Chapter Overview PDF

1 Chapter Overview 1. History and Premises of Labour Law 2. Establishing a Union 3. Collective Agreements 4. Strikes and Lockouts 5. Unions and the Charter of Rights & Freedoms Copyright © 2021 Emond Montgomery Publications. All rights reserved. ...

1 Chapter Overview 1. History and Premises of Labour Law 2. Establishing a Union 3. Collective Agreements 4. Strikes and Lockouts 5. Unions and the Charter of Rights & Freedoms Copyright © 2021 Emond Montgomery Publications. All rights reserved.  2 Introduction Individual employment Contract between employer and employee individually No association, or regulatory agency Imbalance of power between employers, employees Labour movement rebalanced relationship Workers could organize into unions who negotiate on their behalf Negotiating positions became more balance Copyright © 2021 Emond Montgomery Publications. All rights reserved.  3 1. History and Premises Main features of modern labour law (since 1940s): Ability of individual employees to form a union Ability of union to force employer to bargain with it only Ability of union to use economic sanctions Informed early employment legislation Copyright © 2021 Emond Montgomery Publications. All rights reserved.  4 1. History and Premises (cont’d) 1925: Provincial authority to regulate labour and employment Wagner Act model: 1943 onward Foundation of modern labour law Copyright © 2021 Emond Montgomery Publications. All rights reserved.  5 1. History and Premises (cont’d) Components of Wagner Model Right of employees to form Duty to bargain in good faith or join union Prohibition of unfair labour Process for certification of practices unions Administrative body Collective agreement as established: Labour enforceable contract Relations Boards Rules for strike (or lockout) activity Copyright © 2021 Emond Montgomery Publications. All rights reserved.  6 2. Establishing a Union Three phases: Organizing of employees Certification Collective bargaining (first agreement) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  7 2. Establishing a Union (cont’d) Certification process Union organizers prove a minimum level of support Union applies to LRB for certification LRB determines whether unit is “appropriate for bargaining” LRB confirms number of employees in unit LRB orders secret ballot representation vote – results will determine certification Copyright © 2021 Emond Montgomery Publications. All rights reserved.  8 2. Establishing a Union (cont’d) Decertification Union loses bargaining rights Process almost identical to certification Copyright © 2021 Emond Montgomery Publications. All rights reserved.  9 2. Establishing a Union (cont’d) Collective bargaining process Union or employer serves notice of intent to bargain Parties must start bargaining once notice served Duty to “bargain in good faith” If bargaining breaks down: Either party can request LRB appoint mediator Either party can begin job action Both parties can agree to voluntary arbitration Copyright © 2021 Emond Montgomery Publications. All rights reserved.  10 2. Establishing a Union (cont’d) Many disputes are about unfair labour practices Motive Employer’s actions must not be for purposes of harming the union or violating terms of a negotiated agreement Onus Generally falls on whoever filed complaint Copyright © 2021 Emond Montgomery Publications. All rights reserved.  11 2. Establishing a Union (cont’d) Collective agreements include dispute mechanisms for when parties disagree Collective agreement bars (BC), or certification bars (AB) restrict when a union can be raided Peace obligation: no strike or lockout allowed during term of collective agreement Copyright © 2021 Emond Montgomery Publications. All rights reserved.  12 3. Collective Agreement Written agreement between employer and union containing terms and conditions of work Represents all bargaining unit employees governs how employers manage their operations Provides framework for dispute resolution Imposes peace during its time Parties do not look elsewhere for workplace rules Copyright © 2021 Emond Montgomery Publications. All rights reserved.  13 3. Collective Agreement (cont’d) Once union/employer get tentative agreement, ratification begins Employees vote to accept or reject If rejected, parties go back to bargaining table If accepted, is signed, submitted or LRB and becomes binding contract Copyright © 2021 Emond Montgomery Publications. All rights reserved.  14 3. Collective Agreement (cont’d) Grievance/Arbitration Process Spelled out in collective agreement Multiple steps of grievance process before arbitration (last resort) Both parties share in costs Strike: Distinct right of unionized workers, must be voted on Lock out workers: Distinct right of the employer Copyright © 2021 Emond Montgomery Publications. All rights reserved.  15 4. Strikes and Lockouts Strike vote procedures Closely regulated, similar to elections, Secret ballot Majority of votes must support strike Timing of strike action described For employers, no vote required to lock out unless employer is part of an employer’s association (then there are similar rules) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  16 4. Strikes and Lockouts (cont’d) Allowed by strikers Not allowed by strikers Withdrawal of services Enter private land Communication of Adversely message to public (e.g., affect/inconvenience leafleting) public or a property owner Peaceful picketing on Assault people with signs public land (BC) Contact customers Strike only at worksite (AB) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  17 4. Strikes and Lockouts (cont’d) Essential services services that if interrupted would endanger life, safety, health of public; or are necessary to maintain rule of law, public security cannot strike or be locked out LRB and Minister of Labour can designate Copyright © 2021 Emond Montgomery Publications. All rights reserved.  18 4. Strikes and Lockouts (cont’d) Requires an essential services agreement can be negotiated some do not have ability to strike but do have right to binding arbitration AB: flat prohibition of strike/lockout for certain workers (e.g., fire fighters, public service) BC: no flat prohibitions—process led by LRB Copyright © 2021 Emond Montgomery Publications. All rights reserved.  19 5. Unions and Charter of Rights and Freedoms Before Charter: worker rights conferred by legislation, not guaranteed Due to use of freedom of association by courts, Charter now providing protection for unions Most relevant Charter rights for unions are Freedom of expression (s 2(b)) Freedom of association (s 2(d)) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  20 5. Unions and Charter of Rights and Freedoms (cont’d) Cases, freedom of expression Dolphin Delivery (SCC, RWDSU v Pepsi-Cola 1986) (SCC, 2001) Primary, secondary picketing; Emphasis on importance of certain activities not unions and strike activity protected, importance of Alberta v UFCW (SCC, unions 2013) UFCW v KMart (SCC, PIPA unconstitutional: 1999) importance of unions to lives Leafleting, benign character of workers Copyright © 2021 Emond Montgomery Publications. All rights reserved.  21 5. Unions and Charter of Rights and Freedoms (cont’d) Freedom of association 1. 1980s–90s: The “labour trilogy” Narrow interpretation of association, confers no real rights on unions as collectives 2. 2000s: Growing protection of right to form unions and bargain collectively (even against statutes) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  22 5. Unions and Charter of Rights and Freedoms (cont’d) Freedom of association “Labour Trilogy” Reference re Public Service Employee Relations Act (Alta) (Alberta Reference), PSAC v Canada, and RWDSU v Saskatchewan Association only protects individual employees’ right to join union No practical constitutional protections of union once formed Lavigne (SCC, 1991) freedom “not to associate” Copyright © 2021 Emond Montgomery Publications. All rights reserved.  23 5. Unions and Charter of Rights and Freedoms (cont’d) Freedom of association Dunmore (SCC, 2001) Turning point in interpretation of association Rebuttal of “Trilogy” logic (without overturning the decisions from 1987) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  24 5. Unions and Charter of Rights and Freedoms (cont’d) Taken together, Mounted Police Association and Sask. Fed. of Labour, along with Alberta (IPC) decision from 2013, suggest strong Charter support for unions Future cases will test strength of new trend Copyright © 2021 Emond Montgomery Publications. All rights reserved.  25 Introduction Canada Labour Code (CLC) covers employers and employees operating in the federal jurisdiction Trans-provincial operations Banking Telecommunications Transportation Crown corporations First Nation Organizations operating in Alberta or BC may be governed by CLC provisions rather than provincial employment legislation Copyright © 2020 Emond Montgomery Publications. All rights reserved.  26 Three Parts of the CLC 1. Part I: Industrial Relations 2. Part II: Occupational Health and Safety 3. Part III: Standard Hours, Wages, Vacations & Holidays Administrative bodies handle complaints Administrative tribunals/adjudicators are established to hear cases under each separate part of the CLC Copyright © 2020 Emond Montgomery Publications. All rights reserved.  27 Part I: Industrial Relations Affects employers and employees in unionized workplaces, or where employees are attempting unionize Canada Industrial Relations Board Adjudicate Part I disputes Powers and duties are similar to provincial labour relations boards and include: Conducting hearings about alleged violations of the CLC Conduct representation votes Determine bargaining unit size and composition Order remedies where there have been unfair labour practice complaints Orders of the board are enforced by the courts Copyright © 2020 Emond Montgomery Publications. All rights reserved.  28 Part I: Acquisition and Termination of Bargaining Rights Certification establishes the union as the exclusive bargaining agent for the group of employees in a bargaining unit Certification or decertification Secret ballot vote by more than 35% of the affected employees More than 50% must vote in favour What if an employer sells the business? Copyright © 2020 Emond Montgomery Publications. All rights reserved.  29 Part I: Collective Bargaining & Collective Agreements Collective agreements are group employment contracts Contents are negotiated between employer and union CLC requirements: Notice to bargain Good faith bargaining Technological change Grievance processes Dues check-off First agreements and conciliation Copyright © 2020 Emond Montgomery Publications. All rights reserved.  30 Part I: Strikes and Lockouts Strike—work stoppage initiated by the employees (secret ballot vote required) Lockout—work stoppage initiated by the employer Copyright © 2020 Emond Montgomery Publications. All rights reserved.  31 Part I: Strikes and Lockouts Strike/Lockout Rules: No strike/lockout until if a collective agreement is in force (not expired) Mandatory conciliation first 72-hours notice Operations must continue to the extent necessary to prevent danger to the public No replacement workers No discipline of striking/locked out workers Benefits/pensions must continue Workers get reinstated when the work stoppage is over Copyright © 2020 Emond Montgomery Publications. All rights reserved.  32 Part I: Unfair Labour Practices Interference in the formation of a union Intimidation, threats, or coercion Raiding Discrimination against employees who wish to join a union or are part of a union Organizing on employer property without permission Copyright © 2020 Emond Montgomery Publications. All rights reserved.  33 Part II: Occupational Health and Safety Part II purpose is to prevent accidents and injuries that arise out of, are linked with, or occur in the course of employment CLC Part II is supported by additional regulations: Aviation Occupational Health and Safety Regulations Coal Mining Occupational Health and Safety Regulations Maritime Occupational Health and Safety Regulations Oil and Gas Occupational Health and Safety Regulations On Board Trains Occupational Health and Safety Regulations Copyright © 2020 Emond Montgomery Publications. All rights reserved.  34 Part II: Danger CLC defines danger as “any hazard, condition or activity the could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.” Copyright © 2020 Emond Montgomery Publications. All rights reserved.  35 Part II: Key Responsibilities Employer Develop policies, procedures, and regulations Notify employees of known or foreseeable hazards Train employees in safe procedures Investigate and report incidents Maintain records Ensure buildings/equipment/conditions meet prescribed standards Employee Use safety equipment Follow safety procedures Report hazards Copyright © 2020 Emond Montgomery Publications. All rights reserved.  36 Part II: Right to Refuse Unsafe Work Employee may refuse work if there is likely to be an accident or injury resulting from the work—no retaliation by employer Report to the supervisor Refer to an internal workplace health and safety committee Refer to the minister, who will appoint an investigator If there is an accident that results in serious injury: Investigation occurs There may be charges under the code Due diligence defence Copyright © 2020 Emond Montgomery Publications. All rights reserved.  37 Part III: Standard Hours, Wages, Vacations & Holidays Similar to provisions in Alberta and BC Employment standards legislation Minimum requirements Some unique provisions 1. Minimum wage rates set by provincial legislation apply to workplaces under CLC jurisdiction 2. No federal WCB—employers are required to subscribe to an insurance plan (many subscribe to provincial WCB) 3. Unjust dismissal provisions Copyright © 2020 Emond Montgomery Publications. All rights reserved.  38 Part III: Hours of Work Average 8 hours per day, not exceeding 40 hrs per week Over 40 = 1.5x regular rate of pay Workers can vote to increase standard hours up to a maximum of 48 per week Exceptions to 48 hour maximum: 1. Accident 2. Urgent or essential work 3. Unforeseen or unpreventable circumstances Schedules must be posted 30 days in advance Copyright © 2020 Emond Montgomery Publications. All rights reserved.  39 Part III: Vacation and Holidays Minimum two weeks of vacation Nine general holidays: 1. New Year’s Day 2. Good Friday 3. Victoria Day 4. Canada Day 5. Labour Day 6. Thanksgiving Day 7. Remembrance Day 8. Christmas Day 9. Boxing Day Copyright © 2020 Emond Montgomery Publications. All rights reserved.  40 Part III: Leaves of Absence Leaves are normally unpaid (covered by Employment Insurance) Employee may continue to receive benefits (but may need to pay the premium) Types of leave in the CLC: Maternity and Parental Leave Compassionate Care Leave (Spouse, common law partner, child, parent) Critical Illness Leave Death or Disappearance Leave Bereavement Leave Sick Leave Reserve Force Leave Guaranteed reinstatement on return Copyright © 2020 Emond Montgomery Publications. All rights reserved.  41 Part III: Terminations Group termination (50 or more employees) provisions Notice requirements Joint planning committee Individual termination provisions Without cause: minimum two weeks pay in lieu of notice + severance Unjust dismissal: Employers must have just cause Adjudication process: Informal Inexpensive (relative to courts) Broad range of remedies Copyright © 2020 Emond Montgomery Publications. All rights reserved.