Labour Law & Unionization in Canada

Chapter Overview

• Labour law covers the history, establishment of unions, collective agreements, strikes, lockouts, and unions' rights regarding the Charter of Rights and Freedoms.

Introduction

• Individual employment contracts lack worker representation, creating a power imbalance between employers and employees.
• Labour laws aim to rebalance this imbalance by allowing workers to organize into unions for collective bargaining.

1. History and Premises

• Modern labour law (since the 1940s) focuses on employee unionization, union bargaining power, use of economic sanctions, and early employment legislation.
• 1925 marked provincial authority over labour and employment.
• The Wagner Act model (from 1943 onwards) forms the basis of modern labour law.

1. History and Premises (cont'd)

• Key components of the Wagner Act model include the right of employees to unionize, processes for union certification, collective bargaining as enforceable contracts, and rules for strike/lockout activity. There's also a duty to bargain in good faith, prohibiting unfair labour practices, and establishing administrative Labour Relations Boards.

2. Establishing a Union

• Union establishment involves three phases: organizing employees, certification, and collective bargaining (first agreement).

2. Establishing a Union (cont'd)

• The certification process requires union organizers demonstrating support, applying to the Labour Relations Board (LRB) for certification, LRB determining the bargaining unit's appropriateness, confirming the number of employees in the unit, and conducting a secret ballot vote for union representation. Certification and decertification processes are very similar.

2. Establishing a Union (cont'd)

• The collective bargaining process commences when either the union or employer issues notice of intent to bargain. Parties must bargain in good faith. If bargaining fails, either party can request LRB mediation or proceed to job action; voluntary arbitration can be possible. Many disputes are over unfair labour practices. The burden of proof falls on the party initiating the complaint.

2. Establishing a Union (cont'd)

• Collective agreements include mechanisms for disputes and restrictions on union raiding. Agreements impose a period of peace during the agreement's term, prohibiting strikes or lockouts.

3. Collective Agreement

• Collective agreements are written employment contracts between employers and unions, encompassing terms and conditions of work.
• Agreements cover all bargaining unit employees.
• Agreements provide dispute resolution frameworks.
• During the agreement's term, there is an expectation of peace.

3. Collective Agreement (cont'd)

• Worker ratification of collective agreements is necessary; employee votes on accepting or rejecting the tentative agreement. If rejected, parties return to bargaining. Once accepted, it's signed, submitted to the LRB, becoming a binding contract.

3. Collective Agreement (cont'd)

• Grievance/Arbitration processes are outlined in collective agreements; multiple steps precede arbitration. Both parties contribute to costs.

3. Collective Agreement (cont'd)

• Strikes are a distinct right of unionized workers requiring a vote. Employers have the right to lockout workers.

4. Strikes and Lockouts

• Strike vote procedures closely mirror election procedures using secret ballots, where a majority of votes are required to support a strike. The timing of strikes is outlined.
• Employers don't require a vote to lock out workers unless they're part of an employer association (in which case similar rules apply).

4. Strikes and Lockouts (cont'd)

• Examples of allowed and disallowed strike actions are listed. Essential services cannot be struck or locked out without regulation by the LRB and Labour Minister. An essential services agreement is possible. Some workers can't strike but can enforce binding arbitration. A blanket prohibition (e.g. for firefighters) is possible in Alberta.

5. Unions and Charter of Rights and Freedoms

• Before the Charter, worker rights were based on legislation, not guaranteed.
• The Charter has now given courts the power to protect worker rights. Key Charter freedoms for unions include Freedom of expression (s 2(b)) and association (s 2(d)).

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

• Important court cases establishing these principles are cited. (Dolphin Delivery, RWDSU v Pepsi-Cola, Alberta v UFCW, Lavigne, Dunmore).

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

• The "labour trilogy" (1980s-90s) saw a narrower interpretation of association, denying certain collective rights to unions.
• The 2000s saw an expansion of this right, granting more protection to unions in bargaining.

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

• Court decisions like those involving the Mounted Police Association, Saskatchewan Federation of Labour, and Alberta (IPC) affirm the growing Charter support for unions. Recent cases are expected to further test these principles.

Introduction (Canada Labour Code)

• The Canada Labour Code (CLC) covers employers and employees in federally regulated industries and trans-provincial businesses (banking, telecommunications etc). Organizations in Alberta and BC may also be subject to these provisions.

3 Parts of the CLC

• The Canada Labour Code has three parts: Industrial Relations, Occupational Health and Safety, and Standard Hours, Wages, Vacations & Holidays. These parts are governed by administrative bodies and tribunals.

Part 1: Industrial Relations

• Canada Industrial Relations Board handles disputes in unionized workplaces, including conducting hearings, representation votes, determining bargaining units. Their powers are similar to that of provincial boards.

Part 1: Acquisition and Termination of Bargaining Rights

• An LRB decides if a union is the exclusive bargaining agent, via secret ballot vote (more than 35% of eligible employees voting, with over 50% support).

Part 1: Collective Bargaining & Collective Agreements

• Collective agreements are group employment contracts; negotiated between employers and unions. Key CLC requirements are stipulated (e.g. notice to bargain, good faith), including provisions regarding technological change and procedures for handling grievances. First agreements and conciliation are part of the process.

Part 1: Strikes and Lockouts

• Strikes are employee-initiated work stoppages (secret ballot required).
• Lockouts are initiated by employers. Work stoppages are subject to rules regarding mandatory conciliation, advance notice, a continuation of essential services, and no replacement workers. Discipline is not permitted for striking or locked-out workers.

Part 1: Unfair Labour Practices

• Unfair Labour Practices prevent interference, intimidation, or coercion in union formation, discrimination against workers wishing to unionize, and organizing on company property without permission

Part II: Occupational Health and Safety

• Part II aims to prevent employment-related accidents and injuries, supported by regulations in various industries (aviation, coal mining, maritime, oil and gas).

Part II: Danger

• The CLC defines "danger" as any hazard that could lead to imminent or severe harm before correction or alteration.

Part II: Key Responsibilities

• Employer responsibilities include developing policies, notifying employees of potential hazards, providing safe training, investigating incidents, maintaining records, and ensuring buildings and equipment meet standards.
• Employee responsibilities include complying with safety procedures and reporting hazards.

Part II: Right to Refuse Unsafe Work

• Employees can refuse unsafe work without employer retaliation. Steps include reporting to the supervisor, involving internal workplace health and safety committees, and appealing to the minister for investigator appointment. An accident investigation and potential legal action follow serious injuries.

Part III: Standard Hours, Wages, Vacations & Holidays

• Part III mirrors provisions in some provinces concerning labour standards, setting minimum requirements. Unique provisions include provincial wage rate jurisdiction and lack of a national WCB, many employers operating in the federal jurisdiction subscribing to their provincial WCB. Unjust dismissal processes are included.

Part III: Hours of Work

• A typical work day is 8 hours, maximum 40 per week; over 40 hours warrants the 1.5x rate of pay. Workers have the option to vote for an extended daily/weekly maximum (48 hours). Exceptions, such as those brought by accidents, urgent work, or unforeseen circumstances, exist and require the appropriate notification.

Part III: Vacation and Holidays

• Minimum two-week vacation is the norm, with nine national holidays recognised: New Year's, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving, Remembrance Day, Christmas Day, Boxing Day.

Part III: Leaves of Absence

• Leaves of absence are typically unpaid; Employment Insurance usually covers the gap.
• Employees may continue receiving benefits. Leaves covered by CLC include maternity/parental, compassionate care (for spouse, common-law partner, child, parent), critical illness, death/disappearance, bereavement, sick, and reserve force leave.

Part III: Terminations

• Group terminations (50 or more employees) require notice and joint planning committee participation.
• Individual terminations require minimum two weeks' notice plus severance if not for cause.
• Unjust dismissals require just cause for the employer, with possible informal or legal adjudication, with broad remedies.

Test your knowledge of labour laws, unionization, and collective bargaining practices in Canada. These questions cover key aspects of the Canada Labour Code (CLC), union certification, permissible strike conditions, unfair labour practices, and the historical context of the labour movement.