Canadian Labour Law: Key Concepts

Chapter Overview

• Five main topics are covered: History and Premises of Labour Law, Establishing a Union, Collective Agreements, Strikes and Lockouts, and Unions and the Charter of Rights & Freedoms.

Introduction

• Individual employment contracts lack worker association or regulation leading to power imbalances.
• Labour movements rebalanced power relations, enabling workers to organize into unions for collective negotiation.
• This led to more balanced negotiating positions.

1. History and Premises

• Modern labour law, since the 1940s, features:
  • Employee ability to form and join unions.
  • Unions' power to compel employer bargaining.
  • Union use of economic sanctions.
  • Early employment legislation.
• 1925: Provincial authority over labour and employment.
• Wagner Act model, from 1943 onward, is foundational to modern labour law.

1. History and Premises (cont'd)

• Components of the Wagner Model include:
  • Employee right to form or join a union.
  • Union certification processes.
  • Collective agreements as enforceable contracts.
  • Rules governing strike and lockout activity.
  • Duty for both parties to bargain in good faith.
  • Prohibition of unfair labour practices.
  • Administrative Labour Relations Boards.

2. Establishing a Union

• Three-phase process:
  • Organizing employees
  • Certification
  • Collective bargaining (initial agreement)

2. Establishing a Union (cont'd)

• Certification process details:
  • Union organizers demonstrate minimum support.
  • Union application to the Labour Relations Board (LRB) for certification.
  • LRB assessment of "appropriate bargaining unit".
  • LRB confirmation of unit employee numbers.
  • LRB order for secret ballot representation vote to determine certification.

2. Establishing a Union (cont'd)

• Decertification:
  • Union loses bargaining rights.
  • Process similar to certification.
• Collective bargaining process
  • Union or employer notifies intent to bargain
  • Parties must bargain in good faith
  • If bargaining breaks down, either party can request LRB to appoint a mediator.
  • Either party can initiate job action.
  • Parties may agree on voluntary arbitration.

2. Establishing a Union (cont'd)

• Many disputes are about unfair labour practices.
• Employer actions must not harm the union or violate agreements.
• Burden of proof (onus) generally rests on the party filing the complaint.
• Collective agreements include dispute mechanisms if parties disagree.
• Collective bargaining agreement (BC) or certification bars (AB) restrict union raiding opportunities.
• Peace obligations (i.e., no strike/lockout) are in place during collective agreement terms.

3. Collective Agreement

• A written agreement between employer and union outlining work terms and conditions.
• Represents all bargaining-unit employees.
• Governs employer operations.
• Provides dispute resolution framework.
• Imposes peace during the contract term.
• Prevents parties from looking elsewhere for workplace rules.

3. Collective Agreement (cont'd)

• Once a tentative agreement is reached, the ratification process begins.
• Employees vote to accept or reject the agreement.
• If rejected, parties return to the bargaining table.
• If accepted, the agreement is signed, submitted to, and becomes a binding contract with the LRB.

3. Collective Agreement (cont'd)

• Grievance/Arbitration procedures:
  • Spelled out in collective agreements.
  • Multiple steps before arbitration (last resort).
  • Costs are shared by both parties.
• Strike:
  • Distinct unionized workers' right, subject to a vote.
• Lockout:
  • Distinct employer's right.

4. Strikes and Lockouts

• Strike vote procedures are strictly regulated (like elections).
• A secret ballot is required.
• Majority of votes support the strike.
• Timing of strike action is outlined.
• Employers don't require a vote for lockouts, unless part of an association (in which case, rules are more similar to strikes).

4. Strikes and Lockouts (cont'd)

• Allowed striker activities:
  • Withdrawal of services.
  • Public communication (e.g., leafleting).
  • Peaceful picketing on public land (BC).
  • Only striking at the worksite (AB).
• Not allowed striker activities:
  • Entering private land.
  • Actions that adversely affect/inconvenience the public or property owner.
  • Assaulting people, or contacting/influencing customers.

4. Strikes and Lockouts (cont'd)

• Essential services:
  • Services that, if interrupted, endanger life, safety, health, or public security. cannot be subject to strike or lockout.
  • LRB and Minister of Labour can designate essential services.
  • Essential services agreements can be negotiated.
  • Some workers don't have the ability to strike but have a right to binding arbitration.
  • Alberta (AB) prohibits strikes/lockouts completely for certain workers (e.g., fire fighters, public service).
  • British Columbian (BC) procedures are not blanket prohibitions; LRB processes are used instead.

5. Unions and the Charter of Rights & Freedoms

• Before the Charter, worker rights were granted by legislation, not guaranteed.
• Courts use freedom of association to now protect unions.
• Most relevant Charter freedoms for unions:
  • Freedom of expression (s 2(b)).
  • Freedom of association (s 2(d)).

5. Unions and the Charter of Rights & Freedoms (cont'd)

• Cases related to freedom of expression:
  • Dolphin Delivery (SCC, 1986): Primary and secondary picketing.
  • UFCW v KMart (SCC, 1999): Leafleting, benign character.
  • RWDSU v Pepsi-Cola (SCC, 2001): Importance of unions and strike activity.
  • Alberta v UFCW (SCC, 2013): PIPA unconstitutional; unions' importance to workers’ lives.

5. Unions and the Charter of Rights & Freedoms (cont'd)

• Freedom of association's "trilogy":
  • Early (1980s–1990s) rulings provided narrow interpretations of association, not fully encompassing union rights as collectives.
  • Later (2000s) rulings expanded protection for union formation and collective bargaining, even against statutes.
• Cases (including the Mounted Police Association and the Sask. Fed. of Labour) signify strong Charter support for unions.
• Future cases will test the strength of this emerging trend.

5. Unions and the Charter of Rights & Freedoms (cont'd)

• Dunmore (SCC, 2001): Turning point for interpreting association freedom; it rebutted "Trilogy" logic without overturning earlier court decisions.

Canada Labour Code (CLC)

• Covers employers/employees in federal jurisdictions (e.g., banking, telecommunications, transportation, crown corporations, First Nations);
• Operates when organizations do business across provinces.
• Alberta and BC organizations may fall under CLC provisions rather than provincial employment legislation.

Three Parts of the CLC

• Part I: Industrial Relations
• Part II: Occupational Health and Safety
• Part III: Standard Hours, Wages, Vacations & Holidays.
• Administrative bodies manage complaints, while administrative tribunals/adjudicators hear cases in each part.

Part I: Industrial Relations

• Affects unionized and those attempting to unionize workplaces.
• Canada Industrial Relations Board adjudicates disputes.
  • Board powers/duties mirror provincial labour boards.
  • Board conduct hearings for CLC violations, conducts representation votes, and establishes bargaining unit size and composition.
  • Board remedies unfair labour practices, with orders enforceable by the courts.

Part I: Acquisition and Termination of Bargaining Rights

• Certification establishes the union as an exclusive bargaining agent.
• Decertification processes mirror certification, but involve a secret ballot, with 35%+ of affected employees voting.
• At least 50% of employees needed to vote for it to succeed in favour of decertification.

Part I: Collective Bargaining & Collective Agreements

• Collective agreements are group employment contracts negotiated between employers and unions.
• The CLC mandates:
  • Notice to bargain.
  • Good faith bargaining.
  • Handling technological change.
  • Grievance processes.
  • Dues check-off.
  • Agreements and conciliation.

Part I: Strikes and Lockouts

• Strike: Employee initiated work stoppage (requiring a secret ballot).
• Lockout: Employer initiated work stoppage.
• Strike/Lockout Rules:
  • No strike/lockouts without collective agreement.
  • Mandatory conciliation is required first.
  • Operation must continue if necessary to prevent danger to public.
  • No replacement workers allowed.
  • Workers cannot be punished for striking/lockouts.
  • Benefits/pensions are maintained during work stoppages.
  • Workers are reinstated after work stoppages.

Part I: Unfair Labour Practices

• Interference in union formation.
• Intimidation, threats, or coercion.
• Raiding.
• Discrimination against union members/applicants.
• Organizing on employer property without authorization.

Part II: Occupational Health and Safety

• Aims to prevent accidents and injuries in employment.
• CLC Part II is supported by specific regulations for:
  • Aviation.
  • Coal Mining.
  • Maritime.
  • Oil and Gas.
  • On-board trains.

Part II: Danger

• CLC defines "danger" as any hazard potentially endangering employee life or health, prior to correction or alteration.

Part II: Key Responsibilities

• Employer responsibilities:
  • Develop policies, procedures, and regulations.
  • Notify employees of hazards.
  • Train employees on safety procedures.
  • Investigate and report incidents.
  • Maintain records.
  • Ensure buildings/equipment meet standards.
• Employee responsibilities:
  • Use safety equipment.
  • Follow safety procedures.
  • Report hazards.

Part II: Right to Refuse Unsafe Work

• Employee right to refuse unsafe work, and no retaliation.
• Steps to report and address unsafe work:
  • Report to supervisor.
  • Consult internal workplace health and safety committee.
  • Contact minister for investigator.
  • If serious injury results, an investigation will occur and potential charges result.
  • Due diligence is a possible defense.

Part III: Standard Hours, Wages, Vacations & Holidays

• Similar provisions exist in Alberta and BC employment standards legislation.
• Minimum requirements exist.
• Some unique provisions include:
  • Provincial minimum wage applies in CLC jurisdictions.
  • No federal WCB; many employers subscribe to provincial WCB.
  • Unjust dismissal provisions are included.

Part III: Hours of Work

• Average 8-hour workday, with maximum 40 hours weekly.
• Over 40 hours receive 1.5x regular rate of pay.
• Workers can vote to increase standard hours weekly to a maximum of 48.
• Exceptions to maximum: accident, urgent/essential work, unforeseen/unpreventable circumstances.
• Schedules must be posted 30 days in advance.

Part III: Vacation and Holidays

• Minimum two weeks vacation.
• Nine general holidays: New Year's Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day, and Boxing Day.

Part III: Leaves of Absence

• Leaves are typically unpaid; Employment Insurance can cover some leave types.
• Employees can sometimes continue to receive benefits while on leave (paid or partly paid), even if requiring premium contributions.
• Types of leave include:
  • Maternity and Parental Leave
  • Compassionate Care Leave
  • Critical Illness Leave
  • Death or Disappearance Leave
  • Bereavement Leave
  • Sick Leave
  • Reserve Force Leave
• Guaranteed reinstatement upon return.

Part III: Terminations

• Group termination (50+ employees):
  • Notice requirements.
  • Joint planning committees.
• Individual terminations:
  • Without cause: minimum two weeks pay.
  • With just cause: following employer procedures
• Unjust dismissals:
  • Employers must have just cause.
  • Adjudication processes (with an informal alternative).
  • Inexpensive process (compared to court).
  • Broad range of employer remedies available.

Test your knowledge of Canadian labour law. Questions cover overtime, termination entitlements, compassionate care leave, group terminations, unjust dismissal adjudication, and the labour movement's origins. Review central features of modern labour law.