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

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

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

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

apply to Board for certification – if yes.Employer has an incentive.Agreement must be ratified . independent contractors don’t count . Board can order a re-vote if < 55% of employees in the unit vote . a representation vote must be conducted within 10 days.If differences cannot be resolved.At 45%. at this stage. to prevent certification .If employer commits unfair labour practices during the drive. and at the substance of the relationship. Hearst Publications (1944 US SC) . 24: If Board is satisfied with application.S.It’s also possible for unions to create unfair practices and employers complain Certification . Chance of profit (sets prices. representation vote (within 10 days) … in union’s interest not to have a long organizing drive .May own tools and have control. 27: If a union is certified it is the exclusive bargaining agent for all employees in the bargaining unit . 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 1.8 o There may be some dispute over what is the appropriate bargaining unit o S.Parties negotiate an agreement . 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) . violates statutory provisions. decides remuneration) 4. it might be too late.S.S. Control 2. but still economically dependant on employer .If no agreement then strike/lockout . 22: Board may include/exclude employees from proposed bargaining unit  Managers.S.To determine if a worker is an employee.Even if you are an employee. must look beyond the form. 30: The Board can designate an amount of time that must pass before a union can re-apply for certification The bargaining process .Considered employees for the purposes of collective bargaining: National Labor Relations Board v.Problem: even if the Board enforces remedies.Only employees are entitled to form a bargaining unit and to bargain collectively . sometimes you’re not entitled to bargain collectively (like managers or certain professionals) Dependent contractors: . the union incentive might be quashed . Ownership of tools 3. Risk of loss . 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 . union can go to the Labour Certification Board to complain .

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

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

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

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

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

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

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

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

Conciliation: when parties can’t reach an agreement. but unions want to give lighter work to the senior worker who chooses it Issue: how involved should the law be in the bargaining process? - - - How bargaining ends . but needs to be ratified by majority of workers .Procedural limits on duty to bargain . exclusive bargaining unit of employees.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) . 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. 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.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. with a negotiated agreement that both sides can live with o Not binding. 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 .Disclosure promotes informed.Ideally.If strike goes on too long. discriminate o Unions like to preserve seniority in workplace (don’t want employer to promote based on merit or choice). arbitrator gets to impose a final agreement on both sides Noranda Metal Industries (1975 CLRB) . rational negotiating: the more info that is exchanged. it’s an attempt to make sure that the parties really are at an impasse. Problem: seniority sometimes violates human rights code or other statutes: disabled person will get lighter work. legislature will force the workers back o Interest Arbitration: if workers are legislated back to work. that there’s no option other than a strike o May be followed by a strike or a lockout (workers must vote for a strike) o Strike will end when economic pressure starts to take effect .Union wanted to know cost of benefits employer was offering: violated duty .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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