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Labour Law CANS

Labour Law CANS

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  • Common Law Contract of Employment
  • Seneca College v. Bhadauria 1981
  • Reasonable Notice
  • Edna Cronk v. Canadian General Insurance Co. (1994 Ont. CA)
  • Just Cause for Termination
  • McKinley v. BC Tel (2001 SCC)
  • History of Unions and the Wagner Act
  • The Constitution and Collective Bargaining
  • Delisle (1999 SCC)
  • Dunmore v. Ontario (AG) (2001 SCC)
  • Health Services and Support Bargaining Assn. v. BC (2007 SCC)
  • Justifications for collective bargaining
  • Union Security Clauses: Voluntary Check off, Rand Formula, Closed Shop
  • 2 ways a union can certify: Card and Vote
  • Union Certification Process: The Organizing Drive
  • What is an Employee? Control and Economic Dependence
  • National Labor Relations Board v. Hearst Publications (1944 US SC)
  • Winnipeg Free Press v. Media Union of Manitoba (1999 Manitoba LRB)
  • Employees Excluded from Unionizing: Managers, Confidential Employees
  • Children’s Aid Society of Ottawa (2001 OLRB)
  • What Qualifies as a Union?
  • S. 6(3) Unfair Labour Practices: Dismissal and Anti-Union Animus
  • Duchesmeau v. Conseil de la Nation huronne-Wendat (1999 CIRB)
  • S. 6 Unfair Labour Practices: General
  • Canadian Paperworkers Union v. International Wallcoverings (1983 OLRB)
  • Westinghouse Canada (1980 OLRB)
  • Certification and Bargaining Freeze
  • Employer’s Defences: Business as Usual, Reasonable Expectations
  • Simpsons Ltd. v. Canadian Union of Workers (1985 NSLRB)
  • Employer Speech
  • United Steelworkers of America v. Wal-Mart Canada (1997 OLRB)
  • S. 7 Union Solicitation on Employer Property
  • Canada Post (1995 CIRB)
  • S. 14 Remedies for Unfair Labour Practices
  • National Bank of Canada Int’l Union (1984 SCC)
  • R. v. K-mart Canada (1982 Ont. CA)
  • Professional Responsibility of Lawyers
  • Law Society v. Rovet (1992)
  • The Bargaining Unit
  • How do labour boards determine the appropriate bargaining unit?
  • Metroland Printing (2003 OLRB)
  • One Employer, Multiple Locations
  • (De)Certification
  • Sectoral Certification in Under-Represented Workplaces
  • Sale or Transfer? Successor and Common/Related Employers
  • Ajax (Town) v. Union
  • Common or Related Employer Applications
  • White Spot v. BC Labour Relations Board (1997 BCSC) pg. 365
  • Duty to Bargain (In Good Faith)
  • How bargaining ends
  • Noranda Metal Industries (1975 CLRB)
  • Content of the Duty to Bargain in Good Faith: Hard vs. Surface Bargaining
  • United Steelworkers of America v. Radio Shack (1980 OLRB)
  • Union v. Canada Trustco (1984)
  • Langille and Macklem: “Beyond Belief: Labour Law’s Duty to Bargain” pg. 410
  • Royal Oak Mines v. Canada (Labour Relations Board) (1996 SCC)
  • CAW Canada v. Buhler Versatile (1991 MLRB)
  • First Offer = Last Offer, “Final Offer”
  • Last Offer Selection
  • Duty to Disclose and Share Information
  • Consolidated Bathurst Packaging (1983 OLRB)
  • S. 53, 54: Joint Consultation and Adjustment Plans
  • Remedies for Bargaining in Bad Faith
  • Royal Oak Mines v. Canada (1996 SCC)
  • Buhler Versatile
  • S. 55 First Contract Arbitration
  • Yarrow Lodge (1993)
  • Industrial Conflict: Why do we allow strikes? Why do workers strike?
  • Public Sector Unions on Strike
  • S. 59, 60: How do you get into a legal strike position in BC?
  • The Constitution and the Right to Strike
  • Alberta Reference (1987 SCC)
  • What is a strike? Why not strike?
  • CWC v. Graham Cable TV/FM (1986 CLRB)
  • Ontario Secondary School Teachers’ Federation v. School Board (1999 OLRB)
  • BC Terminal Elevators Operators’ Assn. v. Grain Workers’ Union (1994 CLRB)
  • Strike Prohibition and Sympathetic Action
  • Int’l Longshoremens’ Association v. Maritime Employers’ Association (1979 SCC)
  • S. 63 BC’s Exception to Picket Line Rule
  • Hot Cargo and Hot Edict Clauses
  • Lockouts
  • Westroc v. Union (1981 OLRB)
  • Jurisdiction: 3 Forums Regulating Industrial Conflict
  • Disputes arising from strikes and picketing
  • Strike and the Purposive Definition
  • BC Public School Employer’s Assn. v. BCTF (2005 BCCA)
  • Picketing and Freedom of Expression
  • Why do we allow picketing?
  • S. 65 Types of Picketing: Primary, Common Sight, and Secondary Primary Picketing
  • Canex Placer Limited (1975 BCLRB)
  • Harrison v. Carswell (1976 SCC)
  • Secondary Picketing
  • The Charter, Striking and Picketing
  • K-Mart v. UFCW (1999 SCC)
  • Re Canadian Forest Products (Canfor Mill) (2006 BCLRB)
  • Ally Doctrine
  • Industrial Conflict: Job Rights of Strikers and Replacement Workers
  • Royal York Hotel (1962)
  • CALPA (Eastern Provincial Airways)
  • Why allow temporary replacement workers?
  • Why does BC ban temporary replacement workers?
  • S. 72, 73 Essential Services
  • Result of Essential Services Declarations: Interest Arbitration
  • The Individual Employee under Collective Bargaining
  • McGavin Toastmaster Ltd. V. Ainscough (1975 SCC)
  • Allen v. Alberta (2003 SCC)
  • Steele v. Louisville & Nashville Railroad Co. (1944 US SC)
  • Union’s Duty of Fair Representation
  • Content of the Duty
  • How far should duty of representation extend? 3 approaches
  • Human rights issues and the Duty
  • Central Okanagan
  • K.H. v. CEP Local (1997 Sask. Labour Relations Board)
  • Lavigne v. OPSEU (1991 SCC)
  • R. v. Advanced Cutting and Coring (2001 SCC)
  • Employment Standards Legislation
  • Re Becker Milk Co. (1973 OESA designee)
  • Re: Renaud (1999 BCEST)
  • Termination of Employment
  • Slaight Communications v. Davidson (1989 SCC)
  • Avenues to Address Employment Discrimination: Charter, Human Rights Act, Tort
  • Formal vs. Substantive Equality
  • Direct vs. Adverse Effect Discrimination (and Employer’s Defences)
  • BC v. BCGSEU (The Meiorin Grievance) (1999 SCC)
  • Vriend v. Alberta (1998 SCC)
  • Employment Discrimination
  • Grounds for Discrimination: Sex
  • Bliss (1979)
  • Brooks v. Canada Safeway (SCC)
  • Janzen v. Platy Enterprises (1989 SCC)
  • Shaw v. Levac Supply (1991 Ont. Bd. Inq.)
  • Grounds for Discrimination: Disability
  • Shuswap Lake General Hospital v. BC Nurses’ Union (2002 BCCA)
  • Union’s Duty to Accommodate
  • Central Okanagan School District v. Renaud (1992 SCC)
  • Globalization of Labour
  • What role does the law play in achieving ideal labour conditions?
  • International Labour Organization

1 Labour Law CANS Common Law Contract of Employment.................................................................................4 Seneca College v. Bhadauria 1981...................................................................................

4 Reasonable Notice.................................................................................................................4 Edna Cronk v. Canadian General Insurance Co. (1994 Ont. CA).....................................4 Just Cause for Termination....................................................................................................5 McKinley v. BC Tel (2001 SCC).........................................................................................5 History of Unions and the Wagner Act...................................................................................5 The Constitution and Collective Bargaining ..........................................................................6 Delisle (1999 SCC) ............................................................................................................6 Dunmore v. Ontario (AG) (2001 SCC) ..............................................................................6 Health Services and Support Bargaining Assn. v. BC (2007 SCC)...................................6 Justifications for collective bargaining....................................................................................6 Union Security Clauses: Voluntary Check off, Rand Formula, Closed Shop........................7 2 ways a union can certify: Card and Vote............................................................................7 Union Certification Process: The Organizing Drive...............................................................7 What is an Employee? Control and Economic Dependence.................................................8 National Labor Relations Board v. Hearst Publications (1944 US SC).............................8 Winnipeg Free Press v. Media Union of Manitoba (1999 Manitoba LRB).........................9 Employees Excluded from Unionizing: Managers, Confidential Employees.........................9 Children’s Aid Society of Ottawa (2001 OLRB).................................................................9 What Qualifies as a Union?....................................................................................................9 S. 6(3) Unfair Labour Practices: Dismissal and Anti-Union Animus......................................9 Duchesmeau v. Conseil de la Nation huronne-Wendat (1999 CIRB)..............................10 S. 6 Unfair Labour Practices: General.................................................................................10 Canadian Paperworkers Union v. International Wallcoverings (1983 OLRB).................10 Westinghouse Canada (1980 OLRB)..............................................................................10 Certification and Bargaining Freeze.....................................................................................10 Employer’s Defences: Business as Usual, Reasonable Expectations................................11 Simpsons Ltd. v. Canadian Union of Workers (1985 NSLRB)........................................11 Employer Speech.................................................................................................................11 United Steelworkers of America v. Wal-Mart Canada (1997 OLRB)...............................12 S. 7 Union Solicitation on Employer Property......................................................................12 Canada Post (1995 CIRB)...............................................................................................12 S. 14 Remedies for Unfair Labour Practices........................................................................12 National Bank of Canada Int’l Union (1984 SCC)............................................................12 R. v. K-mart Canada (1982 Ont. CA)...............................................................................13 Professional Responsibility of Lawyers................................................................................13 Law Society v. Rovet (1992)............................................................................................13 The Bargaining Unit.............................................................................................................13 How do labour boards determine the appropriate bargaining unit?.................................13 Metroland Printing (2003 OLRB)......................................................................................14 One Employer, Multiple Locations.......................................................................................14 (De)Certification...................................................................................................................15 Sectoral Certification in Under-Represented Workplaces...................................................15 Fast Food Workers.......................................................................................................15 Sale or Transfer? Successor and Common/Related Employers.........................................15 Ajax (Town) v. Union........................................................................................................16 Common or Related Employer Applications........................................................................16

2 White Spot v. BC Labour Relations Board (1997 BCSC) pg. 365...................................16 Duty to Bargain (In Good Faith)...........................................................................................16 How bargaining ends...........................................................................................................17 Noranda Metal Industries (1975 CLRB)...........................................................................17 Content of the Duty to Bargain in Good Faith: Hard vs. Surface Bargaining......................18 United Steelworkers of America v. Radio Shack (1980 OLRB).......................................18 Union v. Canada Trustco (1984)......................................................................................18 Langille and Macklem: “Beyond Belief: Labour Law’s Duty to Bargain” pg. 410.................18 Royal Oak Mines v. Canada (Labour Relations Board) (1996 SCC)...............................18 CAW Canada v. Buhler Versatile (1991 MLRB)..............................................................19 First Offer = Last Offer, “Final Offer”....................................................................................19 Last Offer Selection..............................................................................................................19 Duty to Disclose and Share Information..............................................................................19 Westinghouse Canada (1980 OLRB)..............................................................................19 Consolidated Bathurst Packaging (1983 OLRB).............................................................19 S. 53, 54: Joint Consultation and Adjustment Plans ...........................................................20 Remedies for Bargaining in Bad Faith.................................................................................20 Royal Oak Mines v. Canada (1996 SCC)........................................................................20 Buhler Versatile................................................................................................................20 S. 55 First Contract Arbitration.............................................................................................20 Yarrow Lodge (1993).......................................................................................................21 Industrial Conflict: Why do we allow strikes? Why do workers strike?................................21 Public Sector Unions on Strike.............................................................................................21 S. 59, 60: How do you get into a legal strike position in BC?..............................................21 The Constitution and the Right to Strike..............................................................................22 Alberta Reference (1987 SCC)........................................................................................22 What is a strike? Why not strike?.........................................................................................22 CWC v. Graham Cable TV/FM (1986 CLRB)..................................................................23 Ontario Secondary School Teachers’ Federation v. School Board (1999 OLRB)...........23 BC Terminal Elevators Operators’ Assn. v. Grain Workers’ Union (1994 CLRB)...........23 Strike Prohibition and Sympathetic Action...........................................................................24 Int’l Longshoremens’ Association v. Maritime Employers’ Association (1979 SCC).......24 S. 63 BC’s Exception to Picket Line Rule............................................................................24 Hot Cargo and Hot Edict Clauses........................................................................................24 Lockouts...............................................................................................................................25 Westroc v. Union (1981 OLRB)........................................................................................25 Jurisdiction: 3 Forums Regulating Industrial Conflict ..........................................................25 Disputes arising from strikes and picketing..........................................................................26 Strike and the Purposive Definition......................................................................................26 BC Public School Employer’s Assn. v. BCTF (2005 BCCA)...........................................26 Picketing and Freedom of Expression.................................................................................27 Why do we allow picketing?.................................................................................................27 S. 65 Types of Picketing: Primary, Common Sight, and Secondary ..................................27 Canex Placer Limited (1975 BCLRB)..............................................................................28 Harrison v. Carswell (1976 SCC).....................................................................................28 Secondary Picketing............................................................................................................28 Why would we want to limit secondary picketing? .......................................................28 Why do we allow secondary picketing?........................................................................28 Hersees of Woodstock (1963 Ont. CA) pg. 524..............................................................28

3 The Charter, Striking and Picketing.....................................................................................29 K-Mart v. UFCW (1999 SCC)...........................................................................................29 Pepsi v. Union (2002 SCC) pg. 532.................................................................................29 Re Canadian Forest Products (Canfor Mill) (2006 BCLRB)............................................29 Ally Doctrine.........................................................................................................................30 Industrial Conflict: Job Rights of Strikers and Replacement Workers.................................30 Royal York Hotel (1962)...................................................................................................30 CALPA (Eastern Provincial Airways)...............................................................................30 Why allow temporary replacement workers?.......................................................................30 Why does BC ban temporary replacement workers?..........................................................30 S. 72, 73 Essential Services ...............................................................................................31 Result of Essential Services Declarations: Interest Arbitration............................................31 The Individual Employee under Collective Bargaining........................................................31 McGavin Toastmaster Ltd. V. Ainscough (1975 SCC)....................................................32 Allen v. Alberta (2003 SCC).............................................................................................32 Steele v. Louisville & Nashville Railroad Co. (1944 US SC)...........................................32 Union’s Duty of Fair Representation....................................................................................32 Content of the Duty..............................................................................................................33 How far should duty of representation extend? 3 approaches............................................33 Human rights issues and the Duty.......................................................................................33 Central Okanagan............................................................................................................34 K.H. v. CEP Local (1997 Sask. Labour Relations Board)................................................34 Lavigne v. OPSEU (1991 SCC).......................................................................................34 R. v. Advanced Cutting and Coring (2001 SCC).............................................................34 Employment Standards Legislation.....................................................................................35 Re Becker Milk Co. (1973 OESA designee)....................................................................35 Re: Renaud (1999 BCEST)..............................................................................................35 Termination of Employment ................................................................................................36 Slaight Communications v. Davidson (1989 SCC)..........................................................36 Avenues to Address Employment Discrimination: Charter, Human Rights Act, Tort..........36 Formal vs. Substantive Equality...........................................................................................37 Direct vs. Adverse Effect Discrimination (and Employer’s Defences).................................37 BC v. BCGSEU (The Meiorin Grievance) (1999 SCC) ...................................................38 Vriend v. Alberta (1998 SCC)...........................................................................................38 Employment Discrimination..................................................................................................38 Grounds for Discrimination: Sex..........................................................................................39 Bliss (1979)......................................................................................................................39 Brooks v. Canada Safeway (SCC)...................................................................................39 Janzen v. Platy Enterprises (1989 SCC).........................................................................39 Shaw v. Levac Supply (1991 Ont. Bd. Inq.).....................................................................39 Grounds for Discrimination: Disability..................................................................................40 Shuswap Lake General Hospital v. BC Nurses’ Union (2002 BCCA).............................40 Union’s Duty to Accommodate ............................................................................................40 Central Okanagan School District v. Renaud (1992 SCC)..............................................40 Globalization of Labour........................................................................................................41 What role does the law play in achieving ideal labour conditions?......................................41 International Labour Organization........................................................................................42

4 Common Law Contract of Employment - Most employees have no written contract of employment - Employment relationship can be subject to any agreed upon terms that do not offend statutes such as the Employment Standards Act, Human Rights Code, Occupational Health and Safety Act, Workers’ Compensation Act - In practice, employers dictate these terms To end employment relationship: - Employer must have “just cause” for termination or provide “reasonable notice” (or pay in lieu of notice) - Wrongful Dismissal: o The employer dismisses the employee without alleging cause and without giving notice or wages as required by the contract (express or implied) o The employee quits in response to a repudiatory breach of the employment contract by the employer (constructive dismissal) o The employer dismissed the employee, alleging a cause that is not proved o The employee is dismissed in breach of a statutory rule governing the employment relationship or in breach of the administrative law duty of procedural fairness Where the contract refers to notice, the court looks to intentions of the parties, however, this is rarely done, so courts will decide what is considered a reasonable notice period Seneca College v. Bhadauria 1981 - Court won’t recognize common law tort of discrimination - Common law doesn’t let you sue for refusal to hire (for any reason) - Court can’t force parties to enter into contractual obligations with one another, or to enter into an employment relationship - Court recognized “wrongful hiring” – damages for people who are lured away from a good job for a better one, but in the end, the new job sucks Reasonable Notice - ESA: contains minimum standards of reasonable notice (statutory guarantees) - 2 weeks if employed one year, extra week for each additional year, max 8 weeks o Bring complaints before employment standards adjudicator - Common law guarantees are way higher… So why do we have these statutory minimums? Why is the # of weeks so low? o Want to encourage people to go back to work o It’s only for people who were dismissed without cause, so employers would argue just cause, if termination pay minimum was way higher - Wrongful dismissal lawsuits: asking for reasonable notice, not reinstatement - Upper limit of reasonable notice: 2 years Edna Cronk v. Canadian General Insurance Co. (1994 Ont. CA) - Issue: what is the period of notice is she entitled to? o Trial judge treated her like upper management b/c of length of service, age, gender, lack of education and training, few options for employment, stigma - CA: Cronk wasn’t entitled to the same period of notice as someone in management

even if you have seniority.Earliest strikes were “recognition strikes” which are illegal today Wagner Act (US) o Guaranteed right to join a union and bargain collectively o Employer must recognize union as the only way to bargain with the workers o All workers represented by the same union.Also: politically suspicious. linked to (gasp!) communism .Europe: the focus isn’t on the economic effects. but on industrial democracy – value in allowing workers to participate in their own negotiations… so unionizing is universal.Most employers just pay off the worker. workers shouldn’t be forced to join . forming a union wasn’t illegal – but still. but it can ensure that you’re entitled to money Dissent: Weiler found it “troubling” b/c of the compounding inequality - Just Cause for Termination .No such thing as “near cause” for dismissal (standard for just cause is very high) McKinley v.Roy Adams: Unions help individuals get greater economic power. they could choose not to be unionized .Laws changed. but need to look at circumstances . manipulate the market.Usually.Collective bargaining legislation in Canada is not universal and excludes certain .Employers can specify what is “just cause” for dismissal. BC Tel (2001 SCC) .The test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship History of Unions and the Wagner Act . no legal obligation on the employer to recognize or bargain with the union .Dishonesty must be seriously fraudulent before it amounts to just cause . but they rarely set out the terms (problematic) . disrupted economy .Is any degree or kind of dishonesty enough for just cause? . don’t argue “just cause” b/c employers should use other methods to deal w/misconduct (discipline) before firing worker . assumes that no rational person would refuse to join.Unions were criminalized. issue of recognition of the union is not a big deal . and all had to be bound by the terms of employment that the union negotiated o Right to strike if failed negotiation o If workers were happy.Q of degree: Is it enough that the employee did something “wrong” to get fired? .Courts are reluctant to find just cause . dishonesty is enough for just cause. like an election campaign where the employer “campaigns” to show why union is bad .North America: employers try to interfere with formation of unions. viewed suspiciously as criminal conspiracies to artificially raise wages to raise prices.5 o Employers need to predict what they’ll need to pay if they downsize o Re-employability isn’t only factor to consider when determining notice o There’s less stigma getting let go from crappier jobs Common law can’t force an employer to keep someone on Common law can’t restore your employment. as long as it doesn’t violate the statute.

and they weren’t vulnerable group. bargain collectively. because .Limitations: the right is procedural. it just guarantees access to a procedure: o Recognize and bargain with the union o Duty to bargain in good faith . negotiate contract . 2(d) does not protect the following rights: o Right to organize (a union) o Right to bargain collectively: force employer to recognize. v.Note: legislation passed to limit/restrict the effects of Dunmore Health Services and Support Bargaining Assn. such as freedom of expression. challenges to legislation Delisle (1999 SCC) . and there’s no right to get a particular outcome.Protects the right to do things in a group that are legal for the individual .1987 Labour Trilogy SCC: Charter s.6 occupations from forming union.Dickson: 2(d) should protect the right to organize. BC (2007 SCC) . 2(d) protects right to bargain collectively. Industrial Democracy o Labour is not a commodity. collective bargaining. 32 Charter applies to government. Ontario (AG) (2001 SCC) . 15 wasn’t violated (right to equality)…not about discriminating against workers (female dominated group of hospital cleaners) Justifications for collective bargaining 1. bargain w/union o Right to strike . striking The Constitution and Collective Bargaining . but 2(d) wasn’t violated.S.2(d) is only violated when there’s ‘substantial’ interference w/collective bargaining . people aren’t resources to be traded o Work is a site of participation of individuals who collaborate on decisions 2. and strike .RCMP officers prohibited from forming a union. 2(d) only protects the right to form an association and to gather in groups to exercise other protected rights.Some said. the trilogy happened because the labour movement was super strong at the time. officers were still protected Dunmore v.S. b/c RCMP officers have an association that does the same thing that unions do. Economic Model o Helps workers achieve gains in the workplace o Response to inequality in the workplace o Theory implies that it’s a sign of failure on the side of management.S 2(d) extends the right to organize and form a union to vulnerable workers (but not to bargain collectively or strike) . religion . public employer. but it was (mostly) reversed. so as a practical matter.Issue: what about things that are only meaningful when you do them as a group? Court couldn’t come to a conclusion. restrictive approach has been expanded Note: s. didn’t say that it automatically made that a protected activity .Court: s.

Card o Union signs up certain % of workers (60). Closed Shop Individual workers can’t negotiate outside of the union agreement. 2d in Lavigne Closed Shop . so employer is forced to fire him . 18: In BC need 45% . and they can use that time to campaign against the union o Method required in BC Union Certification Process: The Organizing Drive Need to be employee.Highest form of union security .Deals with problem of “free riders” who get benefits but don’t pay dues .7 it shows that workers aren’t happy o Model has driven labour legislation in US and Canada Union Security Clauses: Voluntary Check off. to be eligible to bargain collectively Organizing Drive .Challenged under Charter s. stuck with what the union negotiates on their behalf. not excluded by the statute. Secret Ballot Vote o Need a simple majority (50% + 1) of employees in the bargaining unit (who would be bound by the results) o Employers prefer the vote system b/c there’s less pressure by the union to sign ballots.If you join.Lowest statutory minimum in Federal. employer will take garnish your wages and pay dues to union .Challenged under Advanced Cutting 2 ways a union can certify: Card and Vote 1. Ontario . so some people don’t support it because they think they are worth more. would rather bargain individually Voluntary Check off .Most unions in Canada negotiate for this one because everyone has to pay . but you can . and everyone’s bound by collective agreement .No union membership requirement but.Employer might object b/c of philosophy.Minimum standard in BC . but not forced to join Rand formula . everyone must pay dues. present to labour board o Public process 2.Don’t have to join union. when there are enough supporters.Weakest form of union security .Problem: free riders get benefits of collective agreement.All workers must join the union and pay dues .Common in construction industry .Union has control: can expel worker from union. 2b. Rand Formula. and you identify yourself as a member.Union signs up workers. not necessarily because it affects them . apply for certification o S.

Employer has an incentive. decides remuneration) 4. the legislature may pass back to work legislation o Parties will then have to participate in binding “interest arbitration” and the arbitrator’s agreement will be imposed on the parties What is an Employee? Control and Economic Dependence 1. it might be too late.Considered employees for the purposes of collective bargaining: National Labor Relations Board v. but still economically dependant on employer . Chance of profit (sets prices.May own tools and have control. must look beyond the form.S. and at the substance of the relationship.If no agreement then strike/lockout .It’s also possible for unions to create unfair practices and employers complain Certification .If differences cannot be resolved. 27: If a union is certified it is the exclusive bargaining agent for all employees in the bargaining unit .S. 25: If a majority of those that vote in appropriate bargaining unit vote for union representation the Board must certify the union (need 50% + 1 of the people voting) . sometimes you’re not entitled to bargain collectively (like managers or certain professionals) Dependent contractors: . at this stage. violates statutory provisions. 22: Board may include/exclude employees from proposed bargaining unit  Managers. independent contractors don’t count .S. Control 2.Agreement must be ratified .Only employees are entitled to form a bargaining unit and to bargain collectively . and ask a purposive question: are the workers in an economically vulnerable position in relation to the employer? o Inequality of bargaining power o Who determines terms of employment .S. union can go to the Labour Certification Board to complain . to prevent certification . the union incentive might be quashed . Ownership of tools 3. 24: If Board is satisfied with application. representation vote (within 10 days) … in union’s interest not to have a long organizing drive . a representation vote must be conducted within 10 days.At 45%. Board can order a re-vote if < 55% of employees in the unit vote .8 o There may be some dispute over what is the appropriate bargaining unit o S. 30: The Board can designate an amount of time that must pass before a union can re-apply for certification The bargaining process .Even if you are an employee. Risk of loss . Hearst Publications (1944 US SC) .Problem: even if the Board enforces remedies. apply to Board for certification – if yes.Parties negotiate an agreement .To determine if a worker is an employee.If employer commits unfair labour practices during the drive.

supplies.Even if they’re not managers.Practicum. articling student: depends on the facts of the case .System of electing officers to serve. fire.Written constitution that members sign/ratify .Conflict of interest: manager can exercise too much control over workers’ decisions to unionize. 6(3) Unfair Labour Practices: Dismissal and Anti-Union Animus . workers might be pressured to go w/manager’s position Supervisors . 29 allows “supervisors” (not managers) to have separate bargaining unit Confidential employees .People on workfare (people receiving social assistance sometimes work for government.but is that constitutional?) Managers .Not in the same unit as employees.BC s. but not managers .Divided loyalty: represent employer. they shouldn’t be in unions (exception) . etc. supervises. with local interests (but you can have a branch of a more national union) S. and the employer has the onus to show that the decision was not motivated by anti-union animus .9 Winnipeg Free Press v. excluded from unionizing -.Relevant factors: o How much power do they have? Do they have labour relations power to hire.Generally. if they have access to confidential management labour relations plans.Test to determine if paper carriers are employees or independent contractors: Look at nature of degree of control by employer .To show an unfair labour practice. considering it’s off-site o Paper co. but they’re also employees .S. 1: unions is required to have a “local character” – it needs to be a local union. 29: supervisor can form a separate bargaining unit (form a union) if they don’t exercise managerial functions. collecting dues . or even provide input about those actions? o Is there a potential conflict of interest? o Can they exercise even a slight bit of “real managerial authority”? What Qualifies as a Union? . how to bargain. they can find their own replacements if they’re away (both employer and employee) Employees Excluded from Unionizing: Managers. dominates . need a connection or nexus between discharge of employee and the union organizing drive . has the risk o Delivery people can deliver other things too. not excluded . discipline. sets the rates. funds.Can’t be an association that the employer creates. Media Union of Manitoba (1999 Manitoba LRB) .S. the connection is presumed.This case: employer has lots of control.Labour Code s.Narrow exception Children’s Aid Society of Ottawa (2001 OLRB) .The purpose of the organization must be structured around labour relations . interns. 6(3) employer can’t fire or discipline employee for being member or leader of a trade union except for proper cause (but this is hard during certification stage) . Confidential Employees .

Without anti-union animus.Reducing costs isn’t automatically unfair labour practice (Kennedy Lodge OLRB) Westinghouse Canada (1980 OLRB) .10 Anti-union animus need only be a factor. because you have to show that his union involvement had no effect o Activities were ongoing.No intent required: employer’s action need not be motivated by anti-union animus o That helps unions. Conseil de la Nation huronne-Wendat (1999 CIRB) . Motive Requirement o Can establish indirectly o Look at surrounding factors. case had unique set of facts . b/c anything employer does could be construed as having negative impact on the union .Employer had duty to inform the union during collective bargaining that it was a possibility that the plant would be closing . draw interferences to determine motive to interfere with the union o Problem: hard to separate anti-union animus from what’s actually in the employer’s best interests . estoppel arises S. but it can be interpreted too broadly. 6: It’s an unfair labour practice to interfere in the formation and certification of a trade union (regardless if an individual employee or group is targeted) . International Wallcoverings (1983 OLRB) 2 ways to approach general unfair labour practices: 1. 6 Unfair Labour Practices: General .Board will look at the effects the employer’s actions have on the trade union o Burden is on employer to disprove Canadian Paperworkers Union v.High watermark.Anti-union animus only needs to be part of the reason for dismissal .Employers should institute progressive discipline and record bad behaviour. Balancing approach o Look at impact on the infringement on the union o Motive isn’t important o Only find unfair labour practice when the impact on the union is significant 2.Having “just cause” for dismissal isn’t the only test.Boards have broad jurisdiction. employer knew about it for years o The employer wasn’t happy that a union was being formed .S. the impact on the union must be pretty significant . this principle has been narrowed. discretion to give remedial rewards . not wait to discipline misconduct b/c when the union certification drive starts. not the sole reason for discipline to constitute unfair labour practice Duchesmeau v.Now: need real evidence of deception and clear motive of anti-union considerations to establish an unfair labour practice Certification and Bargaining Freeze S. 32 Certification Freeze . kind of skirted the question .Still we’re uncertain about how motive plays a role.

Sometimes it’s not business as usual. employer’s actions were within the workers’ “reasonable expectations” b/c financial difficulty. and content. therefore permissible o Actions didn’t violate statutory freeze or constitute unfair labour practice .Between filing application for certification and vote (starts when application is made) Bargaining Freeze .BC s. reasonable expectations) Employer’s Defences: Business as Usual.Freeze periods have limits.It does not matter that the change may be one that benefits employees: Exchange Parts Co.Even if employer interference in a union organization campaign is found to be an unfair labour practice.However.Even though it’s not “business as usual”. Reasonable expectations tests .From point that negotiations for new collective agreement begin (after certification or during final months of agreement) until workers are in the position to strike .Not absolute: “Business as usual”. it may be too late to fix the damage that has been done . .Proof of anti union animus is not required.courts are increasingly using international norms to interpret labour legislation.Problem: what if there’s a significant change to the business during the freeze? Can they do that without violating the freeze? . firing. v.Canada's international obligations/ILO principles . 8 employers have more scope: Employers have right to speak to workers as long as it’s not coercive or intimidating o BC looks to the effects of the employer’s speech.S. disciplining . but action was within reasonable expectations of employees Simpsons Ltd. employers can contract work out (business as usual.11 . 45(2) During statutory freezes.Employer’s expression during certification process or organizing campaign is limited .Normal change that reflects normal business conditions .Employers are limited to giving accurate statements of fact. employer is restricted from changing terms of employment. but not to express negative opinions about union . to determine if it’s coercive or intimidating o BC promotes more free speech (so Wal Mart isn’t applicable here) . the concern is that the change will undermine bargaining . but otherwise.CIBC: not issuing anticipated raises when union is organizing violates freeze Reasonable Expectations Test .BC: employer can apply for authorization/permission from the Board . Reasonable Expectations Business as Usual Test . context. Canadian Union of Workers (1985 NSLRB) . correct false statements made by the union. contracting out work for whole department wasn’t within reasonable expectations. unfair business practice Employer Speech . if it’s not during a freeze. This may result in a change of approach to employers who impede organization of unions/freedom of association .Employer has burden to show that there was no anti-union animus .Proper cause: employers can discipline/discharge if there’s proper cause .

Questions of motive are more complex . or let union reps respond .Reinstatement of fired workers .Argument that there was a security issue with strangers on premises failed S. the damage had already been done .BC Code s. just remedies that are remedial in nature .Employer committed unfair labour practice under s.Order a new vote .Damages to compensate the union for monetary losses . mandatory “captive audience” meeting.It’s ok to hit up workers in the parking lot or the break room off-hours Canada Post (1995 CIRB) .Remedy: Board automatically certified the union b/c the union had so much support prior to all this nonsense.Management didn’t distance themselves from worker’s speech at employersponsored.Unions may not organize or recruit on employer’s property or on company time o Exception: when workers live at the job site .Board will look to the effects of the interference. used sparingly o Balance support the union had with the extent of the employer’s violation o Not used often b/c majority of workers may not necessarily want a union. if they were foreseeable S. might apply for decertification right after.Back pay .Freedom of expression: can’t force employer to say it supports union if it doesn’t .14(4)(f) Automatic certification o Extreme remedy of last resort. process of collective bargaining won’t be effective b/c workers might not back up the union demands . but only during certain times . employer is ordered to “cease and desist” and is required to post that notice on a bulletin boardS.Cease and desist: every violation of the code.Management didn’t answer the store closure question.The managers circulating the store was a “high risk strategy” o Can’t say. but then refuse to answer the big one .Labour Board can provide remedies.LCUC is trying to “raid” and displace CUPW to represent postal workers . we’re here to answer Qs. 24 Raid provision: raids are allowed. not punitive remedy (fines.Government repealed the Board’s power to give automatic certification . Wal-Mart Canada (1997 OLRB) .Labour boards don’t have jurisdiction to award punitive damages or levies (above and beyond costs).Criminal Code s. 7 Union Solicitation on Employer Property . damages) . 425: Offenses by employers (similar to the Labour Codes rules) o Some labour codes have quasi-criminal provincial offenses National Bank of Canada Int’l Union (1984 SCC) .Order union access to the employer’s premises . 14 Remedies for Unfair Labour Practices . . 6(1) equivalent which prohibits interference with trade union . said “no comment” .12 United Steelworkers of America v.

said he would have disbarred Rovet .Ont.Rovet put anti-union employer in touch with guy who could supply them with employees who would vote against the union . union-side lawyers have social justice goals.Only one union represents an individual bargaining unit (no “minority unionism”) . ideological background . especially when it’s a large employer) Professional Responsibility of Lawyers . full time .Example of punitive damages case. but you can excuse yourself as counsel . one single client is your bread and butter.Lawyer can’t disclose employer’s actions to Labour Board because of solicitor-client privilege.Rovet was billing the firm for personal expenses .Employers initially wanted internally organized representation. couldn’t reach collective agreement.This wasn’t just a single lapse of judgment. ultimately de-certified . Rovet (1992) .Risk of decertification depends on how the bargaining unit is organized o Individual franchises have less bargaining power. employer can move their operations to different states How do labour boards determine the appropriate bargaining unit? .Typically labour boards prefer bargaining units that envelop and are limited to one location and generally don’t like a unit to include more than one location .Law Society suspended Rovet from practicing law for 6 months. you feel pressured to do shit for them .One bencher dissented.Rovet backdated contracts (forged documents) . in addition to Labour Board’s actions to compensate union (Board’s remedies aren’t necessarily enough to deter employer conduct.Employer entered into fraudulent contract to hire anti-union employees.Ethical pressure: often. quasi-criminal penalty imposed . benchers 1 year . banks. it was ongoing pattern of dishonesty The Bargaining Unit . e. CA) . CA raised fine to $100 000 – provincial fine. franchises) o Sometimes one company has various departments with lots of workers o Different categories within the same department.13 R.Often.g.Serves as electoral constituency. basis for collective bargaining .A group of employees defined on the basis of the employer for whom they work and the positions they occupy .Problem today: Globalization! Labour market doesn’t have jurisdictional boundaries. then external unions .Issue: should part time workers be included in unit? Unions don’t bargain for the needs of part time workers .Union was certified. K-mart Canada (1982 Ont. part time vs. manipulate bargaining unit . more often decertified .g.Not always clear who’s in the bargaining unit – not necessarily all employees o Sometimes 2nd location/branch run independently (e. not if you know about it through privileged information Law Society v. v.Duty to report another lawyer’s misconduct only if you have independent evidence of their actions.Labour law is extremely divided. don’t often switch sides (union or management) .

Generally.Test whether a bargaining unit is appropriate: 1.Broad unit will have more power. and a third for flight attendants (and some workers.Sometimes boards will allow an employer to have more than one union for separate functions if there is significant differences in community of interest between the employees in the functions o Air Canada has 3 different bargaining units: one for pilots. Do the people in the unit share a community of interest? 2. one union can’t necessarily bargain effectively on behalf of all 3 groups o This is the exception to the rule but often occurs.Option 1: one bargaining unit per location .Result: Cuts down on unions fighting over which workers are in their unit o CBC had 12 unions operating at once. BCLRB): the preferred bargaining unit is as broad one comprising all of the employees of a single employer . unions just spent time fighting over which workers fall under their jurisdiction. or none (employers like this one) . sometimes boards will allow a union organized in one location to organize another location and add those employees to the same union o This is sometimes seen as a good compromise .Presumption: working together gives employees a sufficient “community of interest” One Employer. promote uniform terms of employment . harder to organize union . one for ground crew.Industries are so interconnected. bargaining unit is restricted to one location: Labour boards don’t like to split up different bargaining units that are geographically fixed. skills within that unit or location) Michelin - . aren’t part of a union) b/c workers have different community interests. because then the get more dues Employer can apply to Board for consolidation to combine. sometimes a strike at one location will affect productivity of another location .Option 3: must organize all franchises/branches.Note: different job categories can get different perks from the same collective agreement (wages. comprised of workers at one location (the agreement will reflect different departments. Multiple Locations . especially in federally regulated industries . reorganize bargaining structure Metroland Printing (2003 OLRB) .Employers generally want one union for both branches or factories .Fragmentation can create labour relations problems if there are lots of smaller bargaining units.There should be a community of interest among the employees in question . benefits can differ within the one agreement) . like office people. striking independently .14 However.ICBC and CUPE (1974. Would proposed bargaining unit pose serious labour relations problem? .Option 2: one unit/union for each location.Workers will want the perks that the other branch gets.Don’t want multiple strikes . they get that one too (roll others into existing unions (unions like this) o Practical: employers don’t have to bargain two collective agreements o More employees. but if union organizes another location. too .

Sectoral certification tried to solve this problem by lumping all workers in a particular industry in a defined location. fast food workers in Burnaby) where there’s a need.Employers fought hard against sectoral certification: o Puts small independent businesses in the same bargaining units in the same category as big conglomerates – this might be a good thing.Multiple unions could represent the workers from the one sector Fast Food Workers . so ideal for sectoral bargaining . same business) . but they won’t get better wages or benefits than the other non-unionized franchises – which prompts decertification .15 2 locations or branches. but they might have different needs/constraints o Didn’t want to be bound by agreement that they didn’t negotiate o Don’t want to lose control of workers. across employer boundaries (construction. we’re a bakery or a café.Labour Board would identify a sector (e. few # of workers.How do you decide if there’s been a sale of a business? o Sometimes it’s clear (new owners.Another problem: the definition of “fast food” isn’t always clear.Grace period after union is certified: o Can’t be decertified o Another union can’t come in to displace the first union . general presumption against having one union for multiple locations (De)Certification . one employer: employers like to have two locations lumped together as one bargaining unit.Some work forces are more prone to decertification than others o Workplaces where there’s high turnover. unionize one. who might belong to different unions . the union’s bargaining rights attach to the new employer . hard to define… some might say.g. not a fast food restaurant Sale or Transfer? Successor and Common/Related Employers . so they’d keep adding workers from this category to the union .Statute bars union from repeatedly trying to apply for certification o 6 month minimum to file another application if workers vote no . then unionize 2nd location. even if they’re at different locations However.It’s a business that can’t be moved off-shore. hard to organize fast food workers: o Few employees o High turnover rates . bound by one collective agreement . where workers would be covered by the 1st collective “master agreement” .Successor provision: if there’s a sale or transfer of a business.So a couple locations will unionize.Majority of employees of private sector (service sector jobs) don’t have access to unions… so what do we do with them? Sectoral Certification in Under-Represented Workplaces .However. fast food) o Different employers tied to one union.One collective agreement would bind all employers and workers in a certain industry or service sector. small company o Part time workers who don’t see the job as long term .

Unique situation b/c unlike private contract. Union . the employer and union must meet in good faith.Employees want unions to treat 2 employers as a single employer for bargaining purposes b/c larger unit. most employees aren’t kept on but some are General rule: there must be a transfer of at least a part of a business as a “going concern” – doesn’t have to be a formal sale. broad definition Simple transfer of assets doesn’t amount to a sale of a business. board looks at control factors.This triggers bargaining freeze (employer can’t change terms of employment.16 o Sometimes it’s not clear: the nature of the business changes. collaborate and make an adjustment plan . we have no legal relationship with Charterways… courts said. it’s a matter for collective bargaining. 45-47: After union has been certified (or in final months of agreement).Ajax argued: we didn’t renew the contract.General rule: there should be some functioning economic unit (but not in this case) . rather. 38: Restaurants are under common control or direction. Ajax decides. to avoid a strike . workers can negotiate White Spot agreement. they don’t want to contract out bus driver services. BC Labour Relations Board (1997 BCSC) pg.Reasons: White Spot has control over the following things: o Where to get supplies o Set prices o Set menu items o Give frequent quality checks o Gilley must pay an advertising fee .The stability of the workforce constitutes a distinguishing “part” of the business .S.S. it doesn’t matter. it looks too much like a transfer Common or Related Employer Applications .Ajax has contract w/Charterways to provide workers for city busses. pragmatic approach Duty to Bargain (In Good Faith) . so effectively there’s one employer. they want to hire their own bus drivers… but they hire the majority of the existing workforce . no autonomy for franchise . 365 . parties can’t walk away from table . conditions of employment of a significant number employees.S.Held: it was a transfer of business b/c there was a stable. so bargaining rights didn’t go to the new workers (so no successorship) o That’s why unions fight contracting out - Ajax (Town) v.Technically. just a transfer Contracting out work: not a sale. employed by A (Jazz air) but true employer is B (Air Canada) . plus bigger company to negotiate with White Spot v. 54(1): If the employer decides to do something which affects terms.Doesn’t matter that there’s no anti-union animus. etc) to facilitate reasonable amount of time to bargain. well-trained workforce that was supplied by Charterways which was considered value unit (analogous to a functional economic unit) . employer will serve notice to bargain  triggers or compels both sides to start the process of negotiating a new collective agreement .

legislature will force the workers back o Interest Arbitration: if workers are legislated back to work. arbitrator gets to impose a final agreement on both sides Noranda Metal Industries (1975 CLRB) . that there’s no option other than a strike o May be followed by a strike or a lockout (workers must vote for a strike) o Strike will end when economic pressure starts to take effect . Problem: seniority sometimes violates human rights code or other statutes: disabled person will get lighter work. with a negotiated agreement that both sides can live with o Not binding. and to bargain with the union in good faith Duty to bargain increases union membership b/c workers know that the employer will have to bargain in good faith Statutory rules shape the provisions: provisions can’t violate human rights code. discriminate o Unions like to preserve seniority in workplace (don’t want employer to promote based on merit or choice). it’s an attempt to make sure that the parties really are at an impasse. the more likely that the parties can reach an agreement . but unions want to give lighter work to the senior worker who chooses it Issue: how involved should the law be in the bargaining process? - - - How bargaining ends .Duty to bargain in good faith: neither party can withhold information that is relevant to the collective bargaining process (unless there’s a really good reason not to) .Conciliation: when parties can’t reach an agreement.Union wanted to know cost of benefits employer was offering: violated duty . rational negotiating “In good faith” permits hard bargaining (bargaining in your self interests) Duty of employer to recognize union as the legitimate.Disclosure promotes informed.Procedural limits on duty to bargain .If strike goes on too long. as the process is designed to give both sides an opportunity to present their positions and come to a rational agreement o Rules about the process promote informed.Ideally. exclusive bargaining unit of employees. rational negotiating: the more info that is exchanged. but needs to be ratified by majority of workers .17 Duty to Bargain o Duty to make every reasonable effort to conclude a collective agreement o Failure of one side can lead to unfair labour practice complaint o Substantive component: duty to bargain in good faith o Objective component: every reasonable effort to conclude an agreement Purpose of the duty: o Ensure just result? o Prevent surface bargaining? Control the process? o Union must be able to bargain for what is important to its members considering the realities of the job o Unions should not be in a position where they bargain for things that will become irrelevant due changes in the workplace o Duty does not allow one side to withhold pertinent information.

but if they have info. guaranteed . Canada (Labour Relations Board) (1996 SCC) .Employer will (obviously) always sign an agreement that’s in their self interest Royal Oak Mines v. considering the employer fought hard against union certification? .Problem: employer says.Bitter strike. there’s no duty on the employer to go out and get it. but to seek justice! .Objective component: employer must make reasonable efforts to reach agreement . employer refused arbitration process wrt fired workers . it’s not surface bargaining (bargaining in bad faith). but not determinative) o History of anti-union acts prior to certification o Employer fought against the Rand formula (also not determinative) Union v. 45 employees fired.18 Issue: If the employer doesn’t already have the info. violence on picket line. need to disclose Content of the Duty to Bargain in Good Faith: Hard vs. but they recognize the union and prepared to conclude an agreement. replacement workers.Issue: how do you distinguish between hard bargaining and surface bargaining.Surface Bargaining o Violates duty to bargain in good faith o Simply going through the motions United Steelworkers of America v. it’s not surface bargaining .If the employer is genuinely willing to conclude an agreement. not just an employer being willing to sign an agreement on their terms.Hard Bargaining o Doesn’t violate duty to bargain in good faith . particular results aren’t compelled.Trustco case doesn’t make sense – it strips the duty to bargain of any value .Duty to bargain in good faith: objective and subjective! .If employer is acting rationally in their own self-interest.Can the board review the substance of the bargaining proposal? .Duty to bargain in good faith should include content because labour legislation is there to promote meaningful collective bargaining. 410 .Board’s reasons: the bargaining process is designed to put economic pressure. So workers are paying union dues for no extra benefits… Should that stance be allowed as hard bargaining? Langille and Macklem: “Beyond Belief: Labour Law’s Duty to Bargain” pg. Canada Trustco (1984) . but only on their own terms. not produce a particular ‘just’ end. Radio Shack (1980 OLRB) . even if they’re anti-union . you can unionize but we won’t give you benefits better than non-unionized workers.Can’t distinguish between bad faith bargaining and bargaining in self interest .Argue that the benefits offered are so low (or demands are so high) that the other side isn’t bargaining in good faith .Held: employer’s actions as a whole considered surface bargaining o Wrote thank-you letters to workers who crossed the picket lines o Employer never called as a witness to testify anyone who could make decisions on their behalf o Employer not flexible in their approach (evidence. Surface Bargaining .

compare to another generally accepted standard or norm in the industry If employer won’t budge on a fundamental issue. don’t want to have to contemplate all hypothetical scenarios that might not come to pass o Disclosing possible shut downs might be construed as threatening .Employer offered less and less at each bargaining meeting: breach duty to bargain First Offer = Last Offer.In BC.Q: Is it a breach if the employer works out. not artificial Consolidated Bathurst Packaging (1983 OLRB) . so their offer is the one that’s chosen Duty to Disclose and Share Information . and won’t budge on all those issues? . how far they are willing to go.The more fundamental the decision is for workers (how it affects them). “Final Offer” .Issue: how far does this duty extend? Westinghouse Canada (1980 OLRB) . ahead of time.Decision must be finalized: Hard to draw the line to determine at what stage the decision is “made” (thinking about it. drawing up plans) .Westinghouse extended: employers cannot delay decision making until after the collective agreement is finalized . facilitates bargaining process .Advantage: each side will propose the most reasonable position as possible.Combines negotiation with arbitration .Board may find that a decision was effectively finalized. meeting about it.Critics: why should unions waste time bargaining if. the plant will shut down? Let’s focus on the important issues that affect workers long term. the less final the decision needs to be. considered surface bargaining Facts in this case were extreme. and set it out at the beginning.19 Substantive component: Board may look at substance of the proposal. Buhler Versatile (1991 MLRB) . the decision needs only be highly probable . even if it wasn’t formal .Employers don’t have pro-active duty to disclose if contemplating a significant change except if the union asks about it. after 3 weeks. so can’t really draw general rules other than that the Board can look at the substance of the proposals CAW Canada v.Noranda: duty to provide/share relevant information.Union has obligation to ask: union must show it’s an important issue on agenda o Problem: onerous for union to ask about things the employer might be contemplating – grasping in the dark . or if the decision has been finalized o Bargaining is hard enough.Each side says. employees can be forced to vote on the employer’s “final offer” if the union isn’t being reasonable in putting it to the employers Last Offer Selection . this is my final offer… then arbitrator picks the best one (not the middle ground) .

Where parties have been unable to form agreement o Radio Shack: both parties have fought leading up to certification.Board’s remedies are meant to be restorative. there’s a requirement to consult. ongoing meetings o Practical.Also: union can order back to work protocol for fired workers (additional condition) . and is committed to respecting the code in future .CLRB had jurisdiction to order the employer to re-table an earlier offer (substantive) that the union had accepted but the workers had voted against . committee must meet every 2 months to discuss workplace issues o Just a dialogue.20 S.Remedy: Board ordered employer to pay back wages to workers (ouch) . 53. 55 First Contract Arbitration .These things help deal with the harsh.Costs of bargaining for time wasted . not likely . Canada (1996 SCC) .Note: doesn’t say how significant the change must be. facilitate process of collective bargaining… not punitive remedies or imposed agreements . balance w/free bargaining o The order is not rationally connected to the breach Buhler Versatile . workers chose to strike o Hard to know if it was 100% the employer’s fault S. in good faith. or what percentage of employees it must affect .Consultation committee: on request of party.If there are major changes in employment mid-contract that affect employees. 54: Joint Consultation and Adjustment Plans .Labour Boards usually get a high level of deference in judicial review o Not patently unreasonable to force the mine to re-table an offer .Issue: should the Board go further and give more substantive remedies? Should they require the employer to accept certain terms of the agreement? Royal Oak Mines v. to make adjustment plan . b/c some collective agreements are really long .Test for Valid Remedy: Four conditions under which remedial orders will be invalid: o Punitive o Violate the Charter o Inconsistent with policy objectives of the Code  To promote industrial peace.If employer introduces measures that affect “significant number of employees”: o Employer must give Notice o Employer must meet.Order for “retraction” public statement that employer has violated code. not a requirement that you have to change anything . stark impact of Westinghouse Remedies for Bargaining in Bad Faith .“Cease and desist” declaratory orders . lost tons of $ .Employees on strike for months b/c of employer’s bad faith bargaining.Does that pass the test from Royal Oak Mines? o It wasn’t a lock-out.

Ban on grievance strikes . why do city workers go on strike? o Public pressure on city to settle the strike because people are pissed that they aren’t getting services. decide terms of the first contract.S. will be binding on both sides Like imposing certification on union (which often leads to decertification).If truly at impasse. If this fails.21 that they will reach an agreement. but outline key issues as a starting point so the parties can hopefully go from there Industrial Conflict: Why do we allow strikes? Why do workers strike? .Issues aren’t always in focus: library workers are holding out for pay equity. but in fact the city is saving $ (unlike commercial enterprise.First Contract Arbitration isn’t a time for groundbreaking provisions.So. first contract arbitration usually sucks. and bargain with someone else… generally.Hope that strike will push parties towards an agreement Public Sector Unions on Strike . transferable skills.Public sector unions don’t gain as much leverage from strike b/c city isn’t a profitmaking enterprise. 59. but it’s better than nothing Yarrow Lodge (1993) . working construction jobs . like in a private contract.Has it worked? o Workers seem to be the ones responsible. mediator will issue a report that allows the union to vote Step 2: Take a strike vote in accordance with regulations (s. because it’s a predominantly female work force S.Employees may not be disciplined for striking (so long as the strike is legal) . mediator can recommend a strike or refer the dispute to arbitration Arbitrator will take the middle ground after hearing from both sides.Union’s only card that they can play is their labour (leverage) . 59) . supplement their income b/c there’s a labour shortage. they’re on the front lines o Hurts the poorest members of society o Looks bad b/c all the other municipalities have accepted their agreements o People are dumping their garbage in the suburbs .Submit it to a process of mediation.Why do workers vote in different ways (inside workers vs. but still paying taxes . 60: How do you get into a legal strike position in BC? .How do you know if you’ve reached that point? .Employees may only strike over the negotiation of a collective agreement . conciliation to help parties get through impasse . 57(1): You can’t strike while the CBA in force Step 1: Bargain collectively in good faith until the point of impasse (s. outside workers)? o Outside workers can take other jobs.Ban on recognition strikes (forcing employer to recognize union though strike) . 60) . and truly at an impasse Need positive strike vote One party can refer the case to mediation.Parties can’t just walk away. which saves $ on wages but loses $ b/c business can’t operate) . employer has more power .

Partial strikes may provoke a lockout by employer .Issue: when would these actions amount to a strike? . this is government policy. not discontinued for more than 72 hrs (s.Collective action that disrupts employer’s operation and output (objective definition) o Purpose (get employer to agree to terms of employment) isn’t there anymore .Refusal to cross another union’s picket lines is a strike unless in agreement . 2(d). political protest.Can’t strike while collective agreements is in force . as matters of complex social policy. 2(d) protects right to strike will come up again. belong in specialized tribunals o Mitigate adverse effects on 3rd parties who don’t have control over dispute Dissent (Dickson) . 78: Employer can request that workers vote on last offer if employer thinks that union is not taking a valid offer to workers.A strike requires some measure of common action by employees .Violation of s. Health Care workers  we can expect that this question about whether s. they can by-pass the committee . work stoppage. organized “sick days” o These kind of pressure tactics often prompt lockout by employer . 59(2)(a)(ii)) .Often a union does not want to go on a strike but wants to pressure employer through some other action where employer still has to pay them o Refusing overtime.S.There is no direct individual analogy/equivalent to the collective action of a strike .Policy reasons: o Encourage negotiation o Encourage stability in marketplace o Avoid intervening in delicate balance between labour and management o Ultimately.S.Employer can’t discipline workers for participating in a legal strike .S. can extend to things that cease/slow down work . and collective bargaining is protected under 2(d) .22 . not for courts to second-guess o Concern that courts would have to hear challenges that.There’s been a lawful lockout. 3 months) after serving notice to strike o Allow for last minute bargaining o Allows employer to prepare for shutdown of their business . not saved under s.International law recognizes the right to strike as a necessary component of right to bargain collectively.Majority of voters must be in favour of going on strike Step 3: Must serve written notice of strike on employer and Board Step 4: Union must wait at least 72 hours (max.2(d) only protects the ability of people to pursue/engage in lawful activities in groups that are permitted to an individual . 1 b/c taking away the right to strike is not limited to just essential services Note: Remember progression of constitutional protection available to union activities: Dunmore.Broad. 2(d) does not include right to strike: not fundamental to warrant charter protection . 74 Process of strike can be delayed if a mediator is appointed The Constitution and the Right to Strike Alberta Reference (1987 SCC) . b/c it protects right to bargain collectively What is a strike? Why not strike? .

(2) to restrict or limit production.Held: The refusal to work overtime constitutes a strike and is therefore unlawful as .Employers may also engage is a rolling lockout (where 10 employees may not come to work on week one.Held: The union job action (“work to rule”) is lawful o Statutory duties are there to ensure teachers don’t refuse them when collective agreement is in force o It makes no sense to allow teachers to strike completely but not refrain from certain activities o Teachers have a limited ability to exert economic pressure on their employer.Employer is free to respond by locking out employees .The right to strike won’t shield acts that are otherwise unlawful or criminal . Graham Cable TV/FM (1986 CLRB) . no overtime. The collective agreement provided that employees could refuse to work overtime though it is typically popular & accepted. but does not include act or omissions: o required for employee safety or health reasons – s. while in a legal strike position. workers may not be able to find alternative work o Employer might be able to bring in replacement workers (not in BC!!) o Strike may get union public support or create public animosity CWC v.The union. . began a “work to rule” campaign where it instructed members to refrain from some extra duties that were required by Education Act statute (such as conducting parent-teacher interviews). speedups in taking orders. don’t have to cross another union picket line o that is only the direct result and only due to picketing permitted by the Code Action need NOT have been taken for the purpose of compelling the employer to agree to terms and conditions of employment “Strike” may include a broad range of tactics to restrict or alter production - Why would workers not want to strike? o It might not impact employer for a while o If high unemployment rate.The employer sought an unlawful strike declaration because employees refused to work voluntary overtime. 62(3)(b)  Agreement says.A strike has two objective components: o A concerted/collective effort. 10 others may not come on week two) Ontario Secondary School Teachers’ Federation v. . that is done with the… o …Intent to restrict output or otherwise disrupt the employer’s operations . in combination or in concert.Job action – slowdowns in processing order. Grain Workers’ Union (1994 CLRB) . 1: A strike is (1) cessation or slowdown of work by employees. b/c they don’t have economic “output” o The union is not required to choose between total strike and no strike at all BC Terminal Elevators Operators’ Assn. School Board (1999 OLRB) . and no training of other employees – constituted a strike .Employer may not punish workers for engaging in a lawful strike . 63(3)(a) o permitted under a provision of a collective agreement – s. The employer argued that this job action was not lawful as it’s a statutory obligation. v.23 S.

Absent subjective language in the legislation. requires a strong union Hot Cargo and Hot Edict Clauses . circumstantial evidence will suffice o Had the union send employees mixed messages as to whether the action was acceptable that may have been sufficient (CBC v. collective action with the effect of disrupting operations will be considered a strike.So essentially. Maritime Employers’ Association (1979 SCC) . s. SCC refused to read in the purposive definition.Above third part has been removed from definition of strike in BC Act Int’l Longshoremens’ Association v.Problem: In 1992. o Definition of strike: concerted or collective effort/action to restrict output and interfere with business operations o Though there was no direct evidence that the union orchestrated the action.ONLY for BC: Can include in collective agreement a clause that says that workers won’t cross picket lines of another bargaining unit that is legally striking o Rare clause. these hot cargo clauses allow for something which would ordinarily be considered a strike to not be a strike Should parties be permitted to negotiate “hot” clauses? Is it essentially contracting out of the Code? .Refusal to cross picket line is a strike unless it is permitted in collective agreement . which has the power to say what clauses they will give effect to o Boards use s. This includes the refusal to cross a picket line.2 o One of the “duties” is to minimize the effect of labour disputes on 3rd parties . Cdn Media Guild) Strike Prohibition and Sympathetic Action . S. refusing to cross a picket line is considered a strike . they may refer the matter to the Board. 63 BC’s Exception to Picket Line Rule .This purposive part of definition would save refusal to cross pickets lines b/c refusal to cross is not for the purpose of getting employer to agree to terms and conditions . 70 to uphold hot cargo clauses as valid if parties contract for it . 2 “Purposes of this Act” was changed to “Duties of this Act” so the Board would pay more attention to the purposes/duties in the Act s.BC: unions will negotiate a “hot cargo” clause in collective agreement that allows unions to declare that the goods or services of a particular employer are “hot” b/c that employer has engaged in unfair labour practices o Union members should refuse to deal with these goods or services .Is this in violation of the Code? o Without the clause. 70: when employer and union agree on a provision in CBA.24 the collective agreement is still in force.In most jurisdictions. this action would be considered a strike as the action is collective and disrupts the operations of the employer o In every other jurisdiction this kind of clause would be invalid .There used to be a third subjective (purposive) criteria in definition of a strike: “Purpose of compelling employer to agree to terms and conditions of employment” .S.

the less you adhere to the purpose of minimizing labour unrest. Union (1981 OLRB) .25 o Labour unrest is disruptive.Definition has purposive element: o Employer removing offer of work to employees to get them to agree to terms and conditions of employment . that wouldn’t amount to a strike? o Collective consumer boycott o Join them on the picket lines on their day off to show solidarity Note: Board won’t deal with something that the arbitrator should deal with (how to interpret the agreement). Grievance Arbitrator o Interprets clauses in collective agreement  Rule on whether a hot cargo clause applies o Deal with individual picket line disputes o Only hears grievance if union decides to bring it (won’t deal w/individual) 3.Not defined objectively like a strike. hire new ones) Jurisdiction: 3 Forums Regulating Industrial Conflict 1. order to return to work. can be violent.Ok to hire temporary replacement workers .Can’t hire permanent replacements (fire workers. Labour Board o Interpret and apply Labour Code legislation  Are we allowed to have this clause in our agreement?  Is a strike or picketing legal or illegal? o Can issue remedies that vary between jurisdictions  Cease and desist.Used by employers in response to rotating strikes . provided it is negotiated in a collective agreement - - Lockouts . declaration  Filed in superior courts. enforced by the court 2. board only decides if it’s valid Honouring a “hot edict” does not amount to an illegal strike. or employer refuses to permit that clause: what could the employees do that would be lawful. Courts o Interpret and apply common law.Employer can time lockout when it wants . b/c some actions (like shutting down operations) won’t constitute a true lockout . rather. disturbs economic output. equitable jurisdiction . more lost productivity o Every other province prohibits hot cargo clauses If you’re outside of BC.Lockout is legitimate legal tactic to put economic pressure on workers to agree to terms and conditions of employment . contributes to lost productivity o Code and labour rules constrain ability to hold strikes o The more exceptions to the rules you give.Employer cannot lock out employees until it’s in legal lockout position (like a strike) Westroc v.

BCTF (2005 BCCA) . 136. however police forces take a hands-off approach. 2(b) BC Public School Employer’s Assn. refuse to cross picket lines and it won’t be a strike . non violent expression o Total ban on the discussion goes too far. lockouts o Since courts don’t have jurisdiction in strikes and picketing matters. active jurisdiction to issue injunctions through tort law (often interlocutory injunctions) . 2b is a reasonable limit under s.Ss. courts had been the sole forum for labour disputes Unions felt that courts were hostile to their cause Courts want to reserve jurisdiction. 137: Board has exclusive jurisdiction over regulating strikes.) o Speech is protected: political speech.Now employees can protest. v. argued that it violates s.Courts have jurisdiction over common law torts (assault. 2b freedom of expression. always looking to intervene Want to avoid sending people to multiple forums.Teachers legislated back to work after work-to-rule strike. parents wouldn’t tell teachers that they don’t want to hear about this . and to avoid forum shopping Constant struggle between 3 jurisdictions Disputes arising from strikes and picketing . not justified as a reasonable limit under s.Purposive part of definition removed in 1984 . Anne Nackawic) o Courts cling to their little piece of jurisdiction o Common law test for issuing interlocutory injunction: irreparable harm if the injunction isn’t issued Strike and the Purposive Definition . School Board prohibited teachers from discussing class size at parent-teacher interviews. .Unions try to add the purposive approach back in.Board’s prohibition violates s. 1 o Charter applies b/c public employer (wouldn’t apply if it was private co. trespass) and criminal law. or from posting related materials in the building. courts can issue interlocutory injunctions. which they justify as an equitable remedy (jurisdiction wrt equitable remedy) (St.Dissent: the violation of s.26 o Enforce criminal law on picket lines o Power of punitive damages Complicated b/c boards and arbitrators are relatively recent. won’t arrest people on picket lines unless things get violent . not minimal impairment .Can you get an injunction through the courts? Varies between provinces . prohibited from bargaining over class size.Ontario: courts have full. they can’t use injunction to restrain strikes o However. 1 o Exception: a parent raises the issue of class size in teacher conference o It would harm the public’s confidence in school system o Teachers shouldn’t use public schools as forum to advance a political agenda – speech is protected but do it on your own time o Parents are a captive audience to the speech.

picket at premises of customer or supplier of employer to put pressure on them . tension between primary picketing and private property rights . particularly when not showing up to work may not have a substantial economic impact.27 Picketing and Freedom of Expression . This increased economic pressure quickens dispute resolution .S. 136 gives jurisdiction to the Labour Board to regulate picketing (but courts have constitutional jurisdiction over picketing.E.Secondary picketing limited to allies to prevent unrelated third parties from being drawn in.S. so unions tried to argue that picketing was protected by freedom of expression .) .Picketing at a site that isn’t the employer’s place of business (not party to the dispute). but historically.No right to picket under 2(d).Picketing does not have to overlap with a strike: independent political protest o This gets blurred when picketing back to work legislation (Canfor) .S. However. common site picketing must be constrained to protect interests of third parties—Board must place conditions .Courts can limit it if you do it illegally (e. can you stop cars from entering. 65 Types of Picketing: Primary.Other provinces: courts generally permit it. even if the legislation is silent. and Secondary Primary Picketing . so most regulation of picketing is left to courts (where you can picket. how many people can be there. can’t be modified by statute) Why do we allow picketing? . to regulate picketing . that may or may not be related or connected to the employer – so sometimes primary picketing has spill-over effect .Picketing is not the only way to strike: can refuse overtime. but picketing may occur at site of ally in order to have an economic impact S. 67: can’t picket unless where the code permits it . but where pressure can be placed on employer .You can picket employer’s premises if that’s where you work under the control or direction of employer .Employers can't avoid picketing simply by sharing a space with other employers. leaflet . 65(4) Board has discretion to permit it but requires it to be terms and conditions on how it can take place Secondary Picketing . 65(3) Permitted in BC .S. not courts. Common Sight. doing business there .BC Labour Code is exception: o Defines picketing o Explains what kinds of picketing are lawful o Gives jurisdiction to labour board.g. etc. freedom of association.Complicated if employer shares premises with other businesses.BC Code Definition of Picketing: attending at or near person’s business for the purpose of persuading or attempting to persuade anyone from entering the premises.Many provincial labour codes are silent when it comes to picketing (including definition). under tort or criminal law) Common Sight Picketing .g.Equalizes power imbalances between the parties.

so she trespasses .Could be disruptive to business and economy . Canex Placer Limited (1975 BCLRB) .28 not to do business with the employer Most provinces held that it was illegal BC limits secondary picketing to “allies” of the primary employer Remedies available to employers when union engaged in illegal picketing . it has huge impact on an integrated supply chain Hersees of Woodstock (1963 Ont.Freedom of expression . it is quasi-public space (ordinary public has unrestricted access during business hours) . 524 .s.Even though shopping centre is on private property. 66 overruled decision: now there’s (limited) ability to picket on private property . 137(3). and often police won’t come (effectively overruling the SCC decision) Secondary Picketing Why would we want to limit secondary picketing? .Courts have inherent jurisdiction over tort law (damage to property.It’s a fiction that primary picketing doesn’t have an impact on 3rd parties – if business is shut down in primary. end the strike earlier . but employer’s business is in privately owned shopping center.Their own employees might not cross the picket line Unfair to involve third parties in dispute: lose business but they’re not party to the dispute and can’t do anything about it (like negotiate to end it) Why do we allow secondary picketing? . increased economic pressure on employer that could.Secondary picketing was unlawful.Board has jurisdiction over who/where/when workers can picket .Carswell legally on strike. 143: Board may declare strike illegal .Ontario: must seek police assistance before getting an injunction to get picketers off your property. in theory. wants to picket (primary). 133(1)(a): Board may order cessation of picketing .S. Carswell (1976 SCC) .Indirect.Dickson J (Majority): Private property rights trump picketing rights . strikers are restricted to primary picketing .(4): Court cannot declare picketing illegal or make a back to work order but a court can hear a claim for damages arising out of illegal picketing IF the Board has already declared the picketing/striking illegal.Laskin J (Dissent): o Private property rights needs to yield if picketing is to be meaningful o Presence of picketers on private property should be permitted o Goal is industrial peace and a system of collective bargaining that works .s.s.Picketers pressured customer of employer not to accept products from employer . CA) pg. trespass) and criminal law (threats) which can’t be abrogated by statute so they o Courts say “how” people are allowed to picket Harrison v.

2b o When the picketers declared an official picket line.Union argued that the picketing wasn’t illegal b/c the workers weren’t on strike.Pepsi: Picketing has expansive definition. and had unrestricted s. Union (2002 SCC) pg. then official picket line.Issue: is consumer leafleting unlawful secondary picketing? .Note: SCC held that Pepsi decision might not apply in a jurisdiction that has a statutory scheme for regulating secondary picketing o BC code permits secondary picketing. signal effect  not protected (amounts to strike) .Distinction between “information” picket line and “official” picket line: o Initial protest outside mill was political protest. protected by s.Failure to include purposive element in definition of strike doesn’t violate Charter . they had been legislated back to work. 532 . UFCW (1999 SCC) . 2(b) freedom of expression o Definition too restrictive.UFCW workers legally on strike. it had a signal effect  Even though nothing changed about how they picketed.29 The Charter. it fell outside scope of Charter. too broad and general o Catches other lawful behaviour like consumer leafleting. 2d Freedom of Association doesn’t protect the right to strike . 2(b) right to picket . so mill union tells workers not to cross (their agreement says that they won’t cross another legal picket line). permitted at common law unless it results in an independent secondary tort or crime o As long as it’s non-violent and expressive activity. 2b freedom of expression K-Mart v. which amounted to an illegal strike (doing something to decrease output) . not entitled to picket. 2b rights are not unlimited . informational only  No one was coerced not to cross. Striking and Picketing . 1 analysis: limits on secondary picket are not justified .Secondary picketing is protected under 2(b) freedom of expression.Functional test: formal picket line. it’s unlawful (reasonable limit on restricting 2b rights) .Held: Mill workers honoured an illegal picket line.Hospital workers legislated back to work. .BCTF: Speech in the workplace is protected. so it’s protected under s. so handed out leaflets to customers to persuade them to boycott store .Statutory def’n of picketing struck down as violating s. but restricts to allies: Does that mean that the BC Code is too restrictive and unconstitutional? o More protection for picketing/leafleting than striking Re Canadian Forest Products (Canfor Mill) (2006 BCLRB) . they automatically respond to it and opt not to cross the line Pepsi v.What actions constitute picketing? o Information Effect: Consumer leafleting is merely providing public with information that they can choose not to take o Signal Effect: A true picket line has a “signal effect” on people. it’s 2(b) protected o S. but s. mill is shut down. so . set up information picket line.Alberta Reference: s. went to mill.

can replace them .If employer hires permanent replacement workers. a junior employee goes back to work.If strike is lawful.Sims Report: Banning replacement workers b/c it leads to violence on picket line punishes the victim of the violence. the employer must maintain seniority when the striking workers return to work.Definition of ally is narrow.30 Ally Doctrine .SCC: In the hypothetical case that a strike lasts forever. threshold is high.BC.Temporary workers distort the market rate for wages . more than just a commercial connection to employer (customer hasn’t conspired with employer to resist the strike) .Ally: 3rd party acting in combination. but they don’t have priority . give former workers priority Why allow temporary replacement workers? .Allows employer to determine the market rate for the work the strikers were doing . Complicated when a strike will go on for a few months. employer can’t tell workers to either come back to work or quit .If the employees cease to be employees for reasons other than the strike (they all took work somewhere else or died).Need a higher level of involvement.Allowing temporary replacement workers is balanced: striking workers are allowed to take other jobs if they have transferable skills and the market is good. let’s the violence win Why does BC ban temporary replacement workers? . and these replacement workers can be permanent! Why? Because just as workers have the right to take other jobs during the strike. then after the strike ends.Ban on permanent replacement workers is ok .Look at undue assistance by 3rd party that goes beyond acting in their own interests and actually helps the employer Industrial Conflict: Job Rights of Strikers and Replacement Workers .Ontario: Right to return to your job only lasts for 6 months. employer can replace you temporarily and/or permanently after 6 months. senior employees want to come back. so employers should be allowed to hire . Quebec: ban on permanent and temporary replacement workers! Royal York Hotel (1962) .Preserve balance: Loss of revenue for employer. the employer should be allowed to replace workers while the strike goes on. so workers have jobs to return to . conspires or assists employer in lockout or strike.Three factors: o Has 3rd party markedly altered their operations? o Does 3rd party have own compelling reasons for actions. like stockpiling? o How significant is the help? Did they conspire with the employer? .BC: Secondary picketing is only lawful at business of employer’s ally (narrow scope) . provides undue assistance to employer . the employer should be allowed to hire replacement workers CALPA (Eastern Provincial Airways) .Most provinces prohibit “professional strikebreakers” (professional replacement workers) and permanent replacement workers. difficult to call someone an ally . loss of income for striking workers .

Final Offer Selection: each party gives final offer. education) . Royal Oak Mines Government is often portrayed as hostile to unions. like Canada Post o Critics: if it’s not essential service to begin with. lazy) o Unions tend to do well in interest arbitration o Ability to pay isn’t really an issue b/c the government has lots of $. 73 Essential Services .Mediator appointed to help parties determine the minimum # of people needed .Unions don’t like essential services declarations b/c: o It’s one less way they can pressure the employer economically o Strike can last longer. the “market” would tell you that wages should fall when there’s a surplus of labour o Labour is not a commodity! Don’t want wages to fall based on the market (supply/demand) Some workers have specialized skills. if missing.Some provinces (Alberta) disallow strikes by large segments of public sectors . but they usually prefer conventional system: quicker at resolving disputes.31 o Unemployed willing to temporarily work for less wages. so governments don’t have confidence in the process of interest arbitration – plus. want stability in labour legislation Prevent labour unrest - S. and what proportion of workforce needs to be on duty . 72.Union must represent all employees of bargaining unit.g.Some jurisdictions permit strikes. not allowed to strike . regardless if union members . should let them strike . can’t find temporary work Prevents violence on picket lines e. but back-to-work legislation if it lasts too long o Common in federally regulated industries.Why not use interest arbitration all the time? o Less likely to try to achieve a negotiated settlement (rely on it.Determinations about essential service: any party can apply to call something essential. better result The Individual Employee under Collective Bargaining . could potentially put the most pressure on the employer if they were striking Result of Essential Services Declarations: Interest Arbitration .Public sector jobs are often considered essential services. arbitrator picks one of them (incentive to be generous) . business can sustain itself if too many union workers are considered “essential” o Essential employees are the ones who.Situation specific: depends on minimum safety standards . not transferable. the government can pass legislation to get around it anyway o Private sector parties could choose arbitration.Some jurisdictions have mechanism for determining when service is essential. benefits – “market rate” for value of labour is unclear o If there’s high unemployment at the time. didn’t want to see constant dramatic shifts in labour legislation with every change in government.Adjudicator (often mutually agreed upon) resolves outstanding unresolved issues . different criteria (safety.

so no more contractual obligation to pay severance package. (1944 US SC) . Alberta (2003 SCC) . workers breached contract. Employer argued. but courts would rather arbitrators decide these issues Allen v.Problem: union must bring grievance.Forum: Labour Relations Board . with or without union McGavin Toastmaster Ltd.Note: SCC had jurisdiction.S. 12 Anyone in the bargaining unit can argue union breach duty of fair representation in negotiation. Collective agreement: if plant closed. argued that they should have been entitled to severance pay. Union negotiated to give up severance package for jobs with private company.Workers: only option is to bring a complaint to labour board against the union . and only the union can negotiate on behalf of all workers in that unit Doesn’t matter if it’s an issue that’s not included in the collective agreement that only one worker wants to negotiate Exception in Federal Jurisdiction under Canada Labour Code: Individual employees may go before adjudicator to challenge if they’re dismissed. Louisville & Nashville Railroad Co.Collective agreement can’t be repudiated by breach of the terms of employment .Common law doctrine of repudiation has no place in collective agreement .Common law concepts don’t apply.Duty of unions not to discriminate against members of bargaining unit who aren’t members of unions. .Union certified to represent all firemen. . based on irrelevant considerations (or ethnicity) . not individual employees… and union already negotiated that they wouldn’t take it to arbitration! So. employees losing jobs. workers sued.However. doesn’t force union to amend constitution to say. workers get severance pay. fire for illegal strike (no severance pay obligation) . but internal constitution excluded blacks from being members of union .32 Individual can’t negotiate terms & conditions directly w/employer Principles of Majoritarianism and Exclusivity: only one union per bargaining unit. Things don’t work out.In most provinces this duty extends only to the administration of the CBA but in BC also to the negotiation of the CBA . fine.Government privatizing a service. whether or not union member .Any employee in bargaining unit can bring complaint. you can’t discriminate by not letting blacks in the union in the first place . no individual relationship between employer and employee .Canada: human rights legislation contains provisions preventing unions for discriminating in membership Union’s Duty of Fair Representation . workers are screwed . Ainscough (1975 SCC) .What could the employer do? o Injunction to force workers back to work o Discipline: dock pay.Employer (legitimately) closed plant. Workers went on illegal strike.Only option for union members to complain about something their union has done .Held: dispute should go before arbitrator . even if they didn’t join the union Steele v. V.

don’t want employee telling union. that in a limited number of cases. they should be able to fight it. so arbitrators can interpret and apply human rights code in agreement .Sometimes. no duty to achieve a certain result – can’t appeal on substantive basis . Paul Weiler’s Middle ground: Unions have broad scope to decide which issues to bring to arbitration… However. do what’s best for the majority (but also want to protect minority rights) . if you don’t support my grievance.Labour boards typically won’t let unions plead guilty o If union missed limitation period for filing grievance. does the union take the side of the accused or accuser? o E. between different people in the bargaining unit o E. union isn’t equipped to decide to pursue grievance .Problem for unions: can put them in position of conflict of interest. Summers: If individuals are paying for it themselves.g. like if an employee is fired. sexual harassment of two people within the bargaining unit.g. even if the union won’t support it (the other extreme) 3. even without the union backing them (Canadian approach) Human rights issues and the Duty . so that unions aren’t dealing with frivolous grievances. must be gross negligence for the Board to find that it was a violation of the union’s duty to employee . unions don’t proceed with grievances b/c it’s between two employees How far should duty of representation extend? 3 approaches 1. in favour of unions o Number of complaints is high. Duty not to discriminate b/c of disability rights and seniority rights . give them discretion to manage their own affairs (one extreme) 2.Greater good argument: it’s a democracy.Many unions have policy that they grieve all dismissals . they should be able to file individual grievances. 13 requires a pre-screening where the employee must show a prima facie case before the employee can bring the complaint to union  Cost to union is high. it’s still not a breach of duty even if union was negligent o Board will look at merits.Interpreted narrowly. very few go up the chain o 98% of complaints fail.Human rights code is automatically incorporated into collective agreements.Duty is procedural and not substantive: o The union must investigate complaint and treat it fairly (fair procedure). I’ll say that you violated duty of representation o What causes so many complaints?  Employee’s last option  Costs them nothing  Emotional: worker wants someone to fight against the injustice . Archibald Cox: duty is narrow: union should be able to decide which grievances to proceed with.In some areas (mental health). certain decisions that are so fundamental to employees. union will only pursue your interests 2% of the time o BC s.33 Remedy available: order that union bring grievance or take whatever action necessary to correct that which lead to the complaint Content of the Duty . but complaints are screened.

R.Duty of fair representation requires more than treating disabled or mentally ill workers like anyone else.H. make a reasonable attempt? Lavigne v. so no one gets a wheelchair ramp – even if they’re all treated equally.g. union activity can enhance that dignity o Letting unions support causes is part of the democratic process . v. and union is also bound by duty to accommodate . 2d includes right not to associate. can’t just apply standard they’d use for a regular worker o How is the union supposed to take his disability into account? o Good faith duty on union to get expert advice.Unions may have to do something differently (more onerous) if griever has disability.Held: security clause “closed shops” are constitutionally valid. I have to be moved from my laborious lifting job to a cushy desk job… Problem: disabled person is asking for the job that you’d get if you had seniority! . but it wasn’t violated o Lavigne is free to express himself & oppose the very groups that he’s funding o Unions help their members when they engage in political activity o Distinction between union and political activity is artificial o Labour is not a commodity: people have a right to dignity in working lives. OPSEU (1991 SCC) .Held: S. or the union does. no Charter violation . unbiased procedure) .Unions must take into account employee’s disability. KH filed DFR complaint. Labour Relations Board) .Q: what if employee says. . He argued that that violated his rights of freedom of association. Advanced Cutting and Coring (2001 SCC) . in order to accommodate my disability. in a standard fashion (fair. after progressive discipline KH was dismissed.Lavigne not union member but Rand formula required him to pay dues.Duty to Accommodate is tripartite: employee has duty to facilitate employer with accommodation.34 Duty to Accommodate: in order not to discriminate on basis of disability. v.Issue: Does the legislation forcing everyone in a certain profession to join/associate union in “closed shop” system violate Charter rights? . even if employee fails to assist . we treat all workers the same. including BC o Is it right that people are forced to join a union at all? Either an employer has control over you.Unions have a lot of options re: supporting political causes Is it right that a worker can’t have a say in where their dues are spent? o Like arguing that you don’t agree where your tax dollars are being spent o If you’re a religious objector (your religious beliefs are contrary to joining a union). employer can’t argue. you can get exemption in some provinces. it’s undue hardship Central Okanagan .Duty of fair representation is more robust where human rights issues are involved K. duty on employer to accommodate disabled so there’s no undue hardship o E. Union didn’t grieve dismissal b/c KH refused to submit to medical exam. CEP Local (1997 Sask. expression b/c dues were used to force him to support and associate with political causes. political parties .KH had depression.

Terms of employment are negotiated.All details (real info) are in Regulations . so not entitled to overtime . Has there been a violation of the Act? Check regulations.People who provide care services for disabled. that’s all they get) . if the union is weak .35 S. and for the rest of the time she’s “on call” but generally. statutory rules . risk of loss. holidays . (1973 OESA designee) .Factors: control. Human Rights Code.Non-unionized workers don’t bargaining power over terms and conditions of employment. Live-in home support worker. I’m stuck there for 24 hrs.Held: Spivey is a sitter.ESA S. in training. Sitters . Attendant worker. not regular caretaker job… plus.ESA: legislation that sets basic floor of rights for wages. ownership of tools Re: Renaud (1999 BCEST) .Renaud hires Spivey to care for him 3 days a week. Is the employee excluded from the operation of the ESA? (Renaud) 3.Many statutes directly regulate employees: o Workers’ Compensation Act. government hasn’t put energy or money into it . stat pay.If employment standards are too good. After 5 months. 3: you can contract out of certain provisions. wholly excluded from statute 3 Things to Ask: 1. Occupational Health & Safety Act. so at least protected by legislation (for many. she’s not required to work during that time. people won’t want to join unions .Hard for current employee to argue that he’s entitled to more breaks . 1 Definition of employee: person who receives or is entitled to wages.Lots of occupations are excluded. violation of ESA: she was entitled to being paid for overtime for anything over 8 hours per shift… this worked out to $27. it’s a legitimate way of organizing an industry Employment Standards Legislation .Lots of groups are excluded from minimum wage in the ESA at both ends of the spectrum: either tend to make way more than minimum wage (lawyers as selfregulating profession). but not minimum wage Jobs that are exempt from ESA . Spivey argues. not employee. 24 hours per day.Spivey argues: the definition of “sitter” is meant for regular babysitters. but only paid for 13 of the 24 hours.Can ask for a variance to be granted (to get out of legislation) . not paying overtime . 2d protects right not to associate. Is the person claiming the violation of the ESA an employee? (Becker Milk) 2.Convenience store argued managers were independent contractors.000 . not employees . farm workers) . children. I should be compensated .Ontario: employer and employee can opt out of regulations. broad definition .Some violations can be pretty egregious e. EI Act . on leave… lots of categories.g. if variance was issued Re Becker Milk Co. so not really a comprehensive “floor of rights” . 1 reasonable limit Doesn’t amount to coercion. but legislation upheld as s.ESA S. or way less (sitters. chance of profit. hours.Enforcement of ESA is weak.Unions are bound by legislation: sometimes it’s all they can get.

Most frequently collected benefit under ESA: more likely to go after employer after you don’t work there anymore . doesn’t recognize analogous grounds. post office) labour relations governed by Canada Labour Code.ESA: If you’re terminated without notice.Federal employees (airlines. Employer argued: violated free speech to compel the letter. employer can say factual things. 15(1) can’t discriminate on enumerated and analogous grounds o S. If future employers called. quashed . which provides you with adjudicator if wrongfully dismissed . restrict what they can say about the employee . but at least it’s something . Davidson (1989 SCC) . Human Rights Legislation o Code gives individual remedy in private context (between individuals) if there’s a violation. Also. doesn’t violate freedom of expression 2(b). Human Rights Act.In this case. they have to be added by legislature o Ineffective: in practice. you’re entitled to termination pay . sexual orientation .Distinguished from National Bank. just say.How can we legally address these patterns of inequality? 1. human rights commission has limited resources. damaged reputation. so adjudicator ordered employer to give Davidson a recommendation letter describing when he worked.000 in compensation. The adjudicator appointed under the Code found D was unjustly dismissed and ordered $89. where employer was ordered to send a letter to all employees – that remedy was found to be punitive.Davidson was dismissed and applied under the Canada Labour Code to have his dismissal reviewed. to avoid the delays 3. procedural problems. can’t make employer say things in letter that they don’t believe . but gag order was patently unreasonable. adjudicators have the power to require: o Compensation o Reinstatement o Any other “like thing” that is equitable Slaight Communications v. discrimination of employment o Limitation: list of enumerated grounds is closed. as long as it’s not unfair Avenues to Address Employment Discrimination: Charter. Tort . employer couldn’t give an opinion. long delays o BC has restricted what the Human Rights Commission can do – can apply directly to tribunal. gender. Tort law (civil action) o Claim under existing cause of action (if you’re wrongfully dismissed b/c of .36 Termination of Employment .If you’re unjustly dismissed. 15(2) affirmative action isn’t discriminatory o Limitation: Charter doesn’t apply to non-governmental employers (only applies if there’s a piece of legislation that’s being challenged) 2.Unions have history of replicating patterns of discrimination . sales record.SCC: objective part of the letter isn’t patented unreasonable. Charter o S.Structural or systemic inequality on basis of race. see the letter.Less than what you’d be entitled to at common law.

apply to everyone.Problem: hard to apply rules.g. must use human rights legislation o Honda v. sometimes question of whether something’s neutral on its face is in dispute .Substantive Equality o Focus on equality of outcomes. physical fitness test will exclude disabled people o Defence: employer must show that they met their duty to accommodate to the point that any further accommodation would constitute undue hardship on employer (more onerous duty on employer) . effects o Look for remedies if racial/gender composition in an industry doesn’t match composition of society o Affirmative action o Sexual harassment law is meant to produce substantive equality o Reflected in how we deal with human rights violation in workplace Direct vs. but have discriminatory impact (so more problematic discrimination) o E. he was dismissed b/c employer failed to accommodate his disability… results TBA o Can’t sue in tort for sexual harassment (discrimination) o If you are fired for discrimination you can sue but the employer can just pay the damages you would be entitled to and then you would have no action (because all an action for wrongful dismissal gives you is reasonable notice for termination and you got that) o You can never get reinstatement Formal vs. sometimes it’s ok to discriminate: must assess employer’s justification .However. b/c employer would have . we don’t hire women for this job) o Defence: employer must show that requirement is bona fide occupational requirement (BFOR). necessary part of the job Adverse Effect Discrimination o Rules that are neutral on face.37 disability).Both types violate Human rights legislation . may be able to use that to address the issue of inequality in tort o Limitation: there’s no tort of discrimination (Bhadauria). systemic inequality .Q: Is mandatory drug testing direct or adverse effect discrimination? o Employer wants it classified as direct.g. or get paid less o Idea that individual merit will determine who gets the job o Not enough to deal with deep rooted. Substantive Equality . b/c they can argue it’s a BFOR that you’re not on drugs while at work o Union wants it to be considered adverse effect. Adverse Effect Discrimination (and Employer’s Defences) Direct Discrimination o Some rules in workplace directly discriminate on worker (e.Formal Equality o Remove formal (obvious) barriers to accessing employment o US: laws used to say. women and blacks can’t work. Keays: employee argued.

BCGSEU (The Meiorin Grievance) (1999 SCC) .38 duty to accommodate (more onerous) o Courts: testing does not measure impairment so invalid. Good faith: employer had honest belief the standard/test was necessary to secure that purpose 3. convoluted process.S. Standard/test is reasonably necessary to meet that purpose o Meiorin failed part 3: Standard that looked neutral on its face was developed in discriminatory way! o Meiorin was able to do the job. on a balance of probabilities.Physical fitness test is fine.Unionized employees must bring complaint of discrimination before arbitrator (internal remedy) before going to human rights tribunal (collective agreement can’t be contrary to human rights code. therefore ultra vires . but sexual orientation wasn’t enumerated ground in Alberta human rights legislation. three things: 1.Held: legislation omission (under-inclusive) is discriminatory. Alberta (1998 SCC) . which includes sexual orientation as analogous grounds .Not enough to create a standard. 15.Accommodation isn’t enough.Worker has no claim in common law for wrongful dismissal if they got reasonable notice and termination pay . overburdened tribunals) . but careful how you set the standard Vriend v. alcohol testing is ok BC v. if it’s not enumerated ground in human rights law? .Rule is neutral on face. so he challenged legislation as violating Charter s. after Bhadauria – not possible if you argue that that’s why you weren’t hired. so the code is implied in the agreement) . which may explain why Meiorin can do the job even though she can’t run in 11 minutes . unequal wages.Result: must rely on human rights legislation (with its closed list of grounds and slow. Standard/test adopted for a purpose that is rationally connected to job performance (general purpose for having standard) 2. but what about protection against harassment. employer must show. which suggests the standard was wrong o It didn’t determine the minimum that was required to do the job.Other non-enumerated grounds: obesity.Once employee makes prima facie case of discrimination.Employer wanted it to be considered direct discrimination. just measured the average across all subjects.Vriend fired b/c he was gay. 1 analysis: no pressing and substantial argument not to include sex orientation .SCC rejected formal equality b/c it’s denial of equal protection under the law .SCC: distinction between 2 types of discrimination is artificial . then trying to include people in it . criminal background Employment Discrimination . and see if it was fairly developed and whether the standard or rule needs to be there at all . but has adverse effect on women – so duty on employer to accommodate to the point of undue hardship .Is wrongful dismissal actionable? Hard to say. argue BFOR . need to transform the standard or rule.Physical fitness test: direct discrimination or adverse effect discrimination? . gender identity. both men and women o Women’s bodies function differently.

not equivalent b/c there’s a link to history of oppression and discrimination of women in the workforce .Sex discrimination: b/c it’s sexual? b/c it only happens to women? Neither is satisfactory . denies them equal opportunity .Sexual harassment: Definition includes both explicit propositions as well as creating a hostile work environment (more passive. it’s specific to their gender o unfair to make women bear all the social costs of pregnancy o reproduction is important.Sexual harassment doesn’t have to happen to all women (the whole class) to be sex discrimination.Lower benefits for pregnant workers not sex discrimination b/c all pregnant persons were treated the same.If we only have bullying laws. homosexuals etc.Post-Brooks: human rights codes added pregnancy discrimination . childcare Janzen v. Platy Enterprises (1989 SCC) . Levac Supply (1991 Ont. benefits society as a whole o not every member of the group need to be targeted for the act to be discriminatory . Inq. b/c it’s still sex based.Can bring human rights complaint against individual harasser and against employer Bliss (1979) . b/c motivated by employee’s biology . need to show it’s class based. not harassment .39 To argue discrimination.Pregnancy discrimination is still sex discrimination o only women become pregnant.) .Harassment involving name calling based on weight is sex discrimination .Related discrimination cases: accommodating breastfeeding in workplace.Complex: things that affect ability of women to achieve equality in workplace . does that swallow up all sexual harassment complaints too? .Dickson: only women can be harassed by heterosexual men so it’s sex discrimination – but it’s a misunderstanding to categorize sexual harassment as only sexual advancements b/c there’s sexual desire Shaw v.Safeway’s analogy to “no beards” rule trivialized reproduction. Canada Safeway (SCC) .Issues: Is mocking someone’s weight sex discrimination? Do we look at the intent of the harasser or the discriminatory effect? Is it just bullying or personal harassment? . Grounds for Discrimination: Sex .Implying that one is unattractive is just as sexual as implying that they are… and the name calling is b/c she’s a woman so it’s sex discrimination. only happening to women. even if it’s personal to one individual o It’s affront to their dignity that denies equal employment o Context is inequality in employment: harassment contributes to inequality b/c it forces women to tolerate working conditions. like telling sexist jokes) . Bd.Failure to hire/promote b/c she’s a woman – simple direct discrimination. rule didn’t differentiate between pregnant people Brooks v.

She takes leave. you need to stop working. episodes o Lockie was cooperative with treatment regime. gets treatment and returns to work but a couple years later she has another episode and becomes very agitated about a patient’s care. Doctor can’t promise this. R filed complaint against employer and union under human rights act for failure to accommodate. you’re not disabled and entitled to accommodation .Apply Meirion test framework and rejects the safety argument: o Nature of the workplace: the RNs work in teams of healthcare professionals where she can be observed by others.Test for determining whether duty to accommodate would cause undue hardship: . or if they do get work. Employer says she can return if there is assurance that she will never have another relapse. so they were entitled to benefits .Renaud required to work on Friday evening.Effect on patient safety was minimal.Distinction between the few disabled people who have good employment (and are able to claim rights) and the vast majority of disabled people who have trouble getting jobs at all. She has an episode at work and makes a bunch or errors.How about individual autonomy? Rights of disabled to stay the way they are? What if the person doesn’t feel disabled? .Most cases involve people who weren’t disabled to start. receptive to colleagues telling her.Often the dispute is over at what point undue hardship is reached Shuswap Lake General Hospital v.Held: for union. gets treatment.Mental disability: at what point was “undue hardship” reached.Union has duty to accommodate employees. but union also has duty to accommodate . .Risk isn’t removed absolutely but doesn’t matter . support workers are right there o Co-workers can be trained to spot risks. The school board will offer a different shift. can’t force someone to get surgery. Takes leave.Primary duty on employer. treatment o Exception: drug and alcohol treatment programs are required Central Okanagan School District v. and duty to accommodate been exhausted? .US: if you can get treatment. but there’s always a risk of nurse error.Lockie is a nurse that develops bipolar mood disorder. can’t strike collective agreement that doesn’t accommodate religious beliefs or disability . they are low paying and part time . but can’t b/c of religion.Canada: not as aggressive approach. you’re having an episode o Employer’s standard is too stringent: can’t demand absolute safety for patients. employer failed to meet duty to accommodate . but became disabled. . BC Nurses’ Union (2002 BCCA) . medication error was . but the union refused to consent. can’t contract out of duty.40 Grounds for Discrimination: Disability .Mental disability can be more complicated than physical disability . Renaud (1992 SCC) . regardless of mental disorder… haven’t shown that the risk of hiring her back is unacceptable .Duty to accommodate also falls on worker – should this be a requirement? .What is undue hardship? Bar is set very high Union’s Duty to Accommodate .Conflict between seniority and accommodation .

Unfair labour practice? Board said.Workers are also migrating to where the work is .Globalization has meant the decline of unionized jobs b/c the types of jobs that the union model was based on (industrial shop. but it has accelerated with technological advances . many jobs have left for Asia. buying seasonal foods has been attacked by farms in Africa that are supplying the European market with organic foods that are hand-grown without machinery.41 o Look at how it affects other employees o Need substantial interference with the rights of other. air . more senior employees Would it cause resentment among other employees to give special treatment to the guy with the back problem or the guy who can’t work on Saturdays? How do we resolve this problem? o Prioritize certain claims to allow people to access the workplace o Problem: the standard wasn’t the same when statutory holidays were created. What role does the law play in achieving ideal labour conditions? . it would exclude disabled from structure of workplace Formal equality: attractive. calling cards) had to be factored into their wages. but not always ideal Ask: is there a way to organize things to take into account everyone’s observances? - - Globalization of Labour . not just b/c of economics.Are there benefits? Are the costs of living declining? No: o We’re producing cheap. contamination of soil. India.Agriculture: trade-offs are more complex o Movement towards locally grown food. crappy quality products with low safety standards o Prices aren’t getting cheaper. no – they got fringe benefits (motel rooms. construction workers b/c we can’t find Canadian workers to do the work here (or b/c the conditions are so bad. working all your life in factory for single employer) are gone.Globalization of labour isn’t new. laws in jurisdiction constrain what companies can do and how they’re enforced o Mexico has really good labour laws but they’re not enforced o Wages.Globalization has the effect of depressing wages in Canada. flight home. Canadians don’t want jobs?) o Employees in South America hired to work on Canada Line. it only accommodated Christian holidays (think Meiorin: employer’s test for justification. pesticides . b/c basic notions of fairness. must re-think standards from the ground up) o Disability: must recognize that otherwise. and so private sector unions are gone too . b/c must compete with wages overseas – as a result. wages – there’s a legal dimension to it. domestic workers (can sometimes apply for permanent residence). people are working more hours . Union brought complaint before human rights tribunal. Union complained that they were being paid less than Canadian workers.Temporary workers: import farm labourers.Capital is mobile. Wal-Mart’s getting richer .Domestic statutory regulations are supposed to guarantee some conditions o but are these laws enforced? Are there resources to enforce them? o Laws that promote unionization. to help produce some outcomes . working and environmental conditions.

Instrument to secure peace through prosperity . let them find fulfillment elsewhere? - Arthur article .g. but can change how it’s taxed Problem: not all work is meaningful. but no power to enforce Government’s spending policies have an impact on whether we can achieve ideal working conditions o E. poor standards? o Solution: require member states to have a minimum wage and what to base it on.Problem: where do we set employment standards? How detailed should they be? o If you set the standards too high. why bother rubber-stamping existing. bi. and employers . Labour is not a commodity to be traded in market to make a profit. law is made in informal sense in the workplace every day International Labour Organization . everyone signs on.Founded in 1919.Tripartite structure: each member state sends representatives from government. it’s people 2.Domestic and international law is fine. in any country. workers groups.Sub-committees. hard work. Freedom of expression and of association are essential to sustain progress 3.Link between poverty (economic instability) and war/instability . but don’t set a number b/c it will vary between states .Criticism has heightened considerably as other organizations IMF. it’s just crappy.Critics: ILO has lots of conventions. but they’re limited in what they can achieve .Members of ILO had to sign onto statement of principles Fundamental aims and purposes of ILO (1944): 1. you won’t have any members.3rd level of possible regulation: Local law of the workplace itself o In the absence of a treaty obligation or statutory provision. can’t make child care a law. Every nation has obligation to fight “the war against want”. isn’t living up to their domestic standard  Canadian union can complain that Mexican factory isn’t complying with Mexican law Problem is enforcement: tribunal can issue opinions. and do it in democratic way.and multi-lateral treaties. NAFTA o NAALC: any union or worker can bring a complaint to the tribunal alleging that anyone else.1946 ILO became first standing body of UN . including the Freedom of Association committee. which deals with complaints from unions that governments haven’t respected the principles of freedom of association . affects everyone globally 4. but if it’s too low. .42 Imposing international working standards o ILO. arose out of people’s experiences with a large disaster . involving employers and workers Features of the ILO: . Poverty anywhere constitutes a danger to prosperity everywhere. World Bank. as well as softer recommendations .Binding documents that member states ratify. but ultimately they have no power to compel change . there’s a connection between poverty and war. so where does that fit in to vision of ideal labour market? Do we accommodate those people.

they take the recommendations but don’t have power to do much about it . had to post that info in workplace.Think about principles and what they mean domestically for Canada Freedom of Association Committee .Canada: labour relations are generally within the province’s jurisdiction (other than Federally Regulated Industries). conservative governments are replacing social democrats. real incentives Yet ILO has different objectives: WTO wants to limit trade barriers.Why is Canada 2/3 of the Committee’s report? Why are there so many complaints by unions against Canada? o High expectations on us o Unions in Canada are powerful and large. ammunition tool  SCC relies heavily on ILO principles. promotes rights . try to exercise power 1998 Principles of the ILO and Declaration on Fundamental Principles and Rights at Work: 1.Provincial statute from 1995 required that all unionized employees had to be told what the procedures were under the Act to decertify the union. Effectively eliminate child labour 4. and let’s remember. not against an individual province… So Canada appears to respond. but focus on issues of hours. distribute to workers annually.We shouldn’t discount these roles. international norms when making decisions o Get public sympathy o Time in Canada when we’re undergoing economic dislocation.Issue: should the WTO adopt policies about the role of labour standards? . changing labour laws 2001 complaint against Ont. Federation of Labour .ILO can either back down and admit defeat in global market. bring complaints o We’re transparent o Lots of pending legislation.3 part committee that receives complaints that states aren’t living up to standards . Eliminate forced labour 3.43 WTO have gained more prominence – they have real sanctions. stability .ILO doesn’t only play adjudicative role: o It has a huge role in doing research.Mid-1990s: The trade body organizations decided in Petar Declaration that they didn’t care about incorporating labour standards in their documents.Decent work agenda: doesn’t really care about how meaningful the work is.Response to deal with violations: issue reports against the government . or can hold the trade bodies to their word. Eliminate employment discrimination . but the ILO only deals with member states. recognition that the ILO’s recommendations aren’t law but important guidelines – it’s a recruiting tool. Freedom of association and collective bargaining with unions 2. but instead reaffirmed support for the ILO (disingenuous b/c they know the ILO has no power)… and Declaration said that labour standards should never be a barrier to trade . income. obligations. but ILO can be seen as a barrier . so a complaint is brought against Canada. security of employment . decent work (with fundamental conditions) leads to peace. gathering statistics on global labour o If funds programs on the ground to achieve these goals. Unions complained that this violated . equality.

steps to take. and lots of unionized workers may not realize that decertification is an option.44 Canada’s commitment to ILO. - . Problem: no corresponding obligation to inform non-unionized workers about statutory rights to unionize. protections in the Act for being in union. Government argued. they’re distributing neutral statutory facts.

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