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Instructional Methods

• Lectures will be used as the instructional method

Assessment Criteria

• Midterm #1 will account for 30% of the final grade
• Midterm #2 will account for 30% of the final grade
• The Final Exam will account for 40% of the final grade

Copyright

• The content is copyright protected and owned by the author
• Slides are exclusively for academic and study purposes
• They cannot be shared without the consent of the author
• The Copy Right Act provides for damages and penalties for violations

Canadian Constitution - Division of Powers

• Power is divided between the federal and provincial governments
• Sections 91 and 92 outline jurisdictional powers of both governments
• S.91 outlines federal powers such as criminal law, postal service, military, divorce, and indigenous affairs
• S.92 outlines provincial powers such as property and civil rights, marriage, and administration of justice
• The government with the attributed head of power has the exclusive right to make laws concerning that power.
• One government's laws cannot fill the gap if another government fails to legislate.
• Federal and provincial legislative powers are mutually exclusive
• Provincial governments cannot legislate in the area of criminal law
• An unconstitutional law would be considered ultra vires
• The constitution clearly divides legislative subject matter between the two levels of governments
• Courts decide legislative subject matters not in s. 91 and 92 lists, e.g., telecommunications and labour relations
• In Toronto Electric Com vs Snider [1925]AC, it was determined that a federal law imposing a board on employers/employees to settle issues before a strike or lockout was unconstitutional
• This was considered an interference with civil rights under Head of Power "property and civil rights" 92.(13), which is under Provincial jurisdiction

The Rule

• In labour relations, provincial jurisdiction is presumed and closely related to "property and civil rights" a provincial head of power under 92(13)

Explicit Exceptions to The Rule

• Federal employees' labour relations are exceptions, with the federal government regulating employees of Yukon, Nunavut, and Northwest Territories.
• Provinces cannot regulate the working conditions of federal employees
• Federal enterprises directly related to federal heads of power in s.91 are an exception
• One example is railways, as the right to regulate the industry entails regulating labour relations
• Federal enterprises exception deemed the Canada Labour Code (CLC) constitutional by the Supreme Court of Canada (SCC)
• Other examples of federal enterprises are trans border and interprovincial ship lines, airports, radio Stations, and banks
• The federal government has residual powers under "...peace, order and good government” (POG)
• These subjects aren't expressly mentioned in the Constitution under the federal government under POG.
• General benefit works and undertakings of Canada or for more than one province are examples, such as telecommunications

Implicit Exceptions To The Rule

• Criminal Law can implicitly regulate certain areas of labour relations because the law may make certain actions illegal. This includes interference with freedom of association-picketing-vandalism-sabotage
• Provincial jurisdiction applies to on-reserve enterprises for matters regarding indigenous land
• For an exception, the enterprises must be federal or regulated by the Indian Act
• During any event, the federal government can temporarily suspend the application of normal labour relation rules

Application

• If the law is labour-based it will not apply to another government level or its enterprises
• An act respecting the relationship between occupational health and safety (a provincial law) cannot be applied to federal employees
• Preventative leave can't apply to federal employees
• The law under which the company is incorporated is not important in determining whether it is a federal of provincial enterprise
• The fact that they receive federal subsidies is also not important
• Examine nature, normal, and habitual enterprise activities
• To avoid the provincial jurisdiction rule, these activities must be integrally related to some portion of federal power directly
• A provincially regulated enterprise can become federally regulated if it becomes integral to a federally regulated enterprise
• Installation services offered to Bell, for example, were vital to Bell's operations and thus federally regulated indirectly
• Indivisibility means that once an enterprise is federal it cannot be divided
• If a transport company does intra-provincial, extra provincial, and international transport then all labour relations are governed federally
• An exception to this rule exists in Victoria Empress Hotel and CP Railway

Individual Employment Contract

• There needs to be two parties Employee (E'EE) and Employer (E'ER)
• The E'EE must be a natural person
• E'ER must protect health, safety, and dignity of E'EE
• The contract terminates when E'EE dies
• E'ER can be a natural or legal person, general or limited partnership, or even an association
• Identifying the E'ER is generally easy, but there are exceptions like when E'EE's services are temporarily loaned out to another E'ER
• It can also occur in tripartite arrangements such as the supply of manpower from one E'ER to another
• The party exerting control over E'EE's working conditions is considered the E'ER

Elements of The Contract

Work

• It can be of any type (manual or intellectual)
• It can be regular or intermittent, full-time or part-time
• Illness, work shortage, strikes are examples of interruptions in the provision of work and do not entail termination of the employment contract

Remuneration

• The right to renumeration for work is essential to the function of an E'EE
• Payment can be hourly, weekly, monthly, or yearly basis; on flat rate or by commission;
• It could be in the form of property or service

Subordination

• A contract of employment is a contract by which a person, the employee, undertakes, for a limited time and for remuneration, to do work under the direction or control of another person, the employer
• Absence of subordination means there is no contract of employment
• Historically subordination meant the boss looking over your shoulder watching you working
• Now it involves determining what, how, and when work id performed, what is expected to be produced etc, combined with the right to supervise its execution

Factors Denoting Subordination

• Mandatory presence at workplace
• Regular assignment of work
• Rules of conduct and behaviour
• Requirement for E'EE to submit activity reports
• Quality control over work performed

Formation and Characteristics

• Formed by simple consent of capable people
• No specific form is needed
• Bilateral
• Onerous
• Communitive
• Successive performance
• Intuitu personae Because of person

Obligations of the Employee (E’EE) 2088 CCQ

Work

• Must be performed personally with arrangements between the parties
• Must be performed under E'ER's direction and control
• Workplace rules cannot require an employee to violate public order or illegality
• Work rules must only be imposed with justification

Loyalty and Security

• An Employee's insubordination may result in the E'ER taking disciplinary action such as warnings, reprimands, or even termination
• The work must be performed prudently and diligently
• The obligation of prudence is a best effort and/or an obligation of result
• The engagement of diligence dictates the quality and quantity of how work is produced
• Failure to meet the obligations to dismissal can be deemed incompetence or incapacity
• The obligation of loyalty stems from the fact that the E'EE works for something
• E'EE must be honest towards an E'ER and also element of trust
• Employees can only be dishonest in the case of a whistle-blowing incident
• They cannot put themselves in conflict with E'ER interest, favor a competitor, and act on self-seeking measures at the E'ER's expense
• All E'ER confidential information must be protected
• Confidential information can be (CI) what two parties deem as (CI), trade secrets, financial details on the organization, business strategies or production methods
• The obligation of loyalty can survive termination of the contract; there needs to be balance between parties
• Obligation is dependent on the specific facts and should not impede fair competition.

Non-Compete Clause

• Must be in writing; three components:
• Type of employment
• Geographic territory
• Time period
• Limits go no further than what is required to protect interest.
• E'ER show limitations
• The clause is not valid, it cant be used

Security

• The E'EE has to perform work prudently, avoiding situations for himself, his fellow workers, environment and others.

Obligations of the Employer (E’ER)2089 CCQ

Work

• Allow work to be performed
• Workplace to be provided
• Furnishings and equipment to the E'EES have to be provided
• Work has to be comprehensive as accepted by parties

Health

• To protect the health,safety, and dignity of employee"
• The Act has to be followed
• Accident should apply

Dignity-private

• Any kind of Harassment is needed to be avoided

• Psychological

• E'ER Has to safeguard E'EE privacy

• Breaches can happen

• Personnel files should be classified

Remuneration

• Salary will have to be paid
• $$$ any form can be the compensation
• Vacations and pension should be awarded upon

Duration of the contract

• S.2085 CCQ the duration of works term can not be for life -S. 2086 Indeterminate term (when there is not and specific end date term
• Firmed term the date has to be know. This term will automatically end

Termination

• By Mutual Consent-
• Force Majeure- beyond control( Prove it, then contract ends.
• DEATH-ends E'EE's contract but E'ER's is might be
• SEE S.2097 CCQ- Alienation if the enterprise*

Serious Reason

• Both fixed and indefinite-can not fire
• E'EE terminates=resignation term
• E'ER terminates=firm
• Basis- breach in obligation

Notice/term

• E'E Employs notice to be given

Conditional

• Negotiation offers

• The notice the law as

• Indemnifies

Notice

• ONLY* serous reason

• Construct

• Constructive dismissal

Terminated, and the act has to have occurred on the

2088 S can not be paid

Warrant

Term 2091 CQ

• The parties must indeterminate contract
• The other can end contract with reasonable notice

How we know, two steps can occur

• Work to be done
• Or compensation to be handed to another.

Several factors:

• Nature of the employment
• Circumstance
• length of term
• age

Waiver

s.20; 92

• The class is no logger valid
• The terms and E'EE HAVE GONE DOWN

Contarct

NOT

The enterprise

• Follow
• Follows enterprise.

Recourses

• NOT-a court order
• Clauses possible
• Clauses and dishonest
• Damages possible

Moral

• Moral damages

• Not gross terms

• Available by act or so

• Obligated

Remuneration

• Had to provide employment