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

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

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

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

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

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

High watermark. case had unique set of facts . not wait to discipline misconduct b/c when the union certification drive starts.Employers should institute progressive discipline and record bad behaviour. employer knew about it for years o The employer wasn’t happy that a union was being formed . discretion to give remedial rewards .Anti-union animus only needs to be part of the reason for dismissal .No intent required: employer’s action need not be motivated by anti-union animus o That helps unions. kind of skirted the question . this principle has been narrowed.Still we’re uncertain about how motive plays a role.Without anti-union animus. not the sole reason for discipline to constitute unfair labour practice Duchesmeau v. b/c anything employer does could be construed as having negative impact on the union . because you have to show that his union involvement had no effect o Activities were ongoing.Employer had duty to inform the union during collective bargaining that it was a possibility that the plant would be closing . the impact on the union must be pretty significant . Conseil de la Nation huronne-Wendat (1999 CIRB) .Boards have broad jurisdiction.S. 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 2.10 Anti-union animus need only be a factor.Now: need real evidence of deception and clear motive of anti-union considerations to establish an unfair labour practice Certification and Bargaining Freeze S. 6 Unfair Labour Practices: General .Reducing costs isn’t automatically unfair labour practice (Kennedy Lodge OLRB) Westinghouse Canada (1980 OLRB) . but it can be interpreted too broadly. 6: It’s an unfair labour practice to interfere in the formation and certification of a trade union (regardless if an individual employee or group is targeted) . Motive Requirement o Can establish indirectly o Look at surrounding factors. 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 . International Wallcoverings (1983 OLRB) 2 ways to approach general unfair labour practices: 1.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. 32 Certification Freeze .Having “just cause” for dismissal isn’t the only test. estoppel arises S.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the less you adhere to the purpose of minimizing labour unrest.Employer cannot lock out employees until it’s in legal lockout position (like a strike) Westroc v. hire new ones) Jurisdiction: 3 Forums Regulating Industrial Conflict 1. provided it is negotiated in a collective agreement - - Lockouts . declaration  Filed in superior courts.Employer can time lockout when it wants .Ok to hire temporary replacement workers . Union (1981 OLRB) . 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. can be violent.Can’t hire permanent replacements (fire workers.25 o Labour unrest is disruptive. contributes to lost productivity o Code and labour rules constrain ability to hold strikes o The more exceptions to the rules you give.Used by employers in response to rotating strikes .Not defined objectively like a strike.Lockout is legitimate legal tactic to put economic pressure on workers to agree to terms and conditions of employment . disturbs economic output. 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). 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. order to return to work. rather. equitable jurisdiction . more lost productivity o Every other province prohibits hot cargo clauses If you’re outside of BC. 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 . 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. enforced by the court 2. b/c some actions (like shutting down operations) won’t constitute a true lockout .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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