Final Notes Unions.pdf

lOMoARcPSD|2779689 Final Exam (Unions) Notes Employment Law (Concordia University) Studocu is not sponsored or endorsed by any college or university Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Basic Definitions of Collective Bargaining The emplo...

lOMoARcPSD|2779689 Final Exam (Unions) Notes Employment Law (Concordia University) Studocu is not sponsored or endorsed by any college or university Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Basic Definitions of Collective Bargaining The employer has one collective agreement w/ a bargaining unit that is represented by a certified association. Translation: The employer has one contract w/ a group of employees who are all represented by a union. Collective Agreement - The contract which contains all the working conditions between the employer and each employee in the bargaining unit. Bargaining Unit - A group of employees w/ similar interests regarding their work conditions. § Exclusively made up of employees defined by Art.1 (L) of the CQLR. § Not all employees in the BU are members of the union. § At least 51% of employees in the unit must be members of the union. Certified Association - A legal entity made up of employees, that has been authorized by the Minister of Labour to be the sole representative of those employees. Union Must: § Represent all employees in the BU, regardless of whether they’re union members. § Negotiate w/ the employer to conclude a collective agreement for the BU. § Collect union dues (checkoffs) Unions must be accredited (certified) in accordance w/ statutory laws (QLC) in order to collectively bargain w/ the employer. Parties Involved in Collective Bargaining: ■ The Minister of Labour (ML) ■ Dispute arbitrator ■ Employer ■ Administrative Labour Tribunal (ALT) ■ Conciliator ■ Union ■ Labour Relations Officer ■ Grievance arbitrator ■ Employees Chapter 1 - The Quebec Labour Code Union Jurisdiction Provincial Unionization Organized under each province’s respective legislation. (QLC in Quebec) Federal Unionization Done in accordance w/ the Canada Labour Code, and enforced by the Canada Industrial Relations Board. Authority to Enforce Minister of Labour The ML has exclusive authority to: § Appoint a conciliator, mediator, or arbitrator in disputes relating to negotiating CBAs. § Set up a list of arbitrator available to resolve a dispute under a CBA. Responsibilities of the ML include: § Being informed of intentions to declare a strike or lockout. § Making recommendations that the government order an employer or union to maintain essential services in the event of a strike/lockout. § Ordering investigations into the application of the QLC. 1 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions administrative functions main functions Mana 479 Administrative Labour Tribunal ALT has exclusive jurisdiction to apply the QLC in matters concerning: § Rules on any labour dispute under the QLC which are not subject to arbitration. § Strikes, work slowdowns, lockouts, use of scabs, accreditation, union refusal to properly represent members, and failure of employer/union to negotiate a CBA. Commissioner must hear cases appointed by the government, alone or in panels of 3. § Panels of 3 in requests for certifications § Decisions are final and w/o appeal § Alt has immunity from liability; cannot be sued for actions in made in good faith. Regular Courts Only have authority for: § Decisions under judicial review § When arbitrators or the alt exceed their jurisdiction § Disputes founded on general law. Field of Application (CQLR C-27) The definition of an employer and an employee is important in determining who is included/excluded from a BU. Art.1 (K) The employer is anyone (including the state) who has work done by, benefits from the services of, and exercises control over the working conditions of an employee. Art.1 (L) The employee is a physical person who provides services for an employer in exchange for renumeration. Art. 20.0.1 When an employer changes the status of employees to independent or dependent contractors: 1. Employer must give notice to the union 2. Union has 30 days to ask the ALT to rule on the change 3. This notice temporarily blocks the change in status a. Until the expiration of the 30 days b. Until the ALT rules on the union's review request Exclusions from the Bargaining Unit (CQLR C-27) The alt determines who is and isn’t part of the BU. § Both the employer and the unions regularly dispute this. § The party which claims the exclusions must prove it based on the true nature of the employee’s functions and responsibilities. Art. 1 (L.1) A Manager, Foreman, Superintendent, or Representative of the Employer A foreman who exercises a management function w/o having the power to hire/fire: § Participates in the hiring process. § Assigns work and determines execution. § Supervises and evaluates work. § Power to discipline employees. 2 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Anyone who exercises a management function: § Gives directions to other employees. § Represents the employer in relationships w/ employees. § Has capacity to make management decisions regarding the exploitation of the business. A team leader who has authority over other employees but does not exercise management functions. § Distributes work § Plans, directs, and supervises the quality of work. *The frequency w/ which the employee exercises these functions, their degree of discretion and autonomy, are key determinants. Art. 1 (L.2) A Director or Officer of a Legal Person (employer) § Unless appointed by the employees of the union. § The title alone is not sufficient, the person must also exercise the powers of the position. Art. 1 (L.3) Certain Public Servants Those whose jobs involve confidentiality: § Government employees § Those working for the executive branch of government. § Ministere du Conseil Executif § Conseil du Tresor § Other positions of confidential nature Art. 1 (L.4 - 7) Other Public Employees § Some employees working in the Institute de la Statistique du Quebec § Criminal and penal prosecuting attorneys. § Members of the Surete du Quebec (municipal police can unionize) § Members of the personnel of the Chief Electoral Officer CQLR T-15.1 Art. 9 (1-7) Powers of the ALT Investigation Done in the name of the alt, Labour Relations Agents investigate any infractions under the QLC: § Interference w/ union activities (CQLR C-27 Art. 12) § Issues relating to the accreditation of unions (CQLR T-15.1 Art. 86 - 87) Decisional The alt can make any decision it considers appropriate in a dispute including: 1) Summarily reject any application 2) Refuse to rule on a complaint that can be settled by arbitration 3) Make any order (including provisional) to safeguard the rights of the parties 4) Determine any question of law/fact necessary for the exercise of its jurisdiction 5) Ratify an agreement 6) Revoke a union’s accreditation if necessary ↳These decisions are made by commissioners or by agents who have the power to grant requests for accreditation. 3 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions CQLR C-27 Art. 111.33 (1-5) CQLR T-15.1 Art. 21 - 25 Mana 479 Conciliation Alt exercises power to encourage conciliation and settlements in disputes. Prior to adjudication of the case § Conciliation is voluntary and confidential § Conciliator has no binding authority § Agreement can be submitted to the alt for approval Injunction Orders in response to strikes, lockouts, and work slowdowns in the private sector: 1) Cease any violation of the QLC 2) Remedy any act done in contravention to the QLC 3) Apply any measures of redress the alt considers best 4) Issue an order to cease authorization or participation of a strike or slowdown 5) Order the acceleration or modification of a grievance/arbitration procedure CQLR T-15.1 Art. 49 (1-3) Reparation Order any reparation to the parties to enforce the rights under the codes C-27 Art. 111.33 (1 - 5) and T-15.1 Art. 9 (1 - 7). § Payment of damages for violation of the QLC § Reinstatement of employees disciplined for exercising their rights § Payment of indemnity for loss salary § Authorize an employee to submit a claim to an arbitrator and order the union to pay for it where it has refused to represent the employee’s claim. Revision and Revocation Alt may revise or revoke a decision it has made under the QLC when: 1) A newly discovered fact, if known in time, could have warranted a different decision. 2) An interested party was unable to be heard or to present its position (excludes missed deadlines). 3) A substantive or procedural defect justifies invalidating the decision. § Ignored a clear fundamental legal principal § Made a decision in the absence, or in ignoring, evidence § Party was denied the right to be heard § Original decision was not impartial CQLR C-27 Art. 111.10 - 111.10.5 *Request must be made within a reasonable delay of ≦ 30 days. Essential Services 1) In the public and para-public sectors, minimum services must be maintained. 2) Minimum services must be negotiated by the employer and the union. 3) If no agreement is reached, the union must submit a proposal to the alt. 4) If the alt considers the proposal insufficient, it can convene a hearing and make the recommendations it considers appropriate. 5) The alt will then submit its final recommendations to the Minister of Labour. 4 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Chapter 2 - Individual and Collective Rights The Freedom of association (FOA) is protected by S.2 (d) of the Canadian Charter, and S.3 of the Quebec Charter. Certified Union Rights § Right to strike. § Obligation to represent members. § Obligation to negotiate in good faith. § Monopoly to negotiate w/ the employer. (Wagner model) Individual Rights § Right to associate. § Right to pursue common constitutional rights. § Right to join others to face groups of more equal terms (power/strength). Collective Employee Rights § § § Right to form a union. Right to present their demands collectively to their employer. Right to participate in discussions toward attaining workplace objectives. *The right to associate is meaningless w/o the right to bargain collectively. Collective Bargaining Rights § There is a procedural right to collectively bargain. ↳ the process is constitutionally protected. § Duty to bargain in good faith. § Employer must consider the representations (unions) in good faith, and engage in a process of meaningful consideration and discussion. Individual Right of Association (CQLR C-27) Art. 3 Every employee has the right to belong to the association of their choosing, and to participate in the formation, activities, and management of that association. The exclusivity granted to unions (Wagner model) imposes an obligation to accept all employees as members, unless if it threatens the cohesion or existence of the union. Employees cannot be forced to join a union as condition of employment or as a condition of receiving protection from the union. § Employees can be forced to pay union dues even if they are not members of the union. § Construction workers must be members of a union for the purpose of certifying/controlling qualifications. Infringement of FOA Prohibitions under Art. 425 (a) of the Criminal Code § Dismissing, or refusing to employ someone for union membership/activities. § Intimidating or threatening sanctions against a person for union membership/activities. § Conspiring w/ another employer or his agent, to do anything mentioned above. Prohibitions under CQLR C-27 No person shall use intimidation or threats to induce anyone to become, refrain from becoming, Art. 13 or cease to be a member of a union § Includes threats to close the business. § Includes changes to working conditions as a reprisal in the event of unionization. 5 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Art. 14 An employer cannot refuse to hire, dismiss, or impose sanctions on an employee or group of employees to prevent the exercise of union activities. The Tribunal may dissolve an association if its proven that they participated in prohibited practices. Exceptions 1. An employer can correct facts or propaganda issued by the union. 2. An employer can exercise their freedom of expression and let their opinions be known. § There can be no threats or promises § Employees cannot be forced to hear the employer’s opinions § Messages cannot be false or misleading § Employer cannot attack the union or its credibility 3. A business can close out of its own choosing if employees want to unionise. § Business must close permanently. Individual Civil Recourses (CQLR C-27) Employees who have been sanctioned for union activity or for exercising a right under the QLC can claim reinstatement as well as compensation for lost salary (w/interest). Complaints related to art. 12, 13, and 14 must be filed w/ the alt within 30 days. For the alt to presume that the sanction was imposed on the employee for exercising a legal right, the employee must first prove: 1. He is an employee of the employer who imposed the sanction 2. He was subject to a sanction 3. The sanction was contemporaneous w/ union activities 4. He was exercising a legal right under the QLC Art. 17 If the above is proved to the satisfaction of the Tribunal, the onus is on the employer to prove that the sanction/action against the employee was for a good and sufficient cause, or was a result of economic reasons. If the employee committed a contemporaneous fault, the employer must demonstrate that the fault was the true reason for the sanction, and the sanction was not over exaggerated. Individual civil recourse (art. 15 - 19) does not erase the employee’s right to file a grievance (arbitration). 1. Alt civil recourse takes priority 2. Alt may conclude that the sanction was not union related 3. Case can then proceed to arbitration to examine the appropriateness of the disciplinary sanction in light of the fault. 6 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions CQLR C-27 Art. 15 Mana 479 Remedies 1) Employee can be reinstated. 2) Employer can be ordered to pay retroactive salary and benefits from the time of the sanction until the date of the employee’s reinstatement. 3) Any other reprisal can be ordered cancelled. 4) Any financial consequences can be ordered remedied. 5) Interest and additional indemnity. *Employee is obligated to mitigate his damages. *Judgement takes effect within 8 days of the alt’s ruling. *$500/day penalty for failing to reinstate the employee when ordered. Collective Protections (CQLR C-27) Unions must be financed, formed, organized, and managed w/o interference or participation of the employer; violations can lead to penal sanction, even if management’s actions are positive. Art.12 No employer or agent of an employer shall interfere w/ any association of employees, including: § Using collaborating employees to vote against the formation of the union. § Allowing anti-union petitions to be signed on premises and during work hours. § Using aggressive tactics to discourage employees from unionizing. § Bypassing the union to directly negotiate w/ employees. § Influencing the selection of union representatives. § Providing financial support to the union. § Providing materials and equipment to the union. § Releasing employees from work hours w/o penalty to recruit membership. A union that has allowed itself to be interfered w/ by the employer (dominated union) loses its right to accreditation and if accredited, can be dissolved. Dominated unions are typically: § Quickly and easily organized and accredited. § Supported by the employer w/ the intent of thwarting the organization of a more independent and powerful union. Guilt of the above prohibitions require proof of intent to interfere (beyond a reasonable doubt) regardless of whether the interference was successful or not. § Actions considered unreasonably careless can lead to civil sanctions even in the absence of intent. § The situation of a dominated union can be raised by the alt w/o a complaint by employees. Penal Resources for Infringement Fines ranging from $100 - $1000 per day of infraction. § Can apply to directors, officers, representatives, and council. § Includes actions done by a dominated union, the employer, an association of employers, representatives of the employer and/or anyone else who conspires w/ the employer. 7 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Chapter 3 - The Certification Process Certification Recognition of representative character of an association of employees that allows a union to establish a collective employment relationship w/ the employer. Employees’ Association The QLC has not specific requirements for the association to be a legal person; the alt can recognize a simple association as long as its controlled exclusively by its own members. § Must be formed for the purpose of representing the economic/social/educational interests of employees. § Must exist and function: - Have members who have signed membership cards - Hold meetings of formation - Collect dues from members - Adopt a constitution and elect union leadership Most associations are constituted under the provisions of the Professional Syndicate Act and benefit from separate legal personality. Petition for Certification Petition Requirement An association wishing to represent a bargaining unit (BU) must follow precise rules to petition the Minister of Labour to be certified. § Identification of an appropriate bargaining unit. § Recognition that the association requesting certification is representative of the absolute majority of employees in the BU. Conditions for Filling § There is no minimum number of employees that must be members of a union, as long as it represents the majority of the bargaining unit. § Employer must be an existing enterprise. § Can be a business which has not yet begun operations as long as the petition includes the necessary majority that will eventually be part of the enterprise Art. 25 A petition can only be submitted by an employees’ association, excluding management and independent contractors. (accidental inclusion of ineligible employees does not invalidated the petition if it was made in good faith) Art. 27.1 First to File Once a petition is filed and is pending, any subsequent petition is inadmissible. § Must be validly filed and must meet QLC admissibility rules. § The fact that it may be subsequently dismissed is irrelevant to the rule. § The fact that the second petition covers a larger group. Two petitions filed the same day are considered concurrent and will both be treated and considered. § A petition is deemed as filed the day of its deposit at the alt offices. § Either petition may be subsequently withdrawn or dismissed. 8 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 New Petitions Art. 40 An association whose petition is rejected or withdrawn must wait 3 months before presenting a new petition. Exceptions: The 3-month waiting period does not apply to a petition which has been dismissed/withdrawn as a result of: § The first to file rule § A procedural defect § An association which has ceased to exist or no longer comprises the absolute majority § The merger of municipalities and school boards, integration of personnel within urban communities, or establishment of transit authorities. Unions will often avoid this waiting period by creating a new association w/ a new name and new board of directors, to file their petition from. (many members and officers will remain the same) § A different local of a larger union can be considered a different association. Art. 22 Petition Deadlines Status Prescription Condition Not represented by an association Any time Not already contemplated, in whole or in part, in an application for certification. An association w/o a collective agreement 12 months after date of certification or 12 months after the decision of the Tribunal on the description of the BU § A dispute has not been submitted for arbitration. § They are not the object of a strike or lockout. 9 months after the date of expiration of a collective agreement § A new collective agreement has not been made and a dispute has not been submitted for arbitration. § They are not the object of a strike or lockout. An association w/ an expired collective agreement As association w/ an active collective agreement As association w/ an active collective agreement 90 - 60 days prior to the date of expiration or renewal of a collective agreement 180 - 150 days prior to the date of expiration or renewal of a collective agreement The term of the collective agreement is ≦ 3 years The term of the collective agreement is > 3 years Petition Formalities Identify: The petition must § The group of employees subject to the petition. § The employer and address of the targeted establishment. § The specific establishment(s) represented. § The entities which make up the employer. Be Accompanied By: § Employee membership application forms. § Other documents required by regulation. Be Authorized By: § A resolution of the association, not by an individual or group of employees. § The resolution can be adopted at a general assembly of all members, or by the executive according to the association’s by-laws. § The resolution must be a certified true copy. 9 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 The alt will communicate a copy of the petition to the employer who must: § Post the petition in a conspicuous place on or before the first working day following the day its received. § Keep the petition posted for at least 5 consecutive days. § Post the complete list of employees concerned by the petition, and their functions. - In a conspicuous place - Within 5 days of receiving the petition § Send a copy of the list to the petitioning association § Make the list available to the Labour Relations Officer of the alt. Evaluation of Petitions The petition for certification is exclusively examined by a Labour Relations Officer. § Process is largely administrative. § LRO investigates by gathering info, documents, and positions of parties. § Process is investigative not adversarial. § May grant or refuse certification. § Regular courts cannot intervene except in cases of manifestly unreasonable decisions. If circumstances do not allow the LRO to grant or reject a request for certification, the case is referred to the alt who may exercise judicial function in case of disputes. Only the employer and the association are allowed to be involved in the process, not individual employees. Only the association and the employees themselves are involved in evaluating the representative character of the association. (the alt evaluates this as it deems fit, including holding a secret ballot) Employers CAN protest the admissibility of the petition based on: § The existence of the association’s resolution § Whether the required membership applications were produced § Whether the petition was filed within the proper deadlines Employers CANNOT: § Have access to membership applications § Have access to other evidence of representative character *Art. 36 prohibits revealing an employee’s adherence to a union. ↳ except in the course of a hearing The Bargaining Unit Strategically Choosing a BU A bargaining unit that’s too large may make it difficult to attain majority representation, therefore the union may seek to limit the group where it has most support. The proposed BU chosen by the union can include: § All employees of the employer. § Any identifiable group of the employees which constitutes a distinct group within the undertaking. § A group agreed up by the employer and the association which can be negotiated before petitioning. 10 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Criteria for an Appropriate BU 1. Common Interest Do the employees within the BU have common interests based on several factors. § Nature and functions of employees and their interrelationships § Qualifications required for employment § Hierarchy structure applied to the employees § How and by whom authority is exercised 2. History The employee/employer relationships among businesses in the same sector. § The alt tends to apply the same BUs to similar groups of employees in similar industries. § An association that wishes to further fraction the BU would have to justify why. § Residual employees left after creation of other BUs will usually be grouped together. 3. Preference Employee preference is measured based on their support for the proposed BU. 4. Geography Territorial activity of the employer. § The existence of several establishments. § The size of the territory over which several establishments are spread § The amount of mobility among the establishments § Whether a BU in one establishment can be easily managed separately § Whether the distance between establishments is a hinderance to a single BU 5. Promotion of Labour Peace Avoiding a multiplicity of BUs within an enterprise mitigates cycles of strikes/lockouts that can occur when too many collective bargaining agreements need to be negotiated. Appropriateness as Applied by the ALT § A bargaining unit that includes all employees is usually deemed appropriate. - All things equal, the alt will favour a larger BU. - A relatively small BU must be strongly supported by employees. § Certification by individual establishments are considered natural BUs and are deemed appropriate. § Office workers are usually considered distinct within an enterprise. § Full-time and part-time workers are part of the same BU. § Casual workers (periodic) are not included in the BU, but can form a distinct group. § An agreement between employer and association may result in exceptions to other criteria. The BU must be limited to a single employer but can include several legal entities constituting a single employer. Bargaining Units in the Public Sector Public service workers can only be part of BUs identified in the Public Service Act. § Municipal police can only by part of a single unaffiliated union which can comprise of only constables from that municipality. § Health service workers can be part of 1 of 4 unions: 1. Nurses' union 3. Technicians and professionals union 2. Administrative union 4. Material and technical support staff union 11 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Modifications to the Bargaining Unit The alt has the power to modify and determine all issues relating the bargaining unit, whether on its own initiative or at the request of a union, employees, or employer. Art. 39 The alt may decide, either on its own initiative or on request, if a person is an employee and should be included in the bargaining unit. Modifications can also be made during the period that allows for new petitions (raiding period). § Can only be requested by the association § Must respect delays for filing petitions Representative Character of the BU An assessment of membership must be made on the day of filing the petition. By Calculation Counting the # of employees from the appropriate BU who: § Have signed an application for membership in the association § Have personally paid union dues for ≧ $2 This excluded casual employees, but includes employees on leave/vacation and temporarily laid off workers. By Secret Ballot A secret ballot vote is required when: § Membership in the association comprises 35% - 50% of the employees in the BU. § There is more than 1 association petitioning, and neither have absolute majority. § There is an agreement between the employer and the association for the BU and there is 1+ petitions. § If there has already been a secret ballot and 2 or more associations together make up a majority of employees. Art. 32 (3) A secret ballot can be ordered by the ALT/LRO at any time, and will be conducted by the LRO. Assessment of Petition by the LRO The LRO can grant certification in undisputed cases when: § There is an agreement regarding the BU § There is only 1 petition and majority representation is met The LRO can grant certification in disputed cases when: § There is a dispute on the inclusion of some employees but majority is still attained w/o them. § There is a dispute on the BU but the LRO is convinced that majority will be maintained regardless. 12 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Chapter 4 - Certified Associations Powers Exclusive Representation The certified association has the exclusive right to collectively negotiate working conditions on the employees’ behalf. (monopoly; Wagner model) § The employer can no longer directly negotiate w/ individual employees regarding work conditions. Collecting Union Dues The employer is obligated to collect dues established by the union from employees on behalf of the association. § Failing to collect union dues can result in fines of $100 - $500 (first offence) and $1,000 - $5,000 (subsequent offences) § Does not require a clause in the collective bargaining agreement. Obligations A certified association must act in good faith and represent all employees in the bargaining unit, regardless of whether they’re members of the association. Obligation of Representation The exclusivity of representation granted to the association comes with the obligation to represent fairly, competently, and w/ integrity. At all stages on the process, the association cannot: § Abandon or refuse to file a grievance on behalf of employees w/o justification. § Discriminate or make unjustifiable distinctions in how it treats or represents employees. § Blindly follow the employer’s decision. § Be grossly incompetent w/ errors. (it would be liable for damages) Lack of personnel/resources is not a justification for not representing an employee. ↳ Obligation to File a Grievance An employee does not have an absolute right to have a grievance filed. § Union has discretion to file or not file the grievance. § Discretion must be exercised honestly, objectively, and in good faith. § Discretion must not be exercised arbitrarily, abusively, or discriminatorily. § Union must assess the grievance, its importance, and the consequences for the employee. § Assessment must not be superficial, summary, or negligent. ↳ Union can refuse to file if it makes a fair assessment and concludes that the grievance is unwarranted. Failure to File a Grievance Recourse against a union for failing to represent an employee must be brought before the alt within 6 months of the union’s offence. § Failing to file the grievance on time is considered a good faith error. § If the offence is deemed not in good faith, the union can be ordered to pay damages. Failure to represent an employee in cases of dismissal or other sanctions/disciplinary measures allows the employee to request that the alt appoint an arbitrator to hear the grievance. § Union can be ordered to pay the costs of an attorney of the employee’s choice. § The alt can order arbitration despite the deadline for the grievance having expired. 13 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Effects The collective bargaining agreement (CBA) belongs to the employees, not the union. Art. 61 In the event of a newly appointed union, the rights and obligations under the existing CBA are transferred to the newly certified union. The new union can declare the previous CBA null and void by sending a notice to the employer. § Except for a CBA of ≦ 3 years in the forestry industry. § A union will usually wait for the current CBA to expire to negotiate a new one. § Usually only done w/ long-term CBAs (> 3 years) Art. 45 All rights and obligations under a CBA are transferred to any new employer in the event of a sale, merger, acquisition, division, or changes in the legal structure of the business. § Collective rights of the association under QLC and CBA are transferred. § Individual rights of employees under QLC and CBA are transferred. § The right to file grievances under QLC and CBA are transferred. Applies to: § Public, private, and municipal corporations. § Bankruptcy or a judicial sale. § Whole or partial sale or concession of a business. § Transfers which include most of the factors of continuity. § Subcontracting of a part of the undertaking. If there is a transfer of rights/obligation, the sale/concession will not affect the CBA or the union. Determining whether there is a transfer depends on whether there is continuity of the undertaking: § Acquiring the clientele of the old employer. § Acquiring the equipment. Place of business, goods, and inventory. § Acquiring the HR. § Maintaining the duties of the employees and pursuing the same objectives as the old employer. Concession - The operations/exploitations of the business are transferred w/o transferring ownership. Raiding Periods Art. 22 Petition Deadlines A new association can present a petition to represent a group of employees already represented by a union if: Situation Condition Union has been unable to negotiate a CBA within 12 months of its initial certification. § A dispute has not been submitted for arbitration. § There is no ongoing strike/lockout. Union was unable to renew its CBA within 9 months of its expiration. § A dispute has not been submitted for arbitration. § There is no ongoing strike/lockout. 14 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 A union is concluding a CBA of ≦ 3 years § Raiding period is 90 - 60 days before CBA expiration. § An extension of the CBA does not stop the raiding period (it’s public order). § Raiding period is 270 - 240 days before CBA expiration in the public/para-public sectors. A union is concluding a CBA of > 3 years § Raiding period is 180 - 150 days before CBA expiration. § Raiding period window reopens every 2 years as of the 6th anniversary of the CBA. ↳ Does not apply if there remains < 12 months in the CBA at the date of anniversary. Multiple Petitions Multiple petitions can be presented by different associations during the same raiding period. § The first to file rule does not apply during raiding periods. § Petitions will be treated concurrently as if they were filed on the same day, and will be examined based on which is representative of the BU. § Alt must make all petitions available to the public. Petitions made based on different raiding periods will be examined successively, and must wait until a petition for the current raiding period has been determined. If a secret ballot is conducted during the raiding period: § The association w/ >50% representation will be certified. § If none have >50%, a new vote will be conducted w/ the two associations w/ the highest %. § If neither get >50%, the association w/ the highest % will be certified. ↳ (the two associations together must make up >50%) Art. 72 A CBA will only take effect when 2 duplicate originals (2 true copies) of the agreement have been signed and filed w/ the Minister. § Once filed, the effect will be retroactive to the date provided in the agreement. § If the CBA is not filed within 60 days of signature, another raiding period will open up on the 61st day and will remain open indefinitely until the CBA is filed, or until another union takes over. § If the 60th day falls on a Saturday, Sunday, or statutory holiday, the deadline will extend to the following juridical day. Revocation of Certification Art. 41 During a raiding period, the Tribunal may cancel a union’s certification if: § The association ceases to exist § The association no longer comprises the absolute majority of the employees of the bargaining unit for which it was certified. ↳ This can be requested by any interested person including employees, an employer, another association, or the association itself. 15 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Chapter 5 - Negotiating a Collective Bargaining Agreement Notice of Negotiation Art. 52, 53 The negotiation stage begins once a notice has been received by the counter party. § Notice must be initiated by the union or the employer and must be sent by fax, messenger, registered mail, certified mail, or by a bailiff. § Notice can be given at any time for the 1st CBA, and 90 days before an expiring CBA. § Notice must be given at least 8 days before the day and hour of the meeting, and must indicate in writing where and when the meeting will take place. Art. 52.2 If no notice was given, then it is deemed to have been received 90 days after union certification, or when the CBA expires. A premature notice is valid if the parties conform to them and begin negotiations. § A CBA can require/allow premature notices § The date parties acquire their right to strike/lockout is unaffected The date a notice is received effects the date that parties acquire their right to strike/lockout: § If the notice to negotiate is received within the deadline, right to strike/lockout is acquired 90 days after receipt of the negotiation notice. § If notice to negotiate is not received within the deadline, right to strike/lockout is acquired 180 days after certification of the association or expiration of current agreement Obligation to Negotiate Parties must negotiate w/ diligence and in good faith, however the obligation to negotiate does not require the parties to come to an agreement. Faults § Refusal to negotiate § Deliberate delays § Bad faith negotiations *Serious faults can constitute a hinderance of union activities and can be sanctioned.* Bad Faith Negotiating § Attempting to bypass the union and directly negotiate w/ employees § Refusing to consider a demand or make a counteroffer § Unreasonably exaggerated positions § Refusing to formalize an agreement in writing § Imposing sanctions on members or representatives Obligation ends w/ ■ Conclusion of a CBA ■ Referral to arbitration Obligation does not end w/ ■ Conciliation, strike, or lockout ■ Cessation of employer’s activities 16 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Penal Sanctions Art. 141 An employer’s failure to recognize the union or negotiate (2 separate offences) results in fines of $100 - $1,000 per day of offence. Art. 144 Any person or association that fails to comply w/ the QLC will face fines of $100 - $500 per day, and $1,000 - $5,000 per day for subsequent offences. Civil Sanctions Based on general powers of the alt, the Tribunal can order: § The employer to cease communicating w/ employees directly § The employer to negotiate w/ the union § The parties to formally sign the agreement agreed upon § Deadlines for the parties to submit their final proposals § Arbitration upon failure to meet the final proposal deadline The Negotiation It is customary for the union to submit its proposal for a CBA; however employers have recently been taking a more aggressive approach by submitting their proposals first. Non-financial working conditions are usually negotiated first. Agreed upon clauses are not legally binding until signed, but they are morally binding for good faith negotiations. Art. 93.1 Conciliation (mediation) Mediation is a necessary pre-requisite to the imposition of arbitration in negotiating first collective agreements. § Either party can request in writing, at any time, that the Minister appoint a conciliator. § Minister can appoint a conciliator w/o request from a party. § Parties must attend all meetings w/ the mediator. § Discussions are confidential. § Decisions are not binding. Art. 42 Suspension of Negotiations The alt can order suspension of negotiation and deadlines in the event of: § A petition to revoke certification § A new petition for certification § A petition relating to the sale of the business ↳ Can include an order not to renew the CBA *All existing working conditions are frozen until the alt makes a ruling on the petition. Permitted changes: § Disciplinary measures applied by the employer § Permanent closure of the business 17 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Art. 59 Freeze of Working Conditions An employer may not unilaterally change the employees’ working conditions or CBA: 1) As soon as a petition for accreditation of a new association is made - Unless the changes are made w/ consent of the petitioning association. 2) Following the expiration of an existing CBA - Unless the changes are made w/ consent of the petitioning association. - Freeze lasts until the right to strike/lockout is acquired and legally exercised. - CBA may have a clause extending working conditions until a new CBA is signed. 3) When the union and the employer do not have the right to strike/lockout - Freeze lasts a new CBA is signed or. During a freeze it is also forbidden for a union to advise its employees not to work, or for the union to advise them to apply pressure tactics. Art. 58.2 Votes on the Employer’s Final Offer The alt may order the union to submit an employer’s final offer to a secret ballot vote. § Must be at the request of the employer § Alt must be convinced that the vote will foster the conclusion of a CBA § All members of the association included in the BU can vote § There can only be one voting process in the negotiation of a CBA Arbitration of Disagreements Voluntary Arbitration (rare) Art. 74 An employer and an association may jointly request appointment of an arbitrator to settle issues. § Must be appointed by the Minister of Labour § Minister may appoint someone chosen jointly by the parties § It is a binding process § Arbitration terminates the right to strike/lockout for that period § Parties are free to make changes subsequently Art. 93.1 Unions negotiating their first CBA cannot proceed to arbitrator until a conciliator has tried and failed to conclude an agreement. § Can be appointed at the request of either party § Puts an end to any strike/lockout Mandatory Arbitration Applies to those prohibited from striking/locking-out (public service workers) § They are appointed a mediator by request of either party for a period of 60 - 120 days. § If the mediator fails to conclude within that time, then a mandatory arbitration will occur. 18 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Chapter 6 - Strikes, Lockouts, and Picketing Conditions to Strike/Lockout Conditions to Acquire the Right to Strike 1. The association has been certified to represent the BU. 2. The CBA has expired or can be legally re-opened. 3. 90 days have passed since the receipt of a notice to negotiate. 4. 48hrs have expired following the notice to the Minister of the declaration to strike/lockout. 5. The strike is authorized by a majority vote of members of the certified association comprised in the BU. *A strike is illegal in all circumstances for municipal or intermunicipal police and firemen. *A lockout is illegal if the right to strike has not be acquired. *A work slowdown is prohibited in all cases. Strike Vote Conditions § Vote must be exclusively on the issue of authorizing a strike § There must be a separate vote for each BU § Only members of the association in the BU can vote § Members must receive a notice of strike vote at least 48 hours prior ↳ If these conditions are not respected, the strike is not ‘illegal’, but there can still be penal sanctions. *Union statutes can provide stricter rules for strike votes. Effects of a Strike/Lockout Art. 110 Job Security Employer and employee obligation are suspended during a strike or lockout. § Employee jobs are preserved despite work stoppage. § Employees can still be terminated/sanctioned for reasons unrelated to the stoppage. § Employee can be terminated/sanctioned for illegal strike activities. Recourse Art. 110.1 Art. 15 If an employee is not recalled following a strike/lockout: § They have recourse to recover their job § They have priority over any other person to the job Dismissal for union activity will be treated as a grievance and must be filed by the union. In the case of illegal strike activities, an arbitrator can conclude that the sanction imposed on an employee was excessive and can order the employer to reduce or change the sanction. End of a Strike/Lockout Work stoppage ends w/ § The signing of a CBA which was approved by a secret ballot. § Referral of the dispute to an arbitrator. § Employee decision made collectively by the union. 19 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Picketing Picketing - A manifestation of “freedom of expression” which is not specifically regulated in the QLC Secondary Picketing - Picketing in other locations of the employer’s establishment is protected but w/ limits. Illegal Picketing Picketing cannot: § Make false claims or defamation § Obstruct the employer’s commercial activities § Violet property rights § Be held at the private residences of management Art. 423 of the Criminal Code prohibits illegal picketing that involves violence, threats, intimidation, obstruction of highways, etc. (up to 5 years prison term) Sanctions Illegal Strikes/Lockouts Art. 142 It is prohibited to declare or instigate an illegal strike/lockout § up to $50,000 for unions and employers § up to $10,000 for officers and directors § up to $100 for employees *Does not need proof of individual intent, only concerted action. Injunction § The alt can issue an injunction to end an illegal strike/lockout. § If the stoppage pertains to a CBA related dispute, a grievance arbitration is the appropriate recourse. § The Superior Court can issue an injunction if illegal picketing is involved. Civil Lawsuits Damages can be filed in the Superior/Quebec court if individuals are harmed by an illegal strike. (class action lawsuits are also possible) Essential Services (Art. 111.0.15 - 111.0.26) Minimum Services In the public and para-public sectors, minimum essential services must be maintained in the event of a strike. § As defined by the Minister of Labour § Negotiated by the employer and the union If no agreement is reached, the union must submit its proposal of essential services to the alt. § If the alt considers the proposed list to be insufficient, it can convene a hearing and make its own recommendations to the Minister of Labour. § Determination of what essential services must be maintained is made by the government, and implemented/detailed by the alt. 20 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Conditions A strike cannot be declared until: § An agreement on the minimum services has been reached. § A 7-day strike notice has been sent to the alt, the employer, and the Minister. The government can suspend the right to strike if the proposed services are insufficient. § A 48-hour notice must be given to suspend/delay an announced strike. Anti-Scab Law (Art. 109.1) For the duration of the strike/lockout, the employer is prohibited from using workers to replace employees/members of the bargaining unit. Prohibitions The employer cannot use the services of: a) Anyone hired between the day the negotiation stage began and the end of the strike/lockout. b) A contractor or employee of another employer in the striking establishment. c) Any employee who is a member of the striking BU unless agreed upon w/ the union. d) A striking employee to work in another one of the employer’s establishments. e) Any employee from another one of the employer’s establishments. f) A contractor or employee of another employer in another one of the employer’s establishments. g) An employee not in the striking BU but that works for the same establishment as the striking BU. ↳ Can result in penal sanctions for both the employer and the worker. *Does not require intent to be a violation. Exceptions The employer can use management employees who have been hired prior to the negotiation phase, to work and operate the business/production. Management can be: § From the striking establishment § From another one of the employer’s establishments (if the other establishment is also on strike) § Someone promotes to management during the negotiation phase. The employer can use contractors to do work outside the establishment as long as: § They don’t work within the striking establishment § It is not a partial sale of the business The employer can hire employees to avoid destruction or serious deterioration of the employer’s property. Chapter 7 - The Collective Agreement Content in the CBA § Any issues related to working conditions § Labour standard rules on physiological harassment § Charter of the French Language § Act respecting occupational health and safety Cannot be contrary to public order 21 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Art. 87.1 Orphan Clause It is prohibited for the CBA to contain clauses where newer employees receive different salary/benefits or less advantageous working conditions than existing employees performing the same tasks. Exceptions: § Different treatment based on seniority, experience, education, qualifications, etc. is permitted. § Different treatment for the handicapped is permitted. § Different treatment for the integration of employees into new jobs following a restructuring of the business is permitted. Formalities for Approval Art. 20.3 For a union to be authorized to sign a CBA, it must be approved by >50% of the members of the association in the BU via a secret ballot vote. (violation results in penal sanctions) Art. 72 Duration Art. 65 CBA must be filed w/ the Minister of Labour within 60 days of signature. § CBA is enforced retroactively after filing § Deadlines do not begin until the CBA is filed § Grievances made before the CBA is filed, are still valid § Failure to file exposes the union to new petitions for certification 1. Minimum 1 year for all agreements 2. Maximum 3 years for new agreements 3. No maximum term for renewed agreements If duration is not specified, it is assumed to be 1 year. If a new agreement exceeds its max, it is automatically reduced to 3 years. Art. 59 Effects Art. 67 Art. 68 Working conditions are maintained following the expiration of a CBA until the right to strike/lockout is acquired. § When the right is acquired, the employer may unilaterally change working conditions by sending a notice to the union, which can then respond w/ a strike. § Grievances resulting from issues before the CBA expired can continue after expiration. The CBA is binding on all current and future employees in the bargaining unit. The collective agreement is binding on all employers when concluded on their behalf by an association of employers. The CBA cancels out and replaces any conditions and rights under the individual employment contracts. The individual employment contracts reapply if the CBA ceases. 22 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Chapter 8 - The Arbitration of Grievances Jurisdiction of the Arbitrator Art. 100 Any dispute arising from the application of the CBA must be submitted to arbitration. An arbitrator has exclusive jurisdiction for the interpretation and application of the CBA when a dispute arises explicitly or inferentially from the: § Interpretation § Application of the collective agreement § Administration § Violation *The CBA does not have to specifically provide for the dispute for a grievance arbitration. (can be an implicit or explicit dispute) § Implicit - Not directly stated, but is assumed. § Explicit - Directly stated in the content. Implicit Disputes Theoretical disputes asking for an interpretation of the meaning of the CBA. All rights and obligation: § Of the employer and the employees § Of former employees § Resulting from the Charter of Rights and the Public Order Laws (LSA) § Resulting from the Civil Code § Resulting from an expired CBA There is no concurrent jurisdiction of the Civil Courts. • An employee cannot file a civil claim • Any ruling from the arbitrator will be final and binding Arbitrator can Handle disputes between an employer (and its representatives), and the union (and its employees). Arbitrator cannot Impose ruling on third parties, or decide disputes between employees themselves. Rules of Natural Justice The arbitrator must respect the parties’ right to: § Impartiality § A fair hearing § Be heard and be represented by an attorney § Present relevant evidence Protection An arbitrator has immunity against personal liability for consequences of decisions made in good faith. 23 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Appointing an Arbitrator The CBA can specify who will be appointed to arbitrate grievances § Can be through a process of nomination § Can be appointed by the Minster of Labour upon request from either party If the collective agreement does not specify an arbitrator and the parties fail to agree on one, the Minister of Labour will appoint one. Arbitration Deadline Art. 71 Rights and recourses arising from the CBA are prescribed 6 months from the date of knowledge of the cause of action § Arbitrator loses jurisdiction after the deadline § The CBA can provide a shorter deadline but cannot be less than 15 days Steps to filing a grievance are usually specified in the collective agreement Powers of the Arbitrator Art. 100.12 a) interpret and apply any law or regulation b) fix the terms and conditions of reimbursement c) order the payment of damages and interest at the legal rate d) fix the amount due under an award he has made e) correct, at any time, a decision in which there is a calculation or clerical error f) confirm, amend, or set aside the decision of an employer and substitute the decision g) render any other decision to protect the rights of the parties Limitations Interpretation of the Constitution and the Charter of Rights Arbitrator's exclusive power is limited to conclusions relating to the appreciation of the evidence. § Even if the courts do not agree w/ the decision, if it’s still reasonable (not an error), the courts will defer to the arbitrator's expertise. § Errors regarding the legal interpretation of fundamental rights will be subjected to Judicial Review. Judicial Review A union’s obligation of representation includes requesting judicial review if necessary. § An employee cannot request this on his own § This is not an appeal Situations for Review Questions of Jurisdiction and the Law § Interpretation of any important principal laws. § Violation of the Rules of Natural Justice. § Decisions made on a grievance that was filed. outside the 6 months delay. § When an arbitrator refuses to hear a properly filed case. Questions of Fact, Evidence, Direction, or Policy § Interpretation of the CBA § Interpretation of laws within an arbitrator’s expertise. § Standards of reasonableness of the decision (decision must have been manifestly unreasonable) *In most cases, the arbitrator’s decision cannot be challenged. 24 Downloaded by Savannah Amber ([email protected])