise disposed of. The changes outlined in this bill will have a huge impact on the lives of many people. Often, these are people who are working at the lower end of the wage spectrum. That means that these workers will be able to build up fair wages and job security over years of hard work and dedication. They won’t see those stripped away when contracts are re-tendered.

There was a story from the Globe and Mail where a woman named Mary Jane Bayangos, who works as a contractor cleaning B.C. Hydro’s downtown Vancouver headquarters, said the low-wage workers like her desperately need the proposed changes. Mary Jane said in the Globe article that her wages at her previous second job, cleaning nearby St. Paul’s Hospital, temporarily lowered when the complex’s cleaning contract flipped four years ago, and she was rehired to do the same job for less pay. She says this. I quote directly from the Globe: “‘It was very stressful, fearing losing our job and our benefits,’ she told the Globe and Mail. ‘I had co-workers who were close to retirement age. If we lose our jobs, they cannot just look for another job that quick.'” Can you imagine? You’ve been working there for 20 years, and you’re the age of 62. That’s just not fair.

According to the review panel, what they said is: “When contracts are re-tendered, often the same workforce continues to provide the same service to the same customers or clients with the same working conditions at the same location using the same equipment. The existing collective agreement ends, the employees are required to reapply for their jobs, the union is required to organize the workforce, and a new collective agreement must be negotiated.”

Several Canadian jurisdictions have realized long ago that this isn’t right, and they’ve enacted successorship provisions dealing with the contracting out and contract re-tendering. For example, Nova Scotia authorizes a successorship declaration where an employer contracts out or agrees to transfer a bargaining unit in order to defeat or undermine collective bargaining rights or avoid collective agreement obligations for many years. Not currently, though.

Saskatchewan extended successorship to building cleaning, food services and security services provided in a building owned by a provincial or municipal government or in a hospital, university or other public institution. They unfortunately don’t have to it now, but similar to what is being proposed here in B.C.

The Canada labour code provides limited protection for employee remuneration when contracts are re-tendered in security or other designated services. In the case of Ontario, they recently re-enacted successor rights when contracts are tendered and re-tendered in the building cleaning, food services and home care sectors with provisions for extension by order-in-council to other service providers that directly or indirectly receive public funds.

Coming to the issue of education as an essential service, section 16 of this bill removes education as an essential service, instead, keeping only the reference to whether a dispute poses a threat to health, safety or welfare of British Columbians. The panel actually recommended removing education as an essential service. The panel found that the reference to the education programs in the act is very vague and overly broad. Instead, they found that: “Restricting essential services to prevent immediate and serious danger to the health, safety or welfare of B.C. residents is more consistent with the nature and purposes of essential service designations, legislation in other Canadian jurisdictions and the decisions of the Supreme Court of Canada.”

Those were the views of the expert panel that were so succinctly worded in the document that they provided publicly to government and others. Education services may well be…. Frankly, all of us would consider them essential to the betterment of the next generation of citizenship. Aspects of education services would still be captured within legislation. For example, grade 12 exams. They’d still be captured by the board’s interpretation of the term “welfare” in its decision on what constitutes an essential service. That justifies a restriction on striking.

Historical changes. We should note that in 1992, the code amendments adopted the 1992 report recommendations that education be removed as an essential service, and the board subsequently concluded that some elements of educational services could be included in the term “welfare.” For example, final exams for grade 12 students. In 2002, section 72 was amended to expressly refer to the provision of educational programs to students and children.

In conclusion, I would argue that this is a very fair and balanced piece of legislation. It’s focused primarily on implementing the recommendations of the expert panel, and it will better ensure fairness and balance in workplaces in the interests of both workers and employers. However, while these amendments are necessary adjustments, in our view, to existing labour law, they fail to address some of the more fundamental challenges facing our economy. Those will continue, and my colleagues from Cowichan Valley and Saanich North and the Islands will address this more in detail when we get to that section.

What continues to be missing from the conversation is a focus on how we can adapt our labour laws to support people grappling with the changing nature of work. From increases in precarious gig-based jobs to the increasing use of contractors instead of employees, British Columbians are dealing with huge changes to job stability and income security, and our laws, frankly, aren’t keeping up. We continue to look forward to working with government to ensure that we are responding to the changes in workplaces that British Columbians are facing.

I look forward to the deliberations at committee stage of this legislation and supporting the advancement of good, balanced labour code public policy in British Columbia. I want to thank the minister, who was very gracious in his discussions and deliberations with our caucus. I wish to thank the ministerial staff, who we met with frequently, and the many, many thousands upon thousands of British Columbians who emailed us, both in support of and in opposition to the issue of card check versus secret ballot.

I think the legislation has got it right. I’m very pleased to support this. I think British Columbians overall, looking back on this — some won’t be happy, some will be very happy, some will be upset. This is a balanced piece of legislation. We’re delighted to support it. I look forward to further deliberations as we move forward.