Labour Law CANS | Collective Bargaining | Employment

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

Most employers just pay off the worker. assumes that no rational person would refuse to join. manipulate the market. but need to look at circumstances .Unions were criminalized.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.Courts are reluctant to find just cause . dishonesty is enough for just cause. linked to (gasp!) communism . disrupted economy . forming a union wasn’t illegal – but still.Also: politically suspicious. BC Tel (2001 SCC) .Roy Adams: Unions help individuals get greater economic power.Dishonesty must be seriously fraudulent before it amounts to just cause . 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 .Laws changed. 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.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. viewed suspiciously as criminal conspiracies to artificially raise wages to raise prices. as long as it doesn’t violate the statute.The test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship History of Unions and the Wagner Act .Collective bargaining legislation in Canada is not universal and excludes certain .No such thing as “near cause” for dismissal (standard for just cause is very high) McKinley v. even if you have seniority. workers shouldn’t be forced to join .Usually.Employers can specify what is “just cause” for dismissal.Is any degree or kind of dishonesty enough for just cause? .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. issue of recognition of the union is not a big deal . they could choose not to be unionized . but they rarely set out the terms (problematic) . like an election campaign where the employer “campaigns” to show why union is bad . no legal obligation on the employer to recognize or bargain with the union . don’t argue “just cause” b/c employers should use other methods to deal w/misconduct (discipline) before firing worker .Q of degree: Is it enough that the employee did something “wrong” to get fired? .North America: employers try to interfere with formation of unions.

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

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

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

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

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

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

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

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

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

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

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

but needs to be ratified by majority of workers . rational negotiating “In good faith” permits hard bargaining (bargaining in your self interests) Duty of employer to recognize union as the legitimate. it’s an attempt to make sure that the parties really are at an impasse. 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.Conciliation: when parties can’t reach an agreement. legislature will force the workers back o Interest Arbitration: if workers are legislated back to work. 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 . 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 . 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. the more likely that the parties can reach an agreement .Union wanted to know cost of benefits employer was offering: violated duty . with a negotiated agreement that both sides can live with o Not binding. arbitrator gets to impose a final agreement on both sides Noranda Metal Industries (1975 CLRB) . rational negotiating: the more info that is exchanged.Disclosure promotes informed. discriminate o Unions like to preserve seniority in workplace (don’t want employer to promote based on merit or choice). Problem: seniority sometimes violates human rights code or other statutes: disabled person will get lighter work.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) . exclusive bargaining unit of employees.Ideally.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.If strike goes on too long.Procedural limits on duty to bargain .

violence on picket line. 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.Trustco case doesn’t make sense – it strips the duty to bargain of any value . but to seek justice! .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. even if they’re anti-union .Duty to bargain in good faith: objective and subjective! .If the employer is genuinely willing to conclude an agreement.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. not produce a particular ‘just’ end. particular results aren’t compelled. but not determinative) o History of anti-union acts prior to certification o Employer fought against the Rand formula (also not determinative) Union v. guaranteed . not just an employer being willing to sign an agreement on their terms. replacement workers. Surface Bargaining .Problem: employer says.If employer is acting rationally in their own self-interest. but only on their own terms. there’s no duty on the employer to go out and get it.Can’t distinguish between bad faith bargaining and bargaining in self interest . you can unionize but we won’t give you benefits better than non-unionized workers. it’s not surface bargaining .Employer will (obviously) always sign an agreement that’s in their self interest Royal Oak Mines v.Hard Bargaining o Doesn’t violate duty to bargain in good faith . 45 employees fired.Objective component: employer must make reasonable efforts to reach agreement . need to disclose Content of the Duty to Bargain in Good Faith: Hard vs. Canada Trustco (1984) .Board’s reasons: the bargaining process is designed to put economic pressure.Issue: how do you distinguish between hard bargaining and surface bargaining. but they recognize the union and prepared to conclude an agreement.Argue that the benefits offered are so low (or demands are so high) that the other side isn’t bargaining in good faith . Radio Shack (1980 OLRB) . but if they have info.Bitter strike. Canada (Labour Relations Board) (1996 SCC) .18 Issue: If the employer doesn’t already have the info. considering the employer fought hard against union certification? . it’s not surface bargaining (bargaining in bad faith). employer refused arbitration process wrt fired workers . 410 .Surface Bargaining o Violates duty to bargain in good faith o Simply going through the motions United Steelworkers of America v.

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

54: Joint Consultation and Adjustment Plans .Order for “retraction” public statement that employer has violated code. ongoing meetings o Practical.20 S. or what percentage of employees it must affect .If employer introduces measures that affect “significant number of employees”: o Employer must give Notice o Employer must meet. lost tons of $ . stark impact of Westinghouse Remedies for Bargaining in Bad Faith .If there are major changes in employment mid-contract that affect employees.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 . committee must meet every 2 months to discuss workplace issues o Just a dialogue. 55 First Contract Arbitration .These things help deal with the harsh.Remedy: Board ordered employer to pay back wages to workers (ouch) .Where parties have been unable to form agreement o Radio Shack: both parties have fought leading up to certification. Canada (1996 SCC) .Consultation committee: on request of party. to make adjustment plan . facilitate process of collective bargaining… not punitive remedies or imposed agreements .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. 53.Does that pass the test from Royal Oak Mines? o It wasn’t a lock-out. and is committed to respecting the code in future . not a requirement that you have to change anything . balance w/free bargaining o The order is not rationally connected to the breach Buhler Versatile .Employees on strike for months b/c of employer’s bad faith bargaining.Note: doesn’t say how significant the change must be. in good faith.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.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 . workers chose to strike o Hard to know if it was 100% the employer’s fault S.Costs of bargaining for time wasted . b/c some collective agreements are really long .“Cease and desist” declaratory orders .Also: union can order back to work protocol for fired workers (additional condition) . not likely . there’s a requirement to consult.Board’s remedies are meant to be restorative.

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

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

Held: The refusal to work overtime constitutes a strike and is therefore unlawful as .The right to strike won’t shield acts that are otherwise unlawful or criminal .Employer may not punish workers for engaging in a lawful strike .Employer is free to respond by locking out 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. The collective agreement provided that employees could refuse to work overtime though it is typically popular & accepted.23 S. speedups in taking orders. .The union. in combination or in concert. 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 employer argued that this job action was not lawful as it’s a statutory obligation. 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. Graham Cable TV/FM (1986 CLRB) .Employers may also engage is a rolling lockout (where 10 employees may not come to work on week one. 62(3)(b)  Agreement says.The employer sought an unlawful strike declaration because employees refused to work voluntary overtime. 10 others may not come on week two) Ontario Secondary School Teachers’ Federation v. 63(3)(a) o permitted under a provision of a collective agreement – s. 1: A strike is (1) cessation or slowdown of work by employees.A strike has two objective components: o A concerted/collective effort.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. Grain Workers’ Union (1994 CLRB) . (2) to restrict or limit production. that is done with the… o …Intent to restrict output or otherwise disrupt the employer’s operations . .Job action – slowdowns in processing order. and no training of other employees – constituted a strike . no overtime. v. but does not include act or omissions: o required for employee safety or health reasons – s. while in a legal strike position. 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). School Board (1999 OLRB) .

Maritime Employers’ Association (1979 SCC) .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 . refusing to cross a picket line is considered a strike . SCC refused to read in the purposive definition. 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.S. they may refer the matter to the Board.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 .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 .So essentially. 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. collective action with the effect of disrupting operations will be considered a strike.Problem: In 1992. 70 to uphold hot cargo clauses as valid if parties contract for it . Cdn Media Guild) Strike Prohibition and Sympathetic 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.Is this in violation of the Code? o Without the clause.2 o One of the “duties” is to minimize the effect of labour disputes on 3rd parties . 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? . requires a strong union Hot Cargo and Hot Edict Clauses .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” .24 the collective agreement is still in force. 70: when employer and union agree on a provision in CBA. s.Above third part has been removed from definition of strike in BC Act Int’l Longshoremens’ Association v. S.Refusal to cross picket line is a strike unless it is permitted in collective agreement . 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. This includes the refusal to cross a picket line. 63 BC’s Exception to Picket Line Rule .Absent subjective language in the legislation. which has the power to say what clauses they will give effect to o Boards use s.

25 o Labour unrest is disruptive. Union (1981 OLRB) . disturbs economic output. 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. 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).Can’t hire permanent replacements (fire workers.Lockout is legitimate legal tactic to put economic pressure on workers to agree to terms and conditions of employment . can be violent. Courts o Interpret and apply common law.Definition has purposive element: o Employer removing offer of work to employees to get them to agree to terms and conditions of employment . or employer refuses to permit that clause: what could the employees do that would be lawful. board only decides if it’s valid Honouring a “hot edict” does not amount to an illegal strike. 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. equitable jurisdiction . b/c some actions (like shutting down operations) won’t constitute a true lockout . contributes to lost productivity o Code and labour rules constrain ability to hold strikes o The more exceptions to the rules you give. declaration  Filed in superior courts. order to return to work. rather. enforced by the court 2.Used by employers in response to rotating strikes . hire new ones) Jurisdiction: 3 Forums Regulating Industrial Conflict 1. the less you adhere to the purpose of minimizing labour unrest.Ok to hire temporary replacement workers .Not defined objectively like a strike. more lost productivity o Every other province prohibits hot cargo clauses If you’re outside of BC.Employer cannot lock out employees until it’s in legal lockout position (like a strike) Westroc v.Employer can time lockout when it wants . provided it is negotiated in a collective agreement - - Lockouts .

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

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

It’s a fiction that primary picketing doesn’t have an impact on 3rd parties – if business is shut down in primary.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 . it has huge impact on an integrated supply chain Hersees of Woodstock (1963 Ont. increased economic pressure on employer that could. end the strike earlier .S. it is quasi-public space (ordinary public has unrestricted access during business hours) .s.Courts have inherent jurisdiction over tort law (damage to property.Could be disruptive to business and economy .Dickson J (Majority): Private property rights trump picketing rights .(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. so she trespasses . in theory. 133(1)(a): Board may order cessation of picketing .s.Freedom of expression . 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. 143: Board may declare strike illegal .Carswell legally on strike. Canex Placer Limited (1975 BCLRB) . Carswell (1976 SCC) .Ontario: must seek police assistance before getting an injunction to get picketers off your property.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? . but employer’s business is in privately owned shopping center. wants to picket (primary). strikers are restricted to primary picketing . and often police won’t come (effectively overruling the SCC decision) Secondary Picketing Why would we want to limit secondary picketing? . 524 .Secondary picketing was unlawful.Even though shopping centre is on private property. CA) pg.Picketers pressured customer of employer not to accept products from employer .Indirect. 66 overruled decision: now there’s (limited) ability to picket on private property . 137(3).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 .s.Board has jurisdiction over who/where/when workers can picket .

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) . so mill union tells workers not to cross (their agreement says that they won’t cross another legal picket line). 2(b) freedom of expression o Definition too restrictive. so . so it’s protected under s.Held: Mill workers honoured an illegal picket line. but s. it’s 2(b) protected o S. and had unrestricted s. they had been legislated back to work. which amounted to an illegal strike (doing something to decrease output) . it fell outside scope of Charter.Alberta Reference: s.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. so handed out leaflets to customers to persuade them to boycott store .Functional test: formal picket line. they automatically respond to it and opt not to cross the line Pepsi v. it had a signal effect  Even though nothing changed about how they picketed. Union (2002 SCC) pg. 2(b) right to picket . 1 analysis: limits on secondary picket are not justified .Distinction between “information” picket line and “official” picket line: o Initial protest outside mill was political protest.Hospital workers legislated back to work. too broad and general o Catches other lawful behaviour like consumer leafleting. 2b freedom of expression K-Mart v. set up information picket line.Statutory def’n of picketing struck down as violating s. UFCW (1999 SCC) . 2d Freedom of Association doesn’t protect the right to strike . protected by s.Failure to include purposive element in definition of strike doesn’t violate Charter . 532 . went to mill. signal effect  not protected (amounts to strike) . informational only  No one was coerced not to cross.Issue: is consumer leafleting unlawful secondary picketing? . 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.Pepsi: Picketing has expansive definition.BCTF: Speech in the workplace is protected. it’s unlawful (reasonable limit on restricting 2b rights) .Secondary picketing is protected under 2(b) freedom of expression. not entitled to picket. 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. . 2b rights are not unlimited .UFCW workers legally on strike.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. then official picket line. Striking and Picketing .29 The Charter. mill is shut down.

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

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

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

Archibald Cox: duty is narrow: union should be able to decide which grievances to proceed with. union will only pursue your interests 2% of the time o BC s. 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.Many unions have policy that they grieve all dismissals . it’s still not a breach of duty even if union was negligent o Board will look at merits.Problem for unions: can put them in position of conflict of interest. give them discretion to manage their own affairs (one extreme) 2. sexual harassment of two people within the bargaining unit.g. Summers: If individuals are paying for it themselves. union isn’t equipped to decide to pursue grievance . do what’s best for the majority (but also want to protect minority rights) .Sometimes. if you don’t support my grievance.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 . that in a limited number of cases. must be gross negligence for the Board to find that it was a violation of the union’s duty to employee .Greater good argument: it’s a democracy. certain decisions that are so fundamental to employees. so that unions aren’t dealing with frivolous grievances. Paul Weiler’s Middle ground: Unions have broad scope to decide which issues to bring to arbitration… However. but complaints are screened. they should be able to fight it.Human rights code is automatically incorporated into collective agreements. Duty not to discriminate b/c of disability rights and seniority rights . so arbitrators can interpret and apply human rights code in agreement . even if the union won’t support it (the other extreme) 3. very few go up the chain o 98% of complaints fail.Interpreted narrowly.Duty is procedural and not substantive: o The union must investigate complaint and treat it fairly (fair procedure).Labour boards typically won’t let unions plead guilty o If union missed limitation period for filing grievance. no duty to achieve a certain result – can’t appeal on substantive basis . unions don’t proceed with grievances b/c it’s between two employees How far should duty of representation extend? 3 approaches 1. 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 . between different people in the bargaining unit o E. in favour of unions o Number of complaints is high. does the union take the side of the accused or accuser? o E.g. don’t want employee telling union.In some areas (mental health). even without the union backing them (Canadian approach) Human rights issues and the Duty . they should be able to file individual grievances. like if an employee is fired.

you can get exemption in some provinces.KH had depression. Advanced Cutting and Coring (2001 SCC) . after progressive discipline KH was dismissed. union activity can enhance that dignity o Letting unions support causes is part of the democratic process . unbiased procedure) . 2d includes right not to associate.Issue: Does the legislation forcing everyone in a certain profession to join/associate union in “closed shop” system violate Charter rights? .Q: what if employee says. employer can’t argue.Held: S.34 Duty to Accommodate: in order not to discriminate on basis of disability.Duty of fair representation requires more than treating disabled or mentally ill workers like anyone else.Duty to Accommodate is tripartite: employee has duty to facilitate employer with accommodation. in a standard fashion (fair. OPSEU (1991 SCC) . or the union does. duty on employer to accommodate disabled so there’s no undue hardship o E. and union is also bound by duty to accommodate .Unions may have to do something differently (more onerous) if griever has disability. KH filed DFR complaint.Held: security clause “closed shops” are constitutionally valid. 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. v. Labour Relations Board) . 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! . CEP Local (1997 Sask. v.g. make a reasonable attempt? Lavigne v. in order to accommodate my disability.Unions must take into account employee’s disability. expression b/c dues were used to force him to support and associate with political causes. so no one gets a wheelchair ramp – even if they’re all treated equally.Duty of fair representation is more robust where human rights issues are involved K. we treat all workers the same.Lavigne not union member but Rand formula required him to pay dues. no Charter violation . R. it’s undue hardship Central Okanagan . He argued that that violated his rights of freedom of association. including BC o Is it right that people are forced to join a union at all? Either an employer has control over you. Union didn’t grieve dismissal b/c KH refused to submit to medical exam. 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. . even if employee fails to assist . political parties .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).H.

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

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

37 disability).g. Keays: employee argued. but have discriminatory impact (so more problematic discrimination) o E. 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) . sometimes question of whether something’s neutral on its face is in dispute . necessary part of the job Adverse Effect Discrimination o Rules that are neutral on face. 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.g. we don’t hire women for this job) o Defence: employer must show that requirement is bona fide occupational requirement (BFOR).Substantive Equality o Focus on equality of outcomes. sometimes it’s ok to discriminate: must assess employer’s justification .However. may be able to use that to address the issue of inequality in tort o Limitation: there’s no tort of discrimination (Bhadauria). women and blacks can’t work.Both types violate Human rights legislation . Substantive Equality . or get paid less o Idea that individual merit will determine who gets the job o Not enough to deal with deep rooted. b/c employer would have . 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. systemic inequality .Problem: hard to apply rules. must use human rights legislation o Honda v. 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.Q: Is mandatory drug testing direct or adverse effect discrimination? o Employer wants it classified as direct. 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. apply to everyone.

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

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

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

41 o Look at how it affects other employees o Need substantial interference with the rights of other. calling cards) had to be factored into their wages. working and environmental conditions. not just b/c of economics.Agriculture: trade-offs are more complex o Movement towards locally grown food. domestic workers (can sometimes apply for permanent residence). construction workers b/c we can’t find Canadian workers to do the work here (or b/c the conditions are so bad. 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. 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. contamination of soil. flight home. Unfair labour practice? Board said. wages – there’s a legal dimension to it. crappy quality products with low safety standards o Prices aren’t getting cheaper. working all your life in factory for single employer) are gone. Wal-Mart’s getting richer . but it has accelerated with technological advances .Globalization has the effect of depressing wages in Canada. b/c basic notions of fairness. it only accommodated Christian holidays (think Meiorin: employer’s test for justification. but not always ideal Ask: is there a way to organize things to take into account everyone’s observances? - - Globalization of Labour . What role does the law play in achieving ideal labour conditions? .Globalization has meant the decline of unionized jobs b/c the types of jobs that the union model was based on (industrial shop. people are working more hours . air . must re-think standards from the ground up) o Disability: must recognize that otherwise.Capital is mobile. pesticides .Are there benefits? Are the costs of living declining? No: o We’re producing cheap.Workers are also migrating to where the work is . Union brought complaint before human rights tribunal.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. no – they got fringe benefits (motel rooms. Canadians don’t want jobs?) o Employees in South America hired to work on Canada Line. and so private sector unions are gone too . to help produce some outcomes . 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.Globalization of labour isn’t new. it would exclude disabled from structure of workplace Formal equality: attractive. India.Temporary workers: import farm labourers. Union complained that they were being paid less than Canadian workers. many jobs have left for Asia. b/c must compete with wages overseas – as a result.

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

and let’s remember.3 part committee that receives complaints that states aren’t living up to standards .Issue: should the WTO adopt policies about the role of labour standards? .Canada: labour relations are generally within the province’s jurisdiction (other than Federally Regulated Industries). but ILO can be seen as a barrier .Mid-1990s: The trade body organizations decided in Petar Declaration that they didn’t care about incorporating labour standards in their documents. security of employment . equality. international norms when making decisions o Get public sympathy o Time in Canada when we’re undergoing economic dislocation. obligations.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. try to exercise power 1998 Principles of the ILO and Declaration on Fundamental Principles and Rights at Work: 1. distribute to workers annually.Provincial statute from 1995 required that all unionized employees had to be told what the procedures were under the Act to decertify the union. real incentives Yet ILO has different objectives: WTO wants to limit trade barriers. changing labour laws 2001 complaint against Ont. not against an individual province… So Canada appears to respond. they take the recommendations but don’t have power to do much about it . recognition that the ILO’s recommendations aren’t law but important guidelines – it’s a recruiting tool. Effectively eliminate child labour 4.Response to deal with violations: issue reports against the government . so a complaint is brought against Canada.Decent work agenda: doesn’t really care about how meaningful the work is.Think about principles and what they mean domestically for Canada Freedom of Association Committee . Freedom of association and collective bargaining with unions 2. bring complaints o We’re transparent o Lots of pending legislation.ILO can either back down and admit defeat in global market. decent work (with fundamental conditions) leads to peace. Eliminate employment discrimination . Eliminate forced labour 3. stability . had to post that info in workplace. conservative governments are replacing social democrats. but focus on issues of hours. Unions complained that this violated . gathering statistics on global labour o If funds programs on the ground to achieve these goals. Federation of Labour . but the ILO only deals with member states. income.ILO doesn’t only play adjudicative role: o It has a huge role in doing research. or can hold the trade bodies to their word. 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 . promotes rights .We shouldn’t discount these roles. ammunition tool  SCC relies heavily on ILO principles.43 WTO have gained more prominence – they have real sanctions.

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

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