LABOUR LAW – LAW 415
LABOUR LAW – LAW 415.001
Steve Patterson
University of British Columbia
Prof. Janine Benedet
Fall 2008
TABLE OF CONTENTS
I. The Contract of Employment…………………………………………………………………….. 5
1. Employee Status……………………………………………………………………………... 5
Languille & Davidov, "Beyond Employees and Independent Contractors"…………. 5
2. Establishing the Employment Relationship…………………………………………………. 6
Seneca College of Applied Arts v. Bhadauria (1981 SCC) ………………………….. 6
3. Terminating the Contract of Employment…………………………………………………… 6
A. Reasonable Notice of Termination…………………………………………………….. 6
Cronk v. Canadian General Insurance Co. (1995 Ont. Dist. Ct.)…………………… 7
B. Summary Dismissal for Cause…………………………………………………………. 8
McKinley v. BC Tel (2001 SCC) …………………………………………………….. 8
II. Introduction to Collective Bargaining Policy……………………………………………………. 9
1. History and Development of Collective Bargaining Policy…………………………………. 9
2. Policy Considerations of Collective Bargaining in Canada…………………………………. 10
Roy Adams, "North America in Comparative Perspective"………………………….. 10
III. Status Under Collective Bargaining Legislation…………………………………………………. 12
1. Introduction to the Collective Bargaining Process…………………………………………... 12
2. Who is an Employee? ……………………………………………………………………….. 13
A. Employees Under the Labour Relations Code – s.1 ……..…………………………….. 13
National Labour Relations Board v. Hearst Publications Inc. (1944 USASC)………. 14
B. Dependent Contractors – s.1……………………………………………………………. 14
Winnipeg Free Press v. Media Union of Manitoba (1999 Man. LRB)……………….. 15
C. Near-Employees………………………………………………………………………… 15
Old Dutch Foods Ltd. (2005 BCLRB) ………………………………………………... 15
3. Excluded Employees………………………………………………………………………… 16
A. Freedom of Association Under the Charter…………………………………………….. 16
Delisle v. Canada (1999 SCC) ………………………………………………………... 16
Dunmore v. Ontario (2001 SCC) ……………………………………………………... 16
Health Services and Support v. British Columbia (2007 SCC)……………………….. 17
B. Groups of Excluded Employees – s.1………………………………………………..…. 17
Children's Aid Society of Ottawa-Carlton (2001 Ont. LRB)………………………….. 18
4. Qualified Trade Unions – s.1, s.31…………………………………………………………… 18
United Steelworkers of America v. Committee of Kubota (1995 Ont. LRB)…………. 19
IV. The Right to Join A Union………………………………………………………………………… 20
1. Introduction – s.24(1), s.24(2), s.24(3) ……………………………………………………… 20
2. Proving An Illicit Motive – s.6(3), s.6(4) …………..……………………………………….. 20
Duscheneau v. Conseil de la Nation Huronne-Wendat (1999 CIRB)………………… 21
3. Non-Motive Unfair Labour Practices – s.6(1), s.6(3)..….…………………………………… 22
Canadian Paperworkers Union v. International Wallcoverings (1983 Ont. LRB)…… 22
Choices Market Ltd. (2001 BCLRB) ………………………………………………….. 23
Westinghouse Canada Ltd. (1980 Ont. LRB) ………………………………………… 23
Kennedy Lodge Nursing Home (1980 Ont. LRB) …………………………………….. 23
4. Alteration of Working Conditions: The Statutory Freeze – s.32(1), s.32(2), s.45(2), s.45(4). 24
Simpsons Limited v. Canadian Union of Brewery Workers (1985 CLRB)……………. 25
Ontario Public Service Union v. Royal Ottawa Health Care Group (1999 OLRB)….. 25
5. Employer Speech – s.8, s.9…………………………………………………………………... 26
United Steelworkers of America v. Wal-Mart Canada Inc. (1997 Ont. LRB)………… 26
Cardinal Transportation BC Inc. (1996 BCLRB) …………………………………….. 28
6. Solicitation on Employer Property – s.95(d) ………………………………………………... 28
Canada Post Corporation (1995 CIRB) …………………………………………….... 28
7. Union Unfair Labour Practices………………………………………………………………. 29
8. Remedies For Interference with the Right to Organize – s.13, s.133, s.134………………… 29
National Bank of Canada and Retail Clerks' International Union (1982 CLRB)…… 30
National Bank of Canada v. Retail Clerks' International Union (1984 SCC)………... 30
R. v. K-Mart Canada Ltd. (1982 Ont. CA).…………………………………………… 30
Overholt and Pinto, "Employer Communication During an Organizing Drive"……... 31
9. The Professional Responsibility of Lawyers………………………………………………… 31
Law Society of Upper Canada v. Rovet (1992 LSDD)………………………………... 31
V. The Acquisition and Termination of Bargaining Rights………………………………………… 31
1. The Wagner Act Model and the Principle of Exclusivity……………………………………. 31
Roy Adams, "Union Certification as an Instrument of Labour Policy"………………. 31
Sanford Jacoby, "Social Dimensions of Global Economic Integration"……………… 32
Harry Arthurs, "Reinventing Labour Law for the Global Economy"…………………. 32
2. The Appropriate Bargaining Unit……………………………………………………………. 32
Metroland Printing, Publishing and Distributing Ltd. (2003 Ont. LRB)…………….. 33
3. Timeliness of Certification and Decertification Applications – s.19, s.33…………………... 33
4. Successor Employers, Contracting Out, and Related Employers……………………………. 34
A. Successor Employers – s.35…………………………………………………………….. 34
Ajax v. CAW-Canada (1998 Ont. CA) ……………………………………………….. 35
B. Contracting Out…………………………………………………………………………. 35
Canada Post Corporation v. CUPW (1990 Can. LRB) ………………………………. 35
C. Related/Common Employers – s.38…………………………………………………….. 36
White Spot v. BC Labour Relations Board (1997 BCSC) …………………………….. 36
5. Alternatives to the Wagner Act Model……………………………………………………..... 37
Baigent, Ready, & Roper: Recommendations for Labour Law Reform………………. 37
VI. Negotiating A Collective Agreement……………………………………………………………… 38
1. The Statutory Timetable – s.45(2), s.11……………………………………………………… 38
2. The Duty to Bargain in Good Faith………………………………………………………….. 39
A. Purposes of the Duty to Bargain – s.11(1) …………………………………………….. 39
Archibald Cox, "The Duty to Bargain in Good Faith"……………………………….. 39
United Electrical Workers of America v. DeVilbiss (1976 Ont. LRB)………………... 39
Graphic Arts International Union v. Graphic Centre (1976 Ont. LRB)……………… 39
B. Content of the Duty to Bargain…………………………………………………………. 39
Canadian Ass'n of Industrial Workers v. Noranda Metal Industries (1975 CLRB)….. 40
United Steelworkers of America v. Radio Shack (1980 Can. LRB)…………………… 40
Canadian Union of United Distillery Workers v. Canada Trustco (1984 Ont. LRB)… 41
Royal Oak Mines v. Canada (Labour Relations Board) (1996 SCC)…………………. 41
C. Disclosure of Decisions or Plans Substantially Affecting the Bargaining Unit………… 42
Westinghouse Canada Ltd. (1980 Ont. LRB) ………………………………………… 42
Brian Langille, "Equal Partnership in Canadian Labour Law"……………………… 42
International Woodworkers of America v. Consolidated Bathurst Ltd. (1983 OLRB).. 42
May 2008 Collective Agreement between GM Canada and CAW-Canada…………... 43
3. Remedies for Violating the Duty to Bargain………………………………………………… 43
Royal Oak Mines v. Canada (Labour Relations Board) (1996 SCC)………………… 43
CAW-Canada v. Buhler Versatile Inc. (2001 Man. LB)………………………………. 44
4. First Contract Arbitration – s.55……………………………………………………………... 44
Yarrow Lodge Ltd. v. Hospital Employees' Union (1993 BCLRB)…………………… 45
VII. Industrial Conflict………………………………………………………………………………….. 45
1. Introduction to Industrial Conflict…………………………………………………………… 45
2. Social Significance and Policy Perspectives………………………………………………… 46
A. Industrial Pluralism and Industrial Conflict……………………………………………. 46
Paul Weiler, "Reconcilable Differences: New Directions in Canadian Labour Law".. 47
B. A Constitutional Right to Strike? ………………………………………………………. 47
Reference Re Public Service Employee Relations Act (1987 SCC)…………………… 47
3. Legal Prohibition of Strikes and Other Economic Sanctions: The Peace Obligation……….. 48
A. Prohibition of Strikes…………………………………………………………………… 48
i) Getting To A Legal Strike Position – s.1, s.54, s.57, s.59, s.60, s.75, s.78…… 48
ii) Actions Constituting a Strike: Common Action or Concerted Activity?.......... 51
CWC v. Graham Cable (1986 Can. LRB) ……………………………………………. 51
Ontario Secondary School Teachers v. Grand Erie School Board (1999 Ont. LRB).. 52
Saskatchewan Wheat Pool v. Grain Workers' Union (1994 Can. LRB)……………... 52
iii) The Strike Prohibition and Sympathetic Action – s.1, s.63…………………... 52
International Longshoremen's Association v. Maritime Employer's Ass'n (1979 SCC) 53
Nelson Crushed Stone v. Martin (1978 Can. LRB)…………………………………… 54
iv) Is Political Protest a Strike? – s.1…………………………………………….. 54
B. Economic Sanctions Available to the Employer – s.1, s.32, s.45(2)………………….... 54
Westroc Industries Ltd. v. United Cement International Union (1981 Ont. LRB)…… 55
4. Legal Forms Regulating Industrial Conflict – s.136, s.137…………………………………. 56
St. Anne Nackawic v. Canadian Paper Workers Union (1986 SCC)…………………. 57
5. Ramifications of the Removal of the Purposive Element – s.1……………………………… 58
BC Public School Employers' Ass'n v. BC Teachers Federation (2005 BCCA)……… 58
6. The Regulation of Picketing…………………………………………………………………. 59
A. Jurisdiction – s.1……………………………………………………………………….. 59
Canex Placer Limited v. Canadian Association of Industrial Workers (1975 BCLRB) 60
B. Primary Picketing – s.65(3), s.66 ………………………………………………………. 60
Harrison v. Carswell (1976 SCC) ……………………………………………………. 61
C. Secondary Picketing – s.1, s.65(1), s.65(4), s.136(2)…………………………………… 61
UFCW v. K-Mart (1999 SCC) ………………………………………………………... 62
Pepsi-Cola v. Local 558 (2002 SCC) ………………………………………………… 63
Canadian Forest Products Ltd. (2006 BCLRB) ……………………………………… 63
Prince Rupert Grain Ltd. v. Grain Workers' Union (2002 BCCA)………………….... 65
7. The Job Rights of Strikers – s.68….…………………………………………………………. 66
R. v. Canadian Pacific Railway Co (The Royal York Case) (1962 Ont. HC)………… 66
C.A.L.P.A. v. Eastern Provincial Airways Ltd. (1983 Can. LRB)…………………….. 67
8. Essential Services – s.72……………………………………………………………………... 68
VIII. The Individual Employee Under Collective Bargaining………………………………………... 69
1. Introduction…………………………………………………………………………………... 69
2. The Primacy of the Collective Agreement…………………………………………………… 69
McGavin Toastmaster Ltd. v. Ainscough (1976 SCC)………………………………… 69
Allen v. Alberta (2003 SCC) ………………………………………………………….. 70
3. The Duty of Fair Representation – s.12……………………………………………………… 70
Steele v. Louisville & Nashville Railroad Co. (1944 USSC) ………………………… 70
Rayonier Canada Ltd. v. International Woodworkers of America (1975 BCLRB)…… 71
K.H. v. CEP (Sask. LRB) ……………………………………………………………... 72
4. Union Security Provisions and the Role of Unions in Society………………………………. 72
Lavigne v. Ontario Public Service Employees Union (1991 SCC)…………………… 73
R. v. Advance Cutting and Coring Ltd. (2001 SCC) …………………………………. 73
IX. Employment Standards Legislation………………………………………………………………. 74
1. Introduction…………………………………………………………………………………... 74
2. Status Under the Legislation…………………………………………………………………. 75
Re Renaud (1999 BC Employment Standards Tribunal)……………………………… 75
3. Hours of Work and Overtime………………………………………………………………... 75
X. Equality in Employment…………………………………………………………………………… 76
1. The Concept of Equality……………………………………………………………………... 76
A. Introduction…………………………………………………………………………….. 76
B. The Relationship Between the Legislatures and the Courts……………………………. 77
Vriend v. Alberta (1998 SCC) ………………………………………………………... 77
C. Human Rights Legislation……………………………………………………………… 77
D. The "Unified" Approach………………………………………………………………... 79
British Columbia v. BCGSEU (The "Meiorin" Case) (1999 SCC)…………………… 79
2. Some Major Employment-Related Equality Issues………………………………………… 80
A. Sex Discrimination…………………………………………………………………….. 80
B. Sexual Harassment…………………………………………………………………….. 80
i) Sexual Harassment as Sex Discrimination…………………………………… 80
Janzen v. Platy Enterprises Ltd. (1989 SCC) ………………………………………... 81
ii) Defining Sexual Harassment…………………………………………………. 81
Shaw v. Levac Supply Ltd. (1991 Ont. Bd. Inq.) …………………………………….. 81
C. Discrimination on the Basis of Disability……………………………………………… 82
Shuswap Lake General Hospital v. BC Nurses' Union (2002 BCCAAA)……………. 82
D. Who is Under a Duty to Accommodate? ……………………………………………… 83
Central Okanagan School District v. Renaud (1992 SCC)………………………….. 83
3. Systemic Discrimination…………………………………………………………………… 84
CN Railway Co. v. Canadian Human Rights Commission (1987 SCC)……………… 84
XI. Labour and Employment Law in the New Globalized Economy……………………………… 85
1. International Labour Organization………………………………………………………….. 85
I. THE CONTRACT OF EMPLOYMENT
1) EMPLOYEE STATUS
- Common law contract of employment covers majority of workers that aren't associated with a union
- ie: workers at Wal-Mart
- This used to be referred to the law of master and servant in the past…not contract law
- Nowadays, common law is modified by certain statutes that give minimum standards of employment
- In the common law, as long as you are abiding by the minimum standards of statutes, employers and employees are free to enter into any employment contract
- However, most employees have no written K…either an oral agreement or given employer terms
- Legally speaking, no one can become the employee of another without making a contract with that person or corporate entity
- The law draws a distinction between:
a) Employees
- Law of the employment contract applies
- If employer is covered under a system such as the Workers Compensation Board or the Human Rights Tribunals, then they receive the benefits but give up their right to sue (Bhadauria)
b) Independent Contractors
- They are engaged in entrepreneurial activity, and the principles of the commercial contract apply
- However, there are all kinds of situations that don't fall into this traditional distinction, so now there are also:
c) Dependent Contractors
- Like an independent contractor, but are treated like employees
- To determine who fits where, courts use many different common law tests, non of which are authoritative:
a) Control Test (old)
- Predominate Q: who has control over the work?
- Indicia include right to determine work, control over where work is done, right to determine where work is done, right to exclusive service, ect…
- This made sense in 1800s and early 1900s because of reliance on mechanized and mass production, but makes less sense in contemporary workplace
b) Fourfold Test (new)
- There are 4 factors from Lord Wright in Montreal v. Montreal Locomotive Works:
i) Who controls? (subsumes the control test)
ii) Who owns the tools? (ownership of means of production)
iii) Who bears chance of profit?
iv) Who bears risk of loss?
- Essentially, either test boils down to 2 questions:
i) Whether the worker is controlled by the employer/client
ii) Whether the worker is economically independent (ie: chance of profit and risk of loss)
Langille & Davidov, "Beyond Employees and Independent Contractors: A View from Canada (1999)
- Statutory definitions of "employee" and "employer" not helpful, and courts had to give meaning to them
- Basic purpose of employee/independent contractor distinction is different in different legal areas:
a) Employment Law
- Distinguishes those who are in need of protection (and have an identifiable employer) from those who are in a position to protect themselves
b) Tort Law
- Control test (nowadays, instead of "direct control", it's more about "administrative control"
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2) ESTABLISHING THE EMPLOYMENT RELATIONSHIP
- Common law assumption is that everybody has freedom of contract
- However, since CL judges are continually reluctant to interfere with freedom of K, legislatures ultimately intervened in employment (and other) context to suppress discrimination
- Next case considers whether this legislative intervention pre-empts subsequent attempts by courts to change CL doctrine in order to right wrongs which they had earlier condoned
Seneca College of Applied Arts v. Bhadauria (1981 SCC)…No independent tort for a failure to hire
F: - A PhD student with 7 years teaching experience applied for a teaching position 10 times
- Although she got contact letters, she was never scheduled for an interview, and she alleges the positions were filled by less qualified non-East Indian people
- Claimed breach of duty not to discriminate and breach of s.4 of Ontario Human Rights Code, and sues for many kinds of damages under a new intentional tort on failure to hire based on racial discrimination…this brings 2 new concepts:
a) Human Rights Code doesn't apply…thus challenging exclusive jurisdiction of Human Rights Tribunal to deal with discrimination complaints
b) Tries to get court to recognize that it would be possible to sue from a failure to hire
I: - Can this new intentional tort be recognized?
J: - No, for school, decision of Ont. C.A. reversed
A: - CL concept of freedom of contract says that parties are free to decide who to contract with, but Human Rights legislation modifies this traditional view
- Court says that the Code already existed and recourse was already available for claimants
- Therefore, must use enforcement machinery under the Code, not claim damages under a new CL tort
- Also confirms that there is no independent action available for a failure to hire
- If it is based on discrimination, there is recourse available through Human Rights Tribunals
R: - Court notes difference between applying a duty of care to a statute (which is OK) v. imposing a common law obligation to give benefits (not OK)
- SCC had an opportunity to reconsider Bhaduria in Honda v. Keys in 2007, but chose not to, so it remains
good law in Canada
- Reasons why a claimant might choose to sue rather than go to the Human Rights Tribunal:
a) Damages – Tribunal often places a low cap for damages
- However, Tribunal can order reinstatement, something the CL courts can't do
b) Delay – Tribunal often takes a long time
c) Screening Process – Tribunal might strike down the claim
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3) TERMINATING THE CONTRACT OF EMPLOYMENT
A) REASONABLE NOTICE OF TERMINATION
- In general, the employer can terminate the employee at any time, for any reason…only legal question is if there is cause
- If there is cause, then the employee can be summarily dismissed
- If there is no cause, then the employer must provide reasonable notice, otherwise it's wrongful dismissal at common law
- Often, it's not in the employer's interest to keep employees working when they have given notice of
termination, as employees might be a bad influence in the working environment
- ie: worried about industrial sabotage or low productivity
- Therefore, employers giving 6 months working notice is rare…they will often pay for dismissal
- Employment Standards Act sets out minimum standards for giving notice
- However, typically CL minimum standards are higher, so terminated employees often go to court to challenge the statutory minimum that the employer offers
- Since the statute is tenure-based and not job-based, while the CL is job-focused and not tenure-focused, the statute has lower minimum standards than the common law (as well as political reasons)
- The following case discusses the basic principles used by the courts in determining what is a reasonable period of notice, considers the controversial issue of the effect of the employee's job status on that determination, and shows how courts will go about awarding damages for wrongful dismissal…
Cronk v. Canadian General Insurance Co. (1995 Ont. Dist. Ct.)…TJ sides with employee; reversed by CA
F: - A 55-year-old clerk, not a manager, lost her job after 29 years of working for the company
- Company admits no cause for dismissal…just a result of downsizing due to economic recession
- Both sides agree some compensation is reasonable, but dispute over amount (9 v. 20 months salary)
I: - Is an employee's position in the company hierarchy a major factor in setting the period of compensation which an employee is entitled to when they are dismissed without cause?
J: - No, for Cronk at trial (reversed by Ont. CA)
A: - Court notes that reasonable notice is to be decided case-by-case, but historically long term managerial employees got longer notice periods than short term or clerk-level employees
- D makes 2 arguments:
a) She didn't really work for 29 years
- No, as she didn't claim for interruptions, and had good reason to interrupt – had children
b) Clerks shouldn't get upper limits of reasonable notice periods because:
i) There's a greater stigma attached
- No, as a job is a job, and the loss is always devastating financially and emotionally
i) The more specialized the position, the smaller number of other similar positions available
- No, as there's no evidence to support this
- Also, education and training make getting new employment easier, not harder
- Here, Cronk's age and situation would make it very difficult to find new employment
- Judgment was reversed by the Ontario Court of Appeal, who argued that the trial judge introduced too much research without giving counsel a proper chance to respond (never went to SCC) because:
a) TJ decision would be an unwarranted departure from precedent and didn't give counsel a chance to respond to his own sociological research
b) Would add too much unpredictability to businesses that want to downsize
c) Re-employability shouldn't be the only factor deciding what the proper notice period is
- Therefore, Ont. CA holds that managers receive more notice of dismissal than low-level employees because it is harder for them to find comparable employment
- B: in times of economic difficulty (like now), not always true that lower-level employees find it easier to get employment later…often they have more trouble
- Other less significant reasons include they are paid more, their dismissals are more embarrassing and harder to explain to future employers, and lower level employees tend to be laid off in large numbers at one time
R: - Courts must balance obligations of business in economic recession and vulnerabilities of long-term low-level employees laid off as a result of downsizing
- After this case, the principle remains that high-level long-term employees get longer notice periods
- Policy: who bears the cost of massive layoffs? Social, through public payments and insurance, or more obligations on employer to pay more severance when mass numbers of employees are released?
- So far, CL has been reluctant to grant protection to terminated employees such as Cronk
- What remedy does a non-unionized employee have if dismissed with cause?
a) Damages for wrongful dismissal
b) To receive reasonable notice of termination
c) Reinstatement (all depend on the circumstances)
- Note that the CL doesn't typically give employees reinstatement…one of the benefits of unionization
- However, complaints brought under human rights legislation gives an exception
- Also, BC workers can get reinstated by being employed in the federal sector where workers are covered by the Canada Labour Code, which gives non-unionized employees the right to a hearing before an adjudicator if they are dismissed
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B) SUMMARY DISMISSAL FOR CAUSE
- Theory of summary dismissal at common law:
- If an employee commits a breach that is severe enough to constitute a repudiation of the employment contract, the employer has just cause for dismissal
- Employers will need to build a case to prove that they have tried to correct employer's behaviour before proving just cause (except in extreme situations)
- SCC has rejected the idea of "near cause"…must be cause for dismissal or not
- Employer can do 2 things if they have just cause:
a) Treat K as terminated and dismiss employee without notice or pay in lieu of notice, and
b) Sue for damages for losses caused by the employee's dereliction of duty (rarely done)
- The next case considers the question of what sorts of conduct on an employee's part are serious enough to give just cause for dismissal
McKinley v. BC Tel (2001 SCC)…Employer has the burden of proving just cause absent extreme situations
F: - P was a chartered accountant at BC Tel with high blood pressure who wanted a lesser job
- Letter from doctor indicated that P should receive treatment if he returned to work
- Suggests that doctor suggested alternate work, and BC Tel used it as just cause for termination
- Trial used "undermine or seriously impair the trust" test; BCCA said no degrees of dishonesty
I: - Does all dishonest conduct justify summary dismissal? Or does it depend on context?
J: - For P (without aggravated damages from trial decision)
A: - Iacobucci J. considers two lines of authority:
a) Context must be considered (McKinley's argument)
- Whether just cause exists for dismissal is one of fact for the jury to decide, factors include:
i) Nature and degree of misconduct
ii) Whether the misconduct violates "essential conditions" of employment K, and
iii) Whether the misconduct breaches an employer's faith in an employee
- This question of fact, which considers the circumstances and nature and degree of dishonesty, was the approach TJ followed
- SCC prefers this, underlying which is a principle of proportionality where a balance must be struck between the severity of the employee's conduct and the sanction imposed
b) Dishonesty in and of itself warrants dismissal without notice (BC Tel's argument0
- It's a matter of law, but all previous jurisprudence dealt with very serious forms of employee dishonesty
- SCC rejects this line of authority, absent of theft, fraud or misappropriation
- Note that "just cause" at common law is a higher standard that requires a fundamental breach of employment relationship, in comparison with statutory proper cause standard in s.6(4)(a)
R: - Court will consider many factors when considering if employer has just cause for dismissal, including the circumstances as well as the nature and degree of dishonesty
- After BC Tel, the option for the employer is to create a contract for employment stating that any dishonest act provides just cause for dismissal
- No statute prevents such a contract from being created
- However, few employers do this b/c they would prefer no written K or negotiation with employees
- B: It's to the employer's, not the employee's benefit, to create such a contract for employment
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II. INTRODUCTION TO COLLECTIVE BARGAINING POLICY
1) HISTORY AND DEVELOPMENT OF COLLECTIVE BARGAINING IN CANADA
- There are 3 possibilities to addressing the imbalance of power between employer and employee:
a) Modify the Common Law
- Judges can interpret common law in favour of employee and equity
- Cronk: this hasn't gotten very far
- Employer-employee relationship hasn't been seen as a fiduciary relationship by the courts
b) Statutory Modification of CL Contract of Employment
- Some are partial schemes like Employment Standards Act, which give minimal standards and allow workers the right to contract out
- Others are comprehensive schemes like the Workers Compensation Act, which you can't contract out of
- Collective bargaining legislation, or unionization, is also possible
c) Constitution
- This includes:
i) The Freedom of Association – s.2(d) of the Charter
ii) The Freedom of Expression – s.2(b) of the Charter
iii) Equality – s.15(1)
- See Health Services case for good description…here's the timeline:
a) 19th Century – No unions
- Unions were seen as criminal for two reasons:
i) Economic – They were seen as a restraint on trade and the free market
ii) Political – They were seen as creating politically unstable environment
- Thus it was an era of legal antipathy to collective bargaining
b) Early 20th Century – Recognition Strikes
- Unions began to go on strike, but they were only recognition strikes where they forced employers to recognize the union as representing the employees
- Many strikes were violent, and employers intimidated employees through violence
- Since law couldn't suppress unions anymore, shifted to efforts to constrain rather than suppress
c) Post-WWII – Pluralist Model
- Temporary wartime statutes passed because they needed workplace stability during the war
- Post-war, they were transformed into permanent statutes
- USA passed the Wagner Act, the first modern piece of collective bargaining legislation in NA
i) Right to join a union
- Created a bargaining unit, but no individual contracts were permissible
- Thus union acts as exclusive bargaining organization for all employees
- However, unionization was not mandatory…certification would be done by secret vote
ii) Right to bargain collectively
- This assumes there would only be one union per bargaining unit
iii) Right to strike
- Only in certain circumstances (ie: if employer failed to negotiate a new agreement)
- Peace obligation – no strikes during term of the collective agreement
d) Current Process on Wagner Act Model
- Unorganized ( Gather support for union ( Secret ballot vote ( Majority gets union certification to represent entire bargaining unit ( Enter negotiation with employer to bind bargaining unit ( Strike if employer fails to negotiate new/modified agreement ( Disputes are dealt with by grievance in front of an arbitrator
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2) POLICY CONSIDERATIONS OF COLLECTIVE BARGAINING IN CANADA
Roy Adams, Industrial Relations under Liberal Democracy: North America in Comparative Perspective
- In sum, there are two justifications for collective bargaining:
a) North America – Economic Justification
- Join together to address an imbalance of bargaining power
- Unionization is seen as a failure of management in the eyes of business
- Even European companies (ie: IKEA) adopt a NA mindset when they open business in NA
- Principle of exclusive bargaining: must bargain with union to exclusion of individual bargaining, otherwise antithetical to the point of union…assumed one union per bargaining unit
- Gave unions right to strike in certain circumstances…ie: once collective agreement expired or employer failed to modify according to employees’ wishes
- Unionization not mandatory, up to employees to vote
- Process: where no union, union comes in where employees decide want collective bargaining
- Union certified and enters into negotiations with ER to reach CA – once CA in force, can’t strike
- If there’s individual complaint, can file grievance
b) Europe – Industrial Democracy
- Takes for granted that workers would want some form of representation in the workplace
- No assumption that you might not join union
- Removes contest around certification b/c don’t need it; thus removes window for campaign, when employer can try to oppose unionization
- Bargaining typically takes place on sectoral basis…in comparison, here, industry-based, more localized than sectoral; i.e. may have different unions within one workplace
- People have choice as to which union to belong to, so potential fragmentation of union action
- Near the end of WWI, there was a movement towards universal suffrage to give every person a vote
- This reasoning was extended to the workplace, as since individuals should have a voice in the government, they should also have a voice in the workplace (ie: Industrial Democracy)
- Two differences in the European mode:
a) Union Membership is Mandatory
- In Europe, there is no assumption that a person would not want to join a union…no choice
- This removes the contest surrounding certification of the union, thus no more employer intimidation surrounding the certification campaign
b) Different Unions in Same Workplace
- Benefit: if you have no choice not to join a union, you can at least pick out which union
- Detriment: leads to fragmentation
- Critiques of the Pluralist/Wagner Act model of collective bargaining:
a) Market based critique
i) Industry Arguments
- Unionization is monopolization/cartelization of labour that creates distortion in market
- Remuneration above marginal profit level, leads to a decreased number of available jobs
- Inflexibility, such as being able to respond to the current economic crisis
- Adverse Impact of strikes – on stuff like foreign investment
ii) Pluralist response to this critique…three main arguments made in defence:
a) Bilateral decision-making
- Most efficient means of resolving disputes (which are endemic)
- Collective bargaining efficient in market sense, as market factors critically important to setting terms of ET BUT essential precondition to market efficiency is an equality of bargaining power
- If there is not equality of bargaining power, virtues of market will never be realized
- Collective bargaining produces most efficacious solutions
- Better solutions if 2 parties work ‘em out instead of 3rd party
- Also, there's a better chance of adherence if parties come up w/ solution instead of having one imposed by a 3rd party
b) Strikes
- These are necessary because they produce the necessary stimulation
- Parties are risk averse, and would rather settle than take chances
- Strikes rarely used – take place in ~ 1 ½% of collective bargaining disputes
- Strikes institutionalize conflict – gets rid of the “bad feelings” about work & lets the employees come to work happy (cathartic view)
c) Efficiencies of collective bargaining
- Seniority provisions = reduction in turnover = administrative cost-saving
- Higher morale = higher productivity
- Note: It will probably be more difficult to use pluralist response as market concerns increase
b) Left Wing/Class Analysis
i) Industry Arguments
- Justice claim is crap…pluralist model never intended to deliver justice to avoid exploitation
- ie: look at the percentage of unionized workers
- Pluralist model developed to regulate & constrain union power
- Concern in 1930s US also in CDA (b/c of Winnipeg 1919 general strike) about “bolshevism”…really about preventing a “Bolshevik uprising”
- Trade unionism as an economic threat to capitalism
- 19th century relied on coercion
- Pluralist model used to control collective bargaining power
- Peace obligation – serious impact on ability to respond to changed circumstances
- Reliance on certification – workers couldn’t simply form a union, had to go to a board and persuade it that they had an “appropriate bargaining unit”
- Underlying this critique:
- Pluralism as a model selected in 1940’s/50’s because it was necessary at the time – this was the most efficient solution for that timeframe
- Capital no longer needs to make this compromise – economic climate so different now that pluralist model won’t be supported by capital anymore
ii) Pluralist Response
- Pluralist model does deliver, imperfections and all
- Justice claim more important today given neo-liberalism & fear of exploitation
- Collective bargaining can be “re-energized” & still work
- Collective bargaining can create stability such that investment more likely, to benefit of all
- Note that BC Labour Relations has a distinct culture compared to other Canadian jurisdictions, summarized in 4 elements:
a) Union Density
- BC has very high levels of unionization – up to 50% of employment (though this has decreased to a little over 1/3 now)
- This in part because much of BC industry is resource extraction
b) Confrontational/Militant
- BC labour has a reputation for being confrontational/militant
- Measured by days of production lost (see BC Health Services)
c) “Radical”
- Two types of trade unionism:
i) Business unionism – acting as agent, maximizing $$ value; only interest is $$
ii) Social unionism – interests beyond $$, extending to social programs, political activities, workers not represented by unions, etc.
- “Radical” = social unionism, BC tends toward this
- BC birthplace of feminist trade union, also of national (explicitly not int’l) steel workers union, hotbed of IWW (international workers of the world)
d) Political Culture
- BC political culture is highly polarized, constant change in gov't, ect…
- Some themes that are changing the face of collective bargaining:
a) Globalization
i) Direct Impacts
- Relocation of employers – more attractive for employerss to relocate; this phenomenon more pronounced in East…affects investment decisions
- Prompted employers to take harder line in labour relations matters – all margins matter more
- Increased reliance on part-time workers
- Two-tiered bargaining…existing employees get more money than new ones (e.g. Safeway)
ii) Indirect Impacts
- Lowering workers’ expectations
- Since early 90’s length of collective bargaining agreements has been increasing (previously, standard term was 2 years)
b) Computer Technology
i) Employment Generally
- Displacement of employees
- Lower skilled, disproportionately females affected by introduction of tech
- However, many technology jobs created (assumed to be higher paid, higher skilled)
- The people who lose jobs because of job disappearing are not ones who get the new jobs
ii) Skills Effect
- Introduction of tech to professional/para-professional almost always leads to skills upgrade and higher remuneration
- Introduction to lower skilled stuff generally leads to reduction of skills (b/c stuff automated)
iii) Quality of Work Life
- Ability of employers to monitor employees more closely
- ie: log off to go pee, they can check your e-mail (resulting privacy concerns)
- Increasing prevalence of home work – 8% right now
- This might have a huge impact on possibility of future of collective bargaining
c) Structural Shift
- New jobs tend to be in service sector
- Characteristics of these jobs – low skilled, low paid, mostly female, level of union density is minuscule, small employers w/ small workforces, ect…
d) Women's Participation
- Increasing since late 70’s
- % of ♀ unionized workers is almost equal to ♂
- ♀ probably will outnumber ♂ soon b/c of increasing unionization of public sector
- Charter did not apply to labour relations, but this trend might mean Charter will start being
e) Trade Union Membership
- Stability – still steady membership in CDA
- Shift from private to public sector unions
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III. STATUS UNDER COLLECTIVE BARGAINING LEGISLATION
1) INTRODUCTION TO THE COLLECTIVE BARGAINING PROCESS
- In Canada, union recognition is the big hurdle for organized labour, and there are 2 main methods of certification that vary according to jurisdiction:
a) Card Certification
- Union must get co-workers to sign union membership cards and pay a small fee to join
- Members are issued a membership card, and if union collects enough (ie: 60%), they present the cards to the Labour Board, and if they are valid, certification are issued
- However, the employer can challenge the validity of the process
- This system is much more favoured by employees, as this can take place without knowledge of the employer and therefore avoid any intimidation tactics by the employer
b) Voting System (BC system)
- Usually preceded by a card certification campaign, but when a certain level of support is gained (ie: 40%), a secret ballot vote is held
- On its face, this is good for the union, but it is much more favoured by employers because they get knowledge of the union organization campaign before the vote is held
- Once certification occurs, there are several features to the collective bargaining process:
a) Employer has a Duty to Bargain
- Case law has much to say about what happens when the employer fail to meet this duty
b) The union bargains on behalf of a Bargaining Unit
- The bargaining unit is a group of employees that do a similar range of jobs
- There are often disputes about what is an appropriate bargaining unit
c) Most unions bargain based on the Rand Formula
- This makes union membership voluntary, but you must pay union dues and must be covered by the collective agreement
- This model is followed to prevent the "freeloader" worker who gets benefits without payment
d) Union signs a Collective Agreement
- This has a set term, but the trend it for longer collective agreements
- This promotes industrial stability, but problematic if negotiations needed mid-contract
- This collective agreement is not passed until the union ratifies it by vote
- Employees lose the right to negotiate individually if this is passed
e) Union workers have various Dispute Methods
- They can strike, or file grievances
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2) WHO IS AN EMPLOYEE?
A) EMPLOYEES UNDER THE LABOUR RELATIONS CODE
- Generally, dependent contractors and employees are entitled to collective bargaining, while independent contractors are not
- Not everyone entitled to bargain collectively…reserved for "employees" only under legislation:
a) Part 1 – Introductory Provisions
1(1) Definitions
"employee" means a person employed by an employer, and includes a dependent contractor, but does not include a person who, in the board's opinion,
(a) performs the functions of a manager or superintendent, or
(b) is employed in a confidential capacity in matters relating to labour relations or personnel
- Process the court follows when determining employee status:
a) Is the individual an employee?
b) Is the individual excluded?
c) Is exclusion constitutional under s.2(d) of the Charter?
- With the common law contract of employment, an employee is contrasted with an independent contractor
- Has increasing importance with increase of freelance, part-time workers
- Even if one is an "employee", they may be excluded from collective bargaining because:
a) Statutory Exclusion
- See Dunmore about excluded agricultural workers
b) Type of Work Done
- Manager v. confidential employee
- Next case gives a statutory purpose test when determining if individuals are in a relationship which the Labour Relations statute is directed…usually applied to people with "melded status"…ie: student-workers
National Labour Relations Board v. Hearst Publications Inc. (1944 USASC)…Economic dependence
F: - Hearst Publications contest "newsboys" claim for collective bargaining rights
I: - Were newsboys in local newspaper chains "employees" for the newspaper under the Wagner Act?
J: - Yes, for newsboys
A: - Court takes a purposive approach
- Tries to look at the substance of working conditions and ask if this is the kind of worker meant to be protected from evils by the Wagner Act
- "The primary consideration in the determination of the applicability of the statutory definition is whether effectuation of the declared policy and purposes of the Act comprehend securing to the individual the rights guaranteed and protection afforded by the Act"
- 2 kinds of evils considered:
a) Economic dependence on employer
- Here, newspaper has total control over working conditions
- 3 factors significant to indicate control:
i) Who has control
ii) Ownership of tools
iii) Chance of profit/risk of loss
b) Inequality of bargaining power
- Controversies over wages, hours, and working conditions may characterize the status of one group as one over the other
R: - Court takes a purposive approach to determine whether employees are economically dependent on their employer
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B) DEPENDENT CONTRACTORS
- In the absence of legislative guidance, decision-makers are tempted to borrow definitions from the common law, such as the "fourfold test" from Montreal Locomotive, which took into account 4 factors:
a) Control of the ownership
b) Ownership of the tools
c) Chance of profit
d) Risk of loss
- However, the test often led to unfair results
- Therefore, Canadian legislatures adopted "dependent contractor" provisions, which extended the reach of the term "employee" for collective bargaining purposes
- On an exam, look to the test, factors, and analyze what factors are most significant
- BC Labour Code:
a) Part 1 – Introductory Provisions
1(1) Defintions
- "dependent contractor" means a person, whether or not employed by a contract of employment or furnishing his or her own tools, vehicles, equipment, machinery, material or any other thing, who performs work or services for another person for compensation or reward on such terms and conditions that he or she is in relation to that person in a position of economic dependence on, AND under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor
- Two policy rationales for including dependent contractors under collective bargaining legislation:
a) Normative claim – it’s fair
- Even though they're not real employees, they're close enough that they look more like employees in how work is performed and are in a position of economic dependency on the employer
- Therefore, legislature should recognize that they are similarly situated to employees
b) Preservation of collective bargaining rights
- Provides a pre-emptive strike against employer attempts to avoid employee characterization
- The next case applies the concept of a dependent contractor (in Manitoba…BC Labour Code similar)
Winnipeg Free Press v. Media Union of Manitoba (1999 Man. LRB)…Nature and degree of control
F: - Newspaper carriers now professional workers, as they must have a car to do early morning deliveries
- Here, newspaper sets the rates, provides a depot for picking up the papers that supervise distribution
- Employees have no control over how much they are charged per paper, route, have supervisors, ect…that make them look like employees
- However, employees have to find their own replacements, can work for other papers simultaneously, drive their own cars, recruit new customers, ect…that make them look like independent contractors
I: - Are the newspaper carriers employees within the meaning of the Labour Relations Act?
J: - Yes, for union
A: - Considers Montreal Locomotive test, but "the most significant test…lay in the nature and degree of detailed control over the person alleged to be an employee"
- Paragraph 92 contains an expansion of the 4 factors, but control is the dominant factor
- Here, "degree of control is substantial," particularly for a job not done on the employee premises
- ie: carriers have no opportunity to increase the rate, employer can order carriers to deliver supplements with no chance of refusal, chance for new customers small
R: - Correct test for determining employee status is the nature and degree of control, especially when determining if an employee is a dependent contractor, not an independent contractor
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C) NEAR-EMPLOYEES
- There are many "near-employees" as well
- These employees are not independent or dependent contractor relationships, but rather where services are provided in return for some form of remuneration
- ie: student nurses, medical residents and interns, articling law students, participants in training programs, and government-funded job creation programs
- Case-by-case, but depends on how closely the particular relationship resembles traditional employment
- However, statutory exclusions to vulnerable workers may be unconstitutional under Dunmore
Old Dutch Foods Ltd. (2005 BCLRB)…Distributors employees if labourers without economic mobility
F: - See supplement discussion problem #1…on the line between employee and dependent contractor
J: - For distributors (judgment was affirmed at every court level)
A: - Board asked 1 Q: Are distributors in the labour market or the product market?
- If they were in the product market, they would be independent contractors, as it would be a monopoly and violate competition law
- If they were in the labour market, they could be dependent contractors
- Old Dutch argued that they didn't pay the distributors
- However, distributors were just a link in the chain who had no economic mobility
- Distributors couldn't sell the asset to anybody, as Old Dutch controlled who did the sales routes
R: - Distributors can be certified as employees in collective bargaining if they operate in the labour market, are controlled by an employer, and have no economic mobility
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3) EXCLUDED EMPLOYEES
A) FREEDOM OF ASSOCIATION UNDER THE CHARTER
- In Canada, certain classes of workers are barred from union organizing
- Certain groups have argued that s.2(d) protects 3 rights:
i) Right to Join a Union (Dunmore says yes)
ii) Right to Bargain Collectively (Health Services says yes)
iii) Right to Strike (not yet)
- In a trilogy of cases in the 1980s, SCC held that these 3 rights were not within the scope of s.2(d)
- Instead, they were creatures of statute, and it wasn't the court's role to impose positive obligations on the legislature to grant these rights
- This was a very narrow view of s.2(d)…however, dissent by Dickson J. held out hope for labour
Delisle v. Canada (1999 SCC)…Setback for worker's rights advocates
F: - Police officers had rights taken away to organize by statute
- Challenged under freedom of association in s.2(d), and equal treatment under the law in s.15
J: - No, for Canada, no positive obligation on Parliament of protection or inclusion
A: - Here, Police weren't found to be a vulnerable group
- However, case gave some hope, as Court said that there might be a case where if a group of workers were very vulnerable, the Court might come to a different conclusion
R: - Section 2(d) does not guarantee access to a particular labour relations regime where the claimants are able to exercise their s.2(d) rights independently
- The Supreme Court's subsequent decision builds on the SCC's finding in Delisle that the RCMP members who were excluded from the protection of the Public Service Staff Relations Act could not be described as a particularly disadvantaged group of workers…
Dunmore v. Ontario (2001 SCC)…Vulnerable workers get right to join a union under s.2(d), but little else
F: - NDP in 1994 pass Act extending trade union and collective bargaining rights to agricultural workers
- In 1995, Harris Conservative gov't repeals all labour legislation passed under the NDP with the Labour Relations and Employment Statute Law Amendment Act ("LRESLAA") and s.3(b) of the Ontario Labour Relations Act ("LRA") specifically excluding agricultural workers
- Farmers challenge under s.2(d) and s.15
I: - Can excluding agricultural workers from a statutory labour relations regime, without expressly or intentionally prohibiting association, constitute a substantial interference with freedom of association?
J: - Yes, for Dunmore, s.2(d) protects right to form a union, represent in front of an employer, and some political activities for vulnerable workers
A: - This is the first breakthrough for workers, but only grants the right to join a union
- However, no (ii) or (iii) rights, and for vulnerable workers only (narrow view of s.2(d))
- Thus only opens door to future re-consideration on right to bargain collectively (Health Services)
- Court grants remedy of suspended invalidity for 18 months
- In response, Ontario gov't passes legislation giving limited rights to agricultural workers
- Fraser v. MacDonald was argued but unsuccessful…new appeal is at Ontario Court of Appeal and is being argued again in light of Health Services decision
R: - Section 2(d) of the Charter gives only vulnerable workers the right to form a union
- In the next case, the SCC expands Dunmore in two ways:
a) Extends s.2(d) to cover the right to bargain collectively as well as the right to join a union
b) Eliminates the distinction between vulnerable and non-vulnerable workers
Health Services and Support v. British Columbia (2007 SCC)…Right to bargain collectively under s.2(d)
F: - Campbell government introduces Health and Social Services Delivery Improvement Act as a response to challenges to BC's health care system (ie: costs, aging population, efficiency, ect…)
- To reduce costs, gov't reduces unionized employees who they claim make too much money
- Gov't wants to contract out, but is stuck with collective agreements…the Act states that all provisions in collective agreements preventing contracting out are void, and future provisions prohibiting contracting out will also be void…this was done without any consultation with unions
- Unions challenge under s.2(d), as workers were vulnerable and they wanted the right to join a union and bargain collectively, and under s.15(1), as most workers were women and argued discrimination
- Unions lost at trial and BCCA…took case to SCC to get the law changed
I: - Do unions have the right to bargain collectively under s.2(d) of the Charter?
J: - Yes, for Health Services union
A: - Court goes through history of labour relations and uses changing conditions as a justification for overturning the trilogy of cases in the 1980s
- The right to bargain in good faith with the employer and the right to be recognized as the exclusive bargaining agent with employees were now guaranteed
- However, this judgment was procedural rather than substantial
- Thus case gives no guaranteed outcome, just the right to bargain collectively
- Also, there is still no right to strike, only to bargain
- Employers also have a duty to bargain and a duty to consult in good faith
- Test: right is violated when there is substantial interference with collective bargaining
- If the government substantially interferes, there will be a Charter infringement
- Test for substantial interference:
a) Importance of Subject Matter
- Does the measure interfere with subject matter important to collective bargaining and the capacity of union members to come together and pursue common goals?
b) Process of Interference with Collective Bargaining Rights
- Does the legislative measure or govt conduct violate the fundamental precept of collective bargaining – the duty to consult and negotiate in good faith?
- Here, must inquire into process by which changes were made and how they impact on the voluntary good faith underpinning of collective bargaining
- If change made through process of good faith consultation, it is unlikely to have adversely affected employee's right to collective bargaining
- Court dismissively rejects s.15 challenge based on sex discrimination
R: - Section 2(d) of the Charter gives all workers, public or private, the right to bargain collectively
- Thus, this trilogy examines the Charter and how it could be used
- SCC was very reluctant to use s.2(d) to give union bargaining rights, preferring to defer to statute
- However, with Dunmore and Health Services, s.2(d) is now seen as giving workers the right to form a union and the right to bargain collectively
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B) GROUPS OF EXCLUDED EMPLOYEES
- Again, definition of "employee" in BC Labour Code:
a) Part 1 – Introductory Provisions
1(1) Definitions
"employee" means a person employed by an employer, and includes a dependent contractor, but does not include a person who, in the board's opinion,
(a) performs the functions of a manager or superintendent, or
(b) is employed in a confidential capacity in matters relating to labour relations or personnel
- There are many groups of employees that are excluded from collective bargaining, including:
a) Professionals
- Physicians, lawyers, dentists, architects, accountants, ect…
b) Managerial Employees
- British Columbia Labour Code, s.29, excludes managers but makes specific reference to the possibility of placing supervisors in separate bargaining units
- There are 2 problems requiring the exclusion of "management" from union participation:
i) Conflict of Interest
- Obvious…dual loyalties between employer and bargaining unit
ii) Undue Influence
- Managers may act in their own interest in trying to persuade others to join, support, or discard a particular union
c) Confidential Employees
- Canadian collective bargaining legislation excludes employees who are employed in a confidential capacity in matters relating to labour relations
- This, like that of managers, is based on the possibility of a conflict of interest
- However, labour boards are reluctant to apply it as rigorously
- The line between manager and employee is not always clear, and it may vary with the approach taken by
the particular labour board
- This is relevant nowadays employers are giving almost all employees managerial functions
- ie: Wal-Mart considers all employees "associates"
Children's Aid Society of Ottawa-Carlton (2001 Ont. LRB)…Low-level supervisors considered managers
F: - Here, hierarchy was employees ( supervisor ( assistant director ( director ( executive director
- Employees were represented by the OPSEU…social worker supervisors and assistant directors apply for certification as a bargaining unit to be represented by CUPE
I: - Were proposed members of the bargaining unit employees within the meaning of s.1(3)(b) of the Ontario Labour Relations Act?
J: - No, they exercise managerial functions because they play a significant role in hiring, discipline, and performance appraisal
A: - Real indicia/factors in assessing managerial capacity of economic power over employees includes "the power to hire, fire, promote, demote, grant wage increases or discipline employees"
- Test: in a labour relations sense, does employer have control over employees in these ways?
This test in BC for managerial authority/status includes factors such as:
a) Discipline and discharge
b) Labour relations input
c) Hiring, promotion, and demotion
- Here, even though supervision is flattened (ie: must consult with higher-ups), there's still supervision
- Not merely supervising work is sufficient, but here they met the test of "effective power of recommendation" in influencing job security
R: - If there is labour relations input, supervisors can be classified as managers even though they are low level supervisors
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4) QUALIFIED TRADE UNIONS
- Trade unions are defined in the BC Labour Code:
a) Part 1 – Introductory Provisions
1(1) Definitions
- "trade union" means a local or Provincial organization or association of employees, or a local or Provincial branch of a national or international organization or association of employees in British Columbia, that has as one of its purposes the regulation in British Columbia of relations between employers and employees through collective bargaining, and includes an association or council of trade unions, but not an organization or association of employees that is dominated or influenced by an employer"
b) Part 3 – Acquisition and Termination of Bargaining Rights
31 Prohibited employee associations
- "An organization or association of employees
(a) the formation, administration, management or policy of which is, in the board's opinion, dominated or influenced by an employer or a person acting on his or her behalf, or
(b) that discriminates against a person contrary to the Human Rights Code,
must not be certified for the employees, and an agreement entered into between that organization or association of employees and the employer is deemed not to be a collective agreement"
- Thus, in British Columbia, unions must have:
a) Basic Purpose Must be Labour Relations
- Requires a constitution ratified by its members through a democratic process
- Some form of dues payment and membership system is required
- Cannot be subject to employer interests or control
b) Local Flavour
- BC Labour Code, s.1: union must have a local character
- All officers must be elected in BC…out-of-province labour unions can't represent BC employees in collective bargaining unless they form a BC branch
- Additionally, a trade union will be disqualified from association if:
a) Constitution discriminates on a prohibited ground contrary to the Human Rights Code
b) Organization is influenced or dominated by employers
- Note that a successful vote to certify the union occurs when 51% of ballots vote in favour of the union
- Once a quarum level of employees vote, they only need 51% majority of ballots cast
- ie: if a big bargaining unit, and only 3 vote, doesn't count
- If 100 employees, 80 vote, and they get 42 votes (not 51 votes), it's OK, as they only need majority support of the number of employees that vote, not in the bargaining unit
- Predicated on fact that union will have to get enough cards signed to get to a vote in the first place
- Significant because once a trade union establishes bargaining rights, the employees lose many common
law rights, including:
a) The right to sue on his/her employment contract
b) The right to set terms and conditions of employment by individual dealings with the employer
United Steelworkers of America v. Committee of Kubota (1995 Ont. LRB)…Union form requirements
F: - An employee association existed for 20 years, which was recognized by the employer, prior to the union trying to take over
I: - Does the "committee" meet the form requirements to be "an organization of employees" under the Ontario Labour Relations Act?
J: - No, for Steelworkers, as the "committee" is created by the employer, intimately engaged with the employer, and all functions are supported by the employer
A: - Here, no constitution, no union dues, no democratic process, ect…
- Without the features of a real union, and no structure for member's participation, it can't exist
R: - An employee association that doesn’t meet the form requirements of a union won't be certified
- Also note that in Graham Cable (1987 Can. LRB), the Canada board held that a particular association of employees was not a trade union within the meaning of the Canada Labour Code because its true aim was not to regulate employer/employee relations but merely to get the incumbent union out
- In the alternative, the board found that there was enough employer influence to impair the fitness of the association to represent the employees
- This case raises the question of voluntary recognition:
- Can an employer simply voluntary recognize an employee association?
- Yes they can, as the BC Labour Code has provisions for voluntary recognition
- However, the concern is over undue employer influence
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IV. THE RIGHT TO JOIN A UNION
1) INTRODUCTION
- This regards the protection afforded by the law to the right of employees to choose collective representation by a trade union
- Current legal safeguards were developed against a historical backdrop of strenuous and sometimes violent resistance by employers (and gov't) to union organizing elements
- In BC, s.24 of the Labour Relations Code:
a) Part 3 – Acquisition and Termination of Bargaining Rights
24(1) Representation vote required
- "If the board receives an application for certification under this Part and the board is satisfied that on the date the board receives the application at least 45% of the employees in the unit are members in good standing of the trade union, the board must order that a representation vote be taken among the employees in that unit"
(2) - "A representation vote under subsection (1) must be conducted within 10 days from the date the board receives the application for certification or, if the vote is to be conducted by mail, within a longer period the board orders"
(3) The board may direct that another representation vote be conducted if less than 55% of the employees in the unit cast ballots"
- Thus, once 45% of employees sign certification codes, you can apply to the labour board
- A vote will then be held, and it must be held within 10 days of approval
- Union tries to sign up employees as fast as possible so the employer doesn't know about campaign
- During this period of time during organization that most unfair labour practices are committed
- Board often has a difficulty to provide adequate remedies to employees who were victims of unfair LP
- Employer sometimes suspends/terminates union organizers, and while they are guilty of ULP, the actions have a chilling effect on the union vote…therefore employer may see action as worth the cost
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2) PROVING AN ILLICIT MOTIVE
- Most labour relations legislation prohibits employers from dismissing or discriminating against an employee because he or she is a member of a trade union
- ie: s.94(3) of the Canada Labour Code
- In most jurisdictions, unfair labour practices require an anti-union animus, and the employer has the burden of proof to prove an absence of anti-union motive
- Below, in the Dushesneau case, the lesson for employers is don't wait to act on employee misconduct, as the Board will look for employers who take advantage of union drive to dismiss employees
- This is the situation for most jurisdictions in Canada…however, in BC, due to its highly politicized nature, has a unique situation
- Currently, Liberal party changed legislation to make certification very favourable to employees
- However, left some provisions quite favourable to unions from the NDP once unions become certified (ie: BC doesn't allow replacement workers during a strike)
- In BC, s.6(3) of Labour Relations Code:
a) Section 6 – Unfair Labour Practices
(3) Unfair Labour Practices
- "An employer or a person acting on behalf of an employer must not
(a) discharge, suspend, transfer, lay off or otherwise discipline an employee, refuse to employ or to continue to employ a person or discriminate against a person in regard to employment or a condition of employment because the person
(i) is or proposes to become or seeks to induce another person to become a member or officer of a trade union, or
(ii) participates in the promotion, formation or administration of a trade union"
(4) Unfair Labour Practices
- "Despite subsection (3), except as expressly provided, this Code must not be interpreted to limit or otherwise affect the right of the employer to
(a) discharge, suspend, transfer, lay off or otherwise discipline an employee for proper cause, or
- This "proper cause" requirement repeats itself throughout the act
- Nothing in Act limits the employer's right to dismiss an employee with proper cause
(b) make a change in the operation of the employer's business reasonably necessary for the proper conduct of that business"
- Therefore, while s.6(3) gives specific prohibitions on discriminatory behaviour or discipline against unionist employees, s.6(4) qualifies the prohibitions
- This means that with proper cause and with a lack of anti-union animus, an employer can discharge an employee during a union organizing campaign
- These anti-union animus and proper cause provisions must be read together
Duschesneau v. Conseil de la Nation Huronne-Wendat (1999 CIRB)..Anti-union animus proximate cause
F: - Employee filed complaint pursuant to s.97 of the Code alleged he was suspended and dismissed because of his union organizing activities
- Employer says Duscheneau, responsible for home assistance program to disabled community members, devised a scheme to pay himself from community funds for service without their knowledge
- ie: forging cheques, personally cashing cheques, authoring payment for unrendered services
- However, criminal charges of fraud and forgery were dismissed, and Dusheneau claimed employer tacitly approved of his dual administrative and performance duties
I: - Can an employer be in violation of labour relations legislation when they fire an employee and anti-union animus is only a minor cause?
J: - Yes, for P
A: - If an employer acts out of anti-union animus, even if it is a proximate cause of dismissal, they will be found to have committed an unfair labour practice
- If complaint is brought by an employee, the complaint itself is evidence that failure to comply with the labour statute occurred
- If employer alleges that failure didn't occur, burden of proof is on the employer
- Just cause for dismissal not significant…only want to know if anti-union animus was a cause
- This is significantly different than the BC approach with s.6(3) "proper cause" approach
- Here, on balance of probabilities, not likely that suspension/termination had nothing to do with complainant's union activities
- He had been helping Picard for years, but supervisor only alerted during union certification drive
- Notes that indefinite suspension without pay had a chilling effect on the organization campaign
- If an employee discharge is in any way tainted by anti-union animus, the employer will be charged with unfair labour practices
- Thus anti-union animus need only be a cause, not the only cause
R: - Even if anti-union animus is incidental reason for ER’s conduct, ER will be found to have committed an unfair labour practice; where there is a complaint of anti-union animus, it’s rebuttable presumption and the employer has burden of proof on balance of probabilities to show that there was no anti-union motivation
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3) NON-MOTIVE UNFAIR LABOUR PRACTICES
- The same section of BC Labour Relations Code relate to this topic.
a) Section 6 – Unfair Labour Practices
(1) Unfair Labour Practices
- "Except as otherwise provided in section 8, an employer or a person acting on behalf of an employer must not participate in or interfere with the formation, selection or administration of a trade union or contribute financial or other support to it"
- This is much broader than s.6(3)…and seems to suggest that perhaps anti-union animus is not needed here
- Instead, s.6(1) points to effect of employer's conduct rather than it's motive
- Issue is whether an illicit motive is an element of the offence of unfair labour practices in s.6(1)
- If not, does s.6(1) outlaw any employer conduct that has the effect of dissuading employees from unionizing or of otherwise dampening the union's activities, no matter why the employer engages in that conduct? (yes…see Canadian Paperworkers)
Canadian Paperworkers Union v. International Wallcoverings (1983 OLRB)…Can't fire by mistake
F: - 9 strikers were dismissed after a violent incident between them and strikebreakers
- 3 punched/kicked strikebreakers; 3 were at the restaurant but didn't participate in the attack; 2 weren't in the restaurant at all; and 1 attacked a van
- Employer also denies union's request to submit the dismissals to arbitration, since the collective agreement expired during the strike
- Union files unfair labour practice complaint under s.64 of Ontario Labour Relations Act because of the rush to judgment in firing all 9 workers, regardless of their participation in the incident
I: - Does s.64 of the Act outlaw any employer conduct that has the effect of dissuading employees from unionizing, no matter why the employer engages in that conduct?
J: - Kind of, all but the 3 attackers were reinstated
A: - In the absence of anti-union motive, it is not a violation of the section if the employer's conduct simply affects the trade union in pursuit of an unrelated business purpose
- However, once such conduct has been established, the burden of proof is on the employer to come forward with a credible business purpose to justify the conduct
- Board notes if we completely reject proof of anti-union motive, statute is meaningless…however, if there is a motive requirement, the statute is too narrow (also relevant in BC s.6(3))
- Therefore, two approaches suggested:
a) Balancing approach – Incidental infringment (affect of union)
- If there is no direct evidence, Board must balance interests of employer and employee in deciding to infer an improper motive on the evidence before it
- Ask what the effect of the employer's actions on the union, and the effect must be more significant than merely incidental to amount to an unfair labour practice
b) Motive Requirement – Indirect Motive (foreseeability of employer)
- If consequences are foreseeable, board can infer motive of anti-union animus
- However, board rejects both approaches, and concludes that an employer that dismisses employees mistakingly/erroneously amounts to an unfair labour practice
- Remedies were different for each group of participants:
- 3 punchers/kickers involved in assault were discharged
- Guy who damaged van reinstated w/o back pay and req’d to reimburse company for damages
- 2 employees not present were reinstated with back pay
- 3 employees present but not involved in assault were reinstated but w/o back pay b/c they refused to testify before Board (testimony could have been used against them); thus lost many months of salary
R: - An employer that erroneously dismisses employees is guilty of unfair labour practices
Choices Market Ltd. (2001 BCLRB)…Employer successfully firing employee with "proper cause"
F: - Employer operates chain of supermarkets with long-standing strict anti-theft policy
- Union began organizing drive at one of the stores
- A loss prevention officer, posing as an employee, observed a union organizer consume a burrito and juice during work without paying…however, videotape showed nothing
- Union argues employer breached s.6(3)(a)(b) and (d), s.9, and s.32 of the BC Labour Relations Code
I: - What will be the arguments for the employer and the Union?
J: - For Choices market
A: - Arguments for each side:
a) Employer – Proper Cause
- Videotape evidence of him during shift not purchasing anything, and witness
- Security firm wasn't told of organizing drive or to watch particular employees
- Strict anti-theft policy was in place prior to the union organizing drive
- Proper cause threshold is already pretty high, so we should be able to meet it
b) Union – Anti-Union Animus
- Only store getting surveillance was the union organizing store
- Notice on bulletin board advertised that organizing campaign was underway
- Evidence of purchasing not sufficiently reliable…not seen paying or stealing on videotape, so the security guard must be lying or mistaken
- Board holds that even though the security program was new, there was no evidence that the security guard was told to target union organizers, there was an anti-theft policy in place, and he was dismissed
R: - Demonstrates that s.6(3) of the BC Labour Relations Code gives prepared employers more freedom to deal with workers during union organizing campaigns than other jurisdictions
- The next two cases deal with the question of whether an employer can contract-out its services or engage in "runaway shop" practices in the face of an economic crisis (maybe relevant now???)…
Westinghouse Canada Ltd. (1980 Ont. LRB)…In economic difficulties, employer must consult with union
F: - Employer engaged in "runaway shop" practices, where they closed a plant with a union, then opened new plants in areas with little trade union presence
- They never mentioned this possibility while engaging in collective bargaining with the union
I: - Was the employer guilty of unfair labour practices?
J: - Yes, for union
A: - Board held that an employer advancing an economic/profit justification did not overcome the anti-union animus in the decision to move the plant
- Also significant was the active deception of the union and the active running away from union areas
- Shows that an employer may discontinue operations for cause so long as the decision is not motivated by anti-union animus...just here, employer failed to act as such
R: - If an employer is faced with an economic crisis caused by collective bargaining related factors (wages, benefits, seniority, work practices, ect…), seeks relief from the union, and is met with an unsympathetic response, it may be possible for the employer to remove himself from the collective bargaining relationship; however, here, no evidence the employer ever raised its concerns with the trade union prior to making its decision to relocate
- There is no duty to disclose unless plan has been finalized
- Most jurisdictions don’t provide for mid-contract bargaining when circumstances change (BC does)
Kennedy Lodge Nursing Home (1980 Ont. LRB)…Employer successfully contracted out all services
F: - To save money, employer contracted out entire union staff
I: - Was this an unfair labour practice?
J: - No, for employer
A: - Board held that a desire to save money and thereby increase profits is not equivalent to anti-union animus simply because the money saved would otherwise have been paid as wages to employees in the bargaining unit
- Difference is that in Westinghouse, the employer actively ran away from the union and deceived them
- Here, in Kennedy, the employer simply reacted to economic realities
R: - For the union to successfully make an unfair labour practice claim in a contract-out situation during hard economic times, they have the burden of proving improper motive, deception, or foreseeability on employer's part so great that some kind of negotiation is needed on the question
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4) ALTERATION OF WORKING CONDITIONS: THE STATUTORY FREEZE
- In the previous section, the case law stated that employers have the right to set terms and conditions of employment, as long as these terms are not tainted with anti-union animus
- However, there are two exceptions during the statutory freeze periods
- The freeze prohibits the unilateral alteration of terms and conditions of employment during periods when the union is particularly vulnerable
- Goal is to restrain employer conduct that may have the effect of undermining the union's organizing or negotiating efforts
- BC Labour Code:
a) Part 3 – Acquisition and Termination of Bargaining Rights
32(1) No change during certification
- "If an application for certification is pending, a trade union or person affected by the application must not declare or engage in a strike, an employer must not declare a lockout, and an employer must not increase or decrease rates of pay or alter a term or condition of employment of the employees affected by the application, without the board's written permission"
- This appears to give employer, who can't justify action under "business as usual" or "reasonable expectation" test, to be able to go to the Board and get approval for actions
(2) - "This section must not be construed as affecting the right of an employer to suspend, transfer, lay off, discharge or otherwise discipline an employee for proper cause"
- Again, employers have "proper cause" standard to meet
b) Part 4 – Collective Bargaining Procedures
45(2) Notice to bargain collectively
- "If notice to commence collective bargaining has been given and the term of a collective agreement that was in force between the parties has expired, the employer or the trade union must not, except with the consent of the other, alter any term or condition of employment, until
(a) a strike or lockout has commenced,
(b) a new collective agreement has been negotiated, or
(c) the right of the trade union to represent the employees in the bargaining unit has been terminated, whichever occurs first"
45(4) Notice to bargain collectively
- "This section must not be construed as affecting the right of an employer to suspend, transfer, lay off, discharge or otherwise discipline an employee for proper cause"
- Thus, according to these 2 sections, there is a a 2-stage "statutory freeze"
a) First Stage – Certification Freeze – s.32
- Begins when an application for certification is filed
- Ends when the application is dismissed or soon after the certificate is issued (usually short)
- Simpsons – Intent of certification freeze is about preventing employees from being intimidated to join a union and influencing the certification vote
b) Second Stage –Bargaining Freeze – s.45(2)
- Begins when notice to bargain is given
- Ends when parties are in a legal strike or lockout position, or agreement is reached (often long)
- Royal Ottawa Health Care – Intent of bargaining freeze is about providing a firm starting point for collective bargaining and giving the parties "breathing space" while the employer and employee negotiate a first collective agreement
- There are two tests usually applied to assess the validity of changes the employer makes during either of the two statutory freeze timeframes:
a) "Business as before" test - Traditional
- The business as usual rule doesn't prohibit all changes…it simply permits changes that the employer has historically done
- However, this doesn't allow response to changes, particularly during bargaining freeze stage when the negotiations may be long-term
b) "Reasonable expectations" of employees test – New
- See Simpsons, where board used this test to determine lay-offs were OK but contracting out was not based on what a reasonable employee would expect
- Thus no leading case here…each board uses policy to decide what's good to apply in the situation
- The next case shows if you're going to contract out as an employer, you must release control…
Simpsons Limited v. Canadian Union of Brewery Workers (1985 CLRB)…Reasonable expectations test
F: - Department chain was in financial difficulty, so they laid off and contracted out employees just before the union gave the employer notice to bargain (stage 1)
- Union alleged a violation of s.79(2) of Ontario Labour Relations Act regarding statutory freeze
I: - Did the employer alter working conditions illegally during the statutory freeze period?
J: - Yes on contracting out (but lay-offs were OK)
A: - Board finds that there is no anti-union animus and that there were valid business reasons
- Board doesn't focus on "business as before" approach, but rather focuses on the "reasonable expectations" of employees approach with first-time events
- Objective test: what would a reasonable employee expect to constitute his or her privileges (or "benefits") in the specific circumstances of that employer?
- "Business as before" test not helpful where the conditions change how the employer operates
- Here, there were 2 actions:
a) Lay-offs
- Here, it was reasonable for employees to expect an employer to respond to a significant downturn in the business with layoffs (or terminations) even where such layoffs were resorted to for the first time during the freeze
- Economic justification must be proven where relied on, and there must be an absence of anti-union animus, both of which were met here
b) Contracting Out
- During the freeze, unless there was a practice of contracting out, the employer's right to contract out is limited by the employees' privilege of performing the work if the work is to be performed for the benefit of the employer's operation
R: - Board looks at the reasonable expectations of employees when determining if employer committed unfair labour practices
- The next case reconsidered the traditional tests in the post-certification context only…
Ontario Public Service Union v. Royal Ottawa Health Care Group (1999 OLRB)…Certification freeze
F: - Hospital reduced employee benefits during negotiation of a collective agreement (stage 2)
- Hospital argues it was acting bona fide, carrying on "business as usual" in modifying employee's benefits as it had done in the past in response to serious budgetary pressures
I: - Did the hospital's actions violate the statutory freeze?
J: - Yes, for union
A: - Board of critical of both the "business as before" and "reasonable expectations" test, as both are slippery and difficult to apply
- Mischief to which the freeze is directed is an unexpected shift in the starting point or basis for bargaining, during the initial stages of that bargaining
- Thus purpose of freeze is to provide firm starting point for negotiations
- Can't be interpreted in a way to give employers a green light to cut benefits during freeze
- Thus, in the post-certification context, the 2 tests must be augmented by this third approach that reads freeze provisions in light of need to bolster bargaining process, reinforce status of union as bargaining agent, and provides a firm (if temporary) starting point for collective bargaining
R: - Employers can't cut benefits during the beginning of negotiations, and the board introduces the "starting point for negotiations" test as an alternative to the traditional tests on employer changes during the statutory freeze
- Thus 3 categories of employer actions discussed so far in this section:
a) Discipline of trade union
- Requires intent of anti-union animus, which is presumed unless employer displaces it
b) Dismissing employees
- Struggles with motive, and none makes provision useless, but presumed makes it too narrow
- In BC, 'a' and 'b' have a proper cause requirement, added in 1993, which changes things because although the employer can't discharge due to anti-union animus, it can still discharge employees if they have proper cause (Choices Market)
c) Statutory freeze
- Applies both after notice is held, and after bargaining begins
- Labour boards provides different tests, such as "business as usual", "reasonable expectations", and "starting point for negotiations" tests
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5) EMPLOYER SPEECH
- "Employer speech" means any communication, either oral or written, regarding the union organizing drive
- Issue here is that during a union organizing campaign, management representatives often want to communicate with employees, with a view to persuading them not to opt for unionization
- What should an employer be allowed to say in those circumstances?
- Sensitive area, because since employers have the power, almost anything they say may be coercive
- Most legislation in Canada expressly recognizes a right of employer free speech
- However, usually added is the qualification that the employer must not use threats, promises, or undue influence
- Some jurisdictions have legislated that the employer can say almost nothing about unionization
- BC is again at the far end of the spectrum in protecting the employer in expressing union views
- Giving employees a pay raise, holding a captive audience meeting, and sending employees a letter opposing unionization all may be permissible during an organizing campaign depending on context
- The next case shows that captive audience meeting can be OK/not OK depending on the content of the meeting and if there is a coercive/intimidation element
United Steelworkers of America v. Wal-Mart Canada Inc. (1997 Ont. LRB)…Coercion is case-by-case
F: - Secret card drive at a Wal-Mart store in Windsor by Steelworkers Union
- Between Apr 14 and Apr 27, it was successful, but then an associate advised Johnston, the store manager, who then told Borean, the district manager, who then told the labour relations specialist, Ratzlaff, of the situation along with the other corporate managers
- On Apr 27, Borean came to the morning meeting, where there were conflicting reports about what was said, but he hung around and circulated throughout the store speaking to employees that day
- On Apr 30 meeting, an employee Passador read a controversial anti-union speech that Borean didn't distance the company from or provide union organizers a chance for rebuttal
- Over the next 5 days, corporate managers repeatedly approach employees to answer questions, along with setting up a question box
- Store declined to comment on consequences, stating it would be inappropriate for Wal-Mart to comment if the store would close if the union was successful, or whether or not this would be illegal
- Johnston had private unsolicited conversations with two associates about union detriments
- On May 4, all corporate officers were at the morning meeting, and indicated "it would be inappropriate to comment on what might or might not happen" when asked about store closure
- A further publication of employee Q's with same answer generated more fear
I: - Was this permissible employer speech during the union organization drive?
J: - No, for Steelworkers
A: - Borean attending the first Apr 27 was not a violation of the Act, but it set the tone for the next days
- His presence at the meeting was unprecedented and sent message that the meeting was important
- There were two problems with Borean and Johnston's response to Passador's speech:
a) Company didn't distance itself from comments
b) Didn't allow rebuttal to union organizers…said store had to open at 9am
- In allowing these views to be aired, it had a chilling effect on the organizing drive
- Board emphasizes the reasonable employee test:
- Q: what message would the average or reasonable associate hear upon listening to the speech?
- Here, associate listening would conclude she had job security concerns if union was successful
- Presence of 4 corporate managers circulating through stores was also a violation
- They were able to discover who the union organizers were
- If you constantly solicit questions in this environment of organization and managers hanging around, you must answer all of them, including the most important question about closure
- Again, reasonable employee approach would conclude that the average associate would conclude that the store would close if the union got in
- As a remedy, the Board automatically certified the union, the biggest remedy the Board can grant
- Since the campaign was so disrupted, the Board didn't want it to go to a employee vote
- B: Case might not have been decided the same way in BC, as Board didn't say how Wal-Mart could have answered the question and not have committed an unfair labour practice
- B: Since it was illegal to say that the company would close (even though it may have been the truth), Wal-Mart either had to lie or else not answer the question at all
- B: As a result of this case, the Ontario gov't removed this remedy power from the Labour Board
R: - Repeatedly engaging employees in conversation about the union goes beyond mere assistance to employees and becomes a tactic of intimidation or undue influence
- The remedy here was automatic certification, which in theory sounds great
- However, the problem is that the union's power as a bargaining unit is weakened
- Thus Wal-Mart result was: automatic certification ( unsuccessful bargaining ( decertification
- B: Wal-Mart may not have been decided the same way in present-day BC, since BC Code has 2 parts:
a) Section 8 – Right to Communicate
(8) - "Subject to the regulations, a person has the freedom to express his or her views on any matter, including matters relating to an employer, a trade union or the representation of employees by a trade union, provided that the person does not use intimidation or coercion"
- See s.9 below about coercion
- Supplement article (p.33):
- Before amendment, there was a limited right to communicate, as employers could make reasonably held statements about the business but not statements about unionization
- Amended in 2002 to give employer more freedom of speech, as now employers can say they are against the union certification campaign, as long as no coercion
- RMH Teleservices International Inc: In order to determine whether communications are coercive, they must be viewed contextually and in light of their cumulative effect
- In BC, Wal-Mart may have been reversed because Passador's speech wasn't solicited by management, and the Q & A sheet would be debatable if coercive or not
b) Section 9 – Coercion and Intimidation Prohibited
(9) - "A person must not use coercion or intimidation of any kind that could reasonably have the effect of compelling or inducing a person to become or to refrain from becoming or to continue or cease to be a member of a trade union"
- The following case is from Discussion Problem #3, and again articulates BC's employer-friendly approach
Cardinal Transportation BC Inc. (1996 BCLRB)…Arguments for/against limits of employee speech
F: - Union argues that employer violated s.6(1) and s.6(3)(d) of the BC Labour Code regarding interfering with the employee's right to join a union, as well as s.9 regarding coercion
I: - Is the employer liable under the Code? Do they have a legitimate defence under s.8 of the Code?
A: - Vicki Enders made statements to employees during org anizing campaign, which included:
a) Problematic
- If the yard unionized, they might not be given any summer charter work…job security
- Also said the company could easily close it and move its operations to other yards
b) Free Speech
- Teamsters previously tried to organize the depot and failed
- Unions were good in their time, but didn't serve any purpose now (this is contextual)
- Other issues are who is making the statements, how many statements, and how much influence
- Employer would argue that Vicki, as Area Coordinator, had no disciplinary or management functions, and therefore didn't represent the views of management
- Employees would argue that she was perceived as management by the reasonable employee
- The letter/flashlight combo might also form the basis of an unfair labour practice claim
- However, it's pretty standard, even in provinces with stricter labour codes than BC
- Depends on context as well…if it's presented in a very visible way in a captive audience setting such as a meeting, it might be found to be intimidating or coercive
- Captive Audience Setting: communication that the employee cannot turn away from
- In BC, there's no rule that these settings are automatically coercive, but BC labour boards will be more likely to find such practices unfair
- See Wal-Mart…morning meeting had union messages that attracted extra scrutiny by board
R: - On an exam, note that BC has a unique employer-friendly approach, and that you recognize why practices may be problematic and articulate principles why the practice crossed the line
- BC is the most friendly jurisdiction for these kinds of meetings, and mere fact that employees must attend a captive audience meeting has not been held to be an unfair labour practice per se
- However, it raises the biggest red flag of all methods an employer may use during a certification campaign (ie: giving employees a pay raise, sending a letter opposing unionization, ect…)
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6) SOLICITATION ON EMPLOYER PROPERTY
- Since the workplace is the usual location for union organizing, when can outsiders solicit union support?
- General rule is outside people don't have the right to solicit on employer property during working hours and circulate union materials
- Also, workers are limited to solicitation on non-working hours in non-working spaces
- Employers can't ban employees from wearing union insignia, but can ban bulletin-board material
Canada Post Corporation (1995 CIRB)…Employees working for employer at several locations can solicit
F: - Letter Carriers Union of Canada (LCUC) went on a raiding campaign to replace the Canadian Union of Postal Workers (CUPW) as bargaining agent for Canada Post employees nationwide
- LCUC solicited employees at different workplaces on employer property during non-work hours
- Employer denied this access to LCUC organizers and makes 2 defences:
a) Existing security policy restricting employee access to CPC facilities for any non-work purpose
b) Obligation to act in a neutral manner when two unions are competing to represent a group
I: - Do employees, who work for an employer operating at several locations, have the right to solicit membership of their co-workers in the same bargaining unit during non-working hours at the company's work locations other than their own workplace?
J: - Yes, subject to security guidelines already in effect
A: - s.95(d) does not prohibit organizes from signing up members in a trade union at the workplace outside working hours
- Membership solicitation is an integral part of expression of fundamental right of freedom of association provided for by the Code and should be allowed and protected
- Raiding also isn't prohibited…therefore, there is a prima facie violation
- Board applies a test to determine if violation is justified:
- Can the employer demonstrate any valid and compelling business reasons for restricting access?
- ie: any detrimental effect on entrepreneurial interests such as negative customer reaction, security, safety, or other business considerations
- Here, no evidence of any detrimental effects
- Thus security measures OK, but restricting employee access to employees at other branches goes too far
R: - Prohibiting bargaining unit members from other locations of work and meeting with fellow employees during non working hours and in non-working locations violates the statute unless there are "valid and compelling business reasons for restricting access"
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7) UNION UNFAIR LABOUR PRACTICES
- The law forbids trade unions from coercing employees to become members, in much the same way as management is forbidden to exert pressure in the opposite direction
- However, union unfair labour practice cases are much less common than employer unfair labour practice cases
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8) REMEDIES FOR INTERFERENCE WITH THE RIGHT TO ORGANIZE
- Remedies are particularly important in labour-management relations because:
a) Peculiar psychological dimensions of the employment relationship
b) Time has great tactical importance in a union organizing campaign
c) Parties do not sever their relationship when the litigation is over
- BC Labour Relations Code s.13 and ss.133/134 list the amount of remedies a BC Labour Board can do
- Generally, when an employer engages in an unfair labour practice by suspending or dismissing an employee, the normal remedy is reinstatement with compensation for lost wages and benefits
- However, this relief reaches only the harm done to the individual employee, yet the employer's unfair labour practice may have discouraged other employees from supporting the union
- Therefore, Labour relations boards have fashioned a variety of remedies designed to counteract this sort of collective harm
- Remedies available in the jurisdiction of the Labour Board:
a) Damages
- If employer interferes, Board can award compensatory damages for costs of the campaign
b) Notice
- Can get an employer to post a notice describing what they did wrong
c) Order a New Vote
- Can order date, conditions, ect…
d) Access
- Union might get access to list of employees in bargaining unit, or meeting during working hours
e) Reinstatement
- Employees can get reinstated with back pay
f) Interim Relief
- Under s.133 of the BC Code, the board can grant this (with a high threshold)
- Very useful in situations where there is a possibility of irreparable harm
- In some jurisdictions, employer practices that are so egregious can warrant quasi-criminal offences
- However, this doesn't exist in BC
National Bank of Canada and Retail Clerks' International Union (1982 CLRB)…Expansive remedy
F: - Attempt by big unions to unionize bank tellers in banks in the later 1970s-early 1980s
- During a 3 day freeze gap between certification and the start of bargaining, senior bank officials met and changed a plan to reduce services at one branch to a plan to close that branch and transfer its accounts to a non-unionized branch
I: - Did the bank commit an unfair labour practice? What was an appropriate remedy?
J: - Yes, for union
A: - Board found there was anti-union animus in the change of plans
- Board instituted 4 remedies:
a) Union certification was transferred to the new branch
b) Facilitated union access to the new non-unionized employees at the new branch
- These 2 remedies weren't appealed, but the next 2 remedies were appealed to SCC (see below)
c) Send a letter to all employees across Canada that it had violated employee rights under the Code
d) Must deposit $144,000 into a trust fund to be administered jointly by the union and the bank for the purpose of promoting the Code's objectives among all the bank's employees
R: - Canadian Labour Relations Board makes a far-reaching remedy that is reviewed and overturned two years later by the Supreme Court of Canada
National Bank of Canada v. Retail Clerks' International Union (1984 SCC)…Overturns LB remedy
F: - See above
I: - Did remedies 'c' and 'd go too far?
J: - Yes, 'a' and 'b' OK, but 'c' and 'd' too far
A: - Remedies must be:
a) Labour Board remedies must be connected to the breach and its consequences
- Here, fact that a large measure of the Bank's other employees are not unionized is not a consequences of closure of the old branch
b) Labour Board remedies should not be punitive
- Trust fund is not compensatory or rectifying, instead it is meant to punish the banks
R: - Labour Boards are permitted to create creative remedies as long as they are not punitive and are connected to the breach and its consequences
- Criminal law is rarely invoked against employers who engage in anti-union activites
- However, in the next case, employer conduct was so extreme that it warranted a punitive fine
R. v. K-Mart Canada Ltd. (1982 Ont. CA)…Heavy punitive fine levied against bad company officers
F: - K-Mart lied to the board by saying the vote should be postponed because they were taking on a number of new employees and they needed time to get adjusted
- Instead, K-Mart got new employees fraudulently by getting workers whose purpose was to swell the bargaining unit and voting against the unit
- They also presented false evidence to the board
I: - Was employer conduct so improper to warrant a quasi-criminal penalty?
J: - For union, as K-Mart violated the Code in a very egregious way
A: - Ontario board levied a $100,000 fine against K-Mart for their quasi-criminal conduct
- This remedy was not compensatory…it was punitive
R: - Labour board orders punitive damages and quasi-criminal penalties against an employer who did very egregious anti-union conduct
Overholt and Pinto, "Employer Communication During an Organizing Drive"
A: - Communications must be assessed contextually and in light of their cumulative effect, not merely in terms of content
- ie: the way in which the employer expresses its views can determine if coercive or intimidating
- Focus in previous decisions was the content of communications
- After RMH Teleservices, focus turns to context and cumulative effect of communicaitons
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9) THE PROFESSIONAL RESPONSIBILITY OF LAWYERS
- Labour law presents lawyers with ethical challenges, as they repeat clients that represent a huge percentage of their billing
- ie: management/union does cost-benefit analysis with respect to breaking the law
- Law society ethics prohibit a lawyer from:
a) Knowingly helping or encouraging a client to break the law
b) Advising on how to break the law in a way that might avoid or limit punishment
- Lawyers don't have to report clients who are breaking the law due to solicitor-client privilege
- However, they can write memos not recommending the course of action
- If the client persists, then the lawyer must withdraw from the case/client
Law Society of Upper Canada v. Rovet (1992 LSDD)…Lawyer acts terribly and is reprimanded heavily
F: - Lawyer suggested swelling the bargaining unit with fake employees to defeat a certification vote
- He also actively mislead the Law Society tribunal with false statements
I: - Is the solicitor guilty of professional misconduct?
J: - Yes, suspended from practice for 6 months (dissent would have disbarred him)
A: - Court concerned with violation of trust and harm suffered
- Didn't matter that harm isn't as direct as when a lawyer steals money
- Here, harm just as damaging, as the public is made vulnerable and the ethical standards of the profession and the public's confidence in it are seriously diminished
R: - A solicitor who cheats his partners, lies to an administrative tribunal, and prepares fraudulent documents for submission to a tribunal, engages in conduct which is equally reprehensible as the conduct of a solicitor who misappropriates client funds
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V. THE ACQUISITION AND TERMINATION OF BARGAINING RIGHTS
1) THE WAGNER ACT MODEL AND THE PRINCIPLE OF EXCLUSIVITY
- A summary of the Wagner Act model:
- Was created in the 1930s in the USA, and adopted across Canada in the aftermath of WWII
- Every Canadian jurisdiction has a statutory procedure (known as certification) which allows a union, upon proving that it has majority support among a unit of employees, to become the exclusive bargaining agent for those employees and to compel their employer to bargain with it on their behalf
- North American model is a majority rule system built on a principle of exclusivity
Roy Adams, "Union Certification as an Instrument of Labour Policy: A Comparative Perspective"
- Certification results in:
a) Compulsory collective bargaining
b) Backing of a government agency with powers to compel an intransigent employer to enter into negotiations with a view toward signing a written collective agreement
- However, from the point of view of the nonunion employer seeking to maintain status quo, certification:
a) Permits employer to contest employee representation campaigns
b) Nonunion employers can feel justified in refusing to bargain with non-unionized workers
- In recent decades, the feasibility of the Wagner Act model for acquiring bargaining rights has been called into question by the globalization of the economy
Sanford Jacoby, "Social Dimensions of Global Economic Integration"
- Globalization has a negative impact on unions, as:
a) Downward pressure on wages from lower-cost producers
b) Shift towards technology-intensive goods and services reduces demand for manual workers
- Unions aren't useful for employers anymore because:
a) Markets are international, and unions can't standardize wages across borders
b) Modern employers find it much easier to relocate
Harry Arthurs, "Reinventing Labour Law for the Global Economy"
- Workers in a global economy can't identify with their employers anymore because:
a) No common interests – language, culture, history, ect… – with workers in the global economy
b) No identifiable common employer, as many production chains are now globalized
c) Changing nature of employment, creating unclear legal status of workers
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2) THE APPROPRIATE BARGAINING UNIT
- The Bargaining Unit is a group of employees defined on the basis of the employer for whom they work and the positions they occupy…serves 2 functions:
a) Electoral constituency for the purposes of certification and decertification
b) Basis of collective bargaining
- 2 principles of the bargaining unit:
a) Majority rule
b) Exclusivity of bargaining rights
- Originally, employers wanted an internal group to represent employees instead of third parties
- However, over time, it became advantageous for employers because: (see Adams)
a) It gave them time to contest certification campaigns
b) Wage compression, as industries didn't have to compete with each other over wages
- This argument is no longer useful, as it only works in a contained labour market
- However, with globalization, employers are more mobile and workers can't compete globally
- Parameters of the bargaining unit affects ongoing employer-union relationship in several ways:
a) Strong pressure towards wage compression and uniformity in terms of employment from employer
- Employees with special skills or other employment advantages may not want to be included with other workers…ie: needs of special groups may not be met
b) Union jurisdictional disputes
- Multiplicity of units within a single enterprise may result in disputes over which CA governs particular tasks, or which union should have exclusive right to bargain for particular group of EEs, or which members of different unions should do certain work
c) Economic pressure in the form of a strike or lockout
- Possibility of a number of legal strikes at different times, which is very disruptive for ER and therefore effective as a tactic
d) If there are many units in a particular enterprise, many strikes at different times can exert pressure
- Paul Weiler in ICBC (1974 CLRB) held that the preferred bargaining unit is a broad one comprising all of the employees of a single employer, instead of breaking them up into different jobs, because:
a) Administratively efficient
b) Facilitates collective bargaining for both parties
c) Promotes industrial peace and stability
d) Doesn't impede lateral movement of employees
e) Allows for common framework of employment conditions
Metroland Printing, Publishing and Distributing Ltd. (2003 Ont. LRB)..2-part test for employee inclusion
F: - The publishing company has about 20 employees, with 2 departments (sales and distribution)
- Employer argues that part-timers, temps, and co-op students should be excluded from bargaining unit
I: - Should all employees be included in the proposed bargaining unit?
J: - Yes, for Union
A: - Employer argues for the Board to apply a two-part test:
a) Community of Interest
- Employees must have sufficient community of interest that they can bargain together
- However, board notes that it is no longer assumed that part-time employees have a different community of interest than full-time employees…it's case-by-case
b) No Serious Labour Problems For The Employer
- Board accepts this 2-part test…and interest usually presumed unless placement of them in same bargaining unit, due to lack of community of interest or otherwise, creates serious labour relations problems for the employer
- Here, test passed, as no problems were created for the employer, full-timers started part-time so they understand them, and the employer's proposed bargaining unit would lead to fragmentation
- Employer also argues that 2 members of the sales department don't want to join
- However, Board notes that employee wishes are just one of the factors the Board considers
- These are counterbalanced by Board's aversion to fragmentation and viability of the bargaining unit as a whole
R: - Boards will employ a more flexible 2-part test towards including part-time, temp, and student workers within the proposed bargaining unit
- Some policy concerns about putting lots of different employees into the same bargaining unit:
a) Quality of Representation
i) Generally
- How will the big union represent minority employee interests?
- With a diversity of employee interests in one bargaining unit, can a single collective agreement provide enough representation of all the interests?
- Also, there are concerns about the democratic nature of union and majority rule concerns
ii) Direct Remedy
- Remedial power of board is huge
- Unions owe a duty under s. 12 to give adequate representation
iii) Indirect (Industrial Peace)
- ie: 100 EE sawmill, 95 production workers, 5 specialized trades workers; formerly there would’ve been separate BUs, now OBU
- Union of 95% of workers would take proposal better for them, but worse for trades
- What's then the response of trade workers?
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3) TIMELINESS OF CERTIFICATION AND DECERTIFICATION APPLICATIONS
- General rule with respect to the timeliness of a certification application is that any time is OK, but bars vary depending on jurisdiction
- There are often bars on when a second union can try to raid another union
- Generally, union that has failed in earlier attempt to gain majority support is barred for a certain period from applying again for same unit (barred either by statute or by Board practice)
- Also bars on when decertification can begin after certification…check timelines
- In BC, s.19 and s.33 of the Labour Code set out the provisions:
a) Section 19 – Change in union representation
19(1) If a collective agreement is in force, a trade union claiming to have as members in good
standing a majority of employees in a unit appropriate for collective bargaining may apply to the board to be certified for the unit during the seventh and eighth months in each year of the collective agreement or any renewal or continuation of it.
(2) Despite subsection (1), an application for certification may not be made within 22 months of a previous application under that subsection if the previous application resulted in a decision by the board on the merits of the application.
(3) Unless the board consents, a trade union is not permitted to make an application under this section during a strike or lockout.
b) Section 33 – Revocation of bargaining rights
33(1) If at any time after a trade union has been certified for a unit the board is satisfied, after the
investigation it considers necessary or advisable, that the trade union has ceased to be a trade union, or that the employer has ceased to be the employer of the employees in the unit, it may cancel the certification.
(2) If a trade union is certified as the bargaining agent for a unit and not less than 45% of the employees in the unit sign an application for cancellation of the certification, the board must order that a representation vote be conducted within 10 days of the date of the application or, if the vote is to be conducted by mail, within a longer period the board orders.
(3) An application referred to in subsection (2) may not be made
(a) during the 10 months immediately following the certification of the trade union as the bargaining agent for the unit,
(b) during the 10 months immediately following a refusal under subsection (6) to cancel the certification of that trade union, or
(c) during a period designated by the board under section 30 following a refusal under subsection (4) (b) of this section to cancel the certification of that trade union.
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4) SUCCESSOR EMPLOYERS, CONTRACTING OUT, AND RELATED EMPLOYERS
A) SUCCESSOR EMPLOYERS
- General rule is that when A business is unionized, and sells to B, B is bound by A's collective agreement
- Successorship requires the sale, transfer, or disposition of a business
- Question: when the transfer is only work (ie: contracting out), does that qualify as a "disposition"?
- Hint: look for transfer of business assets: title, leasehold interests, buildings, equipment, "goodwill", accounts receivable, transfer of contracts, ect…
- In BC, this is covered by section 35 of the BC Labour Relations Code, which is intended to give significant protection to existing bargaining rights where a business has been sold or transferred to a new employer:
a) Part 35 – Successor rights and obligations
35(1) If a business or a part of it is sold, leased, transferred or otherwise disposed of, the
purchaser, lessee or transferee is bound by all proceedings under this Code before the date of the disposition and the proceedings must continue as if no change had occurred.
(2) If a collective agreement is in force, it continues to bind the purchaser, lessee or transferee to the same extent as if it had been signed by the purchaser, lessee or transferee, as the case may be.
(3) If a question arises under this section, the board, on application by any person, must determine what rights, privileges and duties have been acquired or are retained.
(4) For the purposes of this section, the board may make inquiries or direct that representation votes be taken as it considers necessary or advisable.
(5) The board, having made an inquiry or directed a vote under this section, may
(a) determine whether the employees constitute one or more units appropriate for collective bargaining,
(b) determine which trade union is to be the bargaining agent for the employees in each unit,
(c) amend, to the extent it considers necessary or advisable, a certificate issued to a trade union or the description of a unit contained in a collective agreement,
(d) modify or restrict the operation or effect of a provision of a collective agreement in order to define the seniority rights under it of employees affected by the sale, lease, transfer or other disposition, and
(e) give directions the board considers necessary or advisable as to the interpretation and application of a collective agreement affecting the employees in a unit determined under this section to be appropriate for collective bargaining.
- Again, s.35 only applies where the labour board finds that the transaction in question does indeed constitute the sale of a business
- The next case shows boards and courts have shown flexibility in finding a sale of a business even in situations where there has been no apparent exchange between the predecessor and the successor
Ajax v. CAW-Canada (1998 Ont. CA)…Disposition of business interpreted broadly – any mode of transfer
F: - Ajax contracted out bus driving services to Charterways, who supplied skilled drivers, mechanics, and cleaners for the town transit system…those workers were unionized
- Town cancelled contract with Charterways and re-hired almost all of Charterways drivers
- Union argues that business sold under s.64 of Ontario Labour Relations Act and is a successorship
- This is unusual because it's "contracting in"
I: - Was there a "sale" of a "business" for the purposes of s.64?
J: - Yes, for CAW
A: - Board focuses on issue of stability and continuity of the workforce
- There was value in having the same drivers in excess of simply doing the work
- Part of K with Charterways was having a stable workforce, which was part of their business as a going concern, and when the town acquired that, they acquired that part of the business
- Court notes that "it is not required that the transfer take any particular legal form nor take place by way of a legal transaction"
- Thus, in contrast to Canada Post, the court takes a broad and liberal interpretation
- It must be more than the transfer of work or assets, but the form need not take a legal form
R: - Where continuity and stability of the workforce is an important factor, Labour Boards will take a broad view of successorship provisions
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B) CONTRACTING OUT
- Again, "contracting out" can involve a manufacturing process, plant maintenance, inventory, sub-trades, special equipment operation, special projects or any other work functions which are given to a separate contractor to be done individually or with their own work forces
- In order to be true “contracting out”, the employer must be found to have given up its authority to control and manage the employees of the contractor who are doing the work in question.
- If the employer retains control over employees in a contracting out situation, it may be arguable that there has not been a true “contracting out” and the collective agreement applies to contractors’ employees
Canada Post Corporation v. CUPW (1990 Can. LRB)…Part of a business as a going concern must pass
F: - Read this case…basically Canada Post contracts out work to a Pharmacy
- Now this is common, as most post offices are located in 7-11's
I: - Does the transfer of work constitute the sale of a business?
J: - No, for Canada Post
A: - Code is designed to encompass the sale of a business broadly
- However, court holds that at least a portion of the business must pass as a going concern
- Simply transferring work from Canada Post to Niemans Pharmacy, an arrangement where there would be less work for Canada Post employees, is not enough to trigger the successorship provisions in labour statutes
R: - Contracting out does not constitute the sale of a business; it is simply transferring work
- Employees can protect against this by negotiating no-contracting out clauses in collective agreements or processes that would be triggered in such a situation
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C) RELATED/COMMON EMPLOYERS
- Many Canadian jurisdictions provide that the labour board may treat associated or related employers under common control and direction as a single employer for the purpose of bargaining unit determination and for other collective bargaining purposes
- Arises when there are two entities, and union argues that while they work for entity A, they really work for entity B, so they seek a declaration that entity A is employer for the purposes of collective bargaining
- Treating them as separate employers for labour law purposes means that union which represents employees in subordinate entity is unable to bargain with entity with real control over operation
- These are common employers covered under s.38 of the BC Labour Code:
a) Division 3 – Successor Rights and Obligations
38 Several businesses treated as one employer
- "If in the board's opinion associated or related activities or businesses are carried on by or through more than one corporation, individual, firm, syndicate or association, or a combination of them under common control or direction, the board may treat them as constituting one employer for the purposes of this Code and grant such relief, by way of declaration or otherwise, as the board considers appropriate"
White Spot v. BC Labour Relations Board (1997 BCSC)…Union gets common employer declaration
F: - White Spot sold one location to Gilley's Restaurant, which operates under franchise name
- Union argues White Spot and Gilley are common employers under s.38 of the BC Labour Code
- White Spot issues petition seeking to quash decision of Labour Relations Board, as it wants its franchise agreements to operate separately as it makes them more attractive
I: - Are they common employers for the purpose of collective bargaining?
J: - Yes, for Union
A: - Here, court notices several factors indicating White Spot control, including:
- Control over menu prices and food items, control over suppliers, promotions and advertising, and that Gilley's must operate under White Spot standards
- Simply b/c s. 35 created automatic severance of bargaining unit on succession does not preclude Bd from invoking its s. 38 jurisdiction where appropriate to declare them as constituting one ER
- White Spot argues that there was a bona fide transaction for commercial reasons
- However, court holds that the dominant factor is the amount of control
- Here, WS has substantial ctrl over menu prices, food items; G must use WS approved suppliers and delivery company, with those prices negotiated by WS; G must pay WS marketing fee; G must have WS trained general mgr and must operate within WS standards
R: - Unless a franchiser releases control to the franchisee, they will be held to be common employers
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5) ALTERNATIVES TO THE WAGNER ACT MODEL
- From 40s to 60s, collective bargaining was premised on a paradigmatic form of employment – embracing semiskilled factory work, mining, construction, and transportation – in which workers generally filled specific, stable jobs
- Stability enabled employees to claim a range of very important "job rights" – pay scales, promotion opportunities, layoff protection – based on seniority and skills
- Workers supported unions because unions were able to protect job rights
- Nowadays, changes in technology have radically altered means of production, the nature of work and employment, and management strategies
- Also permits exit option for employers to take factories abroad
- Employers say modern workers must be flexible, and flexibility is impaired by old job rights
- Possibilities for alternatives:
a) Minority Unionism
- Those who want union representation can have it without the principle of majority rule
- However, this has downsides, as:
- Many bargaining units in the same workplace would be a detriment to employers
- Employees may be targeted by employers who have more bargaining power
- There would be a variation of benefits to employees doing the same job
b) Craft Unionism
- Employees should be unionized along occupational lines
- This recognizes fluidity of labour market and allows importable benefits, which is useful for employees when they move from employer to employer
- However, the downsides include:
- Allows for discriminatory policies on the part of the union
- Must have a set of very skilled workers, otherwise employer can get workers from the general labour pool off the street
c) Citizen Unionism
- Union role is to put pressure on government to craft policies that will affect employees across many areas of work
- Nature of work has changed, so nature of unions has changed and they therefore must put efforts into socio-political actors
d) Sectoral Certification (aspect of Craft Unionism)
- All employers in particular sector bound by the same collective agreement
- But many workers not sectoral…ie: service industry, and takes wages out of competition
Baigent, Ready, & Roper: Recommendations for Labour Law Reform: Report to the Minister of Labour
A: - This 1992 tripartite committee argued for sectoral certification, where you have all employers in a particular sector bound by a collective agreement (see. P.384)
- Once workers had a majority in that particular workplace, all the organized units in the sector would bargain together for a master agreement, and they would all be bound
- A sector has two characteristics:
a) Defined Geographical Area
- ie: Marpole, Burnaby, the Lower Mainland, or the entire Province
b) Similar enterprises within the area where employees perform similar tasks
- ie: preparing fast food, child care, picking fruit, pumping gas
- For example, a sector could consist of "employees working in fast food outlets in Burnaby"
- This report was very controversial, as employers argued:
a) Individual employer would be bound by collective agreements they held no part in negotiating
- ie: Tim Horton's would be bound by agreement negotiated by Starbucks
b) More variation in industry than report suggests
- ie: difference between chains (Starbucks) v. independent businesses (Mary's Coffee Shop)
- Independent businesses couldn't offer same benefits to employees as big chains
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VI. NEGOTIATING A COLLECTIVE AGREEMENT
1) THE STATUTORY TIMETABLE
- Steps in the bargaining process:
a) Either party gives notice to bargain, triggering two things:
i) Bargaining Freeze – s.45(2)
- Employer can't change working conditions
- Ends during a strike or lockout, but strike or lockout can apply economic pressure
- Freeze runs until there is an actual lawful strike or lockout; if the union is not ready to strike as soon as the law allows strike action to be taken, the employer must institute a lockout if it wants to bring the freeze to an end
ii) Duty to Bargain in Good Faith – s.11
- This generally has two branches:
a) Subjective – Duty to bargain in good faith
- See Radio Shack and surface bargaining v. hard bargaining distinction
b) Objective – Duty to make every "reasonable effort" to reach a collective agreement
- Canada Trustco: Rational basis for acting in economic self-interest is OK
- Royal Oak Mines: Gives a substantive component, as this part of duty prevents a party from hiding behind an assertion that it is sincerely trying to reach an agreement when, viewed objectively, it can be seen that its proposals are so far from the accepted norms of the industry that they must be unreasonable
- Duty does not require that they succeed in negotiating an agreement, but only that they try
- Duty to bargain continues, even while a work stoppage is underway…however, content of the duty changes significantly in those circumstances
- Parties complying with duty but impasse resulted are allowed to break off negotiations on the basis that there is no current prospect of progress
- Breach of this duty is an unfair labour practice, but different from those arising under s.6
b) Impasse – Conciliation
- There is usually conciliation or a mediation requirement before a strike or lockout
- If nothing is resolved, a conciliator sometimes issues a no-board report, stating to the Labour Board that the parties are truly unable to reach an agreement under current conditions
- Although the state will intervene to try to help the parties, in general it won't impose agreement
- Exception: First contract arbitration and back to work legislation
c) Impasse – Strike/Lockout
- Either party may then apply economic pressure through a strike or lockout
- Duty to bargain continues during the work stoppage, but content of the duty changes
- Depending on jurisdiction, impasse may be settled by "back-to-work" legislation
- ie: BC teacher's strike, BC ferry strike, Toronto subway strike, ect…
- This "back-to-work" legislation leads to compulsory interest arbitration, where each side submits arguments/evidence and an arbitrator imposes an agreement
d) Agreement
- Once the agreement is reached, the duty to bargain and legality of work stoppage ends
- While work stoppages are illegal, there is still third party arbitration (aka grievance arbitration or rights arbitration) that must be provided for in every collective agreement in order to resolve differences over the meaning of the agreement
- Full timetable:
( Negotiate Agreement
Bargaining ( Back to work legislation ( Interest arbitration
( Impasse ( Conciliation ( Strike/lockout
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2) THE DUTY TO BARGAIN IN GOOD FAITH
A) PURPOSES OF THE DUTY TO BARGAIN
- Once the union is certified, the union gives notice to commence collective bargaining, and s.11 triggered:
a) Part 2 — Rights, Duties and Unfair Labour Practices
11(1) Requirement to bargain in good faith
- "A trade union or employer must not fail or refuse to bargain collectively in good faith in British Columbia and to make every reasonable effort to conclude a collective agreement"
Archibald Cox, "The Duty to Bargain in Good Faith" (1958 Harvard Law Review)
A: - Originally, there were 4 purposes of this duty (and of the Wagner Act in general):
a) Reduce number of strikes for union recognition
- Prior to 1935, when National Labour Relations Act was passed, the outright refusal of employers to deal with a labour union was a big cause of industrial strife
b) Prevent anti-union activities
- Denial of union recognition is an effective means of breaking up a struggling young union too weak for a successful strike
c) Encourage collective, not individual bargaining
- Unfair labour practice for an employer to negotiate wages or other terms of employment with individual employees
d) Understand the position of the other side
- After collective bargaining, both sides realize that the area of disagreement is so narrow that compromise is cheaper than battle
United Electrical Workers of America v. DeVilbiss (1976 Ont. LRB)…Two functions of duty
A: - Duty to bargain has at least two principal functions:
a) Reinforces the obligation of an employer to recognize the bargaining agent
b) Intended to foster rational, informed discussion thereby minimizing the potential for "unnecessary" industrial conflict
Graphic Arts International Union v. Graphic Centre (1976 Ont. LRB)…No vacuum for decision-making
F: - Agreement was reached, but in the middle of negations, the union brought a grievance before signing
- Angry, the employer adds 16 new changes to proposal
I: - Did the employer make "every reasonable effort" to reach an agreement?
J: - Initially, yes, but after 16 new demands, no, so J for union
A: - Decision-making capabilities of the parties depends on:
a) Full and open discussion
b) Dispute limited to issues put forward at beginning of negotiations
- Tabling of grievance didn't justify employer response, especially since the response occurred after a verbal settlement had been achieveds
R: - The tabling of additional demands after a dispute has been defined must, in the absence of compelling evidence which would justify such a course, be construed as a violation of the duty to bargain in good faith
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B) CONTENT OF THE DUTY TO BARGAIN
- There is very little content/substance of the duty to bargain other than the two branches of good faith (subjective) and making every reasonable effort to reach a collective agreement (objective)
- The next case gives some procedural content on the duty to bargain, and gives the duty some teeth in situations regarding the disclosure of information…
Canadian Association of Industrial Workers v. Noranda Metal Industries (1975 Can. LRB)…Info aspect
F: - Employer refused to reveal costs of fringe benefits after promoting their deletion to employees
- Union alleges that refusal to discuss the extent of benefits constituted a violation of the duty to bargain in good faith
I: - Did this constitute bad faith?
J: - Yes, for union
A: - If this was useful information, and it prohibited bargaining, then it constituted bad faith bargaining
- There is a disclosure obligation among employers, which is a procedural (not substantive) aspect of the duty to bargain in good faith
R: - A party commits an unfair labour practice if it withholds information relevant to a specific collective bargaining issue without reasonable grounds
- Policy: does labour relations structure simply promote industrial peace and stability by setting up procedures giving the parties steps in what they need to take?
- Or is bargaining designed to produce a particular outcome and progressively addresses a power imbalance between labour and capital?
- The next case, Radio Shack, gives some substantial content on the duty, and distinguishes between:
a) Hard Bargaining
- Act in individual self-interest and in doing so are entitled to take firm positions which may be unacceptable to the other side
- Employer must be able to show that its position was well thought-out and warranted, otherwise it will be considered as sham bargaining
- Trustco: superior economic position does not mean bad faith bargaining on part of employer
b) Sham/Surface Bargaining
- Going through the motions by preserving the surface indications of bargaining without the intent of concluding a collective agreement
- Radio Shack: To decide if the employer engaged in surface bargaining and thus bargained in bad faith, look at the evidence as a whole
United Steelworkers of America v. Radio Shack (1980 Can. LRB)…Surface bargaining is in bad faith
F: - Employer was aggressively anti-union during certification and union was automatically certified
- In June 1979, fresh bargaining team of 2 lawyers bargained down to 4 issues, but then they told the union that they wouldn't get any more movement out of the employer unless they moved to strike
- Union takes the advice and strikes as a result of the impasse
- During the strike, employer makes comment about union and sends "thank-you" letter to Radio Shack employees who kept working in the face of the strike
- Union claims that employer duped them into striking
I: - Did Radio Shack engage in surface bargaining?
J: - Yes, for union
A: - Labour Board doesn't buy Radio Shack's argument that they had a change of heart when they brought in the new lawyers, because:
a) Absence of direct testimony on motivation
- Actors that published the thank you letter didn't testify, so they didn't displace the inference of bad faith bargaining
- This combined with earlier conduct aimed at undermining the union in the eyes of the employees in order to foster the union's early demise
b) Rigid position on union security
- There are 3 kinds of union security clauses that a union might have in collective agreement:
i) Voluntary Check Off
- This is the statutory minimum in BC, where workers who are members of a union deduct union dues off paycheck
ii) Rand Formula
- Even if you're not a member of a union, you pay union dues
- This prevents the "free-rider" problem, and in some jurisdictions it's the minumum
iii) Closed Shop/Union Shop
- Clause states that you must be a due-paying union member to work there
- Not the statutory minimum anywhere
- Here, Radio Shack wants voluntary check off, while union wants Rand Formula
- Radio Shack's refusal to agree to Rand Formula raises concerns of anti-union animus and bad faith bargaining because it would be of no cost to the employer
- In light of it's earlier conduct, offering the statutory minimum here revealed employer's philosophical opposition to the existence of the union
R: - While offering what the statute requires as a bare minimum alone can't constitute bad faith bargaining, but can be considered bad faith bargaining when considered in light of other employer actions
Canadian Union of United Distillery Workers v. Canada Trustco (1984 Ont. LRB)…Hard bargaining
F: - Employer only offered minor improvements to a second bank branch than the collective agreement negotiated at the first bank branch
- Union alleged bad faith bargaining, as employer wasn't giving them any scope for improvement
I: - Did the employer engage in surface bargaining?
J: - No, for employer
A: - Not bad faith bargaining to engage in selfish self-interest, as long as the employer has an intent to sign a collective agreement on its terms
- Employer with superior economic bargaining strength does not equal bad faith bargaining
- Rational discussion is only one aspect of the bargaining process
- Power, pursuasion, and economic pressure are other effective tactics
- Collective bargaining permits "just wage" or "distributive justice" results, but does not compel it
R: - If the employer has a rational basis and economic justification for taking hard positions, the employer's conduct is properly characterized as hard bargaining in pursuit of its own self-interest and legitimate business objectives
- Criticized by Langille and Macklem in "Beyond Belief: Labour Law's Duty to Bargain, as collective bargaining is about promoting justice, not contractualism
- Acting in one's economic self-interest and acting with anti-union animus are indistinguishable
- It's widely thought that it is in one's economic self-interest to have a non-unionized workplace
- Thus as long as an employer is willing to sign, any content can be justified in the name of self-interest backed by economic power
- The next case considers the extent to which labour boards can scrutinize the contents of bargaining proposals…
Royal Oak Mines v. Canada (Labour Relations Board) (1996 SCC)…2 aspects of good faith bargaining
F: - In 1989, a gold mine in Yellowknife was bought by an American company, Royal Oak Mines
- At that time, the price of gold was high and so was the cost of mining
- Employer therefore took a hard line, resulting in a bitter strike that divided Yellowknife (ie: scabs)
- There was violence, vandalism, and finally sabotage of the mining premises
- Employer brought in a new American security company, Pinkerton's, to protect mining site, and they had a long history of strong anti-union opposition
- After that, a bomb went off in a replacement worker's mining car, resulting in nine deaths
- This case arises out of this situation and the bargaining that took place after the murders and strike
- Union argues employer refuses to budge on grievance process for discharge workers
I: - Is there bad faith bargaining?
J: - Yes, for union
A: - Cory J. says that the duty to bargain has two components:
a) Subjective – Duty to bargain in good faith
- This is the surface bargaining v. hard bargaining distinction
b) Objective – Duty to make every "reasonable effort" to reach a collective agreement
- This can be ascertained by a board looking to comparable standards and practices within the particular industry
- This part of duty prevents a party from hiding behind an assertion that it is sincerely trying to reach an agreement when, viewed objectively, it can be seen that its proposals are so far from the accepted norms of the industry that they must be unreasonable
- Thus if other mining companies allow a standard grievance process clause, it's a violation of the duty to make reasonable efforts
- Note that the remedy here was very substantive due to the extreme circumstances (see below)
R: - This decision opens the door to examine the substance of bargaining proposals, whereby the proposal is so unacceptable to the other side compared to industry standards that it constitutes a violation of the duty to make every reasonable effort to reach a collective agreement
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C) DISCLOSURE OF DECISIONS OR PLANS SUBSTANTIALLY AFFECTING THE BARGAINING UNIT
- Question: does the employer have a duty to disclose if the union doesn't ask questions?
Westinghouse Canada Ltd. (1980 Ont. LRB)…No duty on employer to disclose if union asks no questions
F: - During negotiations of long-standing agreement, company had been considering plan to move one of the manufacturing operations covered by that agreement from highly-unionized Hamilton to several less unionized areas of Ontario
- Officer said this was an "unevaluated likelihood" during period of bargaining, and union didn't ask about whether the company had any relocation plans
I: - Did employer fail to bargain in good faith?
J: - No, for employer…failure to disclose wasn't a violation of the duty to bargain
A: - Policy justification was that the union would act irrationally based on this information and that it would disrupt collective bargaining
- B: opposite might be true, as if employer is considering laying off entire plant, and doesn't disclose it to the union, as union might bargain hard on issues that turn out to be irrelevant
R: - Absent a specific request from the union, there is no proactive duty on the employer to disclose, on its own initiative, plans that have not yet ripened into at least de facto final decisions
Brian Langille, "Equal Partnership in Canadian Labour Law" (1983 Osgoode Hall Law Journal)
A: - Statutory timetable offers the employer not only incentive not to implement changes, but the further incentive (Westinghouse) not to reveal possible or actual decisions upon changes
- Instead, the incentive to the employer is to remain silent, lock the union into the agreement, and then reveal the plans or act upon them…system is geared towards non-disclosure
- Board was misguided in Westinghouse because:
a) Unions should have a say in all decision-making
b) Information rationalizes, not distort, the bargaining process
c) Helps the union protect employees
- In the next case, the Ontario labour board attempted to respond to some of the criticisms leveled against its Westinghouse decision…
International Woodworkers of America v. Consolidated Bathurst Packaging Ltd. (1983 Ont. LRB)
F: - Union wanted plant closure demands, dropped them, agreement reached, and a few weeks after the agreement was signed, the employer announced it was shutting down the plant
- Company didn't announce any plans to close the plant during negotiations to the union
I: - Did the employer violate the duty to bargain by failure to disclose its decision during bargaining?
J: - Yes, for union
A: - Board reconsidered Westinghouse, and claims the rule from that case that there is an obligation to reveal to the union on his own initiative those decisions already made which may have a major impact on the bargaining unit
- However, Board goes on balancing interest analysis, where impact of the decision on unions indicates if there is an obligation on the employer for unsolicited disclosure on decisions affecting them
- Failure to reveal "possibilities" as a general matter not bad faith
- However, if they have a "major impact on the bargaining unit", and a de facto decision is made during negotiations, silence may amount to misrepresentation
R: - The more fundamental a decision to the bargaining unit, the more probable that an employer must disclose these plans to the union
May 2008 Collective Agreement between General Motors of Canada and CAW-Canada
F: - Union worried that Oshawa plant is vulnerable to a downturn in the auto industry
- Most workers are around 50-years-old, and if they are laid off, they are likely unemployable
J: - GM agrees that for the time that the agreement is enforced, they agree to produce certain kinds of cars at the Oshawa plant
A: - Settlement was generous for the union, but GM includes clause that if the demand for GM trucks disappears, they don't have to produce them at the plant anymore
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3) REMEDIES FOR VIOLATING THE DUTY TO BARGAIN
- Principles for labour remedies:
a) Remedial in focus
- Can't order punitive damages for the employer's breach of the duty to bargain
b) Can't impose a collective agreement
- Instead, can impose remedies listed below
- Instead, boards resort to other remedies for the breach of the duty to bargain in good faith:
a) Cease-and-desist orders
- Includes orders to bargain in good faith
b) Orders to publish retractions
- Employer must admit to false or prejudicial statements
c) Bargaining costs
- Employer ordered to pay the injured party's negotiating/bargaining costs
- Question: should the labour board go further and give something more substantial…not the whole contract but a term of the contract? Note that the following case has an extreme fact pattern…
Royal Oak Mines v. Canada (Labour Relations Board) (1996 SCC)…2-part test for remedial review
F: - Employer challenges labour board remedy that forced them to table a withdrawn offer it had made earlier in the negotiations, with certain modifications
- These modifications included the addition of a back-to-work protocol specifiying that arbitration would be available to adjudicate grievances brought by any employees who were discharged by the employer during the bitter strike which had occurred during bargaining
I: - Was the remedy patently unreasonable?
J: - No, for union
A: - SCC gives a two-part test in which a remedial order will be considered patently unreasonable:
a) Rational Connection
- There must be a relationship between the unfair practice which has occurred, its consequences to the bargaining process, and the remedy imposed
b) Policy Consistency
- Board's remedial order must respect Code's principle of free collective bargaining
- There are 2 further factors where the Board will consider a decision patently unreasonable:
a) Where the remedy is punitive in nature
b) Where the remedy granted infringes the Charter
- Here, 'a' passed, as breach was employer's intractable position, and consequences included bargaining permanently blocked and the Yellowknife community was thrown into chaos
- With 'b', there were factors overriding "free" bargaining policy, including the bitter and lengthy dispute, one party didn't bargain in good faith resulting in frustration of collective bargaining, and the community as a whole suffered as a result
- Also relevant on the content of the duty to bargain:
- SCC majority found that where a party refuses to include in its proposals terms that have been widely accepted in other agreements throughout the particular industry, it may be appropriate for the board to find a breach of that party's duty to make every reasonable effort to reach agreement
R: - Labour board remedies must be rationally connected to the breach and must be consistent with the policy objectives of the Labour Board
CAW-Canada v. Buhler Versatile Inc. (2001 Man. LB)…Union got back pay for time spent on strike
F: - Employer engaged in "receding horizons", where the employer offered less each time they met and failed to provide, as requested, information related to its proposals
- Said "my first offer is always my last offer"
- Proposals would eliminate longstanding provisions related to health, welfare, and seniority benefits
I: - Did the employer engage in bad faith bargaining?
J: - Yes, for union
A: - Board found that the employer did not engage in bargaining in good faith, and applied a remedy whereby the employees received salary during the entire time they were on strike
- This was a big/landmark award for the union
- Rational connection to conduct was established
- However, there was a concern about large monetary awards, as they may cripple the employer economically who may have to shut down and jobs will be lost, especially if not operating during the strike so there was a loss of revenue
R: - Back pay for time spent on strike may be a remedy available to unions in situations where the employer, because of bad faith bargaining, in effect forced the union to go on strike
- Despite Buhler and Royal Oak, a wage increase is not an acceptable remedy for bad faith bargaining
- It would be a substantial remedy rather than procedural, and hard bargaining is a procedural duty
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4) FIRST CONTRACT ARBITRATION
- There is a provision in each labour code for first contract arbitration in first negotiation session only
- Last-ditch remedy for parties trying to negotiate a first collective agreement after certification
- Allows the Board to appoint an arbitrator who will actually set the terms of the collective agreement
- This is also known as "interest arbitration" that usually provides only a basic framework for operating
- Usually, the remedy doesn't last very long (often 1 year) and parties will have to bargain themselves
- However, the hope is that both parties can see that negotiating with each other can work, and that this first contract will provide a floor to bargain from in the future
- See BC Labour Code s.55:
a) Part 4 – Collective Bargaining Procedures
55(1) First collective agreement
- "Either party may apply to the associate chair of the Mediation Division for the appointment of a mediator to assist the parties in negotiating a first collective agreement, if
(a) a trade union certified as bargaining agent and an employer have bargained collectively to conclude their first collective agreement and have failed to do so, and
(b) the trade union has taken a strike vote under section 60 and the majority of those employees who vote have voted for a strike"
- There are 2 kinds of arbitration:
a) Grievance Arbitration
- Purpose is to deal with employee grievances filed while a collective agreement is in place
b) Interest Arbitration
- Purpose is to actually impose a collective agreement in the case of first-contract arbitration
- Both parties submit positions, and arbitrator either agrees with one side or makes a compromise
- Some jurisdictions have a "last-offer selection" system, which pushes the party's to both submit proposals that will be considered most reasonable by the arbitrator and discourages unfair proposals
- However, typically first contract arbitration can negotiate a middle position
- Used often in Quebec…much less often in other provinces
Yarrow Lodge Ltd. v. Hospital Employees' Union (1993 BCLRB)…Guidance for applying s.55
F: - None, casebook only identifies principles/policies of s.55
A: - Board identifies 4 policies that underlie s.55:
a) Remedy designed to address breakdown in negotiations, not an extension of unfair labour practice remedies for egregious employer conduct
b) Process of collective bargaining should be encouraged
c) Mediators should be assigned early and educate parties about collective bargaining process
d) Timing of the imposition of a collective agreement should be before the end of the negotiation process when the relationship has broken down and is irreparable
- Non-exhaustive list of factors board will employ in assessing the conduct of the parties in making a determination under s.55(6)(b) – whether or not to impose a first collective agreement:
a) Bad faith or surface bargaining
b) Conduct of employer which demonstrates a refusal to recognize the union
c) Party adopts uncompromising bargaining position without reasonable justification
d) Party fails to make reasonable or expeditious efforts to conclude a collective agreement
e) Unrealistic demands or expectations, resulting from either intentional conduct or inexperience
f) Bitter and protracted dispute
- Finally, when deciding actual terms and conditions of employment, FCA should:
a) Not contain breakthrough or innovative clauses…only industry standard agreements
b) Use objective criteria…ie: comparable terms paid to similar workers performing similar work
c) Equity amongst employees
d) Financial state of the employer is a critical factor
e) Economic and market conditions of the sector/industry in which the employer competes
May 2008 Collective Agreement Between GM and CAW
A: - During negotiations, ER and union discussed current and projected market demand forecast of auto industry; as result, ER made product commitments at the various assembly plants, all dependent upon market demand, and some also dependent on approval by BoD and acceptable business case
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VII. INDUSTRIAL CONFLICT
1) INTRODUCTION TO INDUSTRIAL CONFLICT
- Canadian labour codes prohibit two kinds of strikes:
a) Recognition Strikes
- If a group of employees want to form a union, you have certification procedures in place
b) Mid-Contract Strikes
- If an employee has complaints about egregious employer conduct, there is arbitration or grievance procedures in place
- However, statutes permit strikes at the end of the bargaining process when the parties are at an impasse
- Purpose of industrial conflict is to put economic pressure on the other side to change their position, but this hurts both sides:
a) Employer
- Usually pressure is effective, and employer will try to counter with replacement workers
- However, replacement workers are illegal in BC and Quebec
b) Employee
- Employees aren't paid during the strike…union might offer them strike compensation
- However, compensation isn't long-term and often is less than actual wages
- There are 2 kinds of consequences to strikes:
a) Direct
- Biggest are lost production and foregone wages
b) Indirect
- Adverse impact on general investment
- Ill will developed between employees, especially between unionized and excluded employees
- Third party harm to essential service strikers
- However, there are procedural requirements for legal strikes in every jurisdiction:
a) Must bargain and go through conciliatory process
b) Must vote amongst union members to approve strike
c) Must give notice to employer within 72 hours
- Once these requirements are satisfied, the union is in a legal strike position
- In Canada, unionization rate of private sector employees has fallen from around 66% to 17%, contrasting with high unionization rates among public sector workers
- In public sector, strikes are a big money saver for the government, but creates big public pressure
- However, like in Vancouver civic strike last summer, there is often resentment and not support with public sector workers that go on strike
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2) SOCIAL SIGNIFICANCE AND POLICY PERSPECTIVES
A) INDUSTIAL PLURALISM AND INDUSTRIAL CONFLICT
- 7% of bargaining rounds for major collective agreements resulted in a work stoppage in 1988
- 2 kinds of approaches:
a) Unitary
- Seen in early Canadian labour regulation which simply tended to repress strikes
- This left employees unable to withdraw their labour collectively
- When this proved incapable of containing industrial unrest from the late 1800s on, Canadian governments moved towards a pluralistic approach
b) Pluralistic
- Negotiation and compromise are encouraged, while repressions is used more sparingly
- Employers required to recognize and bargain with certified bargaining aents
- Recourse to economic sanctions is hedged with a set of legal restrictions
- Strike (or even threat of strike) is necessary because it forces people to try to averse risk and induce them into concessionary behaviour
- Some want government to ban strikes altogether and substitute interest arbitration, which is some form of third-party arbitration of the terms of employment
- Bad effect is that parties felt it was in their best interests to stick to crazy proposals b/c adjudicators would just split it down the middle
- Response was to this was final offer selection (FOS) – adjudicators forced to choose one or the other, and this works really well…could also use FOS by issue (but this removes risk aversion)
- However, interest arbitration has been resisted because:
a) No agreed standards
b) Too many economic variables
c) Result may not be acceptable to the parties
- Since no "moral credibility" attached to FOS, there is less adherence to the Deal
- Thus tension in Canadian labour regulation between:
a) Rejection of Interest Arbitration
- Governments (though decreasingly) disclaim any influence over the content of settlements
b) Desire to Prevent Industrial Disruption
- Push parties to settle disputes without strikes by imposing a series of hurdles that must be overcome before economic sanctions can lawfully be invoked
Paul Weiler, "Reconcilable Differences: New Directions in Canadian Labour Law"
A: - Strikes still play an indispensable role in resolving deadlocks in collective bargaining relationship
- Employer imposes terms ( employees withdraw labour rather than accept offer ( employer operations shut down and loss of revenue ( employees deprived earnings ( both sides realize it's much less painful to agree than continue economic sanctions
- Often the credible threat of the strike alone produces midnight agreements
- Strike rates tend to reflect changes in general economic conditions, as willingness to begin job action often depends on the likelihood of success
- If product market has low demand for goods, employer loses little from economic shutdown
- International competition reduces employer's ability to pay higher wages
- Hard to maintain strike if unemployment rate is high
R: - A simple legal ban on strike action is totally unacceptable if we are going to have free collective bargaining, as while we have concluded that grievance arbitration is a better method of dispute resolution during the lifetime of a collective agreement, we have not been able to agree on an acceptable alternative for contract negotiation disputes
- Possible exam essay Q: should right to strike be expanded or restricted in the future?
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B) A CONSTITUTIONAL RIGHT TO STRIKE?
- Since adoption of the Charter in 1982, unions have brought several Charter-based challenges to laws which restrict or abrogate the right to strike
- Right not expressly guaranteed in the Charter, but unions have argued that it is included under s.2(d) guarantee of "freedom of association"
- Other sections have been invoked (ie: s.7 guarantee of liberty and s.2(b) freedom of expression)
- However, mainly s.2(d) has been relied on, such as in the next case…
Reference Re Public Service Employee Relations Act (1987 SCC)…s.2(d) doesn't yet give right to strike
F: - Part of a trilogy of cases dealing with s.2(d) of the Charter
- Alberta gov't eliminated right to strike from public sector employees across the board, regardless of the kinds of functions the workers are performing
- Union brought complaint to the Freedom of Association board of the ILO to get a non-binding opinion, which agreed that Alberta gov't violated Canada's international obligations, but gov't does nothing, so union brings constitutional challenge
I: - Does the Charter give constitutional protection to the right of a trade union to strike as an incident to collective bargaining?
J: - No, for gov't (with dissent)
A: - Majority by McIntyre J. gives analysis of the scope of s.2(d)
- "Core" of s.2(d) is that the attainment of individual goals, through the exercise of individual rights, is generally impossible without the aid and cooperation of others
- Group (ie: collective bargaining) can exercise only the constitutional rights of its individual members on behalf of those members
- If the right asserted is not found in the Charter for the individual, it cannot be implied for the group merely by the fact of association
- Court goes through 6 theories about the scope of s.2(d), and determines:
- Charter protection attaches to exercise in association of such rights as have Charter protection when exercised by the individual
- Freedom of association means the freedom to associate for the purposes of activities which are lawful when performed alone
- Since association will not by itself confer additional rights on individuals, the association does not acquire a constitutional guaranteed freedom to do what is unlawful for the individual
- ie: golf…it's a lawful but not a constitutionally protected activity, so Legislature can prohibit golf entirely but not constitutionally provide that golf could be played in pairs but no greater number
- Applying this, right doesn't protect the right to strike because:
a) Individuals can't lawfully refuse to work
b) Collective strike doesn't equal an individual refusing to work
- Individual refusal = breach of K; collective strike = intention to return
- Striking is a creation of statute and courts shouldn't meddle in legislature's role
- Also, there are policy reasons against entrenching such a right
- Dissent by Dickson C.J.C. discusses the link between freedom of association and the right to strike in international law, and the relevance of that link to interpretation of the Charter
- International Labour Organization (ILO) Convention 87 in particular recognizes the right
- Based on Canada's international obligations, s.2(d) gives a right to strike subject to s.1
R: - Majority claims that the right to strike is a creature of statute that can be eliminated by the legislature; however, Dickson's dissent holding that s.2(d) protects the right to strike may be increasingly influential in the future
- Health Services decision in 2007 relies on Dickson's dissent to find a right to collective bargaining
- Since Health Services didn't consider right to strike, Alberta Reference remains good law
- However, since Health Services uses the dissent, majority's view in Alberta Reference might be subject to constitutional challenge regarding the right to strike by unions in the future
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3) LEGAL PROHIBITION OF STRIKES AND OTHER ECONOMIC SANCTIONS: THE PEACE OBLIGATION
A) PROHIBITION OF STRIKES
i) GETTING TO A LEGAL STRIKE POSITION
- Historically, the definition of "strike" dates from WWII
- Before the Wagner Act, strikes were used by Canadian workers to resolve virtually all types of employment-related disputes
- After the Act, use of strikes were strictly limited to disputes over the negotiation of the agreement
- Other mechanisms – certification process, duty to bargain, prohibition of unfair labour practices, and grievance arbitration process for enforcing collective agreements – replaced old use of economic force that were expected to play the role previously played by strikes
- Thus, post-Wagner Act, employees can no longer strike to:
a) Force the employer to recognize a union
b) Engage in bargaining, or
c) Enforce their interpretation of the terms of a collective agreement
- Therefore, the "peace obligation" is a ban on all mid-term strikes, which is set out in s.57 of the BC Code:
a) Part 5 – Strikes, Lockouts, and Picketing
57(1) Strikes and lockouts prohibited during term of collective agreement
- "An employee bound by a collective agreement entered into before or after the coming into force of this Code must not strike during the term of the collective agreement, and a person must not declare or authorize a strike of those employees during that term"
- Problem: residual rights doctrine, as the idea here is that the collective agreement cuts into the employer's CL powers
- To the extent that a collective agreement is silent on any issue, the employer enjoys total and complete rights
- This places a big onus on the union to anticipate and negotiate any and all potential issues during bargaining sessions with the employer
- Note one exception to the ban on strikes and lockouts during the lifetime of the collective agreement:
a) Part 4 – Collective Bargaining Procedures
54(1) Adjustment plan
- "If an employer introduces or intends to introduce a measure, policy, practice or change that affects the terms, conditions or security of employment of a significant number of employees to whom a collective agreement applies,
(a) the employer must give notice to the trade union that is party to the collective agreement at least 60 days before the date on which the measure, policy, practice or change is to be effected, and
(b) after notice has been given, the employer and trade union must meet, in good faith, and endeavour to develop an adjustment plan"
- Thus the employer must give the union advance notice of technological change (as found in definition) during the lifetime of a collective agreement
- Duty to bargain then arises over matters arising out of such change, and the bargaining can eventually result in a legal work stoppage
- In BC, definition of a strike, which was intentionally drafted broadly to capture more than just a commonly recognized strike:
a) Part 1 – Introductory Provisions
1(1) Definitions
- ""strike" includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slowdown or other concerted activity on the part of employees that is designed to or does restrict or limit production or services, but does not include
(a) a cessation of work permitted under section 63 (3), or
(b) a cessation, refusal, omission or act of an employee that occurs as the direct result of and for no other reason than picketing that is permitted by or under this Code,
and "to strike" has a similar meaning"
- Therefore two elements:
a) Must have conduct that adversely affects work or production, and
b) Conduct must be taken pursuant to a collective understanding
- There are a bunch of limitations everywhere in Canada stating that the legality of a strike depends above all on whether the various statutory prerequisites have been met below
- These requirements are commonly encapsulated by saying that a strike or lockout must be "timely" in order to be legal
- Usually after an application for certification has been filed, there is:
- Determination of appropriate unit ( waiting period ( secret ballot vote
- Note that determination of the appropriate bargaining unit must come before the vote, as it determines if there is enough support for a vote to be ordered and who is entitled to vote
- Short waiting period between application and ordering of the vote, which is a prime opportunity to attempt to resist the organizing campaign or decrease union support
- No statutory obligation for delay, but typically 72 hours
- In BC, how does a union get into a legal position to strike? BC Labour Code determines this by requiring many pre-requisites for a lawful strike:
a) s.57(1) – Collective agreement has expired
b) s.59(1) – Some bargaining took place in accordance with the Code to the point of impasse
c) s.60(1) – Majority of workers voted to strike
d) s.60(3)(a) – Vote must have taken place within previous 3 months
e) s.60(3)(b)(i) – Written notice of strike given to employer and Labour Relations Board
f) s.60(3)(b)(iii) – 72 hours elapsed since receipt of written strike notice (delay allows for employer preparation, and possibility for a midnight agreement)
g) s.60(3)(b)(iv) – If a mediator was appointed, 48 hours have passed since the union is advised that the mediator has "reported out" (any strike after mediator appointed is illegal)
h) s.75 – Once strike has commenced, written notice must be given to the Labour Relations Board
i) s.78 – Employer can apply to board to have last offer put directly to employees for a vote, and if employees vote to accept, there is no strike and the terms/conditions become binding
- Statutory language on all the pre-requisites above:
a) Part 5 – Strikes, Lockouts, and Picketing
57(1) Strikes and lockouts prohibited during term of collective agreement
- "An employee bound by a collective agreement entered into before or after the coming into force of this Code must not strike during the term of the collective agreement, and a person must not declare or authorize a strike of those employees during that term"
59(1) Strikes and lockouts prohibited before bargaining and vote
- "A person must note take a vote under section 60 or 61 on the question of whether to strike or on the question of whether to lock out until the trade union and the employer or their authorized representatives have bargained collectively in accordance with this Code."
60(1) Pre-strike vote and notice
- "A person must not declare or authorize a strike and an employee must not strike until a vote as to whether to strike has been taken in accordance with the regulations by the employees in the unit affected, and the majority of those employees who vote have voted for a strike"
60(3) Pre-strike vote and notice
- "Except as otherwise agreed in writing between the employer or employers' organization authorized by the employer and the trade union representing the unit affected, if the vote favours a strike,
(a) a person must not declare or authorize a strike, and an employee must not strike, except during the 3 months immediately following the date of the vote, and
(b) an employee must not strike unless
(i) the employer has been served with written notice by the trade union that the employees are going on strike,
(ii) written notice has been filed with the board,
(iii) 72 hours or a longer period directed under this section has elapsed from the time written notice was
(A) filed with the board, and
(B) served on the employer, and
(iv) if a mediation officer has been appointed under section 74, 48 hours have elapsed from the time the trade union is informed by the associate chair that the mediation officer has reported to him or her, or from the time required under subparagraph (iii) of this paragraph, whichever is longer"
b) Part 7 – Mediation and Dispute Resolution
75(1) Notice of strike or lockout
- "If a strike or lockout has commenced, the trade union or employer commencing the strike or lockout must immediately inform the chair in writing specifying the date the strike or lockout commenced"
78(1) Last offer votes
- "Before the commencement of a strike or lockout, the employer of the employees in the affected bargaining unit may request that a vote of those employees be taken as to the acceptance or rejection of the offer of the employer last received by the trade union in respect of all matters remaining in dispute between the parties, and if the employer requests that a vote be taken, the associate chair must direct that a vote of those employees to accept or reject the offer be held in a manner the associate chair directs"
78(3) Last offer votes
- "If a vote under this section favours the acceptance of a final offer, an agreement is thereby constituted between the parties"
- This bypasses the union and the Board has no discretion to reject employer's request
- However, it's not used in every case, as a no-vote can poison the bargaining relationship
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ii) ACTIONS CONSTITUTING A STRIKE: COMMON ACTION OR CONCERTED ACTIVITY?
- What kinds of conduct fall within the s.1 definition of a strike? The following case tries to answer this…
CWC v. Graham Cable (1986 Can. LRB)…s.1 definition has a broad interpretation for many activities
F: - Traditional strike would be ineffective, as management personnel could maintain service for a long time unless there was a major equipment failure, so union gets in legal strike position
- Union actions included go-slows, speed-ups, overtime bans, and study sessions
- Employer required all employees showing up for work to sign a letter saying that if an employee comes to work, they "shall complete all work assignments"…those who didn't sign couldn't work
- Union argues that the employer violated Canadian Labour Code by taking disciplinary action against lawful strikers, disciplining employees who showed up for work but refused to work
I: - Did these alternative actions constitute a strike under the Canadian Labour Code?
J: - Yes, for CWC
A: - Two aspects to a strike:
a) Objective – Done in combination, in concert, or in accordance with a common understanding
b) Subjective – Intention to reduce or limit output
- This action doesn't apply to criminal or tortuous activity, but now almost any activity is protected if the union is in a legal strike position
- Employers are free to take measures to limit disruptive strike effect, such as increased use of managerial personnel and non-striking employees
- However, employers not free to discipline or punish employees for engaging in lawful strike
- Broad interpretation of s.1 is necessary because:
a) Changing economy means unions need ways other than traditional strike to put economic pressure on employers
- Especially in industries where replacement workers are readily available, less predicable strike actions are necessary…ie: rotating strikes, overtime bans, work-to-rule campaigns, and other imaginative job-related activities
b) Unions aren't deprived of income over long periods of time
- With traditional strike, no income
- With alternative measures, can still get some income
R: - A strike is any collective action with the intention of reducing employer output, and any action that also meets the statutory pre-requisites will be a legal strike
- Employers can do 2 things in response to strikes:
a) Unilaterally change terms/conditions of employment
- Bargaining freeze ends once the strike begins, so employer can apply economic pressure by cutting employee wages during the strike
b) Lockout
- Most useful response to partial job action
- Becoming more common nowadays as most bargaining is concessionary
Ontario Secondary School Teachers' Federation v. Grand Erie District School Board (1999 Ont. LRB)
F: - Teachers started a "work-to-rule" campaign where teachers didn't participate with extra-curricular activities, staff meetings, ect…
- Sounds like slow-down in Graham Cable, but School Board argues that union action was illegal because teaching duties were mandatory under the Education Act
- School board sent letter to union threatening legal action b/c campaign is illegal b/c those duties are mandatory under Education Act and Regulations
- Union brought unfair labour practice proceeding claiming employer’s letter constituted interference with protected strike activity
I: - Did the "work-to-rule" campaign constitute a strike?
J: - Yes, for teachers
A: - The reason why duties are mandatory by statute is to force teachers to do them while CA exists
- Corollary is that teachers are entitled to stop doing them during work stoppage
- Otherwise, there would be a bizarre result that the teachers could start teaching while being forced to participate in extra-curricular activities during a legal strike action
- Board notes that school board's effort to stop the work-to-rule campaign by sending a letter conveying SB's view that actions were illegal was not an unfair labour practice
- Letter simply expressed an opinion on the lawfulness of the strike and didn't discipline
- School argues that including work-to-rule as protected strike activity is industrial sabatoge
- However, board holds that refusing to perform assigned work isn't analogous to car manufacturer refusing to install safety devices on cars, as one is contemplated by statute and other isn't
R: - Work-to-rule campaigns where members refuse to do any work outside regular activities is a protected strike activity because it is designed to reduce output
- Second element of the definition of a "strike" is the concerted nature of the employee's action
- What precisely does it mean that the work stoppage must be "in combination, in concert, or in accordance with a common understanding?"
- Is it enough that more than one employee stops work, or must there be an element of co-ordination?
Saskatchewan Wheat Pool v. Grain Workers' Union (1994 Can. LRB)…Overtime bans acceptable
F: - Employees, who are not in a legal strike position, refuses to accept overtime
- Employer seeks unlawful strike declaration, despite the fact statute and collective agreement contemplated it
I: - Did overtime ban constitute a strike?
J: - Yes, for union
A: - Even if workers would have accepted overtime, action ceased in a concerted way
- Board had no direct evidence that union authorized or orchestrated employees’ refusal to work O/T but it found sufficient circumstantial evidence to determine that union was the architect
- Therefore the employees were engaged in unlawful strike
- Statutory definition of strike can’t be changed by CA of the parties; nor can public purpose of industrial peace behind the no-strike provision be avoided by contracting out of Code’s legal obligations
R: - Actions that are acceptable for individual employees due to the collective agreement may constitute unlawful strike when done in combination if it constitutes concerted activity designed to restrict output
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iii) THE STRIKE PROHIBITION AND SYMPATHETIC ACTION
- In general, refusing to cross another union's picket line amounts to an illegal strike
- Statutory "timely" requirements poses significant obstacles to sympathetic action by one group of workers designed to help another group that is involved in a strike or lockout
- Therefore, any sympathetic action of that sort is likely to constitute a strike and thus be untimely
- Next case addresses this issue, namely, the refusal of employees to cross a picket line when they were not themselves in a position to strike legally
International Longshoremen's Association v. Maritime Employers' Association (1979 SCC)…Illegal
F: - Union claims their sympathetic action to refuse to cross a picket line was not a strike, so there was no basis for the employer getting an injunction against the 3 trade unions
I: - Is the refusal of union members to cross a lawful picket line not a strike and therefore there is no proper basis for the issuance of an injunction?
J: - No, for employer, refusal to cross was an illegal strike
A: - Union argues that the statute contemplates "union solidarity"
- However, in the current Labour Code, Parliament has adopted an objective definition of "strike", the elements of which are a cessation of work in combination with a common understanding
- Purpose/motive is not relevant…therefore what they did is illegal and injunction was OK
R: - Courts will prohibit concerted sympathetic action in the form of honouring another union's picket line in federal actions because the federal definition is objective
- BC Labour Code excludes stoppages or refusals to work that are a direct result of lawful picketing by the definition of a strike in s.1:
(1) Definitions
- "'strike' includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slowdown or other concerted activity on the part of employees that is designed to or does restrict or limit production or services, but does not include
(a) a cessation of work permitted under section 63(3), or
(b) a cessation, refusal, omission or act of an employee that occurs as the direct result of and for no other reason than picketing that is permitted by or under this Code"
(63) (3) Rights Preserved
- "An act or omission by a trade union or by the employees does not constitute a strike if
(a) it is required for the safety or health of those employees, or
(b) it is permitted under a provision of a collective agreement by which an employer agrees that employees within the bargaining unit covered by the collective agreement are not required to work in association with persons who are not members of
(i) the trade union representing the bargaining unit, or
(ii) another trade union contemplated by the collective agreement"
- Therefore, there are 3 main exceptions where conduct in question satisfies the definition of a strike, but for policy reasons is not considered a strike:
a) s.63(3)(a) – Health and Safety
- Must show stoppage was in good faith and reasonable grounds for employee to be concerned
b) s.63(3)(b) – Non-Affiliation Clauses
- Usually occurs in construction, where employees have the right to refuse to work with non-union
- Similar concept is hot declarations (aka "hot edict" or "hot cargo" clauses)
- Usually issued by the BC Federation of Labour in cases there's a notorious dispute
- The clause allows employees to refuse to do any work coming from or destined for another employer who has been declared unfair by the union
- Since 1992, BC Labour Code allows Labour Board to give effect to hot cargo clauses
c) s.1 – Decision to honour a picket line
- Clauses permitting employees to refuse to cross picket lines remain fully effective in BC
- Virtually all collective agreements have a clause allowing members not to cross
- s.1 excludes stoppages or refusals to work that are a direct result of lawful picketing
- Is it valid to negotiate a "hot cargo" clause…ie: union won't handle products coming from other unions that are on strike?
- BC Labour Code doesn't mention anything specifically
- However, in the end, union usually wins and Board usually continues to uphold "hot cargo" clauses where the clause is negotiated and agreed to within the collective agreement between the parties
- Policy arguments for/against validity of "hot cargo" clause:
a) Employer – against validity
- Shouldn't recognize as a matter of public policy, as employer not a party to Telus' dispute
- Practically, since BC Federation of Labour issued "hot edict", and it covers most unions in BC, it could have far-reaching consequences, damaging industrial productivity
- Purpose of Act and Wagner Act model is based on exclusivity, and upsets balance of bargaining power in a way the statute didn't intend
- When s.2 "purposes" converted into "duties" in 2002, effects on third parties must be minimized
b) Union – uphold validity
- While statute prohibits striking during collective agreement, since it's silent on "hot cargo" clauses, they should be able to follow clause as a matter of freedom of contract
- Pressure tactic will improve industrial productivity, as it will bring the work stoppage to an end
- Thus in BC, you can negotiate these kind of hot cargo clauses…many other jurisdictions say you can't strike during the running of a collective agreement, as in the next case...
Nelson Crushed Stone v. Martin (1978 Can. LRB)…Hot cargo clauses illegal in the rest of Canada
F: - Union refused to cross a picket line maintained by members of another union who were legally on strike against a common employer, and CA between "non-striking" union and employer had a clause stating it wasn't a violation if any employee refused to cross a legal picket line
I: - Does the union's action constitute a strike?
J: - Yes, for employer
A: - Board held that provisions legalizing strike activity during collective agreement, and therefore parties K'd out of Labour Relations Act, are invalid
- Instead, no-strike clause is deemed to be contained in every collective agreement
R: - In most of Canada (except BC), collective agreements that expressly permit the employees covered by it to refuse to cross a lawful picket line are prohibited
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iv) IS POLITICAL PROTEST A STRIKE?
- In BC Hydro, BC Labour Relations Board held that a stoppage during a "National Day of Protest" did not fall within the definition of a strike
- However, the decision was based on the old s.1 definition of "strike" that contained a purposive element, which was subsequently removed in 1984
- There, with purposive component, Board held that no intent to elicit an employment-related response from an employer could be found from a political protest
- Weiler: protests not a matter for collective bargaining law, because they involve disputes between unions and the government
- Subsequent unions challenged under Charter s.2(b) freedom of expression grounds, claiming that blanket prohibition on strikes during term of collective agreement didn't allow for political protest
- However, Ontario decision upheld ban as a reasonable limit under s.1
- See later for removal of purposive element in BC after the advent of the Charter
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B) ECONOMIC SANCTIONS AVAILABLE TO THE EMPLOYER
- BC Labour Code mandates that every collective agreement must have a "no-strike clause" that prohibits strikes/lockouts while a collective agreement is in force
- After bargaining in good faith, impasse, conducting a strike vote and waiting 72 hours, a union/employer will be in a strike/lockout position
- Legality may also depend on whether it meets the legal definition of a strike
- BC Labour Code, section 1:
a) Part 1 – Introductory Provisions
1(1) Definitions
- "lockout" includes closing a place of employment, a suspension of work or a refusal by an employer to continue to employ a number of his or her employees, done to compel his or her employees or to aid another employer to compel his or her employees to agree to conditions of employment;"
- Therefore, the lockout, like legal definition of the strike, has 2 components, except that here, one aspect is objective and one aspect is subjective:
i) Objective – Cessation of operations in whole or in part
ii) Subjective - For purpose of compelling employees to agree to terms and conditions of employment
- Purposive component is to ensure not every plant closure meets definition of a lockout
- ie: moving to Mexico isn't a lockout, although threat may be an unfair labour practice
- Generally, a lockout is timely whenever the employees can legally strike
- So basically, there are 2 main economic weapons available to the employer:
a) Lockout – see above
b) Unilateral alteration of working conditions
- Employer may initiate such alterations at any time following the expiry of the statutory freeze in s.32 or s.45(2)
- Freeze usually expires with acquisition of the right to strike or upon initiation of strike/lockout
- The only restriction on the employer's use of the lockout or the unilateral alteration of working conditions flows from the duty to bargain in good faith, as seen in the following case…
Westroc Industries Ltd. v. United Cement International Union (1981 Ont. LRB)…Lockout not unfair
F: - Parties engaged in bargaining, but there's a series of agreements at different locations
- Employer believes union at one plant is dragging on bargaining by waiting for agreements at the other plants to expire, and concludes they're not interested in reaching an agreement
- In response, employer implements lockout and hires replacement workers
I: - Did they employer commit an unfair labour practice?
J: - No, for employer, demonstrated good faith before and after lockout
A: - Board holds that employers can employ a lockout before the union takes a strike vote, as long as they:
a) Bargaining in good faith
b) No anti-union animus punishing the union
- Board also holds that, in Ontario, employer has the right to try and operate during the lockout
- B: note that BC legislation (and Quebec) doesn't permit hiring of replacement workers…can only use management to replace the work done by striking workers
R: - Lockouts are legal as long as they cease operations for the purpose of compelling employees to agree to terms and conditions of employment, even if action is done pre-emptively
- On its face, it would seem like any unilateral alteration of working conditions amounts to the breach of the duty to bargain in good faith
- However, duty only requires that employer must first give the union an opportunity to accept the proposed terms before acting on its own, and employer's conduct must otherwise show a willingness to conclude a collective agreement
- See subsequent section on illegality of replacement workers in BC as well…
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4) LEGAL FORMS REGULATING INDUSTRIAL CONFLICT
- Every BC collective agreement has a term stating you can't strike during the collective agreement, so if the employer believes this has been breached, where do they go?
a) Arbitrator – Interpret Clause
- Arbitrator determines whether the clause has been breached
- They usually calculate the loss of the employer from the unlawful strike and award damages
- St. Anne Nackowic: damages are awarded by arbitrator, but courts can grant injunctions
b) Labour Board – Legality of Strike
- Should file complaint with the Board and get an order, since a term has been breached
- Traditionally, they rule as to whether strike is legal, and can order cease-and-desist orders that can be enforceable in court
c) Court – Picketing Behaviour
- Get an injunction to stop workers from striking immediately
- Historically, courts grant these remedies through tort law or criminal law to regulate picketing
- Tort: declaration of contempt or injunction in aid of claim available
- Since this is a court proceeding, you need a cause of action
- St. Anne Nackowic: court has inherent right to issue injunctions, regardless of Labour Code
- This set-up may be inconvenient for employers, and recently changes in the Labour Code made to broaden the scope of the Labour Board and narrow the jurisdiction of the court in respect to remedies
- BC is probably the most progressive province here, as they have sections regarding picketing
- However, jurisdiction of court to issue injunctions is constitutional in nature, so while the BC Labour Code can give more power to the Labour Board, at best they can grant concurrent jurisdiction
- Employer, in court, will state that they need an interlocutory injunction to preserve the status quo
- This is pending a full trial, in circumstances where applicant was in danger of suffering irreparable harm that could not be adequately compensated for by money damages awarded after the event
- Thus 3 requirements the plaintiff must prove to get an injunction order:
a) Serious issue to be tried
- Prince Rupert Grain: In cases such as restraining picketing, the order effectively provides the whole of the relief sought in the action, and therefore the threshold test is much higher: whether the applicant has established a strong prima facie case
b) Must show irreparable harm
- Court, at this point, will consider if there is an adequate alternative remedy
- B: grey area, as Labour Board might be adequate alternative remedy depending on statute
c) Balance of convenience favours issuing an injunction
- 4 concerns about employers getting to use interlocutory injunctions in labour disputes:
a) Undue haste – employer often gets injunction ex parte without notice
b) Lax proof requirements – affidavits, not viva voce evidence in interlocutory proceedings
c) Not normally appealable – no chance to correct errors before damage done
d) Broad scope – defendants defined broadly, so bound too many people
- In response to these problems posed by a labour injunction, BC Labour Code abolished the courts' authority to grant injunctions in labour matters, providing instead for regulation by labour board:
a) Part 9 – Labour Relations Board
136(1) Jurisdiction of board
- "Except as provided in this Code, the board has and must exercise exclusive jurisdiction to hear and determine an application or complaint under this Code and to make an order permitted to be made"
136(2) Jurisdiction of board
- "Without limiting subsection (1), the board has and must exercise exclusive jurisdiction in respect of
(a) a matter in respect of which the board has jurisdiction under this Code or regulations, and
(b) an application for the regulation, restraint or prohibition of a person or group of persons from
(i) ceasing or refusing to perform work or to remain in a relationship of employment,
(ii) picketing, striking or locking out, or
(iii) communicating information or opinion in a labour dispute by speech, writing or other means"
137(1) Jurisdiction of court
- "Except as provided in this section, a court does not have and must not exercise any jurisdiction in respect of a matter that is, or may be, the subject of a complaint under section 133 or a matter referred to in section 136, and, without limitation, a court must not make an order enjoining or prohibiting an act or thing in respect of them"
137(2) Jurisdiction of court
- "This Code must not be construed to restrict or limit the jurisdiction of a court, or to deprive a court of jurisdiction to entertain a proceeding and make an order the court may make in the proper exercise of its jurisdiction if a wrongful act or omission in respect of which a proceeding is commenced causes immediate danger of serious injury to an individual OR causes actual obstruction or physical damage to property"
- Therefore, courts may still grant injunction in these two circumstances
137(3) Jurisdiction of court
- "Despite this Code or any other Act, a court must not, on an application made without notice to any other person, order an injunction to restrain a person from striking, locking out or picketing, or from doing an act or thing in respect of a strike, lockout, dispute or difference arising from or relating to a collective agreement"
- Thus, any time you need a remedy, you should have some idea of which legal forum to start the action
- However, superior courts retain inherent jurisdiction to grant injunctions in labour disputes
- Employer will get one as long as they satisfy test for injunction (prima facie case, irreparable harm, balancing interests)
- Next case is leading SCC case on remedies available for illegal industrial action…
St. Anne Nackawic v. Canadian Paper Workers Union (1986 SCC)…Courts issue injunctions
F: - Union represented two bargaining units – mill workers and office workers – that went out on legal strike and picketed a mill
- Mill workers, who could not legally strike because their collective agreement was in force, stayed out in sympathy with office workers
- Employer got interlocutory injunction…mill workers didn't return until held in contempt of court
- Two weeks later, same thing happened, and then employer claimed damages against the union for the losses caused by the mill workers' strike
I: - Could the lower court grant an injunction to enforce the no-strike clause of a collective agreement, and then award damages for that purpose?
J: - Yes, for employer
A: - In cases where the issue arose out of the collective agreement, and the proper interpretation of the agreement was disputed, courts don't have jurisdiction
- Instead, interpretation disputes are regulated through arbitration
- Doesn't matter if both parties agree on interpretation…rights arising from CA not heard in court
- However, claim for damages must be advanced in front of arbitration board
R: - Courts retain inherent jurisdiction to issue injunctions restraining illegal strike activity during the currency of a collective agreement, but arbitration boards retain jurisdiction to award damages arising from the dispute
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5) RAMIFICATIONS OF THE REMOVAL OF PURPOSIVE ELEMENT
- Once again, the legal definition of the strike in BC:
a) Part 1 – Introductory Provisions
(1) Definitions
- "'strike' includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slowdown or other concerted activity on the part of employees that is designed to or does restrict or limit production or services, but does not include
(a) a cessation of work permitted under section 63(3), or
(b) a cessation, refusal, omission or act of an employee that occurs as the direct result of and for no other reason than picketing that is permitted by or under this Code"
- Therefore, this includes 2 objective components:
a) Collective action
b) Intent/effect of reducing output of goods/services
- Case law extends actions beyond peaceful and complete cessation of work
- In BC, until 1984, strike had a 3rd subjective component, requiring proof that action was for the purpose of compelling the employer to agree to terms and conditions of employment
- Removal had a significant effect, as workers bound by a collective agreement, and not legally entitled to strike, could now do so as deletion gave unions big scope for more flexible actions
- Now, BC is the only province that allows negotiation for a clause that says you don't have to cross another unit's picket line
- Hot edict clauses also unlawful, unless you've negotiated a clause to that effect
BC Public School Employers' Assn. v. BC Teachers Federation (2005 BCCA)…s.2(b) for public sector
F: - BC Liberal gov't passes legislation removes the issues of class size and class composition from collective bargaining as an issue…will be set unilaterally by school board from now on
- At the same time, they passed back-to-work legislation ending a partial strike by teachers and imposed a new collective agreement that was not freely negotiated
- Teachers, in response, issue a "Report to Parents" card to be distributed to parents during parent-teacher meetings describing the situation
- School board, in response, forbids teachers from posting material on bulletin boards or distributing/communicating card info to parents
- Union argues this action violates their s.2(b) freedom of expression rights under the Charter since the School Board is a branch of government and thus subject to Charter by operation of s.32
I: - Can actions of workers, which have an expressive component and occur during the lifetime of a collective agreement, be restricted by the employer?
J: - No, for union (with dissent, which would of upheld action under s.1)
A: - Two judgments:
a) Majority – Huddart J.A.
- Free speech only restricted if it's incompatible with the purpose or use of public property
- Here, what's being restricted is the content, not where the speech is taking place
- However, fails s.1 at minimal impairment test, as it's an absolute ban of discussion on school property during school hours and parent-teacher meetings
- Here, there's no more appropriate forum for a discussion of the need for resources for public schools than a parent-teacher interview dedicated to one child's education
b) Dissent – Lowry J.A.
- Agrees there's a violation of s.2(b)
- Unless class size relates to the particular needs of students during the meetings, restrictions on content are fine and doesn't fail minimal impairment test
- Note: this action does not apply to private sector workers, who don't fall under the Charter
R: - Workers who are employed in the public sector can invoke s.2(b) of the Charter to protect their freedom of speech regarding bargaining issues during the operation of a collective agreement
Labour Law Problem #5 – Is a Protest a Strike?
F: - BC gov't introduced legislation affecting the future ability of the BC Teachers Federation and the Hospital Employees Union to bargain
- Union organized days of protest…teachers did so peacefully and voluntarily, hospital protests got violent when vehicles tried to enter barricaded hospitals
- Gov't applied for order that protests were strikes during existence under collective agreement
- Unions challenged Labour Code's definition of a strike as violating their rights to freedom of expression under s.2(b) of the Charter in a manner not justified under s.1
- In particular, union points to 1984 amendment to the definition of a "strike", which removed the requirement that the work stoppage be for the purpose of compelling the employer to agree to terms and conditions of employment
I: - Is the gov't action ordering employees back to work justified under s.1?
J: - No, for union…fails minimal impairment test
A: - Several Q's:
a) What arguments will the Unions and the Employer make with respect to s.2(b)?
i) Section 2(b) – Does the expression fall within the scope of s.2(b)?
- Union will argue: (probably successful with s.2(b) protection)
- Limits political protest, as they're prohibited in engaging in large scale protest while a collective agreement is in place
- High-value speech at the core of s.2(b)
- Employer will argue: (will have better luck with s.1 justification)
- Doesn't constitute political protest
- Hospital workers hitting cars constitutes violence, thus falling outside scope
ii) Can gov't action be justified under s.1 of the Charter?
- Union will argue:
- There is no other equally effective mechanism, as employees ordered back to work and can't get in legal strike position, so fails minimum impairment
- Employer will argue:
- Can't protest during working hours just like private sector employees, but still free to protest during non-working hours
- Action is part of a comprehensive scheme for labour relations designed to reduce labour unrest (but just legislated everybody back to work)
b) Is there any way to distinguish the actions of the teachers from those of hospital workers?
- Distinguish violent expression, which isn't protected, from political protest
c) If the constitutional challenge succeeds, what should the remedy be?
d) What, if anything, could employers do when employees walk off the job?
- If union violates court order, they'll be in violation of a court order
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6) THE REGULATION OF PICKETING
A) JURISDICTION
- St. Anne: most Canadian labour relations statutes do not explicitly deal with picketing (except BC Code):
a) Part 1 – Introductory Provisions
1(1) Definitions
- ""picket" or "picketing" means attending at or near a person's place of business, operations or employment for the purpose of persuading or attempting to persuade anyone not to
(a) enter that place of business, operations or employment,
(b) deal in or handle that person's products, or
(c) do business with that person,
and a similar act at such a place that has an equivalent purpose"
- Thus, according to s.1, there are three elements of picketing:
a) Attendance
b) At or near a person's place of business
c) For the purpose of persuading people not to do business with that person
- However, note that in K-Mart, SCC declared this definition of picketing to be of no force or effect
- Various forms of regulation draw a distinction between two types of picketing:
a) Primary Site Picketing
- Done at the struck employer's place of business
- Labour boards tend to be much more permissive toward primary picketing than secondary
b) Secondary Site Picketing
- Done somewhere else, and held to be illegal per se (Heerse doctrine)
- ie: at the premises of a customer who continues to sell the struck employer's goods
- Striking and picketing overlap, but they are not the same thing
- ie: Can picket without being on strike, or with no relation to a labour dispute at all, such as a political protest, and can be on strike without picketing
- This presents challenges for labour law, especially since picketing is an activity that you would think would be protected under s.2(b) of the Charter
- The next case raises many policy issues involved in BC's statutory substitution of administrative for judicial regulation in regards to picketing…
Canex Placer Limited v. Canadian Association of Industrial Workers (1975 BCLRB)…Jurisdiction
F: - During a legal strike at the company's mine, large numbers of picketers totally blocked access to the mine by standing in the road and by uttering "some isolated threats of violence"
- Company applied to the Board for an order prohibiting such conduct
I: - Does the Board have the power to prohibit this behaviour?
J: - No, for union
A: - Picketers activities seems illegal at first blush, violating Criminal Code's prohibition of assault or threats of violence, CL torts of battery and assault, Highway Act, ect…
- However, Board now can protect 'why', 'where', 'when' of picketing by statute
- 'How' of picketing still subject to common law, Criminal Code, and other statutes
- Employer argued that Labour Code should be interpreted as eliminating judicial injunctions entirely from labour disputes
- However, constitutional issues over granting board power to deal with violence on picket line
R: - Labour Boards can only enforce the strike and picketing sections of the Labour Code rather than general criminal or civil law, even if only in the labour relations context, and therefore courts retain jurisdiction to deal with acts which are illegal independent of the Labour Code
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B) PRIMARY PICKETING
- BC Code:
a) Part 5 – Strikes, Lockouts, and Picketing
65(3) Picketing
- "A trade union, a member or members of which are lawfully on strike or locked out, or a person authorized by the trade union, may picket at or near a site or place where a member of the trade union performs work under the control or direction of the employer if the work is an integral and substantial part of the employer's operation and the site or place is a site or place of the lawful strike or lockout"
- This section permits primary site picketing
- Labour boards and courts allow a wide scope for primary picketing in support of a legal strike if:
a) Picketing is focused directly on the business of the struck employer, and
b) Affects third parties only in their dealings with that employer
- Other CL and Criminal Code restrictions are enforced by the ordinary courts
- With picketing, there will always be some interference with the civil and legal rights and others, and the next case explores the limits of "give and take" on the picket line…
Harrison v. Carswell (1976 SCC)…Worker prohibited from picketing in front of shopping mall workplace
F: - Employee of a tenant in a shopping mall picketed peacefully on a sidewalk in front of store, and the employer didn't prohibit her from doing so
- However, the owner of shopping mall told her to got to a sidewalk far away from the store/mall
- Employee was charged with trespass when she refused to move
I: - Can the courts interfere with peaceful picketing that involves a trespass?
J: - Yes (with strong dissent)
A: - Two judgments:
a) Dickson J – Majority
- Right of the individual to the enjoyment of property and the right not to be deprived thereof has been found to be a fundamental freedom
- Petty Trespass Act clearly sets up an offence for any person who trespasses upon land
b) Laskin CJC – Dissent
- Shopping centre is a unique locale, as it is property accessible to the general public
- Individual able to picket not only as a member of the public but also as an employee
- As employee, had interest, sanctioned by law, in pursuing legitimate claims against her through the peaceful picketing in furtherance of a lawful strike
R: - There is implicit in picketing activities some degree of interference with the civil and legal rights of others, and the courts will regulate the limits of this "give and take" on the picket line
- BC responded to Harrison by amending the BC Labour Relations Code:
a) Part 5 – Strikes, Lockouts, and Picketing
66 Actions
- "No action or proceeding may be brought for
(a) petty trespass to land to which a member of the public ordinarily has access,
arising out of strikes, lockouts or picketing permitted under this Code or attempts to persuade employees to join a trade union made at or near but outside entrances and exits to an employer's workplace"
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C) SECONDARY PICKETING
- McLachlin CJC in Pepsi: secondary picketing is "typically defined as picketing in support of a union which occurs at a location other than the premises of that union's employer"
- Secondary picketing is presumptively illegal (Hersees), subject to two exceptions (Pepsi, p.538):
a) Primary Employer
- Court made an exception if the picketing was directed towards the primary employer
- ie: location of workplace, though not primary workplace of employees, had the same owner
b) Ally doctrine
- Ally has lost claim of neutrality because it has done something to help employer withstand strike
- BC Labour Code:
a) Part 5 – Strikes, Lockouts, and Picketing
65(1) Picketing
- "In this section:
"ally" means a person who, in the board's opinion, in combination, in concert or in accordance with a common understanding with an employer assists the employer in a lockout or in resisting a lawful strike"
65(4) Secondary Picketing
- "The board may, on application and after making the inquiries it requires, permit picketing
(a) at or near another site or place that the employer causing a lockout or whose employees are lawfully on strike is using to perform work, supply goods or furnish services for the employer's own benefit that, except for the lockout or strike, would be performed, supplied or furnished at the site or place where picketing is permitted by subsection (3), or
(b) at or near the place where an ally performs work, supplies goods or furnishes services for the benefit of a struck employer, or for the benefit of an employer who has locked out,
but the board must not permit common site picketing unless it also makes an order under subsection (6) defining the site or place and restricting the picketing in the manner referred to in that subsection"
b) Part 9 – Labour Relations Board
136(2) Jurisdiction of board
- "Without limiting subsection (1), the board has and must exercise exclusive jurisdiction in respect of
(ii) picketing, striking or locking out"
- BC, unlike most jurisdictions, has a statutory section of picketing in s.1
- However, in K-Mart, s.1 of BC Labour Code was struck down, and it was never replaced
- Upheld in Canadian Forest Products, but this does not mean that the Board loses jurisdiction to regulate picketing…it does by virtue of s.65 and s.67 of the Code
- It just means that the Board, like many other terms in the Code, can regulate picketing without having a statutory definition to refer to
- Also, in regards to Pepsi and s.65(4) of the Code, BC permits secondary picketing, but only the secondary picketing of an ally
- Pepsi holds that all secondary picketing is protected as it eliminates the distinction, so the situation in BC is unclear
- In BC, can't set up picket line at someone else's workplace unless it's valid secondary picketing
- Courts hang on to what's left of its statutory regimes and won't permit secondary picketing unless lawfully on strike, picketing own employer, or picketing an ally
- In the following cases, SCC jurisprudence and BC statute don't mesh, so situation is muddy and BC labour boards have to make decisions on a case-by-case basis
UFCW v. K-Mart (1999 SCC)…Leafletting is protected expression and ban not saved under s.1
F: - Union was legally on strike, but went to another K-Mart store and handed out leaflets encouraging customers to avoid shopping at K-Mart
- It's done in the parking lot, by union members, in the context of a labour dispute
I: - Is passing out leaflets protected by the Charter?
J: - Yes, for union
A: - Distributing information is at the core of s.2(b) of the Charter
- As long as union members handing out flyers are not doing anything coercive or breaking the law, they are permitted just like any other member of society
- However, picketing is distinguished from handing out leaflets, as it would contain a signal effect
- It would no longer be information, but rather coercive activities signaling other union members not to work at the employer's premises
- Thus signal effect of picketing raises strong justifications for regulating picketing
- However, next case Pepsi makes clear that signal effect does not justify prohibition of secondary picketing at common law absent a legislated regulatory scheme
- Also, this decision strikes down the s.1 definition of "picketing" without replacing it with anything
- It was an overbroad restriction on freedom of expression on the grounds that it applied not only to conventional picketing but also to consumer leafletting
- Significant because as soon as something becomes a real picket line, there's a real problem
- Thus the distinction between informational picketing and signal effect picketing that transcends speech and becomes coercion
R: - The Supreme Court distinguishes between coercive, signal effect picketing (not protected) v. informational picketing such as leafletting (protected)
Pepsi-Cola v. Local 558 (2002 SCC)…Secondary picketing is legal absent tortuous or criminal conduct
F: - Pepsi legally locked out employees, who respond by picketing at bottling site
- After strike turned ugly, Pepsi got an injunction enjoining further violence
- Union responds by picketing retailers who continue selling Pepsi products…no corporate connection
I: - When, if ever, is secondary picketing allowed to be legally conducted?
J: - Here, OK, for union
A: - Reference to
- As long as secondary picketing doesn't amount to wrongful or tortuous activity, it is permitted
- Strikes down Hersees; all lawful (peaceful) picketing is lawful and not to be enjoined
- Pepsi makes several arguments:
a) There would be undue harm to neutral third parties
- Former position was that any disruption to a neutral was unacceptable
- However, court not persuaded that it is necessary to ban all secondary picketing in order to prevent labour disputes from unduly spreading and unduly harming neutral third parties
b) Picketing is unjustified per se because it has the effect of "signaling" that people must not do business with neutral third parties…ie: the signal effect
- Effect states that expression through a picket line may "signal" that the line is a barrier and hence acquire coercive impact
- However, court questions rationality of signal effect logic
- Picketing in and of itself is not intimidating, and therefore is not tortuous
- Also, picketing is expression, and only banned if there is a wrongful action
- Therefore, secondary picketing only banned if there is a wrongful action, such as an illegal act, regular tort, or most common, an economic tort
- Labour speech is of fundamental importance, and restrictions on it must be carefully justified (such as undue harm to third parties and integration with a legislative scheme)
- Court also removes distinction between primary and secondary, as both are forms of expression, even when associated with tortuous acts
- However, when the harm of expression outweighs its benefit, the expression may be curtailed
- Thus, s.2(b) of the Charter is subject to justificative limits under s.1
- Idea: could be argued that economic torts (ie: inducing breach of K) will fill gap left by removal of secondary picket ban
- Therefore there might be no substantive change, only procedural change
- See Prince Rupert Grain, where there was no economic tort because no signal effect picketing
R: - Secondary picketing is no longer illegal in BC per se, and is now legal so long as it is not tortuous or criminal and does not inflict undue hardship on the parties
- Result of the cases is that picketing is permitted under s.2(b) of the Charter, regardless of whether it's secondary or primary picketing
- However, limitations on picketing may be upheld under s.1 if it involves tortuous behaviour or contains a coercive, not an informational element
Canadian Forest Products Ltd. (2006 BCLRB)…Picketing provisions of code upheld under s.1
F: - Conflict occurs during the context of May Day political protests across BC against Liberal gov't
- Health Care workers went on strike first, but Legislature passed "back-to-work" legislation
- Workers stay on strike 3 days after legislation is passed anyways
- Some health care workers head over to Prince George mill, and tell Canfor managers that it was an information picket line, which management allowed
- However, at 2pm, one union member made an "official picket line" announcement
- Once this declaration was made, the mill workers refused to cross the picket line
- The mill closed for 2 days and Canfor lost $1.4 million in revenue
- Canfor can sue the union, as collective agreement with the union had a "no-cross" clause
- Therefore, Canfor seeks a declaration from the Labour Board that the Health Services union picketed illegally under the BC Code so it can claim $1.4 million in losses sustained during the strike
- Since union was ordered back to work, they couldn't be on strike
- Also, claims the picketing had a coercive signal effect on the mill workers
- Union argues that it was a political protest outside the scope of the Labour Code's operation
- Also, claims the dispute never ended, but rather they were in an ongoing dispute with gov't
I: - What is the appropriate scope of the picketing provisions under the BC Labour Code?
J: - For employer…illegal picket line after 2pm
A: - After K-Mart, picketing is no longer expressly defined in BC, and therefore the Board must come up with a definition (but Board retains jurisdiction to deal with it)
- Notes that Pepsi emphasized fundamental importance of labour speech
- Therefore, picketing should only be restricted where there are strong justifications
- While the Code contemplates picketing, it restricts it only to those circumstances where it fulfils its purpose relating to collective bargaining: pressuring a struck employer to reach a collective agreement
- Board considers Overwaitea, where workers had placards, one side with coercive message; other side stating "non-strike" in small letters
- Board concludes that the cards engaged signal effect of conventional picketing
- Holds that there is a "bright line" test between signal effect picketing with a coercive effect trying to get an automatic response v. informational leafleting
- However, here, in unique context of back-to-work legislation only, "signal effect" test applies
- In all other situations, the "bright line" test applies
- Unlike in Overwaitea, where only consumer leafleting was considered, union here argues that placards with exclusively political messages exercise a fundamental Constitutional right – persuasive political protest – that has a central place in democracy
- Board notes that placard-wearing political protest has a long tradition in BC
- However, political placarding can also be used as a "front" for a picket line
- Concludes that determining whether employees who are not in a legal strike position are handing out leaflets or setting up a picket line depends on the nature of the expression
- As an expert labour relations tribunal, the Board is capable of assessing whether the message sent contains the "signal effect" of a picket line
- Here, court examines whether the message was:
a) "This is a political protest, if you agree with our position, support us as you wish"?...or
b) "This is a picket line, do not cross it for that reason"
- Following 2pm "official picket line" announcement, mill workers were in 'b' scenario
- For the Charter, board finds that neither the method of expression (peaceful placarding) nor its location (a public roadside) disqualify it from s.2(b) protection
- However, the Board concludes that limiting signal effect picketing outside a legal strike position is a reasonable limit under s.1 on freedom of expression in the Charter
R: - Interpretation of "picketing" in the Code is one which allows political placarding at business entrances, provided that whose who engage in that activity are careful to ensure it is clear they do not convey the "signal effect" that it is a picket line, and while the "picketing" provisions of the Code violate the Charter, they are upheld under s.1
Labour Law Discussion Problem 6: The Ally Doctrine
F: - E-Comm is company established in 1999 receives 911 emergency calls and dispatch emergency personnel…employees are represented by CUPE and are legally on strike
- Coquitlam is member of E-Comm, but uses E-Comm operators only to receive 911 calls from Coquitlam residents, who then transfers calls to Coquitlam police, fire, and ambulance dispatchers, who dispatch the required assistance
- RCMP provides policing services to Coquitlam pursuant to federal-provincial agreement, which requires Coquitlam to provide communications operators to RCMP
- RCMP also has its own agreement with E-Comm…prior to strike, RCMP agreed with E-Comm that E-Comm trainers would train Coquitlam communications officers in the use of this system at E-Comm headquarters
- Union announced intention to picket RCMP premises on training dates, and RCMP and the city apply to the Board for an order that the picketing would be unlawful
I: - What basis does the union have for claiming a right to picket the RCMP premises?
A: - Board tries to distinguish between self-help actions to protect one's own operations (permitted) v. actions which are intended to help the other party withstand the strike (not permitted)
- Looking for "undue assistance" that would escalate picketing
- Since Board isn't eager to declare a party an ally, there is some scope to challenge the BC Labour Code definition as too restrictive
- In the next case, commentators disagree on its effect
- Some claim it applies the Pepsi doctrine of eliminating primary/secondary picketing distinction, thus opening the doors for secondary picketing in BC
- B: this is a federal dispute under the Canadian Labour Code, so she is skeptical of treating this decision as importing Pepsi into all BC labour relations
Prince Rupert Grain Ltd. v. Grain Workers' Union (2002 BCCA)…Injunction struck down as invalid
F: - Vancouver grain terminal is lawfully on strike, but want to escalate picketing
- Employer, to resist the picketing, re-opens a grain terminal in Prince Rupert, which had a collective agreement with the union workers there but was a different bargaining unit
- Workers picket Prince Rupert terminal, and workers have a "no-cross" clause in collective agreement
- Employer goes to court and gets an injunction at trial to stop picketing
I: - Was the injunction validly granted?
J: - No, for union, no prima facie case that union committed a tort during picketing
A: - Since this is a federal case, which has no provisions in the Canada Labour Code about picketing, it goes to a common law analysis
- Since there is no unlawful activity, employer must allege secondary picketing involved the commission of a tort
- Court starts from Pepsi, where picketing, however defined, always involves expressive action, and therefore gets the highest constitutional protection under s.2(b) of the Charter
- Employer chooses to proceed under tort of inducing breach of contract, which is a way of collecting damages if somebody intentionally interferes with your contractual relations
- Court overturns injunction for three separate reasons:
a) No-cross clause in collective agreement negotiated by the employer
- Employer can't then proceed to argue is invalid since it's their own contractual provision
- Employer can go to Canadian Labour Code to get a ruling on invalidity of the clause
- Clause gives defence to a claim of breach of K, but can't render a strike lawful under Code
b) In concurring reasons, tort of inducing breach of K doesn't apply, as no third party
- It’s simply a breach of contract issue between union and employer
c) Wrongful action inducing breach of contract must be beyond the picketing itself
- Must have something else beyond lawful picketing, as purpose of picketing is persuasion
- Here, no coercive message or threats were sent on picket signs and leaflets
- Therefore, even if there had been breach of K, no inducing breach of K because there was no unlawful signal effect
R: - In a federal dispute under the Canadian Labour Code, the BC Court of Appeal held that there was no prima facie case for an injunction against secondary picketing because it did not contain the signal effect necessary to prove the tort of inducing breach of contract
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7) THE JOB RIGHTS OF STRIKERS
- "Right to strike" is not expressly granted by labour legislation and isn't granted by the Constitution (yet)
- Rather, it is implied from the right of employees to take part in the "lawful activities" of unions
- The next case deals with Q of whether employers are entitled to replace workers during a strike…
R. v. Canadian Pacific Railway Co. [The Royal York Case] (1962 Ont. HC)…Replacement workers dicta
F: - Hotel's management sent two letters to strikers: either accept the conditions or resign
I: - Did this amount to an unfair labour practice?
J: - Yes, for union
A: - Court holds that employment relationship does not end by virtue of being on strike
- However, when the case went to the SCC, Locke J. as obiter dicta held that employers can hire permanent replacement workers of lawful strikers
- If strike doesn't settle, or employers don't hire back lawful strikers after settlement, it doesn't violate any labour laws
- This is a very significant limitation on the power to strike
R: - While employment relationship doesn't end by virtue of the strike, Locke J.A.'s dictum with respect to permanent replacement of lawful strikers is significant
- Since the SCC decision, every province forbids "professional strikebreakers"
- These strikebreakers are supplied by a firm for the sole purpose of breaking a strike/union
- In most provinces, the use of "professional strikebreakers" or hiring of permanent replacements has been expressly forbidden
- Significant for small bargaining units of unskilled or semiskilled workers, where security firms and labour contractors manage to undercut vulnerable unions by supplying temporary personnel to enable employers to maintain operations
- Most provinces also give a right of return by statute, but in some provinces, this right is time-limited
- In BC, s.68 of the Code bans temporary replacement workers as well, even while employees on strike:
a) Part 5 – Strikes, Lockouts, and Picketing
68(1) Replacement workers
- "During a lockout or strike authorized by this Code an employer must not use the services of a person, whether paid or not,
(a) who is hired or engaged after the earlier of the date on which the notice to commence collective bargaining is given and the date on which bargaining begins,
- Can't use a person hired after notice to begin bargaining
(b) who ordinarily works at another of the employer's places of operations,
- Can't use a person from another work place
(c) who is transferred to a place of operations in respect of which the strike or lockout is taking place, if he or she was transferred after the earlier of the date on which the notice to commence bargaining is given and the date on which bargaining begins, or
- Can't use anyone transferred after notice to begin bargaining
(d) who is employed, engaged or supplied to the employer by another person,
- Can't use any supplied by a third party
to perform
(e) the work of an employee in the bargaining unit that is on strike or locked out, or
(f) the work ordinarily done by a person who is performing the work of an employee in the bargaining unit that is on strike or locked out"
- Thus can't do work done by striking employees as well as work normally done by an excluded employee so that excluded employees can do bargaining work
- It also bans using certain classes of ongoing employees to perform bargaining unit work (Quebec too)
- Therefore, in BC, if employer wishes to continue operations during the strike, they must use management
C.A.L.P.A. v. Eastern Provincial Airways Ltd. (1983 Can. LRB)…Employer couldn't hire replacements
F: - During a lawful strike, company maintained operations by hiring 18 new pilots to fill striking jobs
- They promised new employees that they would retain their jobs after the strike
- Canadian Labour Code had no provision against replacement workers, but it contains a clause making it an unfair labour practice for an employer to refuse to employ a person who has participated in a lawful strike
I: - Could employer hire replacements?
J: - No, for union
A: - Board holds that effect of seniority provisions would be suspended long enough for EPA to accomplish what they could not lawfully do otherwise
- Employees can't be deprived of any terms/conditions because of participation in a lawful strike
- General labour practices may arise where employers are trying to replace workers permanently
R: - Dictim of Locke J. in Royal York no longer reflects the effect of general unfair labour practice provisions in the area of replacement worker laws
- Canadian Labour Code was amended after this case to provide, in s.87.6, that legal strikers or locked out employees must be reinstated in preference to any replacement worker "who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given"
- Policy justifications for both sides of the argument:
a) BC Position – Prohibit Temporary Replacements
i) Increases effectiveness for the union
- Union normally has less power, so the strike is an important weapon for equaling bargaining power and not tilting the bargaining power in employer's direction
ii) Shortens dispute
- No incentive to settle if employer can hire replacements
iii) Limits violence or threats
- See Yellowknife mining case
iv) Reduces exploitation
- Employer can't find methods to lower working conditions and wages by demonstrating to union that they can accomplish worker tasks for next to nothing
b) North American Position – Allow Temporary Replacements (Weiler, Sims)
i) Balances right of strikers to work elsewhere
- Reciprocal to the employees' right to take other jobs in order to protect themselves against their loss of income
- Unions are often able to find work for many striking members
ii) Maintains economic viability of the business
- In private sector, where there is competition, other business could take business
iii) No intimidation
- Threat of violent activity shouldn't dictate policy decisions
iv) Reduce collateral impact on broader economy
- Third parties shouldn't be affected by strike
v) Weiler – Insulate parties from outside competition, going against market-based system of collective bargaining
- Weiler argues that allowing employers to hire temporary replacement workers allows an employer to compile data to determine the real worth of labour in a market economy
- ie: employer pays average wage of $6/hour…employees join a union believing they are underpaid…employer willing to go to $7/hour, but employees on strike insist on $9/hour
- If rule banned temporary replacement workers, it would empower unionized workers to unilaterally fix a wage floor - $9/hour – that their employer must pay if it wishes to have the bargaining unit's work performed
- Additionally, if law barred employees who go out on strike from taking work elsewhere, the employer could unilaterally set a ceiling – here, $7/hour – on the wage that these employees could earn for their services…in a market-based economy, neither result is acceptable
- B: not clear if this argument is totally convincing
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8) ESSENTIAL SERVICES
- Every jurisdiction has some method of declaring groups of workers "essential", which eliminates their right to strike
- General consensus that if a strike will lead to possible deaths, they are an essential service, such as police officers, fire fighters, and first response paramedics
- Legislative approach differs in Canada according to jurisdiction (ie: in Alberta, gov't simply denies right to strike to large parts of public and parapublic sectors…Saskatchewan allows broader right to strike, but readily uses back-to-work legislation)
- In BC, the parties can decide for themselves as negotiate an agreement as to essential services
- If there is not an agreement, the parties can go to the Labour Board, have a hearing, and the Board will decide which workers are essential and what terms ought to apply
- However, despite having this mechanism, the gov't often steps in and overrides the Labour Board
- After Liberals elected in 2001, they amended s.72 of BC Labour Code to allow the government to order the Labour Relations Board to designate as essential any services necessary "to prevent immediate and serious disruption of the provision of educational programs"
- There are conflicting views on legislative approaches in Canada:
a) Union
- Suspicious of any mechanism that limits the right of their most strategically placed members to withdraw services, as it will have an impact on their bargaining power
- Too wide a range of services are thought to be essential (ie: hospital workers, teachers, ect…)
- Even those which are truly essential can safely be reduced to a much lower level than usual for considerable periods
b) Government
- Public will suffer undue hardship from stoppages by certain strategically placed workers
- ie: health care workers, policing, transit, electric/water supply, garbage collecting, teaching
- In modern fast-paced society, these groups of workers are essential
- 2 ways to settle essential service disputes:
a) Back-to-work Legislation
- Even if not an essential service, government can still step in and pass "back-to-work" legislation
- Uniformly criticized by Labour Boards, but Canadian governments have used it to respond to political pressure from an angry public
- This legislation ends the strike, unilaterally imposes all terms, and
- BC Health Services: unclear how far gov't can go now in imposing this
b) Interest Arbiration
- Designed to replace the strike as the mechanism for resolving bargaining disputes
- Interest arbitration allows a third party to determine the terms and conditions of employment
- In theory, it sounds perfect, but compulsory arbitration often reduces the likelihood of negotiated settlements because:
i) Fear of going to arbitration less than fear of work stoppage
- Threat of strike is an inducement to settle…arbitration system doesn't
ii) Chilling effect
- Perception exists that arbitrators "split the difference" between the two parties' positions
- Therefore, both sides adopt extreme positions and maintain them
iii) Narcotic effect
- Negotiators become accustomed to rely on arbitration as an easy way out of making difficult decisions and eventually lose the ability to settle in negotiations
- Thus, it can be useful in first contract negotiation, and necessary in essential services, but not in ongoing collective bargaining relationships
- Also, since decisions don't take into account the ability of the employer to pay, governments have a tendency to disregard arbitrated settlements
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VIII. THE INDIVIDUAL EMPLOYEE UNDER COLLECTIVE BARGAINING
1) INTRODUCTION
- Generally, Canadian labour relations law is wholly predicated on the twin concepts of majoritarianism and exclusivity
- Once a trade union proves that it enjoys majority support in a bargaining unit, it becomes the exclusive bargaining agent for that unit
- No one else is allowed to bargain on behalf of any of the employees in the unit, regardless of what the collective agreement says
- Exception: Canada Labour Code allows dismissed employees to bring a grievance and individually challenge the dismissal…usually, union brings carrying of grievances to arbitration
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2) THE PRIMACY OF THE COLLECTIVE AGREEMENT
- Some well-established and obvious general rules:
a) Once a union has acquired majority support and has been certified or recognized as a bargaining agent, the employer is precluded from bargaining with any other union or any other person or organization on behalf of any employees in the bargaining unit, unless and until the union's bargaining rights are terminated pursuant to statute
b) An employer may not bargain directly with individual employees where there is a statutory bargaining agent
- Exclusive Canada-USA situation
- Thus collective agreement binds unions, employees they represent, and employers
- In the next case, the employer tried to avoid the provisions of a collective agreement, but the result also applies to individual employees…
McGavin Toastmaster Ltd. v. Ainscough (1976 SCC)…Collective agreement primacy over common law
F: - Employer plans to close plant, but before closure, employees went on an illegal strike
- Employees denied severance pay because employer claims the illegal strike disentitled them from it due to the contract of repudiation/fundamental breach of K
I: - Is there any obligation to pay severance pay to the dismissed employees?
J: - Yes, for employees
A: - Court rejects employer argument that individual employees breached the contract
- Doctrine of fundamental breach inapplicable to labour statutes if they are to have any force
- Collective agreement does not create an independent bundle of rights for employees that can be individually breached by employees
- Employer could have:
a) Discipline employees for failing to show up for work…including firing
- Union could then grieve it as being unfair and bring the matter to arbitration
b) Go to labour board for declaration of illegality of strike, or go straight to court to get an interlocutory injunction to stop the strike
R: - The common law as it applies to individual employment contracts does not apply to employer-employee relations governed by a collective agreement
- While not argued in Toastmaster, courts have shown a strong preference in recent years to defer to arbitration any dispute that arises out of a collective agreement
- Weber: does essential nature of the dispute arise out of the collective agreement?
- This is a recent SCC case, but not too important in labour relations context, that discusses the pre-eminence of grievance arbitration…
Allen v. Alberta (2003 SCC)…Disputes arising out of collective agreement go to grievance arbitration
F: - Alberta privatized boiler inspection services, and offered a few employees new jobs with the private company in return for letter of intent stating they lost their status as public employees, weren't part of the collective agreement, and weren't grievable
- Side deal declared by both gov't and union to be outside collective agreement and not subject to arbitration, thus depriving many employees of severance pay (union chose jobs over severance pay)
- Respondents and others, Allen included, took the side deal, but years later sue gov't for severance pay, stating that they didn't resign voluntarily
I: - Were unions entitled to severance pay?
J: - No, for gov't
A: - As to jurisdiction, SCC defers to arbitration in determining right of severance pay
- St. Anne: arbitrators have exclusive control over disputes arising out of collective agreement
- Here, severance pay had been provided for by the collective agreement
- Also, letter of intent, while not formally part of agreement, at least addressed potential grievances and the status of employees who were being transferred to a new employer
R: - If the essential character of the dispute arises either explicitly or implicitly from the interpretation, application, administration, or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide
- One exception to St.Anne/Allen regarding jurisdiction: where the employee and employer have made an individual contractual arrangement before entering into the employment relationship
- ie: pre-employment K guaranteeing salary from previous job
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3) THE DUTY OF FAIR REPRESENTATION
- A fundamental tenet of pluralism is majoritarianism
- The only restriction on union’s exclusive bargaining power is majoritarianism
- ie: ratification of collective agreements, strike votes, ect…
- All jurisdictions in Canada have a clause that proscribes certain behaviours by union, also known as the duty of fair representation
- There is no duty of fair representation – it is a negative duty to avoid acting in the proscribed manners
- Where there is a breach of this duty, full remedial powers are invoked (board can do what it wants)
- BC Labour Code, s.12, extends to both union and non-union members:
a) Section 12 – Duty of fair representation
12(1) "A trade union or council of trade unions must not act in a manner that is arbitrary,
discriminatory or in bad faith
(a) in representing any of the employees in an appropriate bargaining unit, or
(b) in the referral of persons to employment
whether or not the employees or persons are members of the trade union or a constituent union of the council of trade unions"
- Only option for individual employees where their union refuses to bring their grievance to arbitration
- Duty of fair representation has developed as a procedural check on majority rule and has become a friction point between union and individual employees
- Duty was first formulated in the USA in the following case of blatant racism…
Steele v. Louisville & Nashville Railroad Co. (1944 USSC)…Union can't discriminate against non-union
F: - Union firemen's constitution explicitly excluded African-American firemen
- Negotiated terms in collective bargaining to force black firemen out of the job altogether
- Black firemen sue for an injunction to stop implementation of the collective agreement
I: - Is the collective agreement valid?
J: - No, can't discriminate against black firemen (but don't have to make them members, either)
A: - Purpose of principle of majoritarianism doesn't preclude any duty of the majority in the union in protecting the minority
- Court holds that the union has a duty not to discriminate against non-members of the bargaining unit
- Doesn't mean variations can't occur, but allowable limits of differences must be relevant to the authorized purposes of the collective agreement in conditions for which they are to be applied
- Thus union doesn't have to change constitution to permit black members…just must be fair to non-members (subsequently outlawed by Human Rights Legislation)
R: - The duty of fair representation requires the union, in collective bargaining and in making contracts, to represent non-union or minority union members of the craft without hostile discrimination, fairly, impartially, and in good faith
- There are 3 possible models for understanding the content of the duty of fair representation:
a) Minimal Duty – Cox
- So long as the union acts in good faith and can give some rational explanation for deciding to proceed as it did, the duty is fulfilled and the individual has no recourse against the union
b) Expansive Duty – Summers
- Individual employees ought to be able to complain and bypass the union anytime the union fails to represent their interests
c) Middle Ground – Weiler
- If decision of the union is something so fundamental to the terms of employment (ie: dismissal), the individual ought to have recourse against the union
- In Canada, we have adopted the Cox approach, where Labour Boards don't interfere with union decisions
- Duty of good faith limited to following appropriate procedures and no outward bias
- Thus duty is procedural – if individual makes a complaint, Board will ask if the union properly investigated the decision, acted without bias, ask for employee consultation
- Once these procedural fairness standards are met, the Board will not go into the merits of the decision
- Success is very, very rare…around 2%
Rayonier Canada Ltd. v. International Woodworkers of America (1975 BCLRB)…Union didn't breach
F: - Employer operates at two sites…one site closes, and rights of recall based on seniority
- Nasato, a more senior employee, found work elsewhere during the lay-off, refused right of recall
- Junior employee, Anderson, took the job instead, and claims Nasato lost seniority once he wanted his old job back…naturally, union refuses to bring his grievance to arbitration
- Thus junior employee, Anderson, brings duty of fair representation complaint
I: - Does union have the authority to refuse to press a grievance which the affected individual employee wants to have proceeded with?
J: - Yes, for union
A: - Weiler describes 3 aspects of the content of the duty of fair representation imposed on a union:
a) Good Faith
- No personal hostility, political revenge, or dishonesty
b) No Discrimination
- No violations of Human Rights Code or simple, personal favouritism
c) Cannot Act Arbitrarily
- Can't disregard interests of one employee in a perfunctory manner
- No discussion of fairness or substance of the agreement…only concerned about procedural fairness, which includes factors such as:
a) How critical is the subject matter of the grievance to the interest of the employee?
b) How much validity does the claim appear to have?
c) What has been the previous practice respecting this type of case and what expectations does the employee reasonably have from treatment of earlier grievances?
- Here, practice was long standing
d) What contrary interests of other employees or of the bargaining unit as a whole have led to the union to take a position against the grievor?
- Here, Nasato would have lost his seniority
- Also, the practice benefiting the bargaining unit as a whole
R: - Labour Boards will be deferential to unions in their decisions not to bring individual grievances as long as they take a reasonable view of the problem before it and arrive at a thoughtful judgment about what to do after considering the various relevant and conflicting considerations
- Before the next case, SCC recognized that the Human Rights Code is incorporated into every collective agreement, and it's not open to a union to negotiate an agreement against the Code
- ie: no clauses stating can't hire an individual with a disability…religious views can't work Saturdays
- Implication is Labour Boards have the right to apply the Human Rights Code in resolving disputes
- Thus union's duty of fair representation is heightened in cases of discrimination
K.H. v. CEP (Sask. LRB)…Successful DFR complaint where discrimination is a trigger for success
F: - K.H. is a worker suffering from depression, and employer wants him to get an independent medical exam because of how he was communicating with his co-workers
- K.H.'s physician and employer's physician disagrees on depression treatment, and ultimately he's dismissed for failure to submit to independent exam and the impact on his work
- Union refuses to bring grievance based on K.H.'s failure to submit to independent exam, and employee brings duty of fair representation complaint against union
I: -Were policies and practices of union in dealing with K.H.'s circumstances discriminatory?
J: - Yes, for K.H.
A: - Union argues it's program of "progressive discipline" was an adequate framework to solve problems
- While union practices may have satisfied duty, they were inadequate in this particular situation to address K.H.'s particular situations
- Union's duty was different where there was an issue with mental disability
- Union shouldn't have just accepted employer's treatment of K.H. like he was a regular employee
- Not unreasonable to expect trade unions to accept consequences of discrimination, whether or not they have limited resources
R: - Labour Boards will apply a stricter duty of fair representation against unions where discrimination is involved, and will look beyond issues of procedural fairness into the merits of the case
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4) UNION SECURITY PROVISIONS AND THE ROLE OF UNIONS IN SOCIETY
- There are 3 kinds of union security clauses, and all collective agreements must have 1 of these 3:
a) Voluntary Checkoff
- Statutory minimum in BC, where it's up to individual employees whether they wish to join a union or not…almost no security at all
- However, if they join, they can require the union to take dues directly off their salary
b) Rand Formula
- Statutory minimum in federal jurisdiction, where employees do not have to become members of a union but are required to pay union dues regardless
- Advantage of formula is it discourages "free riders"…people who don't join but receive benefits
- Lavigne: union using dues in disparate ways doesn't violate a member's Charter rights because unions have an important role to play in society
c) Union Shop/Closed Shop
- If an individual wants to keep their job, they must join a union…no choice formula
- This model gives the union more control over its members
- ie: threat of expulsion for members that don't follow the union's constitution
- Also increases threat of decertification campaign
- Most unions can't negotiate this in their first agreement…takes time to develop
- For employer, this model deprives them of some power to hire/fire workers
Lavigne v. Ontario Public Service Employees Union (1991 SCC)…Individual unsuccessful in suing union
F: - Union member upset that union is using dues he pays to support political causes (ie: NDP)
- Doesn't challenge requirement to pay dues, but the use to which the union is putting the dues
- Claims s.2(b) and s.2(d) freedom of expression and association Charter rights are violated
- Also, note that union was for Ontario community colleges under substantial government control and thus were government actors under s.32 of the Charter, so collective agreement subject to Charter
I: - Is the union limited in the ways it can spend union dues?
J: - No, for union (unanimous)
A: - Wilson J. rejects argument that union promoting causes individual didn't support violated Charter
a) Freedom of expression – s.2(b)
- The fact that he was required to pay union dues doesn't inhibit him in any meaningful way from expressing a contrary view as to the merits of the causes supported by the union
- Rand Formula structured so that union activities represent only the expression of the union as the representative of the majority of employees
- Thus it is not the voice of one and all in the bargaining unit
b) Freedom of association – s.2(d)
- Not infringed, but not discussed…see Advance Cutting
- La Forest J. states objective in compelling a union member to pay dues knowing that they could be used to fund activities not relevant to the representation of his interest in collective bargaining:
a) Industrial democracy rationale, as ensuring everybody is engaged in important issues
- Similar to gov't, where taxpayer money is always spent contrary to interests
b) Ensure unions have enough economic resources to shape the socio-political causes that may be beneficial to its members
R: - Once certified, unions are permitted to exercise authority over members of the bargaining unit, including using union dues to fund activities opposed by union members or further issues not immediately relevant to collective bargaining
- The following case challenges the existence of the union shop/closed shop model as violating s.2(d) freedom of association Charter rights…
R. v. Advance Cutting and Coring Ltd. (2001 SCC)…Court upholds closed shop provisions in statute
F: - In context of bitter dispute between Quebec and Ontario, Quebec passes legislation to make it difficult for Ontario workers to get a work certificate in Quebec…basically closed shop model
- Firms hiring in Quebec challenged legislation as violating s.2(d) of the Charter, claim that s.2(d) includes the corollary right not to associate, and is not saved by s.1
I: - Does statutory scheme violate employees' s.2(d) freedom of association rights?
J: - Split judgment…5 side with gov't and uphold legislation, 8 agree that s.2(d) includes the right not to associate, 5 state that even though s.2(d) includes right of non-association, it isn't violated by legislation, 4 of dissent don't uphold under s.1 (could be called a 4-4-1 split)
A: - We get judgment from LeBel J.:
- s.2(d) not violated here by the scheme, as violation would have to be more than mere compulsory membership in 5 unions
- Therefore s.2(d) contains the right not to associate
- Bastarache J. wrote dissent:
- Legislation not saved by s.1, as the compulsory unionization scheme established by the statute in and of itself represented a form of ideological coercion wasn't justified under s.1
- B: if nature of association is more involved, or s.1 justifications were weaker, perhaps there would be a different result
R: - In general, union shop or closed shop provisions won't violate the Charter, either by not violating s.2(d) or being upheld under s.1
- The court struggles to balance between not compelling people to join unions and yet recognize the essential role of unions in society that can't operate with dissenters
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IX. EMPLOYMENT STANDARDS LEGISLATION
1) INTRODUCTION
- Next issues shift focus to statutory regulation of employment regulation…examples of legislation that directly regulates unionized and non-unionized workers:
a) Workers Compensation Scheme
- No-fault insurance scheme for injuries sustained at the workplace
b) Occupational Health and Safety Legislation
- Goal is to prevent injuries on the job
c) Human Rights Code
- Prohibit discrimination on employment in many areas (ie: sexual harassement)
d) Employment Insurance Scheme
- Provides benefits to some workers who are unemployed/on maternity leave
e) Pay Equity Laws
- Drafted to deal with sex-based discrepancies in pay
f) Federal Employment Equity Act
- Federal employers must set targets for hiring underrepresented groups in the workforce
- Here, we will focus on employment standards legislation
- Statute in every Canadian jurisdiction set a range of minimum terms and conditions of employment
- Includes subject areas such as hours of work and overtime, minimum wages, and dismissal for economic reasons and for misconduct on the employee's part
- Federal Employment Standards Act guarantees things like bereavement leave, statutory holidays, and minimum wage
- Note that maternity benefits aren't guaranteed, as it's provided through the Employment Insurance Act
- ESA requires leave, hold your job open, and not penalize you, but not required to give benefits/money
- Useful for non-unionized sector, as the legislation provides:
a) Floor of Rights
- Provides what often called a "floor-of-rights" which cannot be legally undercut by contracts of employment in the non-unionized sector or by collective bargaining in the unionized sector
b) Mechanism for Enforcing Rights
- Especially for non-union workers, it gives them minimum rights and a mechanism for enforcing those minimum rights (but enforcement often ineffective)
- Difficult for the employee to enforce when the employee wants to keep their job, as scheme is designed for enforcement post-employment
- Employment standards legislation is also useful for unions, since they can use the floor of rights as a bargaining starting point and argue for a bump over that level
- However, some provinces wanted to give freedom to parties in collective bargaining to set their own minimum, and be able to negotiate below the floor in exchange for other concessions in bargaining
- No guarantee that trade-offs will be fair
- Arguments for/against minimum standards and flexibility:
a) Employer
- Global labour market makes minimal standards not compatible with need for flexibility
- Employer needs to be more efficient and reduce their debts and deficits
- Nature of work has become more diverse (home, part-time, ect…) that it's difficult to figure out what the minimum should be (but Act takes variances into account anyways)
b) Union
- Current statutory floor is not an unwarranted drain on efficiency
- Employees who are treated well will be more productive
- Legislated minimum wages and benefits ease competitive pressures on employers by reducing the scope for labour-market bidding wars
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2) STATUS UNDER THE LEGISLATION
- The scope of employment standards legislation depends on the statutory definition of employee/employer
- Thus ask 2 Q's:
a) Is the individual an employee?
- Independent and dependant contractors aren't included
b) Is the employee excluded from the Employment Standards Act?
- Sometimes explicitly excluded, others implicitly
- Even if a worker is an employee within the meaning of an employment standards statute, they may belong to one of the many occupational groups that are excluded from the Act, or have partial exemptions
- ie: sitters, domestic/agricultural workers, members of the clergy, self-regulated professions such as lawyers, doctors, accountants, and architects
- Lawyers are doctors are regulated by their own legislation and self-governing institutions (ie: Law Society), and seen as capable of setting their own terms and conditions of employment for members
- B: Problem is that the Law Society hasn't stepped in to impose any terms or conditions of employment, especially for articling student and young associates
- Domestic and agricultural workers are excluded from minimum wage and overtime provisions because lawmakers have decided that these workers are not amendable to the restrictions imposed by the Act (ie: OK in BC to pay agricultural workers by the pound)
- Next case revolves around this question, where BC caregivers are covered under the Act but sitters are exempted from the Act entirely
Re Renaud (1999 BC Employment Standards Tribunal)…Sitter excluded from Employment Standards Act
F: - Renaud, a quadriplegic who requires 24-hour care, hires a woman as a personal care attendant 3 days a week for 24-hour shifts…13 hours a day paid, other 11 hours at night on call
- Spivey complains to Tribunal, claiming she deserves to be paid overtime for all 24 hours, and wins
- Renaud appeals, claiming she meets the definition of a "sitter" under the Act and thus excluded from hours of work and overtime provisions of the Act
I: - Does Spivey meet the definition of a "sitter" and thus excluded under the Act?
J: - Yes, for Renaud
A: - Basis for exclusion is common requirement for some degree at place of employment in these jobs
- During long-hour shifts, may only be required to perform specific duties periodically
- Thus makes it extremely difficult to distinguish between working hours and down time
- Here, Board declares she does not fall within definitions of a live-in home support workers, a night attendant, or a residential care worker
- Also, she can't be eliminated from being a sitter on the basis that she did more than needed
- She was hired to work in a private residence solely to provide the service of attending to Renaud
- B: unfair result, as purpose of exclusion of "sitter" was to exclude babysitters, not sitters in roles similar to full-time caregivers
R: - When determining a worker's employment role under the Employment Standards Act, courts will ask what job definition the employee falls under and determines if they are excluded from the minimum standards of employment prescribed in the Act
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3) HOURS OF WORK AND OVERTIME
- Most provinces have no upper limit on the maximum number of hours an employee can work
- Problem is the unequal distribution of working hours, where some part-time workers wish they had more working hours, and other employees work extreme hours and wish to work less
- Possible solutions:
a) Absolute Maximum Cap
- Could justify on health grounds, as working insane hours creates potential health implications
- Could also justify on putting some upper limit to mitigate potential for exploitation
- However, a work/life balance is not a choice for a lot of people, especially those working on minimum wage that need to work long hours to survive
b) Overtime incentives
d) Lower maximum
- France instituted 35-hour workweek, but abandoned it after 2 years
- Low maximum probably reduces employer flexibility, as they may need more work one week and less another, and it's impractible to train and hire new employees during a busy week
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X. EQUALITY IN EMPLOYMENT
1) THE CONCEPT OF EQUALITY
A) INTRODUCTION
- Long history of discriminatory practices in labour history in Canada, both expressly and implicitly
- ie: accepted for a long time that women could be paid less than men, or terminated once married
- At common law, discrimination is completely lawful
- Individuals are entitled to select whomever they wish to contract with, and there are no common law restrictions due to freedom of contract
- Since you can't maintain a CL action for discrimination, human rights legislation is deemed to exhaust the entire category of discrimination and remedies for it, with labour law one of the most important contexts for human rights tribunals
- Main sources of equality law in labour relations context are found in s.15 of the Charter and in human rights statutes, and in the interpretation of those instruments by appellate courts
- They protect against discrimination on a number of grounds
- In Human Rights Legislation, there is no opening for analogous grounds…additional grounds must be added by the legislature
- Vriend: applicant tries to argue for inclusion under s.15 rather than analogous grounds
- There are different conceptions to the equality of employment:
a) Opportunity – US Model
- Formal equality embodied in principles that everybody has the opportunity to participate, no racial/gender barriers, and the free market allows everybody to be competitive
- Based on conceptions of sameness and difference, emphasizing the fact that all human beings share common characteristics simploy because they are human beings
- However, this approach overlooks the ways in which people can be treated unequally under a veil of equal treatment
b) Humanist – Canadian Model
- Premised on idea that all human beings are entitled to success, community, and the state has a role to play in addressing past barriers that have produced inequality
- In a response to these equality concerns, governments began enacting human rights statutes in 1940s
- First legislation was quasi-criminal that had intent requirements, as it was premised on the idea of a bad person doing a bad act
- Emphasis shifted from punishing people who did discriminating to compensating people who were discriminated against and beginning to address inequalities in society
- Additionally, s.15 of the Charter outlaws discrimination on a number of enumerated grounds as well as a number of analogous grounds
- While it's only applicable to government actions, it's also relevant in the employment context as there are many government actions discriminating against workers
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B) THE RELATIONSHIP BETWEEN THE LEGISLATURES AND THE COURTS
- Recent developments in equality law, particularly under the Chater, have led to debate about the appropriate role of the courts and legislatures in this area, such as in the following case…
Vriend v. Alberta (1998 SCC)…Charter modifies human rights legislation to add ground against sex orien.
F: - Vriend dismissed as a private school teacher after being outed as a homosexual
- Brought action against Alberta Individual Rights Protection Act because its provisions were not sufficiently inclusive for discrimination against homosexuals and violated his s.15 right
- Alberta repeatedly considered including sexual orientation as a prohibited ground of discrimination and always rejected it
- While s.15 includes analogous grounds, human rights grounds are closed
- School never raised point that his sexual orientation was incompatible with the performance of job
- Now, legislation permits some discrimination for employers (ie: churches) where religious beliefs might affect their performance (ie: being gay)
I: - Once Charter violation is established, what's the most appropriate remedy? Does s.32 of the Charter prohibit consideration of a s.15 violation when that issue arises from a legislative omission?
J: - For Vriend, sexual orientation discrimination as prohibited ground of discrimination read into the Act
A: - Alberta argued this was equal treatment for everyone, as legislation was neutral on its face
- SCC disagrees, as exclusion doesn't treat heterosexuals and homosexuals equally
- There's a pattern of discrimination of certain sexual minorities
- Alberta argued that reading in is an unacceptable intrusion into the legislative process by the courts
- Thus court would go beyond adjudicative function and taking on a limited legislative function
- Court rationalizes this interference because it's constitutionally necessary
- It's also practical, and "parliamentary safeguards" remain (ie: s.1 exceptions, and s.33)
- It broadens the judicial function of the courts
- Here, purpose of the Act was recognition and protection of inherent dignity and inalienable rights of Albertans through elimination of discriminatory practices
- Court holds that reading in enhances this objective
- Given the choice between no legislation and one that had sexual orientation, SCC bets that Alberta would choose to include sexual orientation
R: - The Charter can modify human rights legislation if it is underinclusive, as human rights legislation has closed grounds for discrimination
- 2 more grounds that have been argued to be added to human rights legislation:
a) Gender identity
- ie: get hired, then announce to employer they are getting a sex change
b) Obesity
- Obese individuals face societal discrimination that flow into the workplace
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C) HUMAN RIGHTS LEGISLATION
- Unlike the Charter, human rights legislation applies to individuals, thus modifying freedom of contract in the interests of equality and preventing discrimination
- Can be invoked by both unionized and non-unionized employees
- Courts have held that the provisions of the Human Rights Code are incorporated by reference into every collective agreement, so employers and unions can't negotiate terms that violate the Code
- Employees have to go to labour arbitrators first for human rights complaints before they go to a human rights tribunal…two negative effects:
a) Non-specializaiton
- Tribunals have tried to take an extensive approach to applying human rights, while labour arbitrators are only trained to manage labour disputes to promote industrial stability, and thus some non-specialist arbitrators make terrible decisions
b) Union refuses to bring grievance
- Since an employee has to exhaust all arbitration avenues before going to a human rights tribunals, a human rights complaint can take a very long time
- Two mechanisms to bring a human rights complaint:
a) USA and most of Canada – Screening Process
- Complainant makes a complaint to a human rights commission, who then conducts an investigation, and if the commission decides to go forward with the complaint, they carry the complaint for you to the human rights tribunal
- Thus human rights commission acts as a screening mechanism
b) BC – Direct Access
- BC has direct access tribunal for human rights complaints and dismissed commission altogether
- Model with commission in-between was too cumbersome and made unduly lengthy complaints over small sums of money
- 4 terms significant to the traditional model of human rights legislation:
a) Direct Discrimination
- A rule that overtly discriminates (ie: no women)
- Employer must show that the exclusionary clause is a Bona Fide Occupational Requirement (BFOR), which was an all or nothing deal, as the rule would be upheld or struck down in its entirety…must justify why one group is directly discriminated against
b) Indirect/Adverse Effect Discrimination
- Rules that are neutral on its face, but in practice have a discriminatory effect
- ie: requirement that police officers must be 5'8" and 225 lbs has discriminatory effect of excluding women and Asians
- BFOR doesn't apply to adverse effect discrimination (prima facie contravention of statute)
- Instead, there is an implied duty of accommodation to the point short of undue hardship
- Therefore, employer must accommodate the employer to the point of undue hardship to justify the adverse effect discrimination
- While it seems obvious for the employer to prefer to define their practice as adverse effect discrimination, sometimes it's better to have their practice defined as direct discrimination to trigger the defence of BFOR
Drug Testing Example
F: - To work, an employee must submit to random drug and alcohol testing throughout their employment
- If employees are found to be on drugs or drunk, they face disciplinary action up to being fired
- Labour Boards have consistently found that drug and alcohol addiction are a disability
- Thus open to employees to argue that policy is discriminatory based on disability
I: - Which definition of discrimination would be preferred?
J: - Shows there is a problem with the categories, can't neatly categorize each, and having a different defence isn't rational…there should be one test
A: - For employee, adverse effect discrimination is much better, as it triggers a duty to accommodate that might require treatment and supervisory programs
- For employer, direct discrimination is better, as it's a BFOR to not have drunk/high workers
- In Canada, drug testing has been found not to be a good indicator of drug use at all, as it doesn't measure amount, and alcohol testing
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D) THE "UNIFIED" APPROACH
- In the following case, SCC tried to simplify the relationship between direct and indirect discriminations, BFORs, and the duty to accommodate based on the problems raised in drug testing example
- In doing so, it articulated a new 3-stage test for deciding whether a standard which appears to be discriminatory is in fact a BFOR
British Columbia v. BCGSEU (the Meiorin case) (1999 SCC)…High water mark for SCC on equality
F: - Meiorin was employed by BC Ministry of Forests for 3 years as a member of forest firefighting crew, doing job well for many years without incident, but has knee problems affecting her ability to run
- Gov't required her to take "Tests" following recommendations that only physically fit employees be assigned as front-line firefighters for safety reasons
- After 4 attempts, she failed the aerobic standard and was laid off, and union subsequently brought a grievance on her behalf, arguing that physical test is sexual discrimination, as more women will be vulnerable to fail this physical fitness test than men
- Arbitrator ruled for her, as test didn't distinguish between men and women, had performed past work well, and gov't didn't establish that inability to meet aerobic standard created a safety risk
- BCCA reversed, worrying about "reverse discrimination" to permit female firefighters that can't meet the standard to stay while excluding able male firefighters
I: - Did the government violate s.13(1) and s.13(4) of the BC Human Rights Code? Is this direct discrimination against women or a form of adverse effect discrimination?
J: - Yes, for union, arbitrators award reinstated
A: - If this is adverse effect discrimination, the duty to accommodate is triggered
- However, employee is not arguing for individual accommodation…rather, she is arguing that she did a good job for 4 years and the test is discriminatory on its face
- Thus SCC tries to created a "unified test" to really reflect the reality of discrimination, which is often a mixture of direct and adverse effect discrimination
- Therefore, justification test will be the same regardless of what kind of discrimination it is
- Before test is triggered, burden is on employee to show prima facie discrimination
- Once this is proven, burden shifts to the employer to justify standard on BOP with the test
- McLachlin C.J. proposes a 3-step test for determining whether a prima facie discriminatory standard is a BFOR...an employer may justify the impugned standard by establishing on BOP:
a) Rational Connection
- "That the employer adopted the standard for a purpose rationally connected to the performance of the job"
- This part of the test is subjective, measuring the bona fide of the employer
- Is it a sham to push out employees, or is there an honest belief to have standards rationally connected to the performance of the job?
- Focus not on the specific standard (ie: fitness test), but rather on the purpose for which the standard was enacted (physical fitness)
- This is generally an easy hurdle to satisfy
b) Good Faith
- "That the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose"
- Must be connection between reason to do the job and the standard
- Again, usually easy to satisfy
c) Reasonably Necessary by showing Undue Hardship
- "That the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer."
- Consideration of individual accommodation within the standard fits in this part
- Basically, court asks if there is a way of doing the job that's less discriminatory?
- This is less deferential to the employer than the previous 2 requirements
- Now, it doesn't matter how you categorize the discrimination…just apply this test
- Here, gov't didn't show that the prima facie discriminatory aerobic standard reasonably necessary to identify forest firefighters who could work safely and efficiently, so gov't can't rely on BFOR defence
- Gov't can't establish that to be an effective rapid-attack fire-fighter, you had to be able to run 2.5km in less than 11 minutes
- Also, oxygen tests were done with men subjects, not women, so standard itself was not developed in a non-discriminatory way and thus was suspect
- B: important finding, as court doesn't treat people with disabilities as abnormal, but rather should develop policies from very beginning that maximizes the amount of people available for the job
- Therefore, they fail part 3, as no evidence of any undue hardship
R: - An employment standard should be created whereby it includes as many people as possible from the very beginning, as the SCC merges two discriminatory categories into one
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2) SOME MAJOR EMPLOYMENT-RELATED EQUALITY ISSUES
A) SEX DISCRIMINATION
- One specific subject, pregnancy discrimination, is mentioned in text at p.853
- In Bliss and Brooks, pregnant women were excluded from an occupational accident and sickness plan benefits during the period prior to the birth and for seventeen weeks afterwards
- Bliss: Under old Bill of Rights, SCC decided that discrimination on the basis of pregnancy was not discrimination on the basis of sex, as not all women get pregnant
- Brooks: SCC reverses, as "discrimination on the basis of pregnancy is a form of sex discrimination because of the basic biological fact that only women have the capacity to become pregnant"
- Brooks: SCC goes further, and argues that since bearing children is an important and invaluable social benefit, it is not fair to place the entire burden on women that bear children, but rather is a cost that should be taken on by society
- Note that it is not open for an unionized employee to file a grievance, as union's refusal would give rise to duty of fair representation complaint
- Every collective agreement deemed to incorporate Human Rights Code into its terms, so must exhaust union options before filing a human rights complaint
- No option includes quitting and suing for constructive dismissal, as suing for constructive dismissal is a CL remedy by the court for non-union employees
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B) SEXUAL HARASSMENT
i) SEXUAL HARASSMENT AS SEX DISCRIMINATION
- Workplace harassment on the ground of sex, race, disability, or any other ground specified in human rights legislation is recognized in law as a form of discrimination in employment
- Legal recognition that harassment is a form of discrimination was not immediate, particularly in the case of sexual harassment
- Early cases were "sleep with me or I fire you", then groping cases, and so on
- Some courts and tribunals considered sexual harassment not to be a form of sex discrimination because:
a) Not every woman in a given workplace was subjected to it
- Similar to early pregnancy justification, as SCC used to argue that not every woman has children
b) Considered to be an expression of personal attraction with which the law should not interfere
- Thus not discrimination in a class-based sense, but rather a private personal relationship
Janzen v. Platy Enterprises Ltd. (1989 SCC)…Sexual harassment against women is sex discrimination
F: - 2 complainants were waitresses at a restaurant, and male co-worker made repeated sexual advances
- When they complained to manager, sexual conduct ceased, but were subjected to verbal abuse
- They quit and filed complaints of sex discrimination under Manitoba Human Rights Act, which prohibited sex discrimination but made no mention of sexual harassment
- Human rights adjudicator and TJ upheld complaint, but Manitoba CA reversed
I: - Was the sexual harassment experienced by the complainants sex discrimination?
J: - Yes, for P
A: - Dickson C.J. defines sexual harassment in the workplace:
- "Unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job related consequences for the victims of the harassment"
- Thus this can range from off-colour jokes to sexual assault
- Attacks dignity and self-respect of the victim both as employee and as a human being
- Manitoba CA fallacy is belief that sex discrimination only exists where all members of the affected gender are mistreated identically
- Formal equality reason is that groping and other sexual advances by male co-workers is an additional condition of employment that men don't have to endure
- Additionally, sexual harassment in the workplace limits women's opportunities in the workplace
- Women will quit if sexually harassed, can be pushed out if harassed, and can't get seniority
- Thus, more broadly, sexual harassment as a practice limits women's employment opportunities
R: - Sexual harassment in the workplace is sex discrimination, as it creates an additional conditional of employment for women that limits women's economic opportunities
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ii) DEFINING SEXUAL HARASSMENT
- Federal jurisdiction is the only jurisdiction to refer to sexual harassment in both human rights and labour legislation…BC relies on general prohibition against discrimination in employment
- Today, there are 4 jurisdictions that specifically added prohibitions of sexual harassment
- BC doesn't have this yet, as there is still more general sex discrimination provisions
- Q: Is it enough that an individual employee is being harassed by off-colour jokes without a sexual nature to qualify for coverage under sex discrimination provisions? (yes)
Shaw v. Levac Supply Ltd. (1991 Ont. Bd. Inq.)…Off-colour jokes can be sexual harassment under Code
F: - Shaw worked as bookkeeper for 4 years, was frequently teased by a male co-worker, and complaints to management went unanswered
- Verbal teasing was explicitly sexual, ie: fat jokes, mimicking speech, ect…
- Employer argues it's not sex discrimination under Human Rights Legislation, only personal conflict
I: - Was the verbal harassment sexual harassment?
J: - Yes, for P
A: - Court remarks that making fun of a woman's weight is commenting on a woman's sexual unattractiveness, which amounts to sex discrimination
- Thus obesity for women relates to sexual unattractiveness, and thus is sex discrimination
- Here, employee was not a disintested observer simply making an objective comment upon someone's unfortunate condition, but rather he knew, or ought to have known, that these gives were a "sexual put-down"
R: - The word "sex" in legislation means gender, and to harass a person non-sexually solely because of his or her gender comes with Human Rights Code provisions
- Some jurisdictions now include "personal harassment" provisions, but this might be overbroad
- ie: disputes over the photocopier fall under human rights legislation
- Q: should discrimination under the grounds of obesity be a new, separate ground for discrimination, or alternatively, should it be recognized as a disability?
- Q: what is a disability is one you can correct, but you choose not to have surgery (ie: back problems)…can the employee choose to refuse to correct the problem and yet still expect the employer to have a duty to accommodate?
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C) DISCRIMINATION ON THE BASIS OF DISABILITY
- Many challenges to studying discrimination on the basis of disability:
a) Unemployment
- There is an assumption that the person with a disability is employed with these materials
- However, many unemployed peoples with disabilities is a deeper structural issue, as they experience far higher rates of unemployment than other segments of society
- Those who do have jobs tend to have held them for a relatively short time and to have a less stable connection with the workforce
- Here, cases show that people that are hired and get the disability on the job are in a much better position (as they have rights) compared to those peoples with disabilities trying to get a job
b) Mutability
- Disabilities change over time…can progress over time, become worse, be cyclical and involve relapses over time (Shuswap)
- Accommodation may require constant reassessment
- Also, anyone – regardless of her or his present state of health – can potentially acquire a permanent, total, or long-lasting disability, and chances increase with age
c) Heterogeneity
- There are many kinds of disabled people (mental, physical, ect…) lumped into one group
- Some disability rights advocates challenge biomedical definitions of definition of disabled people, and instead want a more social definition where disability is a function of social values
- Social environment has a substantial capacity either to compound or to alleviate a disability
- Thus differs from other enumerated grounds such as race or sex because there is no individual variation with respect to those grounds
- Accommodating a disability in the workplace can be a very complex and painstaking process, as the following arbitration award regarding bi-polar mood disorder shows
Shuswap Lake General Hospital v. BC Nurses' Union (2002 BCCAAA)…Employer discrimination
F: - Nurse in hospital diagnosed with bi-polar mood disorder who is dismissed
- Prior to dismissal, she had a few episodes of mania, resulting in mistakes giving medication and some patients left alone…however, no finding any patients were endangered in any serious way
- Colleagues knew her warning signs, and nurse was receptive to suggestions from co-workers
- She was receiving treatment for disorder, and doctor declares her fit to work…despite the medical opinion, the employer was unwilling to allow the griever to return to work because doctor couldn't give assurance a relapse wouldn't happen or that any relapse could be predicted
- Union argues that employer is discriminating against her by reason of her mental disability contrary to s.31 of collective bargaining agreement, and has not discharged its duty to accommodate the griever to the point of undue hardship (art.31 required parties to subscribe to BC Human Rights Code)
- Employer argues that it couldn't continue to accommodate the griever without incurring undue hardship, couldn't find any nursing position that would not similarly result in undue hardship, and that the grievor wasn't interest in jobs in other bargaining units in its facility
I: - Does the continued employment of the grievor as a nurse at the hospital impose undue hardship?
J: - No, for Union/grievor
A: - Arbitrator makes two findings on employer conduct:
a) Standard is too high
- Employer's standard is one of absolute safety or perfection, not one of reasonable safety
- However, this was an "uncompromisingly stringent standard"
- Relapse prediction standard effectively negates a fundamental characteristic of the grievor's mental disability, and focused too narrowly on whether relapse could be accurately predicted
- No "serious" or "unacceptable" risk to patient safety, and no direct evidence or any specific loss to any patient due to grievor's medication errors
- Therefore, standard of perfection effectively discriminated against disabled persons
b) Not impossible to reduce identified risks to an acceptable level through reasonable accommodative measures
- Evidence fails to demonstrate that it is impossible to reduce the identified risks to an acceptable level through reasonable accommodative measures
- Nature of workplace provides implicit safeguards against any risk to patient safety (ie: team-based context, professional obligations)
- Past indicators of relapse have been readily observed by grievor's co-workers
- Supervisory staff and/or management available for reporting purposes
- Grievor demonstrated being receptive to other nurse's observations and insight
- Therefore, reducing risk by implementing reasonable accommodative measures do not impose undue hardship on the employer
- Arbitrator orders that grievor should be returned to work on 11 conditions, and suggests 6 reasonable accommodative measures for the employer
- One condition was no night shifts...would require other nurses to do night shifts
- Raises a problem of fairness and competing employee interests, where one employee can leapfrog other employees with greater seniority
- B: Generally more resistance to accommodating mental disability rather than physical disability
R: - Employer standards of perfection will be prima facie discrimination against persons with disabilities unless the standard is reasonably necessary by demonstrating that it is impossible to accommodate the grievor without incurring undue hardship
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D) WHO IS UNDER A DUTY TO ACCOMMODATE?
- Following case demonstrates that the employer and the union share the duty to accommodate, and the union may be liable for the failure to accommodate if:
a) Union has been involved in developing the relevant rule or practice
b) Union impedes the employer's efforts to accommodate (Renaud)
Central Okanagan School District v. Renaud (1992 SCC)…Both employer and union under duty
F: - Janitor is in a position that requires him to work Friday nights, which conflicts with his religion
- Employer suggests that he works Sunday-Thursday, which employer accepts
- However, union considers this unacceptable, but allows employee to work four days a week
- Employee, of course, needs to work full time, and can't find any arrangement that wouldn't require changing the collective agreement, and he's terminated
I: - What is the scope and content of the duty to accommodate the religious beliefs of employees upon the employer, employee, and the union?
J: - For Renaud
A: - All 3 parties have a duty, but there is a hierarchy: employer ( union ( employee
- Human Rights Code is incorporated by reference into the collective agreement, the employer and union can't contract out of it, and any violation of Code is discrimination
- Sometimes, accommodation will require some modification of agreement, such as seniority
- Here, parties failed in their ability to accommodate the employer
- Court rejects union's argument that Canadian court should use de minimus test for accommodation
- Instead, the test/burden is that the employer must establish that actual interference with the rights of other employees, which is not trivial but substantial, will result from the adoption of accommodating measures
- Here, employer didn't present evidence on that point, and union objected on basis of integrity of the collective agreement, not that any individual employee objected on the basis of interference
- Minor interference or inconvenience is the price to be paid for religious freedom in a multicultural society
- Thus employer is expected to accommodate regardless of whether union files a grievance
R: - The duty of accommodation is collaborative and requires compliance with the Human Rights Code that cannot be contracted out of by either the employer or the union
______________________________________________________________________________________
3) SYSTEMIC DISCRIMINATION
- Systemic discrimination is the term used to refer to the operation of a web of factors which lead to the under-representation of particular groups in the workforce, or their over-representation in low-level jobs
- Previous cases on employer discrimination dealt with individual cases with individual employers
- Here, problem is structural/systemic that cannot be solved by resolution of an individual grievance
- Q: Is there a remedy for these structural inequities?
- Possible remedies to under-representation in the workforce:
a) Employment Equity Legislation
- Keep track of visible minorities hired and set targets for hiring underrepresented groups
- Now, there is a Federal Employment Equity Act that applies to federal employers (ie: gov't, university) that requires employers to keep track of number of visible minorities and set targets
- However, the Act has no enforcement mechanisms for bodies that report failure to meet targets
b) Pay Equity Programs
- Designed to address gender inequities in the workplace
- Assess nature of the job, skills required to do the job, and formulas applied to discover if female jobs are compensated equally with male jobs
- BC has no specific pay equity legislation
- Individuals can bring actions under general Human Rights Code, or union members can bargain for it in collective bargaining, but there is no legislation that mandates equal pay for equal work
- These programs are criticized by being "reverse discrimination" and impose undue costs on the employer
- Also, affirmative action programs criticized by advancing the interests of only minorities at the top
- NAPE (SCC) was the last big case on systemic discrimination, which awarded retroactive pay equity to public Newfoundland employees…gov't refused to pay award due to financial crisis, and upheld by SCC because even though legislation violated s.15, it was upheld under s.1
- Thus these cases are extremely lengthy, costly, hard-fought, and ultimately not very successful
- The following case is the leading case on systemic discrimination, and was supposed to be groundbreaking due to the hands-on nature of the remedy
- B: Practical results of case were dismal, as CN downsized after decision, and hasn't led to any other large systemic discrimination cases being brought forward
CN Railway Co. v. Canadian Human Rights Commission (1987 SCC)…Broad systemic discrim. remedy
F: - Human rights tribunal found CN guilty of discrimination on the basis of sex in its hiring practices for certain unskilled blue-collar jobs…tribunal order required CN to:
- Cease certain discriminatory hiring and employment practices
- Set a goal of 13% female participation in targeted jobs in St. Lawrence region
- Hire at least 1 woman for every 4 job openings until 13% goal was reached
- File periodic reports with the Canadian Human Rights Commission
- CN appealed the order, arguing remedy was too broad and hiring was done by foreman anyways
I: - Was the remedy reasonable to address systemic discrimination?
J: - Yes, for Commission/women
A: - Employment equity program designed to work in three ways:
a) Renders future discrimination pointless
- Mandatory employment equity scheme makes discriminatory intent useless
b) Addresses attitudinal problem of stereotyping
- Forcing women to prove ability on the job makes it no longer possible to see women as capable of fulfilling only certain traditional occupational roles
c) Helps to create a "critical mass" of previously excluded group in the workplace
- No more "token" members, and group must be taken more seriously by management
- Dominant purpose of employment equity programs is always to improve the situation of the target group in the future
- However, systemic remedies must be built upon past experience to prevent future discrimination
R: - Supreme Court upholds groundbreaking hands-on remedy to reverse practice and effect of systemic discrimination against women in unskilled blue-collar jobs
______________________________________________________________________________________
XI. LABOUR AND EMPLOYMENT LAW IN THE NEW GLOBALIZED ECONOMY
- 2 big effects of globalization on Canada:
a) Loss of union jobs in the private sector
- Canada, particularly Ontario, has felt big effects in the last 20 years
b) Importation of foreign workers
- Not only agricultural sector, but also construction, service, ect…
- Arthurs considers the question of what role Labour Law has without the state
- B: overstatement to say that state has no role...benefits of temporary workers is real
- However, Labour Law becoming increasingly ineffective and irrelevant, and question is what to do
- ie: transnational body to regulate international labour standards v. permitting international corporations to set standards
- Movie: not enough for a country to have good domestic laws, but these laws need enforcement
- Often lack of enforcement is due to multinational institutions workers expect to protect them
- ie: IMF loans to Mexico attached with conditions to keep labour costs low
______________________________________________________________________________________
1) INTERNATIONAL LABOUR ORGANIZATION
- Founded in 1919 after horrors of WWI, with premise that peace requires prosperity and social justice
- If workers are treated unfairly, it could produce conditions that could lead to war
- Premise came true with rise of fascism and WWII following the Great Depression
- One of the fundamental principles of the ILO is that labour is not a commodity
- Workers are not a good to be exported and maximized
- People have inherent dignity and rights that should not be commodified
- They have numerous treaties that are binding obligations on member states
- They also have non-binding recommendations on member states requiring states to report how they are doing in enforcing the standards
- Some agreements are worldwide (child labour), while others are more flexible (minimum wage, which states that member states should have a minimum wage but doesn't set a floor)
- ILO has a complaint mechanism, and most important committee that hears complaints from a Canadian perspective is the Committee on Freedom of Association
- Labour unions can bring complaints, and Canadian workers are active
- Many complaints brought in 2003 flowing from BC Liberal government policies, which ILO criticized as undermining basic collective bargaining rights
- Have also criticized provincial governments on back-to-work legislation
- Unfortunately, these reports are not binding and have no enforcement mechanism…just require a report (but BC hasn't even produced a report yet about 2003 changes)
- There has been an increasing dominance in international agencies regulating international trade (IMF, WTO) that has undermined ILO
- WTO's mandate is trade liberalization, which is always bad for workers
- Therefore, ILO has struggled to re-imagine itself to have an impact on modern working conditions
- Recently, ILO developed a decent work agenda
- Started to argue goal of each member state ought to ensure decent work
- Q: what is "decent work" for working people?
- Qualities include: safe, secure, pays a living wage, not abusive/degrading, not exploitative, develops skills, personal fulfillment (?)
- When does "decent work" cross the spectrum into "ideal work"?
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